Chow Shun Yung v. Weh Pih Stella

[English Translation]
DCCJ 2007/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2007 OF 2005

________________________

BETWEEN

________________________

Dates of Trial: 4, 5, 8 to 10 January 2007

Date of Handing down Judgment: 23 February 2007

JUDGMENT

1.The Plaintiff’s claim against the Defendant herein, with the cause of action being detinue, is for the return of various items of personal property set out in paragraph 14.1 of the Re-Amended Statement of Claim, as follows:

Claim for compensation and the return of the following property together with interest: RMB 2,096, USD 6,150, HK$10,156, 5,000 Yen, one 3.91-gram 24K ‘Tian Yuan’ ring, one 7.39-gram 24K ‘Tian Yuan’ ring, one 9.09-gram 24K ‘flower’ ring, one 3.97-gram 24K ‘Tian Yuan’ ring, one melee ring, four pieces of purple gems, two pieces of gems (small, ruby), one piece of jade (jade ring), one small piece of jade, one purple gold ring, one piece of gem (large, ruby), one PENTAX Camera, one round-shaped lady’s watch, one old-fashioned lady’s watch, 130 Baht in banknotes, two Thai coins, one one-dollar and one 10-cent Macau coins, five 25-cent Canadian coins, five 10-cent Canadian coins, one 5-cent Canadian coin, five 1-cent Canadian coins, one 20-cent Australian coin, one 2-cent Australian coin, one 1-cent Australian coin, twenty-one 1-cent Hong Kong banknotes, one 50-cent Hong Kong coin, twenty-eight 5-cent Hong Kong coins, two 50-yen Japanese coins, two 1-yen Japanese coins, one one-dollar American coin, two half-dollar American coins, three quarter-dollar American coins, one 5-cent American coin, one 1-cent American coin, one ONE DIME American coin, one SEN Malaysian coin.

Background

2.The Plaintiff is the natural son of Xu Zong Zhen (徐宗真), the deceased (hereinafter “the Deceased”), and the Defendant is the natural daughter of the Deceased fathered by another man.  On 17 November 1997, the Deceased died of illness in Shanghai, leaving intestate estate (personalty) in Shanghai and Hong Kong.

3.In June 1998, the Plaintiff applied for a Grant (HCAG 4902/1998) as the son of the Deceased.

4.In September 1998, the Defendant entered a caveat (HCCA 780/1998).

5.After the death of the Deceased, the Defendant entrusted Madam Xu Yu Rong (徐玉蓉) to bring the items of the estate (personalty) mentioned in paragraphs 2.14-2.32 of the Reply from Shanghai to Hong Kong and hand them over to the Defendant.  The Defendant then delivered these items to her solicitors in Hong Kong and requested them to divide the items into three portions and deliver one of the portions to the Plaintiff.  It is not in dispute that the Plaintiff did not accept the personal property delivered to him.  The Defendant then brought the personal property back to Shanghai.

6.On 16 November 1998, the Defendant applied to the Shanghai court for the division of the Deceased’s estate among the Plaintiff herein, the Defendant herein and Madam Zhou Guan Hua (周冠華) ((1998) Lu Min Chu Zi No. 1936).

7.It is not in dispute that the Shanghai court delivered its judgment (hereinafter “the Shanghai Judgment”) on 16 August 2002, which is binding on both parties.

8.The items claimed under paragraph 14.1 of the Re-Amended Statement of Claim herein are items which were ordered to be distributed to the Plaintiff under paragraph 3 of the Shanghai Judgment, which states as follows:

3.         In respect of the estate of Xu Zong Zhen in the possession of Weh Pih Stella: RMB 2,096, USD 6,150, HK$10,156, 5,000 Yen, one 3.91-gram 24K ‘Tian Yuan’ ring, one 7.39-gram 24K ‘Tian Yuan’ ring, one 9.09-gram 24K ‘flower’ ring, one 3.97-gram 24K ‘Tian Yuan’ ring, one melee ring, four pieces of purple gems, two pieces of gems (small, ruby), one piece of jade (jade ring), one small piece of jade, one purple gold ring, one piece of gem (large, ruby), one PENTAX Camera, one round-shaped lady’s watch, one old-fashioned lady’s watch, 130 Baht in banknotes, two Thai coins, one one-dollar and one 10-cent Macau coins, five 25-cent Canadian coins, five 10-cent Canadian coins, one 5-cent Canadian coin, one 1-cent Canadian coin, one 20-cent Australian coin, one 10-cent Australian coin, one 5-cent Australian coin, one 2-cent Australian coin, one 1-cent Australian coin, twenty-one 1-cent Hong Kong banknotes, one 50-cent Hong Kong coin, twenty-eight 5-cent Hong Kong coins, two 50-yen Japanese coins, two 1-yen Japanese coins, one one-dollar American coin, two half-dollar American coins, three quarter-dollar American coins, one 5-cent American coin, one 1-cent American coin, one ONE DIME American coin and one SEN Malaysian coin are to be vested in Chow Shun Yung. 

Items 2 and 3 of the judgment are to be delivered up by Weh Pih Stella within 30 days from the effective date of this judgment.

As shown by the relief sought by the Plaintiff in the Amended Writ of Summons herein, the Plaintiff’s only cause of action is detinue in respect of the property in question.  This cause of action must be founded on the claimant’s ownership and/or right of possession over the subject matter (i.e. the property in question).  There is no dispute that these rights are derived from the Shanghai Judgment, and the Plaintiff confirmed at the hearing that the alleged detinue related to the Defendant’s conduct subsequent to the Shanghai Judgment.  The items being claimed by the Plaintiff will be referred to hereinafter as “the Plaintiff’s chattels”.

