S v. Y FCMC 8775 / 1998

S’s words:-
Even though circumstances do have changed, many husband still do not understand their own necessities to apply for a variation of maintenance order. On the contrary, they choose to disregard the same which finally the wives have to take out judgment summons.
In fact, the Family Court is now more willing to vary maintenance orders, in particular, more husbands got their new families. The burden of the new family has to be considered. Although the financial means of the new wives have to be taken into account, with such evidence showing limited means on their parts, it is expected that the Family Court would not be robust but is prepared to vary the maintenance order(s) to be reasonable sum taking into account of the updated situations.
The following case is just an example but in fact more cases the maintenance orders are varied (but in sensible manners).

--- quote from judgment ---

Date of Judgment : 21 June 2007

Under the Original Order – apart from a payment by the Husband of a lump sum of $2,975,000 (‘the Lump Sum”) to the Wife – the Husband agreed to pay the Wife periodical payments of $12,000 and $13,000 as maintenance for the Wife and B respectively. The ending date of the Wife’s maintenance is upon her remarriage whilst that of B until her reaching the age of 18 or completion of full time education, which expressly includes university education. The Husband now seeks to vary each of the said payments downwards to $1,000 each month.

The parties, in principle, have no quarrel with the general principles underlying section 11(7) of the MPPO. According to the principles derived from the authorities the parties have submitted, I summarize below the applicable guidelines :

(1) The court is to have regard to all circumstances of the case, including a regard to the circumstances de novo;[1]

(2) A duty to make full and frank disclosure, a breach of which duty by a party may lead to an adverse inference being drawn by the court;[2]

(3) A financially dependent wife should be reasonably expected to find a means to be self-sufficient in order to achieve financial independence;[3]

(4) When a husband has remarried, a court – in considering the financial circumstances of this husband – is required to take into account the circumstances of his new family, including the financial resources of the new spouse[4] as well as his obligation to such a family.[5] A court should not threaten a husband with an excessive order in exchange for his agreement to continue maintaining a former spouse;[6]

(5) There is no room for “defaulting husbands” for using a financial hardship induced by them as a change of circumstances;[7] and

(6) The exercise of a court’s power is wide and unrestricted – including a power to terminate periodical payments[8] as well as to back-date an order of variation[9] – and, the overall objective is to achieve a fair outcome.[10]

...

As for periodical payments for the Wife, I would reduce the payment from $12,000 per month to $7,500, commencing from 1st February 2007.

香港特別行政區 v. 伍浩賢HCMA1176/2007

S’s words:-

The Magistrate in this case raised too much questions. However, it was decided that such was not the sole ground for appeal. In fact, two old case authorities were referred to explain when such would be sufficient. Some relevant parts of those two case authorities were translated into Chinese as well. In no doubt, that would assist in future solicitors for appellants to assess whether such a ground can be sufficient to assist their clients.

In any event, I have to say the Magistrate should not take the role of a prosecutor. On the contrary, he should be allowed to act as the role for the defendants in particular when such defendants are without legal representatives.

--- quote from judgment ---

裁決日期：2007年7月11日

上訴人被控一項猥褻侵犯，違反香港法例第200 章《刑事罪行條例》第122(1) 條，被判120 小時社會服務今，他現不服定罪，提出上訴。

上訴理由現歸納重組如下：

(1) 在上訴人作供時，裁判官多次積極界入干預盤問，問題帶壓逼性和引導性，令一名聆聽案件及知情的旁觀者會認為他擔當了主控官的角色。而及後原審裁判官利用上訴人在盤問下的答案與他的會面紀錄的內容不符之處，以上訴人證供前後矛盾為由，而拒納其證供，難免給予他人裁判官對上訴人的盤問，純粹為拒納上訴人證供製造彈藥之印象，令至上訴人不能獲得公平的審訊；及

(2) 基於上述，定罪不安全及不穩妥。

根據女皇訴楊茂林，CACC550/1989一案，該案指出法官干預的數量並非影響審訊公平的主要決定性因素，另外需要考慮的因素包括法官的態度和干預的性質，及該些干預對辯方抗辯所產生的影響。

上訴法庭在該案有以下的評論 ：

「本庭認為有關案例確立了下列五項建議。該等建議對本庭要考慮的問題適用：

(1) 法官發問問題的數目本身並非決定性之因素；

(2) 必須考慮問題之性質及數量及二者互動下所引起之後果；

(3) 無需確立法官事實上有偏見，只要法官之行為令一名對事件有認知的旁觀者認為法官已取代了主控官之職能，便已足夠；

(4) 如果原審時法官是單獨行事而非聯同陪審員審理事件，上訴法庭應考慮以下問題：究竟一名聆聽案件的人士會否合理地得出一個結論，就是法官提出之問題顯示他已經加入了『格鬥場』，而並非保持客觀之態度；

(5) 上訴法庭最終要考慮的問題是究竟原審法官的行為會否令一名聆聽案件及知情之旁觀者認定被告人沒有獲得一個公平之審訊。

本庭亦需強調在考慮原審法官之詢問是否恰當時，須謹記由始至終，原審法官有責任確保審訊是正當地及有條理地進行。」

有關之原則在香港特別行政區訴曾偉民，CACC190/2001中有詳細之闡釋，上訴庭楊振權法官指 ：

「一般情況下及當雙方都有律師代表時，雙方律師都會在証人之主問，盤問及覆問過程，將一切有關証供從証人口中套取，令法官有充份証據就有爭議之事實問題，作出裁定。

但很多時事與願違，由於對事件之觀感不同，或基於審訊過程時之策略運用，或証人回應問題之態度，或律師能力等等因素，法官未必能在雙方律師對証人之主問盤問及覆問過程中，獲得應有之資料，而令法官要向証人親自發問，以求對事件有更清晰的瞭解後才作出裁定。

只要在詢問証人時，法官能採取不偏不倚之態度，不會令一名合情合理之旁觀者，在知情的情況下，覺得法官有偏幫一方之嫌，上述做法不但無可厚非，更是合理及必須的。雖然另一較合適的做法是透過雙方律師向証人發問以求獲得所需資料。」

綜合以上兩件案件，因應情況所需，法官在聆訊過程中是可以親自提問證人包括被告人的。在此層面上，上訴法庭須考慮該些來自裁判官提問之性質、數量及兩者互動所引起的後果，以決定原審法官是否加入了「格鬥場」，審訊是否有欠公允。

審訊並無不公之處，上訴理據不足，駁回，維持原判。

TAI MEI LIN v. FUNG KING KONG & LEE MAN YI MANDY HCPI 425/2006

S’s words:-

The Plaintiff being the mother of the 1st Defendant commenced the action against inter alia her own son. The issue whether it is appropriate to claim the 2nd Defendant being the owner of the subject car was not discussed and I would not make any comment thereto.

However, this case was not purely a claim from a passenger claiming against his own driver but is a case that a mother claiming against her own son for negligent driving. It is definitely too difficult for the insurers to defend such a claim (on behalf of the Defendants or otherwise). Thus, if I were the solicitors for the Defendants, I believe a quick settlement should be preferred.

The Defence of undertaking “an emergency manoeuvre to avoid a collision with” a vehicle.

--- quote from judgment ---

Date of Judgment: 12 July 2007

Just after midnight on 25 May 2003 the plaintiff Madam Tai was one of four passengers in a Honda saloon car driven by her son Fung King Kong the 1st defendant.

But there was an accident. As they approached a slight left hand bend in the road Mr Fung caused the car to swerve to the left and it struck railings bordering the carriageway.

Madam Tai has not fully recovered and remains permanently partially disabled. By this action she is suing the driver, her son, and the owner of the car, Mandy Lee, the 2nd defendant, for her consequential loss arising out of Mr Fung’s negligent driving.

The defence as pleaded by both defendants and adduced in evidence is that Mr Fung was undertaking an emergency manoeuvre to avoid a collision with a public light bus. The PLB had emerged from the exit of a petrol station that was on the right hand side of Tai Tong Road and had turned right into the lane occupied by the Honda and just ahead of it. To avoid hitting the PLB Mr Fung had no alternative but to swerve to the left. But this action took him into a collision path with the railings which brought the car to a sudden and violent stop. Mr Fung was not negligent or responsible for the accident or his mother’s injuries; that was entirely the fault of the driver of the PLB.

