TEIN FONG PRIVATE LTD v. GOODYEARS MARKETING AND OTHERS

C.L. No. 138 of 1984

Headnote

Commercial Law.

                Godown Warrant. A godown warrant equates with a warehouse warrant or warehouse keepers certificate.

C.L. No. 138 of 1984

IN THE SUPREME COURT OP HONG KONG

HIGH COURT

COMMERCIAL LIST

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BETWEEN

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JUDGMENT

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1. The action before me relates to the plaintiff's claim that the 2nd defendant is liable to it for damages suffered as a consequence of the 2nd defendant failing to meet its obligations under a document known as a "Temporary Godown Warrant".

2. The plaintiff is an import/export company incorporated in Singapore which has a branch in Hong Kong. The 2nd defendant (hereinafter called D2) is a firm whose registered partners at the relevant time were DW1 CHAD LEUNG KOK and one LAM YUK KING. D2 engages in the business of transportation, packing and shipping, and it is the plaintiff's contention that it's business is also to supply warehouse storage i.e. it is a godown. D2 denies this and says that such storage as it does undertake is temporary storage for its clients in order to facilitate the packing of goods for transportation which is D2's principal and primary business.

3. The 1st defendant (hereinafter called D1) is a firm engaged in the business of import and export which was represented at all material times by the 3rd and 4th defendants (hereinafter called D3 and D4 respectively). D3 apparently worked for D4 who had some control over D1 if indeed he did not own it. D4 stayed mostly in the Philippines. Dl and the plaintiff had had previous business dealings with the plaintiff as it had via, D3 and 4, with D2 but until this case the plaintiff and D2 had not been previously involved.

4. In July 1983 the plaintiff opened an irrevocable Letter of Credit on D1 behalf with Barclay Bank International Ltd. in favour of a supplier in USA for US$111,129.60 for the purchase of 3 containers of merchandise. Dl was to repay the plaintiff within 60 days of payment by the issuing bank or incur further interest as particularised. Certain other charges were also payable and, in addition, on the 19th July 1983, Dl paid to the plaintiff a deposit of HK$60,000. The Bill of Lading issued to the plaintiff and on or about the 17th August 1983 the supplier obtained payment on the Letter of Credit and the goods themselves arrived in Hong Kong on the 24th August 1983 in 3 containers numbered UFCU 602537, UFCU 6372512 and UFCU 2961556 (called the 1st, 2nd and 3rd containers respectively).

5. As between the plaintiff and Dl what then happened was that on the 17th September 1983, D3 and D4 attended at the office of the plaintiff and saw a director PWl Miss YEUNG PIK YUK and asked her for the release of the 1st and 3rd containers which were then in store in the plaintiff's name as consignee at Kwai Chung. This was agreed and in return for the release of the security of those 2 containers, Dl gave the plaintiff a cheque postdated to the 4th October 1983 for HK$150,000 and pledged another container of goods, namely chocolates said to be worth US$60,000 (HK$485,000) (referred to as the 4th container) by depositing with the plaintiff a Godown Warrant for those goods to be issued by D2 who was to house that container.

6. That Godown Warrant was delivered to the plaintiff by Dl on the 22nd September 1983 and is P6. It is a simple document issued on D2's letterhead and has the heading "Temporary Godown Warrant". It contains the number "G/W No. 2297" and commences "Received from Tein Fong Private Ltd. by vessel "Mosel Express" V.D58/46 storage payable from the 17th September 1983". It then sets out the marking and description of the goods and is signed by DW1 CHAU LEUNG KOK over D2's chop. The document has space for "Remarks" and "Delivery Record" (i.e. if partial deliveries of the goods) but those spaces are blank.

7. On the 3rd November 1983, D3 called at the plaintiff's office and on behalf of D1 paid HK$150,000 in cash in an endeavour to redeem the postdated cheque for that amount and the Godown Warrant. The HK$150,000 was paid over but D3 got neither the return of the postdated cheque nor the Godown Warrant as the plaintiff was not prepared to release these security documents. The $150,000 cash was accepted on account of monies due under the Letter of Credit arrangement. On the 4th November D3 and D4 again called at the plaintiff's office seeking the return of the Godown Warrant but again that was refused.

