Manulife (International) Ltd v. Wong Chou, Johnny

HCA 1632/2012

[2018] HKCFI 1292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1632 OF 2012

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FURTHER JUDGMENT

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1.I handed down judgment (“Judgment”) in this action on 24 March 2017.  In this further judgment, unless otherwise stated, I shall continue to use the abbreviations adopted in the Judgment.

2.To recap, in this action, Manulife claimed against Mr Wong a sum of HK$1,974,479.61. 

3.This amount was made up of the Manager’s Overrides (ADOR / MDOR) and YEB advances which Manulife claimed it had overpaid Mr Wong and his direct and indirect reporting managers, Joseph Wong and Kung, in 2010 and 2011 on account of the Policies (particulars of which were summarised in the Schedule to the Judgment), after setting off certain allowances and deductions to which Mr Wong was entitled. 

4.The issue determined in the Judgment was whether Manulife was entitled to claw back from Mr Wong such overrides and bonuses.

5.I concluded in paragraphs 55, 65 and 69 of the Judgment that:

(1) Mr Wong is not liable to repay to Manulife the ADOR / MDOR paid by Manulife to Joseph Wong and Kung on Policies 1 to 10.

(2) Mr Wong is liable to repay Manulife the MDOR paid to him on account of the Policies ($751,095).

(3) Mr Wong should return the 2010 YEB advances ($1,207,697) to Manulife.

6.For the reasons set out in paragraphs 70 to 73 of the Judgment, I gave the following directions in paragraph 74:

(1) Manulife to revise the calculation of its claim on the bases of my said findings, which it should file with the court and serve on Mr Wong within 28 days from the date of the Judgment. 

(2) Mr Wong should file with the court and serve on Manulife’s solicitors, SH, his written comments (if any) on Manulife’s revised calculation within 28 days thereafter.

(3) Manulife should respond to Mr Wong’s comments (if any) within 14 days thereafter.

7.In compliance with such directions, on 21 April 2017, Manulife lodged with the court a document entitled “Revised Calculation of The Plaintiff’s Claim” (“Revised Calculation”) by which it adjusted its claim against Mr Wong from $1,974,479.61 to $1,387,535.61.  A copy of the Revised Calculation was posted to Mr Wong at his then last known address, which was a PO box.

8.By a letter dated 26 May 2017, the court was informed by SH that:

(1) The Revised Calculation posted to Mr Wong was returned to their office on 17 May 2017 with the words “P.O. BOXED CLOSED” marked on the envelope. 

(2) SH subsequently learnt that Mr Wong had on 17 November 2016 been convicted of fraud contrary to s 16A of the Theft Ordinance and was serving a 2½ year sentence.

Manulife asked for leave to serve the Revised Calculation on Mr Wong by delivery to the headquarters of the Correctional Services Department (“CSD”) for onward delivery to Mr Wong.

9.Upon ascertaining that Mr Wong was then incarcerated at the Stanley Prison, on 29 May 2017, I directed Manulife to serve the Revised Calculation (together with a copy of the Judgment) on Mr Wong by mail to the Superintendent of the Stanley Prison for onward delivery to Mr Wong and that the covering letter should specifically draw Mr Wong’s attention to paragraph 74 of the Judgment.  Such direction was complied with by SH on 2 June 2017.

10.By a letter dated 22 June 2017 to the court but apparently not copied to SH, Mr Wong confirmed that he had received the Judgment and the Revised Calculation on 2 June 2017 but pointed out that he did not have any documents or information about the case with him.  He asked the court to give him some options as to what he could do. 

11.In light of Mr Wong’s said letter and his then circumstances, I considered that, in fairness to Mr Wong, he should be provided with a set of the trial bundles so as to enable him to meaningfully review, and make submission on, the Revised Calculation.  Hence, by a letter dated 29 November 2017 to SH and Mr Wong c/o the Commissioner of Correctional Services (for the attention of the Superintendent of the Stanley Prison), I enclosed for SH’s attention and reference a copy of Mr Wong’s letter said dated 22 June 2017 and directed:

(1) Manulife to provide to Mr Wong through the Superintendent of the Stanley Prison a set of the bundles used at the trial of this action in August and September 2015; and

(2) Mr Wong to provide his comments on the Revised Calculation to the court and SH within 14 days of receipt of such bundles.

12.Manulife complied with the first-mentioned direction on 13 December 2017. 

13.The court was informed of such compliance by SH’s letter dated 6 February 2018, which also enclosed a letter dated 5 January 2018 from the Commissioner of Correctional Services to SH advising that Mr Wong had acknowledged receipt of the documents sent under SH’s letter dated 13 December 2017.

14.I am satisfied that Mr Wong has been given all the assistance that could be given to him in his circumstances, for him to respond on the Revised Calculation.

15.The time for Mr Wong to make submission on the Revised Calculation has long passed.  Neither the court nor SH have heard from him.  In the circumstances, the court is entitled to, and will, proceed on the basis that he has no submission to make on the Revised Calculation and that, insofar as he is concerned, the Revised Calculation accurately reflects the said findings that I made in paragraphs 55, 65 and 69 of the Judgment.

16.Accordingly, judgment should be entered in favour of Manulife against Mr Wong in the sum of $1,387,535.61 with interest at the rate of 1% above the best lending rate for Hong Kong dollars from the date of the writ to the date of judgment and thereafter at judgment rate until payment. 

17.I also make an order nisi that Mr Wong should pay 80% of Manulife’s costs of this action, to be taxed if not agreed on a party and party basis.  The 20% discount reflects what I reckon to be the time and costs spent on the existence of the company policy and practice mentioned in paragraph 32 of the Judgment which went to the issue whether Mr Wong could be made to repay the Manager’s Overrides paid by Manulife to others, an issue which Manulife has lost.

Mr Richard Leung, instructed by Stephenson Harwood, for the plaintiff

The defendant in person and made no submission