FU LOK MAN JAMES t/a LOKIE LEATHERWARE MANUFACTURING CO. v. CHIEF BAILIFF OF THE HIGH COURT

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)

----------------------

----------------------

J U D G M E N T

----------------------

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 Action was against the holder of the office. He said :-

"There can be no doubt in my mind that in naming the Defendant as 'Chief Bailiff of the High Court', in seeking reliance on Section 54 of the Interpretation and General Clauses Ordinance Cap.1, and in the light of the argument advanced by Mr. Chiu as to the identity of the Defendant sued in this case, the Plaintiff was suing the office of the Chief Bailiff of the High Court rather than any particular individual holding that office at any particular time."

18. For the reasons advanced by the Judge in the Court below, which have not been challenged in this Court, proceedings could not be brought against the "office" of the Chief Bailiff. Furthermore, it is accepted that by reason of the provisions of section 4(5) of the Crown Proceedings Ordinance, Cap. 300, proceedings could not have been brought against the Attorney General in respect of any act committed by a bailiff in the execution of a writ of Fi. Fa.

19. In this Court, Mr. Chiu, on behalf of the Plaintiff has made clear that the Plaintiff seeks relief against the person who has been given the title "Chief Bailiff" in his personal capacity.

20. The problem still remains because of the naming of the Defendant as it has been done as to who or what is the Defendant. There is no such person and no such office recognised in law as the Chief Bailiff. Section 38A of the High Court Ordinance provides :-

"There shall be a bailiff of the High Court together with such assistant bailiffs as may be appointed, to effect, in accordance with rules of court, orders for committal and for service and execution of the process of the Court."

21. There are apparently two persons who are commonly referred to as "Chief Bailiff". At the date of the issue of the writ, one was a Mr. Wong Ying Toa and the other a Mr. Chan. One was apparently concerned with operations. The other was apparently concerned with admiralty and administrative matters. This designation as Chief Bailiff is one which has been effected without any statutory authority. When taxed by this Court as to whether relief was being sought against both Mr. Wong and Mr. Chan, Counsel made clear that no relief was to be sought against Mr. Chan of whose existence the Plaintiff was unaware until the trial of the Action. He maintained, however, that the Plaintiff sought to continue the proceedings against Mr. Wong Ying Toa personally. He had been given the title "Chief Bailiff" and that was known to the Plaintiff throughout.

22. Counsel for the Plaintiff acknowledged the fact that the name of the Defendant could not simply be amended on the basis of a misnomer because there was no such person as the "Chief Bailiff". Instead, Counsel sought to apply to amend the proceedings to bring them against Mr. Wong Ying Toa personally. Our attention was drawn by Mr. Mok to various parts of the transcript of the trial where the difficulties in relation to the naming of the Defendant had been drawn to the attention of the Court. It is quite clear that throughout the hearing, Counsel for the Plaintiff was prevaricating as to whether the claim was brought against the office or the person. Even on the 10th day of the hearing (the last day), Counsel for the Defendant submitted to the Judge below that the proceedings must be taken to have been brought against the office. There was no demur on behalf of the Plaintiff in that respect. In those circumstances, it seemed to us impossible to allow an amendment to the title of these proceedings which would, in effect, bring a potential liability to a person who had not hitherto appreciated the fact that he would be personally liable. We therefore refused that application.

23. Reference was made in passing to a decision of Rhind, J. in Fung Man Ying Doris v. Chief Bailiff of the Supreme Court of Hong Kong [1980] H.K.C. 454. In that case, the Judge had likewise held the Action against a person entitled the Chief Bailiff to be misconceived. The Judge however went on to indicate obiter, that the Action could have been brought against the Attorney General. It would seem that his attention had not been drawn to the relevant provisions of the Ordinance.

24. Whilst in the light of the foregoing, it would not strictly be necessary to consider the appeal further, for completeness, it can be stated that this appeal would have to be rejected for the following further reasons.