9. It is also not in dispute that the Plaintiff has the ownership and/or right of possession over the property which was distributed to him under the Shanghai Judgment, and those rights are derived from the Shanghai Judgment.

10.The parties agree that, subsequent to the Shanghai Judgment, the Plaintiff’s solicitors and the Defendant’s solicitors entered into correspondence which included the letters referred to in paragraphs 4(1)-(3), (5)-(11) and (13)-(15) of the Plaintiff’s Amended Statement of Claim.

11.According to the Defendant, the property in question is still in the possession of the Shanghai lawyer engaged by the Defendant.

12.At the Pre-Trial Review hearing before Her Honour Judge Marlene Ng on 28 August 2006, the parties agreed that the issues in the present case are:

(1)        First Issue: After the Shanghai Judgment took effect, did the Plaintiff make any valid demand which is required to constitute a cause of action in detinue at law?

(2)        Second Issue: Under the Shanghai Judgment, did the Defendant have the duty and/or obligation to deliver the property in question to the Plaintiff on her own initiative and/or in Hong Kong?

(3)        Third Issue: Did the acts of the defendant and/or her agents after the Shanghai Judgment took effect constitute detinue?

(4)        Fourth Issue: Did the Defendant intend to wrongfully detain the property in question?

13.At the same Pre-Trial Review, Judge Ng granted a consent order giving leave to each party to call an expert in PRC law to give evidence at trial, and such expert evidence was to be confined to the interpretation under PRC law of the order in the Shanghai Judgment requiring the Defendant herein to deliver up the property within 30 days from the effective date of the Judgment.  This evidence relates to the Second Issue referred to above, which arises from paragraph 4(d) of the Amended Defence, which pleads as follows:

Further or in the alternative, under the Shanghai Judgment, the Defendant did not have any duty and/or obligation to deliver the subject property from Shanghai to Hong Kong.  The Plaintiff was required to collect [the subject property] by himself.

In these proceedings, the Plaintiff has filed a Report and a Supplemental Report of Professor Dong Li Kun (董立坤教授) as expert evidence on PRC law in support of the Plaintiff’s arguments on the Second Issue, whereas the Defendant has filed a Report of Professor Zhang Xian Chu (張憲初教授) in support of the Defendant’s arguments on the Second Issue.  These reports can be found in pages 76-7 to 76-23 of the Trial Bundle.

14.At trial, the Plaintiff gave evidence in court and was cross-examined by Counsel for the Defendant.  Professor Dong Li Kun, the Plaintiff’s expert witness, failed to attend the hearing at the scheduled time and date on 10 January 2007.  The Plaintiff said that the expert witness was for some unknown reason not permitted to pass through the Visa Control of the Immigration Department at the border.  This notwithstanding, the Plaintiff elected to proceed with trial rather than having an adjournment and applied for an order that the Reports of his expert be admitted as evidence without the expert witness having to attend court.  The Defendant opposed the application pursuant to Section 47(1) of the Evidence Ordinance, Cap. 8 of the Laws of Hong Kong.  Having considered the submissions of both parties, and in the interests of justice, I exercised my discretion to refuse the Plaintiff’s application for the following three reasons:

(1)     The evidence of Professor Dong Li Kun was necessary and important, but crucial aspects of his opinion were hotly contested by the Defendant’s expert.

(2)     The weight of the opinions expressed in the Reports of Professor Dong Li Kun would be substantially diminished, and such opinions would be of limited value, if he did not adduce his Reports in court under oath and was not cross-examined on the aspects of his opinions which were hotly contested by the Defendant.  By comparison, the Defendant’s expert witness would give his opinion evidence on oath and be subject to cross-examination.

(3)     It would be prejudicial to the Defendant if the Plaintiff were allowed to adduce the Reports of Professor Dong Li Kun without his having to attend court and be cross-examined on his opinions whereas the Defendant’s expert witness would have to be cross-examined on his views which were disputed by the Plaintiff.

15.In the face of the above decision, the Plaintiff was left with no expert evidence in support of his arguments on the Second Issue.

16. The Defendant elected not to testify in court. She relied on documentary evidence in support of her case and relied on the evidence of her expert witness Professor Zhang Xian Chu in support of her arguments on the Second Issue.

17.Having set out the background and preliminary matters as above, I shall deal with my findings on each of the issues.

The First Issue

18.It is beyond dispute that a claim in detinue “lay at the suit of a claimant having a right to immediate possession for the wrongful detention of his chattel” (Clerk & Lindsell on Torts (19^th Ed), page 1005, para. 17-03).  The same passage goes on to state that “[t]he wrongful detention was normally, though not invariably, evidenced by the defendant’s refusal to deliver [the detained property] up on demand …”.  Hence, a fundamental issue in the present case is whether the Plaintiff made a legally valid demand.  The Plaintiff’s claim rests upon the basis that the Defendant unreasonably refused his demands (paragraph 4 of the Re-Amended Statement of Claim, at page 39-3 of the Trial Bundle).

19.The First Issue arises from paragraph 4(c) of the Amended Defence, which pleads as follows:

However, the Defendant denies that the relevant correspondence of the Plaintiff could constitute a legally valid demand and hence constitute a cause of action in detinue.

Therefore, I have to determine whether the Plaintiff issued an effective demand on the Defendant.