It seems to me that the PLB emerged because its driver believed that he had adequate room and time to manoeuvre safely, and that this was probably a correct decision. Had there been a danger of an imminent collision the sudden prospect of danger would have been evident to Mr Fung’s passengers.

Mr Fung, an inexperienced driver with as he put it not very good skills, driving a car he had not driven before, over-reacted. If he were at all concerned about the proximity of the PLB the appropriate course would have been to brake and if necessary brake hard, to allow the PLB to accelerate away, and otherwise hold his line.

The course he took, of swerving at speed into the railings, was inappropriate, and the sole or at least primary cause of the accident.

HKSAR v. CHO HOI KIT HCMA 490/2007

S’s words:
Many magistrates always regard themselves that they are duty bound to call for DATC reports before sentencing. They may be right to do so. However, sometimes, with the assistance of such DATC reports, they may have failed to notice that it is wrong in principle to order detention in a DATC of a person currently serving a term of imprisonment. Cho Hoi Kit’s case with the assistance of AG v. To Ka-shing’s case can in suitable case scenarios assist some defendants’ legal representatives to ask for what such defendants are looking for – imprisonment.

--- quote from judgment ---

Date of Judgment : 10 July 2007

The Appellant appeals against the sentence of detention in a Drug Addiction Treatment Centre (“DATC”) passed on him by T.S. Jenkins, Esq. in the Magistrate’s Court at Shatin on two charges under the Dangerous Drugs Ordinance, Cap. 134, to which he had pleaded guilty, namely possession of a dangerous drug, contrary to section 8(1)(a) and (2), and possession of apparatus fit and intended for the inhalation of dangerous drugs, contrary to sections 36(1) and (2). He appeals on the ground that he was serving a prison sentence at the time and that it is wrong in principle to order detention in a DATC of a person currently serving a term of imprisonment. The prosecution (through Mr Cheung Wai-sun who is highly experienced and always helpful) concedes that that is wrong in principle. On the decided cases, principally that of AG v To Ka-shing [1987] HKLR 69 decided by the Court of Appeal, I consider the prosecution’s concession to be correct. Accordingly, I set aside the order for detention in a DATC and will, as the Appellant asks, impose a sentence of imprisonment instead.

LEE SHIU KWONG, acting on behalf of himself and the members of the family of the deceased, Lee Ping Yiu v. WAN TAK SHING & others DCEC926/2006

S’s words:-
When I read the Chinese judgment of the following case today, I feel a little bit surprised of ... (not correctness of the judgment or the amount of compensation).
Finally, I am not sure whether Sanderson order (I will check whether my spelling is correct) has been considered.
My humble view is that this is not a case authority that we need to read through.

--- quote from judgment ---

主審法官：區域法院暫委法官勞潔儀法庭聆訊
宣佈判決日期：2007年7月3日

“今日本席先作出裁決，判案理由書遲些書面派發，本席裁定在此案中第一及第四答辯人需共同及個別繳付予申請人：

同居女士付薇女士可得$1,050,000的75 per cent，等如787,500元。

死者兄李炳輝及妹李潔瑩各得$1,050,000的2.5 per cent，即26,250元。

在此案中第二及第三答辯人不負責任地容許自己的姓名被用為建基棚業公司及建基建築工程公司的商業登記持牌人，因而導致申請人向他作出訴訟，而他在此案中除了曾出席法庭外，並沒有存檔任何文件抗辯，今天也選擇不出席法庭，本席認為就第二、第三答辯人的訟費不作命令為妥切、適宜的。

至於第四答辯人嘅情況，雖然本席非常理解他的苦況，但根據《僱員補償條例》第24節，他要對本案負責，本席認為也應跟常規命令他支付申請人的訟費，包括大律師費用。”

FUNFAIR COMPANY LIMITED v. WONG LUI WING trading as t/a KWONG WING METAL CO CACV441/2006

S’s words:-
Many tenants always ask why they cannot terminate the tenancy as they wish. Tenancy Agreement in fact cannot be terminated unilaterally. If for example the tenant is in breach by way of terminating the tenancy without consent of the landlord, unless the landlord acts wholly unreasonable, it is still free for the landlord to accept the repudiation or not to accept the repudiation but to claim for rental.
However, the definition of “wholly unreasonable” of the act of a landlord has not been decided in the Court of Appeal.

--- quote from the judgment ---

判案書日期： 2007年7月10日

在判案書之第11段，周法官表述以下觀點：

「…租約是可以單方面終止的，至於其理由是充份與否是另一問題。被告人單方面的行為，致使租約在2004年12月已被終止，因此被告人只欠2004年12月的租金$165,000。」

這觀點是錯誤的。除非合約明文許可，否則任何合約均不能作單方面終止。

租約是合約的一種，雖然正如Lord Simon of Glaisdale在National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 at 703所說：悔約原則（doctrine of repudiation）亦適用於租約。但未經接納的違約行為是沒有效的。見1 Chitty on Contracts, (28th Ed), paras. 25-012.

但違反不同性質的合約會引致不同後果。一般來說，違約一方只需賠償另一方的損失；但若有關土地權益的合約，例如買賣協議或租約，雙方都可要求執行強制履行令（Specific Performance）。業主亦有權向租客追討租金。見White and Carter (Councils) Ltd v McGregor [1962] AC 413.

最近英國上訴法庭在Reichman and Anor v Beveridge and Anor [2006] EWCA Civ 1659一案，經仔細考慮下認為除非業主是在完全無理（wholly unreasonable）的情況下強制執行租約，否則業主有權堅持租戶繳交租金。本庭認同此觀點。

香港特別行政區 v. 王文亮CACC345/2005

S’s words:-
Many defendants intend to use incompetence of their legal representatives as the grounds of appeal. Whether the appeal Court would accept such grounds have been explained in the case authorities of Chong Ching Yuen v. HKSAR, (2004) 7 HKCFAR 128 and HKSAR v. Pang Oi Kwok, CACC463/2003. The following judgment is one of the Chinese judgments that have considered this issue, although the appellant’ application (and in particular his allegation of incompetence) was dismissed.
Don’t merely try to blame your legal representatives for incompetence when you are convicted.

--- quote from the judgment ---

判案理由書日期：2007年7月11日

申請人亦指在審訊時代表他的大律師處事不當，有失職之嫌。

雖然申請人及植大律師就事實上有分歧，但考慮了下列就「律師失職」的一般性原則後，本庭認為不需聽取證供，就事實作裁定：

(1) 辯護律師有權在不論他當事人的意願為何的情況下，依據他認為是對他當事人最有利的方式處理案件。

(2) 單指辯護律師所作的決定是沒有其當事人的指示、或與其當事人的指示相違背、又或涉及錯誤判斷或疏忽是不足以構成推翻定罪的理由。

(3) 就辯護律師犯錯此論點，舉證責任在上訴人，準則是「衡量何者可能性較高」。

(4) 即使在事後認為某決定或策略是不智或錯誤的，仍不足以推翻定罪，必須顯示是嚴重不稱職才可。

(5) 一般而言，辯護律師採取的策略性決定，若在事後回想會認為應另作其他決策，是不足夠作為上訴理由的，另若是其他純粹是錯誤判斷的情況亦不構成上訴理由。

(6) 案件關鍵的是申請人是否未獲得公平審訊。

(參照香港終審庭案例Chong Ching Yuen v. HKSAR, (2004) 7 HKCFAR 128，及香港上訴庭案例HKSAR v. Pang Oi Kwok, CACC463/2003。)

HUI SING PAN v. ROSE KNITTING (ASIA) LIMITED DCEC 178/2002

S’s words:-
Whether the year-end payment is to be counted for the assessment is always the issue that we have to decide. Not only the Employment Ordinance alone but the actual agreement of the parties have to be considered.
Besides, in the present case, the label of such year-end payment just like “double pay” on a pro rata basis in this case do have supported the reliance of Section 11AA(1) that such payment is not payable only at the discretion of the employer.
Thus, if an employer does not want an employee to suggest any bonus or payment to be regarded as of gratuitous nature, the words like discretionary bonus or an express term saying the same is of a gratuitous or discretionary nature is required.
It is highly probable that not only Labour Tribunal but also the Employees’ Compensation jurisdiction of the District Court and the common law claims would come to the same conclusion.

--- quote from the judgment ---

Date of handing down judgment: 9 July 2007

The Applicant contended that the year-end payment (i.e., the 13th month’s salary) should be taken into account in computing his pre-accident monthly income for the purpose of the present assessment. The Respondent objected, contending that such payment was and could only be gratuitous in nature.