8. There the position remained so far at least as the plaintiff was concerned until the 21st November when PW1 contacted DW2 YEUNG MIU YUNG, an office employee of D2 in relation to the removal on the plaintiff's account of the 2nd container to D2's godown for storage. During that telephone conversation PWl learnt that the goods referred in the Godown Warrant P6 had been removed and shipped to the Philippines by D2 for D1 on the 5th or 6th November. PW1 then spoke to DW1 and learnt from him that this was indeed true and that he had packed and shipped the goods in P6 off for D1.

9. With that skeleton of events as a frame I need now turn to how D2 fits into the picture. It became involved on either the 15th or 16th September 1983 when D3 attended at the plaintiff's office and handed over a release order for the 4th container, then at Kwai Chung, standing to the order of a company named Kogarley Enterprises Ltd. as consignee. The release order is endorsed by Kogarley Enterprises Ltd. (Page 9 of Defendant's Bundle). Whether D1 was Kogarley's agent or a purchaser from it is not known and at the end of the day does not matter.

10. D2 was instructed by D3 on behalf of D1 to pick up and devan the chocolate in that container and this D2 did. The container was picked up from the terminal at 2:30 p.m. on the 17th September 1983 and taken to D2's godown where in due course it was unpacked and the goods held by D2 pending further instructions.

11. It is the evidence of PW1 that on the 17th September 1983, when D3 and D4 came to the plaintiff's office to get a release of the 1st and 3rd containers, before even agreeing to the release on the substituted security of, inter alia, the 4th container, she telephoned D2's office. She spoke, she says, to DW2 and asked whether there was indeed such a container instore at D2's godown and was told that there was and that D1 had already issued instructions to D2 to issue a Godown Warrant related to it in the name of the plaintiff. Acting on this assurance PWl then handed over the 2 Bills of Lading for the lst and 3rd containers to D1 and took the postdated cheque relying on D1 to deliver the warrant to it in due course.

12. DW2 denies any telephone conversation at all with PW1 on the 17th September and says there was no such conversation at any time and on this, as with other matters, there is a clear issue of credit. Having seen and heard both these witnesses give evidence, I have no hesitation in accepting the evidence of PWl and insofar as DW2's evidence on any issue is at variance with that of PW1 I accept PW1's account of events.

13. DW2 was, during these relevant times, the person in D2's office who attended to administrative matters and the organisation and detailed ranning of D2's small office which comprised DW1, as manager, DW2 and a bookkeeper. D2's godown is located elsewhere and is separately staffed. DW1 said he left the bookwork and office matters to DW2. DW1 does not read English. DW2 can both read and write English and so dealt with the documentation. She also dealt with telephone enquiries, organised transportation movements and kept the godown records. She looked after the office generally whilst DW1 was out doing business or at the godown or elsewhere.

14. DW2 sought to pass herself off as a timid young lady of no skill other than an ability to type and read and write English. She says she simply followed instructions from DW1 scarcely acting on her own initiative at all. This witness often took a long time to answer telling questions and often her answers were evasive or illogical and I was left with the overall impression that she was not telling the truth where that truth was or might be detrimental to D2's case. I believe she took a more active role in the office business than she admits, and I have concluded after all the facts were in that there is a strong likelihood that DW2 is responsible for a goodly portion of the predicament DW1 now finds himself in and has not told the truth in an endeavour to aid him now. She is not an impartial witness because in addition to seeking to help DW1 she now works for Eastern Worldwide Packing Company which is controlled, along with a series of other companies and businesses, by one James C.Y. WONG who, via a nominee, took over Eastern Worldwide Packing Company after these events and who, on the evidence, may well have been a partner of DW1 at times relevant despite not having been registered as such. DW2 has strong motives to support DW1 and Mr. Wong and I believe her evidence has been tailored to that end.

15. The evidence of PW1 had a ring of truth to it. It possessed basic common sense. She was not shaken in her evidence which was given impressively. I believe her and as regards the telephone call in addition, as the director of an import and export business who had dealt with all the business arrangements with D1, I think it highly unlikely that she who would agree to a release of the 1st and 3rd containers without at least checking that there was indeed such a container as the 4th container and where it was and to register, albeit informally, her interest in it.