20.The demands that the Plaintiff allegedly made on the Defendant are set out in paragraph 4 of the Re-Amended Statement of Claim.  I shall now deal with each of the demands in the context of the underlying facts and taking into account the Defendant’s case and the relevant submissions of Counsel for the Defendant.

(1)     Paragraph 4(1) of the Re-Amended Statement of Claim refers to a letter dated 16 December 2004 from the Plaintiff to the Defendant’s solicitors in Hong Kong.  The letter stated: “Please prepare [a Security Agreement] and present it for my signature by 18 December.”  The request here was clearly not for the delivery up on demand of the possession of the chattels concerned.  It in fact related to a “Security Agreement” to be prepared by the Defendant’s solicitors in Hong Kong for the Plaintiff’s signature in order to set-off the debt specified in a statutory demand issued against the Plaintiff in bankruptcy proceedings arising from the Plaintiff’s default in the payment of costs.  In his letter, the Plaintiff stated:

I hereby solemnly declare that, had the creditor disclosed the abovementioned security or guarantee in the ‘statutory demand’, the debtor would long ago have readily signed the agreement.  This position still has not changed, but regrettably ‘the security or guarantee’ was disclosed too late, and time and costs have been wasted.

Please prepare the ‘security agreement’ and present it for my signature by 18 December.  I believe this arrangement is beneficial to all parties and may save costs of the petition.

However, the Defendant rejected the request.  In my view, this was not a demand for the delivery up of the chattels but rather was a request to use the chattels as a charge or security for the debt of $16,694.35 specified in the statutory demand issued against the Plaintiff.  The Plaintiff was, in my view, requesting to use his chattels as a security for the debt in the statutory demand, rather than asking for his chattels back.  It follows that this request did not constitute a valid demand which was necessary for founding an action for detinue. 

(2)     The second demand is set out in paragraph 4(3) of the Re-Amended Statement of Claim.  Here the Plaintiff refers to a letter that he wrote to the Defendant’s then Shanghai lawyer with the following request:

Please immediately ask the Hong Kong solicitors acting for Weh Pih Stella (Rita Law & Co.) to ‘deliver up’ my personal property entrusted by Weh Pih Stella to you for ‘custody’.  Upon receiving the written notice, I will go to the Hong Kong solicitors firm to go through the procedures for the collection of the property.

(3)     The third purported demand is referred to in paragraph 4(6) of the Re-Amended Statement of Claim.  Here the Plaintiff states that on 1 April 2005 he wrote to the Defendant’s solicitors in Hong Kong seeking an update on the handling of the Plaintiff’s chattels.  This letter, which can be found in page 286 of the Plaintiff’s Bundle, contains the following sentence:

Please provide me with an update on how ‘the portion of Shanghai estate belonging to Mr Chow still under the custody of my Shanghai lawyer’ is being handled.

This did not constitute a demand as it merely inquired into the “whereabouts” of the Plaintiff’s chattels.

(4)     The fourth purported demand is referred to in paragraph 4(9) of the Re-Amended Statement of Claim.  This is contained in a letter dated 5 April 2005 from the Plaintiff to the Defendant’s Shanghai lawyer, which can be found in pages 288 to 290 of the Plaintiff’s Bundle.  The purported demand was in the following terms:

Please tell me: regarding the abovementioned 40 items of personal property that belong to me, what has your firm done on behalf of your client (Stella Pih) to comply with the 4^th item of the civil judgment of (1998) Lu Min Chu Zi No. 1936, namely: ‘Item 3 of the judgment is to be delivered up by Weh Pih Stella within 30 days from the effective date of this judgment’?

This request concerned the mode of compliance with the Shanghai Judgment, i.e. the mode of delivering the Plaintiff’s chattels pursuant to the terms of the Shanghai Judgment as stated in the letter.  This was essentially a question about the method of delivery and, strictly speaking, not a demand for delivery.

(5)     The fifth purported demand, referred to in paragraph 4(11) of the Re-Amended Statement of Claim, is contained in a letter dated 14 April 2005 to the Defendant’s Shanghai lawyer, a copy of which can be found in page 292 of the Plaintiff’s Bundle.  The relevant passage in this letter is the 4^th item, which reads as follows:

If your firm fails to directly account to me in accordance with the advice of the lawyer acting for Stella Pih, I will not hesitate to initiate proceedings against your client Stella Pih in the Hong Kong District Court in May, suing her for wrongful detention of personal property.  She will be asked to describe in the witness box the details of how she conspired with your firm to wrongfully take possession of my property.

This statement was in fact an ultimatum that if the Defendant’s Shanghai lawyer did not directly “account to him” by May 2005, the Plaintiff would commence legal proceedings in Hong Kong against the Defendant for detinue.

(6)     The sixth demand, referred to in paragraph 4(13) of the Re-Amended Statement of Claim, is contained in a letter dated 15 April 2005 to the Defendant’s solicitors in Hong Kong.  The letter contained a final warning in the following terms:

If, by 30 April 2005, Weh Pih Stella still fails to deliver up item 3 of the civil judgment of (1998) Lu Min Chu Zi No. 1936, I will commence civil proceedings in the District Court immediately.

21.In the midst of these purported demands, on 26 April 2005 the Defendant’s solicitors in Hong Kong replied to the Plaintiff’s letter dated 15 April 2005.  The reply contained the following passage:

We understand that you have been in contact with Mr Zhu You Bin, the Shanghai lawyer who acts for Madam Stella Pih.  Regarding your share of the estate, you should follow up the matter with Mr Zhu.  We have advised you repeatedly to directly contact Mr Zhu, and did provide you with Mr Zhu’s contact details on 4 April 2005.  Madam Pih has never refused to deliver to you that portion of the estate and has also provided you with contact details of her Shanghai lawyer through our firm (see the letter dated 4 April 2005).  Our client has instructed her Shanghai lawyer to handle the estate, and we fail to understand why you keep inquiring of us about matters relating to the estate instead of contacting the Shanghai lawyer to inquire about the collection of the estate or other matters.