Action not maintainable against Mr. Wong personally

25. The basis upon which the Plaintiff seeks to make Mr. Wong Ying Toa personally liable is that it is said that he is vicariously liable for all wrongs committed by Mr. Tsui. In essence, the Plaintiff's argument is that the law imposes a duty on the Bailiff to execute writs of Fi. Fa. Mr. Wong alone is the Bailiff and although the legislature has provided for people to assist the Bailiff in the course of his duty, the Bailiff is vicariously liable for the acts of those who would assist him if they commit a tort in the course of execution of a writ of Fi. Fa. directed to the Bailiff. For these purposes, an Assistant Bailiff is one who assists the Bailiff.

26. For the purposes of his argument, Mr. Chui developed a detailed exposition of the way in which writs were executed in England. He examined in some detail the historical and present relationship between the Sheriff and the Bailiff in that jurisdiction. He then proceeded to examine in considerable detail the history in Hong Kong including the existence previously of Sheriff and the various changes in the law relating to Bailiffs.

27. Without any disrespect to Mr. Chiu's argument or any failure to acknowledge the industry of his research, I regret to say that I found that part of his argument to be no more than of historical interest. The present position of Bailiffs in Hong Kong is governed by statute. Unsatisfactory though the provisions and the application of those provisions may be, save in one respect, I find little assistance in the interpretation of the provisions from the lengthy historical analysis.

28. Section 38A of the High Court Ordinance which I have set out above provides for the appointment of a Bailiff and Assistant Bailiffs. It does not specify by whom that appointment should be made and there probably lies a lacuna. The section provides that there shall be a Bailiff. It does not provide that there should be one or more Bailiffs. Neither does it provide that there should be a Chief Bailiff. Mr. Mok, who was instructed by the Secretary for Justice to appear on behalf of the Defendant, whoever that might be, was not able to assist as to who constituted the Bailiff, although he did draw our attention to the fact that there was an officer in addition to those who are termed "Chief Bailiff" who is designated "Chief Executive Officer".

29. Mr. Chiu relies for support for the proposition that Mr. Wong is vicariously liable for Mr. Tsui's acts on the proposition that the task of executing the writ of Fi. Fa. falls upon the Bailiff, namely Mr. Wong and that Mr. Tsui, amongst others no doubt, was merely assisting Mr. Wong and was carrying out Mr. Wong's duties. He relied upon a number of cases and in particular upon the speech of Lord Wilberforce in Launchbury v. Morgans [1973] A.C. 127 at p. 135 where he said :-

"I accept entirely that 'agency' in contexts such as these is merely a concept, the meaning and purpose of which is to say 'is vicariously liable,' and that either expression reflects a judgment of value - respondeat superior is the law saying that the owner ought to pay. It is this imperative which the common law has endeavoured to work out through the cases. The owner ought to pay, it says, because he has authorised the act, or requested it, or because the actor is carrying out a task or duty delegated, or because he is in control of the actor's conduct. He ought not to pay (on accepted rules) if he has no control over the actor, has not authorised or requested the act, or if the actor is acting wholly for his own purposes. These rules have stood the test of time remarkably well. They provide, if there is nothing more, a complete answer to the respondents' claim against the appellant."

That was a case where the House of Lords allowed the appeal of a widow whose husband had used a car registered in her name and had allowed another to drive it whilst he, the husband, was drunk. The wife was held not to be responsible for the negligent driving of the driver permitted by the husband.

30. A more direct example of liability incurred by a person charged with a statutory duty is to be found in the case of Ministry of Housing and Local Government v. Sharp & another [1970] 2 Q.B. 223. In that case, the Ministry had brought an action against the local land charges registrar on the basis that he was responsible for the failure of a clerk to carry out the statutory duty imposed upon the registrar. The majority of the Court of Appeal held that the Action against the registrar failed because the statutory duty was not an absolute duty and that the Action had been brought upon the basis that the duty was absolute. But in relation to the point on vicarious liability, Lord Denning M.R. at p.266 said :-

"He (the registrar) must answer for the mistakes of the clerk and make compensation for the loss. He is a public officer and comes within the settled principle of English law that, when an official duty is laid on a public officer, by statute or by common law, then he is personally responsible for seeing that the duty is carried out. He may, and often does, get a clerk or minor official, to do the duty for him, but, if so, he is answerable for the transgression of the subordinate : see Sanderson v. Baker, where Blackstone J. states the position of the sheriff. Sometimes it is an absolute duty, in which case he must see that it is performed absolutely : see the instances given by Holt C.J. in Lane v. Cotton. At other times it is only a duty to use due diligence, in which case he must see that due diligence is used : see the celebrated judgment of Best C.J. in Henly v. Lyme Corpn. But, in any event, if the duty is broken, and injury done thereby to one of the public, then the public officer is answerable."

