Fu Lok Man James t/a Lokie Leatherware Manufacturing Co. v. Chief Bailiff of the High Court

HCA011796/1996

HCA 11796/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11796 OF 1996

_____________________

____________________

Coram: Mr. Justice Suffiad in Court

Dates of hearing: 9, 10, 11, 12, 13, 16, 17, 18, 19 and 20 March 1998

Date of handing down judgment: 16 April 1998

_____________

JUDGMENT

_____________

1. The Plaintiff brings this action against The Chief Bailiff of the High Court claiming damages for the wrongful conversion and detention of the Plaintiff's goods arising out of an execution by a bailiff of a Writ of Possession and Fieri Facias combined on 19th December, 1995 at Shop No. 10, Ground floor of Hong Kong Pacific Centre, 28 Hankow Road, Tsim Sha Tsui, Kowloon.

Background to the Plaintiff's claim

2. The Plaintiff, Mr. Fu Lok Man, is the sole proprietor of a leatherware manufacturing business carried on in the name of Lokie Leatherware Manufacturing Company which was set up by him in 1982. In 1995 the Plaintiff's business comprised of a factory or workshop in the San Po Kong area employing four workers who were involved mainly in making leather jackets. The Plaintiff did not have his own retail outlets in the form of shops. He relied to a large degree on salesmen and also on consignment sales. In respect of consignment sales, the Plaintiff would enter into agreements with different shopkeepers in the more fashionable and tourist areas such as Tsim Sha Tsui whereby the Plaintiff would consign goods made in his factory to these shops for sale there. These agreements would expressly state that the property in the goods so consigned remained with the Plaintiff while the goods are on display in the shops. It will also be a matter of agreement between the Plaintiff and the various shopkeepers as to how they will share the proceeds of sale when an item is sold to the public. With some shopkeepers, these agreements take the form that the Plaintiff is guaranteed a minimum price for an item sold and anything in excess of the minimum price is kept by the shopkeeper. In other cases, provided an item is sold above its minimum price, the shopkeeper will be entitled to a percentage of the actual sale price that item fetched.

3. In September of 1995 the Plaintiff entered into one such consignment agreement with one Khiatani Jyoti Ghansham trading under the name of Santini Fashions at Shop No. 10, Ground floor, Hong Kong Pacific Centre, 28 Hankow Road, Tsim Sha Tsui, Kowloon. A Consignment Note under the letterhead of Lokie Leatherware Manufacturing Co. and dated 19th September 1995 was signed by an authorised signatory of Santini Fashions. The shop itself was rented by Santini Fashions. Part of the shop was used for a tailoring business operated by Santini Fashions while the rest of the shop was used to display the Plaintiff's consigned goods placed there for sale to the public - mainly leather jackets each with a label carrying the trade name of "BOSSMEN" which is a name used by the Plaintiff in respect of products manufactured by his factory.

4. Quite apart from consigning his goods to the shop of Santini Fashions, the Plaintiff posted his brother, George Fu, and also a female assistant at the shop of Santini Fashions to supervise and oversee the sale of the consigned goods there. This was done for the further reason that about 90 % of the total goods consigned by the Plaintiff were consigned to Santini Fashions and that Santini Fashions was something of a base for the Plaintiff's consigned goods in the sense that if other outlets in the Tsim Sha Tsui area required any items of the Plaintiff, arrangements would be made for such an item to be delivered to such outlet from the stock available in Santini Fashions.

5. On 5th July 1995, the landlords of the shop which was rented to Santini Fashions commenced an action against the proprietor of Santini Fashions claiming for arrears of rent and possession in High Court Action No. A6516 of 1995. The landlords obtained judgment against Santini Fashions in that case on 14th August 1995. That judgment not being satisfied, the landlords caused to be issued on 20th November 1995 a Writ of Possession and Fieri Facias combined to levy execution upon that judgment. Pursuant thereto, a bailiff Stephen Tsui Tung Sing, together with the solicitor of the landlords and several security guards attended the shop premises of Santini Fashions on 19th December 1995 and there took possession of the shop premises and also detained all the items in the shop including all the goods consigned by the Plaintiff to Santini Fashions after taking an inventory of all the detained items. The Plaintiff's goods in the shop of Santini Fashions were detained by the bailiff despite vehement protests, at the time of the bailiff's attendance at the shop premises, from both the Plaintiff and George Fu that the goods belonged to them, not Santini Fashions. The Plaintiff's claim is based on this wrongful conversion of his goods by the bailiff in executing the Writ of Possession and Fieri Facias combined.

