WISHING LONG HING (A FIRM) v. JINLING ENTERPRISE CO LTD

HCA007964/1988

1998, No. A7964

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

WISHING LONG HING (a firm)

Plaintiff

and

JINLING ENTERPRISE CO. LTD.

Defendant

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Coram: Hon. Liu J. in Chambers

Date of hearing: 1sth September 1989

Date of delivery of ruling: 1st September 1989

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D E C I S I O N

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1. The plaintiff and the defendant were parties to a previous contract for the supply of cement. One Mr Ling was allegedly the formermanager of the defendant. The appointment of Mr Ling as manager in the past was as a result of a pre-arrangement between the Shenzhencompany and the defendant when the Shenzhen company the defendant were in full co-operation.

2. The Shenzhen company and the defendant allegedly found their join enterprise disharmonious, and their association allegedly cameto a halt.

3. According to the defendant, Mr Ling, ceased to be the of the manager of the defendant, but prior to further alleged unauthorizedorders placed by Mr Ling with the plaintiff, the cement contract had yet to run its full course, and at the time of these allegedunauthorized orders the remainder of the cement contract was still being performed.

4. According to the plaintiff, these further orders were placed by Mr Ling purportedly on behalf of the defendant. Goods were suppliedunder these orders, but no payment has been made; hence the plaintiff sues the defendant.

5. The defendant disputes having at all placed these orders. The defendant claims that if they had been so placed, they were withoutits consent or authority.

6. The crux of the defence revolves around paragraph 9 of Mr Kan’s affirmation filed herein on the 6th July. Counsel for the plaintiffwas fully conscious of the various implications arising from this paragraph 9, particularly its last sentence which reads as follows:

“The said Zai Chung Ling told me and I verily believe that he was fully aware of the matter and that the said Zai Chung Ling onlyrequested me to make attempt to ask the said Shenzhen Jinling Enterprise Co. Limited for repayment.”

7. From this paragraph 9, it can readily be appreciated that the defendant’s contention is that the Mr Zai of the plaintiff admittedto the defendant, in the presence of Mr Zai’s daughter-in-law sometime at the end of 1986, that he was fully aware of Mr Ling’s wantof authority but that he was merely seeking assistance from the defendant to chase after the Shenzhen company for payment of thegoods supplied under the orders.

8. Mr Thong informs the court that he has carefully considered the last sentence and the interpretation he seeks to put on it is thus:

“All Mr Zai said when he was first made aware of the matter is that he was now aware of the matter on being told (probably for thefirst time) and (that be) proceeded to ask the defendant to make some attempt to hold the Shenzhen company responsible.”

9. Mr Thong, counsel for the plaintiff, readily concedes that his version is but one of the interpretations. The last sentence in paragraph9 reasonably read would, in my view, support more the interpretation that I have endeavoured to put upon it. With at least thesetwo possible interpretations to be ultimately determined when evidence is led, in the absence of any conclusive circumstances ordocuments to negative the assertion of Hr Kan of the defendant, the Court is inevitably driven to concur with the decision made bythe learned Master.

10. This is a fit case for unconditional leave to be granted to the defendant to defend. The appeal to-day therefore stands dismissed.The order of the Master is therefore affirmed, and subject to what counsel have to say, costs of today he costs for the defendantin any event.

(Counsel make no further submissions on costs)

11. Mr Thong, raises no opposition to the proposed order and I order accordingly.

(B, Liu)

Judge of the Hong Kong

Representation:

Mr K.Y. Thong instructed by M/s. Kwan & Kwan for the Plaintiff.

Mr A. Yan instructed by M/s. Wong, Hui & Co for the Defendant.