31. It is therefore necessary to examine the relationship between Mr. Wong and Mr. Tsui. Mr. Chiu sought to argue that section 38A of the High Court Ordinance was remedial in nature in that it provided a statutory basis for the appointment of a Bailiff and Assistant Bailiffs. He drew attention to the fact that in the period from the coming into force of the Supreme Court Ordinance in 1975 until the Supreme Court (Amendment) Ordinance 1987 which introduced section 38A, there was no statutory basis for the appointment of a Bailiff or Assistant Bailiff. That is clearly so.

32. In this respect, the position immediately prior to the coming into force of the Supreme Court Ordinance 1975 was that Bailiffs were simply under the control of the Registrar who was empowered to direct the process of the Court to be executed by them as he should think fit : see section 31, Supreme Court Ordinance 1972 edition. There was no provision for the appointment of the Bailiff as such. The execution of the Court's process prior to 1987 was therefore in the control of the Registrar and the Bailiffs acted under his direction. That situation changed in 1987 whereby the Bailiffs were appointed by statute to effect service of the process of the Court in accordance with the rules of Court.

33. It is thus the Ordinance to which regard must be had. Section 38A clearly states that both a Bailiff and Assistant Bailiffs may be appointed and their function is to effect in accordance with the rules of the Court, inter alia, execution of the process of the Court.

34. When the rules of Court are examined, one sees, first of all, that Bailiff is defined as meaning "a bailiff of the Court and any person lawfully authorised to execute the process of the Court". Taking that in conjunction with section 38A, it would imply that for the purposes of the rules of Court, Bailiff means both the Bailiff and the Assistant Bailiffs. Our attention was drawn to Order 54 rule 12 which specifies that the writ of Fi. Fa. must be in the form which forms part of the rules. That form, for example, Form 53 commences "To the Bailiff ..." as Mr. Mok pointed out, it would be administratively inconvenient, to say the least, if it was a requirement that the name of the particular Bailiff (bearing in mind that for the purposes of the rules, Bailiff includes Assistant Bailiff) had to be named. I do not consider that the form requires that. A comparison with other forms shows that where writs or other documents are addressed to specific people who are required to be named, the form shows that.

35. In summary, it is clear on a reading of section 38A and the rules that the statute envisages that execution of the process of the Court may be effected both by the Bailiff and by Assistant Bailiffs. It is therefore not the statutory duty of the Bailiff alone, whoever he may be, to execute processes of the Court but that may be done by any of those individuals.

36. Whether Mr. Tsui is in reality a Bailiff or an Assistant Bailiff in the terms of section 38A probably does not matter. I incline to the view that he is probably an Assistant Bailiff but I am not persuaded that the duty of execution of the process of the Court falls only upon the Bailiff, as that expression is used in section 38A, and in those circumstances, I cannot see how it can be said that Mr. Wong, or even Mr. Chan or anybody else could be responsible for the conduct of Mr. Tsui.

Further matters

37. It would go without saying that if a Court were to perceive that an injustice had been perpetrated by somebody, holding the office of a Bailiff, it would not allow an action to founder simply for the misnomer or the want of naming the correct party. In this case, however, I do not consider that the circumstances in which an Action would lie against the Bailiff exist. As I have referred to already, an Action will not lie in respect of the execution of a writ of Fi. Fa. if the person executing it had acted honestly unless the person against whom it had been executed it has suffered any real grievance. As Megaw L.J. said at p.1024 of the Neumann v. Bakeaway case :-

"I am prepared to assume for the purposes of this appeal that it would constitute 'a substantial grievance,' within those words as they have been used in the number of cases which have been cited to us, if there were material on which it could be said to be fairly arguable that the sheriff, having, without any misconduct or negligence on his part, seized and sold goods which did not in fact belong to the judgment debtor, has sold them at a price which was substantially less than their true value at the date when they were thus sold." (emphasis added)

38. In this case, however, the loss which was caused was not caused by the tort of conversion or detinue by Mr. Tsui. Given the intervening public holidays, the Bailiff brought the matter, by way of interpleader, before the Court as soon as possible after the 7-day period had expired. The loss which was suffered did not flow from anything that the Bailiff did. Were it not for Court process of the interpleader and the presence of the landlord's claim to the goods, those goods would have been returned to the Plaintiff on the 2nd January.