6. In bringing this action, the Plaintiff names as defendant the Chief Bailiff of the High Court. No other defendant is named. Neither was there any application to me to add any other defendant in the action. The Plaintiff makes no allegation that the Chief Bailiff has personally committed any wrongful act but puts his claim on the basis that the Chief Bailiff is liable either vicariously or as a principal for the wrongful act of conversion by the executing bailiff Stephen Tsui Tung Sing in carrying out his official duties as a bailiff.

7. This first matter that I have to decide, and it has been the subject of much argument at the trial, is whether the Plaintiff is entitled to bring an action against the Chief Bailiff for the wrongful act of conversion by the executing bailiff, or whether this claim, brought against the Chief Bailiff of the Supreme Court, is wholly misconceived.

The Identity of the Defendant

8. Whilst the evidence shows that at the time of the execution, the subject matter of this action, in December 1995 and at the date of the Writ of Summons in October 1996, the Chief Bailiff (Operations) was a Mr. Wong Yin Tao, Mr. Wong has retired from the post of Chief Bailiff (Operations) before the hearing of the trial in this case commenced. At the time the trial commenced, the post of Chief Bailiff (Operations) was filled by a Mr. Si Kay Sang. It should also be noted that the evidence shows that at all times there were two Chief bailiffs, one of Operations and another of Administrations.

9. Mid-way through the trial, counsel for the Plaintiff sought and was granted leave by me to re-amend the Statement of Claim to change the Defendant to "Chief Bailiff of the High Court" instead of the original "Chief Bailiff of the Supreme Court". This arose from the constitutional changes affecting Hong Kong on 1st July 1997. This is a change of nomenclature rather than of substance.

10. In naming the Defendant in the way that it was done, namely, Chief Bailiff of the High Court, Mr. Chiu, counsel for the Plaintiff, sought to rely heavily on Section 54 of the General Clauses and Interpretation Ordinance, Cap.1 which provides as follows:-

"In any Ordinance, instrument, warrant or process of any kind, any reference to a public officer, or to a person holding a public office by a term designating his office, shall include a reference to any person for the time being lawfully discharging the functions of that office, or any part of such functions, and any person appointed to act in or perform the duties of such office, or any such duties, for the time being."

11. Mr. Chiu argues that whoever else the term 'Chief Bailiff of the High Court' may encompass, it must include Mr. Wong Yin Tao who was the Chief Bailiff (Operations) both at the time of the Writ of Summons was issued as well as at the material time when the Plaintiff's goods were seized when the Writ of Possession and Fieri Facias combined was executed on 19th December 1995. That, says Mr. Chiu, is sufficient for the Plaintiff's claim.

12. There can be no doubt in my mind that in naming the Defendant as 'Chief Bailiff of the High Court', in seeking reliance on Section 54 of the Interpretation and General Clauses Ordinance Cap.1, and in the light of the argument advanced by Mr. Chiu as to the identity of the Defendant sued in this case, the Plaintiff was suing the office of the Chief Bailiff of the High Court rather than any particular individual holding that office at any particular time.

The Position in England

13. In England the office of sheriff or high sheriff (as it is called in Greater London) is rooted historically in great antiquity and is today regulated by the Sheriffs Act 1887 under which a sheriff is appointed for every county for a term not exceeding one year (Section 3). A person may not be appointed sheriff of a county unless he has sufficient land within his county to answer the Queen and her people (Section 4). A sheriff so appointed for a county and who has held office for a full term of one year shall not be appointed for that county again within three years next ensuing (Section 5). Within one month's notification of his appointment in the London Gazette, a sheriff is required to appoint by writing under his hand a fit person to be his under-sheriff (Section 23). Where a sheriff dies before the expiration of his year of office or before his successor has entered on the office, his under-sheriff nevertheless continues in office, and it is his duty to exercise the office of sheriff in the name of the deceased sheriff until another sheriff for the county has been appointed and made the declaration of office (Section 25).