22.In its letter of 26 April 2005, Messrs. Rita Law & Co, solicitors for the Defendant, requested the Plaintiff to contact the Defendant’s lawyer in Shanghai.  The Plaintiff apparently did not do so before commencing the present legal action on 3 May 2005.

23.On this issue, Counsel for the Defendant argues that the demands of the Plaintiff did not constitute a valid demand at law because the Plaintiff was asking the Defendant to deliver the Plaintiff’s chattels to him in Hong Kong.  Details can be found in the Plaintiff’s letter to the Defendant’s Shanghai lawyer whereby the Plaintiff demanded to have his  chattels delivered to the Defendant’s solicitors in Hong Kong for onward delivery to him (see page 282 of the Plaintiff’s Bundle).  Similarly, in a letter dated 14 April 2005 to the Defendant’s Shanghai lawyer (see page 292 of the Plaintiff’s Bundle) and a letter dated 15 April 2005 to the Defendant’s solicitors in Hong Kong (see page 293 of the Plaintiff’s Bundle), the Plaintiff requested the other party to deliver his chattels to him in Hong Kong.

24.Counsel for the Defendant refers to the case of Capital Finance Co Ltd v. Bray [1964] 1 WLR 323 in support of the proposition that the Defendant was not under a legal obligation to deliver the Plaintiff’s chattels to him in Hong Kong.  The relevant principle is set out in Holding paragraph (2) in the headnote, which states as follows:

(2)        That the demand was not a good one such as to found a claim in detinue.  No one is bound, save by contract, to take a chattel to the owner of it, his only obligation being not to prevent the owner from getting it when he comes for it.

25.The case involved a hire-purchase agreement of a motor vehicle.  The contract was protected by the Hire Purchase Act 1938, which meant that if the hirer had paid one-third of the total price, the owner could not take the car back unless the court ordered otherwise.  The hirer, one Mr Bray, paid more than one-third of the total price but then defaulted on subsequent payments.  The finance company, as owner of the car, wrongfully terminated the contract and took the car back but subsequently returned it to the hirer.  A few months later, on 1 March 1963, the finance company acting through its solicitors wrote to the hirer, requesting him to return the car to one of the three designated addresses in Edinburgh and London by a specified date and demanding payment of all outstanding instalments.  The hirer did not comply with the letter.  The owner commenced legal proceedings for the return of the car on the basis of the original hire-purchase agreement.  By his defence, the hirer claimed that the owner had terminated the agreement by unlawfully repossessing the car without a court order.  Shortly before the hearing in the County Court, the owner amended the claim by adding a claim in detinue and damages.  The County Court held that the owner could not rely on the hire-purchase agreement because it had unlawfully terminated the agreement by taking possession of the car without a court order.  However, the Court held that when the hirer failed to return the car upon demand of the owner, a claim arose in detinue.  On appeal, the English Court of Appeal reversed the decision of the trial judge and made the following ruling in the second paragraph on page 328 of the judgment:

In my judgment, the letter of March 1 was not a sufficient demand to found a claim in detinue.  It was a demand to deliver up in accordance with the hire-purchase agreement.  It demanded delivery up by Bray at his own expense to one of three named places, Edinburgh, Waterloo Place in London, or Stone Building, Lincoln’s Inn.  But once the hire-purchase agreement was determined and not reinstated, Bray was under no obligation to take the goods to the finance company.  He could leave the goods at his house until the owner came to collect them.  He would not be guilty of any unlawful detention unless, when the owner came to collect them, he prevented him taking possession of them.  It is rather like the case, which was put in argument.  Suppose a trader leaves some article on my premises – it may be a photograph or even a grand piano – hoping I will buy it.  If I am unwilling to buy it, he cannot demand that I post the picture back to him or that I load the grand piano on a haulage contractor’s van and take it back to him.  I can leave it where it is.  Or I can put it out of my way, if I like, without being guilty of any wrongdoing at all.  If he comes to collect it, I must let him have it: but that is all.  There is no obligation on a person who has another person’s goods to return them to him, except by contract.  This rule is accurately stated in Salmond on Torts, (18^th ed.) at page 264: No one is bound, save by contract, to take ‘a chattel to the owner of it.  His only obligation is not to prevent the owner from getting it when he comes for it.’ That has been the law ever since the case to which we were referred of Clements v. Flight.  The judgment of the court makes it quite clear, in order that there would be a wrongful detention of goods, the defendant must withhold the goods and prevent the plaintiff from having possession of them.  He is not bound to be active and send the goods back unless there is an obligation by contract to do so.  It seems to me, therefore, that this demand of March 1 1963, was not a good demand such as to found a claim in detinue.  It did not merely demand delivery up.  It demanded that the hirer should take the car back to one of these three addresses.  He was under no obligation to do so.

26.In Clerk & Lindsell on Torts (19^th Ed), page 1015, para. 17-22, under the heading “Conversion by keeping: demand and refusal”, the learned authors stated as follows:

The ordinary way of showing a conversion by unlawful retention of property is to prove that the defendant, having it in his possession, refused to surrender it on demand.  Indeed, such a demand is generally a precondition of the right of action for detention …

It should be noted, however, that the defendant’s obligation is normally only to allow the claimant to collect the goods, not to deliver them to him.

