ATTORNEY GENERAL v. NG SHIU-FAI
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DCCJ004876/1973
IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT KOWLOON
CIVIL JURISDICTION
ACTION NO. 4876 OF 1973
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| BETWEEN | Attorney General | Plaintiff |
| and | ||
| NG Shiu-fai | Defendant |
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Coram: Judge Leathlean in Court
Date of Judgment: 15th October 1977.
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DECISION
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1. The question into which this matter has resolved itself is one which, so far as I am aware, has not been argued before. The question is whether the Crown may attach a pension governed by the provisions of the Pensions Ordinance in satisfaction of a judgment debt. The affidavit in support of the application to attach merely refers to the provisions of Section 12 of the Pensions Ordinance.
2. Order 77, Rule 16, of the Rules of the Supreme Court, so far as material, reads as follows:-
| "(1) | No order - |
| (a) | for the attachment of debts under Order 49, or | ||
| (b) | for the appointment of a sequestrator under Order 45, or | ||
| (c) | for the appointment of a receiver under Order 30 or 51, |
| shall be made or have effect in respect of any money due or accruing due, or alleged to be due or accruing due, from the Crown. | ||
| (2) Every application to the Court for an order under section 23 (1) of the Crown Proceedings Ordinance, restraining any person from receiving money payable to him by the Crown and directing payment of the money to the applicant or some other person must be made by summons served at least 4 days before the return day on the Crown and, unless the Court otherwise orders, on the person to be restrained or his solicitor; and the application must be supported by an affidavit setting out the facts giving rise to it, and in particular identifying the particular debt from the Crown in respect of which it is made." |
3. Sub-section of section 23 of the Crown Proceedings Ordinance, so far as material, reads as follows:-
| " | Where any money is payable by the Crown to some person who, under any order of any court, is liable to pay any money to any other person, and that other person would, if the money so payable by the Crown were money payable by a subject, be entitled under rules of court to obtain an order for the attachment thereof as a debt due or accruing due, or an order for the appointment of a sequestrator or receiver to receive the money on his behalf, the Supreme Court may, subject to the provisions of this Ordinance and in accordance with rules of court, make an order restraining the first-mentioned person from receiving that money and directing payment thereof to that other person, or to the sequestrator or receiver: | |
| Provided that no such order shall be made in respect of:- |
| (a) | any wages or salary payable to any officer of the Crown as such: | ||
| (b) | any money which is subject to the provisions of any enactment prohibiting or restricting assignment or charging or taking in execution." |
4. Section 12 of the Pensions Ordinance, so far as material, reads as follows:-
"A pension, gratuity or other allowance granted under this Ordinance shall not be assignable or transferable except for the purpose of satisfying a debt due to the Government, and shall not be liable to be attached, sequestered or levied upon for or in respect of any debt or claim what-ever except a debt due to the Government."
5. It is clear, therefore, that money due or accruing due from the Crown cannot be attached under Order 49, but can be under Order 77 provided that it falls within the purview of sub-section (1) of section 23 of the Crown Proceedings Ordinance.
6. Mr. Yiu, for the Attorney-General, submits that the provisions of sub-section (1) of section 23 of the Crown Proceedings Ordinance do not apply to cases such as the present one, inasmuch as those provisions relate only to cases where money is payable by the Crown to a person who, under an order of the court, is liable to pay money to any other person, and that other person would if the money so payable by the Crown were money payable by a subject, be entitled to attach it. I agree. This is not a case in which the Crown is liable to pay money to a person who is liable to pay money to another person, but a case in which money is payable by the Crown to a person who is liable to pay money to the Crown itself. The fact that the assignability of a pension governed by the provisions of the Pensions Ordinance is restricted by Section 12 of that statue need not, therefore, concern me here. It follows, then, that a pension governed by the provisions of Pensions Ordinance cannot be attached under Order 77 any more than it can be under Order 49.
7. As I say, it is upon the authority of the provisions of Section 12 of the Pensions Ordinance that the Attorney-General seeks to rely in the present case. In my judgment he is entitled to do so. Of course, since neither Order 49 nor Order 77 applies, no procedure is laid down for attaching a pension governed by the provisions of the Pensions Ordinance in satisfaction of a judgment debt due to the Crown itself. As to that, Mr. Yiu submits, upon the authority of Lau Tao-shing and Lau King-lim ((1959 H.K.L.R. 158), that where jurisdiction exists in a case in which apt procedure is not provided by statue the judge must himself mould a convenient form of procedure. Once again, I agree. The obvious model for the procedure to be moulded in cases such as these is Order 49, with such variations as the circumstances require. Order 49, Rule 3, requires that the order nisi must be served on the garnishee personally and, unless the court otherwise directs, on the judgment debtor. In the circumstances of the present case it would be nonsensical for the Crown in its capacity of judgment creditor/garnishor to serve the order nisi upon itself on its capacity of garnishee. As to the service of the order nisi on the judgment debtor, according to the Supreme Court Practice, 1976 (49/3/1) this should be effected by one of the methods specified in Order 65, Rule 5, but there is power to dispense with such service, and in practice an affidavit of service will be dispensed with if the judgment debtor has had notice by letter of, and has had a reasonable opportunity of attending, or of instructing a solicitor to attend, the application to make the order absolute. If and when I am satisfied that the judgment debtor has had adequate notice of the application to make the order absolute, therefore, I will consider dispensing with service upon him in one of the usual ways of the order nisi.
8. Dated this fifteenth day of October, 1977.
| (A.L. Leathlean) | |
| District Judge |
Representation: