XCHRX NG CHUNG HING t/a Ng Hing Kee Book and Newspaper Agency (Sole Proprietorship) v. WAN KIT AND OTHERS

HCA8951/94

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 8951 OF 1994

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J U D G M E N T

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The Plaintiff's claim

1. The Plaintiff is a newspaper and magazine ("the publications") distributor. He has two offices, one in Hong Kong and the other in Kowloon. The Defendants were his employees and were in charge of the Kowloon Office. The 1st and 2nd Defendants are husband and wife. They were put in charge of the Kowloon Office from 1969 onwards. The 3rd Defendant is their son. He started work in the Kowloon Office from 1993 onwards. On 6th August 1994, the Defendants were dismissed by the Plaintiff. The cause of the dismissal is that the Plaintiff discovered in June 1994 that the Defendants had failed to account for the proceeds of sale of publications sold by the Kowloon Office. The present claim by the Plaintiff is for the sum of $53,412,628.85.

Discovery of the missing money

Letter from Citicomics

2. On 6th June 1994, the Plaintiff received a letter from Citicomics Ltd. ("Citicomics") demanding the Plaintiff to make payment of the outstanding sum of $14,120,516. The Plaintiff was surprised by this demand letter. He immediately checked the accounts of his overseas offices, Hong Kong Office and Macau office and found that there was no problem with their accounts. He then discovered that there was "a lot of debt" in respect of the Kowloon Office. He checked the accounts and discovered that there was a large difference in the income from the sale of the publications. He asked the 2nd Defendant for an explanation. He also sent the letter from Citicomics to the Defendants. The 2nd Defendant, however, referred the Plaintiff to the 1st Defendant. He asked the 1st and 2nd Defendants to prepare the accounts up to the end of June 1994 and had the accounts settled. When the Plaintiff told the 1st Defendant to clear the accounts, the 1st Defendant did not ask why but promised that he would do so.

3. When the Plaintiff talked to the 2nd Defendant she put up the excuse that the problem might be due to the expenditure of the Kowloon Office. She said that the Defendants had not received any salary throughout the years. The Plaintiff told her that he had already paid them by reason of the difference in the price of the publications delivered to the Kowloon Office.

Letter of 17th June 1994

4. On 17th June 1994, the Plaintiff received a letter from the 2nd Defendant. The letter stated that :

"Dear Uncle Ng,

How are you? Originally, I should have come to see you earlier. Even 'Wei Wei' and 'Mei Mei' have repeatedly urged me to do so. I feel very sorry not having coming to see you immediately. On one hand, it is because I have yet to recover from the shock. On the other hand, it is because I also do not know how such terrible thing has happened! How can I account to you what I myself also do not understand?

When I started doing business, my father taught me: 'In business, one must not owe others and he also must not allow others to owe him'. My father's analysis is that the accumulation of debts will make repayment difficult and will often lead to an end to the debtor's patronage so as to avoid repayment. When I started in your business, I observed those principles. Wan Kit also knows those of my father's advice.

At all times, I am grateful to you for the help and trust you have given me for more than 20 years. I too always remind myself and members of my family that your trust in us is the most important thing. One ought to realize it and need not be told. Once a system has been set up for the Kowloon Office, all that is required is follow it through. As to when that system was changed, I, like you, knew nothing of it in advance. My job is confined to dealings of credit and debits of cash with staff, where goods are sold, it is not possible that money would not be handed back for them. In this respect, all staff is aware of my temper. I pay very careful attention to cash transactions with customers. I even did not mind collecting debts which were in a chaos. That was not a big problem. I do not deal with money nor with accounting to Head Office. I am not evading responsibilities. My job is just that.

I am a self-satisfied person. It is already a blessing to have an easy-going life without having to worry about food, clothing and housing when two-thirds of the world population is still starving. It is even a gift from God that children can receive proper education. Apart from reading books, I neither buy shares nor speculate in properties. Vegetable is my main diet. Since you said you were not afraid of 1997 and not going to emigrate, I also have no intention to emigrate. If it is said that I have stolen your money, that accusation is absolutely false. When wrongly accused, I feel hurt and would cry. For all to avoid embarrassment in public, therefore, I write to first express what I want to say to you. It is an iron-clad rule that money owed must be repaid. What is to be done in the future is all up to your command. Of course, I am aware of the seriousness of the situation, just as what you had said that it is so serious that people can die. If death can resolve problems, I really wish someone would die so that we all do not need to suffer. The only person who can now help us is you. I do not mean take money from you but only your co-operation with us to resolve the problems. Otherwise, the enormity of the situation is beyond imagination.

We have also engaged someone to check the accounts. What I talked about overheads yesterday was a misunderstanding. Your report of 14 million to 60 million caused chaos and panic, and not knowing how to react inevitable to resort to illusion of miracles. I did not mean to confuse you. We have kept record of the accounts for more than 20 years. The truth will surface in the end with someone to be held liable.

Wishing you good health."

Account Overview of 25th June 1994

5. After the Plaintiff received the letter from Citicomics he had a meeting with the senior staff including the 1st Defendant. He pressed them for payment. Shortly thereafter the 1st Defendant provided the Plaintiff with an Account Overview of 25th June 1994. The time gap between this account and the last Account Overview was only one month. This account was for the total sum of $22,400,698.42 (CIII pg 320). Attached to the account were pay-in slips of proceeds of sale of publications that were deposited to the Plaintiff's accounts.

Account Overview of 30th June 1994

6. A few days after 30th June 1994, the Defendants arranged to meet the Plaintiff in a restaurant. At this meeting, an Account Overview of 30th June 1994 consisting of three pages were handed to the Plaintiff. The accounts stated that the amount due to the Plaintiff was $20,232,793.69. This account was not accompanied by any pay-in slips. The Plaintiff was not satisfied with this account. He said that there should be some more money involved. The Defendants told the Plaintiff that they would go back to compile another report. When the Plaintiff asked the Defendants what had happened to the money, they said they did not know.

18th July 1994 meeting

7. On 18th July 1994, another meeting was arranged between the Plaintiff and the Defendants. The Defendants presented another Account Overview to the Plaintiff. The account was dated 18th July 1994. The amount due to the Plaintiff was $37,642,454.43. On the first page of the account, the 1st Defendant wrote "18/7 first pay $5,000,000 still owe $32,642,454.43". In this meeting the 1st Defendant said that he did not know what had happened to the missing money. He said that $5,000,000 had already been paid (this money was paid between 29th June to 9th July 1994). He further said that he did not have any money and he did not tell the Plaintiff when he would repay the balance of the money to the Plaintiff. The Plaintiff asked the 1st Defendant to sign at the end of the sentence. The 1st Defendant did. Thereafter, the Plaintiff continued to chase the Defendants for payment.

Letter of 23rd July 1994

8. On 23rd July 1994, the Plaintiff received another letter from the 2nd Defendant. The letter stated that :

"Dear Uncle Ng,

How are you? I really feel very 'downgraded' to have to negotiate with you over the price of the Kowloon Bay Shop premises. At present, there is offer without buyer on the property market. As a matter of fact, I ought to have nothing to say to whatever price you would give. However, this shop premises is my only hope. I hope that its value would soon rise so that I can repay a bit more of the debts. The purchase and mortgage of that Shop premises have all been handled by me alone with some efforts, it origin - the purchase, loan and sale of the shop at Pak Po Street has also been completed by me alone. Although you had helped me to make money from the shop at Pak Po Street, but you were not required to be troubled have not been worried with instalment payments. My years of trading will come to nothing following the transfer of the Shop premises. That is only a matter of money. The most heartbreaking thing is the emotional end to a trading career. Of course, it was not the result of your doing. Logically, I ought to be obliged to you for your boundless help and generosity.

'Wei Wei' and 'Mei Mei' are arranging to move out of their residence at North Point to enable early vacant possession. I am sorry and feel helpless for causing unease to all.

In June, in order to raise 8 million for your urgent need, I owed several people money totalling over 3.6 million. After the transfer of the Shop premises and the residence, I will not be able to repay more of the enormous debt. Therefore, the 3 million to be received by my mother from "land development" in August has to be used to repay those creditors, and it can not be given to you. It is beyond my control and I have to tell you honestly in advance. Please forgive me.

As to the enormous debt owed to you by Wan, I have the will but not the power. Hence he goes to jail or receives the consequences of being sued (prosecuted), they have nothing to do with me. Although it is said that husband and wife are one, but even if one were to go his own way in face of disaster, that is not abnormal, especially when one is unknowingly taken into that disaster. He has destroyed the peace of the whole family overnight. He ought to bear all consequences of his deeds.

Wishing you good health, I remain,"

Sale of properties

9. The Plaintiff explained that he and the 2nd Defendant jointly own a property in Kowloon ("the Kowloon Property") which housed the Kowloon Office. As the Defendants said that they had no money to repay the Plaintiff, he suggested to the 2nd Defendant to sell her share in the Kowloon Property in order to repay the debt. He also asked her to sell her other properties, namely, a flat in North Point and also her mother's property in order to make the repayment. The letter dated 23rd July 1994 was the Defendants' response to the Plaintiff's suggestion.

Two other accounts

10. In August 1994, the Plaintiff received two further accounts from the Defendants. The first account was for the period 1st July 1994 to 9th July 1994 in which the amount due by the Kowloon Office to the Plaintiff was $6,114,218.72. This amount had been paid into the Plaintiff's account by the Defendants and the pay-in slips were annexed to this account.

11. The second account was for the period from 11th July 1994 to 16th July 1994 and the amount was $2,563,773.23. This amount was also paid into the account of the Plaintiff by the Defendants. The pay-in slips were also annexed to this accounts. These two accounts were in new formats which showed the proceeds were accounted to date.

6th August 1994

12. On 6th August 1994, the Plaintiff reported the matter to the police. He also dismissed the Defendants from their employment.

Operation of the business: overview

13. Before going into details, I will outline the operation of the Kowloon Office. It was responsible for the distribution of publications in the Kowloon area. Publications which were not sold would be returned by the Kowloon Office to the Hong Kong Office. The publications distributed to and returned by the Kowloon Office would be checked to ensure the quantities were correct.

14. The Kowloon Office would receive the proceeds of sale of the publications. The proceeds would be deposited into the designated accounts of the 1st Defendant who would then deposit them to a designated account of the Plaintiff. The Defendants were required to account the sales in a bi-monthly statement ("the Account Overview"). Together with the Account Overview, the Defendants would enclose the bank pay-in slips showing deposits of proceeds that had been made into the designated account of the Hong Kong Office.

Distribution and return of publications

15. PW4, Mr Sham Kow Ling Bowie ("Mr Sham") is currently the General Manager of the Plaintiff. He has worked for the Plaintiff in the past 28 years. In 1994, he was the Distribution Manager. He was responsible for the distribution of the publications in Kowloon, Hong Kong and the New Territories.

Collection of publications

16. Publications issued by the publishers would be collected from the printing factories by the Plaintiff in the following ways :

1. If the volume was not too big, the Plaintiff would take delivery of the publications to the Head Office in Hong Kong, and allocation would be done in the Head Office.

2. If the publications were in large quantities, the Kowloon Office and the Head Office would each collect its share. Sometimes the printing factory would deliver the publications to the Head Office and the Head Office would distribute it to the Kowloon Office. If the printing factory was in Kowloon, Kowloon Office would collect the publications and after taking its share of the publications, the rest would be delivered to the Head Office.

17. Early each morning, Mr Sham would check the types of publications that would be issued that day, and he would divide the publications into four lots for four districts, namely, the Head Office (covering Central, Western, Aberdeen and overseas), the Kowloon Office (covering Kowloon and the New Territories), Wanchai and North Point.

18. Mr Sham had three books recording the publications collected by the Kowloon Office for the Kowloon area and the Hong Kong Office for the other areas. For the Kowloon Office, some of the publications were obtained directly by the Kowloon Office from the publishers but some were obtained from the Hong Kong Office directly.

19. For publications obtained from the Hong Kong Office, Mr Sham would record the amount and quantity immediately. For those obtained directly by the Kowloon Office from the publishers, he would write down the approximate quantity. Either one of the Defendants would call him the next day to check if any error had been made in respect of transactions of the previous day. Then on Friday or Saturday, either one of the Defendants would report to Mr Sham the quantity and items of publications that were collected by the Kowloon Office for that week. After receiving the information, Mr Sham would check them against his own record. If the quantities agreed, Mr Sham would then issue Sales Invoices for the publications delivered to the Kowloon Office. If the figure given by the Kowloon Office was not in accordance with his own record, then he would rely on the Kowloon Office's record since the Kowloon Office record was based on the exact copies collected whereas his record was the approximate figures. Publishers would issue delivery notes of publications collected by either the Hong Kong or Kowloon Office. These delivery notes would later be given to Mr Sham by the employees of either the Hong Kong or Kowloon Office depending who collected the publications.

Return of publications

20. Publications were returned by the Kowloon Office in two ways. One was returned by the Kowloon Office to the Hong Kong Office. The other was returned by the Kowloon Office directly to the publisher. On Monday, the Kowloon Office would deliver the returned publications to the Hong Kong Office. The Kowloon Office prepared Return Notes in sets of two. After the staff in the Hong Kong Office checked the quantity of the publications returned, Mr Sham would sign on one copy of the Return Note and gave it to the Kowloon Office. Another copy would be handed over to a staff of the Hong Kong Office. On the Return Notes, the name of the publications, the quantity, the issue number and the cost would be stated. The total amount, however, would be left blank. The Return Notes would be signed by either one of the three Defendants.

21. Publications could also be directly returned by the Kowloon Office to publishers such as Citicomics. The 1st Defendant would inform Mr Sham of the number of returned publications and Mr Sham would issue a Return Note, which would be taken by the 1st Defendant to the publisher. The Return Note would be countersigned by the publisher. This note would then be handed back to Mr Sham. On the same day, the Kowloon Office would issue a Return Note to the Hong Kong Office. Mr Sham would sign on a copy of the note and the Kowloon Office would take back the signed copy. The Kowloon Office would make returns to Citicomics two or three times a week. Publishers would only accept returned publications with Return Notes issued by the Hong Kong Office. He denied that some books could be returned even without Return Notes if he informed the publishers orally that books would be returned.

Sales Invoices

22. The Sales Invoices issued to the Kowloon Office were in a set of three. The top one was labeled as the invoice. The second, the duplicate. The third, the counterfoil. On Monday, the 1st Defendant and an employee of the Kowloon Office would come to the Hong Kong Office to sign or chop the Sales Invoices. Initially, the invoices were signed, but subsequently because of the large volume of publications involved, chop would be used on the invoices. The top copy (red in colour) was given to the Kowloon Office. Mr Sham kept the duplicate and counterfoil.

Operation within the Kowloon Office

23. PW2, Mr Chan Tat Kwong ("Mr Chan"), is an employee of the Plaintiff. He described the system of collection and distribution of publications in the Kowloon Office. There were five employees there being responsible for the distribution. They were called "distributors". Some of the distributors had sub-distributors. The 1st Defendant himself, also would be responsible for distribution. Each morning, the 1st Defendant received instructions from the Hong Kong Office as to the publications and the quantity to be collected from the publishers. He would then record in the Daily Publications Record which was also known as the "Big Book", the names of the publications and the quantities that the distributors were to be responsible.

24. The distributors would either all go to collect the publications or some would collect the publications on their behalf. This depended on the quantity of the publications involved. There would be checking of the quantity of the publications when they were obtained from the publishers. The distributors would then distribute the publications in their own district.

25. Some of the retailers who received the publications were required to pay cash to Mr Chan immediately. Some could pay for the publications later by cheque. The retailers would also return the publications of a previous issue which they were unable to sell. The accounts would then be set off between Mr Chan and the retailers for the returned publications. Sometimes Mr Chan would pay back in cash the amount due to the retailers.

26. Each week, Mr Chan had to complete a report : the Signed Weekly Statement, of the publications that were allocated to him in the past week. The report consisted of two pages. The first page consisted of details of the publications and the value thereof that had been handled by the distributor. A summary of the transactions for that week appeared at the bottom of page two, setting out the amount of publications allocated to Mr Chan, the amount that was due from Mr Chan (which was actually paid), the amount of the returned publications and the actual amount that was paid by Mr Chan for that week.

27. Mr Chan agreed that sometimes the Hong Kong Office would deliver the publications to the Kowloon Office after it had obtained from the publishers. The publications would be counted when they were received at the Kowloon Office.

Counting of books

28. In relation to books collected by the distributors or the sub-distributors, Mr Chan agreed that the Defendants were not in a position to count them. In relation to returned publications, old issues had to be returned within a specific time.

29. In relation to the counting of books which had been returned, three labourers employed in the Kowloon Office were involved in the counting. Two of the distributors were also involved in the task. The returned books would be in bundles containing publications of the same price. Mr Chan said that he would count the books that were returned because they were treated as money. After they were counted, they would be sorted out in accordance with their titles. Later on, the Hong Kong Office would ask for specific issues of publications to be returned by the Kowloon Office.

30. It was suggested to Mr Chan that loophole existed in the system, in that the distributors might collude with the employees responsible for counting the publications and inflate the number of returns. Mr Chan's response is that the workers who did the counting were employed by the 1st Defendant and the distributors trusted him. He agreed that the Kowloon Office could not check whether the returns from the distributors tallied with the returns they made to the Hong Kong Office, but it was not necessary to do so because no one had instructed the distributors to tally the returns.

31. It is of importance to Mr Chan to count the returned publications because the more they were returned, the less income he would receive. His income was based on commissions. If publications that were not returnable were returned, then if the distributors could be identified, they had to account for the unreturnable goods. If not, then the Defendants had to be responsible for the unreturned goods.

32. There were also times when the quantity on the Return Notes were less than the actual return. In such a case the Return Note would be amended to reflect the actual return. If the actual return was less than that in the Return Note then, according to Mr Chan, "We had to make up for the difference". The quantity on the Return Note was the one which would be recognized.

The evidence of Mr David Wan, the 3rd Defendant

33. The 3rd Defendant joined the Kowloon Office in 1993 when the 2nd Defendant had problems with her vocal cord. He did practically everything the other Defendants did in the operation of the Kowloon Office. He would issue Return Notes and distribute books.

34. In relation to the Signed Weekly Statements of the distributors, the computer form was devised by him. In the form the term "共出" (total distribution) represented the value of the books distributed to the distributors. "共單" (total invoices) represented the value of the books to be collected by the distributors from his sub-distributors and retailers after deducting the returns. Although the word "單" (invoice) was used, in fact, no invoice was issued to the distributors. "共回" (total return) meant the value of the publications returned by the distributors. "共收" (total collection) meant the money in cash or cheque paid by the distributors.

35. When the distributors paid the amount, the date of payment of the money would be noted on the column of "共單" against the money which was due from them. The title and quantity of publications under the Signed Weekly Statement matched the entries in the Daily Publications Record.

36. The money the 3rd Defendant received from the distributors would be given to the 1st Defendant when he was in the office, or deposited into the 1st Defendant's bank account. The bank account would be used exclusively by the 1st Defendant for the collection of the proceeds of the sale of publications.

37. The 3rd Defendant's evidence on how publications was returned are more or less the same as that of the evidence given by Mr Sham except when publications were returned by the Kowloon Office directly to the publishers. Because of the large quantity involved, sometimes the Kowloon Office did not have time to get the Return Notes from Mr Sham. In that case, the Kowloon Office would, after checking the stocks, fax the list of returned publications to Mr Sham. The employee who took the returned publications to the publisher would take the list to the publisher, the publisher would sign on this list. The list would be given to the Hong Kong Office. It should be noted that it was not put to Mr Sham that the Kowloon Office would fax the list to him.

Details of the Plaintiff's claim

38. I will now go straight to the issue as whether the Plaintiff has proved that proceeds of sale of publications were not accounted by the Kowloon Office. The details of the Plaintiff's claim are as follows :

Part A

Part B

Deduction :-

Basis of the Plaintiff's claim

39. The basis of the Plaintiff's claim is simply that the Defendants as of the date of their dismissal had not fully accounted for or paid for the sales proceeds, net of returns, to the Hong Kong Office for the publications received by the Kowloon Office. The Defendants had delayed in reporting and paying the proceeds which they had already received.