16. I find that there was such a telephone conversation between PW1 and DW2 as PW1 narrates and that therefore on the 17th September, if not before, D2, through it's staff members DW2, if not DW1 also, had already had instructions from D1 to issue a Godown Warrant in favour of the plaintiff for the goods in the 4th container.

17. On the 17th September 1983, a Saturday, after D1 had obtained the release orders for the 1st and 3rd containers, D3 and 4 attended D2's office and on behalf of Dl gave a series of instructions. D2 was to collect the 1st and 3rd containers from the terminal and to this end D2 was given 2 Release Orders (Page 3 of Defendant's Bundle). They were also to collect 2 empty 40 ft. containers from the shipping company (Page 14 of Defendant's Bundle), and a load of dry lily flowers from a supplier (Page 13 of the Defendant's Bundle). D2 was then to pack the two 40 ft. containers with the content of the 1st and 3rd containers (which were 20 ft. containers) together with the dry lily flowers, 2 lots of melon seeds then already in store under Godown Warrant for Dl in D2's godown (Pages 11 and 12, Defendant's Bundle) and 500 cartons of chocolate taken out of the 4th container. This was duly done on the 18th September at the godown on DWI's instructions. The arrangements for the packers, workers and soon made by DW2.

18. At the end of this assignment there then remained in D2's godown 2270 cartons of chocolate from the 4th container plus 70 cartons of Tang Orange juice which had not been shipped but had been unpacked from the 1st container.

19. On the 19th September i.e. the Monday, DW2 received from the godown the delivery receipt related to the 4th container (Page 29 of Defendant's Bundle). That godown document related by reference to Godown Warrant No. 2297 and dated the 17th September has a notation put on it by DW2 on the 19th September that 500 cartons had been taken out. That means that DW2 knew on the 19th that part of the 4th container's goods had indeed been disposed of elsewhere.

20. It may even be that both DW1 and DW2 knew this was to happen on the 17th. DW1 had given instructions for arrangements and they were carried out as to transportation, workers and so forth by DW2. It is likely that DW2 and perhaps DW1, in the conveyance of instructions from D1, knew that the chocolates were to be shipped. In any event, it remains that D2 knew via its staff of the disposal of the 500 cartons before the 20th, although DW2 herself say she did not know until at least the 20th. Despite DW2 knowing this fact however DW2 typed out 2770 cartons in the Godown Warrant P6 when she prepared it on DW1's instruction after D3 called on the 20th September to seek action regarding the warrant. The false total carton figure of 2770 was put on the warrant despite 500 cartons being missing probably at the request of D3 who had to hand it to the plaintiff. Nonetheless it was so put by DW2 who knew it was not correct, as probably also did DW1.

21. At the time the warrant was being prepared D3 phoned PWl to find out the English spelling of the plaintiff's name. PW1 agreed this is so and D3 handed the phone to DW2 to take that name down. PW1's evidence, which I find as the fact, is that during that call she asked DW2 when the warrants would be ready and was told in a day or two. I do not believe DW2 when she says all she did was take the spelling down.

22. The warrant P6 was typed out and handed to D3 who, on the 22nd September, took it to PW1 in her office and she then noticed that it was headed "Temporary Godown Warrant" and not knowing what effect "Temporary" had she telephoned DW2 and learnt she did not have to substitute that "Temporary Warrant" for a permanent one and that, in effect, a "Temporary Godown Warrant" was no more or less than a Godown Warrant issued by a small private godown. Nothing in the end turns on whether the warrant is "temporary" but during the curse of this conversation, PW1 had it confirmed to her by DW2 that the goods referred to in that temporary Godown Warrant would only be released on production of it and that any partial deliveries would only be allowed upon presentation of the warrant for the appropriate endorsement.

23. DW2 denies this conversation took place at all. I do not believe her. What PW1 says DW2 told her as to the effect of the warrant accords with what both DW1 and DW2 say was the intended practice of D2's office in relation to Godown Warrants. There was a grey original for the customer and an office copy. The intention was to hand over the original grey copy and only allow deliveries against production of it but because D2 dealt mostly with old clients, often, unless it was asked for, the warrant was simply left on file at D2's office and the goods released without it. The point is however that a proper procedure had been installed and it was that practice that DW2 told PW1 they operated.

24. On the 27th October 1983, DW2 issued an invoice (D2) to the plaintiff covering storage charges for the 2270 cartons of chocolate originally from the 4th container. DW1 caused this to be done on D1's instructions. The invoice was handed to either D3 or D4.

