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Fu Lok Man James T/a Lokie Leatherware Manufacturing Co. v Chief Bailiff Of The High Court

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date29 July 1999
Year1999
Citation[1999] 2 HKLRD 835
Judgement NumberCACV141/1998
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV000141/1998 FU LOK MAN JAMES t/a LOKIE LEATHERWARE MANUFACTURING CO. v. CHIEF BAILIFF OF THE HIGH COURT

CACV000141/1998

CACV 141/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 141 OF 1998

(ON APPEAL FROM HCA 11796 OF 1996)

BETWEEN
FU LOK MAN JAMES trading as LOKIE LEATHERWARE MANUFACTURING COMPANY Plaintiff
(Appellant)
AND
CHIEF BAILIFF OF THE HIGH COURT Defendant
(Respondent)

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Coram : Hon. Mortimer, V.P., Godfrey & Rogers, JJ.A. in Court

Date of hearing : 20 & 21 April 1999

Date of handing down judgment : 29 July 1999

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J U D G M E N T

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Rogers, J.A. :

Introduction

1. This is an appeal from a judgment of Suffiad, J. dated 16th April 1998. For convenience, I will set out the history of events leading up to this Action first.

History

2. By Action No. 86516 of 1995, the landlords of shop premises in Hankow Road sued the tenant for arrears of rent, rates and management fees. The tenant was Mr. Khiatani Jyoti Ghansham who traded under the name Santini Fashions. Judgment was entered for the landlord in August of that year. The landlord procured the issue of a writ of Fi. Fa. and possession which was dated 20th November 1995. The material parts of that writ insofar as is relevant to this Action were that the writ was addressed "To the Bailiff of our said Court, Greeting :- " The landlord's solicitors then issued a request for Bailiffs to proceed with execution and that document was addressed to "Chief Bailiff".

3. On 19th December 1995, Mr. Stephen Tsui went to execute the writ at the Santini Fashions premises. Paragraph 5 of the Statement of Claim in this Action alleges that Mr. Tsui was "an assistant bailiff". The Defence in this Action avers that Mr. Tsui was a bailiff. There was in evidence a copy of the letter appointing Mr. Tsui, a bailiff, dated 2nd March 1992. It was addressed to him in the terms of his previous position "Bailiff's Assistant c/o Bailiff Office Supreme Court". A copy of Mr. Tsui's warrant card was exhibited. Apart from the fact that exception might be taken to it on the grounds that it indicates that the Judiciary is a department of the Government of the HKSAR and that it names Mr. Tsui where it should name his office, in the space provided for the name of the holder of the card is the title Bailiff. It would appear that the reverse of the card bears the legend :-

"HIGH COURT ORDINANCE - CAP. 4

Holder of this card is a bailiff of the High Court of Hong Kong. He is empowered under Order 1 rule 4 of the Rules of the High Court to execute Court warrants and orders."

4. Amongst the goods found at the shop premises of Santini Fashions were a number of leatherware items. On the basis that these were goods on the premises of the person against whom the writ was executed and therefore, on the face of it, goods belonging to that person, Mr. Tsui sought to levy execution on those goods. The Plaintiff in these proceedings objected. He said that the leather goods had been supplied on consignment to Mr. Khiatani and that they belonged to the Plaintiff. The Plaintiff was, however, unable to produce satisfactory documentary evidence to show that these were goods on consignment. Mr. Khiatani was asked by Mr. Tsui whether there were any goods on the premises which did not belong to him. He remained silent. Mr. Tsui then advised the Plaintiff that he would be seizing the goods and that if he wished to maintain a claim in respect of them, that should be lodged as soon as possible.

5. The next day, Thursday, 20th December 1995, the Plaintiff lodged a claim at the Bailiff's Office but the Judge held that the Plaintiff had been unable to produce sufficient documentary evidence to support that claim. The Judge said :

"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."

