WOO HAI LING JIMMY t/a HAI LUNG CO v. LIU CHING YIK

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The plaintiff is a broker in the Chinese Gold and Silver Exchange Society and had the defendant as a client from 18th March 1981 onwards. In this action the plaintiff is claiming over $2 million by which he says the defendant's account is in debit. The action has come out of the running list and was warned for hearing this week. It had previously been warned for hearing, but was vacated because solicitors then acting for the defendant were unable to contact their client. Today the defendant has not appeared and I have heard the plaintiff's case in his absence. I have previously indicated my view of the obligations imposed by Order 34 upon plaintiff's solicitors in circumstances such as this, (see Lee Yee Yuen v. Tam Wing King and Ng Chek Lam Action No. 9964 of 1982) where I held there to be no obligation upon the plaintiff's solicitors to contact a defendant even if the defendant is acting in person when the case comes out of the running list, and that Order 34 applies to cases which are in the fixture list. Even so I would have been satisfied in this case that the plaintiff's solicitors have done all that they could be reasonably expected to do in the circumstances. They have attempted to get in touch with the defendant by telephone and have written to him at his last known address.

2. So Mr. Yang for the plaintiff proceeded in the absence of the defendant to attempt to prove his case which, in the event, he has succeeded in doing. It is not necessary for me to rehearse the facts of this case in any great detail. Suffice it to say that in June 1982 on two successive days the defendant instructed the plaintiff to sell a total of 3,000 tae1s of gold at the then prevailing prices. That left him in what, I believe, is called a short position. Contrary, no doubt to his expectation, the market did not fall after that date but, instead, recovered. In fact it was showing signs of recovery on the second of the two days I have mentioned. That recovery continued to the point when on 22nd July 1982 the price of gold per tae1 had risen by approximately $300 and consequently, as at that date, the defendant was showing a loss. He was not available to be contacted but a Mr. Wat who is accepted on the pleadings to be the agent of the defendant in these matters did instruct Miss Tong who was in charge of the defendant's account to buy 1,500 tae1s thus closing out half of the defendant's position which he did at $2,490. The price of gold continued to rise after that date and Miss Tong and her employer could see that the defendant's position was deteriorating and were becoming anxious not only on his account but on their own also. Previously he had had a very good record with them and they were prepared to extend to him perhaps more indulgence as to credit than they would to many another. One or two attempts were made to get instructions and then they went so far as to visit the defendant at his home and, very revealingly, as they knocked at the front door, he left by the back. So doing the only thing which was open to them, and doubtless they were entitled to do to protect their own position, on 29th November they bought sufficient tae1s in three lots at $3,406, $3,407 and $3,408 to close the defendant's position altogether. That left the defendant with a loss of $2,424,500 which the plaintiff is entitled to recover as it is the handling and commission fees less, of course, any interest which may have accrued to the defendant's benefit and any money which had been paid by him on account. Taking all those matters into consideration, I find that the plaintiff is entitled to judgment in the sum of $2,132,120.50 and there will be judgment in that amount with interest as claimed at 8% from the date when the position was closed, namely the 29th November 1982 until today, and hereafter at the rate currently prescribed until satisfaction of judgment with costs. The sum in Court of $128,008 I order to be paid out to the plaintiff's solicitors within 7 days with any interest accrued thereon.