Wong on Wang v. Lee Hok Keung and Another

DCCJ4251/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4251 OF 2005

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BETWEEN

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Coram :  H.H. Judge Chow sitting in Chambers

Dates of Hearing :  11^th & 14^th November and 17^th December, 2005

Date of Handing Down Decision :  11^th January, 2006

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DECISION

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1.The Plaintiff was a partner of a partnership agreement terms agreed partly in writing and partly verbal entered into between the Defendants, a Mr. Law and the Plaintiff on 8 July 2003.  The 1^st Defendant is the managing director of the 2^nd Defendant. 

2.According to the Plaintiff, pursuant to the terms of the Agreement, the aforesaid partnership (“the Partnership”) operated various training courses in the name the 2^nd Defendant at the following addresses:-

(1)  Yuen Long Trade Centre 2504

(2)  Yuen Long Trade Centre 2502

(3)  Yuen Long Trade Centre 2204

(4)  Yuen Long Trade Centre 2503

(5)  Yuen Long Flourist Food Manufactory centre 9C

(6)  Yuen Long Flourist Food Manufactory centre 9E

(7)  Tuen Mun Parklane Square 1519

3.By the present summons the Plaintiff applies for interlocutory injunction to restrain the Defendants from (1) causing defamatory words to be uttered to the prejudice of the Partnership; (2) taking any step to interfere with the continuance of the courses conducted at the premises listed out at paragraph 2; and (3) to order the Defendants to take immediate steps to restore to the previous positions on the premises at 25/F, Yuen Long Trade Centre, New Territories, the telephone lines Nos. 23011140, 23011153 and 23011137 transferred away.

4.For relief (1) the Plaintiff alleged that on or about 12 September 2005 on the premises of 13/F Yuen Long Trade Centre, the staff of D2 (whose administration and management D1 was responsible) uttered the following words to 2 enrolling students as follows:-

“The original Chinese version was:

1.  本大廈元朗貿易中心二十五樓香港安全訓練中心舉辦的保安員培訓課程是非法及無牌的。

2.  由香港安全訓練中心所發的保安証是無效的。”

5.It is the Plaintiff’s case that alleged defamatory words were intended to lower the reputation of the business of the Partnership and to take away the business of the Partnership.  Apparently the alleged defamatory words were not intended to affect the Plaintiff personally, because these words do not refer to him.

6.For relief (2), the courses were run for the benefit of the Partnership, and not for the Plaintiff personally.  So it is for the Partnership, and not the Plaintiff to take injunction action against the Defendants.

7.For relief (3), the telephone lines were used for the above-said courses run by the Partnership, and not to be used by the Plaintiff personally.  If there is anything wrong for the Defendants to have moved away the telephone lines, it is for the Partnership, and not for the Plaintiff as an individual to take action against the Defendants.

8.The crux of the matter is whether the Partnership was in existence when this action was instituted on 31^st August, 2005.  On 25^th August, 2005, the 2^nd Defendant wrote to the Plaintiff and Mr. Law to terminate the Partnership, the letter was signed by the 1^st Defendant.  The letter states:-

“Attention: Mr. Simon Wong & Mr. Law

Dear Sir,

As we have communicated a number of times for management and administration of Yuen Long training center, we found that we could not reach a mutual agreement.  I was forced to terminate our contract of agreement for the partnership relationship in Yuen Long Branch as it would be the best way to cause less harm to the reputation of the Hong Kong Human Resources Ltd.  To comply with the administrative and management practice laid down by the Labour Department.

Effective from 26 August 2005, the training center for the following venues have been suspended by the Labour Department for all the accredited courses.  Any accredited certificates should not be issued under the name of the Hong Kong Human Resources Ltd.  Otherwise legal action will be taken by the concerned authorities.  Moreover, you are required to hand over all the training records of the Labour Department accredited courses to us in three days.”

(Underlines provided)

9.Paragraph 6 of the Statement of Claim reads:-

“On 25.8.2005, D1 issued a letter under the heading of D2 and purported to terminate the aforesaid partnership, setting out the reason that mutual agreement could not be reached in respect of management and administration of the Yuen Long centres after communication (which communication P has denied receiving) representing also that w.e.f. 26.8.2005 the training centre under the Partnership have been suspended by the Labour Department of the HKSAR.  P found that represented suspension was centre after contacting the aforesaid Labour Department.”

The Plaintiff denied that he had received the communication referred to in the said letter.  But he did not deny that he had received the said letter.  The Statement of Claim was filed on 20 September 2005.  So he must have received this letter by 20 September 2005.

10.Section 34 of the Partnership Ordinance (Cap. 38) provides that:-

“(1)  Subject to any agreement between the partners, a partnership is dissolved:-

(a)  ……

(b)  ……

(c)  if interview into for an undefined time, by any partner giving notice to the other or others of his intention to dissolve the partnership.

(2)  In the last-mentioned case the partnership is dissolved as from the date mentioned in the notice as the date of dissolution, or if, no date is so mentioned as from the date of the communication of the notice.”

The Partnership between the parties was entered for an indefinite period.  Therefore the Partnership was dissolved when the Plaintiff received the letter, which would be some time after 25 August 2005, but not later than 20 September 2005.  Accordingly by 20 September 2005, the Partnership was no longer in existence.  Thus the application for interlocutory injunction simply serves no purpose as the Plaintiff is asking this Court to impose an order for the benefit of an non-existing body.  Accordingly, this application for injunction is totally misconceived.  I therefore dismiss the Plaintiff’s application.

Costs

11.I make an order nisi, to be made absolute in 14 days’ time, that the Plaintiff is to pay costs of this application to the Defendants, to be taxed, if not agreed, with certificate for Counsel. 

The Plaintiff represented by Mr. Siu See Chun, instructed by M/S. Foo & Li, Solicitors.

The Defendant represented by Mr. Joel Chan, instructed by M/S. K.Y. Leung & Carina Chan, Solicitors.