JUDGMENT

1. This is an application by the 2nd defendant (the defendant firm) made under O. 12 rr. 1 and 2 of the Rules of High Court 1980 (hereinafter referred to as "RHC") wherein the defendant firm applied for an order to set aside the writ taken out by the plaintiff against the defendant on the ground that it had not been properly served upon the defendant firm, and costs of the application to the defendant.

2. In the affidavit affirmed on 26th November, 1996 in support of the application, Mr. Paul Kan Yau Fah stated that the plaintiff's writ dated 11th November, 1995 was despatched [2] to the defendant firm by means of Pos Laju, a courier service, and which writ was received and duly acknowledged on 6th November, 1996 by the firm through Mdm. Kong Fui Yee, a clerk in the employ of the defendant firm. This was confirmed by the affidavits of Mdm. Kong Fui Yee and Mr. Patrik Balacus, both are members of the staff of the defendant firm. The defendant contends that the service of the writ was bad as it contravened O. 77 r. 3 of the RHC, which stipulates: -

"3. (1) Where by virtue of rule 1 parties are sued in the name of a firm, the writ may, except in the case mentioned in paragraph (2), be served -

(a) ;on any one or more of the partners; or

(b) ;at the principal place of business of the partnership within the jurisdiction, on any person having at the time of service the control or management of the partnership business there;

and where service of the writ is effected in accordance with this paragraph, the writ shall be deemed to have been duly served on the firm, whether or not any member of the firm is out of the jurisdiction."

3. It is clear that under rule 3(1)(b) the phrase "any person having at the time of service the control or management of the partnership business" means a person who for the time being is in charge of the office or place of business. The words "control or management" must be accorded a broad and literal treatment and mean to include the control by the staff who are responsible to see the day to day administration or operation of the office or business in the absence of the partners. For example, if a document or parcel is addressed and delivered to the firm, through the post or personal delivery or by courier, it is incumbent on a staff present in the office to accept it on behalf of the firm, unless he or she is expressly prohibited to do so. In the instant case, the person who had in fact managed or controlled the office at the material time when the writ was delivered was Mdm. Kong as obviously none of the partners including Mr. Paul Kan was present in the office. Here, there is no evidence to [3] show that there is such an express prohibition on Mdm. Kong that she was not to accept any document or anything on behalf of the firm during the absence of any partners. Who gainsay that Kong had thereby committed an act contrary to her duty. It is reasonable to infer that by accepting the documents sent by the plaintiff through Pos Laju, Mdm. Kong had acted bona fide and in the normal discharge of her duties as a clerk in the firm. In my judgment, Mdm. Kong had not exceeded her duty by receiving and acknowledging the said document on behalf of the defendant firm, and as soon as practicable had brought it to the attention of Mr. Paul Kan. There is no evidence to show that Mr. Paul Kan had not received the writ from Mdm. Kong as soon as possible. As a matter of fact, he received it soonest and had accordingly entered a conditional appearance within the prescribed time. I hold that the writ has been duly served on the defendant firm.

4. The defendant contends that under O. 10 r. 1(1) of the RHC, the writ must be served by a prepaid A.R. Registered post, thus the plaintiff had breached O. 10 r. 1(1). Order 10 r. 1(1) of the RHC stipulates that -

"Subject to the provisions of any written law and these rules, a writ must be served personally on each defendant or by sending it by prepaid A.R. registered post a