LAU KWONG HING t/a RODS LEATHER CO v. LUK CHI KEUNG AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2231 OF 1995

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JUDGMENT

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1. This is an appeal by the 1st Defendant from an order of Master Kwan made on 25th June 1999 whereby she dismissed the Summons of the 1st Defendant dated 30th July 1997. That summons of 30th July 1997 sought the correction of the title by the deletion of two matters.

2. Firstly, it sought the deletion of the name of the 1st Defendant's wife, that is Wan Chun Yi. Secondly, it sought the deletion of the name of the firm Wai Sai Kai Leather Company and to substitute it by the name Wide World Company. The complaint of the 1st Defendant in this application has not been made the first time under this Summons, but has been the subject of at least two previous applications that came before the court.

3. First time this matter came before the court touching on this complaint was in relation to the Order 14 application which was heard and decided by Mr. Justice Keith on 19th December 1995. It is to be noted that although unconditional leave to defend was given to the 1st and 2nd Defendant, there was nothing there said as to suggest that the 1st Defendant's contentions now made are correct and accepted. Second time the matter came before the court was when the 2nd Defendant took out an application before Master Jones under Summons dated 9th May seeking the striking out of the action against her on the basis that she was neither a partner nor anything to do with the company "Wai Sai Kai Leather Company". The application was dismissed by Master Jones after hearing the 1st and 2nd Defendant.

4. In my judgment, Master Kwan was quite correct in dismissing the present Summons of the 1st Defendant. There are various reasons why the Master could be said to be correct. Firstly, I think it is trite law that it is for the Plaintiff to decide who to sue and not for the Defendant to force the Plaintiff to change the title of the persons or the parties to sue. Secondly, whether the proper person liable is the 2nd Defendant and whether the proper firm or trading name is Wai Sai Kai Leather Company or Wide World Company is a matter for the trial and not for an interlocutory application such as this. Thirdly, it is for the 2nd Defendant to make the application to have her name deleted from the action and not for the 1st Defendant to make application. Fourthly, the 2nd Defendant had already made the application which was dismissed. There are many other grounds covered in the skeleton argument of the Plaintiff to persuade the court that there is no merit in the 1st Defendant's application. I do not propose to go into them in any detail as it seems to me having regard to what I have said earlier it is unnecessary to do so.

5. In my view, there is no merit whatsoever in the Summons of the 1st Defendant. The appeal of the 1st Defendant must, therefore, be dismissed with costs. The Plaintiff's own costs is to be taxed in accordance with Legal Aid Regulations.