Peter Pang t/a Karter Appliance Company and Another v. Windsor Industries Incorporation and Another

Case No.HCA 729/1977

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA000729/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 729 OF 1977

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	Peter PANG trading as Karter Appliance Company	1st Plaintiff
	Eaca International Limited	2nd Plaintiff
	and
	Windsor Industries Incorporation	1st Defendant
	Tamarac Industries Limited	2nd Defendant

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Coram: Zimmern, J. in Chambers.

Date of Judgment: 20th May, 1977.

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JUDGMENT

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1. I dismissed this appeal with costs at the hearing without calling on the Respondents and said I would give my reasons later and now do so.

2. The appeal is from a decision of the Registrar setting aside the service of the writs of summons herein on one Morris Fink at Room 514 Peninsula Hotel, Kowloon as service on the 1st Defendant.

3. At the hearing of the application to set aside the service the learned Registrar had before him as I had before me on appeal an affidavit filed on behalf of the Plaintiff and 2 filed on behalf of the 1st Defendant. From the affidavits and on the face of the writ of summons, the following facts emerge which brook no argument:-

1.	The 1st Defendant is a foreign corporation.
2.	It is not registered under the Companies Ordinance as a foreign corporation carrying on business in Hong Kong.
3.	One Morris Fink is its President and one Micky Hiller its Vice-President.
4.	Its business is the purchase of electronic goods manufactured in Hong Kong and elsewhere in the Far East for importation into the United States of America for re-sale.
5.	The Plaintiffs commenced business with the 1st Defendant in August 1976. Fink and Hiller have for the last 2 years each visited Hong Kong 2 or 3 times per year. On every visit they would stay in a hotel in Hong Kong. Fink always stayed at the Peninsula Hotel and Hiller usually. The duration of each visit was about a week. Fink was sometimes accompanied by his wife.
6.	The purposes of their visits were for the business of the 1st Defendant.
7.	The 2nd Defendant is a company incorporated in Hong Kong. All the shares issued are either to a Fink or Hiller other than 1 share to one Kotaka. The last named is the resident manager in Hong Kong.
8.	Chung, on behalf of the Plaintiffs, affirmed that Kotaka would prior to each visit of Fink or Hiller telephone him and other suppliers to inform them of arrival dates and on 22/3/77 Kotaka so telephoned him that Fink would be arriving on 23/3/77 and staying at Room 514 Peninsula Hotel.
9.	The writ was served on Fink at Room 514 Peninsula Hotel on 25-3-77.

4. For the appeal to succeed the Plaintiffs must satisfy me that on the evidence the 1st Defendant foreign corporation was on the 25-3-77 conducting its own business at some fixed place within the jurisdiction. (See Dunlop Pneumatic Tyre Company, Limited v. Actien-Gesellschaft Fur Motor Und Motorfahrzeugbau Vorm. Cudell & Co.)⁽¹⁾

5. Counsel for the Plaintiffs argues that Room 514 Peninsula Hotel was that fixed place of the corporation. He submits that if some business of the corporation was carried on in that room then he would have satisfied the test. I disagree. I do not for a moment say that a foreign corporation cannot set up a fixed place of business in a hotel, but on the facts of this case there is no evidence that the 1st Defendant through Fink did so at Room 514 Peninsula Hotel or anywhere else in Hong Kong on 23/3/77. The announcement of Fink's anticipated arrival in Hong Kong to business contacts was no more than advice to them where he could be contacted. If upon contact Fink were to allow any one into his private room in a hotel to talk or transact business that does not mean that the 1st Defendant Company was carrying on business in that room. If the Plaintiffs were to rely on the system of Fink's and Hiller's periodic visits to Hong Kong that again fails by reason that there is no evidence whatsoever that the rooms they stayed in were anything else but private hotel rooms and that any invitee could enter without express permission.

	(A. Zimmern)
	Judge of the High Court(A. Zimmern)

Representation:

Robert Tang (Yeung & Ko) for the Plaintiffs.

Ozorio (Philip Remedios & Co.) for 1st Defendant.

(1) (1902) 1 K.B. 342 @ 347