WAI KING FIRE ENGINEERING COMPANY v. THE INCORPORATED OWNERS OF PORTION A OF NING YEUNG TERRACE AND ANOTHER

DCCJ 4414/2021

[2026] HKDC 373

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4414 OF 2021

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DECISION

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Introduction

1.  This is a vivid example of the parties in litigation not tidying up their loose ends before coming to trial.

Procedural history

2.  The plaintiff, namely, Wai King Fire Engineering Company, commenced the present action in September 2021 suing the 1^st and 2^nd defendants for defamation.

3.  The 1^st and 2^nd defendants, then represented by another legal team, filed a defence in January 2022.

4.  The 1^st and 2^nd defendants changed to their present solicitors on 24 August 2022.

5.  By the Order of Master Vienne Luk dated 12 September 2024, the action was set down for a 6-day trial. In view of the number of witnesses, 3 more days were allocated for the trial at the pre-trial review.

6.  Noting that the plaintiff was an unincorporated body, at the pre-trial review on 21 August 2025, I invited the parties to make submission in the opening submission on the issue of the plaintiff’s capacity to sue.

7.  On 11 September 2025, the 1^st and 2^nd defendants took out an inter partes summons applying to strike out the plaintiff’s claim (“the striking out summons”).

8.  On 17 September 2025, the plaintiff took out an inter partes summons applying to amend the plaintiff’s name in the writ of summons (“the 1^st amendment summons”).

9.  On 17 and 22 September 2025, the plaintiff took out two separate inter partes summonses applying to serve supplemental witness statements (“the supplemental witness statements summonses”).

10.  On 22 September 2025, the plaintiff took out yet another inter partes summons applying to amend the statement of claim (“the 2^nd amendment summons”).

11.  All 5 summonses were heard on the 1^st day of the trial, ie 15 October 2025. I indicated that I would only deal with the striking out summons as my decision thereon would have a pivotal effect on the other summonses.

12.  During the substantive argument of the striking out summons on 15 October 2025, Mr Matthew Ngai together with Miss Lee Wing Ki, counsel for the 1^st and 2^nd defendants, applied, and I allowed, the cross-examination of Mr Wong Hong Ching (“Mr Wong”) who is the sole proprietor of the plaintiff.

Legal principles

13.  It is trite that an unincorporated body is not a legal person. Hence, it does not have the capacity to sue or be sued. The right to sue in the firm name is confined to “any 2 or more persons claiming to be entitled … as partners”: see Order 81 rule 1 of the Rules of the District Court.

14.  Where the authority to commence an action is in doubt, the question must be resolved first before the case is allowed to proceed any further. Where the court is unable to decide the question of authority (which is a question of fact), cross-examination of the deponents of the affidavits should be allowed. The burden is on those suing in the name of the company to establish consent to the commencement of the action on the balance of probabilities: see Kammy Town Ltd v Super Glory Corporation Ltd, HCA 3524/2003, 14/1/2005, unreported per A Cheung J (as the Chief Justice then was).

Authority to sue

15.  There is no quarrel between counsel for the plaintiff and counsel for the 1^st and 2^nd defendants on the principle that an unincorporated body (ie the plaintiff in its business name) does not have the capacity to sue.

16.  The parties, however, diverge on the question of authority to sue.

17.  Miss Catherine Wong who appeared with Mr Billy Mok, counsel for the plaintiff, sought reliance on Nam Hoi Shoes Factory v Empire Trading Co (HK) Ltd [1960] HKLR 99 and submitted that the sole proprietor’s error of suing in its business name is mere irregularity and not a nullity. There is no issue of authority to sue.

18.  On the other hand, Mr Matthew Ngai who appeared with Miss Lee Wing Ki, counsel for the 1^st and 2^nd defendants, submitted that the plaintiff’s business name is not a proper plaintiff, it goes to the essence of having any power to institute the action and how authority could have been given by the plaintiff.

19.  Nam Hoi (supra) was a decision on the plaintiff’s application to amend the writ so as to rectify the error in bringing the proceedings in the name of the firm as plaintiff, after the defendant company’s solicitors withdrawing the defendant’s application to set aside the judgment and subsequently the learned judge dismissing the application for stay of execution on ground of res judicata. It was against that background that the learned judge found that the writ and subsequent proceedings (including the judgment in default) involved a mere irregularity and not a nullity.