14. Bailiffs or sheriff's officers are appointed and employed by sheriffs or high sheriffs and are usually remunerated with a salary from the sheriff who appointed them. The duties of bailiffs so appointed include the execution of writs and processes. Before a bailiff or sheriff's officer takes upon himself the execution of any writ issued by a court of record he must make a declaration as to the manner in which he will exercise his office (Section 26).

15. A sheriff is liable for any fraud or wrongful act or omission on the part of his under-sheriff, bailiff or officer in the course of their employment, even though there may be no proof of any recognition by the sheriff of the act or default complained of. The sheriff's liability extends not merely to acts done by his bailiff or officer in pursuance of his warrant but also to anything done by him by colour of the warrant, the reason for the extended liability being that the sheriff is supposed to be executing his duty in person. The impossibility of so doing authorises him to delegate his duty, but he puts the delegate in his place and is therefore liable not only for acts done under the express authority of the warrant, but also for acts done in pursuance of the warrant generally. Thus if a bailiff to whom a warrant is delivered to execute a Writ of Fieri Facias improperly authorises an assistant to execute it in his absence, the sheriff is liable for the acts and misconduct of the assistant, and for money received by him in reference to the execution, even though it may not have been paid over. The sheriff is liable even though the act done may have been contrary to the express terms of the writ, or in disobedience to his express instructions, provided only that it is done in the purported exercise of the officer's authority. However, a sheriff is not liable for the acts of a bailiff or officer which are quite outside the scope of his duties and which are not done for the purpose of executing the authority entrusted to him, or under colours of such authority, or for money received by the bailiff or officer otherwise than in the course of exercising or purporting to exercise his authority.

16. Because of this liability of the sheriff for the wrongful acts of his bailiff or officer done in the execution or purported execution of his duties, a bailiff or sheriff's officer may be required to give the sheriff a bond, with sureties, for the due execution of the office and the accounting to the sheriff for the fees received, and indemnifying him against liability for any breach of duty on the officer's part. Officers who have given such a bond are sometimes called "bound bailiffs". Alternatively, the sheriff's officer will arrange for appropriate insurance cover.

17. Section 20 of the Sheriffs Act 1887 provides for the fees and poundage that a sheriff is entitled to. Under sub-section (1), in respect of all sums due to the Crown and collected by him under process of any court, he is entitled to an allowance upon his accounts of seven pence in the pound for the first one hundred pounds and five pence in the pound for every pound thereafter. Moreover, a high sheriff or his officer concerned in the execution of process directed to the sheriff may only demand, take and receive such fees and poundage as are prescribed under Section 20, and may not take, directly or indirectly, any reward for doing, or abstaining from doing, his duty or in respect of the mode in which he executes his office or duty, other than such fees or poundage.

18. Subject to one exception, the amount of the fees, poundage and expenses of the execution may be levied over and above the sum recovered, even though the judgment creditor may not be entitled to the costs of the action in which the judgment was obtained (see Armitage v Jessop (1866) LR 2 CP 12, where it was held that costs of the execution are not costs of the action). The exception to the right so to levy fees, poundage and expenses is where the judgment or order to be executed is for less than six hundred pounds and does not entitle the plaintiff to costs against the person against whom the writ of Fieri Facias to enforce the judgment or order is issued (see RSC Ord. 47 rule 4). In such a case the writ may not authorise the sheriff to whom it is directed to levy any fees, poundage or other costs of execution.

19. If a sheriff is unable, without any default on his part, to levy his fees against the execution debtor, he has a right of action for them against the execution creditor by whom or on whose behalf he was requested to execute the writ of execution.

The Position in Hong Kong

20. In Hong Kong, there are no sheriffs or high sheriffs nor anything equivalent to such an office as it exists in England. However, section 38A of the Supreme Court Ordinance Cap. 4 provides that there shall be a bailiff of the Supreme Court together with such assistant bailiffs as may be appointed. Section 38A further provides that the bailiff and assistant bailiffs are to effect orders for committal and for service and execution of the process of the Court.

21. There was evidence before me which I accepted, unchallenged by the Plaintiff, from Stephen Tsui Tung Sing that he is employed by the Hong Kong Government as a bailiff and his warrant card, produced in evidence, clearly bears that out. Bailiff and/or assistant bailiffs are, therefore, civil servants employed and paid a salary by the Hong Kong Government. Effectively, they are the executive arm of the courts carrying out its execution process. Writs of execution are issued in the name of the courts and directed to the bailiff through the Registrar.

