XCHRX HECNY TRANSPORTATION (THAILAND) LTD. v. TAM SUET FONG, AMEDEO

No. A12507 of 1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. A12507 OF 1997

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REASONS FOR DECISION

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1. The Plaintiff has commenced proceedings against the Defendant, a former director and employee claiming reimbursement of moneys which it alleges the Defendant wrongfully, and dishonestly, took from its account.

2. The writ of summons was sent by registered post to what the Plaintiff company says is the last known address of the Defendant, being an address in Hong Kong. The evidence is that the document could not be received at that address but that a person, who turns out not to be the Defendant, attended at the Post Office and signed for the document as the Defendant's duly authorised agent. That took place on the 3rd December 1997.

3. On the 29th December 1997 the Plaintiff obtained judgment in default of appearance. Nearly five months later the Defendant took out a summons to set aside the Default Judgment. For some strange reason the Defendant's Solicitors gave a time estimate of three minutes. That was wholly unrealistic and accordingly it was adjourned on its original hearing date and disposed of on the 25th November when it was dismissed. The basis of the application by the Defendant was that the service was not regular i.e. the Defendant's last known address was in Thailand, not Hong Kong, the Plaintiff knew this, and that service ought to have been effected out of the jurisdiction. The Defendant appeals against the Master's decision.

4. The Defendant was employed by Hecny Transportation Limited, a Hong Kong company. She was seconded to the Plaintiff, a company trading in Thailand which is part of a group of which Hecny Transportation Limited is the holding company.

5. By letter of the 10th April 1996 she tendered her resignation from the Hong Kong holding company. She gave no address other than asking that a reply be sent via Mr. Hongkatong of the Thailand company whom she would contact for the result of her letter. It is to be noted that in her letter of resignation she claimed her salary up to the last day of her employment, and her 5% share of the profits for 1994 and 1995. No mention was made of any matter regarding any other salary from the Thailand company.

6. The Plaintiff sent a reply to her letter via Mr. Hongkatong. It included a request for her to come to Hong Kong "as soon as possible to clear some pending issues". Her telephone number and address were asked for. She made no reply to that letter in any form.

7. The Plaintiff sent her another letter on the 30th April. It was addressed to her c/o a company in Bangkok. It is not clear what the relationship was between the Defendant and that company. It may have been her new employer. She does not enlighten anybody in her affirmation as to that letter or whether she even received it.

8. Her affirmation, which has a Thailand address for her, refers in paragraph 9 to her living in Thailand most of the time and returning to Hong Kong infrequently. It does not say how long she had resided at the Thailand address, nor does it identify her Hong Kong address. She is clearly silent as to the address at which she could be contacted at any time. She merely makes a bland statement that the personnel of the Plaintiff "either know where I live or where I work". She says her mother and sister live at the place at which the writ was served, and then goes on to say - "To the best of my knowledge the writ which was delivered to my place was accepted by my uncle. [My underlining]. Only in late February 1998 in relation to the enforcement of the judgment did I become aware of this writ action. I was informed by my sister ..... only after she had become aware [of this action.]"

9. The Plaintiff's Solicitors subsequently filed an affirmation, exhibiting documents from the Post Office which showed that it had not been possible to deliver the document at the address but that someone, purportedly acting on behalf of the Defendant, in fact collected it from the Post Office and signed for it. The Defendant has not sought to deal with this in any other affirmation. There is no affirmation from her sister or her uncle to identify who it was who collected it and what became of it.

10. Although the Plaintiff's affirmation does not specifically deal with its knowledge of the Plaintiff's last known address, and the Solicitors' clerk's averment to that fact in his affirmation of service is without basis or knowledge, I am in fact satisfied that that address in Hong Kong was to the Plaintiff's knowledge her last known address. No other address has been put forward by her as her address in Hong Kong (or Thailand for that matter) at the material time.

11. By reason of the fact that a person, purportedly acting as her agent collected the registered package addressed to the Defendant, and that she refers to the address as "my place", that she returned to Hong Kong (albeit infrequently) after she left employment, i.e. after April 1996, no doubt to stay at "her place", the only reasonable conclusion to draw is that she stayed at that address as her last known address, and that there was no other address at which it would have been appropriate to serve the writ. Accordingly service complied with the requirements of order 10 rule 1(2)(a).

12. I now turn to the question of a Defence on its merits. The Defendant's contention is that she was entitled to the monies drawn by her as representing sums owed to her by virtue of her contract with the Plaintiff company. She says she had two contracts, the other being with the holding company in Hong Kong, under each of which she was to be separately remunerated.

13. The contract with the Hong Kong company is dated 28th February 1991. It appoints her General Manager of the Thailand company and sets out her financial remuneration, her basic salary being in US dollars. There is no mention of additional payment in Baht. It was effective from the 1st March 1991.

14. That is a certificate of employment in Thai for the purposes of securing the Defendant's employment in Thailand. It is dated 27th June 1991. It states the Defendant is to be employed by the Thailand company and the reasons for employing her. Her salary is stated to be 40,000.00 Baht monthly. Although that sum in Thai currency is less than the remuneration expressed in U.S. dollars, I have no doubt that the two documents refer to one and the same contract. The Plaintiff's affirmation is not wholly clear on this certificate but that is really a matter of expression. There is an explanation for the difference between the two figures which is eminently reasonable. I reject any argument that the Defendant was to receive two salaries as counter to common sense and there is only one conclusion to be drawn from the two documents.

15. It is to be noted that on 21st February 1995 she wrote to the Hong Kong company complaining about the delay in getting her salary, saying she had now opened a local bank account for that purpose. That is consistent with her being paid one salary. I have already referred to the fact that her letter of resignation from the Hong Kong company, makes no mention of any additional salary and by its contents clearly covers all aspects of remuneration she considers due to her by virtue of her employment.

16. I consider the Defence advanced by her is a sham intended to try and explain away the sums which she admits she has taken. The appeal is dismissed with costs to the Plaintiff.