栗子謬論 - Solitaire's Words

2012

2012-01-02T10:59:00.001+08:00

新一年的來臨，筆者還未想到新的大計。

2012究竟又會是平凡的一年還是精彩滿溢？如果可以，平凡總是最穩妥的。但人生如戲，就是不會預期平平無奇。

不論如何，筆者向大家補祝一句遲來的：新年快樂。

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補回相片一張

2012-01-02T00:06:00.001+08:00

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參加除夕晚會的一點點滴

2012-01-01T23:29:00.001+08:00

除夕夜筆者不得不出席的某區的除夕晚會，那是一個盤菜宴。

筆者有幸上台出席那簡單的典禮，所以有關的相片拍不了。

晚會有歌手的表演少不了，而他們的歌聲好壞筆者並不太留意，反而是魔術表現時可以親眼看到魔法洪金寶的現場表演。他的表演不可以說精彩，因為他只是預備了一些比較他拿手用來表演的行課，而其中一部份更是向錯了對象，就是不明白很多師奶不明白他的表演重點在何處(在結尾)，致使某師奶在筆者旁邊不斷在說他搵笨。

其實他的演出，雖不可以說精彩，但單是他的癲佬衫逃脫，就是不可不看。筆者當時也是只顧觀看而忘了拍照呢！

筆者最後也沒有等到整個晚會完結便離開回家陪伴家人。

一年一度的活動，參與就是參與了。

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2011除夕夜 ~ 隨筆

2011-12-31T19:09:00.001+08:00

近數年的除夕夜，總是避不了就是要出席畀面節目一個：盤菜宴。或許筆者就是不愛交際應酬社交生活，致使業務數載仍是平平無奇並未有驚喜。

其實今年除夕是公眾假期，致使出席這些與工作有關的活動動力更細，特別是很難提起勁為了出席而去穿西裝。人靠衣裝是定律但出席證婚監禮始終與出盤菜宴不同嘛！

盤菜宴會有甚麼特別？就是數十圍某屋村的街坊一同聚聚，而筆者是攪手某區議員的友好法律顧問，因而被邀出席數年。

每年當然也有一些餘興節目包括歌手(不是歌星)唱唱歌，也有抽獎環節。筆者通常都可能要幫手抽抽獎(因為有份贊助獎品)。

很多生意人就是喜歡這些曝光機會，但筆者就是不喜歡。或者筆者根本就不應做公司的老板而應安份守紀的做個打公仔。

不適合做老板的說法，其實不單筆者自己說過多次，跟隨筆者多年的秘書小姐也是如此說，但路既然開始行了，就不能只是想回從前。

道理筆者是明白，但就是做的時候總是問題多多麻煩多多。

或許就是希望在自己說話多多的同時，也可借這時間思想思想，如果可以，更加上反醒的原素。

最後，筆者在此祝大家2012新年快樂身體健康！

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隨筆

2011-12-31T18:00:00.001+08:00

既然栗子謬論沒有更新一點時間，那不如改改形式，而將網誌用來說說談談其他事宜。那麼另一邊也沒有更新的瘋癲隨筆應如何處理？那就還要給我想想了。

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測試

2011-12-31T17:47:00.001+08:00

測試

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Judicial Appointments on 24/09/2009

2009-10-01T20:09:00.002+08:00

Extract Only

"The Judiciary today (September 24) announced 25 judicial appointments covering the High Court, the District Court and the Magistrates' Courts.

The appointments include one Justice of Appeal of the Court of Appeal of the High Court, six Judges of the Court of First Instance of the High Court; one Principal Family Court Judge; eleven District Judges; three Principal Magistrates; and three Magistrates. All appointments are made by the Chief Executive on the recommendation of the Judicial Officers Recommendation Commission. They will take effect from September 28, 2009, except that of His Honour Judge AU Hing-cheung, which will be effective from December 1, 2009."

The abovementioned extract is quoted from the Press Release
http://www.info.gov.hk/gia/general/200909/24/P200909240169.htm

S's words:-

There are some appointments (which I have not quote) that gives us difficulties to understand. However, that is the reality.

Early Retirement of the Honourable Chief Justice

2009-09-13T00:40:00.001+08:00

The Honourable Chief Justice Mr Andrew Kwok-nang Li has decided to take early retirement. He has written to the Chief Executive to give notice of early retirement, ceasing service on August 31, 2010 and commencing pre-retirement leave on September 1, 2010.

"I believe that my early retirement is in the best interests of the Judiciary. My early retirement will be conducive to orderly succession planning in the Judiciary in the coming years. Further, by August 31, 2010, I would have completed 13 years service as Chief Justice and I consider it is appropriate for there to be a change in the leadership of the Judiciary after such a period. Taking early retirement is also consistent with my personal wishes. I would have worked for over 37 years by August 2010," the Chief Justice stated.

quoted from http://www.info.gov.hk/gia/general/200909/02/P200909020180.htm (the Press Releases of the Government of HKSAR)

Racehorse Trainer was acquitted

2009-09-03T00:28:00.001+08:00

Racehorse trainer Mr. Danny Shum Chap-shing was acquitted on 1st September 2009 from a charge of indecently assaulting a married woman.

The Magistrate was Mr. Pang Chung Ping. I was told that the Defence Counsel was Senior Counsel Mr. Lawrence Lok. However, I have not verified the same.

The Magistrate relied on the CCTV records showing that the victim did not attempt yelling for help in her car. Further, there was no immediate report to the police or seek for assistance from others after the alleged incident.

Principal Magistrate Mr. Timothy Simon Jenkins

2009-09-03T00:13:00.000+08:00

Principal Magistrate of Shatin Magistracy Mr. Timothy Simon Jenkis passed away on 1st September 2009 at the age of 52 years old.