40. The proceeds were in the sum of $77,324,014.91. The breakdown of this amount is in Schedule A which sets out the names of the publications, the issues involved, the period in question, the quantity that were taken, returned and sold, the cost and the amount unaccounted for each type of the publication.

41. The claim is for those issues of publications in the periods set out in Schedule A ranging from late 1993 to August 1994. Issues beyond 6th August were not included. However, this does not mean the delay in reporting and remitting the funds only occurred over those last few months. It built up over a number of years. The following three real examples can be used to illustrate the delay.

Quarterly Periodical
Periodical 3
"Hong Kong Bride Magazine"
(香港新娘)

⁽¹⁾ Source: Bi-Monthly Statements/Account Overview dated 25 January 1991 to 25 June 1994.

42. These three publications were included in Schedule A and were part of the claims of the Plaintiff. The three examples demonstrated the delay in reporting issues of publications (the proceeds of sales were already received by the Defendant) that had occurred over the years.

Ms Lorraine Barrick

43. The Plaintiff instructed Ms Lorraine Barrick ("Ms Barrick") of Arthur Andersen & Co., a firm of Chartered Accountants, to verify the claims of the Plaintiff. Ms Barrick has considerable experience in fraud investigation. She was able to confirm the claim by reference to the primary accounting documents of the Kowloon and Hong Kong Office. Since she only considered the delay from 1991 onwards, she was unable to form an opinion as to when the delay began. This, however, does not affect the validity of her evidence.

Plaintiff's claim not contradictory

44. According to Schedule A, the Plaintiff's claim is in respect of 213 types of publications. The issues involved were primarily issues released in 1994. There is no contradiction between the claim by the Plaintiff for those issues and the fact that the loss had been built up over a number of years in the past. The reason is because the reporting was being delayed but not omitted and the loss in sales was incremental. This can be illustrated by the hypothetical example given by Ms Barrick. Assuming the amount paid by the retailers was $22.5 for Periodical X, the loss of sales revenue on this periodical can be quantified as follows :

* Equal to the "number of issues behind" times the sales price of $22.50.

** Equal to the cumulative loss as of the year end minus the cumulative loss as of the prior year end.

Proof of sales proceeds received by the Defendants

45. In order to establish his claim against the Defendants, it is necessary for the Plaintiff to show that the proceeds had in fact been received by the Kowloon Office but not paid to him. To that, the Plaintiff has clearly proved his case.

46. I accept Ms Barrick's evidence each line of the claim had been verified by reference to the primary documents. As shown in the Second Supplemental Report of Ms Barrick, for every issue on every line of the claim, her team had traced the quantity of the publications received by the Kowloon Office from the Sales Invoices to the Daily Publication Records. Further, her team had traced the quantity of the publications received from the Signed Weekly Statements to the Daily Publication Records for all claimed publications for which a Signed Weekly Statement is available. The Signed Weekly Statements showed that proceeds had been paid to the Defendants. The discrepancy revealed by the survey was minimal. Further as the Daily Publication Records tied very closely to the Sales Invoices upon which the claim was prepared, the impact of the discrepancy is that the Plaintiff's claim may be understated, rather than overstated.

47. The issues shown in Schedule A were compared to the Account Overviews of 25th June 1994 and earlier. These accounts were supported by pay-in slips. The comparison is to ensure that the issues included in the claim had not been previously accounted for. There were two exceptions discovered. Although they may not be real duplicates, the amount was nonetheless deducted from Schedule A.

48. The bank statements of the designated account of the Head Office for deposits from 26th June 1994 through 6th August 1994 were reviewed to ensure all deposits made by the Defendants which were not previously accounted for were deducted from the claim. No exceptions were noted. Further, bank statements subsequent to 6th August 1994 were also reviewed to ensure all deposits made by the Defendants were included as items of set off.

Deduction of sums received

49. The amount of proceeds that were actually paid by the Defendants together with sums that the Plaintiff had given credit to the Defendants amounted to $24,607,386.06. The details are fully set out in the earlier part of this judgment. These sums were duly deducted from $77,324,014.91 before the Plaintiff arrived at the sum of $53,412,628.85 which he now seeks to recover from the Defendants.

50. The Plaintiff has clearly proved his case. There is no contrary evidence that the calculation is incorrect.

Example of "Chinese Hero"

51. It is, of course, impracticable to show in this judgment how the claim in respect of each and every issue of the publications is established. However, to take one example to illustrate the point, the primary documents clearly show that the proceeds of sale had been received by the Kowloon Office but not accounted to the Plaintiff. The example is Issue No.322 of a magazine called "Chinese Hero". This issue is recorded in the Daily Publication Record on 14th June 1994. (Exhibit P2) One of the distributors who received Issue 322 of "Chinese Hero" was Mr Yung Man Bui ("Mr Yung"). In the Signed Weekly Statement for 14th June - 20th June 1994 of Mr Yung, (B, p.357) the number of copies for this issue of "Chinese Hero" that were allotted to him together with other publications were recorded at page one. This document further recorded the proceeds of sale of these publications received by him and handed over to the Defendants. The proceeds that were paid by the distributors to the Defendants were also recorded in a "Cash Book". This book, however, was not found after the dismissal of the Defendants. The evidence, which I accept, is that the Defendants were supposed to pay in the proceeds of sale whenever they were received to the designated account of the 1st Defendant and then transfer to the account of the Plaintiff.

52. The Account Overview of 25th June 1994 only recorded Issues 314 - 318 and not Issue 322 of Chinese Hero. Issue 322 was only reported in the Account Overview of 18th July 1994. The issues reported were from Issues No. 321 to 324. Under this Account Overview, the amount that was due to the Plaintiff was $37,642,454.43. However, when this Account Overview was given to the Plaintiff, the 1st Defendant gave him pay-in slips of only $5 million. The $5 million was given credit by the Plaintiff and deducted from his claim together with other money received by the Plaintiff. Payment made by the Defendants subsequently were only for the most recent issues of the publications referred to in the two accounts with the new format.

53. This clearly illustrated the substantial delay by the Defendants in reporting and accounting the proceeds of sale of the publications that were already received by the Defendants.

Supporting Evidence

Account Overviews of 30th June 1994 and 18th July 1994

54. In my view, the Account Overview of 30th June 1994 of $20,232,793.69 which did not have any pay-in slips and the Account Overview of 18th July 1994 for $37,642,454.43 in which the 1st Defendant admitted that $32,642,454.43 were due to the Plaintiff are the best supporting evidence that the Defendants had not fully paid the proceeds of sale they had received in the Kowloon Office. I will deal later with the circumstances in which the 1st Defendant acknowledged the debt.

55. These two accounts showed that the Defendants admitted that $57.9 million or at least $52.9 million were due to the Plaintiff. The entries in these two accounts, apart from some minor exceptions, appeared in the claim of the Plaintiff. The proceeds that were not paid were $77 million. By these two Account Overviews the Defendants clearly admitted a substantial part of the claim.

Previous payments

56. Another indication that the Defendants did not fully pay up the proceeds of sale is the payment of $22 million when the Account Overview of 25th June 1994 was rendered. Previously, the average proceeds accounted to the Hong Kong Office over a two-month period was about $26 million. The previous Account Overviews showed the proceeds reported to the Hong Kong Office ranging from $23 million to $30 million. This can be illustrated by the Account Overviews issued by the Kowloon Office between 25 March 1993 to 25 May 1994 :

25/3/93	$25,601,707.145
25/5/93	$28,613,670.10
25/7/93	$30,768,421.305
25/9/93	$27,475,066.70
25/11/93	$26,260,902.69
25/1/94	$26,291,105.84
25/3/94	$23,847,752.53
25/5/94	$26,317,984.33

57. However, within a one-month period of the last Account Overview of 25th May 1994, the Defendants provided the Plaintiff in the Account Overview of 25th June 1994 with $22 million by reference to specific entries of publications. If the Defendants had truly paid up the proceeds received by the Kowloon Office promptly, one would not expect to find such a large sum paid within a one-month period.

Inherent improbability of the Plaintiff's claim?

58. The evidence from Mr Sham is that the Plaintiff was able to obtain the publications from the publishers at 65% to 70% of the retail price. The Plaintiff himself also confirmed that for some publications he could get a discount of 70%, although he did not elaborate on the percentage of discount of the other publications. When the Plaintiff sold the publications to the retailers, they would be sold at 75% of the retail price. Thus if the retail price of a magazine is $100, the Plaintiff would obtain the magazine at $70, sell the same to his retailers at $75 and make a profit of $5. The profit margin is 5/70 x 100% = 7%.

59. Mr Chong, Counsel for the Defendants, argued that the Hong Kong Office sold the publications to the Kowloon Office at 72.5% of the retail price. Because of this, the profit margin of the Hong Kong Office, in relation to the books distributed by the Kowloon Office, was half of what it would otherwise receive. Because the Kowloon Office distributed nearly 60% of all the publications received by the Plaintiff, a weighted average of 4.74% profit margin was shown. The margin by reference to the sales and costs of sales referred to in the trading accounts of the Plaintiff between 1991 to 1994 showed a margin ranging from 4.33% to 4.73%. This is very close to the weighted average. However, in the 1994 Profit and Loss Account of the Plaintiff, it was stated that "unreported sales received due to fraud by internal staff : $54,548,353". If this figure is inserted, then the margin would increase to about 22% which is way out of line as compared to previous margin. Hence, it is suggested that the Plaintiff's claim is inherently improbable.

Wrong assumptions

Not a sale at 72.5%

60. There is some dispute as to how the "margin" should be calculated. However, this does not affect the general tenor of the Defendants' submission. In my view, this argument is unsound and is fundamentally flawed because it proceeded on wrong assumptions. First of all, the publications were not sold by the Hong Kong Office to the Kowloon Office at a discount of 72.5%. The actual evidence of the Plaintiff in this regard is as follows :

"Q: In the case of the Kowloon office, you would sell - perhaps 'sell' is not the right word. When you delivered the magazines to the Kowloon office, you will only charge them about 72 to 72.5 per cent of the list price?

