Mo Wai Ching and Another v. Ho Wai Woon and Others

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

APPEAL No. 11 of 1948

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on Appeal from Original Jurisdiction Action No. 75 of 1946.

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Coram: Mr. Justice E.H. Williams and Mr. Justics J. Reynolds.

Date of Judgment: 10 July 1948

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JUDGMENT

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1. This is an appeal against a decision of Gould J. in Chambers giving leave to the plaintiffs (respondents) to amend their statement of Claim: the Court is also asked for an order that action No. 75 do stand dismissed. It is necessary to make a reference to the course of events before dealing with arguments submitted.

2. On the 27th September, 1946, the plaintiffs (respondents) issued a writ in O.J. Action 75 of 1946 which writ was served on the 5th October ,1946. In it the plaintiffs (respondents) purport to be 12 in number and defendant (appellant) is sued as executrix of two deceased persons, Poon Hau Chuen and Poon Nim Kui. Plaintiffs asked for a declaration that Poon Nim Kui holds certain land with houses thereon as trustees for the partners of Wai Yuen Tong (named as 12th plaintiff) - clearly 'helds' should have read 'held' in view of the death of Poon Nim Kui: plaintiffs further asked that defendant be ordered to execute an assignment of the property to Ho Wai Woon (named as 1st plaintiff) as trustee for the Wai Yuen Tong or alternately a vesting order to the same effect.

3. From the general indorsement on the writ, it appears but only by inference, that plaintiffs Nos. 1 - 11 claimed to be 'partners' in the 12th plaintiff 'Tong'.

4. Of the 18 plaintiffs, only plaintiffs No. 1, 6, 7, 9 and 10 are apparently the names of persons, though 1st plaintiff has as alias a Tong name - the remaining plaintiffs are tong names. It is not clear on what authority a tong is entitled to be named as a plaintiff but in the argument before the Court it was submitted that a tong has always been treated in the Courts here as analogous to an ordinary firm - the analogy may, however, be pressed too far and may easily lead to the type of difficulty which has arisen in this case.

5. In the original statement of Claim filed on the 26th November, 1946, it was stated that all 12 plaintiffs were merchants residing at various addresses within and without the Colony: that they had entered into partnership with one other, since deceased, in the business of the Wai Yuen Tong firm in 1896, that 1st plaintiff was and still is managing partner of the partnership and that the property in dispute was purchased by the partnership and registered in the names of individuals who therefore held the land as trustees for the partnership.

6. On the 8th and 9th January 1947, solicitors for the appellant wrote to the solicitors who were then acting for the respondents requiring them in pursuance of section 484(1) of the code of Civil Procedure to give the names and addresses of all persons.

7. Constituting the firm of the 2nd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th plaintiffs. As the names of the 6th, 7th, 9th and 10th plaintiffs are those of individuals, it is not clear why they are described as firm names. Solicitors for the respondents replied that appellant's solicitors had misconstrued section 484(1) of the code as the present action was brought in the names of individual partners of the Wai Yuen Tong (12th plaintiff) with the exception of the defendant. It is difficult to understand why the solicitor so replied. It may be true that section 484(1) is hardly applicable to the case but it is not quite correct to describe plaintiffs 1 - 11 as partners in the firm: a partner is one individual: a tong may represent many persons. Tong names are usually divided into 2 classes, a hereditary tong name representing a man and his descendants and a personal tong name (i.e. personal to the individual). It was, however, obvious what solicitor for the appellant wanted - it was the names of the present heads of the families, as descendants of the various 'tong' solicitors and the plaintiffs' addresses. This information should have been given by for the plaintiffs (they are not the present solicitors) even though a section of the Code which might not have been applicable was quoted. Had they done so, the action would probably have gone ahead without lengthy delay. In passing, the Court observes that though tong transactions are quite common in the Colony, there is practically no reference to them in our legislation, apart from the New Territories Regulation Ordinance, 1910 which provides under sections 27 and 28 for the registration of the manager of a tong - normally he would be the present head of the family. In reply to this letter, solicitors for the appellant, pointed out that a tong name could not be the true name of any particular partner.

8. In view of the inability to obtain this essential information, solicitors for the appellant obtained an order from the Chief Justice on 8th February that 2nd, 3rd, 4th, 5th, 8th, 11th and 12th plaintiffs do furnish the appellant with a statement in writing verified by affidavit giving the information previously sought by letters between the solicitor and in the meantime further proceedings were stayed. It is to be observed that the order did not direct that each plaintiff should furnish a statement and an affidavit.

