Bank of Credit and Commerce Hong Kong Ltd (in Liquidation) v. Suresh Herkishin Mirchandani

HCA003150/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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Coram: Master Jones

Date of Hearing: 23 - 24 April 1998

Date of Handing Down of Decision: 4 May 1998

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DECISION

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1. This hearing constitutes the trial of a preliminary issue under 0.36 r. 1RHC as to the validity of the purported service of the plaintiff's writ outside the jurisdiction. The plaintiff claims a sum of money from the defendant as guarantor of the debt of a third party company. The defendant is resident in Sri Lanka, and the plaintiff obtained the court's leave to serve the writ on him in that country. According to the affirmation of Mr. N.B. Sirisena of 12 May 1997 service was duly effected on 10 May 1997, whereafter the plaintiff entered judgment against the defendant in default of appearance. That judgment was later registered as a judgment in Sri Lanka.

2. On receiving notice of the judgment registered against him in Sri Lanka, the defendant took steps to set aside the Hong Kong judgment, and apparently obtained a stay of the Sri Lankan judgment pending resolution of the issue in Hong Kong. He also filed a complaint against Mr. Sirisena with the police in Sri Lanka alleging fraud and the swearing of a false affirmation of service. The defendant's case is that Mr. Sirisena did not serve the writ on him as stated in his affirmation of 10 May 1997, and that he was unaware of the proceedings until he received notice in early Serptember of the judgment registered in Sri Lanka at the end of August 1997. Conflicting affirmations were filed pursuant to the defendant's application to set the judgment aside and the issue of the service of the writ on the defendant in Sri Lanka was adjourned to this preliminary hearing. The issue was framed as: "Whether or not the defendant was served with the papers in this matter on 10 May 1997 as deposed to in the affirmation of N.B. Sirisena of 12 May 1997". That affirmation appears at page 27 of the bundle of documents filed by the defendant.

3. The plaintiff opened with its only witness, Mr. Sirisena, who said he was deputy Chief Clerk in the Sri Lankan law firm of Julius and Creasey in Colombo. He had been with the firm for 35 years, and it was a large firm with 50 lawyers. He was the only person in the firm entusted with serving foreign process and did so some 10-12 times a year. Mr. Sirisena described arriving at the premises and waiting for the defendant at the request of the security guard after telling the guard he had papers to hand to the defendant personally. He waited about half an hour, when the defendant arrived and the guard said he could go in and speak to him. Mr. Sirisena then described going into the front office of the premises and speaking to a girl seated there who said she was the defendant's secretary and who asked him to leave the papers with her. He declined, saying they were court papers, whereupon she went into an adjoining office and he followed her and gave the papers to the defendant who was inside. The defendant refused to sign the receipt and asked Mr. Sirisena to take back the papers, saying that he was not the person concerned. Mr. Sirisena said he refused to do this, as both the security officer and the secretary had identified the defendant. On his way out he said that another person, who had been in the office with the defendant, also tried to get him to take back the papers, but again he refused. Mr. Sirisena identified the defendant in the courtroom.

4. Addressing the complaint filed against him by the defendant (page 35 of the bundle) Mr. Sirisena said that he was asked to go to the police station, where he confirmed that he had served the papers on the defendant and gave a statement at the request of the police. He said that the defendant asked him if he had served him with the papers, which he confirmed, whereafter the defendant left. He did not hear from the police again.

5. Mr. Sirisena gave his evidence well and he was not seriously troubled in a long and searching cross-examination. His long service, his senior clerical position in a large law firm, and the trust implicit in his being the server of foreign process for that firm all lend weight to his testimony. Moreover Mr. Sirisena appears to be a disinterested party so far as concerns the outcome of his efforts to serve the documents on the defendant. Whilst therefore the burden of proving service lies on the plaintiff, these are all factors which I am bound to consider, as the defence evidence leaves no latitude for a finding that Mr. Sirisena was innocently mistaken.

6. The thrust of the defence evidence was not only that the service on the defendant did not occur, but that it could not possibly have occurred in the circumstances described. The security arrangements at the premises for the arrival of visitors and for the delivery of parcels and mail were said to be such that service could not have been effected as described by Mr. Sirisena.

7. Both in court and in his affirmations at pages 30 and 43 of the bundle, the defendant, Mr. Mirchandani, said that the premises where service supposedly took place were secure and that anyone gaining access would be recorded in an information book kept by the security guard at the gate. He described the security procedures and his office practice whereby his door would be closed and his secretary would not walk in without first obtaining his permission. He produced as exhibit D. 1 a plan of the premises showing the guard's security room at the side of the main entrance. He also produced (translation at page 54) an extract from the guard's information book for the date of service, 10 May 1997, indicating that Mr. Sirisena's name was not entered as a visitor.