A: Yes.

Q: So the difference of about 2 per cent, or 2.5 per cent, represented profit made by the Kowloon office?

A: This was treated as a preparation for expenditure for payment of salary, transport fee, or transport across the harbour.

Q: So in the case of the First, Second and Third Defendants, you would expect their salaries would be paid out of the expenditure amount?

A: Yes."

61. The Plaintiff did not accept that the difference of 2.5% was to be used as profit for the Kowloon Office. It was a deduction from the proceeds of sale to be used as the operating expenses of the Kowloon Office.

Kowloon Office not a separate entity

62. Furthermore, the Kowloon Office was not a separate entity. It was part of the Plaintiff's sole proprietorship business. As can be shown in the accounts, there is no separate item relating to the expenses of the Kowloon Office. Furthermore, the profits made by the Kowloon Office was the profits of the entire business whether or not the proceeds were fully paid to the Hong Kong Office.

63. Ms Barrick's evidence is clear. She disagreed with the suggestion put to her that the Kowloon Office would only have to account for the difference of not 5% but 2.5%, of the retail price to the Hong Kong Office. (The reference by the Defendants to 5% is wrong. It should be 7%.) She stated that her understanding of the books and records is that the Kowloon Office accounted for the full amount, although it only had to remit cash for the 2.5%. Ms Barrick explained that :

" The reason is because there is a difference between the amount of cash which must be remitted and the amount of sales which are booked. This is only one company, it is a sole proprietorship, so my understanding of Hong Kong accounting standards is that all sales - when we say 'sales', we are talking about sales to retailers, the Kowloon branch is not a separate entity from the Hong Kong office, they must be booked at the amount they are sold to an outside party, and that would be the retailers. So all sales would be booked - in the example I believe Mr Chan (i.e. the Defendants' expert) used, at $75, all sales would be booked at $75.

It is just that Kowloon branch did not have to give all the cash to the Hong Kong office because they were paying some expenses directly. So I would say no, the margin will be the same."

What Ms Barrick said would, of course, depend on how the accounts were prepared. However, according to her, there was nothing to suggest from the accounts of the Plaintiff that the accountant had prepared the accounts other than by applying ordinary Hong Kong accounting standards. This matter is not disputed by the Defendants' expert Mr Chan. Furthermore, Mr Chan himself accepted the profit made by the Kowloon Office was the profit of the entire business.

64. It should be further pointed out that Ms Barrick did not regard the publications distributed to the Kowloon Office as outright purchases. What she said in reply to the suggestion of the Defendants' expert that there was no running account between the two offices, was that since all proceeds were accounted immediately as if they were outright purchases, there were no need for a running account. Although Ms Barrick did in her first report state that the Kowloon Office purchased the publications at 70% to 72.5% of their retail cover price. What she said in her report must be understood in the light of the evidence in this case.

Loss was incremental

65. Furthermore, the loss was incremental over the years. It did not take place all at once in 1994. If there had been delay in reporting the proceeds of sale in the past, then obviously the sale margin would be kept low and could not achieve the margin of about 7%. As demonstrated by Ms Barrick the fact is that after the Defendants were dismissed the margin achieved by the Plaintiff in 1995 was about 7%.

Debtors and prepayments

66. Mr Chong also made a rather startling submission. Between 1990 and 1995, in the Profit and Loss Accounts of the Plaintiff, provisions had already been made for "Debtors and Prepayments" :

1990	$16.9 million
1991	$19 million
1992	$24 million
1993	$20 million
1994	$20 million
1995	$19 million

Mr Chong submitted that the reference to Debtors and Prepayments must be in respect of the debt from the Kowloon Office, and if such debt had already been provided in the accounts, then the unreported sale must have been included in these previous provisions and it is not right to assign the loss to 1994.

67. This argument is wrong. First of all, the Kowloon Office was not a separate entity. It was part of the business of the Plaintiff. The submission can simply be answered by this : How can the Plaintiff be a debtor to himself? As can be seen from the accounts, there were indeed other debtors of the Plaintiff. Furthermore, the provision for Debtors and Prepayments continued to be featured in the 1995 account. This is the year after the Defendants were dismissed. This item could not possibly be a reference to the money owing by the Kowloon Office to the Hong Kong Office.

The Defendants' expert

68. The Defendants also instructed an expert Mr Chan Leung On, Sammy ("Mr Chan") of Chan Chee Cheng & Co., Certified Public Accountants. Mr Chan did not conduct a similar testing of the Plaintiff's claim. Instead, he adopted a different approach by suggesting internal weaknesses relating to the operation of the Plaintiff's business. For ease of convenience, I would set out the weaknesses referred to by Mr Chan.

	Nature of Weakness	Effect of Weaknesses
1.	No periodical matching or cross-checking of 每天取書退書核數表with the records of the Kowloon office. Any amendments in the Kowloon office may be omitted by the Hong Kong office and vice versa.	每天取書退書核數表were not updated properly and discrepancy between the records of the two offices might be found.
2.	Invoices and statements from publishers were not sent to the Kowloon office directly. The Kowloon office could not ensure all the publications returned to the Hong Kong office have been delivered to the publishers.	Completeness of publications finally returned to publishers cannot be ensured.
3.	No information about any amendment or cancellation of 出書單.	This would affect the accuracy of the records of the Hong Kong office for publications sent to the Kowloon office.
4.	No evidence of reconciliation between 出書單, publishers' invoices and 每天取書退書核數表.	Accuracy of 出書單 cannot be ensured.
5.	流水帳recorded the quantity and amount of publications distributed and returned for a certain period. However, 流水帳was not a statement showing the current accounts between the two offices at any specific date. There were no opening or closing balances in 流水帳 and it only shows the flow of publications handled by the Kowloon office and the net balances of each publication.	There is no information about the outstanding current balances between the two offices.
6.	No receipts were issued to retailers for publications returned. Hence, there was no information to cross-check回書紙.	As confirmed by Mr. Wan, some publications returned from the retailers were not checked and the quantity cannot be confirmed by retailers. Accuracy of publications returned in 回書紙 cannot be ensured.
7.	There was no evidence that all returned publications had been counted properly. In view of the large volume of publications distributed and returned, Mr. Wan confirmed that detailed checking would be impossible. There was no procedure to ensure the accuracy of work performed by the staff responsible for checking the returned publications.	Completeness and accuracy of publications returned cannot be ensured.
8.	No primary records for publications returned from retailers were kept. As stated above, checking of returned publications would not be reliable. This affected the amounts received by distributors because the receipts depended on publications distributed and returned.	Because of the uncertainties in the amount of publications returned, the amount received from the retailers may not be correct.
9.	There is no reconciliation between 回書紙,每週出書單and 退貨單回單. No quantity, name and volume of publications were stated on 每週出書單. We could not ensure whether these documents were related to the corresponding publications.	Accuracy of 退貨單回單 cannot be ensured.
10.	No written evidence was issued by the Hong Kong office for publications returned from the Kowloon office.	The Kowloon office could not ensure these returned publications were properly checked by the Hong Kong office. If the Kowloon office failed to prepare 退貨單回單, returned publications would be omitted.
11.	The Hong Kong office did not issue credit note nor give any document to the Kowloon office for publications returned to publishers.	The Kowloon office has no information of the actual quantity of publications returned to publishers. If the quantity of publications returned differ from 退貨單回單and the Kowloon office is not notified, the records of the Hong Kong and Kowloon offices will have discrepancies.
12.	The drivers and N.T. distributors collected the receipts from retailers and reported to the Kowloon office for the amount received. No receipts or detailed breakdown for amount received from retailers were prepared by the Kowloon office. There was no evidence that adequate controls have been adopted to ensure the accuracy of the amount reported by the drivers and the N.T. distributors.	Amounts received from retailers may not be verified.
13.	Some bank pay-in slips were lost by the Kowloon office and money deposited to the Hong Kong office may be understated.	Completeness of money deposited to the account of the Hong Kong office cannot be ensured.
14.	No physical stocktake was carried out by the Kowloon office periodically. As informed by Mr. Wan, returned publications were kept in the warehouse of the Kowloon office and might not have been returned to the Hong Kong office yet.	Accuracy and completeness of publications kept in the warehouse cannot be ensured. This can affect the amount due by the Kowloon office to the Hong Kong office.

The alleged weakness not supported by actual evidence

69. I think Mr Chan had exaggerated the so-called weaknesses of the business operation. The evidence shows that on each day, the Kowloon Office would only be dealing with eight to ten kinds of publications. As clearly pointed out by the witnesses, the publications were treated as cash by everyone involved in the business. It must be to the interest of the Kowloon Office and the distributors to ensure that the number of publications received and returned were correctly quantified. The same applies to the Hong Kong Office. While the Defendants might not have the ability, and they were not expected to physically count the publications received and returned, the tasks were, according to the evidence, delegated to the staff of the Kowloon Office.

70. There was suggestion by the Defendants that there were some previous misconduct by the staff in the Kowloon Office which deliberately gave false quantities of the publications. The suggestion of misconduct is merely based on hearsay evidence and is not established by admissible and credible evidence. But, even according to the Defendants, the fact is that the entries in the Daily Publication Records, the Signed Weekly Statements, the Sales Invoices and the Return Notes were all checked by the Defendants. This being the actual situation, it is indeed a speculation to suggest that somehow the claim may be based on inaccurate information contained in those documents. Furthermore, the Kowloon Office had been in operation since 1969. As persons in charge of the management of the Kowloon Office, one would expect the Defendants to make sure that the records were accurate. Mr Chan in fact accepted that the Plaintiff's claim may well be correct.

Plaintiff's case established

71. The conclusion is that the Plaintiff has proved by credible evidence that the Kowloon Office had not fully paid the proceeds of sale received by it to the Hong Kong Office. This is not a case where the proceeds of sale now claimed by the Plaintiff were not received by the Defendants. They were already received. At the time of dismissal, the Defendants had still not fully accounted the proceeds to the Plaintiff.