39. The Bailiff was clearly acting properly to seize the goods on the 19th December. The goods were in the premises of Santini Fashions for the purposes of sale. The Plaintiff could not establish his title to the goods either on the 19th December or, as the Judge held, on the 20th December. The Bailiff was thus put in an invidious position. If he failed to seize the goods, he might well have been subject to complaint by the landlord. He took the only appropriate course open to him, namely to seize the goods and give the Plaintiff a chance to show his title. Rightly not being satisfied with the Plaintiff's demonstration as to title, he left the matter to the Court to decide as a matter of judicial process.

40. The consent order in itself seems to me to make it difficult for the Plaintiff to complain about the amount recovered as a result of the auction. A reserve price could have been included in the order. Whereas Mr. Chiu argues that the submission to the consent order was a step in the Plaintiff mitigating the damage, there were clearly other steps which could have been taken. The Plaintiff could, no doubt, have secured an order that the goods be released had he given adequate security. Even if that were not possible as a matter of practicality, the Court could have been asked for the goods to be released upon the Plaintiff's undertaking to account for the proceeds of sale. The Plaintiff might even have asked the Court to demand a cross undertaking as to damages from the landlord if it were not prepared to agree to having the goods released.

41. Whatever course might have been taken, it seems to me that the loss which the Plaintiff alleges is not a matter which could, in any event, have been recovered from Mr. Tsui as damages for the tort of conversion or detinue since that loss had not been shown to have occurred by 2nd January 1996 when the tort of detinue ceased. Neither was it a loss which flowed from the conversion, it was a loss which flowed as a result of the outcome of the Court proceedings agreed in part to by the Plaintiff.

42. As matter of completeness, I would mention that the Judge below considered that the Plaintiff had not suffered damage because he should have accepted the offer of the 18th January to have the goods returned. Whilst the Plaintiff may now well regret not having conceded what must, after this extensive litigation, seem to be comparatively paltry costs, he was justified in law in rejecting that offer since it did not include an offer as to the payment of costs to which he was ultimately shown to be entitled. Mr. Chiu also argued that the offer could have been rejected on the basis that it did not include an award as to damages. Since Mr. Chiu now concedes that an interpleader claimant cannot claim damages against the opposite party, that point, in my view, is not a good one. It may however be said that the time given for acceptance of the offer was too short for adequate consideration.

43. For these reasons, I would dismiss this appeal.

Godfrey, J.A. :

44. I agree with the conclusion of Rogers, J.A. that this appeal should be dismissed.

45. I am, for my part, prepared to assume, but only for the purposes of this appeal, that the plaintiff really has, as he claims to have, a substantial grievance here arising out of the sale of his goods "at a price which was substantially less than their true value at the date when they were thus sold" : cp. Neumann v. Bakeaway Ltd. [1983] 1 WLR 1008, per Megaw LJ at p.1024. I am further prepared to assume that on this footing Tsui Tung Sing Stephen, the bailiff (or assistant bailiff; it does not matter which) who executed the writ of fi. fa. in this case, might be liable to the plaintiff in conversion or detinue in respect of the loss caused by Mr. Tsui's acts (although it is arguable whether it was in fact those acts which caused the loss).

46. But the plaintiff's present action is not an action against Mr. Tsui. The plaintiff does not suggest that it is; indeed, his counsel mentioned to us the possibility of the plaintiff's commencing such an action later if his appeal in this one fails. Accordingly, I express no view as to the merits of any such action. As I have already indicated, the assumptions I make are assumptions which I am prepared to make only for the purposes of this appeal.

