YEE PUI PUI ANNA v. LAM MEI LIN & Another DCMP 1377/2007

S’s words:-

From the decisions of the Privy Council in Chong Kai Tai Ringo & Another v. Lee Gee Kee & Another [1977] HKLRD 461 and Edward Wong Finance Co. Ltd v. Johnson Stokes & Master (a firm) [1984] 1 A.C. 296, it has been decided that a party to a sale and purchase agreement of land is entitled to require formal completion unless there is agreement to the contrary. Such is still our law up to today.

Paragraph 12 of the Law Society's circular 91/82 issued on 28 December 1982 reads that "it will be assumed that completion will take place by way of undertaking unless the solicitors concerned notified the other side in good time that standard undertakings will not apply and that formal completion is required". The circulars of Law Society, as in many other occasions dealing with the same issue or others, are still not the law or any strict regulations requiring all legal practitioners to follow. In no doubt, such is expected.

Personally, it is difficult to blame the Defendant in this case. The Plaintiff from the very first beginning insisted for formal completion. We have no idea why the Plaintiff or her solicitors decided the same. In some situations, there may be unusual circumstances supporting a purchaser’s solicitors requiring the same. However, in many other occasions, purchasers’ solicitors are used to rely on formal completion as a tactics.

The judgment itself did not tell us know whether there was any other reason(s) the purchaser’s solicitors insisting for formal completion. If there was no such special circumstances, it would definitely be a bad example (but update) for the solicitors of the purchasers in future to insist on asking for formal completion. Split cheques may also be another weapon for the solicitors of the purchasers.

Besides, it is difficult (but not impossible certainly) to arrange the mortgagee to have the release/discharge be executed in escrow or invite their representatives to attend the office of the vendor’s solicitors. That is a practical issue one may have to consider.

Maybe we have to advise the estate property agencies to re-draft their respective provisional agreement for sale and purchase to include completion by way of undertaking and a vendor can require a purchaser to split the cheques for payment(s).

--- quote from judgment ---

Date of handing down Judgment : 20 September 2007

This is the Plaintiff’s application by Originating Summons for declarations that the Defendants were in breach of an agreement for the sale and purchase of a property by failing to complete on the contractual completion date, that the Plaintiff is entitled to terminate the agreement by reason of the wrongful breach on the part of the Defendants, and that the Plaintiff is entitled to a refund of the deposits paid by them under the agreement.

The parties were therefore unable to agree on the terms of the formal agreement for sale and purchase, and none was eventually signed.

On 19 April 2007, the Plaintiff's solicitors sent a draft assignment of the Property to the Defendants' solicitors for approval, and asked for the specific time for the formal completion of the sale and purchase on 20 April 2007. On the same day, in response to the letter of 19 April 2007 from the Plaintiff's solicitors, the Defendants' solicitors wrote to say that the draft assignment was approved without amendments, and asked for the draft of the "Undertaking Letter" from the Plaintiff’s solicitors for their approval, to comply with the Law Society's Circular No. 3/92. The Defendants' solicitors also reminded the Plaintiff that completion was scheduled to take place at or before 5 p.m. on 20 April 2007, and asked for payment of the sum of HK $1,287,000 by three split cheques (HK $942,275.81 in favour of the mortgagee, HK $340,729.19 in favour of the Defendants, and HK $4,000 in favour of the Defendants’ solicitors). This letter was faxed at 5:13pm on 19 April 2007.

On the evidence, it is not disputed that the Plaintiff attended the offices of the Defendants' solicitors with her legal representatives at 3:55 p.m. on 20 April 2007. They brought with them the approved assignment and a cashier order in the sum of HK $1,287,000 which was issued in favor of the Defendants, and asked for completion to take place. They were informed by the Defendants' solicitors that the Defendants were not in their office, and that the Defendants had never accepted formal completion to be held on that day. According to the evidence of the Defendants, the Plaintiff's solicitor, Mr. Tang, produced to Mr. Tsang, the legal executive of the Defendants' solicitors handling the transaction, a cashier order for payment of the balance of the purchase price. Having noted that the sum of HK $1,287,000 was not made payable in accordance with the split cheque instructions given by the Defendants' solicitors, Mr. Tsang informed Mr. Tang that there was "no basis for formal completion". The Plaintiffs and Mr. Tang then left.

Formal completion or completion by undertakings

On the authority of the decisions of the Privy Council in Chong Kai Tai Ringo & Another v. Lee Gee Kee & Another [1977] HKLRD 461 and Edward Wong Finance Co. Ltd v. Johnson Stokes & Master ( a firm) [1984] 1 A.C. 296, it is clear that a party to a sale and purchase agreement of land is entitled to require formal completion unless there is agreement to the contrary. Paragraph 12 of the Law Society's circular 91/82 issued on 28 December 1982 reads that "it will be assumed that completion will take place by way of undertaking unless the solicitors concerned notified the other side in good time that standard undertakings will not apply and that formal completion is required". Notwithstanding that, the Privy Council decisions have well established that save for cases where the contract provides expressly to the contrary, a purchaser is entitled to refuse to pay the purchase price due on completion except against delivery to him of the duly executed assignment and, where the vendor has mortgaged the property, also the duly executed release or discharge of the mortgage. The obligations of the purchaser to pay and the vendor to complete by giving an executed assignment are to be carried out simultaneously unless there was an express or implied term to the contrary.

Chong Kai Tai's case makes it clear that "the question is not whether the circumstances require the implication of a term that payment and completion were to be simultaneous, but whether the circumstances require the implication of a term that there would be a departure from the normal rule that they would be simultaneous" (Chong Kai Tai v. Lee Gee Kee [1997] HKLRD 461, 467G-H). Since it is the Plaintiff's right to require formal completion, whether formal completion is necessary or reasonable is not relevant.

It is clear from the decision of Recorder Edward Chan, S.C. in Cheng Jui Lung Kris v. Perfect Best Ltd. HCA 1347 of 1998 that the rights of a purchaser under the contract to formal completion cannot be varied by the Law Society circular which requires three working days’ notice to be given "as a matter of professional courtesy" before formal completion. In the light of the clear authorities binding this court, I am not persuaded that a term has to be implied in the Agreement that reasonable notification for formal completion has to be given before the Plaintiff can insist on her right to formal completion. In any event, the Plaintiff's solicitors had indicated on 20 March 2007 that the Plaintiff wished to have formal completion. On that basis, the Plaintiff had given reasonable and adequate notice.

Whether proper tender of payment

The decision of the Court of Final Appeal in Kensland Realty Ltd. v. Whale View Investment Ltd. (FACV No. 10 of 2001) deals with, inter alia, a term being implied into an agreement for the sale and purchase of land, where the land is subject to an existing mortgage, for split payment, and the time to be implied for giving split payment instructions. However, that decision relates to completion of such an agreement by way of undertaking, and is not directly applicable to the facts of the present case.

