Fung Man Ying Doris t/a Good-fit Garment Factory (A Firm) v. The Chief Bailiff of the Supreme Court, Hong Kong and Another
Read the full judgment text of HCA 2048/1980 on BabelCite. This High Court CFI judgment was delivered on 10 June 1980.
1. On the 14th March 1980, Shing Luen Wai entered an appearance on behalf of Good-Fit Garment Factory of No. 15, Cheung Yue. Street, Wing Ming Industrial Building, 7th Floor, Kowloon (hereinafter referred to as "Good-Fit of No. 15 Cheung Yue Street") in High Court Action No. 1131 of 1980, brought by Hop Fat Piece Goods Enterprise Co. Ltd, and also admitted himself to be the sole proprietor of that firm.
|
HCA002048/1980 Whether action can be brought against "The Chief Bailiff" - Crown Proceedings Ordinance - Injunction - Declaration - Interpleader - Costs.
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Rhind, J. in Court Date of Judgment: 10 June 1980 ----------------- RULING ----------------- 1. On the 14th March 1980, Shing Luen Wai entered an appearance on behalf of Good-Fit Garment Factory of No. 15, Cheung Yue. Street, Wing Ming Industrial Building, 7th Floor, Kowloon (hereinafter referred to as "Good-Fit of No. 15 Cheung Yue Street") in High Court Action No. 1131 of 1980, brought by Hop Fat Piece Goods Enterprise Co. Ltd, and also admitted himself to be the sole proprietor of that firm. 2. Hop Fat Piece Goods Enterprise Co. Ltd duly obtained judgment against Good-Fit of No. 15 Cheung Yue Street on the 26th March 1980 for the sum of $58,654 together with interest and costs. 3. To enforce that judgment, Hop Fat Piece Goods Enterprise Co. Ltd took out a writ of fi fa, dated 16th April 1980, which directed the Bailiff of the Supremen Court to seize "..... the goods, chattels and other property of the Defendant Good--Fit Garment Fty of No. 15, Cheung Yue Street ....." in execution, and further ....." that in case you shall not be able to find sufficient property of the said Defendant Good-Fit Garment Fty and Shing Luen Wai or the said Shing Luen Wai shall fail to point out to you any property whereon to levy you do forthwith arrest the said Shing Luen. Wai ....." as a prisoner for debt.......". 4. In furtherance of that writ of fi fa, a representative of Hop Fat Piece Goods Enterprise Co. Ltd made an affirmation dated 19th April 1980 in which he stated, in effect, that he knew that Good-Fit of No. 15 Cheung Yue Street had goods at, inter alia, Flat No. 9, On Hong Building, Ground Floor, Yuen Long, on which execution could be levied. 5. On the strength of that affirmation, the bailiff proceeded to enforce the writ of fi fa on 19th April 1980 by seizing the goods he found at Flat No. 9, On Hong Building, Ground Floor, Yuen Long, and leaving his watchman in possession of those goods at that address pending sale. 6. This brings us to the point where complications arose. 7. There is a firm called Good-Fit Garment Factory which carries on business at Flat No. 9, On Hong Building, Ground Floor, Yuen Long. That is the address borne by its Business Registration Certificate, and Fung Man Ying Doris is registered as its sole proprietor. From this point on I will refer to this firm as "Good-Fit of Flat No. 9, On Hong Building". 8. Thus, the dramatis personae include Good-Fit of Flat No. 9, On Hong Building and Good-Fit of No. 15, Cheung Yue Street. 9. According to Fung Man Ying Doris in an affirmation she made, despite the identical names "Good-Fit Garment Factory", each is a separate legal entity unrelated to the other. Whether each of the pair is a separate legal entity is not an issue which falls to be resolved in the present proceedings before me, and I only advert to the fact that the names are identical in the hope it will make this narrative more intelligible. 10. In all, the bailiff seized eleven items of property at Flat No. 9, On Hong Building. On 28th April 1980, he was still, through his watchman at No. 9, On Hong Building, in possession of all that property preparatory to sale. That day, Good-Fit of Flat No. 9, On Hong Building issued the writ in the present action, its Indorsement of Claim being as follows:-
11. The writ was served on the day of its issue, the Indorsement as to service reading that it was served at "Old Mercury House, 2nd Floor, Supreme Court Bailiffs' Office on the 1st named Defendant the Chief Bailiff" and the indorsement also went on to give details about the service on Hop Fat Piece Goods Enterprise Co. Ltd. According to the material before me, that writ was the first written notice the bailiff had of the claim by Good-Fit of Flat No. 9, On Hong Building to the disputed goods. 12. The following day, i.e. 29th April 1980, the bailiff, acting on the instructions of the solicitors for Hop Fat Piece Goods Enterprise Co. Ltd, released ten of the eleven items he had seized at Flat No. 9, On Hong Building. The one remaining item comprised a batch of about a thousand garments in the course of manufacture. 13. Those garments have a history which is not without relevance to the matter before me. 14. According to Fung Man Ying Doris, they originally belonged to Shing Luen Wai, who, it will be remembered, is the sole proprietor of Good-Fit of No. 15, Cheung Yue Street. Her affirmation goes on to state that on or about the 10th March 1980, Shing Luen Wai entered into an arrangement with her for Good Fit of Flat No. 9 On Hong Building to do some finishing work on those garments. Then, on the 3rd April 1980, according to her affirmation, she learn from Shing Luen Wai that he had sold the garments to a Miss Chan Yuk Lan to whom Good-Fit of Flat No. 9 On Hong Building should look for payment for the work it was doing on the garments. Fung Man Ying Doris's affirmation exhibited an Agreement she had entered into with Miss Chan Yuk Lan on 3rd April 1980 for Good-Fit of Flat No. 9, On Hong Building to be paid for the work it was doing on the garments. 15. Thus, even if Good-Fit of Flat No. 9, On Hong Building and Good-Fit of No. 15 Cheung Yue Street should turn out to be separate entities, they are, nonetheless, not strangers to each other. They can be seen to be linked through this batch of garments. 16. In a letter received by the bailiff on 29th April 1980, a copy of which was received by the solicitors for Good-Fit of Flat No. 9, On Hong Building on 30th April 1980, the solicitors for Hop Fat Piece Goods Enterprise Co. Ltd suggested that the bailiff should forthwith issue an Interpleader Summons in respect of the batch of garments. 17. Meanwhile, on the 29th April 1980, the solicitors for Good-Fit of Flat No. 9 On Hong Building had filed an Affirmation of Fung Man Ying Doris with the court, and on the strength of the contents of that Affirmation they caused an application to be made before me ex parte on the morning of 2nd May 1980 for an interlocutory injunction in the following terms:-