Both parties referred to Part IIA of the Employment Ordinance, Cap.57 which governs the liability of an employer to make the year-end payment. Section 11B(1) reads as follows:

“Subject to any agreement to the contrary and to subsection (2) [which is not relevant to the present case], this Part shall apply to an employee employed under a continuous contract if an end of year payment is payable by the employer to that employee by virtue of a term or condition (whether written or oral, express or implied) of the contract of employment.”

If the end of year of payment is contractually payable as aforesaid, the presumption under section 11AA(1) applies. It reads as follows:

“It shall be presumed that an annual payment or annual bonus is not of a gratuitous nature and is not payable only at the discretion of the employer unless there is a written term or condition in the contract of employment to the contrary.”

Parties’ argument therefore focused on whether it was agreed (expressly or impliedly) that there would be the end of year payment.

Upon his dismissal, the pro rata year-end payment was documented in the Respondent’s letter to the Applicant dated 21 June 2000. It contained the “layoff payment breakdown” including this amount labelled as “double pay pro-rata”.

Obviously the letter was drafted in a meticulous manner with a view to bearing the intended legal effect for the benefit of the Respondent. I can hardly accept that in the same document, the Respondent for some reason would be so care free to label the payment as pro rata year-end payment if it was never intended as such. Further, if this sum were only meant to be gratuitous, the Respondent would not have had to compute the amount as the “double pay” on a pro rata basis.

I find that the Respondent always understood its contractual obligation to make the end of year payment to the Applicant. The presumption under section 11AA of Cap.57 applies so that the Applicant would have been entitled to such payment had the employment not terminated.

CHAN WAI YING the Administratrix of the Estate and on behalf of the dependants of TSAI CHUNG YUNG deceased v. SIN KIT SANG & Others HCPI 805/2006 (2)

S’s words:-
A few days ago I have just mentioned a judgment made by PI Master that rejected two expert reports on liability be adduced. On 10th July 2007, when the same case was heard by way of rehearing before a single judge, a different conclusion was made.
It is not necessary for me to quote the legal principles again (which is not in dispute).
With due respect, I do not intend to challenge the decision of the PI Master.
However, at least now we can say Lamborghini being a high performance racing car can amount to an extraordinary case that expert evidence on speed can be allowed.
Is it possible that with the support of this case authority, the defendants would again try their efforts to convince judges/masters to allow adducing similar expert reports on liabilty?
Fortunately, we do not have many Lamborghini or other racing cars involved in personal injuries claim.

--- quote from judgment

Before: Deputy High Court Judge Gill in Chambers

Date of Ruling: 10 July 2007

In circumstances and for reasons I shall come to, the 3rd and 4th defendants as a prelude to trial applied to a Master for leave to admit in evidence two reports compiled by Professor Murray McKay. Professor McKay is a pre-eminent expert in the field of road traffic accident investigation and reconstruction.

This is an appeal by rehearing from the Master’s refusal to allow in the second of the two reports.

Determination
Is this an exceptional case?

First, there are witnesses and these include bystanders with no interest in the outcome. But it is likely there will be no reliable account of speed and distances. The capabilities of the Lamborghini are well outside those of the conventional saloon car, and thus outside the experience that a witness and judge can bring to the judicial process.

Secondly, there is already admitted in evidence an expert’s report, and the right for either party to have the author called to be cross-examined on it. But he is a witness of neither party and for different reasons all defendants are critical of his methodology and conclusions. If there is already expert evidence available to the court which one party or another finds wanting, should not that party be entitled to call his own expert to counter it?

In my view, commonsense and justice requires me to treat this case with its particular circumstances as one which falls into the exceptional category; one which calls for an expert with particular expertise of the attributes of a high performance sports car as this Lamborghini.

This will not, as I find, amount to a trial by expert, or experts. This will not be to usurp the proper function of judge, whose role will remain to determine the facts and draw such inferences as he may from them.

In the circumstances, I allow the appeal and grant the application. There will be consequential leave for the 1st and 2nd defendants to call an expert on terms to be agreed, with liberty to apply.

CHAN WAI YING the Administratrix of the Estate and on behalf of the dependants of TSAI CHUNG YUNG deceased v. SIN KIT SANG & Others HCPI 805/2006

S’s words:-
Another classical case that an application for adducing expert evidence on liability is rejected. Lamborghini being the subject vehicle of the traffic accident involved could not convince the Court that it was an extraordinary case.

---

Date of Handing Down : 31 May 2007

“This is my Decision on the Application by ... , the solicitors for the 3rd and the 4th defendants for leave to adduce 2 expert’s reports compiled by Professor McKay. One report relates to the seatbelt issue, and the other relates to liability.

This action arises out of a road traffic accident on 25 July 2004. The deceased was a 46 year old contractor who had boarded the 3rd defendant’s taxi just before the Lamborghini driven by the 1st defendant ploughed into the side of the taxi, as the taxi was making a U-turn. The deceased sustained serious injuries and died soon after.

As was explained by Stuart Smith LJ in the famous case of Liddell v Middleton, 1996 PIQR 36, that section of the legislation “in no way extends the principles upon which expert evidence is admissible.” His Lordship went on to say that “An expert is only qualified to give expert evidence on a relevant matter, if his knowledge and expertise relate to a matter which is outside the knowledge and experience of a layman. And the reference to an “issue in the proceedings in question” relates to a factual issue and not to the conclusion of law based upon such fact.”

The case of Liddell V Middleton was quoted with approval by Mr Justice Seagroatt in Cho Kam Chuen v Tse Chi Hung, HCPI 170/2000.

An authority in the area of admissibility of expert evidence which provides a helpful summary is the judgment of the Mr Justice Suffiad in Chan Kwok Ming v Hitachi Electrical Service (HK) Ltd, HCPI 322 of 2002. The judge sets out the proper criteria to be applied to determine whether any expert report can and should be admitted in evidence in paragraphs 20 to 27, explaining how the elements of relevance, necessity and probative value are to be applied.

n summary therefore, in the application of the relevant principles on whether to give leave to adduce evidence of expert witnesses, the following matters must be considered: (a) whether the proposed expert witness has the requisite qualifications; (b) whether his “knowledge and expertise” is outside the knowledge and experience of the layman, i.e. will his evidence be “relevant” within the meaning of Liddell v Middleton; (c) whether the expert’s evidence will only “relate to a factual issue and not to a conclusion of law based upon such fact” within the meaning of Liddell v Middleton; (d) Whether the applicant complied with the procedure set out in O38 r36; and (e) Whether the applicant has shown that the “expert evidence” is “necessary”, “relevant”, and has “probative value” within the meaning of the Judgment in HCPI 322 of 2002.

Based on that evidence of contact with the interior of the taxi, Professor McKay built up his argument on the seatbelt issue. That piece of evidence showing points of contact between the deceased and places inside the taxi would have been available to the trial judge without the McKay report. There is no reason why the trial judge cannot apply his common sense in the same manner as the Professor. Moreover, it has not been shown that the contents of the report relate to anything “outside the knowledge and experience of a layman”. It is not outside the knowledge and experience of a layman that a person not wearing a seatbelt would probably have hit his head against the window frame and the pillar between the front and rear doors. It is not outside the knowledge and experience of a layman that a person not wearing a seatbelt would probably have sustained the laceration to his liver when the right side of his body was thrown violently against the door. For all the reasons given, I find that the criteria of “relevance”, “necessity” and “probative value” are not met, and decline leave to adduce the report dealing with the seatbelt issue.

I am of the view that the trial judge, armed with all the materials from the Magistrates’ Court and with all the oral evidence of the witnesses, will be in a position to decide whether the taxi driver was negligent when he made that U-turn, thereby placing the flank of his taxi directly in the path of the Lamborghini. Furthermore, the trial judge will only need to work out the approximate speed of the oncoming vehicle when the taxi started the U-turn. Knowledge of the exact speed of the Lamborghini will not be necessary in the circumstances, as there is also information of the locus in quo in the form of sketches, photographs, agreed distances and the evidence of several eyewitnesses.

For all the reasons given, I dismiss the application by the 3rd and 4th defendants to adduce the reports compiled by Professor McKay both dated 17.2.07 on the seatbelt issue and on the liability issue.”