Counsel for the Defendants relied on the decision of the Court of Final Appeal in Ma So So v. Chin Yuk Lun [2004] 3 HKLRD 294, and the observation made by Ribeiro PJ that the vendors in the case "were contractually entitled" to require the balance of the purchase monies to be split. However, the parties in the case of Ma So So had signed a formal sale and purchase agreement, with the standard provision to which I referred in paragraph 27 above which confers on the vendor the right to require the purchaser to split the payment of the purchase price or any part thereof in accordance with the split cheque instructions given by the vendor. There is no such formal agreement signed in the present case to give the "contractual entitlement " to the Defendants. Nor does the Agreement confer such a right on the Defendants. In the absence of any agreement to make "split payment" of the purchase price, the Plaintiff is not in breach by virtue of her failure to comply with the request of the Defendants' solicitors to make payment by split cheques.

I am satisfied, on the evidence, that the conduct of the Defendants and their solicitors on 20 April 2007 had made it plain that the Defendants were not prepared to complete the sale and purchase at the scheduled time, notwithstanding the Plaintiff's ability and readiness to proceed, and that the Plaintiff is entitled to treat the Defendants' conduct as a repudiation of the Agreement.

FRED LEE and CHOW WAI LAN, CHRISTINE, trustee of the property of LAI WAI HUNG, a bankrupt v. LAI WAI HUNG HCB 14977/2002

S’s words:-

Subsequent to the case of FRED LEE, trustee of the property of LIU MAN HOO, a bankrupt v. LIU MAN HOO HCB 11719/2002, the same Trustee lost another case. However, the most important impact is that, it was ordered by the Court that the Trustee has to bear the costs of the application personally. Will that similar costs order come again in the future?

It is the right time for all trustee to review at what circumstances an application should/should not be made.

Certainly, I have got the thought of how to make better evidence on behalf of the trustees to support such kind of applications.

--- quote from judgment ---

Coram : Before Master Lung in Court

Date of Decision : 12 September 2007

According to the affirmation of the trustee, no creditor has complained to the trustee to initiate this application. This is purely the decision of the trustee himself.

The trustee originally relied on two grounds in support of his application under section 30A(4)(d) of the Bankruptcy Ordinance for his application, namely that the bankrupt had made excessive borrowings, knowing that he might not be able to repay and that he had made misrepresentations to JCG and SHK banks for loans. The trustee now abandons his ground of excessive borrowing in light of the judgment of Kwan J. in Lee Yuk Man’s case [2007] 1 HKC164. He only relies on the remaining ground of misrepresentation alone. The trustee has no other complaints against the bankrupt.

The Trustee has put forth no evidence to rebut the bankrupt’s evidence. I therefore accept the bankrupt’s evidence. I specifically ask Mr. Gopaoco how this court should draw the necessary inference under the evidence before me that the bankrupt had the intention of make misrepresentations to the banks at the material time. Mr. Gopaoco submits he was unable to invite this court to draw such inference.

I take into consideration of the judgment of Kwan J. in Lee Yuk Man’s case, in which the judge found that the approach and mechanism adopted by the trustee were flawed in that the trustee had acted too readily in deciding to take out this application without any investigations into the matter before taking out the application [183H]. In this case, the period of bankruptcy of the bankrupt has been prolonged unnecessary. Since the trustee has failed to discharge his quasi-judicial obligation properly, the trustee is not entitled to recover his costs of and occasioned by this application out of the bankrupt’s estate, following the approach of the learned Judge in Lee Yuk Man’s case [191D-F]. I further order that the bankrupt shall have costs of this application, including all costs reserved in the meantime, such costs are to be taxed, if not agreed. The question of whether such costs should be paid by the Trustee personally or out of the estate has been discussed before me by those the representing the respective parties. I consider that the costs of this application should not be borne by the creditors, as according to the Trustee, they did not initiate this application. I find that the Trustee has failed to discharge his duties of making reasonable investigations into the facts of this case before taking out this application. As such, I consider that the Trustee has to bear the costs of this application personally.

FRED LEE, trustee of the property of LIU MAN HOO, a bankrupt v. LIU MAN HOO HCB 11719/2002 (3)

S’s words:-
The Judge also in this case talked about his view when an application for the objection should be made.
In no doubt, his view was also supported by his view that the discharge of bankruptcy is in his view a rehabilitation rather than any further punishment to a bankrupt.
The application definitely would affect the bankrupt from discharge immediately. Before this judgment being made, as soon as an application was filed, it would be expected that the application would be adjourned for arguments and also for the parties to file their respective affirmations. And at the time for the call-over hearing, an interim order would be granted. That caused a de facto suspension of the automatic discharge.

That could be used as an abuse by the trustee.

That would be unfair to a bankrupt for applications without merit but could only be dismissed after the final determination of the summons.

Without the necessity to consider the post-bankruptcy conduct, it is right for the Judge to comment that it would not be necessary for the trustee to make the application only at the time near the end of the 4 years’ period.

Therefore, it is right for the Judge to suggest that the trustee should conduct interview to investigate the conduct of the bankrupt’s pre-bankruptcy conduct. With such interview and investigation, the trustee would have the preliminary view as to whether to apply for any suspension of the automatic discharge. The trustee would not be required to wait and even with applications before the Court, it is possible for the Court to decide whether any suspension orders are required to be made before or shortly after the 4 years’ period.

However, at the time of the call-over hearing, Master may then be required to form a preliminary view immediately through the evidence before him/her but yet before a full hearing.

Would the judgment be a guideline for the future application of objection on the part of the trustee?

--- quote from judgment ---

Before : Hon Lam J in Court
Date of Handing Down Reasons for Decision : 14 September 2007

The interim orders and the timing of the application

Before I leave this case, I wish to comment on the practice regarding the grant of interim orders and the timing of the application by the Trustee.

It is important that a trustee and the court should appreciate that it is particularly devastating for a bankrupt to learn for the first time during the last few months of the usual 4 years period that there would be an application to suspend the automatic discharge based on pre-bankruptcy conducts notwithstanding that his post-bankruptcy conducts were more than satisfactory.

Because of the timing of the application and adjournment of the matter pending the outcome of the test case heard by Kwan J, this application was not heard until the end of August 2007. Though I dismissed the application immediately after the hearing, there has already been a de facto suspension of the automatic discharge for more than 10 months.

In Li Tat Kong HCB 741 of 1995, 2 June 2000, Le Pichon J (as she then was) held that the court’s jurisdiction to suspend the automatic discharge was engaged upon the issuance of the summons by the trustee and interim order suspending the automatic discharge pending the final determination of the summons can be made.