Liability of Bailiffs in Hong Kong

22. Before dealing with the liability of bailiffs in Hong Kong, I should mention the immunity given to the Crown and the protection granted to the Registrar arising from execution of judicial process. In both these cases they are provided for by statute.

23. Insofar as the Crown is concerned, Section 4 (5) of the Crown Proceedings Ordinance gives the Crown immunity for any act or omission done by any person while discharging or purporting to discharge any responsibilities which he has in connection with the execution of judicial process.

24. The Registrar of the Supreme Court is given protection by Section 39 of the Supreme Court Ordinance in respect of any act or omission done by any bailiff without directions from the Registrar or for any direction given to any bailiff with regard to execution of process if such directions are in accordance with an order from the High Court as long as no material fact has been willfully misrepresented or suppressed by the Registrar.

25. There can be little doubt that the protection given to the Registrar by Section 39 came about because the Registrar is the link between the Judiciary and the bailiff, and it is through the Registrar that writs of execution, issued in the name of the court, are directed to the bailiff.

26. Dealing now with the liability of bailiffs in Hong Kong, Section 21D (2) of the Supreme Court Ordinance, Cap. 4 contemplates the situation where goods have been seized by a bailiff from the possession of an execution debtor and sold by him without any claim having been made in respect of those goods before such sale. The wording of the section is as follows:-

"Where any goods in the possession of an execution debtor at the time of seizure by the bailiff charged with the enforcement of a writ, warrant or other process of execution, are sold by such bailiff without any claim having been made to them,.... no person shall be entitled to recover against the bailiff, or anyone lawfully acting under his authority.... for any sale of such goods or for paying over the proceeds thereof prior to the receipt of a claim to the said goods, unless it is proved that the person from whom recovery is sought had notice or might by making reasonable inquiry have ascertained that the goods were not the property of the execution debtor." (my italics)

27. In the case where there is a claim to goods seized by a bailiff in the course of execution, Order 17 of the Rules of the Supreme Court makes provision for a bailiff to interplead. In those circumstances, rule 2 (1) of that Order provides :-

"Any person making a claim to or in respect of any money, goods or chattels taken or intended to be taken in execution under process of the Court, or to the proceeds or value of any such goods or chattels, must give notice of his claim to the bailiff charged with the execution of the process and must include in his notice a statement of his address, and that address shall be his address for service." (my italics)

and rule 2 (4) provides :-

"A bailiff who receives a notice from an execution creditor under paragraph (2) admitting a claim made under this rule shall withdraw from possession of the money, goods or chattels claimed and may apply to the Court for relief under this Order of the following kind, that is to say, an order restraining the bringing of an action against him for or in respect of his having taken possession of that money or those goods or chattels." (my italics)

28. From the wording, both in respect of Section 21D (2) and Order 17 r. 2 (1) and (4), it can be seen that in an appropriate case a bailiff may be liable either for wrongful seizure or wrongful sale or even wrongful paying over of the proceeds when carrying out execution of writs or judicial process. However, it is also clear from the wording in italics that liability attaches personally to the bailiff or the person who has committed the wrongful act be it of seizure or sale or payment over of the proceeds.

Comparison with England

29. Although it must be right that bailiffs in Hong Kong are modeled along the lines of their counterparts in England. Yet the similarities of the two do not extend far beyond the name of 'bailiff' and the fact that they carry out similar duties, namely, the execution of the court's process. On the other hand there are vast differences in relation to appointments, tenure of office, employment status and method of remuneration as well as the aspect of bailiffs in England having to give a bond or surety or insurance cover to his sheriff.

30. A bailiff in England is appointed by a sheriff or high sheriff. He holds office only as long as the sheriff continues in office. He is paid or remunerated by the sheriff by a salary. He may have to indemnify the sheriff for liability for wrongful acts. In turn, the sheriff or high sheriff is almost an institution in itself. He is not paid by the Crown but derives his income from the fees and poundage which he is entitled to levy as provided for by statute. The sheriff becomes liable for the acts of a bailiff who is his servant employed by him.