25. DW1 explains this act, and the course he followed on these dealings, by saying that he all along thought Tein Fong an associate company of Dl but he agrees that nothing was said or done by D3 or 4 to give him this impression. He simply erroneously assumed it to be the case principally because he knew sometimes a chain of companies was used to facilitate Philippine customs entry and he thought something akin was happening here and that the reality was he was dealing with D1. There may be some truth in this, at least as to what DW1 believed in the early stages. The facts prove him to be careless and one who raid scarce attention to paperwork. He also admitted to practices of inaccurate documentation designed to evade alleged corruption by customs officials in the Philippines. The accuracy of papers and paperwork did not greatly concern him. He was used to a practice of a series of companies of an importer designed to evade Philippine duty.

26. It is a fact that DW2 knew of the separate interest of the plaintiff in the 4th container and one would have expected her to have told DW1 if nobody else did. Perhaps however she did not and DW1 drifted on, unconcerned, as he quite obviously was, with such paper work, tight and organised procedures and practices in the pursuit of business with long established customers however and by whatever name they cared to call themselves. The cold fact at the very least remains however that DW1 signed P6 on behalf of D2 well knowing that he was holding goods as keeper for a specific identity known as Tein Fong Private Ltd. and probably knowing that P6 was false in the statement of quantity.

27. I have already referred to how, on the 3rd and 4th, D3 and D4 tried unsuccessfully to secure the Godown Warrant P6 from the plaintiff. Clearly they wanted to get it and that leads to the conclusion that they at least thought D2 would require it to release the goods. That was not to be so however because on the 5th November, a Saturday, they both arrived at D2's office a little before noon and asked DW1 to have his staff work overtime to pack for a shipment on a ship leaving on the 6th. DW1 agreed and on the Sunday a rush job was undertaken at the godown and the 2270 cartons of chocolate from the 4th container were loaded into a container with other goods supplied by D1 and then shipped off. DW1 made no check with the plaintiff that it was in order to ship off the goods nor did he require production of the Godown Warrant. Whether he did this because he was a party to some scheme, or duped, or negligent, or told it would be produced in a few days, or giving "face" to D3 and D4 or himself a pawn in D4's revenge upon the plaintiff for not releasing the godown warrant does not really matter; he did it in breach of his own, albeit often waived, practice to require surrender of the godown warrant. He took that step of not securing the warrant back at his own peril.

28. When PW1 telephoned D2 on the 21st November to move another container to D2's premises and found out from DW2 that the 4th container's contents had been shipped off, she spoke to DW1 who agreed that that had happened and I accept PW1's evidence that what DW1 said was that D3 and 4 were old customers and there had been many previous occasions when he had released goods to them before the Godown Warrant was produced on the basis that it would be produced later and that he did the same thing on this occasion and that as they had deposited these goods with him he thought Tein Fong to be one of their associate companies anyway.

29. The plaintiff thereafter put this matter in the hands of its solicitors but on the 25th or 26th November 1983 PW1 met DW1 at the office of Mr. Wong Chu Yik in the same building as D2's office. DW2 gave no satisfactory account of this meeting at all or why else he was present at it if he had not been summoned to it by Mr. Wong. I believe PW1 in that at that meeting, pre-arranged by PW1 through Mr. Wong to whom she had made a complaint about D2's conduct and dealings Mr. Wong scolded DW1, assured PW1 that he, Mr. Wong, would be responsible for the plaintiff's losses and that DW1 was directed to fly to the Philippines to resolve the matter with D4. In the event however, Mr. Wong did not honour these undertakings.

30. I am of the view that Mr. Wong was more probably than not a partner of DW1 in D2 at the time of these events. DW1 had worked for him prior to DW1 starting D2. He has employed a number of D2's staff and partners since DW1 ceased in business on his own account and transferred the business to Mr. Wong's nominee. DW1 and Mr. Wong, or his nominee company, were partners in the ownership of the godown premises from where D2 conducted its business at a rental to that partnership; Mr. Wong steered business to D2, and importantly Mr. Wong professed himself to be connected with "Eastern Worldwide Packing Company" as that name is listed with others, mostly embracing "Eastern Worldwide" in their title, on Mr. Wong's own business card give to PW1 at about the time of the meting in 1983.