CHENG YUK CHUN v. WINSON CLEANING SERVICE COMPANY LIMITED & OTHERS DCPI 629/2006

S’s words:-
This is a slipped and fell case of which the Plaintiff fell and injured in the Staircase that the 2nd and 3rd Defendants were the occupiers and the 1st Defendant being the management company.
The Plaintiff failed her claim due to the fact that the Court was not convinced that the accident was taken place as she did have mentioned.
However, if the accident happened due to the oily and slippery condition of the Staircase, the Judge did have expressed his view that the 1st Defendant (but not the 2nd and 3rd Defendants) would be wholly liable for the accident.
The issue of contributory negligence (if found the 1st Defendant being liable due to the oily and slippery condition) was also considered. Ng Siu Cho v the Incorporated Owners of Jardine Court, unrep., DCPI 976/2005, 6/7/2006’s case was relied on but the Court took the view that the Plaintiff could have done much to avoid the risk of slipping on the Staircase when having to understandably hurry with her work.
So, we have to be careful as to how to distinguish Ng Siu Cho’s case (if for the Plaintiff) or rely on Ng Siu Cho’s case (if for the Defendant) in future. The first version of how the accident being taken place given by the Plaintiff is critical.

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Date of handing down judgment : 6 July 2007

"In this action, the 43-year-old lady cleaner claims against the Defendants for personal injuries sustained during work in 2004. At the material time, the 1st Defendant was her employer. The 2nd Defendant was the management company of the property which contracted the 1st Defendant for cleaning service. The 3rd Defendant was the owners’ incorporation of the property.

It was part of her morning routine to collect the garbage from the back staircases of each floor of the Block. She would put the garbage into one of the wastebaskets, which she brought for such purpose, and then move the basket of garbage to the Ground Floor. The garbage collected would be centralised on the Ground Floor and would be collected by a garbage truck.

The Plaintiff started work at about 7:00 am that day. At about 7:45 am, she started collecting garbage from the 29th Floor of the Block downwards floor by floor. At about 8:30 am, she was moving a basket filled with garbage and descending along the staircase from the 6th to the 5th Floor (“the Staircase”). In the course of that, she fell and injured, among other parts, her right wrist.

The Plaintiff claims against the 1st Defendant for breach of the implied contractual duty of employer. She claims against the 2nd and the 3rd Defendants as the occupiers of the scene of the accident. Against all Defendants, the Plaintiff also alleges breach of statutory duties as well as the general duty not to be negligent.

Except for the alleged statutory duties on the part of the 2nd and the 3rd Defendant, the existence of the various kinds of duty on the respective parties was not in real dispute. The dispute was essentially whether any of them was in breach and whether the accident was contributed to by the Plaintiff’s own negligence.

Nevertheless, considering all the evidence including those specifically analysed above, I am not satisfied that the Plaintiff fell because she slipped on wet or oily surface of the Staircase at the material time. I find Mr. Chan, the occupational safety officer, to be a reliable witness. I find that on the balance of probabilities, the accident did happen in the way as Plaintiff told him and was recorded in her declaration and the accident report.

In view of my finding of how the Plaintiff came to fall on the Staircase, there is really no sufficient factual basis for finding fault in the 1st Defendant’s system of work.

The 2nd and the 3rd Defendant, which were undeniably occupiers of the staircase, should not be to blame either in the circumstances.

Assuming breach
For completeness, I proceed to consider whether any of the Defendants should be liable and the apportionment of liability if I am wrong above. In other words, what if the accident happened due to the oily and slippery condition of the Staircase at the time as alleged.

Mr. Cheung for the 1st Defendant submitted, and I agree, that the 1st Defendant should not be liable for the accident to the extent as being caused by some known and ordinary risk in the course of the Plaintiff’s carrying out her basically simple and routine duty in this case. The cases of Mawson v Unilever [1963] 2 Lloyd’s Rep. 198, Winter v Cardiff Rural District Council [1950] 1 All ER 819 and Cheung Suk Wai v AG [1996] HKC 288 illustrate this. This however would not have addressed all the Plaintiff’s allegations.

I mentioned above the Plaintiff’s complaint about having to work under great time pressure. The garbage removal should be completed by 9:00 am as specified by the service contract between the 1st and the 2nd Defendant. The garbage truck would first stop by the Block at about 9:00-9:30 am to collect the garbage before proceeding down slope to the other blocks of the Estate. She had effectively less than 2 hours to remove all the garbage from the 29 floors of the Block by herself. She also explained her experience of having missed the truck. Not calling any witness at the trial, the 1st Defendant had nothing to effectively contradict this part of the Plaintiff’s evidence. Though there was dispute over whether the Plaintiff could have used the residents’ lift, it sounds credible that priority had to be given to residents during the morning rush hours which were indeed the hours of the Plaintiff’s work. The Plaintiff effectively had to hurry with her work along the Staircase by herself. Unlike Cheung Suk Wai, the Plaintiff had to work under a tight time schedule and would not really have been in a position to regulate her own pace and to decide her manner of work. This effectively deprived her of real alternative to avoid the risk of slipping and falling due to the condition of the Staircase.

Therefore, had I found that the accident was caused by the alleged wet and slippery condition of the Staircase; I would have found the 1st Defendant liable.

The Plaintiff was not a mere outside visitor to the Staircase but the very servant of the 1st Defendant responsible for cleaning it. She did admit in her evidence that she was responsible for cleaning the Staircase in question after collecting the garbage. There was no evidence to support that the risk associated with the condition of the Staircase was so exceptional that it was not reasonably incidental to the Plaintiff’s cleaning work. I agree with Mr. Gidwani that the 2nd and the 3rd Defendants could have justifiably relied on section 3(3)(b) of the Occupier’s Liability Ordinance, Cap. 314 in respect of the discharge of their common duty of care.

Even if the 2nd or the 3rd Defendant was somehow liable to the Plaintiff, I am of the view that the ultimate responsibility should in the circumstances still have lied with the 1st Defendant. The 2nd and the 3rd Defendants would have been entitled to full indemnity from the 1st Defendant against any of their liabilities to the Plaintiff due to the accident.

Contributory negligence
Mr. Gidwani for the 2nd and the 3rd Defendants submitted that contributory negligence in this case should be 25%, referring to the case of Ng Siu Cho v the Incorporated Owners of Jardine Court, unrep., DCPI 976/2005, 6/7/2006. I assume that Mr. Cheung for the 1st Defendant adopted that submission. I do not see that the Plaintiff could have done much to avoid the risk of slipping on the Staircase (which is assumed to be wet and slippery) when having to understandably hurry with her work. The circumstances simply differ from those in Ng Siu Cho. I would have found no contributory negligence."

孫有興 v. 廖少冰 DCPI 1292/2005

S’s words:-

This is a personal injuries claim that the injured being the Plaintiff claimed against a dog owner for his injuries sustained from dog bites.

Certainly, the injuries sustained by the Plaintiff in this case were rather severe and it is not so common to happen. However, bearing in mind that it is quite unusual for a dog owner to have his own insurers in relation to his dog. Therefore, if a dog owner does not take care of his own dog, an unexpected result may happen.

Psychological impact on an injured suffering from dog bites should be expected. susi yanti & Anor v chu shiu-chuen‘s case is one of the authority to support that and now we have another updated case authority as another example.