31. As a result of all the historical reasons, the rationale for a sheriff's liability for the wrongful acts of his bailiff done in the execution of his duties can readily be seen in the words of Ashhurst J. in Woodgate v Knatchbull (1787) 2 T.R. 148 at 154 where he said:-

"There is one general principle, which appears to be clear, that the sheriff is personally liable for every act of his bailiff. This is laid down in Latch where it is said that the sheriff shall be answerable in damages for the act of his officers, though he be not liable to be indicted for their misconduct. It is also said in Dougl. that 'for all civil purposes the act of the bailiff is the act of the sheriff'. This holds indeed for every act of his servant done by him in the course of his employment. And there seems to be greater reason why that should hold in the case of a sheriff, than in the case of servants in general, as the former is supposed to take ample security for the good behaviour of his officers, which is not done in other instances."

32. In Hong Kong there is simply no parallel that can be drawn between the relationship of Chief Bailiff with that of a bailiff under him when it is compared to the situation which pertains in England between a sheriff and his bailiff. The rationale for making a sheriff in England personally liable for the acts of his bailiff simply has no application in Hong Kong to the Chief Bailiff. Both the Chief Bailiff and a bailiff or even assistant bailiff are civil servants employed by the Hong Kong Government and before 1st July 1997, they were all Crown servants.

33. It is clear law that when a Crown servant commits a tort, he is himself personally liable. If the tort is committed by him in the course of his employment as a Crown servant, in addition to his own personal liability, the Crown as his employer becomes liable as well, vicariously. However, a minister, department head or other superior servant is not liable for the tort of a subordinate Crown servant, for the superior is a fellow servant and not the master - the master being the Crown. It would be otherwise if the superior servant had actually ordered the commission of the tort, but in that case the superior would be liable directly for his own wrong in ordering the tort.

34. In Bainbridge v. Postmaster-General [1906] 1 K.B. 178 (C.A.) the plaintiff's daughter was injured by the alleged negligence of an employee of the Post Office in relaying the footway after excavations to repair a telegraph cable. The Court of Appeal held that the Postmaster General is not liable in his official capacity, as head of the telegraph department of the Post Office, for wrongful acts done by his subordinates in carrying on the business of the department. In his judgment, Collins M.R. said at page 187, citing Turton J. in the case of Lane v Cotton (1701) 1 Ld. Raym. 646; 12 Mod. 472 :-

"Then Turton J. gave judgment to the same effect, and the result is that, on the ground that there is no relation of master and servant, or principal and agent, between a subordinate officer of the Crown and his superior officer, it was held that the superior officer was not liable for the particular act in that case of his subordinate officer; and the same principle applies whether the claim be in tort or in contract. Being all equally servants of the Crown, they are not servants of each other."

35. In the case of Raleigh v Goschen [1898] 1 Ch. 73 the plaintiff commenced an action against the defendant and five other persons who were described as the Lords Commissioners of the Admiralty with the object of establishing as against them that they were not entitled to enter upon, or acquire by way of compulsory purchase, certain land, the property of the plaintiffs, for the purpose of erecting thereon a training college for naval cadets, and claiming damages for alleged trespass and an injunction to restrain further trespass. It was held that though the plaintiffs could sue any of the defendants individually for trespass committed or threatened by them, they could not sue them as an official body, and that as the action was a claim against the defendants in their official capacity, it was misconceived and would not lie. In his judgment at page 79, Romer J. said:-

"Again, the plaintiffs could not sue the defendants merely on the footing that, as representing a branch of the executive Government, the defendants were responsible for a trespass committed or threatened by some officials or persons in the employment or under the control of the Government, or of the Admiralty as a Department of the Government, even though those officials or persons purported to act on behalf of or as representing the Crown, or of the Government, or the Admiralty. And further, even if some of the defendants, acting on behalf of the Crown, or of the Government, or of the Admiralty, had committed or threatened a trespass, that would not justify the plaintiffs in suing the other defendants if they had taken no part in the transaction. On the other hand, the plaintiffs could sue any person actually committing or threatening the trespass, even though those persons only acted on behalf or by the authority of the Government, or of the defendants as representing the Admiralty. Moreover, I do not think the rights of the plaintiff would, of necessity, be confined to an action against those actually committing the trespass, who might be some very humble persons. If a trespass was committed by those persons by the order or direction of some higher officials, so as in substance to have been the act of those higher officials, then the latter could be sued."