6. Promptly on 20th December 1995, the Acting Chief Bailiff Mr. Y.T. Wong gave notice to the landlord's solicitors that a claim had been made by the Plaintiff and attached a copy of that claim. The landlord's solicitors were asked to state within 7 days as to whether the landlord disputed the Plaintiff's claim.

7. On 2nd January 1996, an interpleader summons was issued in respect of an application on the part of Mr. T.S. Tsui naming the Plaintiff and the landlord respectively as claimants to the goods. That application was signed by Mr. S.N. Kwan on behalf of "Chief Bailiff, Opts".

8. It is the Plaintiff's case that the leatherware items were perishable goods. The goods were subject to deterioration if not properly stored. Furthermore, the goods were fashion items and likely to go out of fashion at the end of the season. Naturally, being leather goods, it could be expected that in Hong Kong the season for such goods would be comparatively short. There is no evidence, however, that by the 2nd January the goods had deteriorated by reason of either of those two factors or otherwise. Indeed, the period up to Chinese New Year when it seems that active sales might be anticipated, still remained.

9. The first hearing of the interpleader summons took place on 19th January 1996. At that hearing, directions were given for the filing of evidence and hearing the dispute between the landlord and the Plaintiff in this Action. The order following that hearing also provided that "The Chief Bailiff excused further attendance, unless otherwise ordered".

10. At the hearing on the 19th January, the Master indicated to the Plaintiff and the landlord that they should attempt to agree as to how the goods should be dealt with. On the previous day, the landlord's solicitor had faxed a without prejudice offer, save as to costs, to the Plaintiff that the leatherware goods should be released to the Plaintiff on condition that they were removed by the evening of the following day and that each party should bear its own costs and that should be the end of the matter. That offer was not accepted by the Plaintiff.

11. After the hearing on the 19th January, the parties conducted correspondence with a view to reaching some accommodation. Finally, an agreement was reached which was embodied in a consent order of the 31st January. That order provided as follows :-

"The seized goods to be sold by Bailiff for the best possible price, the method of such sale to be at the discretion of the Bailiff subject to the first offer for sale being by way of job lot, and proceeds to be paid into Court into an interest bearing account."

12. The goods were subsequently sold on the 3rd February by public auction and the proceeds of sale amounted to $101,578.00. The Plaintiff claims that the goods that were seized were of a value of $567,568.00 but that if the Plaintiff had sold them, there would have been commission payable to the relevant consignee which would have brought a return to the Plaintiff of those goods of $425,676.00. In those circumstances, the Plaintiff alleges that its loss as a result of the auction sale was $324,098.00.

13. In August 1996, an application for relief was made by the Attorney General on behalf of the Chief Bailiff but that was refused.

The present proceedings

14. The Plaintiff commenced the present proceedings on 16th October 1996 naming the Defendant as "Chief Bailiff of the Supreme Court". The claim made is in detinue and conversion. The tort of conversion must, in the circumstances of this case, be taken to have occurred on 19th December 1995. The detinue continued until 2nd January 1996 at which time the interpleader summons was taken out, after that date there was no claim on the part of Mr. Tsui or anybody identifying himself as a Bailiff or the Chief Bailiff to retain the goods.

15. It is accepted by both sides that an Action against a Bailiff is only maintainable if the Plaintiff has suffered a substantial grievance. It is unnecessary for the purposes of this case to explore the breadth of the concept of substantial grievance. For the purposes of the present case, it is not disputed that the Plaintiff would have suffered a substantial grievance if he has suffered a substantial financial loss in terms of damages recoverable in law. Our attention has been drawn in this respect to the case of Neumann v. Bakeway [1983] 1 W.L.R. 1016.

The Constitution of the Action

16. As has already been referred to, the Action was commenced against the Chief Bailiff of the Supreme Court. An amendment was subsequently granted changing "Supreme" to "High" to reflect the changes following the renaming of the Court.

17. The Judge below considered that the...

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