8. The evidence of Mr. Perera, the security guard, was less clear on the subject of visitors' records. He said that the information book was for visiting executives and that names of people arriving with parcels would not be entered in the book. He did however confirm that the name of anyone seeing the defendant personally would be recorded. He was adamant that the defendant had not entered the premises that day, but he agreed in cross-examination that he relied on entries in the information book in deciding who had visited on a particular occasion. I am satisfied that Mr. Perera had no independent recollection, apart from the records, of whether or not Mr. Sirisena sought entry to the premises on 10 May 1997.

9. The defendant's secretary, Nazreen Jainudeen, also gave evidence as to security procedures, and as to her own office practice in relation to visitors, which substantially supported Mr. Mirchandani's own evidence. Like Mr. Perera, she was adamant that Mr. Sirisena had not delivered any documents to the defendant on 10 May 1997, and said that she had never seen him before when he was pointed out to her in court. She said that she would never walk into the defendant's room without buzzing him first and that the door was always closed. This was confirmed by the defendant himself who said that it opened on electronic control from a button on his desk. I bear in mind that this witness did not appear dishonest, but she was clearly devoted to her employer and was insistent that she could even remember the dates of arrival of urgent packages delivered several months ago.

10. There is therefore considerable evidence that Mr. Sirisena did not serve the papers on Mr. Mirchandani at his office on 10 May 1997. Despite Mr. Sirisena's apparent sincerity as a witness and his lack of motive to fabricate and commit perjury, I cannot lightly dismiss this evidence for the defendant. I do however note that Mr. Sirisena's description of the premises and in particular of the entrance to the office area conforms both to the plan later produced by the defendant and to the defendant's own description in evidence.

11. Not only was Mr. Sirisena's description offered before the defendant's evidence and before his production of the plan, but much of it arose spontaneously in cross-examination, and not in circumstances where it was obviously tendered for probative effect. In examination in chief he described the wall around the property, and the iron gate and the guard. Later, in cross-examination he described walking about 20 yards from the security room to the office area. He described the office as an open room at the front with flowers, artificial trees, and fish tanks. He said that there was one lady at a desk and that the room she went into, which turned out to be Mr. Mirchandani's room, was close to her desk. All of this tallies with the plan exhibit D. 1, and the presence offish tanks and artificial trees in the office area was confirmed by the defendant himself in cross-examination.

12. I am satisfied from this evidence that Mr. Sirisena has at some time been on the premises at which he said he served the defendant, whereas it is the defence evidence that he could not possibly have done so without security clearance. As Mr. Sirisena's description largely arose in cross-examination, it would be fanciful to suppose that he gained entry at some later stage merely to arm himself with an accurate description to support a fabrication of service. Mr. Sirisena's evidence anyway has the ring of truth, even to the presence of another person in the defendant's office at the time of service. This would be an unlikely addition to a fabricated story, when simplicity would be the guideline. I find in all the circumstances that I do not believe the defence witnesses. I find Mr. Sirisena to be telling the truth in his affirmations and in his oral evidence.

13. I should finally mention the letter from the Officer in Charge of the police station where Mr. Sirisena was interviewed after the defendant's complaint. This appears at page 49 of the bundle and concludes in reply to the defendant's query (page 48) that Mr. Sirisena "had not gone to the complainant's premises or delivered any documents to him".

14. This letter has no probative value for our present purposes, and it is produced after purported investigations which did not apparently include the partners in Mr. Sirisena's firm. Mr. Hunsworth for the plaintiff suggested in argument that its appearance in the defendant's evidence may owe something to his chief of security being a retired Senior Superintendent of police. I do not know, and it is not for me to speculate on its provenance, nor the reasons why it reaches so firm a conclusion on so little grounds and on so serious a matter. Charges have not apparently been pursued and it suffices that I find the letter and its conclusion irrelevant.

15. In all the circumstances I accept the evidence of Mr. Sirisena and find that the question framed in the preliminary issue is answered in the affirmative, namely that the defendant was so served. There will be a fourteen day order nisi for costs to the plaintiff of and incidental to this hearing. Following the adverse finding on credibility, these costs are to be on a solicitor and own client basis and are to include any necessary air fares and board and lodging.

Representation:

Mr. S. Westbrook instructed by Mei Leong & Lam

Mr. Hunsworth of Johnson Stokes & Master