The footnote to the above passage refers to Capital Finance Co Ltd v. Bray [1964] 1 WLR 323, the authority cited by the Defendant.

27.The Plaintiff sought to rely on the case of Cranley v Hillary (1813) 2 M. & S. 120.  In that case the defendant entered into a composition with his creditors including the plaintiff whereby he was to pay 8 shillings in the pound on their respective debts and this sum was to be paid by two instalments to be secured by promissory notes to be given by the defendant and payable on fixed dates.  The defendant was to assign to the creditors certain debts mentioned in the resolution upon which the creditors should execute a general release.  The defendant and all other creditors executed the assignment of debts and releases in performance of the resolution, but the plaintiff and his partner did not do so.  The plaintiff might have received his promissory notes if he had applied for them, but there was no evidence that the defendant had given or tendered them to the plaintiff.  In his judgment, Dampier J said that “the obligor of a bond conditioned for payment of money at a particular day, is bound to seek the obligee, if he be in England, and at the set day to tender him the money, otherwise he shall forfeit the bond.  So in this case, the Defendant was to give the notes, and therefore to go with them to the Plaintiff, and he was not to go to the Defendant.  Suppose the condition had been to pay a sum of money, I apprehend the Defendant must have sought out the party in order to pay it.”

28.It must be noted that Cranley v. Hillary is a case on the law of contract, specifically on the place of performance of a contract.  In Chitty on Contract (29^th Ed), page 1235, para. 21-2005, the learned authors refer to the above case to support the principle that in relation to contract where the place of performance is not specified “even by implication, but performance requires the concurrence of the promisee, the general rule is that the promisor must seek out the promisee and perform his promise wherever the promisee may be”.  This principle is neither relevant nor applicable to the present case where the cause of action is detinue and the action is in tort.  The principle cited in Capital Finance Co Ltd v. Bray clearly applies to cases involving detinue.

29.Relying on Capital Finance Co Ltd v. Bray, Counsel for the Defendant submits that there was no legal obligation on the part of the Defendant to deliver the Plaintiff’s chattels to him in Hong Kong as demanded by him, as she was not contractually obliged to do so. 

30.Counsel for the Defendant submits that the Plaintiff’s demands for delivery of his chattels to him in Hong Kong were not good demands such as to found a claim in detinue and form the basis of the present action.  The Defendant was under no contractual obligation to deliver the Plaintiff’s chattel to him in Hong Kong.  As regards whether the Defendant was legally obliged under PRC law to do so pursuant to the Shanghai Judgment, I shall decide on this after I make my findings on the Second Issue with reference to the opinion evidence of the Defendant’s expert on the relevant PRC law.

The Second Issue

31.This is an issue related to the law of the PRC.  The expertise of the Defendant’s expert, Professor Zhang Xian Chu, is not in dispute.  In paragraph 3 of his Report (see page 65-6 of the Trial Bundle), Professor Zhang states that, “according to the judgment of the Shanghai court, the place of ‘delivery’ should be Shanghai”.  He puts forward three reasons in support of his view:

3.1       I have consulted a number of books but have not found any legal interpretation or judicial interpretation of the Supreme People’s Court concerning specific requirements of the place of delivery in succession cases.  However, I have reason to believe that, before it delivered its judgment, the Shanghai court had already ruled in the hearing at first and second instance on its jurisdiction, and all the parties had to attend the hearing in Shanghai.  Moreover, all the estate is in Shanghai. Therefore, unless otherwise specified in the judgment, the place of delivery should obviously be Shanghai.  It defies judicial common sense to require a party to make delivery in another place when there is no express term to that effect in the judgment of the court.  It is also unfair to the party concerned.

3.2       The issue in the present case is not an academic debate on the concept of ‘delivery’;,rather, it is about the ‘delivery’ adjudged in an actual trial.  Concerning a ‘judgment for delivery’, it is stated in The Dictionary of PRC Law – Litigation Law (the Editor-in-chief of which is Professor Chen Guang Zhong, who is an authority in PRC litigation law) that a judgment for delivery is a civil judgment made by a People’s Court requiring a particular party to fulfil the obligation of delivery imposed by the judgment … only a judgment for delivery which takes legal effect is enforceable … .   The Dictionary of Law (the Editor-in-chief of which is Zeng Qing Min) further points out that a special feature of a judgment for delivery is that one of the parties undertakes a substantive obligation, and if the obligor fails to fulfil the obligation, the obligee can apply to the court for enforcement.  According to these authoritative legal interpretations, the crux of a ‘judgment for delivery’ is obviously from the interconnection between the judgment for delivery and the enforcement of delivery.  The court should not give a judgment which it cannot or will not enforce.  The Supreme People’s Court clearly states in its judicial interpretation that ‘an order for payment which takes legal effect is to be enforced by the People’s Court which makes that order’.  Hence, it goes without saying that the place of delivery under the judgment of the Shanghai court should be Shanghai.

3.3       In the present case, Shanghai is the place where the deceased Xu Zong Zhen lived at the time of her death and also the place where her estate is located.  Hence, the Shanghai court has jurisdiction to hear and determine the disputes of the parties as well as jurisdiction to enforce the judgment.