It is inherently unfair to a bankrupt if the automatic discharge is suspended due to a late unmeritorious application by a trustee. It is also an abuse of process if a trustee does not conduct any proper investigation during the four years period and leaves it to the last minute to seek to inquire into the affairs of a bankrupt and ask for suspension based on ground (b) under Section 30A(4). Thus in Frost v Sheahan (2005) 3 ABC (NS) 288 at p.301-2, Lander J said,

“ …in some cases, the failure to identify those assets and income may be the fault of the trustee. In those circumstances, it may not be appropriate to continue the administration of the estate if the trustee has not discharged his or her obligations in a diligent manner …”

As explained above, a trustee should have conducted a proper investigation before he can properly decide whether to make an objection. This should include interviewing the bankrupt and ascertaining from him whatever explanations he might have as regards the possible allegations that might be raised against him. It follows that the court is entitled to expect that an application to object would be supported by reasonably comprehensive evidence filed by the trustee. At the call-over hearing, I think the court should form a provisional view on the merit of the application. If the court were of the view that there is a lack of real prospect of achieving any suspension, it should seriously considering dismissing the application if an interim order would have the effect of granting a de facto suspension, particularly if there is no good explanation for the late application.

The Trustee contended that it was reasonable for him to wait until the last moment before he filed an application because he had to take into account of post-bankruptcy conducts. I accept that there could be cases where the reliance on post-bankruptcy conducts entails a late decision to be made regarding the raising of objections. But I do not think this applies to the majority of the cases. Take the facts of the present case as an example, the Trustee should have investigated upon the pre-bankruptcy conducts soon after the filing of the proof of debts. As regards the evidence regarding the misconceived ground (a), it was based on the stable employment of Liu. Bearing in mind the extent of co-operation of Liu since his bankruptcy, there was no indication that the Trustee would need to rely on post-bankruptcy unsatisfactory conducts. I do not see any reason why the Trustee could not take out an application at the end of the third year. If necessary, the Trustee can file supplemental evidence setting out additional grounds if there were developments subsequent to the filing of the original application that are material.

For most cases, by the end of the third year, with reasonable diligence and proper skill and competence, the trustee should have a good idea whether the bankrupt had been co-operative in the post-bankruptcy stage and whether there are pre-bankruptcy unsatisfactory conducts. The trustee should also be able to assess by then whether a discharge of the bankrupt at the end of the usual four years period would prejudice the administration of the estate. I do not think it is too onerous to expect a trustee to make a decision on whether to raise an objection shortly thereafter in a usual case. After all, in the timescale of a four years relevant period, it must be reasonable to expect the trustee to complete most of his investigation into the affairs of a co-operative bankrupt by that stage.

FRED LEE, trustee of the property of LIU MAN HOO, a bankrupt v. LIU MAN HOO HCB 11719/2002 (2)

S’s words:
Apart from the interpretation of Section 30A(4)(a),the Judge further commented that the Trustee should carry out the necessary investigation to inform himself of all relevant facts before he could make a responsible and proper decision on whether to raise his objection based on Section 30A(4)(d) (the 2nd grounds of objection of the Trustee). With no doubt, the Trustee in this case did not even conduct any interview with the bankrupt for his pre-bankruptcy conducts.

That 2nd grounds of objection goes to the unsatisfactory conducts of a bankrupt. The Judge finally decided that the bankrupt’s pre-bankruptcy conducts were unsatisfactory. However, it is quite difficult to understand why the Judge has to take the role to investigate the same but not for the Trustee to hold investigations to ensure the same beforehand.

Further, even though the bankrupt was ruled with pre-bankruptcy conducts, the Judge refused to exercise its discretion. The Judge ruled that the pre-bankruptcy conducts should be so serious. Bearing in mind that there was no interview with the bankrupt in relation to his pre-bankruptcy conducts, it is expected that it would be too difficult to conclude that “the unsatisfactory pre-bankruptcy conducts were so serious that it would be difficult for a bankrupt to escape suspension altogether”

The issue of interim order will be mentioned in another post.

--- quote from judgment ---

Before : Hon Lam J in Court
Date of Handing Down Reasons for Decision : 14 September 2007

(continue)

Further, a trustee should carry out the necessary investigation to inform himself of all relevant facts before he could make a responsible and proper decision on whether it is appropriate to object in the circumstances of the case in question. I find it astonishing that in the present case, the Trustee had not even conducted any interview with Liu regarding his pre-bankruptcy conducts before he decided to raise an objection based on Section 30A(4)(d).

...

Unsatisfactory conducts
In Lee Fred v Leung Chin Yeung [2007] 1 HKC 164, all the counsel agreed that it connotes a broad and low jurisdictional threshold (see Para.44).

In Para.45, Kwan J made the following observation regarding excessive borrowing,

“ In a case involving excessive credit in which loans were obtained when the debtor should have known he would not be able to repay, where the bankrupt has been co-operative with the trustee and made voluntary contributions to the estate, and provided there is no other misconduct, I am inclined to think that the pre-bankruptcy conduct is not such as to warrant suspension of the running of the relevant period.”

I agree with Deputy Judge A To that in that paragraph, Kwan J was dealing with how the discretion should be exercised as opposed to whether excessive borrowing can constitute unsatisfactory conduct under Section 30A(4)(d).

In Fred Lee v Tong Yuk Kin HCB 22870 of 2002, 20 June 2007, Deputy Judge A To made reference to the law under the old Bankruptcy Ordinance and took the view that in general, the matters set out in Section 30(4) under the old ordinance could be regarded as examples of unsatisfactory pre-bankruptcy conducts (para.14). The protection of the integrity of the automatic discharge system and the prevention of abuse of the bankruptcy regime were identified as the rationale for taking pre-bankruptcy conducts into account (paras.15 and 16). The acid test formulated by the learned judge is as follows (para.17),

“ Ultimately, the question of whether the conduct is unsatisfactory is whether the conduct is one which the society is prepared to condone without expressing disapproval. This question is to be answered by the reasonable man’s test. This hypothetical reasonable man has to bear in mind the overriding purpose of rehabilitation. He has to take into account whether the debt is a business debt or consumer credit and consider the reasons for which the debt was incurred, the amount of the debt as compared with the bankrupt’s means and station in life, the blameworthiness of the bankrupt and all the circumstances in which the debt arose. In addition, the reasonable man has to take into account human nature, its weakness, its readiness to indulge in extravagant spending and its readiness to engage in speculation and assumption of risk.”

This test was adopted and applied by Master Kwang in Fred Lee v Kwan Kwong Ning HCB 17846 of 2002, 20 August 2007.

In the present case, the Trustee apparently did not conduct any meaningful investigation as regards how the debts of Liu came to be incurred. According to Mr Chan, the Trustee simply extracted the information from the documents filed for proof of debts and the statement of affairs to come to the view that objection should be made. In Lee Fred v Leung Chin Yeung [2007] 1 HKC 164 Kwan J referred to the practice of this trustee at para.35 and explained at para.38 why this practice is flawed. At para.38, Her Ladyship alluded to the fact that the Trustee has filed 150 objections out of 360 cases in which he was appointed during June 2002 to January 2003. I have not been told whether the present case is one of those 150 objections. But the Trustee was appointed within that period and the present objection was filed in September 2006. On 5 October 2006, the present application was adjourned pending the decision of Kwan J. in the three test cases. It was restored on 6 March 2007 after the judgment of Kwan J.

Having regard to the circumstances as a whole, though I do not think Liu intended to cause financial loss to his creditors, I am of the view that Liu’s pre-bankruptcy conducts were unsatisfactory.

