TANG WOUNG SHIU v. TANG KUN YEUNG AND ANOTHER

                 HCA 5527/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5527 OF 1998

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R U L I N G

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1. The plaintiff challenges the authority of the solicitors who are the instructing solicitors of Mr. Wong, for the defendants, to act on this application.  As I understand the position, the plaintiff first raised this matter by a letter to the defendants’ solicitors on 12 September 2006. 

2. I am informed by Mr. Wong that apart from the powers of attorney, to which I will come to in a minute, his instructing solicitors are in direct contact with the defendants and are also receiving instructions from them directly, quite apart from the powers of attorney granted by the defendants. 

3. By a power of attorney dated 7 March 2006 the 1^st defendant appointed Mr. Tang Chi Kin to be his lawful attorney to, inter alia, demand sue for and receive the taxed costs owing and payable by the plaintiff to him under the action and to collect the taxed costs from the plaintiff under the action. 

4. By a power of attorney dated 22 June 2005 the 2^nd defendant appointed Mr. Wong Yiu Moon as his attorney to act in accordance with s. 7 of the Powers of Attorney Ordinance, Cap. 31 (“the Ordinance”).

5. I do not see why it is said that the powers of attorney are defective in this case.  The power of attorney executed by the 2^nd defendant is a general power of attorney.  The point taken by the plaintiff in his skeleton submission is that the address of the donee has not been inserted in the power of attorney and hence it is not in the form set out in the Schedule to the Ordinance. 

6. S. 7 of the Ordinance provides as follows :

“ (1) Subject to subsection (2), a general power of attorney in the form set out in the Schedule, or in a form to the like effect but expressed to be made under this Ordinance, shall operate to confer-

(a) on the donee of the power; or

(b) if there is more than one donee, on the donees acting jointly or acting jointly or severally, as the case may be,

authority to do on behalf of the donor anything which he can lawfully do by an attorney.”

7. In Multi-More Industries Ltd. v. Tung Hoo Fai and another [1991] 2 HKC 261, Nazareth JA said at pg 267 :

“ On its plain meaning, s 7 provides for two types of general powers of attorney, ie first, a power of attorney in the form set out in the Schedule and, second, a power of attorney in some other form to the like effect but expressed to be made under the Ordinance.  Both are plainly and equivocally given the same effect; they operate to confer on the donee authority to do on behalf of the donor anything which he can lawfully do by an attorney.”

8. The power of attorney executed by the 2^nd defendant is to the like effect.  Although it does not contain the address of the donee it is in a form to the like effect as the form set out in the Schedule to the Ordinance.  I see no reason why that power of attorney is ineffective. 

9. As regards the 1^st defendant’s power of attorney, the 1^st defendant is and was the registered manager of the Tang Man Fat Tso appointed under s. 15 of the New Territories Ordinance, Cap. 97.  There is nothing in the Ordinance which prevents the registered manager from appointing an attorney as his agent to perform certain duties on behalf of the manager.  I see no reason why that power of attorney is said to be ineffective. 

10. In any event, quite apart from the powers of attorney counsel has informed me that his instructing solicitors are receiving instructions directly from the 1^st and 2^nd defendants.  The plaintiff is unable to provide any evidence to challenge that. 

11. I see no basis for any challenge to the authority of the solicitors for the defendants and rule against the plaintiff on the preliminary point raised.