The cause of action against the Defendants

72. The cause of action by the Plaintiff against the Defendants is that :

1. the proceeds of sale were collected by the Defendants and held on trust for the Plaintiff;

2. it was an implied term of the contract of employment that the Defendants were responsible for the loss of proceeds held or received by them; and

3. the Defendants were in breach of fiduciary duty in failing to preserve and account to the Plaintiff the proceeds received by them.

The Law

73. In Burdick v. Garick [1870] LR 5 Ch. App. 233, Lord Hatherley LC at page 239 held that :

" In the early cases cited by Mr. Hanson in his very able argument, a simple appointment of an agent with confidence reposed in him, seems to have been held sufficient by this Court to prevent the Statute of Limitations taking effect. It would indeed be a strange thing if this Court should be obliged to hold that if a person, for instance, were to deposit plate or jewels with his bankers, intending to be absent from home for a great number of years, and those chattels were converted by his bankers to their own use in fraud of the owner, and the owner were to come back after the end of seven or eight years, he is utterly remediless either in the shape of an action at law or of a suit in this Court, because the dealing with his property has been in the nature of an agency. ..... But in the present case we have an agent who is intrusted with those funds, not for the purpose of being remitted when received to the principal, but for the purpose of being employed in a particular manner, in the purchase of land or stock; and which moneys the factor or agent is bound to keep totally distinct and separate from his own money; and in no way whatever to deal with or make use of them. How a person who is intrusted with funds under such circumstance differs from one in an ordinary fiduciary position I am unable to see. ..."

At page 243, Sir Giffard LJ held that :

"..... and I do not hesitate to say that where the duty of persons is to receive property, and to hold it for another, and to keep it until it is called for, they cannot discharge themselves from that trust by appealing to the lapse of time. They can only discharge themselves by handing over that property to somebody entitled to it. ....."

In Underhill and Hayton on Law Relating to Trusts and Trustees, 15th Ed. at page 847, it is stated that :

"Joint and several liability of trustees

(1) Each trustee is, in general, liable for the whole loss when caused by the joint default of all the trusts, even although all may not have been equally blameworthy; and a decree against all may be enforced against one or more only."

and at page 848 :

"All parties to a breach are equally liable

All parties to a breach of trust are equally liable, and there is between them no primary liability; and the liability for breach of trust is not confined to express trustees, but extends to all who are actually privy to the breach. Thus, where trustees delegated their trusteeship to their solicitors, who received the moneys, and did not invest them but made use of them in their business, it was held that both the trustees and the solicitors were equally liable and that judgment might be executed by the beneficiaries against the solicitors only. ...."

Liability of the Defendants

74. The real question is on the individual liability of the Defendants. The issue is whether on the facts, each of the Defendants is privy to the under-reporting to the extent that each is responsible for the loss now claimed by the Plaintiff.

The role of the Defendants

75. The Defendants were engaged by the Plaintiff to run the Kowloon Office. The pleaded case of the Plaintiff of the role of the three Defendants is :

1. The 1st Defendant was the manager having overall responsibility for the Kowloon Office. His functions included :

1) daily receiving and transferring into the Plaintiff's account of proceeds of sale effected by the Kowloon Office;

2) keeping records of such transfers; and

3) ensuring that the 3rd Defendant periodically prepared and submitted to the Plaintiff full and accurate Account Overviews.

2. The 2nd Defendant was the dispatch clerk of the Kowloon Office. Her functions included :

1) dispatching to the salesmen publications for sale;

2) collecting from them payment;

3) transferring the proceeds into the designated account;

4) keeping records of all such matters; and

5) ensuring the 3rd Defendant prepared and submitted to the Head Office the Account Overviews.

3. The 3rd Defendant was the book-keeper of the Kowloon Office and his functions were :

1) preparing, updating daily and keeping books of account relative to the activities of the Kowloon Office, including the receipt and sales of publications made by it and the nature and extent of the proceeds of the sale;

2) periodically preparing and submitting to the Head Office the Account Overviews.

The Defendants' submission

76. Mr Chong submitted that the Plaintiff changed his stance on the functions of the Defendants. In his affirmation filed in support of the Mareva injunction in 1994, the Plaintiff claimed that the 1st Defendant was the only person answerable to him for the running of the business in the Kowloon Office. His evidence in court, however, suggested that the 2nd Defendant played the dominant role instead of the 1st Defendant who was only her assistant. The change of stance was because the Plaintiff realised that his case against the 2nd and the 3rd Defendants was weak and that he has to establish that the 2nd and 3rd Defendants also owed a duty towards him and to be answerable for all the proceeds of sale independent of the 1st Defendant's duty in order to succeed in this action.

77. Mr Chong referred to the police statements made by the Defendants and submitted that what they told the police were consistent with what the Plaintiff said about the Defendants' role in his affirmation of 1994 and other contemporary documents. In his cautioned statement of 6th August 1994, the 1st Defendant said that he was the manager and the person responsible for preparing accounts. The 2nd Defendant in her cautioned statement of the same date stated that she was a clerk responsible for working out the return of publications. She was not responsible for handling money. The 3rd Defendant's cautioned statement of 15th September 1997 stated that he was a clerk responsible for word processing and typing into computer data provided by the 1st Defendant in preparing the Account Overviews. Further, their allegations were supported by the 2nd Defendant's letter of 16th June 1994 and the job description of the Defendants in the tax returns filed by the Plaintiff.

Plaintiff's case consistent

78. In my view, the Plaintiff had not changed his stance at all. In his affirmation, after describing the roles of the three Defendants, he said that the three of them were the most senior officers of the Kowloon Office and were in complete charge of it. Jointly with each other, the 1st and 2nd Defendants were responsible for paying the proceeds of sales into the accounts.

79. The evidence adduced in this Court clearly confirms that the distributors handed the proceeds of sale to either of the three Defendants. The Defendants also checked the money paid against the Signed Weekly Statements of the distributors. The Daily Publications Record was kept by the three Defendants. The 1st Defendant confirmed that he and his son were principally responsible for making entries in this book. There was also a cash book which existence was confirmed by the evidence but was not found when the Plaintiff took over the Kowloon Office. This book recorded the proceeds of sale handed by the distributors to the three Defendants. The publications received by the Kowloon Office were confirmed by either of the three Defendants with Mr Sham of the Hong Kong Office. The three Defendants would also confirm with Mr Sham the quantity of books returned so that a Return Note could be issued by Mr Sham. Although Mr Sham's evidence sometimes referred to his dealings with the 1st Defendant, it is clear from the evidence as a whole, that he was referring to either of the three Defendants.

Liability of the 1st and 2nd Defendants

80. The truth of the matter is that there was never any clear distinction as to what work was specifically reserved to any particular person. As a matter of fact :

(1) All three Defendants collected the proceeds of sale;

(2) All three Defendants prepared and checked the records of sales and receipts;

(3) All three Defendants would check the publications received, their records with the Plaintiff's records and the publications returned;

(4) Both the 1st and 2nd Defendants reported back to the Plaintiff together by bringing the Account Overview reports together with the pay-in slips;

81. The Plaintiff himself never required the proceeds should only be paid to the 1st Defendant's account. At some stage when the bank imposed handling charges on deposit of money over a certain amount, the Plaintiff said that proceeds were paid into the account of the 1st, 2nd and 3rd Defendants. The 1st Defendant confirmed that he had joint accounts with the 2nd Defendant for that purpose. It has to be recognised that the Defendants are members of the same family and the 1st Defendant confirmed that the money belonged to both of himself and his wife.

82. The Plaintiff obviously trusted the 2nd Defendant when in 1969 he asked her and her husband to take care of the Kowloon Office. He wanted a truthful and reliable person to be responsible for the financial aspects of the Kowloon Office and he regarded the 2nd Defendant as a pure and honest person. This trust is demonstrated by his response when the under-reporting was discovered in June 1994. He approached the 2nd Defendant first. Clearly the 2nd Defendant recognised that she was responsible for accounting the proceeds to the Plaintiff, otherwise she would not have written the letter of 17th June 1994, in particular, when she said at the beginning of the letter that she should have come to see the Plaintiff earlier. Her explanation that she was urged by her children to see the Plaintiff because of his health problems was simply not credible. The Plaintiff left the division of responsibility to the Defendants. The fact that the 1st Defendant received higher salary was, in my view, due to the fact that he was the head of the family rather than because of his share of responsibility. The Plaintiff said in his evidence that "to pay the husband a bit more means giving face to the wife".

83. I find that both the 1st and 2nd Defendants are liable to the Plaintiff. They owed fiduciary duties to the Plaintiff and are jointly liable to the Plaintiff as trustee of the Plaintiff's properties namely the proceeds of sale.

Liability of the 3rd Defendant

84. The 3rd Defendant paints the picture that he was taking only a passive role in this matter. He would perform the mechanical task of the operation of the Kowloon Office by distributing the publications to the distributors and collecting money from them. He said that the preparation of the Account Overviews were based on information already provided by the 1st Defendant. This cannot be true. The 3rd Defendant is university educated, young, and in my view, a highly intelligent person. It is against common sense that he did not actively assist his parents in the running of the Kowloon Office. He was the one who introduced the use of computer in the preparation of the Weekly Statements and Account Overviews although he said the forms were based on the ones previously used. He was entrusted by his parents to receive money from the distributors. The money was to be given to the 1st Defendant when he was around or deposited to his account when he was absent. I find that the 3rd Defendant was as much involved in the running of the Kowloon Office as his parents even before the Plaintiff discovered the under-reporting in June 1994.

85. In my view the 3rd Defendant must be acutely aware of the events that had happened in June and July 1994, and the urgency in responding to the Plaintiff's demand on his father to provide updated Account Overviews and to find money to repay the Plaintiff. He tried to explain that the calculation was done by the father who had 20 odd years of experience in the trade, and if he intervened, it would cause more confusion. This cannot be right. The urgency of the matter can be seen from the various Account Overviews that were generated in that two months. First, there was the account of 25th June, it was followed by that of 30th June, 18th July and two further reports covering the periods from 1st to 9th July and 11th to 16th July. In my view, it is simply beyond the ability of one man to deal with these reports. One can easily see the frenzy state of the Defendants in bringing to date accounts of the money that had been received but not paid to the Hong Kong Office.