Exercise of discretion
In my judgment, the court must take an overall view of the matter in the exercise of discretion. Whilst there are cases where the unsatisfactory pre-bankruptcy conducts were so serious that it would be difficult for a bankrupt to escape suspension altogether (see Para.17.42 of the Law Reform Commission Report), I am of the view that this case does not fall within such category.

In this connection, I respectfully concur with Lander J’s observations in the Federal Court of Australia in Frost v Sheahan (2005) 3 ABC (NS) 288 at p.294-5,

“ The purpose of the objection procedure is to provide the trustee with a power by which he can induce the bankrupt to act in accordance with the bankrupt’s obligations.
The trustee should not use the power for the purpose of punishing the bankrupt for acts taken by the bankrupt which cannot be rectified. Rather, the power should be used for the purpose of persuading the bankrupt to discharge the bankrupt’s duties under the Act.
It is a power, however, which must be used sparingly and for the purpose of protecting the interests of creditors and in generally advancing the administration of the estate of the bankrupt.
In a sense, it is a power of last resort when no other form of persuasion will assist to remind the bankrupt of the bankrupt’s obligations.”

FRED LEE, trustee of the property of LIU MAN HOO, a bankrupt v. LIU MAN HOO HCB 11719/2002 (1)

S’s words:-
I believe I have in some places made a comment as to whether a trustee should lodge his/her objections for an automatic discharge. The following is another case authority that the Judge did have commented seriously whether the trustee should make an objection.
However, there are some other issues being discussed in this case. Thus, I would try my best to use separate posts to discuss the same.

There was no dispute that the post-bankruptcy conducts of the bankrupt were satisfactory. Further, in fact, he repaid a lot during the four years.

In my personal view, the first grounds of objection by the Trustee was terrible:-

“That Liu is likely within 5 years of commencement of the bankruptcy to be able to make a significant contribution to his estate [Section 30A(4)(a)].”

If whenever a trustee could make good contribution to his estate in the 5th year (and in the 1st to 4th years as well), the Trustee could simply rely on such a ground to submit an objection with the intent to say that the bankrupt could repay more in the 5th year, it would be too discouraging for the bankrupt to try his best to make any repayment.

Fortunately, the Judge did have analysed so well to determine the true intention of the legislation, i.e., when one is repaying for the past 4 years, his discharge should not be suspended due to the fact that it is expected he can in the 5 year be able to make further signification contribution to his estate.

The Judge also commented if a trustee has adopted a practice of raising an objection under Section 30A(4)(a), such practice should be rectified.

--- quote from judgment ---

Before : Hon Lam J in Court
Date of Handing Down Reasons for Decision : 14 September 2007

A bankruptcy order was made against Mr Liu Man Hoo [“Liu”] on 10 October 2002. Since then, he had made reasonable efforts in making regular contributions to his estate for the purpose of repaying his creditors. The total amount of provable debts is $3,654,698. In the four years since the making of the bankruptcy order, Liu had contributed $1,442,011.05 to his estate. Several dividends were declared in favour of the creditors. Liu had been co-operative with the Trustee since his bankruptcy and full and frank disclosure has been given in respect of his affairs. The Trustee accepted that his post-bankruptcy conducts were satisfactory.

In the present case, the Trustee took out an application under Section 30A(3) on 11 September 2006. The grounds of objection relied on by the trustee were,

(a) That Liu is likely within 5 years of commencement of the bankruptcy to be able to make a significant contribution to his estate [Section 30A(4)(a)];
(b) That the conduct of Liu, in respect of the period before the commencement of the bankruptcy, has been unsatisfactory [Section 30A(4)(d)].

The grounds of objection have to be established to give the court a jurisdiction to order suspension. But after a ground is established, the court still has to exercise its discretion in accordance with the facts and circumstances of the case. This is clearly spelt out in Re Hui Hing Kwok [1999] 3 HKC 683; see also Fred Lee v Tong Yuk Kin HCB 22870 of 2002, 20 June 2007 Para.18.

The discretion should be exercised in line with the underlying spirit of our bankruptcy law. In Re Hui Hing Kwok [1999] 3 HKC 683, Le Pichon J (as she then was) referred to the purpose of the automatic discharge provision alluded to in para.17.16 of the Law Reform Commission’s Report on Bankruptcy and succinctly summed up the proper approach as follows,

“ Rehabilitation in the sense of enabling the bankrupt to resume a normal life in society is a key, if not the key, consideration. It should only be delayed by a bankrupt’s own failings.”

In Lee Fred v Leung Chin Yeung [2007] 1 HKC 164, Kwan J reiterated that an application to object to discharge is a serious matter and it should not be embarked upon lightly. At para.37, Her Ladyship cited a very helpful dicta of Smithers J in the Federal Court of Australia in Re Zion and it is worth highlighting the following,

“ In my view it is the policy of the law that bankruptcy should in most cases come to an end at three years … Public interest will require that a discharge be delayed or made conditional if the conduct revealed or the character of the bankrupt indicates that the return of the bankrupt to the commercial world in full freedom might involve the unacceptable risk to persons likely to be engaged in commercial relations with him in the future.”

Hence Kwan J also held that a trustee should exercise his judgment before deciding whether to object. At para.38(1), Kwan J pointed out that it is not appropriate to object merely because there is a ground which comes within one of the provisions in Section 30A(4). I respectfully agree. Insofar as a trustee has adopted a practice of raising an objection as of course when a ground can be framed under that subsection, such practice should be rectified.

I regret that based on what I was told at the hearing, the Trustee seems to have taken the stance that he was only concerned with presenting a case that falls within Section 30A(4) and it is left to the court to decide whether the discretion should be exercised against the bankrupt. That is clearly not the right approach. I hope it is an oversight on the part of the Trustee since he should have been fully aware of Kwan J’s observations. It is important for a trustee to appreciate that he is performing a public duty (Kwan J described it as ‘quasi-judicial’ obligation) and an application for suspension under Section 30A(3) will necessarily entail costs to be incurred. Apart from the grounds under Section 30A(4), a trustee should consider all other relevant circumstances in the case to see whether there is at least an arguable case that the court should exercise its discretion against the bankrupt.

Further, a trustee should carry out the necessary investigation to inform himself of all relevant facts before he could make a responsible and proper decision on whether it is appropriate to object in the circumstances of the case in question. I find it astonishing that in the present case, the Trustee had not even conducted any interview with Liu regarding his pre-bankruptcy conducts before he decided to raise an objection based on Section 30A(4)(d).

In Fred Lee v Tong Yuk Kin HCB 22870 of 2002, 20 June 2007, Deputy Judge A To expressed his agreement with the approach of Kwan J. His Lordship however added that the need to preserve commercial morality is also another important consideration underlying the bankruptcy regime. At para.20, the following observation was made,

“ I think conduct involving fraud or misrepresentation in applying for credit which contributed to bankruptcy would invariably result in an abuse of the bankruptcy regime. Save in exceptional cases, the court’s discretion should be exercised against bankrupts whose bankruptcy was related or contributed to by such conduct.”