9. Nothing having been done by solicitors for the respondents, solicitor for the appellant then applied under sections 276(1)b & 115 of the Code on 26th August, 1947, for an order that the action be dismissed unless the particulars mentioned in the order of the Chief Justice were given. On the 29th August, Gould J. made an order that the particulars previously asked for should be provided within one month and in default the action was to stand dismissed.

10. Soon after plaintiffs changed their solicitors and on 26th September, an affidavit was filed by 1st plaintiff setting out at considerable length the history of the Wai Yuen Tong (12th plaintiff) from its foundation in 1897. The original partners were 5 Tong. The amounts each contributed are given. Of these Tong, 4 were fairly simply described (if one can use that expression in connection with any tong transaction) for they give a tong name with an alias and the sum contributed. The 5th, however, consisted of 3 tong and 5 individuals, contributing stated amounts.

11. Changes had occurred since the foundation in 1897 owing to deaths etc. and the names of the descendants of the original partners were supplied. The final result being that individual names were given as being the 2nd, 3rd, 4th, 5th and 11th plaintiffs. The persons constituting the 12th Tong or plaintiff firm were then given as being the 1st - 11th plaintiffs (respondents) (with slight variation in name from the names given as original plaintiffs) and the defendant - (appellant).

12. In view of the detailed history set out, it appeared to respondents that they should amend their Statement of Claim (they had previously obtained leave so to do on the 8th February, 1947). On the 9th October, solicitors for respondents forwarded an amended Statement of Claim to solicitors for appellant - a reminder was sent on the 8th January and a further reminder on the 5th February. On the 12th February, solicitors for the appellant replied that the respondents had not complied with the order of Gould J. and in consequence the action stood dismissed. Solicitors for respondents replied on 19th February that the order had been complied with and suggested that the matter be brought before Gould J. in Chambers to obtain his directions as to whether there had been compliance with the order. Solicitors for the appellant repeated the view that the affidavit of 1st plaintiff was not a compliance with the order of Gould J. - a view they stated was confirmed by counsel. Further letters followed and on 28th February, the matter came before Gould J. who expressed his opinion that there had been sufficient compliance with the original orders.

13. At the hearing before us, counsel for the appellant contended that the affidavit by 1st plaintiff alone was insufficient compliance with the orders, the orders having been directed to other plaintiffs: what 1st plaintiff said regarding the constitution of the remaining 'tong' was hearsay. He admitted that if there was substantial compliance with the orders then the appeal must be dismissed.

14. Counsel for the respondent submitted that there had been substantial compliance with the order of Gould J. which was the only one which the Court should consider and that was an order that the particulars of 2nd, 3rd, 4th, 5th, 8th, 11th and 12th plaintiffs should be furnished: that it was therefore sufficient compliance if these were supplied by the 1st plaintiff.

15. He further submitted on the authority of Abalion v. Innous (1936) 2 A.E.R. 834 that an interlocutory order dismissing an action must be absolutely precise in its terms so that the parties can know definitely whether it has operated to terminate the proceedings: that the order of Gould J. following on the order of the Chief Justice was not precise in its terms.

16. In the opinion of the Court, the order of Gould J. was one and the same order as that given by the Chief Justice. The real point is whether there was compliance with the original order. Had this been the ordinary case where there were a number of named plaintiffs either as individuals or as companies and there was an order as in the terms here, then this Court would not consider there had been such compliance but the Court is of the opinion that consideration should be given to the peculiar position of a 'tong' which, however, looked at, is not on all fours with an individual plaintiff, or a partnership in English law: particularly is this so, as is claimed in this case, when one tong, by contribution, acquires an interest in another tong. A 'tong' name in a partnership may represent only one man or it may represent the whole branch of a family. If it represents a whole family, then the order of the Chief Justice when strictly construed might require an affidavit from every member of the family. This Court, however, considers that when construing the orders, allowance should be made in regard to this peculiar Chinese form of carrying on a business or owning property. It is true that the 1st plaintiff does not especially state that he is making the affidavit for an on behalf of the other plaintiffs but in view of the fact that the same solicitor represented all plaintiffs, and that plaintiffs 1 - 11 claimed to be partners of the 12th plaintiff firm, the Court is not disposed to attach importance to the omission. It considers that the affidavit of the 1st plaintiff - which is very full and clear - is a sufficient compliance with the order.

17. The appeal is therefore dismissed - with costs to the respondents.