36. It should be noted immediately that both Bainbridge v The Postmaster General and Raleigh v Goschen were decided before the Crown Proceedings Act 1947 was passed in England. However that does not detract from these two decisions the principle that a superior Crown servant is not liable, whether vicariously or as a principal, for the tort of a subordinate and the reasons upon which that principle is based. The Crown Proceedings Act when it was passed in 1947 merely made the Crown liable vicariously for the acts of its servants both in contract and in tort and permitted it to be sued when previously it could not be sued.

37. For those same reasons, the proper defendant in this case could only have been the bailiff executing the Writ of Possession and Fieri Facias combined on 19th December 1995 at the shop of Santini Fashions, namely, Stephen Tsui Tung Sing. The Plaintiff's claim, brought against the Chief Bailiff, whether of the Supreme Court or of the High Court, is therefore misconceived.

38. This conclusion that I have arrived at is not without precedent in Hong Kong for in the case of Fung Man Ying Doris v. Chief Bailiff of the Supreme Court of Hong Kong [1980] HKC 454 the plaintiff in that case, who was trading under a trade name identical to that of a judgment debtor, had her goods wrongly seized in execution. She brought a claim against the Chief Bailiff of the Supreme Court of Hong Kong and named as a second defendant the judgment creditor. In his judgment, Rhind J. said at page 457:-

"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."

39. The last sentence in this passage from Rhind J.'s judgment may have been because his attention was not drawn to Section 4 (5) of the Crown Proceedings Ordinance which I have already made reference to giving immunity to the Crown in respect of acts or omission connected to execution of judicial process. However it does not detract from the validity of the rest of the passage cited.

40. Having arrived at this conclusion, that would be sufficient to dispose of the case and to dismiss the Plaintiff's claim. However, lest I should be wrong in the view that I have taken in this matter as expressed above, I shall proceed to deal with the merits of the case, having heard all the evidence in the matter.

Findings of Fact

41. Much of the facts of the case was not in dispute. There were basically two areas in which the parties were disputing the facts. These two areas relates to firstly, in relation to one of the items in the bailiff's inventory concerning "65 older jackets" - whether these were the goods of the Plaintiff; and secondly to what actually happened when the bailiff attended the shop on 19th December 1995 to execute the Writ of Fieri Facias and Possession combined and to seize the goods.

42. Having heard all the evidence in this case, including the evidence of the Plaintiff, James Fu and his brother George Fu, I find that both the Plaintiff and his brother are truthful witnesses. I accept their evidence given in relation to the background of this case which I have already set out above. I also accept their evidence that Santini Fashions ran only a tailoring business at the shop and that all the leather jackets, including the 65 older jackets, inside the shop of Santini Fashions were the Plaintiff's goods, having been consigned to Santini Fashions for sale. I also accept their evidence that no other person had consigned leather goods to Santini Fashions for sale at the same period of time as the Plaintiff. I make this finding despite the fact that no record of these 65 older jackets could be found in the 'blue book' (Exh. P2). I accept the explanation given by George Fu that the contents in the blue book was not an official record, but kept by him for his own purposes, that the 65 older jackets were delivered to the shop the evening before 19th December 1995, and that he had intended to make the entries into the blue book on the following day. However, that intention of his was overtaken by the attendance of the bailiff on the 19th December 1995 and the subsequent seizure of all the goods in the shop. I further accept the Plaintiff's evidence that there was no computer records relating to these 65 older jackets because the production slips in respect of them had gone missing.

43. Insofar as the occurrences which took place when the bailiff attended the shop of Santini Fashions are concerned, I accept the Plaintiff's evidence that he had told the bailiff that he has documents to prove his title to the goods claimed by him. However, the Plaintiff has admitted in cross-examination that he did not actually show to the bailiff any documentary proof of title to the goods claimed by him when the bailiff was in the shop. His explanation for that was that nobody paid attention to the claim that he was making, therefore he had no chance to show anyone any documentary proof of title. It was also clear from the Plaintiff's evidence that at the time the only documents which were available in the shop were the blue book and the Consignment Note dated 19th September 1995. Both these documents were produced in evidence and it can be seen that neither was a complete record which would have clearly shown the Plaintiff's title to all the goods claimed by him which were in the shop of Santini Fashions at the time of the bailiff's attendance on 19th December 1995. It is therefore difficult to see what documentary evidence or proof the Plaintiff could have furnished to the bailiff on 19th December 1995 which would have clearly or completely supported his claim.