86. The 3rd Defendant was very careful with his choice of words. When asked whether he had any explanation to the accusations made by the Plaintiff, his response was that :

"I do not have to explain, because neither myself nor any one of us had ever taken away the amount of money you said we had taken away."

87. The 3rd Defendant accepted that he was told by his father at the end of June that the Plaintiff was accusing him of reporting late the sales of various publications, but he could not recall his response to the father. I find this puzzling. The Kowloon Office was operating on some very simple accounts. Money received from the sale of publications were given to the 1st Defendant or deposited in his account. If there was no misconduct on the part of the Defendants, the Plaintiff's accusations could easily have been refuted by the production of the various bank statements and accounting records kept by the Defendants.

88. The 3rd Defendant said that he was surprised when his father asked him to prepare the account of 18th July 1994. He was told by his father that the Plaintiff asked him to do that. The 3rd Defendant said that at that time his father made several calculations and he took out the old accounts starting from 1969 to calculate.

89. The Defendants admitted through their Counsel, Mr Chong, that the calculations in the Account Overviews were not up to the date of the Account Overviews. Although there was no admission by Mr Chong that there was any under-reporting. The case of the Defendants is that there was a time lag before the returns of the magazines would have to be made. Mr Chong demonstrated that there were entries in the last two accounts which were already disclosed in the Account Overview dated 18th July 1994. This is to show that the 3rd Defendant was merely copying the data provided by his father into the computer and did not take an active role in the preparation of the accounts.

90. From the evidence, the overlapping items in the accounts had in fact been deleted from the Plaintiff's claim and what Mr Chong said is not an indication that the 3rd Defendant merely took a passive role in the operation of the Kowloon Office. The 3rd Defendant himself knew that the Account Overview did not contain an updated report of the sale of publications within the two-month period. Yet he pretended he did not know of the delay and made no attempt to regularize the position when the Plaintiff's demand was known.

91. The 3rd Defendant together with his parents jointly ran the Kowloon Office and jointly with them, he owed fiduciary duties to the Plaintiff. He was in the position of a trustee of the assets of the Plaintiff. He is equally liable for the proceeds of sale which were not fully accounted to the Plaintiff. I find that the 3rd Defendant together with his parents are jointly and severally responsible for the loss.

Duty to report

92. The Defendants accepted that as employees, they owed a fiduciary duty and a duty of loyalty and good faith to the Plaintiff. However, they denied that there is a general duty on the part of an employee to disclose misconduct or breaches of duty of his fellow employees.

93. In Swain v. West (Butchers), Ltd. [1936] 3 All ER annotated 261, Greene LJ held that :

".... It was submitted to us that there was some general principle of law applicable to contracts of service in general and to this contract in particular that a servant is under no duty to disclose the improper conduct of his fellow servant. I am unable to accept such a proposition. Whether there is such a duty or not must depend upon the circumstances of each particular case. ...."

This approach was adopted in the subsequent case of Sybron Corporation and Another v. Rochem Ltd. and Others [1984] 1 Ch. 112 where the Court of Appeal accepted the decision of the trial judge Walton J. Walton J held that :

"However, where there is an hierarchical system, particularly where the person in the hierarchy whose conduct is called into question is a person near the top who is responsible to his employers for the whole of the operation of a complete sector of the employers' business - here the European zone - then in my view entirely different considerations apply. .....

.....

..... A person in a managerial position cannot possibly stand by and allow fellow servants to pilfer the company's assets and do nothing about it, which is really what Mr. Munby's submissions would come to when applied to the present type of case. Certainly at all events where the misconduct is serious and the servant is not discharged immediately it must be quite obvious that, as part of his duties generally, the senior employee is under a duty to report what has happened as soon as he finds out, and further to indicate which steps (if any) he has taken to prevent a repetition thereof."

94. These two cases relied by Mr Chong in fact support the Plaintiff's claim that all three Defendants are liable to him. Clearly all three of them were in a managerial position in the Kowloon Office. They were the highest ranking employees in the Kowloon Office. Without a doubt, all three must have knowledge that the proceeds of sale were not fully accounted for. If the default was caused by one of them, then the other two obviously had a duty to disclose it to the Plaintiff.

95. In any event, the Plaintiff's case is not simply based on the duty to disclose by an employee in a managerial position. He relies on the principle that as trustees, the Defendant are jointly and severally liable for the fault of the other.

Counterclaims of the Defendants

96. The Defendants counterclaim for the following items:

(1) repayment of the loan to the 1st Defendant;

(2) commission for July 1994 for the 1st Defendant;

(3) payment of property tax;

(4) pro rata salaries for the period between 1st August 1994 and 6th August 1994 for all three Defendants;

(5) statutory payments for all three Defendants under the Employment Ordinance ("the Ordinance"), Cap.57. This includes:

(i) damages for wrongful termination of the employment under s.8(a) one month's salary;

(ii) proportion of the end of year payment under s.11(f);

(iii) long service payment for the 1st and 2nd Defendant under s.31(r) and 31(v);

(iv) annual leave pay under s.41(iv) of the Ordinance.

Repayment of Loan

Stalling the Creditor

97. The Defendants wish to print a picture that the Plaintiff was in great financial difficulties when Citicomics issued the demand letter and he asked the Defendants for loans to meet his need. When the Plaintiff received the demand letter in June 1994, the contract with Citicomics was expiring soon. Citicomics had provided more than 50% of the business for the Plaintiff. It was suggested that the Plaintiff was in a dilemma because he would be sued by Citicomics, or alternatively he would not have the contract renewed if he did not pay the money. It was suggested to the Plaintiff that he had asked the Defendants to prepare the Account Overview dated 18th July 1994 in order to stall Citicomics.

98. The response from the Plaintiff is that it was not necessary to use the account to stall Citicomics. He would tell Citicomics that there would be a slight delay in the repayment. He described it as a shameful thing to show such a document. He said he only owed Citicomics $14 million and nobody would trust him in the business if he was to tell others that someone else in turn owed him $30 million odd. The Plaintiff further explained that whether Citicomics sued him or not, or whether Citicomics carried on business with him, he still had to repay the money to Citicomics.

99. I accept what the Plaintiff said. The Plaintiff impressed me as an honest old-fashioned businessman who pays a lot of emphasis on trust and reputation in business transactions. This is not surprising bearing in mind he has been in this business for the past 48 years and the business is transacted largely on cash basis. Certainly the demand letter from Citicomics took him by surprise. However, his subsequent actions were, as one would have expected of any businessman, directed in recouping the money due to him from the Defendants. I simply do not accept that he asked the Defendants to prepare an account on the pretext that it would be shown to Citicomics.

100. The Plaintiff readily admitted that when he discussed the matter with the Defendants, he had talked about bankruptcy and matter of life and death. He also admitted that he had asked the 2nd Defendant to lend him money when the Kowloon Property was purchased.

101. Mr Tong S.C., Counsel for the Plaintiff, accepted that it was quite conceivable that when the Plaintiff first learned that he was asked by Citicomics to settle an outstanding sum of $14 million, he might have sought help from the Defendants, but once it was discovered that it was the Defendants' failure to account the proceeds, it must then be a matter of common sense that the Plaintiff would be pressing the Defendants for repayment. I agree.

102. It is plain that the financial difficulties of the Plaintiff were caused by the Defendants, and the 2nd Defendant, in her letters, clearly recognised this. The tone of the letters was apologetic. It is not a question of the Defendants' helping out the Plaintiff or raising money for him. They knew as a matter of fact that they owed the Plaintiff money and they had to repay him. It was the Defendants' own admission by the Account Overview of 30th June that they owed $22 million to the Plaintiff. The Account Overview of 18th July showed a further indebtedness of $32 million. With these circumstances, I find it absurd that it can be suggested to the Plaintiff that what the Defendants did was merely to help him out with his financial difficulties. To accept this suggestion is to accept black is white.

Circumstances in which the 1st Defendant signed on the Account Overview of 18th July 1994

103. The Plaintiff's evidence-in-chief is that the sentence appearing at the bottom of the first page of this document was already there when the Defendants met him in the restaurant. The 1st Defendant later signed his name next that sentence. In cross-examination, his evidence seemed to suggest that the 1st Defendant wrote the sentence at the meeting. The Plaintiff, however, denied that he had asked the 1st Defendant to write the sentence. He, however, was unable to tell what prompted the 1st Defendant to write the sentence. The Plaintiff's evidence was to the effect that the 1st Defendant owed him $37 million. After deducting $5 million which were paid, the 1st Defendant still owed him $32 million, and if the 1st Defendant did not write the sentence, he could not chase after him. After the 1st Defendant wrote the sentence, the Plaintiff asked him to sign his name.

104. In his affirmation filed in support of the application for mareva injunction, the Plaintiff actually stated that the 2nd Defendant asked the 1st Defendant to write the sentence at the bottom of the page.

105. The Plaintiff explained that the events happened four to five years ago. He could not remember if the sentence was already there when the document was shown. All that he could remember was that there was no signature at the end of the sentence. He denied that he was telling a lie. He stated that he could not remember for sure.

106. At this meeting, the Defendants had brought along the pay-in slips for $5 million. The Plaintiff said that he did not ask the Defendants to bring along the payment slips before the meeting. In his affirmation, the Plaintiff had said that after he received the letter of 17th June 1994, the 2nd Defendant telephoned and informed him that the Defendants would try to pay back $5 million as part-payment of the unaccounted for money. Between 29th June 1994 and 9th July 1994, $5 million were paid into the designated account. The affirmation further stated that :

"Pending further investigation, I am unable to say whether this was a genuine repayment or were merely payments from proceeds of sale to which I would, in any event, have been entitled."

The Plaintiff accepted in his evidence that the $5 million were meant for repayment, and what was said in the affirmation was wrong.

107. It was suggested to the Plaintiff that between 30th June 1994 and 18th July 1994 when the meeting was held, the Defendants had in fact deposited $9 million into the Plaintiff's bank account and there was no reason why the 1st Defendant should only admit that he had paid $5 million when he had in fact already deposited $9 million into the Plaintiff's account.