47. Against whom then was this present action brought, if not against Mr. Tsui? It was brought, says the plaintiff, against the "Chief Bailiff of Supreme Court"; and indeed that is the description of the defendant to be found in the writ of summons (I should add, though nothing turns on it, that by amendment made after 1 July 1997 the word "High" was substituted for "Supreme").

48. But that gives rise to the question : Was the action an action brought against the Crown for a tort committed by the Chief, or any, bailiff; in his official capacity; or was it an action brought against the Chief, or any, bailiff as an individual in his personal capacity?

49. If this was an action brought against the Crown for a tort committed by the Chief, or any, bailiff it was doomed to failure, for section 4(5) of the Crown Proceedings Ordinance (Cap. 300) provides among other things that no proceedings shall lie against the Crown in tort in respect of anything done by any person while discharging any responsibilities which he has in connection with the execution of judicial process. This reflects the position in England and Wales, where it has long been recognised (as Mr. Simon Chiu for the plaintiff was able to demonstrate before us) that those responsible for the execution of judicial process are personally liable for their wrongful acts to the exclusion of the Crown. This distinguishes them from officers, or other officers, in the public service for whose wrongful acts the Crown is liable. It appears that in Fung Man Ying Doris v. Chief Bailiff of the Supreme Court [1980] HKC 454 section 4(5) was not brought to the attention of Rhind J. and that his suggestion (at 459D) that the plaintiff in that case should have sought redress against the Crown for the activities of its bailiffs was incorrect. This error, however, does not detract from the judge's observation (at 459C), with which I entirely agree, that the proceedings in that case "should never have been instituted against the office of Chief Bailiff. While it could be in order, in appropriate circumstances, to bring an action against a named bailiff, an action against a persona entitled 'the Chief Bailiff' is misconceived." (I may add that in the only other local case cited to us, Tyrone Crystal Ltd. v. European Asian Bank & Anor. [1985] 2 HKC 762, the "Anor" was in fact a named bailiff, one Chui Yan Tak, who had been the executing bailiff.)

50. Before us, Mr. Chiu attempted to establish that (contrary to what was, apparently, the judge's understanding in the present case) the plaintiff's action was brought, not as an action against the Crown, but as an action against an individual. But Mr. Chiu got into insuperable difficulties in trying to identify who that individual was, because in fact there is no office of "Chief Bailiff", although there are two bailiffs who, in different capacities ("Operations" and "Admiralty and Administration" respectively) act as "Chief Bailiff" and so describe themselves. At one point in his argument, Mr. Chiu suggested that Wong Ying Toa, the "Chief Bailiff (Operations)", and his colleague, one Chan, the "Chief Bailiff (Administration)", were both being sued by the plaintiff. Although, after some pressure from the Bench, he eventually withdrew this obviously absurd suggestion, the mere fact that the suggestion could seriously be made demonstrates the impossibility of identifying the true defendant by reference to the writ. Mr. Chiu pointed out that, as were the facts, Mr. Wong had been served personally with the writ and that an appearance on behalf of "the Chief Bailiff of the Supreme Court" had been entered. But, in my judgment, these facts do not cure the defect in the writ, which does not identify the individual (if it was an individual) who was being sued. A failure adequately to identify, as distinct from a mere failure correctly to name, the defendant to an action is a fatal defect. It cannot be cured by amendment.

51. It is a great pity that the plaintiff has never yet properly faced up to the difficulties facing his action. Even if he had identified and sued Mr. Wong personally, he would, in my judgment, have had difficulty in succeeding against Mr. Wong unless he could have proved, not only that the acts of Mr. Tsui were wrongful, but that Mr. Wong had procured or authorised those wrongful acts. It does not appear from the material before us that Mr. Wong had done so, still less that he personally had committed any wrongful act at all. There is no ground on which a bailiff (even if he is styled a "Chief Bailiff") can properly be held liable as such for the wrongful acts of another bailiff (even if he is styled an "assistant bailiff").

52. This action was misconceived and should have been struck out long ago for want of a proper defendant.

53. As I have said, like Rogers J.A., I too would dismiss the plaintiff's appeal.

Mortimer, V-P :

54. For the reasons given by Rogers JA, I would also dismiss this appeal.

55. The consequence is that the appeal is dismissed with an order nisi that the appellant should pay the respondent costs to be taxed if not agreed.