As compared with Para.20, I think the approach set out in Para.21 of the judgment of Deputy Judge To is a more balanced one. His Lordship said,

“ It should take into consideration all the circumstances leading to the bankruptcy and not just the conduct complained of. It should consider the seriousness of the conduct, the bankrupt’s conduct after the commencement of bankruptcy, the degree of co-operation he has shown with the trustee during the relevant period and the effort he has contributed to repaying his debt. In an appropriate case, the court should consider the risk to the commercial community should the bankrupt be allowed to resume full commercial activity. The discretion to suspend the running of the relevant period should not be lightly exercised. But in its balancing exercise, the court should not allow the bankruptcy regime to be abused.”

At para.22 of his judgment, Deputy Judge A To made the important point that the purpose of suspension is rehabilitative and it should not to be used as a means of extracting more contribution from the bankrupt for distribution to his creditors. That must be correct insofar as pre-bankruptcy misconducts are concerned. However, regarding cases falling under Section 30A(4)(b),(c),(d) (in respect of post-bankruptcy misconducts), (e) and (h), the purpose of suspension may well be the facilitation of the proper administration of the estate.

Ability to make a significant contribution
Section 30A(4)(a) provides the following as a ground on which an objection can be made,

“ …that the bankrupt is likely within 5 years of the commencement of the bankruptcy to be able to made a significant contribution to his estate”.

In Re Maher (1985) 61 ALR 592, Woodward J had this to say regarding a trustee’s role in the materials placed before the court,

“ Clearly the trustee should not put forward irrelevant information, or intrude on the court’s functions, nor should he take a partisan approach to the application by only putting forward material unfavourable to the applicant and supporting the trustee’s opposition. However, the trustee is under a duty to ensure that the court has before it all material that will assist it in considering an application for discharge …”

Whilst it is right and proper that a trustee should use reasonable skill and care in procuring a proper contribution from a bankrupt to the estate during the usual four years period, I do not think it is the purpose of the objection mechanism under Section 30A to empower a trustee to extract more contributions by asking the court to suspend the automatic discharge on account of a likelihood of significant contribution in the succeeding years notwithstanding that contribution have already been made by a bankrupt to the best of his ability during the first four years. That would be incongruous with the professed objective of rehabilitation.

I believe Section 30A(4)(a) is there to catch those bankrupts who have the ability to make a significant contribution but who choose not to utilize such ability and fail to make a proper contribution during the usual four years period. Such bankrupts are at fault and those cases would warrant a consideration of suspension of the automatic discharge. This was what happened in McGoldrick v Official Trustee in Bankruptcy (1993) 119 ALR 253 where the Australian equivalent of our Section 30A(4)(a) was applied.

The key to the correct construction of Section 30A(4)(a) lies in its reference to the likelihood of the ability of the bankrupt to make a significant contribution within 5 years. If the purpose of the sub-section were to extend the bankruptcy period to facilitate a maximum recovery for the creditors by extracting more contributions in the fifth to eighth years, it needs not refer to the first four years. It would be enough for the legislation to provide under this ground,

“ That the bankrupt is likely to be able to make a significant contribution to his estate in the 4 years after the expiration of the relevant period provided for under sub-section (2) or any part thereof.”

I am of the view that it is a clear case calling for a purposive interpretation of Section 30A(4)(a). There are cogent reasons leading me to the conclusion that the list of objections under Section 30A(4) refers to cases where the bankrupt has been at fault. I do not believe Section 30A (4)(a) is there to enable a trustee to extract further contribution from a bankrupt for the benefit of the creditors when he has not been at fault during the usual 4 years period.

In the alternative, if I were somehow wrong on my construction of Section 30A(4)(a), I will hold that the court should place great weight on the due diligence on the part of a bankrupt in making contribution during the first 4 years in the exercise its discretion under Section 30A(3). If the only ground relied upon to object is that such a bankrupt could make further significant contribution in the years to come, in line with the guidance as regards the underlying policy of Section 30A(3), it is unlikely that the court would order any suspension at all.

LEUNG PO CHUN v. YAT LEE BOOTH - CONSTRUCTION CO., LIMITED & HANISON CONSTRUCTION COMPANY LIMITED HCPI 1099/2006

S’s words:-
The Plaintiff himself had decided to take a dangerous way to handle the works assigned to him. However, the Defendants being failed to provide a safe system of works, both parties were negligent and the Plaintiff could only get 50% of the amount awarded due to his 50% contributorily negligent to the accident.

A few things I would like to point out here:-
1. The Judge took the view that erecting scaffolds requires more skills than dismantling.
2. Scaffolding is physically demanding and dangerous work. Much of the scaffolding work is done at great height. With a less than perfect knee, it is demanding too much of the Plaintiff to say that he could return to his pre-accident employment. That explains why the Judge was also convinced that even there was some exaggerating factors involved in this case, scaffolding would no longer be the occupation of the Plaintiff.
3. The Plaintiff’s case for pre-accident earnings was not at all well documented. However, it is accepted that the Plaintiff could have worked for other companies when the 1st defendant did not have work for him. Thus, the Court accepted that the daily pay for a scaffolder like him is $1,000 and finally concluded that the Plaintiff’s average pre-accident earnings was at $16,000 a month.
4. The Defendant’s Counsel adopted a multiplier of 6.5 years and accepted by the Court due to the fact that the Plaintiff is now 47 and would have retired as a scaffolder at 56. Thus, in future, we have to pay attention to the retiring age of scaffolders to be accepted by the Court.
5. Unfortunately, I have no idea why District scale costs was allowed in this case. Did the Court have considered the usual case authority? As I am not the legal representatives of the parties, I do not want to guess the reasons behind.

--- quote from judgment ---

Date of Judgment (Handed Down) : 14 September 2007

This is a claim for damages for personal injury by the Plaintiff who is aged 47. He is a very experienced dismantler of bamboo scaffolding. On 7 May 2003, he was in the employment of the 1st Defendant which is a scaffolding contractor providing services for the erection and dismantling of scaffolding at building sites. On this occasion, the 1st Defendant was the scaffolding contractor at a building site at Tai Wo Hau, Kwai Chung (“the Site”) where Phase 7 of the redevelopment of the Kwai Chung Estate was taking place.

The 2nd Defendant was the principal contractor at the Site and as such responsible for the material and personnel hoists which were in use at the Site which comprised tower blocks of residential flats.

Liability
In this case, I am concerned with the catch fence in the shape of a fan which had been built at first floor level at the base of the material hoist which, as its name suggests, was there to carry building material up and down the tower block as it was being built. The hoist comprised a platform on which the material would be placed and transported to the required level of the tower block. No person was allowed to enter this hoist. It was restricted solely for the movement of materials. There was a separate hoist, with which I am not concerned, for the movement of workmen.

The Plaintiff and his colleague were told by their foreman to go to the building site in order to dismantle the catch fences at the foot of the material hoists at Blocks 4 and 5.