20.  Here, the capacity of the plaintiff to sue in the name of the business is in contest, Nam Hoi (supra), in my view, is not directly applicable.

21.  As the action was commenced in the business name of the plaintiff and the statement of truth of the statement of claim was not signed by Mr Wong personally, the question of whether the action was authorized by Mr Wong has arisen.

22.  Mr Wong was therefore called and be cross-examined on his affirmation.

23.  In his affirmation, Mr Wong stated that his co-partner Mr Chung passed away on 30 July 2019. He became the sole owner of the business since then. However, the change in status was not reflected in the business registration certificate until 16 April 2022 and worst still not made known to the legal representatives of the plaintiff until after the pre-trial review.

24.  Mr Wong further said that Mr Ng (who signed the statement of truth of the statement of claim) was the person-in-charge of the Ning Yeung Terrace project, he had asked Mr Ng to assist him in handling all legal matters and relevant correspondences concerning this action. He was aware and acknowledged the documents signed by Mr Ng in this action. He also fully endorsed Mr Ng’s actions in these proceedings.

25.  Mr Ngai and Miss Lee put up various criticisms and submitted that Mr Wong had failed to testify to the effect that he had given authority to Mr Ng before the commencement of this action, be it orally or in writing. In particular, Mr Ngai and Miss Lee pointed out that Mr Wong chose to use “授意” (meaning instruct) instead of “授權” (meaning authorize), which showed the lack of authority from him.

26.  Mr Wong did not give me the impression that he had been evasive on the question of authority. When he was asked that the consequence of the litigation would be solely borne by him as Mr Ng could simply walk away, Mr Wong said that it was him who instructed Mr Ng to institute the proceedings. As he was not personally involved in the course of the events, he authorized Mr Ng (who was the person involved in the matter) to deal with all the litigation documents. He was prepared to sign all legal documents if required.

27.  To my mind, this is no clearer answer that the present action was authorized by Mr Wong prior to its commencement. The choice of using the term 授意 is no difference in meaning to 授權 to a layman like Mr Wong. He in fact used the term 授權 in the same answer when he said he authorized Mr Ng to deal with all the litigation documents. Further than that, it would be an affront to common sense that he would have allowed the action to continue until trial if it was not authorized by him at the outset.

28.  Notwithstanding Mr Ngai’s and Miss Lee’s criticisms, I am satisfied, on balance of probabilities, that the present action was duly authorized by Mr Wong prior to its commencement.

29.  At the oral submission, Mr Ngai and Miss Lee cited the Malaysian case of Akitek Bersatu v Sempurna Cekap Sdn Bhd [2004] 6 AMR 266 in aid. There, the title of the plaintiff did not manifest itself that it has the legal personality to sue. No clarification was forthcoming from the counsel of the plaintiff. The learned judge held that if the party suing does not make it clear in the writ that he/it has the legal personality to sue, the court is entitled to rule that he/it has no legal personality to sue and thus no reasonable cause of action.

30.  In the present case, there is incontrovertible evidence that the plaintiff is the name of a business of which Mr Wong was its sole proprietor at the commencement of the action. Akitek Bersatu (supra) is clearly distinguishable and does not assist the 1^st and 2^nd defendants.

31.  Accordingly, the striking out summons must be dismissed.

Costs

32.  I respectfully echo the view of the Chief Justice in Kammy Town (supra) that an application of this nature should be taken out at the earliest opportunity. The inaction of the parties (I am referring to both the plaintiff and the 1^st and 2^nd defendants individually and collectively) to address the issue has led to a complete waste of the scheduled trial, which is highly unsatisfactory.

33.  I therefore make the following costs orders nisi that:

(a)  the 1^st and 2^nd defendants shall pay the plaintiff the costs of the striking out summons with certificate for one counsel, to be taxed if not agreed; and

(b)  the plaintiff and the 1^st and 2^nd defendants shall bear their own costs of the wasted trial.

34.  In the absence of any application for variation by summons within 14 days from the date of this Decision, the costs orders nisi shall become absolute.

The other summonses

35.  In the light of this Decision, the other 4 summonses (ie the 1^st amendment summons, the supplemental witness statements summonses and the 2^nd amendment summons) should, with the wisdom of the parties, be disposed of by way of consent.

36.  I therefore adjourn all those summonses sine die with liberty to restore.