108. It was suggested that the Plaintiff had telephoned the 1st Defendant and asked him to bring along payment slips made up to $5 million, and the idea of writing on the bottom of the account dated 18th July came from the Plaintiff and not from the Defendants.

109. Although the Plaintiff denied that he had asked the 1st Defendant to write down the sentence, I find it more likely that it was written as a result of discussion by the parties. The Plaintiff's evidence of the meeting was somewhat confusing. But I find that the 1st Defendant wrote the sentence and signed it on his freewill in order to acknowledge his indebtedness to the Plaintiff. Despite the denials by the Defendants, I find both the 1st and 2nd Defendants were present at the time when the sentence was written. It is just beyond belief that two grown up persons like the 1st and 2nd Defendants who had vast experience in running the Kowloon Office would somehow be intimidated by the Plaintiff into acknowledging a huge debt of $32 million which in fact they did not owe.

110. While it is odd that the Defendants should only provide the Plaintiff with payment slips showing $5 million deposit when they had already deposited $9 million, the fact remains that the Defendants had only chosen to give the deposit slips of $5 million to the Plaintiff. If the Plaintiff was as desperate as suggested by the Defendants, there is no reason why he would tell them to bring payment slips of only up to $5 million. Furthermore, there is no reason why the Defendants should not volunteer to tell him that they had in fact deposited $9 million into the account. The balance of the $9 million was also given credit by the Plaintiff in this claim.

Discrepancies in the Plaintiff's evidence

111. There are clearly some unsatisfactory aspects of the Plaintiff's case. However even taking these into account, they would not affect my assessment of the Plaintiff as a credible witness.

112. For example, in relation to the sale of the Kowloon Property, in evidence-in-chief, the Plaintiff stated that he suggested to the 2nd Defendant to sell the property. However, he seemed to deny this in cross-examination before he confirmed that it was indeed he who made the suggestion. However, this is quite different to what he had said in his affirmation filed in 1994 when he stated that it was the 2nd Defendant who suggested the sale of the Kowloon Property and that he yielded to her request because he feared that he would not receive any repayment from her.

113. The Plaintiff attributed the mistake to his age and the time lapsed between the making of his last affirmation and now. I accept his explanation. Irrespective of who made the suggestion, the 2nd Defendant did at one stage agree to sell her share of the Kowloon Property.

114. It was suggested that the Plaintiff had not made full and frank disclosure in his affirmation. In para.13 of his affirmation, he referred to the third paragraph of the letter dated 17th June 1994 :

"Once a system has been set up for the Kowloon Office, all that is required is follow it through. As to when the system was changed, I, like you, knew nothing of it in advance."

The Plaintiff said in his affirmation that :

"I did not then nor do I now understand the reference in the 3rd paragraph to a change of system. As far as I (am) aware no significant change of system had been authorised."

In cross-examination, the Plaintiff accepted that the system that the 2nd Defendant was referring to was that publications should be calculated up to the date of the Account Overview, and that it should not be lagged behind. It was suggested that the Plaintiff deliberately said he did not understand what the 2nd Defendant was referring to, in order to avoid disclosing that he had in fact asked the 2nd Defendant to update the calculation and to make the payment of those items which had not been updated.

115. I fail to see the connection of these two issues. In any event the Plaintiff in his affirmation had disclosed that he told the 2nd Defendant that $14 to $16 million had not been accounted for by the Kowloon Office. No significant change to the system had been authorised. He asked for an account to be prepared showing the sums which were due and owing by the Kowloon Office. In the circumstances I really cannot see how it can be said that there was any non-disclosure by the Plaintiff in this regard. While the Plaintiff had not in his affirmation expressly stated that he had asked the 2nd Defendant to pay up the outstanding sums, clearly the affirmation had repeatedly said that the Plaintiff had demanded the 2nd Defendant to explain how such a situation could have arisen. The 2nd Defendant had also promised to repay money to him. I do not see this as a deliberate concealment on the part of the Plaintiff.

Evidence of the 2nd Defendant, Mrs Wan

116. The 2nd Defendant denies that the Defendants owe any money to the Plaintiff. In her statement to the police in August 1994, she went so far as to state that the Plaintiff's accusation was a planned false accusation. In essence, her evidence is that the Plaintiff had asked her to lend him money and that the Plaintiff had tricked her husband into signing the admission that he was indebted to the Plaintiff in the sum of $32 million.

117. The 2nd Defendant is a clever woman. Despite the problems with her voice (she lost her voice and spoke in a whisper), she was alert and gave quick responses to the questions put to her. She was also an assertive, and my view, a domineering person. She was the one who responded to the Plaintiff's demands by writing two letters to him. I must say that her case is incredible and belied by what she had written in these two letters. It is clear that she knew substantial sums of money had not been accounted to the Plaintiff.

118. The 2nd Defendant accepted that when she was first approached by the Plaintiff about the missing money, she did raise that the money might well be used for expenditure. If the Plaintiff was merely asking her for loans, there was no reason why she should have raised the question of expenditure as an defence to the Plaintiff's demand. Clearly the Plaintiff was demanding payment by the Defendants of money not fully accounted to the Hong Kong Office.

119. If the Plaintiff was simply asking the 2nd Defendant for loans, then one would not expect her to write in the first letter that :

".....It is an iron-crated rule that money owed must be repaid. What is to be done in the future is all up to your command....."

120. Her explanation that "money owed must be repaid" was intended to refer to the money owed by the Plaintiff to the Citicomics is contrived. Her explanation that her request for co-operation with the Defendants to resolve the problems was a request for the Plaintiff to check the accounts. This is no credible. Obviously she was asking for indulgence from the Plaintiff.

121. If the Plaintiff was merely asking the 2nd Defendant to lend him money so that he could repay others or to continue with the contract with Citicomics, one would not expect her to go so far as to consider selling the North Point home in which her children were living and her share in the Kowloon Property. This went beyond what she should have done even if she was grateful to the Plaintiff in giving her and her husband an opportunity in the business world.

122. Her case that she did not know her husband had signed the acknowledgement of debt simply does not ring true. Being such an assertive person, I have grave doubt that during the month of June when intense pressure was brought upon the family, she would not be at the meeting at the same time of the 1st Defendant. Her allegation that the Plaintiff had cheated her husband in signing the document just does not ring true. By 23rd July 1994, she had, according to her evidence, discovered that her husband had signed the document. If the Defendants did not owe any money to the Plaintiff, one would expect an entirely different response than the one contained in the letter of 23rd July 1994. In this letter she referred to the heartbreaking event of the emotional end to a trading career, she said that :

".... It was not the result of your doing. Logically, I ought to be obliged to you for your boundless help and generosity...."

If her husband had indeed been so na?ve as to admit owing money to the Plaintiff when in fact he did not, one would not expect to find such words in the letter.

123. She said that the reference to the enormous debts owed by her husband to the Plaintiff in the letter was the reference to the debt which her husband was tricked into acknowledging. Clearly this is not true. Clearly the debt is in relation to the full amount of the money that had been not accounted by the Defendants. She tried to distance herself from her husband. In the letter she wrote "Hence he goes to jail or receives the consequence of being sued they have nothing to do with me".

124. The acknowledgement of debt signed by the 1st Defendant was not disclosed by the Defendants. The original was given to the Plaintiff. The impression that one gains from the 2nd Defendant's evidence-in-chief is that the document was shown to her by her husband a few days after he had signed it. In cross-examination, she tried to explain that copies of the account were kept. Certainly that was not the impression one gains when she was dealing with this matter in her evidence-in-chief. Her evidence on this point is contrived and incredible.

Undue influence

125. The Defendants alleged in the Defence that the letter of 23rd July 1994 written by the 2nd Defendant was as a result of threat and inducement by the Plaintiff. The 2nd Defendant clearly stated in evidence that she wrote the two letters out of her accord without any prompting from the Plaintiff. The allegation of undue influence or misrepresentation is clearly unsubstantiated.

126. The truth of the matter is that the 2nd Defendant and her family clearly recognised that money was due to the Plaintiff and they had to be responsible. They were at one stage even prepared to sell the 2nd Defendant's interest in the Kowloon Office and in the North Point flat to repay the debt. However, when they realised the enormous sums of money that were due to the Plaintiff, somehow they changed their mind, took a belligerent line and refused to admit their wrong-doings. Instead they accused the Plaintiff of making false accusations against them. This is a desperate move but people did desperate things at desperate times.

Evidence of the 1st Defendant

127. I do not accept the evidence of the 1st Defendant. I have given due consideration to his physical infirmities. Mr Chong informed the Court that the 1st Defendant was suffering from the early symptoms of Parkinson's disease. The 1st Defendant was not a truthful witness. He admitted that the Plaintiff had sent him the letter from Citicomics, but said that he did not know why it was being sent to him. This is unbelievable. He further said that the Plaintiff told him that he would need to renew the contract and he asked the Defendants to raise money. I do not accept his evidence. The Plaintiff's demand was clearly for the repayment of the money owing by the Kowloon Office to the Hong Kong Office.

128. I do not accept the 1st Defendant's evidence that the Account Overview of 18th July 1994 was made up by him at the request of the Plaintiff. The allegation is simply incredible. The source documents relating to the entries in the account were kept by the Kowloon Office. There was simply no way that the Plaintiff could have laid his hands on the material and instructed the 1st Defendant to prepare this account.

129. The 1st Defendant's account of how the Account Overview of 18th July 1994 was prepared is bizarre. He stated that one week before 18th July 1994, he was asked by the Plaintiff to compile a report of $30 million. The reason that was given by the Plaintiff was that the report was to be used to tackle his creditors. On 17th July 1994 when it was arranged that they would meet the following day, the Plaintiff told him to bring the nine deposit slips but not his wife.

130. Despite what the Plaintiff told him, the 1st Defendant asked the 2nd Defendant to come along because he had hearing problems. If the purpose of asking the 2nd Defendant to go to the meeting was to assist him with the hearing, then one would expect both of them to go at the same time. Instead we had this rather odd situation of the 2nd Defendant arriving at the cafe after the Plaintiff had allegedly tricked the 1st Defendant into acknowledging a non-existing debt. In my view, the evidence relating to the absence of the 2nd Defendant from the early part of the meeting is a lie and a deliberate attempt by the Defendants to disassociate the 2nd Defendant from the admissions made by the 1st Defendant in the Account Overview of 18th July 1994. I find that they were both present when the 1st Defendant acknowledged the debt.

