Long Sheng (China & Solomon) Group Corporation v Xu Qang [2013] SBHC 195; HCSI-CC 142 of 2013 (13 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona J).

Civil Case No. 142 of 2013.

BETWEEN:

LONG SHENG (CHINA & SOLOMON) GROUP CORPORATION
First Claimant

AND:

JERRY HONG SUN
Second Claimant

AND:

CHANG CHENG LIU
Third Claimant

AND:

XU QANG
Defendant.

Date of Hearing: 13th December, 2013.
Date of Ruling: 13th December, 2013.

Mr D. Marahare for the Claimants.
Mr J. Keniapisia for the Defendant.

RULING.

Faukona J: This is an application by the Defendant to vary or terminate an order of this Court dated 9th August, 2013, detaining the passport of the Defendant, which currently held and in the possession of this Court. The detention of the passport mean that the Defendant will not leave the Country until such further order is made.

2. At the rising of the Court I had verbally ordered that the detained passport of the Defendant be released to him so that he would travel to his home land, China, to receive medical attention and treatment. I promise I would give reasons for my verbal decision, which I now do so.

3. This application premises on two reasons. Firstly, since the order detaining the passport was made on 9th August, 2013, circumstances have changed drastically. Secondly, the Defendant had been experiencing health problems, which called for urgent release of his passport so that he would seek medical treatment in his country China.

4. Mr Marahare objects to any release of the Defendant's passport. Should it be, the Defendant will escape and will not return to defend his case? In respect to the issue of change of circumstances, Mr Marahare submits that those facts are necessary in an application for summary judgment, which is not an issue before this Court at this stage. Submissions should confine to grounds for release of Defendant's passport.

5. I noted Mr Keniapisia touches on facts relate to change of circumstances to reinforce that there is no real prospect of the claim succeeding against the Defendant. In attesting the reasons for detention of the passport, basically because the Defendant attempted to escape a criminal charge at Henderson airport in April 2013. That has been diluted by a letter from immigration dated 3rd September 2013, affirming there is no immigration issue against the Defendant and there was no attempt to stop him travelling overseas on 9th May, 2013.

6. The issue regarding collection and earning of $51 million dollars for the sale of beach-de-mer and failure to distribute to Second and Third Defendant as persons eligible to receive, is an issue in my view, proper to raise during application for summary judgment. It is an issue that touches on the core of substantive case. Meantime, it is suffice to say that a defence has been filed and the Defendant had applied for summary judgment: an action, which implicated the Defendant, is willing to participate in the proceedings defending the claim against him.

7. Mr Keniapisia further submits that the Defendant would not escape. He has a business investment in Solomon Islands. Exh. XO 2 attached are certain documents related to certificate of corporation, business licence etc. Also attached under Exh.XO3 is a copy of the Defendant and family application for certificate of naturalisation filed on 22nd October, 2013. It would appear from those documents that he had been living in Solomon Islands for 10 years and 10 months. SI Chinese Association supports the Defendant for the release of his passport, see Exh. XO1 a letter attached to sworn statement by the Defendant filed on 13th November, 2013.

8. Further Mr Keniapisia submits that the Defendant has a serious health concern. He refers to the latest doctor's report Exh. XO 5 attached to sworn statement by Defendant filed on 23rd October 2013. Mr Marahare intervene and raises the Doctor's report on 11th September, 2013, has contradicted the report made by East Medical Centre (Dr. N. Kere). Mr. Keniapisia then refers to Dr Kere's previous report, which supports his case. I have studied the reports and am able to conclude that Dr. Kere's report on 28th June 2013 was in a form of reply to Police investigators request. It would appear the report starts by referring to certain Asians who got themselves on the opposite side of the law and seeking medical referral to escape to China.

9. The report started off by some Asians entering the Clinic and informed staff that a gentle man in the car had a heart attack, which Dr Kere disqualified because he walked into the clinic without difficulties. When actual consultation ensured the Defendant relayed what happened in 2006 and showed Dr Kere his x-ray, which revealed a small opacity in the centre of the brain at the septum. Finally, Dr Kere refers the Defendant for further assessment by local specialist for second opinion, and concluded that the Defendant did not warrant any overseas referral.

10. What occurred is that Dr. Kere had been initially well versed with Police request, and had been well versed that some Asians were seeking medical referral to escape criminal activity to China. Having prior knowledge of the circumstances, the conclusion he drew reflected police request. The report in my view lacks independent and reality of the Defendant's health status.

11. I accept the other report by Dr Kere and Dr Munamua from national referral hospital, which concluded that National referral Hospital lacks specific investigative equipment and facilities with a possibility of a neurologist or neurosurgeon. The Defendant should be referred to higher level of care outside Solomon Islands to investigate his symptoms, which may be from a serious but show progressive problem.

12. I noted from submissions that the Defendant normally travels home (China) twice a year previously to get medical attention and care. There has been none for 2013 because of the criminal proceedings and legal suits that engaged his time.

13. From the submissions, I am able to say, that for a man to toil the earth and reap the harvest of his labour, he has to be fit medically on this earth, or his children will not forgive him for providing nothing during the whole course of his tenure. As circumstances permit I will grant the orders sought in this application.

Order:

1. Order releasing the passport of the Defendant held by the Court by an interim order perfected on 9th August, 2013, to enable the Defendant travel overseas for medical treatment.

2. The Defendant is not obliged to pay any security to the Court and no undertaking to the Court by Defendant's Counsel on behalf of the Defendant.

The Court.