44. In an appropriate case, I will not rule out the possibility that a claimant, at the time of execution, may be able to show such clear evidence to a bailiff carrying out execution of process to support his claim that the bailiff is bound to accept that evidence and to desist from executing the claimed goods but it will have to be clear and cogent evidence of title. That is not the case here. Where, as in this case, there is no such clear and cogent evidence shown, it is not the bailiff's duty to carry out investigations of or adjudicate conflicting claims. That is for the courts to do.

45. Indeed, when the Plaintiff did lodge his claim with the court the following day i.e. 20th December 1995, the only document lodged by him to support his claim was the Consignment Note of 19th September 1995 - a document which the Plaintiff admits to be incomplete insofar as showing title to all the goods claimed by him. It was incomplete because that Consignment Note only contained a record of the goods consigned to the shop of Santini Fashions on 19th September 1995. There were other goods consigned by the Plaintiff to the shop of Santini Fashions subsequent to 19th September 1995 but in respect of these other consignments no other Consignment Note exists. On 20th December 1995 the Plaintiff prepared from his computer records an inventory of all the goods consigned to the shop of Santini Fashions. Even then, as well as that inventory could have been prepared by the Plaintiff from his computer records, it was admitted by the Plaintiff in evidence that that inventory was still not a complete record of all the consigned goods. From all this evidence there can be little doubt but that on the 19th December 1995 the Plaintiff did not have a set of document or documents which would have clearly shown his title to all the goods he claimed.

46. I also accept that while in the shop the executing bailiff had asked the husband of the judgment debtor, Mr. Khiatani, (who was managing Santini Fashions) whether there was anything in the shop not belonging to the judgment debtor but had received no reply rom Mr. Khiatani. Nothing therefore was said by Mr. Khiatani which could support the Plaintiff's claim.

47. I also find that at one stage feelings ran high during the confrontation at the shop and that the Plaintiff and his brother had tried to remove what at the time they alleged to be the Plaintiff's goods from the shop but was prevented from doing so when the bailiff informed them that he would call the police if they continued to interfere with his execution of the Writ of Fieri Facias and Possession combined. I also find, and this is not disputed by the Plaintiff, that whilst in the shop, the bailiff informed the Plaintiff that if he claimed the goods to belong to him, he should lodge his claim as soon as possible with the Court and to support it with documentary proof. No doubt it was as a result of these words that the Plaintiff did lodge his claim for those goods the following day, i.e. 20th December 1995.

48. Events which took place subsequent to the 19th December 1995 which are material to this case are not disputed by the parties and are as follows.

49. On 20th December 1995 the Plaintiff lodged his claim with the bailiff's office in respect of the disputed goods seized by the bailiff. The bailiff thereupon took out interpleader proceedings pursuant to Order 17 of the Rules of Supreme Court on 2nd January 1996.

50. On 18th January 1996, the day before the first hearing of the Interpleader summons, the judgment creditor, by letter from its solicitors faxed to the Plaintiff's solicitors shortly after 3 p.m., offered to let the Plaintiff take away the goods claimed by the Plaintiff from the shop (in which they had been kept all this while) on the condition that the Plaintiff takes away all the claimed goods before 5 p.m. of the 19th January 1996, makes no further claim against the judgment creditors and there be no order as to costs. This offer was rejected by the Plaintiff on the basis that he had incurred legal costs and damages and should be entitled to recover same from the judgment creditor.

51. On 31st January 1996 the Plaintiff, at a further hearing of the Interpleader Summons before the Master, consented with the judgment creditor to an order for sale of the seized goods claimed by the Plaintiff. At this hearing, the Plaintiff was offered the chance to sell off the goods himself but declined this offer. As a result the consent order agreed to between the Plaintiff and the judgment creditor was for the disputed goods to be sold by the bailiff by auction. Pursuant thereto Messrs. Lammert Bros. Ltd., Auctioneers were appointed to be the auctioneers and the goods were sold off for HK$101,578.00 (net of costs) on 3rd February 1996.

52. On 22nd March 1996, at the third hearing of the Interpleader Summons, the judgment creditor consented to the Plaintiff's claim for the disputed goods and the proceeds of sale of HK$101,578.00 was paid over to the Plaintiff by the bailiff's office.