32.During cross-examination, the Plaintiff sought to put to Professor Zhang Xian Chu that “Article 88 of the PRC Civil Code provides that where the place of performing the obligation is uncertain, the making of payment shall be performed at the location of the recipient … .  Hence, the place of delivery in the present case should be Hong Kong, not Shanghai”.  Professor Zhang stated that this was wrong for the following reasons:

Firstly, the provisions in Article 88 of the Civil Code only apply to contractual relationships, but in the present case, there was no delivery agreement for delivery whatsoever between the parties, and the delivery was be performed pursuant to the judgment of the court, and so the provisions of the contract law are not applicable at all.  Secondly, the provisions of Article 88 only apply to civil legal relationships on the Mainland.  There are provisions in the Civil Code that specifically govern civil legal relationships involving foreigners.  Hence, Article 88 as referred to by Dong Li Kun is totally irrelevant to the civil legal relationship involving a foreigner in the present case.  He has mixed up different legal relationships and legal provisions, and his arguments simply lack a legal foundation.

33.During cross-examination, the Plaintiff put to Professor Zhang that pursuant to the Shanghai Judgment, the Plaintiff and the Defendant became a creditor and a debtor, and their relationship was therefore akin to a contractual relationship.  Professor Zhang explained that the relationship between the Plaintiff and the Defendant did not arise from any contract, and they could not freely agree on the terms of the agreement as contractual parties could. Article 88 of the Civil Code therefore does not apply.  I concur with this view.  Professor Zhang took the view that the place of delivery should be Shanghai and put forward the aforesaid reasons in support of his view.  I accept his view as it is supported by good reasons.

34.As regards whether the Defendant was under the duty and/or obligation to deliver the property to the Plaintiff by taking active steps and/or to deliver the property to the Plaintiff in Hong Kong, it follows from the aforesaid finding that the Defendant did not have any duty and/or obligation to deliver the property to the Plaintiff in Hong Kong because the place of delivery should be Shanghai.

35.On the basis of the above findings, the demands made by the Plaintiff for the delivery of his chattels were clearly not good demands at law.  The Plaintiff asked the Defendant to deliver the chattels to him in Hong Kong, but the relevant PRC law did not require the Defendant to do so, nor was she under any contractual obligation to do so.  As the Plaintiff’s demands were not valid demands at law, the Plaintiff’s claim in detinue must fail.  The cause of action is founded on a valid demand at law made by the Plaintiff and the refusal of the Defendant to comply with that demand.  The above conclusions of mine should be sufficient to dispose of the Plaintiff’s claim, but I shall, for the sake of completeness, proceed to make a finding on the Third Issue as it is clear that both parties would like me to do so.

The Third Issue

36.In considering the Third Issue, a relevant factor is the point of time at which the Plaintiff’s cause of action arose.  This must be after the date of the Shanghai Judgment, by which the Shanghai court ordered that the chattels were to be delivered to the Plaintiff, and the legal effect of the Shanghai Judgment was to confer on the Plaintiff the legal title to the  chattels.  On this issue, the tortious act would not arise until after a good and sufficient demand had been made.  Accordingly, in determining whether the Defendant’s acts constituted the tort of detinue, the court only has to consider the Defendant’s acts subsequent to the making by the Plaintiff of a valid demand for the purpose of establishing detinue.

37.I have already found that, as the Plaintiff has not made such a demand, i.e. a valid demand as required by the common law, the Plaintiff has failed to establish a case of detinue against the Defendant.  Assuming I am wrong in my finding on the Plaintiff’s demand, and on that basis alone, I shall now consider the Defendant’s acts and determine whether those acts constituted detinue.

38.The Defendant has not denied the Plaintiff’s right to repossess his chattels.  In the Re-Amended Statement of Claim, the Plaintiff refers to the Defendant’s responses to his demands, which are detailed in paragraph 4 of the Re-Amended Statement of Claim (see above).  Any act or omission of the Defendant before the date of the demands as pleaded do not serve to support the Plaintiff’s pleaded case in his Re-Amended Statement of Claim.  The relevant facts to be considered are the Defendant’s acts subsequent to the Plaintiff’s demands, and those demands and acts have been pleaded in the Re-Amended Statement of Claim.  All other facts are irrelevant to this issue.

39.The Plaintiff pleads that the Defendant refused to accept the Plaintiff’s proposal to use his chattels as security for or charge against his debt in the statutory demand issued against him by the Defendant in the bankruptcy action (see paragraph 4(1) and (2) of the Re-Amended Statement of Claim).  In this connection, the Defendant stated in paragraph 5 of her 4^th Affidavit (see page 251 of the Plaintiff’s Bundle) that, were the Hong Kong Court to decide that it had jurisdiction to administer the Deceased’s estate, then the funeral expenses, administrative costs, debts and legal costs which were deductible from the estate would have exceeded the Plaintiff’s share of the estate and therefore, the Defendant said, there would virtually be nothing left that could be used as security.  In my view, the Defendant’s response, and the reasons she gave for refusing to use the Plaintiff’s chattels as security for the statutory demand in the bankruptcy proceedings, could not constitute wrongful detention of the chattels for the purpose of proving detinue.  And as I have already held, the Plaintiff’s request did not form a good and sufficient demand that was necessary to found an action in detinue.  Furthermore, the Defendant had good reasons for refusing to accede to the Plaintiff’s request to prepare a Security Agreement for him to sign.  For these reasons, the Plaintiff cannot rely on the Defendant’s refusal as the basis for the Plaintiff’s action in detinue.

40.Then, in paragraph 4(8) of the Re-Amended Statement of Claim, the Plaintiff refers to a letter from the Defendant’s solicitors Messrs Rita Law & Co., which mentioned the following:

Regarding Madam Xu Zong Zhen’s Shanghai estate, our client has instructed her Shanghai lawyer to handle the matter.  If you have any questions about the handling of the Shanghai estate or other matters, please contact the Shanghai lawyer directly at:

Mr Zhu You Bin

Jin Cheng Law Firm Shanghai Office,

Flat H, 14/F, World Plaza,

No. 855 Pudong South Road, Shanghai, China.

