MADAM WONG LAI YIN formerly trading as HON SHING GARMENT FACTORY (1st Respondent)

Coram: Sir Alan Huggins, V.-P., Cons & Fuad, JJ.A.

Date of hearing: 1 February 1985

Date of delivery: 12 February 1985




Sir Alan Huggins, V,-P.:

1. We gave leave to appeal in this case because we thought it was arguable that the judge had failed adequately to consider the relevantissues. After hearing both sides we came to the conclusion that that tentative view had been justified.

2. The Plaintiff sued for the price of goods alleged to have been sold and delivered. At the beginning of the trial the judge said “Formalpleadings not needed in view of Plaintiff not being represented”. There were in fact formal pleadings, and we assumed that what thejudge meant was that he would not hold her strictly to her formal pleading. The Statement of Claim alleged that the contract waswith both Defendants, but it immediately transpired that the Plaintiff case was based on a sale by her to the 1st Defendant, withan immaterial allegation of a re-sale by the 1st Defendant to the 2nd Defendant. The 2nd Defendant did not appear at the trial andthe judge made no order against it. Even on the application for leave to appeal the Plaintiff repeatedly spoke of an agreement to”lend” the goods to the 1st Defendant, which further indicated the confusion in her own mind.

3. However, what really lifted the case out of the ordinary run of claims for goods sold and delivered was that the person alleged tohave contracted on behalf of the 1st Defendant (both on the sale and the re-sale) was also the husband of the Plaintiff, and theprincipal issue which had to be decided was whether the husband had authority so to contract and to receive goods on behalf of the1st Defendant’s factory.

4. Before we turn to the main issue, we must observe that the judge appears to have thought that another issue arose, namely whetherthe Plaintiff was the owner of the goods which were apparently delivered to the 1st Defendant and warehoused in her name, although,having implicitly raised that issue, he never decided it. His doubt as to the plaintiff’s ownership stemmed from the fact that thehusband was in financial difficulties, and the judge suspected (although he was not prepared to find) that the whole transactionfrom beginning to end was designed to salvage (sic) some goods for [the husband] from his impending bankruptcy”. It was implicit that he thought the goods might in truth be the goods of the husband and not thoseof the Plaintiffs. The Plaintiff’s explanation of how they came into her possession was certainly unconvincing, but we thought wehad to assume that the judge proceeded on the basis that the Plaintiff was the owner.

5. The husband gave evidence that he was the export manager of the 1st Defendant’s factory and, further, that he was expressly authorizedto enter into this particular contract. His position in the factory was irrelevant if he was given such specific authority. The 1stDefendant denied that he was the export manager and said that he was only a clerk. Neither side testified directly to the extentof his authority as distinct from his position, and the judge concluded that the 1st Defendant was telling the truth. Indeed, thatwas all he decided. With the greatest respect, he completely failed to direct his mind to the particular issue or issues, and tosome of the evidence called by the Plaintiff. It was not clear whether he considered the extent of the husband’s general authority,but, if he did, he presumably assumed (as did the Plaintiff) that if the husband were the export manager he must have had authorityto contract and to receive goods on behalf of the firm. Be that as it might, he seemed not to have appreciated that there was evidencetending to support the husband’s assertion as to his position. The Plaintiff – no doubt through her husband – was able to producecorrespondence between the 1st Defendant’s factory and overseas customers which showed that the husband was openly claiming to be,and being taken to be, the export manager. Even more important, she produced statutory returns made by the firm and signed by thehusband as “Manager”. The 1st Defendant was never asked for an explanation of these documents. It was not enough that they were inEnglish and that she could not read English. The judge made no mention of this evidence in his judgment.

6. Equally the judge made no reference to some very contradictory evidence recorded as having been given by the 1st Defendant concerninga cheque which initially she said was “drawn on my factory …… in favour of [the 2nd Defendant]” and subsequently suggested it was “for account of [her own factory] and had been issued to her company by the 2nd Defendant. It might be that the cheque was of no direct relevance, since it was apparentlynever paid into the 1st Defendants account, but the contradiction cast some doubt on the credibility of the witness.

7. It might well have been that there was evidence upon which the judge could find for the 1st Defendant, but we were by no means satisfiedthat the Plaintiff had had a fair trial of her claim. Even if that claim were ill-founded, we though she would have a legitimatesense of grievance were the judgment allowed to stand.

8. We allowed the appeal and ordered a re-trial.

12th February 1985


Appellant in person

S. Cunningham for 1st Respondent