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判案書日期: 2007年6月 25日

原告人於2002年9月23日遭到被告人所飼養的狗咬傷,被告人因而被刑事起訴及定罪。其後原告人提出本訴訟，並於2006年11月17日取得法院的非正審判決, 判令被告人須就原告人之人身損害作出賠償，唯賠償金額則有待評估。 遂有今次聆訊。

意外發生時，身為郵差的原告人正在踏着腳踏車執行派遞郵件職務。在行經被告人家門前被涉案的狗咬傷左腳，並從腳踏車跌下。原告人其後被救護車送往醫院醫治。

原告人留醫共18天。期間接受了两次手術：入院當天傷口即進行了清創及敷料；約两星期後進行了植皮手術，當中需要從左大腿內側取皮。原告人於出院後，需要覆診和為傷口拆綫，並接受了為期超過１個月的物理治療，及為期１年為控制腳上傷疤的壓力衣治療。

原告人獲發為期約２個月的病假，自2002年12月始恢復其郵差的職務，直至現在。

原告人現聲稱左腿因患處影响，移動時覺緊。左小腿至腳趾時覺麻痺。傷疤的位置時感痕癢。他聲稱其性生活亦受影响。

這次意外對原告人的心理也造成影响。他稱自此對狗隻產生恐懼，時有睡夢中因憶起意外經過或被狗追咬而驚醒。他曾接受心理治療。

疼痛、痛苦及生活便利的喪失

cheang kam ian v hong kong prime printing company, hcpi 143/1998, 13 january 2000, suffiad j

原告人是一名17歲的男送貨工人。右小腿受燙傷而導致5%人身損害，两次留院合共12天。專家認為原告人除了餘痛外，身體並無機能上的損失。另傷疤屬永久性，導致2-5%人身損害。漂白或雷射治療或可略為舒緩其礙眼程度。法庭最終判給HK$200,000.00。

susi yanti & Anor v chu shiu-chuen, hcpi 1176/2000, 2 november 2001, master de souza

两名原告人均被狗咬傷。第一原告人是20歲的女傭。她的身體多處受傷及留有傷疤，其中分佈包括右腿有不下19處；左小腿有4處；右臂有2處。整體儀容永久受損5%。另外她因意外患上了精神問題。法庭判給HK$380,000.00。第二原告人只得4歲。她的大腿及左臂均有幾處傷痕。考慮到她於成長期會因為傷疤而感到尷尬，法庭判給HK$130,000.00。

leung yuk kwan v maple professional beauty centre ltd, hcpi 274/2002, 4 december 2002, master de souza

原告人年22歲，於抽脂瘦身療程中右腳嚴重受創，留有傷疤，4年後或有改善。儀容永久受損3%。法庭判給HK$300,000.00。

achacoso, warly cabaneros v liu man kuen, hcpi 121/2001, 11 june 2004, master hui

原告人是一名28歲女傭，已婚及有4名子女，因受傭主虐待令一雙手背燙傷，歷時1個月才痊愈。她的傷口留有傷疤，除影响她提携重物的能力外，還非常疼痛及敏感。雖然傷疤至今已大有改善，但避免不了被察覺到。法庭理解她的特殊經歷，最終判給HK$280,000.00。

mujiati v chong wai kwan, dcpi 424/2003, 21 October 2004, judge wong

原告人是一名年21歲的女傭，分別於两年內两次被狗咬傷。第一次傷及雙臂。她接受了防疫注射及藥物治療。第二次傷及前臂及臀部，傷口極深。這些創傷遺下多處礙眼的傷疤，除令她感尷尬外，還＋分痕癢。鑑於原告人並無因而對狗產生恐懼，及比較其他案件，法庭最終判給HK$70,000.00。

考慮過本案原告人的實況，其中包括個人背景、受傷程度、治療過程所經歷的痛苦、身體的永久損害、身體及心理上的後遺症，本席認為就原告人疼痛、痛苦及喪失生活便利的合理賠償應為HK$200,000.00。

CHEUNG MEI YIN v. POSTMASTER GENERAL HCAL 66/2007

S’s words:-
When we read from newspapers that a person intends to apply for judicial review in relation to the use of postage stamps bearing the Queen’s portrait. What was our first response? If I were the Applicant and those stamps are/were still in good condition, I would try to sell them in yahoo.com.hk or ebay ...

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Date of Judgment : 5 July 2007

"This is a hopelessly late application for leave to apply for judicial review.

Regulation 28 of the Post Office Regulations (Cap 98A) provides that the issue of postage stamps for use under the Post Office Ordinance (Cap 98) and the withdrawal of postage stamps from such use shall be under the control and management of the Postmaster General. In anticipation of the Mainland Government’s resumption of exercise of sovereignty over Hong Kong on 1 July 1997, the Postmaster General announced on 23 May 1996 that postage stamps bearing the Queen’s portrait or the Royal Cypher would no longer be valid for postage as from 1 July 1997. There was a press conference held on the same day and the announcement was widely reported in the local media. On 6 June 1997, the Government Gazette published a notification of the Postmaster General’s withdrawal of the affected postage stamps from use after 30 June 1997 (GN 2757). The notification stated that the postage stamps affected might be exchanged for current definitive stamps of an equivalent value at the Post Office from 3 to 31 July 1997, both days inclusive."

STANDARD CHARTERED BANK (HONG KONG) LIMITED v. LEUNG SHU KAN DCCJ 272/2007

S’s words:-
Many Guarantors still intend to deny they are responsible to pay as per the Guarantee documents they have signed. The defence of non est factum and misrepresentation are two usual alleged grounds. But when one really wants to use the same, please be aware of summary judgment application.

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Date of Handing Down Written Decision: 5th July 2007

This is the Plaintiff bank’s application for summary judgment against the Defendant for the sum of HK$267,127.55 plus interest.

By an unlimited guarantee (“the Guarantee”) dated 21 April 2006 and signed by the Defendant, Ng and Luo, they guaranteed the repayment of any outstanding sums owed by Company to the Plaintiff. As set out in clause 1 of the Guarantee, the Defendant, Ng and Luo agreed to enter into the Guarantee in consideration of the Plaintiff granting or continuing to grant banking facilities to the Company.

The defence of non est factum
A person relying on the defence of non est factum bears a heavy burden. The defence is also not available to a person who is careless in signing a document. Unless there is good evidence to explain why it was reasonable for him to do so, a person is regarded as careless in simply signing any document placed before him and without making any necessary inquiry as to its nature or effect, and even if he did so because of his trust placed on others. See: Saunders v Anglia Building Society [1971] AC 1004, 1036A to H per Lord Pearson, 1016B to F per Lord Reid, and Lord Wilberforce at 1025D to F and 1026C to 1027F; Wan Chow Ki v Wan Chow Kan (unrep., HCA 1490/2002, 16 January 2004, Lam J), paras 10-12.

The defence of misrepresentation
Quite to the contrary, there is in fact nothing commercially unusual that the Defendant, as a director and shareholder of the Company, was willing and prepared to provide a personal guarantee to secure the Plaintiff’s provision of banking facilities. In the circumstances, and without more, there is nothing to remotely suggest that the Plaintiff should somehow be put on inquiry as to the potential risk that the Defendant’s agreement to provide the Guarantee was a result of some equitable wrongs. See: Bank of Communications v Yenwin Investments Ltd (unrep., HCA6014/1999, Cheung J, 3 May 2000), para 8 per P Cheung J (as he then was).

Other allegations
Further, whether or not Ms Chung had shown the Defendant the terms and conditions of the Guarantee is also irrelevant. As a general principle, a bank does not have any general duty to explain the terms of a mortgage or guarantee to the mortgagee or guarantor. See: Kincheng Banking Corp v. Kao Yu Kuei [1986] HKC 212, 215G per Huggins VP. Nor does the bank has a general duty to disclosure so long as it does not misrepresent the position: Bank of Communications v. Wong King Sing & Ors [2002] 1 HKLR 358, paras. 25-28, pp. 364E-365G. Thus, the fact that the bank has failed to explain the terms of a suretyship contract to the surety does not per se provide a defence to set aside the contract.

MAK KIT CHING KITTY and FU MEE YUK SHIRLEY, administratrixes of the estate of FU KWOK KAI, DANIEL (Deceased) v. TSANG YIU WING and others CACV 377/200

S’s words:-
Another good example that the decision is against the Plainitiff (the Appellant) despite of the presence of the greatest sympathy of a High Court Judge.

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“This I find a very difficult case, not so much because of the legal matters involved but because it involves a tragic accident in which the father of a family was killed and I can only express my greatest sympathy for those he left behind. But nevertheless, I have to look at this case in the way it is presented.

... but, unfortunately, I regret that I cannot see that there is merit in this appeal or, to put it another way, that this appeal is likely to succeed or that it has a reasonable chance of success.

So I come to the conclusion, with some regret, I have to order security for costs. I am going to do it in a very much reduced amount to the amount requested.”

KAO LEE & YIP (a firm) v. LAU WING and TSUI WAI YU CACV 121/2006

S’s words:-

If the case authority of Yip Wan-chiu v Magnificent Industrial Ltd [1974] HKLR 183 is to be relied on, my personal view, a different (but rather unreasonable) decision may be given.

However, an employee should be entitled to give notice or by “agreeing” (i.e. undertaking or promising) to pay wages in lieu of notice (under s.7).