Telephone: 86-21-5877-9290

Fax: 86-21-5887-8852

41.On 5 April 2005, the Plaintiff wrote to the Defendant’s Shanghai lawyer with the following request:

Please tell me: regarding the abovementioned 40 items of personal property that belong to me, what has your firm done on behalf of your client (Stella Pih) to comply with the 4^th item of the civil judgment of (1998) Lu Min Chu Zi No. 1936, namely: ‘Item 3 of the judgment is to be delivered up by Weh Pih Stella within 30 days from the effective date of this judgment’?

42.The Defendant’s Shanghai lawyer replied on 8 April 2005 in the following terms:

1.       Although the letter does bear a signature in the name of Mr Chow Shun Yung, we are unable to verify the authenticity of the signature as we are not Mr Chow Shun Yung’s agent.  Hence we cannot ascertain if the letter truly reflects Mr Chow Shun Yung’s views.  If we make a reply when in fact the letter does not reflect Mr Chow Shun Yung’s views, it may prejudice the parties concerned.

2.       For this reason, the question raised in the letter relates to our client’s personal and confidential information.  Being bound by the relevant legal rules and professional ethics, we are unable at this stage to respond to the questions raised in the letter.

3.       Mr Chow Shun Yung also is of course entitled to establish his identity to our firm by appropriate means under the law, and subject to the verification of our lawyers and the consent of Madam Stella Pih, we can respond to the question raised in the letter as appropriate.

43.This prompted a written response by the Plaintiff on 14 April 2005, which stated as follows:

As your firm has not received any instructions from me, you have no right to receive and keep in custody the personal property that belongs to me.  I will lodge a complaint to the Shanghai Lawyers Association.

If your firm fails to directly account to me in accordance with the advice of the lawyer acting for Stella Pih, I will not hesitate to initiate proceedings against your client Stella Pihin the Hong Kong District Court in May, suing her for wrongful detention of personal property.  She will be asked to describe in the witness box the details of how she conspired with your firm to wrongfully take possession of my property.

44.By a letter dated 26 April 2005, the Defendant’s Shanghai lawyer responded to the Plaintiff in the following terms:

The letter concerning ‘the portion of the Shanghai estate belonging to Mr Chow still in the custody of my Shanghai lawyer’ is received again.  We reply as follows:

We reiterate that we are unable to ascertain the authenticity of the signature in your letter and therefore do not know if the letter truly reflects Mr Chow Shun Yung’s views.  We hope that Mr Chow Shun Yung will establish his identity to our firm through proper means such as obtaining a letter from a notary public.  Subject to verification by our lawyers and the consent of Madam Weh Pih Stella, we will give a proper reply to the question raised in the letter.

We will not deviate in any way from the abovementioned fundamental duty of our lawyers by reason of certain threats contained in the letter.  Once we verify Mr Chow Shun Yung’s identity as established by proper means, we will no doubt give relevant answers to the question raised by Mr Chow Shun Yung in accordance with the relevant legal provisions of the PRC.

45.Upon receipt of this letter, the Plaintiff formed the view that there was no prospect of his being able to take back the chattels.  He filed the present claim accordingly.

46.I therefore have to determine whether the act of the Defendant’s solicitors in Hong Kong in notifying the Plaintiff to approach the Defendant’s Shanghai lawyer for taking back the Plaintiff’s chattels and the responses of the Shanghai lawyer of the Defendant were tantamount to detinue or a refusal to deliver up the Plaintiff’s chattels on demand.

47.We have already seen that, under the common law, the Defendant was under no duty to deliver the Plaintiff’s chattels to the location designated by the Plaintiff (Capital Finance Co Ltd v. Bray [1964] WLR 323) and her only duty was to allow the Plaintiff to take possession of his chattels at the place where they were located.

48.The Deceased’s personal property was brought to Hong Kong by the Defendant’s cousin Xu Yu Rong and was delivered to the Plaintiff by a private investigator instructed by the Defendant’s solicitors.  However, the Plaintiff refused to accept his share, so the Deceased’s personal property was taken back to Shanghai.  All this is not in dispute.  The Defendant said that she had been advised by her lawyers in the PRC that it was lawful to have the Deceased’s personal assets brought to Hong Kong and distributed among the beneficiaries in equal shares.

49.During cross-examination, the Plaintiff explained that he refused to take possession of the chattels because he was of the view that, as the Hong Kong Probate Registry had not yet issued a Grant of Administration, no one had the legal authority to distribute the estate.  The Plaintiff admitted under cross-examination that he had advised the Defendant to send the Deceased’s personal property back to Shanghai.  He also said under cross-examination that he had told her to take the property back to Shanghai and report to the police because he suspected that someone was guilty of theft and she should surrender herself to the police.

50.It is the Defendant’s case that, for the above reason, the Defendant took those items back to Shanghai and applied to the Shanghai Court for an order for the distribution of the Deceased’s personal estate.  The Shanghai Court delivered the Shanghai Judgment at the conclusion of the proceedings.

51.The middle part of page 3 of the Shanghai Judgment (see page 83 of the Defendant’s Bundle) stated as follows:

As the Plaintiff Weh Pih Stella and the Defendant Chow Shun Yung fail to reach any agreement on the distribution of the estate of Xu Zong Zhen, the Plaintiff has commenced proceedings in this Court.

