XCHRX O & T CONTRACTING CO. LTD. v. HO KIN WAI

HCA8832/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CASE NO. 8832 OF 1998

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REASONS FOR DECISION

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1. I don't need to hear from Mr HO, who is acting in person. This is an appeal against a decision of Master POON, setting aside the default judgment granted in favour of the plaintiff. The only issue involved in this matter is whether the writ had been regularly served. On the plaintiff's case, service was effected by post, by registered post, on 2 June of 1998. It subsequently transpired that the writ was returned unclaimed, although there seems to be no dispute that the writ was actually sent to the address of Mr HO at the material time, a place in Kweilin Street.

2. The writ having been returned unclaimed, the plaintiff had not sought direction from the court in accordance with the rules of the High Court. The plaintiff, however, seeks to argue that in considering the question of whether the writ had been regularly served, the court should also take into consideration an incident which took place on 10 June 1998.

3. The background of this case indicates that Mr HO worked for the plaintiff, and in this particular case, it is the plaintiff's contention that Mr HO was in breach of certain fiduciary duty as a director of the plaintiff. But Mr HO, however, also commenced proceedings in the Labour Tribunal against the plaintiff. There is no dispute that there was a hearing in connection with that labour dispute on 10 June 1998, and it appears that during that Labour Tribunal hearings, a copy of the writ was shown by the presiding officer to Mr HO and he was asked whether that document had been served on him. According to the record kept by the presiding officer, the response by Mr HO was that he had not received it.

4. The exact circumstances in which this episode took place is perhaps impossible for this court, at this stage, to make any clear findings on. The plaintiff, through a Mr AU, suggested a copy of the writ was actually given to him by the presiding officer, and he was asked to confirm the address shown on the writ as his correspondence address. Mr HO, on the other hand, seems to suggest that he was just asked a question without having the chance of actually studying the document that was shown to him.

5. The incident, before the presiding officer in the Labour Tribunal, was never originally relied on as a valid service to obtain the default judgment. For obvious reasons, because at the time when default judgment was applied for, the plaintiff did not know that the writ would be returned unclaimed and, hence, in the affirmation of Mr HO filed in support of the application for default, no reference was made to this alleged service at the Labour Tribunal at all, and reference was only made to the service by post.

6. If the service which was relied on in the attempt to obtain default judgment subsequently turned out to be tainted by any irregularity or by any indication that a defendant had not, in fact, received such a writ, then the rule makes it very clear that the plaintiff must alert the court of such events. In my view, the failure to do so would render the default judgment irregular. Mr Shaw seeks to rely on the case of Barclays Bank of Swaziland Ltd v Hahn [1989] 2 AER 398 to support the contention that the service by registered post, coupled with the event at the Labour Tribunals, indicating that Mr HO was made aware of the writ in question, would constitute a valid service even the registered post was subsequently returned unclaimed.

7. As I tried to point out in the course of counsel's argument, that Barclays Bank case was decided on the very special factual matrixes of that particular case, when there was clear indication to the effect that the defendant was trying his best to avoid service of the document on him. The facts suggest that having been made aware, or having suspected that there was writ being served on him, he took various steps to avoid the documents, to the extent that he even tried to change course to be away from the place where the writ was intended to be served.

8. We are not talking about a situation of that kind at all in our present case. It is important to bear in mind that in so far as the hearing before the presiding officer in the Labour Tribunal is concerned, parties were concerning with a completely different matter, or a completely different dispute, when Mr HO then was the claimant making claims for breach of the employment contract. The record kept by the presiding officer seems to suggest that a question was asked of him, whether the writ in question had been served. There was no indication that a copy of the writ was given to him to keep.

9. There was no indication that he was given adequate time to look at the document itself. There was no indication that he was made aware of the various instructions which normally accompany a writ, in order to enable him to respond to the document in issue. I have considered the entire background of this matter. I am satisfied that the factual background, as put forward by the plaintiff, including the sending of the writ by registered post to the address of Mr HO, which was returned subsequently unclaimed, together with what happened on 10 June before the presiding officer at the Labour Tribunal, would not constitute a valid and regular service, as such.

10. I am not persuaded that the learned master, on the facts presented before him, came to a wrong conclusion. In any event, insofar as the setting aside of the default judgment is concerned, the court have an unfettered discretion on the matter. I am not satisfied that the learned master was wrong in his decision that the default judgment ought to be set aside in the circumstances of this case. That being the case, the appeal is dismissed. I also make no order as to costs.