It is convenient to observe at this stage that the occupation of a bamboo scaffolder is a specialised one and also a dangerous one requiring scaffolders to work at great height exposed to the elements on the outside of buildings. In a moment, I will need to make reference to the detailed statutory regulations that govern the training of scaffolders and the methods that need to be employed both in the erection and the dismantling of scaffolds. For present purposes, it is sufficient to note that scaffolders specialise in either erection or dismantling. Erectors are considered the more skilled because this requires more expertise than dismantling.

Although the Plaintiff has no formal training as a scaffolder, in the sense of having undergone an industrial training course, he is someone of very great experience. He has been a scaffolder for over 20 years learning from his Master as he went along. His has been on the job training, watching and doing what his Master told him. Mr Lee who was with him is also experienced, although less so. He has been doing this work for about 7 years.

In fact what happened, according to the Plaintiff and Mr Lee, is that on finding the fan to be drooping they could not safely get onto it and cut the ties working inwards from the outside. The Plaintiff decided that in such circumstances his best option was for him to get into the material hoist and from there to cut the inner-most ties that bound the fan to the structure of the hoist itself. The Plaintiff says that he assumed that the material hoist was not in use. Nobody was about and the hoist operator was nowhere to be seen.

It seems to me that these considerations are entirely applicable to the facts of this case and they apply to both Defendants. The fact is that no system of work had been laid out for these two men, let alone anything that approached a safe one. Given his vast experience the Plaintiff had, it seems to me, developed this system whereby he would get into the hoist frame and, relatively speaking, quickly snip the fan off in one piece from the hoist frame. The dismantling would then be done on the ground. It was quick. Unfortunately, it also produced a set of circumstances that resulted in an accident waiting to happen which is what occurred on this occasion. Had the 1st Defendant and the 2nd Defendant, as the principal contractor, seen to it that the Code of Practice was adhered to this would not have happened. A method would have been devised to dismantle the fan by cutting the ties from outside the hoist by use of a working platform, as was eventually done after the accident, in combination perhaps with a knife attached to a bamboo pole to reach up where necessary. The process would undoubtedly have been a longer one but it would have been a safe one. I find both Defendants liable in the ways pleaded against them in the Statement of Claim. This being the case, I now need to decide whether the Plaintiff ought to suffer a reduction in his damages by virtue of any negligence on his part in going into the hoist frame.

The factual basis for this relates to the Plaintiff having entered the hoist frame without jamming the door open and having put up a warning sign to the effect that work was in progress in the hoist frame. The Plaintiff and Mr Lee say that they had cordoned off the area with a couple of pedestrian barriers but in my judgment that was wholly insufficient. It strikes me that in approaching the issue “by way of an overall appreciation of [the Plaintiff’s] blameworthiness, taken with the causative potency of whatever he did” that he must bear half the blame for what happened to him. There must therefore be a 50% discount for contributory negligence. It really was asking for trouble to do what he did notwithstanding the Defendants’ failure to provide any safe system of work. I am afraid that the Plaintiff must have realised the risk that he was running and despite it all decided to take it simply because this was the quick way of doing things.

Quantum
Even on the evidence of the film, I do not believe that the Plaintiff could safely return to scaffolding. This is physically demanding and dangerous work. The job that he was doing when he was injured was dismantling at its most basic and as close as one could get to ground level. Much of this work is done at great height. With a less than perfect knee, it is demanding too much of the Plaintiff to say that he could return to his pre-accident employment. I appreciate that he was seen entering a building site on an isolated occasion and although his explanation of collecting back wages that pre-dated the accident is very suspicious, I am unable to say that he can work on building sites on what is a paucity of evidence. Had he been followed for more days and seen entering building sites repeatedly then that might have suggested a different conclusion.

I have been shown a Government generated list of jobs and pay. I would have thought that these days the Plaintiff, who can more probably than not, read to a basic level could work as a waiter, delivery man or general worker and on the statistical evidence command a salary of, doing my best, $7,500 a month which will be the basis of my assessment.

Loss of Earnings
I must first determine his pre-accident earnings. He says it was $22,000 a month although originally claimed at $17,000. The average from the 1st Defendant for the previous 12 months was $10,363. The Plaintiff’s case is not at all well documented but it would be doing him an injustice to restrict him to the documentary evidence. I accept that he worked for other companies when the 1st defendant did not have work for him. The daily pay for a scaffolder like him is $1,000. This I accept. I am afraid I must do my best on sparse evidence. I accept that some employers will keep better records than others. I propose, doing my best, to assess his average pre-accident earnings at $16,000 a month and this figure will also form the basis of my assessment.

Future Loss of Earnings
The multiplicand will be $8,500. Mr Lim’s multiplier of 6.5 years is correct given that the Plaintiff is now 47 and would have retired as a scaffolder at 56. The resulting total is $663,000 being $8,500 x 12 months x 6.5 years. To this I propose to add 5% for the employer’s MPF contribution which is $33,150. The total for future loss of earnings will therefore be $696,150.

I have fully compensated him for future loss of earnings and where I am content to say that he will not struggle in his alternative future employments, I propose a modest amount of $30,000.

There will be an order nisi that costs will be to the Plaintiff on the District Court Scale together with legal aid taxation of his costs.

HKSAR v. LIU QIANQING HCMA 103/2007

S’s words:-

This is a classical case of bogus marriage that the Defendant appealed against sentence (after the guilty plea).

The Defendant was sent to prison for 21 months of which 12 months in relation to making false representation whilst 9 months for conspiracy to defraud.

9 months for conspiracy to defraud is not excessive at all.

12 months for making false representation is also reasonable.

Attention has to be paid to the fact that the Court is entitled to impose consecutive sentence (but not concurrent) for making false representations and conspiracy to defraud.

Thus, before she pleaded guilty in the lower Court below, is it possible for the Defendant’s counsel asking for a plea bargain? Unfortunately, I do not want to speculate further on this point.

Not only Shatin’s Principal Magistrate is well aware of bogus marriage. Most of the magistrates in Shatin are well familiar with the same as well.

To conclude, don’t ever try to enter into any bogus marriage, or otherwise, one would fact the risks of entering into the jail at last.

--- quote from judgment ---

Date of Judgment: 16 August 2007

The Appellant was originally 1 of 2 defendants who appeared before the Principal Magistrate in Shatin Court. The Appellant was charged with 6 counts of making a false representation to an Immigration Officer under Part II of the Immigration Ordinance, Cap. 115 and a joint charge of conspiracy to defraud which is the 7^th charge.

The other defendant in the case is the person with whom she entered into a bogus marriage. The Appellant pleaded guilty and after mitigation she was sentenced to a total term of 21 months imprisonment. She appeals against that sentence.

First of all, I do not agree that is not a serious offence. It is extremely serious because, not only had the Appellant come to Hong Kong previously on the strength of a bogus marriage, she had been in and out of Hong Kong for a total of 6 times. Whether she intended to settle in Hong Kong eventually is not the point. The point is that she would be able to eventually have that option. The bogus marriage was a fraud perpetrated on the government of Hong Kong. It is extremely serious and as the learned Magistrate had noted its prevalence in Hong Kong. The courts have tried to deter this kind of offence with strict sentences so as to deter others from acting in this way.