Basis for Plaintiff's claim

53. In bringing this claim, the Plaintiff says that he has suffered a substantial loss of HK$324,098.00 being the difference between what the claimed goods represented to him less the proceeds of sale paid over to the Plaintiff by the bailiff after the judgment creditor consented to the Plaintiff's claim. The Plaintiff has also given evidence that because of this loss suffered by him, he was unable to tie over his finances and it disrupted his business so severely that he was forced to close down his leather-ware business and to dismiss his workforce of four workers by 15th May 1996. In all the circumstances, the Plaintiff says he has suffered a real grievance.

54. The Plaintiff accepts that his case is not based on there being a negligent sale by auction. It is argued for the Plaintiff that his case is based on the loss suffered by the Plaintiff as a result of the conversion by the bailiff at the time of seizure of the goods on 19th December 1995.

Common Law Protection

55. A bailiff very often finds himself in the position, when levying execution, that the goods are claimed by a third party. In such a situation, if the bailiff withdraws and it turns out that the goods were indeed the execution debtor's, he may be liable for breach of his duties in the execution. On the other hand, if he seizes the goods and it turns out to be in fact belonging to the claimant, he may be liable to an action by the claimant. The common law therefore has provided for a unique defence to bailiffs or other executing officers in such situations that if the bailiff or executing officer has only made an honest mistake in executing the process of the court and in all the circumstances no "real grievance" or "substantial grievance" has been caused to a claimant beyond the mere entry and seizure of the goods, then the bailiff or executing officer should be protected from an action for damages. It would be otherwise if the bailiff or executing officer were guilty of insolent or oppressive conduct in excess of his duty and not justified by the writ of execution (see Smith v. Critchfield [1885] QB 873 and also Neumann v. Bakeaway Ltd. [1983] 1 WLR 1016).

56. Applied to the present case, from the facts as I have found them, there was undoubtedly an honest mistake on the part of the executing bailiff in seizing the Plaintiff's goods. However, there was no insolent or oppressive conduct on the part of the executing bailiff, nor has any been suggested by the Plaintiff.

57. The question upon which this whole case hinges, and which I have to decide upon the facts as I have found them, is whether the Plaintiff has suffered a real or substantial grievance as a result of the honest mistake by the bailiff in all the circumstances of the case. The substantial grievance which the Plaintiff says he has suffered is the great difference in price between what the goods were worth to him and the amount they were sold for at the auction. This difference the Plaintiff has calculated to be HK$324,098.00.

58. In such cases, it is never easy to do justice between, on the one hand, an innocent Plaintiff whose only wrong was that he had consigned his goods to the shop of a person who became a judgment debtor to be displayed for retail sale to the public, and on the other hand, the bailiff who was executing a judicial process when he came to the shop to levy execution under a Writ of Possession and Fieri Facias combined.

59. The one matter which tilts the balance against the Plaintiff in this case on the facts that I have found is the Plaintiff's failure to accept the offer from the judgment creditor on 18th January 1996 to take back all the goods claimed by the Plaintiff. In arriving at this conclusion I take into account also the Plaintiff's evidence in cross-examination that had the goods been released to him in mid-January 1996, he was optimistic that he could have retailed off most if not all of the seized goods between then and Chinese New Year at the usual retail prices for such goods. Moreover, I also take account the Plaintiff's refusal to sell off the goods himself when offered the chance to do so, but instead opted to enter into a Consent Order with the judgment creditor on 31st January 1996 for the bailiff to sell off the goods by auction.

60. Taking these matters into account, I have reached the conclusion that the loss suffered by the Plaintiff was something which he had brought upon himself but which he could have avoided. In particular, if the Plaintiff had taken back the goods when he was offered them on 18th January 1996, he would not have suffered the loss or the subtantial grievance he now complains of. He may have been out of pocket for some legal costs incurred in respect of the interpleader proceedings, but that would only have been a small fraction of what he now claims.

61. In all the circumstances of this case, I find that the bailiff ought to be given the common law protection. On this footing, I would also dismiss the Plaintiff's claim. I shall make the usual cost order nisi that costs should follow the event. The Plaintiff's claim is therefore dismissed with costs to the Defendant.

Representation:

Mr. Simon Chiu inst. by M/s. Chris H. M. Yuen & Co. for Plaintiff

Mr. Johnny Mok inst. by Dept. of Justice for Defendant.

Remarks:
On appeal by the Plaintiff to the Court of Appeal: appeal dismissed. Please refer to judgment CACV000141/1998.