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Date of Judgment : 4 July 2007

The facts:-

“The plaintiff is an established and well-known firm of solicitors in Hong Kong. The defendants are two young, recently qualified solicitors who were in the plaintiff’s employ as assistant solicitors. At the material time they had approximately one and two years’ post-qualification experience. ... In August 2005 the defendants purported to terminate their employment with the plaintiff. Contractually, they were required to give three months’ notice. They relied on sections 6 and 7 of Cap. 57, the Employment Ordinance to, in fact, terminate their employment in the following way. On 19 August 2005 they gave three months’ notice in writing but stated that they would only work for one month, until 19 September 2005, and pay to the plaintiff two months’ wages in lieu of the remaining two months’ notice. The plaintiff did not accept their notice of termination and refused to accept the cheques purporting to represent the two months’ wages”

Relating to D2

As [the Judge understood] the law the position now is that contrary to the obiter dictum of the majority in Yip Wan-chiu and in any event after the passing of s.8A, a contract of employment may be lawfully terminated by either party by giving notice (under s.6) or by “agreeing” (i.e. undertaking or promising) to pay wages in lieu of notice (under s.7). If the terminating party having agreed to pay wages in lieu fails to do so, the cause of action would be for breach of that agreement. But if a party terminates a contract of employment without either giving notice or agreeing to pay wages in lieu, that would be an unlawful termination and the innocent party’s cause of action would be for damages for wrongful termination, which is set by the legislature under s.8A at the notice period’s wages.

Relating to D1

However [the Judge did] not see any substance in the Plaintiff’s argument in any event. It is clear that s.6(2A) is for the protection of the employee only. First, what are the parties’ positions when an employee is enjoying statutory annual leave? The employee gets the benefit of being on leave and at the same time being paid his salary. The employer derives no benefit. He has to get someone else to do the holidaying employee’s work and he has to pay the holidaying employee during that period.

So analysed, [the Judge thought] it is clear that it was for the employee’s benefit that s.6(2A) was enacted, so it would not apply when it is the employee who gives notice, or if it does apply, the employee can waive the exclusion of the leave

CACC / 2007

S’s words:-

This case attracts my attention due to the fact that the judgment has no case number and the name of the defendant was concealed. Such information is covered for the protection of the defendant.

For paid police informer, one should not expect that he/she would get more than 1/3 reduction for his/her guilty plea.

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CACC / 2007

Date of Reasons for Judgment: 5 July 2007

The defendant was convicted on his own plea of, inter alia, one count of trafficking in a dangerous drug. He was given the usual one-third reduction for his plea.

Whilst on bail, he was a paid police informer. His effort led to one conviction of bookmaking. The bookmaker was sentenced to a short term of imprisonment.

However, what the Court of Final Appeal said about paid informer is relevant:

(at page 273 F to H, para. 20)

“… Secondly, the defendant may have received payment or other consideration for his assistance. It has to be recognised that payments to police informers are a fact of life and the use of informers is necessary in society’s fight against crime. Although assistance for which payment or other consideration was given may be recognised as a mitigating factor, the court should carefully consider all the circumstances in deciding whether the assistance in the case in question deserves any reduction and if so, the amount of reduction. The more substantial the payment or consideration, the less sympathetic should the court be in this regard.”

Here, the information related to bookmaking on soccer matches carried out in a bar, and the amount was determined in accordance with a guideline formula. In response to our inquiry we were told that the police regard the payments under the guideline formula to be adequate. That being the case, we see no reason why any reduction of sentence should be given as a further reward for such information.

NGUYEN XUAN HOAN v. HUI SAU HUNG and YUNG WAI KUEN DCPI 1779/2005

S’s words:-
In the past, the plaintiffs could get sympathies from judges and obtain judgments in their favour. Unfortunately, the time was gone. Besides, even though a plaintiff is legally aided, it does not imply that he/she would win the case. That explains why I have personally advised many potential plaintiffs not to commence any legal proceedings at all.

Should we say if a plaintiff is legally aided, we can proceed the case for trial without due thought? The answer is negative. Although the legal representatives would in any event receive their legal costs and disbursements from Legal Aid Department, the public funds should only be used with sufficient reasons.

In my own view, the following case is a classical example that the Judge is definitely right to dismiss the claim.

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頒下判案書日期：2007年7月3日

原告人未能証明兩名被告人犯下錯誤，以致他的單車被撞，導致他受傷，因此本庭撤銷原告人的申索。

YEUNG KIN CHUNG JOSEPH v. H.K. SCAFFORM SUPPLIERS LIMITED & H.K. SCAFFRAME SYSTEM LIMITED DCPI 1332/2005

S’s words:-
The issue of liability in this case is quite obvious from my own view. However, the Defendants do suggest one issue for argument, that is, who was/were the tortfeasor(s). This case will be a good case authority for us to rely on and consider in future when we have to consider about “borrowed employee - If a A lends his employee to B for a job and the employee causes damage in the course of doing that job, the question may arise whether the person vicariously liable for the damage is the general employer, A, or whether the employee has become pro hac vice the employee of B, so that B is liable.”
In fact, from my own view, it is free for the Plaintiff in this case to claim either 1st Defendant alone, 2nd Defendant alone or both 1st and 2nd Defendants so long as both the Defendants were properly insured.

For the issue of quantum, this case provides an updated figure regarding PSLA for fractured base of 5th metatarsal right foot (in fact not only the 5th metatarsal right foot but could extend further). From my own view, in fact, the case authority of Lee Sze Wai v. Law Chi Kin DCPI 44 of 2001 with the award of HK$150,000.00 may be in the lower side and thus, it should not be a surprise for the Honourable Court to award a sum of HK$180,000.00 after taking into account of To Ying Wa v. Cargo-land (Warehouse) Development Limited HCPI 441 of 2000. We could face with cases that the plaintiffs suffering from fracture of metatarsal foot, with the assistance of this case, my view is that the parties now have one good case authority to follow.

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Date of Handing Down Judgment : 3 July 2007

The Plaintiff claims against the 2 Defendants for damages due to injuries sustained at an accident while he was working as a metal scaffolder at the warehouse of the 1st and 2nd Defendants in Tai Tong Road, Yuen Long, New Territories (“the warehouse”).

It is not disputed that the 1st Defendant signed a tenancy agreement with the registered owner of the land where the warehouse was situated in Tai Tong Road, Yuen Long, New Territories. The 1st Defendant claimed that the operations and management of the warehouse had been handed over to the 2nd Defendant H.K. Scafframe System Limited.

Liability:-
The evidence of the employer’s return to the Inland Revenue Department clearly showed that Mr. Yeung was employed by the 1st Defendant up to 31st March 2003. According to Mr. Yeung’s evidence he was never informed of a change of employer; at one time, he was asked to sign a self employment agreement, he had refused and rejected it. It was not disputed that on the day of accident Mr. Yeung was working on the 1st Defendant’s project supplying frames to a construction site. From the evidence of Mr. Kam, the shareholder and director of both the 1st and 2nd Defendants, even though he had tried to differentiate the business of the 1st Defendant and the 2nd Defendant, so far as the employees are concerned, the employment record of Mr. Yeung specified he was working for the 1st Defendant up to 31st March 2003. Mr. Kam admitted it was the 2nd Defendant who was on the day of accident the employer the Plaintiff. It is therefore clear the 2nd Defendant cannot escape liability as the employer. On the other hand, the 1st Defendant was the occupier and the tenant of the warehouse and owner of the scaffold frames. Mr. Yeung, though employed by the 2nd Defendant, was put to work for the 1st Defendant, in which case he became an employee on loan to the 1st Defendant on the day of the accident, therefore the 1st Defendant is liable as in the example given in Clerk & Lindsell on Torts, 19th Edition, para. 6-23 at page 332:

“Borrowed employees - If a A lends his employee to B for a job and the employee causes damage in the course of doing that job, the question may arise whether the person vicariously liable for the damage is the general employer, A, or whether the employee has become pro hac vice the employee of B, so that B is liable.”

The author cited the case of Mersey Docks and Harbour Board v Coggins and Griffith [1947] AC1 where the House of Lords held:

“that the harbour authority, as general permanent employer, was liable, not having discharged the heavy burden of proof so as to shift to the stevedores its prima facie responsibility for the negligence of the craneman, who in the manner of his driving was exercising the discretion it had invested in him. It was further held that the question of whether the employer was responsible for his negligence was not determined by any agreement between the habour authority and the stevedores.”

As the 2nd Defendant admitted to be the employer of Mr. Yeung, it is liable as such. As to the 1st Defendant, it being an occupier therefore must be liable under occupier’s liability and further liable under vicarious liability.