These cases are hard to detect and the offender should be punished accordingly. I do not consider the sentence to be manifestly excessive or indeed excessive at all. The learned Magistrate had imposed correct sentences and so I consider that the sentences are not wrong in principle nor manifestly excessive and so the appeal is dismissed.

HKSAR v. ALLIANCE ENGINEERING CO. LTD. HCMA1154/2006

S’s words:-
No case authorities have been referred to in this judgment, not surprising.
What’s surprising is that the trial took for 4 days.
Also, the challenge against the Magistrate for raising questions with bias at trial has been considered, but failed to convince the Court again.
I’m not trying to say the Judge is wrong (of which I am of the view a correct decision has been reached).
On the contrary, I have heard that some Magistrates are considered whether to ask legal representatives to bear the costs if a trial runs too lengthy without purpose. I am not yet sure how often that happens. But, would it be extended to appeal cases in the future? No one knows ...

--- quote from judgment ---

Date of Judgment : 6 July 2007

This is an appeal against a conviction after trial on an information that alleged that the Appellant limited company was the contractor responsible for a construction site at a shop on the 1st Floor of Hutchison House, in Harcourt Road, in Central, saying that they failed to take all reasonable steps to ensure that a workman who was not wearing a suitable safety helmet did not remain on the site, contrary to Regulations 48(1)(b), 68(1)(a) and 68(2)(b) of the Construction Site Safety Regulations made under the Factories and Industrial Undertakings Ordinance, Cap.59. The issue was thus, really, a very simple one: had all reasonable steps been taken to ensure that a workman did not remain on the site without wearing a suitable safety helmet.

The trial lasted some four days. I note that with dismay.

The final matter that was argued in support of this appeal against conviction is set out at ground 2 of the perfected grounds of appeal and it reads as follows: “The learned Magistrate wrongly entered the arena of trial and created an impression of bias by asking an inordinate number of questions, by suggesting cases which had never been part of the prosecution cases and by advancing arguments which had never been relied upon by the prosecution both in the trial and in the cost application.”

That is a serious allegation to make against a Magistrate, especially a Magistrate who enjoys the reputation this one did and who has long sat on the Bench. I want to say straightaway that there is a full transcript, we have been through it, and there is absolutely nothing in the allegation that her conduct created an impression of bias. She did ask questions and it is as well she did because, in fact, the questions she asked were some of the sensible ones that went to the material that helped both sides in the case. What happened was, at the end of a witness’s evidence, she very politely would say, “Do you mind if I clarify some matters?” and then she asked, in a perfectly neutral way, a series of questions of the witnesses designed to elicit information that she had judged was important that she should know in order to decide the case fairly.

This is the second case I have done this week where an identical allegation has been made against a Magistrate because they asked questions. In my judgment, members of the profession, taking these points, need to think very carefully about what they are doing. It is not our law, especially in these modern days of case management, that the Bench cannot ask questions. Obviously, it cannot involve itself in the trial in the way that demonstrates bias but it certainly can ask factual questions of which it wants to know the answer.

Let me turn to the question of costs. This case took four days. One of the days resulted from having to recall a witness or the like, which was not the fault of the Appellant, so I will take it as a three-day hearing. The Magistrate prompted the prosecution below to apply for some costs. I am not surprised. I would have done exactly the same thing.

LO SIU NING v. CHAN KAI HING & LING KA KUI HCPI 301/2004

S’s words:-
I posted this case in my blog due to one major reason, that is, there are lots of useful case authorities being quoted, in particular, for the issue of PSLA that involves not only orthopaedic but also psychiatric evidence being considered.
Another interesting is that, the claim of the husband of the Plaintiff has been accepted by the Court. I am of the view that his claim should not an exceptional one of which it was not unreasonable for him to resign his work in order to take care of the Plaintiff for avoiding her suicide mind.
The judgment itself has not explained how the Court would agree that the Plaintiff could not earn more than $6,000.00 a month. Is it possible that the Court is now more willing to adopt a reasonable figure to ascertain the loss of future earnings?

--- quote from judgment ---

Date of Judgment : 31 August 2007

Interlocutory judgment on liability was obtained on 20 May 2004 with damages to be assessed.

PSLA
Mr. Lam had referred me to the following authorities and submitted that an award of HK$600,000 is appropriate.

Post-traumatic Stress Disorder and Depression
(a) Yan Kwok Yue v Dong Shu Kei Beau (High Court Personal Injuries Action No. 923 of 2000, Deputy High Court Judge Longley, 22nd January 2002, [2002] HKLJ 213) – an award of HK$500,000;
(b) Tsui Ho and Others v The Incorporated Owners of Albert House and Others (High Court Personal Injuries Action No. 828 of 1997, The Hon. Suffiad J., 17th September 2001, [2001] HKLJ 534) – an award of HK$525,000;
(c) Ng Pak Mui and Others v The Incorporated Owners of Albert House and Others (High Court Personal Injuries Action No. 828 of 1997, The Hon. Suffiad J., 17th September 2001, [2001] HKLJ 532) – an award of HK$430,000;
(d) Joan Carol Boivin v Wong King Yin and Another (High Court Personal Injuries Case No. 195 of 2000, The Hon. Suffiad J., 14th February 2001, [2001] HKLJ 171) – an award of HK$475,000;
(e) Yu Heung Yuk v Ho Man and Others (High Court Personal Injuries Action No. 57 of 1998, The Hon. Longley Deputy J., 12th August 1999, [1999] HKLRD 386) – an award of HK$440,000;

Orthopaedic Injury
(f) Yu Pun Yuen v Ng Kwok Man trading as East Mountain Engineering Company (Bankrupt) and Others (High Court Personal Injuries Action No. 293 of 2002, The Hon. Suffiad J., 9th May 2003, [2003] HKLJ 494) – an award of HK$450,000;
(g) Li Kwok Lo v Café de Coral Holdings Limited (High Court Action No. 804 of 2001, The Hon. Day Deputy J., 5th November 2002, [2002] HKLJ 723) – an award of HK$360,000; and
(h) Chow Wai Ming v Chan Yuk Charm (High Court Personal Injuries Action No. 1111 of 1996, The Hon. Woolley Deputy J., 13th October 1999, [1999] HKLJ 492) – an award of HK$300,000.

Mr. Lin, Counsel for the Defendant, referred the Court to the following authorities:

(i) Chan Sui Youn v Ng Kam Man (HCPI 533/1999, Recorder Ronny Wong, SC, 28 July 2000);
(ii) Chiu Wing Sze Karby v Chan Ying Wai (HCPI 616/1999, Deputy Judge Muttrie, 2 April 2001); and
(iii) Yung Wun v Kum Shing (K.F.) Construction Company Ltd (HCPI 679/2004, Deputy Judge Muttrie, 27 June 2007).

Mr. Lin submitted that the award under this head should not exceed $150,000.