This Court has commissioned the Lu Wan branch of the Shanghai Valuation Office to assess the value of the estate of Xu Zong Zhen, and the value of the estate (including rings, jade etc) has been assessed at RMB 14,705.62.  The assessment fee of RMB 730 has been disbursed by the Plaintiff Weh Pih Stella.

The above facts are confirmed by the death certificate of Xu Zong Zhen, the declaration of Xu Yu Rong, the declaration of Zhu Zi Wen, the property checklist in writing, the valuation report of the Lu Wen branch of the Shanghai Valuation Office, and the statements of the parties.

52.For the purpose of the proceedings in Shanghai, the personal assets of the Deceased’s estate referred to in the Shanghai Judgment were brought before the Shanghai Court, which passed them on to the valuation office for assessment.  The Shanghai Court had also referred to the valuation report.  Accordingly, following delivery of the Shanghai Judgment, these items which were part of the Plaintiff’s chattels would naturally continue to be kept in Shanghai.  The Defendant’s case is that these items were under custody of her Shanghai lawyer.

53.Under the common law, the Defendant was neither required nor obligated to deliver the Plaintiff’s chattels to the Plaintiff in Hong Kong.  Under PRC law, the place of enforcement of the Shanghai Judgment was in Shanghai. In the abovementioned letter of 4 April 2005, the Defendant’s solicitors in Hong Kong requested the Plaintiff to contact the Defendant’s Shanghai lawyers.  This was a lawful approach.  Furthermore, the tone of the letter indicated that the Defendant had never denied the Plaintiff’s right to take possession of his chattels through the Defendant’s Shanghai lawyer.  The Defendant’s solicitors in Hong Kong had also notified the Plaintiff to approach the Defendant’s Shanghai lawyer for taking back the chattels.

54.Both of the abovementioned two letters of the Shanghai branch of Jin Cheng Tong Da Law Office (dated 8 April 2005 and 26 April 2005 respectively) mentioned that the Plaintiff had to fulfil similar requirements or take similar steps before the Shanghai lawyer would answer his question as to how he could take possession of his chattels.

55.The steps required were:

(1)     The Plaintiff had to “establish his identity to the law firm by appropriate means such as obtaining a letter from a notary public”.

(2)     The Defendant’s Shanghai lawyer had to verify the Plaintiff’s identification documents.

(3)     Upon the consent of Madam Weh Pih Stella, the Plaintiff could raise that question.

(4)     The law firm would then “respond as appropriate”.

56.In the present case, the Plaintiff, as the Deceased’s son, sought to take possession of certain items in the Deceased’s estate from a law firm in a different jurisdiction.  It was legitimate, reasonable and (in the Shanghai lawyer’s opinion) lawful to require the Plaintiff to verify his identity in accordance with the PRC law.  It was also legitimate, reasonable and lawful for the Shanghai lawyer to verify the documentary proof of identity submitted by the Plaintiff.  There was nothing unusual in this requirement.  Finally, the Shanghai lawyer stated that he had to obtain the Defendant’s consent before responding to the Plaintiff’s question.  I see nothing unusual in the approach taken by the Shanghai lawyer, as an agent and a lawyer, in verifying the Plaintiff’s identity, and then obtaining the Defendant’s consent or taking instructions from her, before explaining to the Plaintiff how the Shanghai lawyer would comply with the terms of the Shanghai Judgment on behalf of the Defendant.

57.There is nothing in the above analysis of the responses of the Defendant’s Shanghai lawyer to suggest that the Defendant was unwilling to return the Plaintiff’s chattels to him provided that he established his identity etc.  The final paragraph of the letter dated 26 April 2005 further stated as follows:

Once we verify Mr Chow Shun Yung’s identity as established by proper means, we will no doubt give relevant answers to the question raised by Mr Chow Shun Yung in accordance with the relevant legal provisions of the PRC.

58.This sentence clearly expressed the Shanghai lawyer‘s intention of responding to the Plaintiff’s question in accordance with PRC law upon verification of the Plaintiff’s identity.  There was no indication of unwillingness on the Defendant’s part to deliver the Plaintiff’s chattels to him.  The Plaintiff too hastily formed the view that the Defendant was unwilling to deliver the Plaintiff’s chattels to him when he had not even established his identity to the Defendant’s Shanghai lawyer.  As stated above, as a prudent lawyer, it was reasonable for the Shanghai lawyer, who was acting for a client in another jurisdiction on the distribution of an estate, to require the Plaintiff to establish his identity.  In my judgment, the Plaintiff has failed to establish that the Defendant’s acts and correspondence as pleaded in paragraph 4 of the Re-Amended Statement of Claim constituted a refusal to allow the Plaintiff to collect his chattels from the Shanghai assets.

The Fourth Issue

59.This issue is irrelevant to the cause of action in detinue.  The Plaintiff only raised this issue in the hope that he could use it as the basis of claiming indemnity costs against the Defendant if judgment was given in his favour.  In light of my judgment that the Plaintiff has plainly failed to establish a case against the Defendant, this issue is simply irrelevant and need not be considered.

60.On the basis of the above findings, the Plaintiff’s claim must fail.  I give judgment for the Defendant and make the following orders:

The Plaintiff’s claim is dismissed.  I make an order nisi for costs of the action to be paid by the Plaintiff to the Defendant to be taxed if not agreed.  I also grant Certificate for Counsel.

The Plaintiff, in person, present.

Mr Patrick Chong, instructed by K.C. Ho & Fong, for the Defendant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor