XCHRX HUI SUET YING AND ANOTHER v. SHARP CORPORATION AND ANOTHER

HCPI 1269/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.1269 OF 1997

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R U L I N G

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1. I have before me two summonses issued by the 1st defendant dated 6 January 1999 and 3 March 1999. Both summonses can be dealt with together and they asked for the following orders :

a) setting aside the original writ since no leave was given to the plaintiffs under Order 6, rule 7(1) of the Rules of High Court before the writ was issued;

b) discharging the order of Master Cannon made on 9 November 1998, granting the plaintiffs leave to serve the first concurrent writ on the 1st defendant out of jurisdiction;

c) an order that the first concurrent writ was not duly served out of jurisdiction upon the 1st defendant;

d) discharging the order of Master Kwan made on 3 December 1998 that the first concurrent writ be renewed for three months from the date of its expiry for service; and

e) an order that the second concurrent writ was not duly served on the 1st defendant within the validity of the writ.

2. In the present case the plaintiffs claim against the 1st and 2nd defendants for damages for fatal injuries sustained by Hui Cheung, the deceased, as well as for loss and damage caused to the 3rd Floor of No.27 Nam Cheong Street, Shamshuipo, Kowloon as a result of a fire which took place on 11 December 1991 at those premises. The claim is based on negligence, or alternatively breach of contract, and further alternatively breach of statutory duties on the part of the 1st and 2nd defendants.

3. In a nutshell, the facts upon which the plaintiffs bring this claim against the defendants is that in June 1991, the family of the plaintiffs rented a television set from Thorn EMI which was installed at the plaintiffs' home at the 3rd Floor, 27 Nam Cheong Street, Kowloon, Hong Kong. On 11 December 1991, a fire occurred at these premises resulting in property damage to the premises as well as the death of Hui Cheung, deceased, a member of the plaintiffs' family. An Incident Report prepared by the Fire Services Department dated 17 December 1991 stated that the believed cause of the fire was "heat/sparks from electric short circuit ignited insulating material of electric wiring inside a TV set and in turn set fire to nearby combustibles". The TV set in question was the one rented from Thorn EMI. It is also the plaintiffs' case that this TV set was a Sharp TV set manufactured by the 1st and/or the 2nd defendant in the present case.

4. The plaintiffs further rely on an expert report by Dr Paul Kwok from the Department of Electrical and Electronic Engineering of the University of Hong Kong in which it is stated that the possible causes of the fire in the TV set was either a defective component or a defective soldering joint. In either case, when the TV is set on fire, the heat will cause the Cathode Ray Tube which is made of glass inside the TV to implode thus scattering debris to nearby furniture igniting combustible materials.

5. On 9 December 1994 the plaintiffs in the present case had issued a writ against Thorn EMI in HCA No.PI 129 of 1994 for damages ("the first action") on the basis of negligence, breach of contract and/or breach of statutory duty by Thorn EMI. An application by the plaintiffs to join Sharp-Roxy (Hong Kong) Limited in the first action was initially allowed by the Master on 9 December 1997, but that order was later set aside by the same Master on 12 December 1997 upon Sharp-Roxy's application with an order that the application to join Sharp-Roxy be reheard. The plaintiffs in the first action, however, did not see fit to pursue that application of joining Sharp-Roxy any further in the first action. Instead the present proceedings were issued against the 1st and 2nd defendants on 10 December 1997.

6. The 1st defendant being a corporation with its registered office in Japan, the plaintiffs applied for and obtained an order from Master Cannon on 9 November 1998 for leave to issue a concurrent writ ("the first concurrent writ"), to be served on the 1st defendant out of jurisdiction under Order 11 of the Rules of High Court. Pursuant to that order of Master Cannon, the first concurrent writ was issued on 11 November 1998. On 3 December 1998, the plaintiff sent to the 1st defendant the first concurrent writ by means of speed post as well as by courier, namely, Federal Express. This was done purportedly by way of service of the first concurrent writ upon the 1st defendant out of jurisdiction. On the same day, namely, 3 December 1998, the plaintiff applied for ex-parte and obtained an order from Master Kwan for the renewal of the first concurrent writ for a further three months. On the following day, 4 December 1998, the second concurrent writ was issued pursuant to Master Kwan's order. On 7 December 1998, the first concurrent writ was again served on the 1st defendant, this time by personal delivery to the 1st defendant by a Japanese lawyer. On 24 December 1998, the 1st defendant acknowledged service of the first concurrent writ upon it. On 26 January 1999, the second concurrent writ was served on the 1st defendant through the Minister of Foreign Affairs in Japan. On 22 February 1999, the 1st defendant acknowledged service of the second concurrent writ upon it.

7. The above matters form the background leading up to the present application by the 1st defendant in this matter.

Setting aside the original writ

8. This first point taken by the 1st defendant is based on the wording of Order 6, rule 7(1) of the Rules of the High Court which reads :

"No writ which is to be served out of the jurisdiction shall be issued without the leave of the court"

9. Based on this wording, the 1st defendant submits that since the original writ (as opposed to the concurrent writs) was issued without the leave of the court, therefore it was never validly issued.

10. The plaintiffs on the other hand submit that Order 6, rule 7(1) refers not to the original writ but to the concurrent writs for those are the documents which are to be served out of jurisdiction. In support of that submission, Mr Harris, who appears for the plaintiffs, referred me to the 1999 edition of The Supreme Court Practice in England and Wales in which Order 6, rule 7(1) contains the additional words "for such service" after the word "issued". He submits that the three additional words in the English rules, which do not appear in the Hong Kong rules, is not because Hong Kong law is different from that in England but because the Hong Kong rules follow the wording of an older version of the English Rules of Supreme Court. In this respect, he has referred me to an extract from the English Annual Practice for 1962, Order 2, rule 4, the predecessor of the present Rules of High Court in Hong Kong which reads :

"No writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of the Court or a Judge."

The footnote to that rule states "Usually this leave is given by the Master if and when leave is given for service out of the jurisdiction".

11. I accept the submission of the plaintiffs as indeed I know of no practice in Hong Kong where the original writ, as opposed to a concurrent writ, has to be issued with leave of the court where it is intended to be served out of the jurisdiction. The practice in Hong Kong has always been that leave is required only for the issue of a concurrent writ which is to be served out of jurisdiction.

12. Accordingly, this point taken by the 1st defendant fails.

Discharging the order of Master Cannon dated 9 November 1998

13. In this respect, the 1st defendant seeks to argue three points. Firstly, it is argued that under Order 11, rule 1(f), service of a writ out of jurisdiction is permissible with the leave of the court if the action begun by writ and the claim is founded on a tort and the damage was sustained or resulted from an act committed within the jurisdiction. It is submitted by the 1st defendant that since the plaintiffs' claim is based on the fact that the 1st defendant was the manufacturer of the TV set in question and that the accident happened because of the faulty manufacture by Sharp Corporation of that TV set, then the plaintiffs have failed to show that the 1st defendant committed an act within the jurisdiction giving rise to such damage. Secondly, it is argued that the plaintiffs have failed to show even a good arguable case that the TV set in question was manufactured by the 1st defendant.

14. Dealing with these two arguments first, I do not accept either of them put forward by the 1st defendant for the following reasons. In my view it is sufficient upon the wording of Order 11, rule 1(f) for the plaintiffs to show that the damage was sustained within the jurisdiction. In the present case there can be no dispute that upon the plaintiffs' pleaded case, damage was sustained at the Nam Cheong Street premises both to property as well as to life. That, in my view, is quite sufficient for the plaintiffs to bring this case and for an application to be made under Order 11, rule 1(f) of the Rules of High Court.

15. In so far as the second point is concerned, the plaintiffs rely on answers to interrogatories administered by them against the defendant in the first action. The answers to those interrogatories contained in an affirmation deposed to by Lam Kwok Cheung, a person authorized by Thorn EMI to make such deposition, states that the TV in question was a Sharp television with a model number of C-5407WSID and a serial number of 311168. It is not for me to say at this stage what weight ought to be given to this piece of evidence. For present purposes, it is sufficient that there is this piece of evidence which the plaintiffs seek to rely on. In my view, the plaintiffs have made out a good arguable case against the 1st defendant.

16. A third point taken by the 1st defendant was that there had been a long and inordinate delay before the plaintiffs served the writ out of jurisdiction. It was pointed out that the accident happened eight years ago. Legal Aid was granted five years ago. The first action was commenced almost at the end of the limitation period for the fatal claim. Statement of Claim in the first action was served over one year after the issue of the writ in the first action. Expert witness on liability was only instructed by the Legal Aid 1 1/2 years after the issue of the proceedings in the first action. The expert report was only available one year after instructions had been given. Initially, the plaintiffs only applied to join Sharp-Roxy (and not the 1st defendant) in the first action after receiving the expert report, by which time the limitation period for the property damage claim was only three days away from the expiry of the limitation period. The writ in the present action was issued one day before the limitation period expired for the property damage claim, and three years after the fatal claim had been time-barred. Lastly, when the first concurrent writ in the present action was issued, the accident was already seven years old.

17. It is not disputed by the plaintiffs that there has been some delay in this case. The explanation put forward by the plaintiffs for this delay is contained in the second affirmation of Tam Lai Wan. She explains that when the plaintiffs were granted Legal Aid in November 1994, they were advised that damages recoverable, if any, as a result of the fire accident would not be substantial. (Indeed the total claim of the plaintiffs does not exceed $300,000.) For this reason, numerous attempts had been made all this time at an amicable settlement. For present purposes, it is sufficient to say that negotiations have gone on between the solicitors acting for the plaintiffs and solicitors acting for the defendant in the first action as well as the solicitors acting for the 1st and 2nd defendants in the present action. These negotiations by correspondence started in November 1994 and has continued right up to September 1998. However, unfortunately, nothing has come of these negotiations between solicitors.