131. It was suggested that the Defendants had previously referred in the police statements on to how the Account Overview was prepared, and how the 1st Defendant made his acknowledgement of debt in the 18th July 1994 Account Overview. The fact that the Defendants had explained in the earlier statements how these matters came into being does not mean what they had said was true. In any event while the 2nd Defendant mentioned about the loan in her statement to the police in August 1994, the 1st Defendant did not mention the loans at all.

$8 million

132. The Defendants referred to $8 million being raised to meet the Plaintiff's urgent need. However, there is no evidence that $8 million was given to the Plaintiff. The evidence show that the following sums were paid to the Plaintiff :

1. $22,400,698.42 - this was proceeds of sale under the Account Overview of 25th June 1994.

2. $5 million - this was paid to the Plaintiff on 18th July 1994 and evidenced by the nine pay-in slips;

3. $6.1 million - this was the payment made pursuant to the first weekly Account Overview in July;

4. $2.56 million - this was payment made pursuant to the second weekly Account Overview in July;

5. $4.87 million - this was not supported by any pay-in slips but accepted by the Plaintiff;

6. $5.061 million - this was the value of the stock left at the Kowloon Office.

Mr Yung's evidence

133. The Defendants relied on the evidence of Yung that the 1st Defendant in 1994 asked him to lend $500,000 "as he (i.e. the 1st Defendant) had to pay over to the Plaintiff as deposit to Citicomics". Mr Yung was not called as a witness although his witness statement was agreed to be admitted as evidence. What Mr Yung said about the $500,000 was not from his personal knowledge but was something told to him by the 1st Defendant. The 1st Defendant in his evidence confirmed that he in fact told his fokis that the Plaintiff needed the money.

134. In the end the Defendants simply fail to show that they had lent any money to the Plaintiff.

Burden of Proof

135. Despite the Plaintiff reporting the matter to the police, no criminal prosecution was brought against the Defendants. This is not a relevant matter in considering the civil liabilities of the parties. Mr Chong relied on Hornal v. Neuberger Products Ltd. [1957] 1 QB 247 and Phipson on Evidence, 14th Ed., para. 4-39. He submitted that the Court should consider the gravity of the issues in considering whether or not the burden of proof has been discharged. The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. He also reminded the Court of the approach to be adopted in assessing the credibility of witnesses by reference to the words of Lord Delvin in The Judge.

136. The passages cited are of sound principles and should be observed. In this case, the Plaintiff has clearly discharged the high burden imposed on him. In rejecting the Defendants' case, I have indeed based my decision on the substance of the case of the parties.

Commission for the 1st Defendant

137. The 1st Defendant claims commission for the month of July 1994. In 1969 the Plaintiff agreed with the 1st Defendant that the 1st Defendant would from that time onwards be entitled to a monthly commission representing 0.008% of the monthly gross turnover of the volume of the business of the Kowloon Office. The Plaintiff in the Reply agreed that the 1st Defendant was entitled to the commission. The gross turnover for the commission means the amount appearing in the bi-monthly Account Overviews or accounts prepared by the 1st Defendant as payable to the Plaintiff.

138. The 1st Defendant does not provide details of the commission he said he is entitled. Accounts were prepared by the Defendants up to 14th July in respect of receipts from the sale of publications. The 1st Defendant claims that he is precluded from gaining access to the accounts as a result of his dismissal from the employment on 6th August 1994. Mr Chong asked for the assessment of commission to be adjourned.

139. In my view, it is the duty of the 1st Defendant to present his case fully in relation to the claim for commission. His dismissal from office does not prevent him from seeking specific discovery of the earnings of the Kowloon Office for the months of July and August. Had this been done, then clearly he is in a position to calculate his entitlement to commission. It is not proper to adjourn the assessment of the commission. The appropriate course is the one suggested by Mr Tong S.C., namely, to dismiss the claim for commission without prejudice to the 1st Defendant's right to claim this in a subsequent action. In any event, the right to commission must be subject to the Plaintiff receiving the proceeds of sale from the Defendants or being able to recover the judgment sum from the Defendants.

Property tax

140. The Defendants claim that there was an agreement between the parties that the Plaintiff would pay for all the outgoings of the Kowloon Property which included property tax levied on the Plaintiff and the 2nd Defendant. The 2nd Defendant claimed that she had paid property tax for the Kowloon Property from 1993 to 1994. The total sum paid less rebate by the Government was $299,918. She seeks to recover this sum from the Plaintiff.

141. The Plaintiff argued that the agreement in fact was informal in nature and the Defendants had failed to prove their case on the right to the property tax.

142. It is clear from the Plaintiff's Reply that the Plaintiff had admitted that there was such agreement between the parties. The Plaintiff is bound by the admission he made in the pleading. The only issue now is whether the agreement to pay property tax for the 2nd Defendant is subject to the condition that the 2nd Defendant should remain an employee of the Plaintiff. In my view, the Plaintiff's case on this issue is a valid one. Although the agreement was made by the Plaintiff and the 2nd Defendant as co-owners of the Kowloon Property, one has to consider the context in which the agreement was made. The arrangement to pay property tax was carried over from the agreement relating to the former premises of the Kowloon Office in which the Plaintiff and the 2nd Defendant were also co-owners. The consideration for paying the 2nd Defendant's share of the property tax must be based on the work performed by the 2nd Defendant as an employee of the Plaintiff. Once this relationship ended, the liability of the Plaintiff to pay her share of the property tax must also end.

143. The demand note for the property tax for 1993 to 1994 was issued in December 1994. As the 2nd Defendant only ceased to be an employee in August 1994, she is entitled to have a proportion of her share of the property tax being paid by the Plaintiff. For the subsequent years, if the 2nd Defendant had paid property tax for and on an behalf of the Plaintiff as well, then she is, of course, entitled to recover the portion she paid for the Plaintiff. I would ask the parties to agree on the actual amount that may be due to the 2nd Defendant. This amount is to be deducted from the claim of the Plaintiff.

Entitlement under employment contract

Admitted claims

144. The Plaintiff accepts that the Defendants are entitled to a proportion of the end of year payment, annual leave and outstanding wages. The amount for each of them is as follows :

1st Defendant	$10,904.92
2nd Defendant	$10,101.41
3rd Defendant	$9,602.81
Total	$30,609.14

Damages

145. As to the one month's salary representing damages for wrongful termination of the employment, clearly the Defendants are not entitled to this claim because their employment were properly terminated for cause by the Plaintiff.

Long service payment

146. In respect of the long service payment of the 1st and 2nd Defendants, the claim is defeated by s.31S(1) of the Ordinance which provides that:-

"Except as provided by section 31X, an employee shall not be entitled to a long service payment by reason of dismissal where his employer, being so entitled by reason of the employee's conduct, terminates his contract of employment without notice or payment in lieu in accordance with section 9."

Under s.9 it is provided that:-

"An employer may terminate a contract of employment without notice or payment in lieu:-

(a) if an employee, in relation to his employment -

(i) wilfully disobeys a lawful and reasonable order;

(ii) misconducts himself such conduct being inconsistent with the due and faithful discharge of his duties;

(iii) is guilty of fraud or dishonesty; or

(iv) is habitually neglectful in his duties; or

(b) on any other ground on which he would be entitled to terminate the contract without notice at common law."

Barnett J. in So Ching trading as South Sea Co. v. Kwan Hang Ching & Anor. [1987] 2 HKC 297 held that:-

"(1) What must be looked for ........ is whether what has been done by an employee is something which is expressly or impliedly a repudiation of the fundamental terms of the contract such as to justify an instant dismissal.

(2) The burden of proof is on the employee to prove firstly, that his employer terminated the contract and secondly, that the dismissal was not for cause."

147. I disagree with the view that the burden is on an employee to show that he is not dismissed for cause : Hung Wing Kam v. K.L. Services Limited (L.T.A. No.124 of 1996). The burden to show that an employee is dismissed for cause is on the employer. Apart from this I agree with the decision of Barnett J. In this case the Plaintiff has discharged this burden. The under-reporting of the proceeds of sale of $77 million must be a repudiation of the contract of employment by the Defendants which justified instant dismissal by the Plaintiff. The Defendants' claim for long service payment is dismissed.

Other matters

Missing documents and sales brochures

148. The Plaintiff also relied on matters such as documents found missing from the Kowloon Office and the brochures prepared by surveyors relating to offers to the Defendants of industrial properties and office space in Wanchai. These matters were relied upon as further evidence of dishonesty of the Defendants. I do not need to rely upon them as evidence of dishonesty. The Plaintiff has clearly established his case against each of the Defendants.

Barry Ng

149. It was suggested that Barry Ng, the son of the Plaintiff asked Citicomics to prepare the letter dated 19th September 1997 Exh.P-4 with the sole object of nullifying the Defendants' Defence. The letter simply stated that :-

" Concerning your recent enquiry and request for clarification as to whether our company has pursued (our claim on) the outstanding sum during the period in June 1994 against you. Other than the letter issued to you by us concerning an outstanding sum of HK$14,120,516.50, (we) have not taken any other recovery action. Furthermore, the aforesaid letter was issued in accordance with the request of our auditor for audit purposes. Our company and you have maintained a good relationship in the past and the account of (our company) has been settled before it is due. This serves as proof."

I accept Mr Ng's evidence as to the circumstances in which he requested Citicomics to issue this letter. At that stage the police was seeking further information from Citicomics. The letter could not have the effect contended for the Defendants. The letter showed that in June 1994, there was in fact this sum outstanding between the parties.

Conclusion

1. There shall be judgment to the Plaintiff in the sum of HK$53,412,628.85. This amount is subject to :

1) the deduction of the amount of property tax to be agreed between the parties;

2) the statutory payments and outstanding wages in the total sum of $30,609.14.

2. All other cross-claims by the Defendants are to be dismissed.

3. The Plaintiff is entitled to interest on the judgment sum at judgment rate from the date of the service of the writ to payment.

4. The Plaintiff is entitled to costs nisi of the action.