Sunco Property Holdings Co Ltd and Another v. Sunco China Holdings Ltd and Others
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HCA2145/2007 & HCA148/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2145 OF 2007 ----------------------
---------------------- AND ACTION NO. 148 OF 2008 ----------------------
---------------------- (CONSOLIDATED) Before : Hon Yam J in Chambers Date of Hearing : 13 August 2008 Date of Judgment : 13 August 2008 ---------------------- J U D G M E N T ---------------------- 1.It is a delightful hearing today, delightful in the sense that both counsel have exerted the highest standard of submissions for their clients. 2.Mr Johnny Mok SC, for the 3rd defendant, has very forcefully and ably tried to persuade me that according to the rules, the plaintiffs’ solicitors have not complied strictly to the letters of the provisions. The issue is whether they have complied with Order 11 in the area of service out of jurisdiction to disclose all material before Master C. Kwan when they made the application on or about 5 December 2007. This led to the Order made on 10 December 2007 by the learned Master in allowing the plaintiffs to serve the writs on the 3rd defendant out of jurisdiction in the United States of America. The rules provided that the plaintiffs must state all material facts leading to the plaintiffs’ belief that the 3rd defendant may be found in that residential address of the 3rd defendant in U.S. 3.For this, the plaintiffs relied on Mr Zen’s affirmation filed on 5 December 2007 in which he said with a title “In what place the Defendants may be found” at paragraph 23 :
and paragraph 25 :
In other words, the most recent search of the most recent addresses filed by these two companies showed that the 3rd defendant had the same residential address in the States. 4.The mode of contention is in paragraph 29 which I have to quote in full :
5.Mr Mok has forcefully submitted that these contentions were either misleading or otherwise the deponent did not condescend on particulars, and in particular what Mr Zen meant by the representative of the plaintiffs trying to locate the 3rd defendant at the Tianjin commercial address but to no avail. 6.Mr Mok referred me to two letters dated 23 August 2007 and 17 September 2007 at pp. 388 and 390 of Bundle B. These are the notices given to the 1st, 2nd and 3rd defendants under the Option Agreement which is one of the issues in this case. It was required under the Option Agreement that if notices to be given to a Beijing address but then before these letters the plaintiffs were informed that they should give notice to a Tianjin address which was the address stated in the affirmation of Mr Zen. 7.Mr Hectar Pun, for the plaintiffs, submitted that these letters do not count at all because they were given pursuant to the Option Agreement and, in any event, at the direction of the three defendants. 8.The crux of the matter eventually, after two hours of argument, concerned with this sentence and that is, what did Mr Sun Hongbin mean when he said representative of the plaintiffs went to that Tianjin address in order to locate him but to no avail. Mr Sun, in his affidavit, said at paragraph 6(6) :
He made such a statement because the negotiation was attended by him in person in Beijing. 9.However to my mind, whether the other side was informed that he there and then mainly resided in Tianjin is not the most relevant material. The question is : Is it fair for Mr Zen said in his affidavit “In fact I do not know exactly where he is now. He is an American holding American passport with American residential address. He gave his home address in all the company purchases at the American address”? Could Mr Zen be entitled to say in his affirmation that “I verily believe that the 3rd defendant may be found at the American address”? 10.It is true, as submitted by Mr Mok, that in paragraph 30, apparently the wrong test was used and, that is, the plaintiffs verily believed that the American address is the usual and last known address of the 3rd defendant. That is the test for people living in Hong Kong when one applies for substituted service. That is required or when one is trying to serve on a defendant in Hong Kong. But fortunately there was a title given to this section and that is “In what place the Defendant may be found”, so the inference is that the deponent is trying to say that : “since that is the usual and last known address of the 3rd defendant, I verily believe the 3rd defendant may be found at that U.S. address.” 11.Now, we come to the crux of the matter, and that is, how come the representative of the plaintiffs could not locate the 3rd defendant at the Tianjin address when he said tried to locate him at that address but to no avail. Mr Sun protested vehemently that : “That cannot be true because everybody in that office know who I am and it cannot be the case that he did not locate me at that address.” 12.It is true to say that the deponent should condescend on to particulars when he is just in the end result, but of course when Mr Zen was making this affirmation and presumably the same was drafted by a lawyer, only the end result was stated. I cannot on affidavit say Mr Zen lied because Mr Sun said : “Everybody knows in the office who I am and how I could be located.” I take judicial notice that in the Mainland, nearly everyone has information phobia or what I call furnishing information phobia. Whenever you phone up anyone in whatever unit in the Mainland, you usually meet with a number of questions : “Who are you? Why you phone up this unit and what is the matter?” And whenever you ask “Who are you?” and “Why I cannot find the recipient of the phone call?”, you will never be given a definite answer, and usually the answer is : “He is not here.” and the phone is quickly hung up. You cannot get information in the Mainland and that was very serious in the past and I think the condition has improved. Perhaps the representative was simply told that the 3rd defendant was not here, and that of course was amounted to the conclusion of “to no avail”. 13.I am not speculating but the statement in paragraph 27 is not inconsistent with Mr Sun’s contention in his affirmation to the effect that everybody know who he is and he is the alter ego of the company and therefore he was very surprised that the representative could not locate him. The two things are not mutually exclusive and, doing the best I can on making assessment on affidavits, I cannot say Mr Zen actually lied or the representative lied when he said he could not locate the 3rd defendant at the Tianjin address. That being the situation I think, it is open to the plaintiffs to apply for service out of jurisdiction by saying to the effect that “I verily believe that the 3rd defendant may be found at that address.” “May be found” does not mean he can physically be found there. “May be found” means the writs will eventually reach the hands of the 3rd defendant. 14.We should not forget the whole intention of Order 11 in the area of service out of jurisdiction was to ensure that a foreigner defendant would have noticed of the writ, the fact that he has been sued and why he was being sued, so that he could file the acknowledgement of service within time. In this case, the 3rd defendant did notice the writ, did file an acknowledgement of service, albeit he was filed without prejudice to his right, to set aside the writ. He is entitled to do that. 15.But should I set aside the writ? I do not think so. In this case, the main purpose of Order 11 is fulfilled and that is to bring notice to this very defendant, the 3rd defendant, that he is now being sued together with his two other companies under his control, that is, the 1st and 2nd defendants herein under certain Option Agreement. The 1st and 2nd defendants under his control actually filed Defence and Counterclaim by another firm of solicitors. 16.For the aforesaid reasons, I accept Mr Pun’s submissions in total in his written and oral submissions. The 3rd defendant’s application is dismissed. 17.I think I just make a simple order of costs, unless I hear anything otherwise, with costs to the plaintiffs. As promised, I make an order pursuant to section 5 of the Official Language Ordinance, Cap. 5 that all further documents to be filed by all parties herein shall be in Chinese unless otherwise agreed between the parties or their solicitors and by consent between the plaintiffs and the 3rd defendant that this is a Long Case and the parties before me requested the Chief Judge to designate a judge of the CFI to be in charge of the case according to the Practice Direction. For the avoidance of doubt, the consolidated Statement of Claim to be served on the 3rd defendant shall be in Chinese as requested by the 3rd defendant within 21 days hereof. The mode of service on the 3rd defendant shall be stated by him within 14 days hereof.
Mr Hectar Pun, instructed by Messrs Fairbairn Catley Low & Kong, for the Plaintiffs in HCA2145/2007 Mr Johnny Mok, SC, instructed by Messrs Wong & Fok, for the 3rd Defendant in HCA2145/2007 |
Further hearings and rulings under HCA 2145/2007