31. I do not propose however dwelling on the evidence which points to Mr. Wong being a partner as the worth of his claim that "he would be responsible" in determining liabilities in this case is practically nil in any event and whether he is or is not a partner may very well become a triable issue in some late proceedings.

32. The 2nd defendant denies that it carries on the business of warehouse storage as alleged in the particulars of claim. It is clear that it does albeit that that storage has as its object retention of goods and containers losing moved about in the course of packing and shipment rather than for the sake of storage simpliciter. D2 stores goods, and acknowledges it does, apart from anything else, in referring in its documents e.g. godown warrant that it has a "Godown Department". It issues a godown warrant entitled "Temporary Godown Warrant" which itself acknowledges goods as being "Received on storage .... " It had issued some 2296 godown warrants prior to P6. The evidence is warrants were issued regularly. Goods were therefore taken for transient storage regularly.

33. The document P6 is a Godwon Warrant. The word "Temporary" adds nothing. "Godown" is not a word in the Oxford Dictionary. It is a Hong Kong word which equates in meaning to a warehouse. P6 therefore equates to a warehouse warrant or a warehouse keeper's certificate.

34. I have set the facts of this case out at length because those facts themselves attest how negligent D2 has been in this case in the conduct of his own business. His business embraces that of keeping a godown, he knows what a Godown Warrant is, he has prepared and issued many himself. In some cases it may be relevant to decide whether such a document itself is negotiable as a document of title or not but in this ease it is not. The warrant issued directly to and in the name of the plaintiff. The plaintiff is the named owner of the goods from whom D2 acknowledges receipt.

35. Nothing could be clearer than that D2 was holding the goods in the 4th container to the order and on account of the plaintiff and that fact is acknowledged to be so in the document which is P6 be it called by whatever name as well as by a representation of D2 in the form of DW2 as early as the 17th September 1983 in the several telephone conversations she had with PW1 to which I have already referred.

36. It stands DW1 to no avail to say he thought that D3 and D4 were connected with the plaintiff as an associate company to Dl. DW1 had no good reason to come to that conclusion. Indeed that D3 could not spell the plaintiff's name must have put him on guard had he thought about it at all. It must have been apparent to DW1 that there was some commercial significance in D1 requesting a Godown Warrant in the first place and, in the next place, that in the name of a stranger. Here was a situation where D2 acknowledged that it held goods on store for the separate, then strange identity, known as Tein Fong Private Limited. In careless disregard of that which he planned as his own practice and, in any event, known and established trade practice, DW1 dealt with these goods without making any enquiries as to his authority to do so and without exercising any care as to his own position in relation to his own documentation in blind compliance with instructions given to him by D3 and D4. Insofar as DW2 is concerned she actually knew that the plaintiff was interested in these goods as a holder of a Godown Warrant yet she proceeded to follow DW2 and D3's instructions knowing that the documentation thereby became false any that ultimately possession by D2 of those goods held to the plaintiff's account would be lost. By its partners any by its employee D2 was negligent in the handling and disposal of the plaintiff's goods.

37. It is right to conclude that by virtue of D2's written and oral acknowledgements of the instruction of the plaintiff that D2 has attorned that it held the goods for the plaintiff. On any view of the matter, D2, a godown keeper, was directed to hold goods in his possession on behalf of the plaintiff and attorned to the plaintiff by accepting that direction and/or acknowledging to the plaintiff that the plaintiff had the right to possess the goods upon payment of charges. D2 has deprived the plaintiff of its right to have the goods any is therefore liable to it for damages arising as a consequence.

38. As to those damages, clearly D2 is not liable to the plaintiff for anymore than the value of the pledged goods. The most the plaintiff can recover from D2 is the value of the goods in the 4th container up to the value of the pledge. The value of the goods is the value of the goods in Hong Kong in November 1983. As at 31/1/84 D1 was indebted to the plaintiff under the Letter of Credit arrangement as follows: -

The value of the pledge of the 4th container, remembering that the cheque which Dl gave to the plaintiff was not met, is the extent of the liability of D1 to the plaintiff i.e. $641,252.56.