As the 2nd Defendant admitted to be the employer of Mr. Yeung, it is liable as such. As to the 1st Defendant, it being an occupier therefore must be liable under occupier’s liability and further liable under vicarious liability.

Quantum - PSLA
Both experts agreed that the Plaintiff suffered from 1% permanent impairment. Dr. Au’s assessment was based on the muscle wasting of the right calf while Dr. Wong’s assessment was based on the residual right foot soreness and weakness after the accident. Dr. Au recommended that the tenderness over the base of the 5th metatarsal on the right foot may improve with 20 sessions of physiotherapy; Dr. Wong did not recommend any further treatments.

Mr. Wong, Counsel for the Defendants, referred me to the case of Lee Sze Wai v. Law Chi Kin DCPI 44 of 2001 where the plaintiff suffered a fractured 2nd metatarsal on the left foot. There was no external wound and no hospitalization and the plaintiff was given 5 weeks sick leave before he returned to work. The plaintiff there suffered from mal residual stiffness of his left ankle. He was awarded $150,000 under PSLA. Mr. Wong submitted that authority to be the closest to the present case. Mr. Wong recommended an award under PSLA of $80,000 only because he considered the $150,000 award in the Lee Sze Wai case to be high compared to other cases where the plaintiffs had suffered more serious injuries. Mr. Lam, Counsel for the Plaintiff, referred me to the case of Chow Tai Loi v. Leung Kam Hung HCPI 320 of 2002, where the plaintiff suffered a fracture of the 2nd metatarsal and a chip fracture of the base of the 1st metatarsal on the left foot with minor injury to his chest. The plaintiff was treated with a soft plaster cast for 3 weeks; subsequently, the chest injury which was minor healed quickly and the foot injury also healed well; but the plaintiff complained of residual pain in the left foot. There was a 2% impairment of the whole person found. The PSLA awarded by Master Jeffries was $225,000.

Mr. Lam further referred to the case of To Ying Wa v. Cargo-land (Warehouse) Development Limited HCPI 441 of 2000, an assessment of damages by Master de Souza on 22nd January 2001. The plaintiff there sustained fractures to his 4th and 5th metatasals in the right foot and had a plaster cast installed. The plaintiff was granted 77 days of sick leave and was assessed to suffer from 1% permanent impairment of the person. Master de Souza awarded $200,000 under PSLA.

Mr. Leung submitted that when compared to the aforesaid cases, the injuries and disabilities of the Plaintiff are similar to the plaintiff in the To Ying Wa case. He submitted $180,000 under PSLA to be appropriate.

After considering the authorities cited to me by both the Plaintiff’s and the Defendants’ counsel, I further take into account the injuries and the pain and loss of amenities suffered by Mr. Yeung and the159 days of sick leave granted to him. The defence accepted Mr. Yeung had sustained a 1% impairment of the whole person and Dr. Au had assessed Mr. Yeung to suffer from a 2% loss of earning capacity. I find Mr. Yeung is entitled to an award under PSLA in the sum of $180,000.

Quantum – Loss of Earning Capacity
The Plaintiff is not claiming any loss of future earnings, he is asking instead for compensation for loss of earning capacity in the sum of $100,000. Mr. Wong submitted that the loss of earning capacity is designed to cover the risk at some future dates during the Plaintiff’s working life if he should lose the employment he has at the time of trial and he would then suffer financial loss because of the disadvantage in the labour market due to his injuries. This is the basis and rationale of the loss of the earning capacity claim in the case of Chan Wai Tong v. Lee Ping Sum [1985] HKLR 176.

I agree with Mr. Wong’s submission that damages for loss of earning capacity should be awarded if the Plaintiff is facing a substantial or real risk that he may lose his present employment before the end of the estimated length of his working life because of the disadvantage in finding comparable employment (Moeliker v Reyrolle & Co. [1977] 1WLR 132) After considering Mr. Yeung’s age, length of his remaining working life, the prejudice in the labour market by reason of his injuries and the prospects of obtaining alternative employment and the potential earnings of the Plaintiff had the accident not occurred, I have come to the conclusion that Mr. Yeung does suffer a loss of earning capacity because of his reduced working efficiency. Mr. Yeung is now 55 years old, he is separated from his wife and living with 3 teenage children who are still in school. Looking at his post-accident employments, it is highly likely that Mr. Yeung would work as long as he can physically afford to do so and bring home income from his labour. Unfortunately, due to the accident, his work efficiency has been reduced which has also placed him in an unfortunate and unfavourable position so far as employment prospects are concerned. I would therefore award the sum of $100,000 for his loss of earning capacity.

黃得雄 v. 朱鳳球CACV 189/2007

S’s words:-
Many people always ask whether it is the duty of a landlord or a tenant to repair the premises. Another simple judgment of the Court of Appeal again reiterated the position of common law that unless there is an express agreement of the parties for imposing the landlord an obligation to repair, there is never any implied term on the landlord to repair. When a landlord instructs a solicitor to prepare a tenancy agreement on his behalf, the solicitor would usually prepare an agreement with covenants saying that the landlord is not responsible for such repair. However, when a landlord wants to save his pocket, he should better check carefully the Standard Tenancy(標準租約) he acquired from shops.

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判決書日期: 2007年6月29日

當一份租約沒有明文條款令到業主有責任修補處所時，根據普通法，一位業主是沒有任何隱含的責任須要負責修補處所的（Halsbury’s Laws of Hong Kong第17（1）冊，2007年再發行，《業主與租客》第235.289段)，而一位業主把地方租出時，亦沒有作出隱含的適用性的保證(warranty of fitness) （Halsbury’s Laws of Hong Kong如上, 第235.292段）。而且，一位業主不修補處所是不構成違反安寧享有的契約條款的 (covenant for quiet enjoyment)，亦不構成減損土地的批予 (derogation from grant) (Halsbury’s Laws of England, 4th Ed. Vol. 27(1) 2006 reissue, p.533, paragraph 514)。

HKSAR v. Choi Wai kwong (蔡偉光) CACC 137/2006

S’s word:-
Just two points I would like to highlight here, they are Paragraph 36 and Chapter 46 of the Police Force Procedures Manual. Although the Appellant failed to succeed in his appeal by relying on the non-compliance of the same, it can amount to be good attacks on the prosecution’s ID parade evidence for Defendants’ counsels/solicitors that they could adopt in future.

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Date of Judgment: 3 July 2007

Police Force Procedures Manual states:
36. Sometimes a witness may request to see the members of the parade either wearing hats or with headwear removed. There is no objection to such a request. However, if a witness wishes to hear any parade member speak, adopt a specified posture or see the member move, the witness will be first asked whether or not he can identify any person(s) on parade on the basis of the appearance only. The reply will be recorded. When the request is to hear members of the parade speak, the witness should be reminded that the participants on the parade were chosen on the basis of physical appearance only. Members of the parade may then be asked to comply with the witness’ request. Full details of the incident, including the stages at which any identification is made, will be recorded.”

Chapter 46 of the Police Force Procedures Manual provides that the officer in charge of a case may be present at the parade but should not take part in the proceedings. Furthermore, it is specifically stated in the Identification Parade Book: “Do not ask the OC case to call in the witness.”

CHIU WING NAM, DICK v. HKSAR FACC 10/2006

S’s words:-
Section 47 of the the Dangerous Drugs Ordinance, Cap. 134 states, inter alia, any person who is proved to have had in his physical possession shall, until the contrary is proved, be presumed to have had such drug in his possession.

The onus of proof remains on the prosecution (not against Basic Law and the Bill of Rights) and that was why the Court in Hung’s case decided that there was no reverse onus but only an evidential onus which would do no more than require that there be evidence which raised the issue.

A “standard direction” was given that placed the burden of proof on a balance of probabilities on the appellant. That explains why the appeal was allowed.

Is there still any other criminal offence in Hong Kong having such similar presumption of knowledge section?

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Handing Down of Reasons: 3 July 2007

At the conclusion of the hearing, [the Honourable Court] allowed the appeal, quashed the conviction, ordered a retrial and remanded the appellant in custody pending his retrial.

The Defendant was convicted of trafficking in a dangerous drug.

He had been arrested on a staircase in a building in Yuen Long and was found to be carrying 705.90 grammes of a mixture containing 295.42 grammes of heroin hydrochloride some of which was in a shoulder bag and some concealed in his underpants. He maintained to the police, and at trial, that he thought that he was carrying counterfeit mobile telephone batteries which he had agreed to bring into Hong Kong from Shenzhen for a reward of $1,000 dollars.