It should be noted that, from orthopaedic view, the Plaintiff had made a good recovery from her physical injury though there is residual pain for the soft tissue injuries of the back and lower limbs.

While Dr. Wong and Dr. Chung were of the view that the Plaintiff suffered from post-traumatic stress disorder, they differed about the seriousness of depression that the Plaintiff was suffering.

I have considered the authorities cited by counsel and the disabilities suffered by the Plaintiff. In all the circumstances of this case, the reasonable and fair award under this head is $400,000.

Post-trial loss of earnings
The Plaintiff was 40 years old at the time of the accident and is now almost 45 years old.

Mr. Lam submitted that the court should adopt a multiplier of 10 and refer the court to the following authorities:

(a) Kwan Shek Sang v Chan Kam Wah trading as Wing Wah Air-Conditioning Engineering (a firm) (HCPI 872/2000, Suffiad J, 9 June 2003)
(b) Ho Shu Yau v Lo Siu Ling (formerly trading as Chi Wo Civil Engineering Company) and another (HCPI 1336/2000, Master M. Yuen, 31 January 2002)
(c) Luk Chi Yin v Wong Fung Shing (HCPI 496/1997, Deputy Judge Jackson, 6 November 1998)
(d) Sung Fuk Wah v Lam Wai Leuk (HCA 3676/1994, Master O’Donnell, 13 March 1995)

I am of the view that a multiplier of 9 is appropriate in all the circumstances of this case.

I accept Mr. Lam’s submission that the Plaintiff could earn at the most $6,000/month by reason of her disability and the conditions of the current labour market.

Loss of Earning Capacity

As Browne LJ said in Moliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, 142 A-C

“The consideration of this head of damages should be made in two stages. (1) Is there a “substantial” or “real” risk that a Plaintiff will lose his present job at some time before the estimated end of his working life? (2) If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the Plaintiff will suffer if that risk materialize, having regard to the degree of the risk, the time when it may materialize, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the Plaintiff’s chances of getting a job at all, or an equally well paid job.”

It is clear that the Plaintiff is handicapped to certain extent by reasons of her residual disabilities and mental problems. I make a global award of $50,000 under this head.

Loss of earnings of the Plaintiff’s husband
Mr. Ma, who was a delivery worker earning $9,000/month, quitted his work on 18 August 2004 in order to take care of the Plaintiff and to prevent her from killing herself. Mr. Ma returned to work in October 2006.

The Plaintiff only claimed such loss for 18 months totaling $162,000 ($9,000 x 18).

I accept the evidence of Mr. Ma and find that it is reasonable for him to adopt the course as he did in order to take care of the Plaintiff.

CHANG CHIN TSAI v. SHUM KIN WONG & HONG KONG & CHINA TRANSPORTATION CONSTRUCTION LIMITED HCPI 1048/2006

S’s words:-
A simple traffic accident case. The ground of convenience is again pleaded by the Defendants as their Defence. Further, no evidence has been suggested by the Defendants for explaining the relationship of the 1st and 2nd Defendants. If I am right, there is something called “Sanderson costs order”. However, it is too early for one to suggest whether the same is applicable.

However, it is obvious that the Plaintiff should be entitled for some compensation. In no doubt, if he could find a suitable lawyer to represent him, he could present much a better picture of his case to the Court.

Why he is now unrepresented? I don’t want to speculate. But, with his previous calculation of his claim over HK$20,000,000.00, I would also refuse to act for him.

--- quote from judgment ---

判決書日期 ： 2007年8月 31日

原告向兩被告追討人身受傷賠償 $29,251,000，扣除被告承認要負擔的10%共分疏忽責任，申索額淨值為 $26,325,900。

關家靜聆案官在2007年4月25日將這案轉介至區域法院，關聆案官認為原告若勝訴的話，法庭判給他的賠償也不會超過 100萬元，故作出此安排。原告現就這命令提出上訴。

第一被告因這意外被控不小心駕駛。他在2004年7月27日在荃灣裁判處承認控罪。

第一和第二被告經代表律師存檔了抗辯書，否認原告的指控，他倆在抗辯書更說意外是由原告的不小心造成，他倆也否認了互相的僱傭或代理關係，但沒有說明當時第二被告是否擁有該小巴或第一被告當時為何會駕駛該小巴。他們更指第一被告在荃灣裁判處承認不小心駕駛，只是為了節省時間和金錢而無奈地承認了控罪，但他們說第一被告的定罪並不等於原告無須負上疏忽的責任。

兩被告反對這上訴，代表他們的陳律師說關聆案官是有權把這案轉介到區域法院。陳律師更引用 Hang Seng Credit Card Ltd v Tsang Nga Lee, HCA 13228/1999 和Wong Miu Kwan v FPD Savills Property Management Ltd, HCPI 1061/2003作參考。

有關本院轉介案件到區域法院的原則，陳律師引用了石輝法官在Wong Miu Kwan案的第21段判詞，石輝法官說當聆案官要決定是否把本院的案件轉介至區域法院時，除了要考慮原告承認已收到的僱員補償和原告承認要負的共分疏忽責任外，還要考慮下列3點：

“ (a) In the absence of abuse, a plaintiff should be entitled to frame his case in the manner that he wishes.
(b) At an interlocutory stage, it would not be proper for the court or a master to view the plaintiff’s claim in the same way as it would be viewed at trial by weighing the different evidence or by believing or disbelieving some or all of the evidence. That exercise can only be carried out when all the evidence, cross-examination and submission has been heard, particularly where there are factual and or other disputes between the parties, as for instance disputed expert opinion.
(c) Accordingly, the plaintiff’s case on quantum as framed by him ought to be viewed at its highest when determining the proper jurisdiction where the case should be brought.”
「 (a) 原告只要不濫用司法程序，是有權選擇以甚麼方式擬定他的案情。
(b) 在非正審階段，法庭或聆案官不應像正審般去衡量不同的證據或選取某些或全部證據，以審視原告的申索，這步驟應在聆聽了所有證據、盤問和陳詞後才進行，特別是與案雙方在事實或其他方面有爭議，例如有不同的專家意見。
(c) 在決定案件的合適司法管轄權時，應以原告擬定的申索最高額為準。」（譯文）

上述兩個案件的原告所受的傷痛都比本案原告嚴重，所以本案原告應得的痛苦和失去生活情趣的賠償應是低於他們的數額，陳律師說原告在這項賠償應得的數額不會超過 $300,000。本席認為這說法合理。

本席認為石輝法官在Wong Miu Kwan案所指的濫用司法程序，必定包括原告人憑空作出的大額和沒有基礎的索償行為，本案原告要求的$29,251,000賠償，正是這種行為，所以關聆案官不理會這些申索而把這案轉介到區域法院是對的。

基於上述分析和理由，本席認為這上訴是沒有理據，所以本席現撤銷這上訴，本席並作出臨時訟費令，要原告就這上訴支付訟費予兩被告，若與案各方在14天內不就這臨時命令提出修定申請，這命令將在14天後自動作實。