39. There was evidence from PW2 Eric Leung of Connell Bros. Company (HK) Ltd., the agents for Hershey chocolates, giving the price of the various types of chocolate at the 5th January 1984 (See Plaintiff's Bundle p.44). I accept this evidence that the price of those chocolates from him in November 1983 would be 5% less than at the 5th January 1984. The total value of the chocolate in November 1983 was $633,911.125. DW2 in his own one question cross-examination of DW2 won a 15% discount on that figure as being the amount PW2 would allow off list price for a bulk buy. This would have been a bulk sale had the plaintiff had the chocolates to sell and so the value to it of those chocolates in November 1983 was 85% of $633,911.125 = $538,824.56.

40. That therefore is the figure which the plaintiff says it may reasonably have expected to have got for the chocolates in November 1983. That is the figure, plus interest, which the plaintiff says it is entitled to as damages.

41. The 2nd defendant says that the value of the goods is much closer to the $485,000 figure which D1 gave to the plaintiff as being their value at the time of the pledge. To support that proposition he was able to show, as is the case, that certain typps of chocolate vie. - "Milkyway 24/6 Pack" cost the plaintiff US$28.75 (HK$226) per case when it purchased such items included in the 3rd container shipment. PW2 said such items would cost $310 per case. The difference ($310 - $226) is about 37% which is the same percentage difference approximately as $667,275 (PW2's estimate of value at 28th March 1984) bears to $485,000 (Dl's estimate of value of the chocolates). D2 therefore says that PW2's valuations are too high and that the true value in November was somewhere around $485,000.

42. None of this was put to PW2. In any event the fallacy in D2's argument is that it is based upon a figure which the plaintiff paid for an item of chocolate in early August 1983. I am concerned with the value of the chocolates in November of that year.

43. D2 argues that any damage he is liable for should bear a credit for the $150,000 cash paid to the plaintiff by D1. I do not accept that argument any more than I do that he is entitled to a further credit of $83,500 as being the value of the 500 cartons shipped off before he says he realised that they had been.

44. I am satisfied that the proper approach is that adopted by the plaintiff and that it is entitled to $538,824.56 plus interest at 13.5% from the 5th November 1983 to the date of writ. That interest is $17,538.00 making the total amount of damages plus interest to the date of writ $556,362.00.

45. The plaintiff has asked for costs on an indemnity basis but I do not propose making such an order.

46. As at shortly before the trial D2 had at all times been represented by a firm of solicitors. At the trial however D2 was represented, as it were, in person by DW1.

47. The second defendant's solicitors, presumably on instruction, had drawn the defence and amended defence. The amended defence at least was signed by counsel. It pleads, inter alia, that D3 and D4 were the plaintiff's agents in certain of the dealings with D2 and had authority to act for the plaintiff. It was also alleged that the plaintiff had held out D3 and 4 as having such authority. There was absolutely no evidence of any such agency or authority and, in fairness to DW1, at no time during trial did he allege that there was. He said the pleadings were a "legal matter" dealt with by his solicitors and that in effect he did not know why such allegations had been pleaded.

48. The plaintiff says that but for these allegations raising triable issues it could have had summary judgment against D2 and so D2 ought, in effect be penalised by an order for costs on an indemnity basis for having held the plaintiff away from judgment on pleadings designed to achieve just that.

49. Whether DW1 is telling the truth when he says he did not understand the pleadings or whether he has taken a different evidential line at trial to that which comprised the foundation of his instructions to his solicitors is difficult to resolve without hearing all the parties involved. Accepting however that is even probable that the instructions were different to the evidence given the fact remains that DW1 did not pursue the unfounded agency claim in Court and I rather doubt that the plaintiff could have won a summary judgment and in any event had D2 not pleaded the agency point. There were other triable issues involved.

50. In my judgment it requires a degree of clearly established totally unfound delaying tactics, or even falsity, in the conduct of a case greater than could be said to exist here before an order for costs on an indemnity basis ought to be made against what is, in the end, an unrepresented defendant in a not simple commerical case. I propose making no other order for costs other than the standard order to a successful party which is costs on a party and party basis.

51. The plaintiff has indicated it will be content with interest at 13.5%. There will therefore be judgment for the plaintiff in the sum of $556,362 with interest at 13.5% from the 31/1/84 to judgment. 2nd defendant to pay the plaintiff's costs to be taxed if not agreed.