On 19 August 2004 an application was made to the Court of Appeal for a certificate on a point of law of great and general importance namely that s.47 was inconsistent with the provisions of the Basic Law. The contention was that “On the basis that the standard of proof required before the presumptions provided for in [section 47]… are rebutted requires proof on the balance of probabilities, in relation to a person charged with trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance, is the required standard of proof inconsistent with the rights of such a person in the Basic Law and elsewhere to be presumed innocent, to equality and to a fair trial?”. This point had not been raised at the trial or before the Court of Appeal. On 22 September 2004 to Court of Appeal refused to certify.

On 14 October 2004 an application was made to the Court of Final Appeal seeking leave to appeal on the point of law set out above and seeking an extension of time as the application was by then 4 months and 10 days out of time. By the time of this application the point of law had already been raised in an appeal to the Court of Appeal in HKSAR v. Hung Chan Wa and Atsushi Asano (“Hung’s case”). This Court then successively adjourned this application to await the outcome of the appeal in Hung’s case. Judgment was given on the point of law issue in Hung’s case by the Court of Appeal on 23 June 2005 [2005] 3 HKLRD 291. The matter was then appealed to this Court which gave judgment on 31 August 2006 (2006) 9 HKCFAR 614.

The Court in Hung’s case was called upon to decide whether s.47(1) and (2) reversed the onus of proof so as to impose a persuasive (legal) burden on an accused or whether they imposed only an evidential onus. If the former was so it was argued that this would derogate from the presumption of innocence and the right to a fair trial which are guaranteed by the Basic Law and the Hong Kong Bill of Rights. If the latter was so no reverse onus would be placed upon the accused but only an evidential onus which would do no more than require that there be evidence which raised the issue. The onus of proof beyond reasonable doubt would remain squarely on the prosecution and there would then be no infringement of the Basic Law and the Bill of Rights.

Having canvassed the arguments for each side and referred to the majority decision in R. v. Lambert [2002] 2 A.C. 545 Sir Anthony Mason was satisfied “that the persuasive burdens imposed by s.47(1) and (2) are disproportionate and that in each subsection, an evidential onus would be a sufficient means of achieving the legitimate objective.” It was accordingly held that the Court of Appeal had been right to apply a remedial interpretation to s.47(1) and (2) by treating the burdens of proof as creating an evidential onus only.

In the present case the appellant did place evidence before the trial court, both from himself and from his witness, which, if believed, could be taken to support his defence and the judge did, more than once, clearly direct the jury that the onus of proving guilt beyond reasonable doubt rested on the prosecution. It is submitted, however, that the judge did also, on a number of occasions, tell the jury that, because of s.47, there was a persuasive onus resting upon the appellant and that, given the decision in Hung’s case, a substantial and grave injustice has been done to the appellant.

Particular reliance is placed upon the passage where the judge said “So you have to look at the evidence, both in the case for the prosecution and in all that has come from the defence, and decide whether it is more likely than not that he was unaware of the nature of the drugs.” Reliance on the appellant’s behalf might equally well have been placed upon the passage which immediately preceded that set out above which reads “If he is proved or presumed to have those drugs in his possession, until the contrary is proved, he is presumed to know what they are, to know they are drugs. Therefore given the evidence which is not in dispute, and given this presumption, unless it is proved to the contrary, the accused had possession and knew what he had.” (emphasis supplied) Further the judge, in later passages, more than once clearly placed a persuasive burden on the appellant. It must in fairness be said that the judge, when so doing, was following the view, which was then universally held by prosecutors, by defence counsel and by the courts, that s.47 imposed a persuasive burden on a defendant which he had to discharge on the balance of probabilities.

The respondent conceded that the summing-up was, prior to the decision in Hung’s case, a “standard direction” which placed the burden of proof on a balance of probabilities on the appellant. Given the uncertainty that must exist as to the extent to which the jury’s decision was affected by that direction he felt unable to submit that this was an appropriate case for the application of the proviso.

The appellant did, in the circumstances, suffer a substantial and grave injustice. The appeal must be allowed and the conviction quashed.

HKSAR v. SIU KAM YUNG (蕭金容) (D1) CACC512/2006

S’s words:-
What a pity. A case that has failed to convince the Court to regard the circumstances of the applicant and her late daughter amounted to such an exceptional humanitarian ground so as to warrant a reduction in the applicant’s sentence. If I were the one who imposed sentence, would I form a different view?

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Date of Judgment : 29 June 2007

The 65-year old applicant was, on 24 October 2006, convicted on her own plea in the District Court by Deputy Judge Casewell of a single offence of conspiracy to steal (Charge 1) and seven theft offences (Charges 3–6, 13–15).

She was sentenced to 10 months’ imprisonment in respect of each of the 1st charged offence of conspiracy and the 3rd charged offence of theft, and to 6 months’ imprisonment for each of the remaining theft offences contained in Charges 4–6 and 13–15.

The judge ordered that the sentences be served partly concurrently so as to arrive at a total sentence of 32 months’ imprisonment.

The applicant had five children. Her youngest daughter sadly died from a long-standing illness on 1 December 2006, some 39 days after the applicant commenced serving her present sentences. She was 40 years old. Immediately following the death of her daughter, the applicant, who had previously suffered from bouts of depression, experienced those symptoms again and was initially treated at the Tuen Mun Mental Health Centre on 2 December 2006 where she was diagnosed as suffering a moderate episode of Recurrent Depressive Disorder.

That diagnosis was confirmed upon subsequent examinations of the applicant at Castle Peak Hospital, though the seriousness of this current episode of her illness was subsequently described as “mild to severe”. The prognosis for the applicant’s illness was stated in a report of Dr Robyn Mei Yee Ho of Castle Peak Hospital dated 11 March 2007 as being “fair”. The applicant requires continual psychiatric treatment at the present time.

Whilst [the Court had] every sympathy for the applicant, [the Court noted] that her daughter’s illness, Systemic Lupus Erythematosus, predated the present offence and she had in fact been receiving treatment for it since 1995. Her condition had deteriorated by September 2002 to the extent that she was receiving intensive care at Queen Elizabeth Hospital

The present offences were committed by the applicant between May 2003 and May 2006. They were committed, it is fair to say, whilst the applicant was well aware of the state of her daughter’s illness.

[The Court did] not think in those circumstances the death of the applicant’s daughter amounts to such an exceptional humanitarian ground so as to warrant a reduction in the applicant’s sentence. Nor [did the Court] think that the current episode of the applicant’s depressive disorder brought on by the death of her daughter amounts to such a ground. That illness is currently being treated whilst the applicant is in custody and is apparently being managed with some success. It has not been thought necessary to transfer her to Siu Lam Psychiatric Centre.

... the applications were dismissed.

RE INTELLIGENT GROUP ENTERPRISE LTD HCMP 700/2007

S's Words:-
It is not a different task to increase capital. However, when one wants to reduce the share capitil of a limited company, passing a special resolution alone is not sufficient. Would you have a second thought before you make such a proposal?

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Date of Judgment: 26 June 2007

IN THE MATTER of Section 59 of the Companies Ordinance (Cap. 32)

This is a petition presented by Intelligent Group Enterprise Limited (“the Company”) for confirmation of reduction of its share capital and the cancellation of its share premium account.

There is provision in the articles of association of the Company that it may by special resolution reduce its share capital or any share premium account in any manner and with, and subject to, any incident authorised, and consent required, by law.

In the notice to convene the extraordinary general meeting and the circular to shareholders accompanying the notice, the purposes of the proposed reduction and cancellation of the share premium account were adequately explained to the shareholders.

The directors considered it would be in the interest of the Company to bring in another investor. ... To achieve a reasonable capital structure so as to bring in an investor to salvage the Company, the directors proposed to reduce the share capital to eliminate the accumulated losses and to return redundant capital locked up in non-business assets. This would bring the accounts more nearly into line with the business assets and bring forward the time when the Company would be in a position to pay dividends.

There was no opposition to the petition.

The conditions for a reduction of capital are satisfied in this instance. The shareholders are treated equitably in the proposed reduction and the proposals have been properly explained to them in the circular. The reduction is for a discernible purpose and [the Judge was] satisfied that the interests of creditors are adequately safeguarded. [The Judge had] made an order in terms of the draft submitted as amended.