18. It is accepted by both sides that the court has a discretion whether or not to grant leave for service out of jurisdiction. In exercising that discretion, delay would be one of the factors which the court would take into consideration. However, there is nothing here to suggest that the Master was not aware of or had not considered the delay in this case, or that there was a wrongful exercise of discretion by the Master. This is particularly so where there is a reasonable explanation put forward by the plaintiffs for such delay.

19. In the circumstances, I am of the view that the Master's order granting leave for service out of the jurisdiction was appropriately granted.

Setting aside the service of the first concurrent writ

20. The first concurrent writ was served on the 1st defendant by (1) personal delivery by a Japanese lawyer, (2) delivery by courier, namely Federal Express, and (3) by Speed Post.

21. The 1st defendant relies upon Order 11, rule 5(2) of the Rules of High Court which provides that nothing in this rule shall authorize or require the doing of anything in a country in which service is to be effected which is contrary to the law of that country. The 1st defendant has adduced evidence from a legal expert, one Mr Masuda, a Japanese lawyer in the employ of the 1st defendant. Mr Masuda states that only the court clerk of the competent court may serve a complaint. Mr Masuda further gives his expert opinion that personal delivery by the plaintiffs through their agents, namely a Japanese lawyer or courier, is not a recognised means of service in Japan. He also states that service by post is not a recognised way of service in Japan. Based on his opinion, the 1st defendant says that, therefore, the plaintiffs have failed to properly serve the first concurrent writ upon the 1st defendant.

22. At the same time, the 1st defendant accepts that Japan is a party to the Hague Convention and that service of Hong Kong proceedings abroad upon a foreign defendant in a foreign country can be undertaken in accordance with the Hague Convention. The 1st defendant also accepts that whilst Japan has not ratified article 10(b) and 10(c) of the Hague Convention, however, it has raised no objection to article 10(a). Article 10(a) stipulates that provided the State of destination does not object, the Convention shall not interfere with the freedom to send judicial documents, by post channels, directly to persons abroad. Once that is accepted by the 1st defendant, I take the view that the 1st defendant has failed to show that the 1st defendant has not been properly served with the first concurrent writ pursuant to article 10(a) of the Hague Convention. That is so despite the opinion expressed by Mr Masuda.

Discharging the order to renew the concurrent writ

23. Having come to the view that the first concurrent writ was validly served on the 1st defendant, issues relating to the validity of the second concurrent writ should not arise. However, I should also deal with this aspect of the case in the event that I should be wrong on the views that I have taken in relation to the service of the first concurrent writ.

24. The objection taken by the 1st defendant in relation to the renewal of the concurrent writ by the Master goes back to the point of delay. The 1st defendant effectively says that the plaintiffs had waited for 11 months after issuing the writ in the present action before applying for leave to serve the first concurrent writ upon the 1st defendant out of jurisdiction and in so doing, the plaintiffs have failed to show any good reason why the validity should be renewed.

25. I take the view as I did earlier that having shown a good reason for this delay, namely, that there was protracted negotiations going on in an attempt to settle this case, it was not wrong of the Master to have granted the plaintiffs' application for renewal for a further three months of the concurrent writ. Moreover, I have not been informed of any prejudice on the part of the 1st defendant as a result of such renewal of the concurrent writ by the Master.

Setting aside service of the second concurrent writ

26. Initially two points were taken by the 1st defendant in this respect. However, the first of the two points, namely, that the second concurrent writ was not sealed, was not pursued by the 1st defendant at the hearing of this matter. The remaining point which was pursued by the 1st defendant was that the second concurrent writ was not properly stamped under Order 6, rule 8(3) of the Rules of High Court. That rule requires that before a writ, the validity of which has been extended, is served, it must be marked with an official stamp showing the period for which the validity of the writ has been so extended. It was pointed out by Mr Gidwani who appears for the 1st defendant that although there was an official stamp on the second concurrent writ showing that it has been extended, what was not shown on that stamp was the period for which the validity of the writ has been so extended. In other words, there is no date on that stamp to show for what period of time the second concurrent writ was extended.

27. There can be little doubt but that the official stamp which appears on the second concurrent writ showing that it has been extended was a stamp chopped onto the document by the Registry of the court. Admittedly somebody in the Registry had overlooked the fact that the second concurrent writ, having been renewed for a three-month period, that stamp ought to have contained a date showing the period for which it has been extended. That no such date appears on the stamp is a failure of the court Registry and not a matter which is within the power of the plaintiffs. As such, it would be quite wrong to penalize the plaintiffs for it.

Conclusion

28. For the reasons given above, the two summonses of the 1st defendant dated 6 January 1999 and 3 March 1999 are dismissed with costs.