18. With a view to maintaining the status quo, I made an interim order enjoining the bailiff from selling the goods seized at Flat No. 9, On Hong Building before the 8th May 1980, which was the date I set for the return of the Summons for an Injunction on an inter partes basis. 19. A further development which occurred on 2nd May 1980 was that the solicitors for Hop Fat Piece Goods Enterprise Co. Limited directed the bailiff now to release the disputed batch of garments, an order with which he, of course, complied. The reason given for this by the solicitors for Hop Fat Piece Goods Enterprise Co. Limited was that Good-Fit of No. 15, Cheung Yue Street, the defendant in High Court Action No. 1131, had fully paid up the judgment debt. 20. Hop Fat Piece Goods Enterprise Co. Ltd entered an appearance through its solicitors in the present proceedings on 30th April 1980. The appearance on behalf of the Chief Bailiff was entered by the Attorney-General's Chambers on 5th May 1980. That was also the date the solicitors for Good-Fit of Flat No. 9, On Hong Building filed an Inter Partes Summons returnable for the 8th May 1980, following up the ex parte injunction it got on the 2nd May 1980. 21. When the legal representatives for the parties appeared before me on the Inter Partes Summons on 8th May 1980, the turn which events had already taken meant that the plaintiff no longer needed to pursue the application for injunctions. 22. The sole question remaining was costs. 23. My view is that the 1st defendant, i.e. the Chief Bailiff, is entitled to be paid all his costs to date by the plaintiff. This will mean in effect that the Crown will recover those costs against the plaintiff. A combination of several reasons lead me to take that view. 24. Firstly, proceedings should never have been instituted against the office of Chief Bailiff. While it could be in order in appropriate circumstances to bring an action against a named bailiff, an action against a persona entitled "The Chief Bailiff" is misconceived. Presumably what the plaintiff really had in mind was an action against the Crown. There is no dispute that bailiffs in Hong Kong are Crown servants. How the plaintiff should have set about seeking redress against the Crown for the activities of its bailiffs was by commencing an action against the Attorney-General (S.13(1) of the Crown Proceedings Ordinance, Cap. 300). 25. Secondly, insofar as the plaintiff's application for an interlocutory injunction has been concerned, this was a complete non-starter all along. The plaintiff was, in effect, seeking injunctive relief against the Crown or Crown servants, a type of remedy ruled out by the provisions of S.16 of the Crown Proceedings Ordinance:-
26. Nor could the plaintiff achieve the same result by seeking, in effect, an interim declaration against the Crown, or its servants, for that is a form of remedy unknown to the law. (See Constitutional And Administrative Law (Third Edition) by S.A. de Smith at page 607). 27. Lastly, in the circumstances of the present case, the plaintiff deserves in any event to be mulcted in costs for pursuing the exotic remedy of an injunction against the bailiff rather than adopting the conventional course of requiring him to interplead in accordance with the procedures set out in 0.17 of R.S.C. Perhaps, if a bailiff were acting oppressively, or deliberately in abuse of his powers, it would be understandable that an affected person might feel prompted to have him restrained by injunction, if such a remedy were available, but in the case before me there is nothing to suggest that the bailiff acted other than reasonably, and in good faith. 28. When Good-Fit of Flat No. 9, On Hong Building, the plaintiff in the present case, starts asserting title as against a judgment creditor of Good-Fit of No. 15 Cheung Yue Street to goods which till recently belonged to Good-Fit of No. 15, Cheung Yue Street the plaintiff should have enough imagination to realize that others will think whether rightly or wrongly, that they detect the whiff of a colourable transaction. 29. For the bailiff to remain in possession in those circumstances was wholly understandable. When the bailiff, an innocent bystander, got caught in the crossfire between the plaintiff and the 2nd defendant in the present case, the reasonable course on the plaintiff's part would have been to set the machinery in motion for the bailiff to extricate himself by interpleading. The procedure open to the plaintiff under 0.17 is both swift and simple; there was no excuse for the plaintiff's failure to use it. 30. Even in a jurisdiction such as England, where it has been possible to get an injunction against someone in his official capacity performing functions equivalent to those of Hong Kong's bailiffs, the attitude of the courts has been to make an order for costs which will discourage the seeking of an injunction when interpleader proceedings could have achieved the same result (see Hilliard v. Hanson (1882), 21 Ch. D. 69, C.A.). 31. While there can be no quarrel with joining the 2nd defendant in the action (again, see Hilliard v. Honson, supra, on this), the 2nd defendant must, as against the plaintiff, have all its costs which have been thrown away by the misconceived application for an injunction.
Representation: Mr Bruno D'Almada (S. F. Sun & Co.) for plaintiff Mr McCallough, Crown Counsel, for 1st defendant Mr Poon (Poon & Sum) for 2nd defendant |