He was said to have been suffering from cancer and had recently divorced.

He fell to his death from another magistrate of Eastern Magistracy Mr. Henry Mierczak's premises in Victoria Garden.

After police investigation, it is believed to be a suicide case.

Jenkins was from United Kingdom and he was admitted as a solicitor in the United Kingdom in 1983 and then in Hong Kong in 1984. He was appointed as a magistrate in 1990. From 2001, he was a principal magistrate.

He was the Principal Magistrate of Shatin Magistracy before his passing away.

NG CHO SHING (the Administrator of the estate of WU HEUNG LIN, the deceased) v. CHAN YUNG CHI &others DCPI1323/2006

2008-11-09T12:14:00.002+08:00

S’s words:

In the past, I did have an opportunity to take over a PI case that was previously handled as a mess . At the time when I have got the opportunity to reach this judgment, not even read it completely, I felt very surprised of the progress of the claim and those issues having been commented by the learned PI Judge.

However, as the judgment contains a very lengthy part III Progress of the claim, I have not quoted those paragraphs here but would intend to leave all those interested readers to find the original judgment from the internet or otherwise. The Practice Direction has been mentioned to express the concern of the Honourable Court for the compliance thereof.

It is not impossible that an accident occurred 4 years ago and trial not yet commenced. But when we get a closer look, the action was commenced in 2006. The Writ was not served immediately and even in certain time the Court was asked to give indulgence to the Plaintiff’s solicitors to extend the validity of the Writ to be served.

We may say one of the main reason behind is that two of the defendants were acting in person all the time and the 3rd defendant could not be located until quite a late stage.
For such, the learned PI Judge correctly pointed out that the failure on the part of the Plaintiff’s solicitors to comply with their own undertaking to the Court for Chinese court documents to be made.

The non-compliance would in no doubt give the learned PI Judge the sufficient justification to set aside the default judgment (due to the non-compliance of an Unless Order on the part of the 1st and 2nd Defendants), but more important, the Unless Order Summons failed to strike out the handmade Defence of the 1st and 2nd Defendants.

My view is that, with the comments made by the learned PI Judge, the Plaintiff’s solicitors should not wait until the 1st and 2nd Defendants to make their application to set aside the default judgment by themselves. Certainly, one again may say that the Plaintiff’s solicitors chose to withhold making such application at that moment as there was a legal aid stay of the proceedings and they had in mind to do so after the expiry of legal aid stay. God knows.

But why the Honourable Court was not informed of the Plaintiff’s legal aid application in the previous hearings. That gives the learned PI Judge further opportunity to explain when it would be appropriate to uplift the legal aid stay of a proceedings.

Now, the default judgment against the 1st and 2nd Defendants were set aside. We may require to wait further to see the final outcome of the action.

However, in this case, as I have mentioned earlier before, at least the following areas:-
1. Not to delay the service of the Writ;
2. Service to a defendant of his whereabouts unknown;
3. Renew the validity of a Writ;
4. Strict compliance to the undertakings given to the Court;
5. Unless Order;
6. Setting Aside Regular/Irregular Judgment; and
7. Uplifting legal aid stay

--- quote from judgment ---

Date of Handing Down Reasons for Decision: 3rd November, 2008

The Plaintiff is the son and administrator of Madam Wu Heung Lin (“Deceased”) who died on 18th August 2004. However, this is not a fatal accident but a personal injuries case. At the time of the alleged accident referred to below and shortly thereafter at the time of her death, she was about 86 years old.

All along the Plaintiff was represented by the same firm of solicitors, and the 1st, 2nd and 3rd Defendants acted in person.

III. Progress of the claim

IV. Plaintiff’s summons to enter final judgment against the 1st 2nd and 3rd Defendants

On 29th September 2008, notwithstanding the Court Undertaking, the Plaintiff issued a summons in the English language (“Final Judgment Summons”) returnable at the same time as the PTR for the following reliefs with margin note “O.32, r.7 and O.42, r.2 of the RDC, Cap.336H and inherent jurisdiction of the District Court” :

(a) “[unless] the 1st, 2nd and 3rd Defendants do serve an Answer to the Plaintiff’s Statement of Damages within 7 days, the 1st, 2nd and 3rd Defendants be precluded from filing and serving the said Answer in the proceedings and judgment on liability be entered for the Plaintiff against the 3rd Defendant and the damages to be assessed at HK$455,000 as per the Statement of Damages”; and
(b) “costs of and occasioned by this Summons be paid by the 1st, 2nd and 3rd Defendants to the Plaintiff in any event”.

However, notwithstanding the Final Judgment Summons, the Plaintiff’s solicitors filed the PTR Notice on 8th October 2008 confirming the estimated length of trial was 2-3 days and annexing a draft order to the effect that the assessment of damages against the 1st and 2nd Defendants and the trial against the 3rd Defendant be set down to be heard before a bilingual judge.

At the PTR, Mr Raymond Wong, solicitor for the Plaintiff, and the 1st, 2nd and 3rd Defendants appeared before me. I expressed grave concern over the breach of the Court Undertaking in preparing the Final Judgment Summons (which by its terms sought final judgment against the 1st, 2nd and 3rd Defendants whom the Plaintiff’s solicitors well knew were not legally presented and prepared their Defence and other documents in the Chinese language) in the English language. The 1st, 2nd and 3rd Defendants informed me they received but did not understand the Final Judgment Summons.

Mr Wong admitted it was due to oversight by the Plaintiff’s solicitors, and I particularly reminded that there must be strict compliance of an undertaking to the court, particularly by a solicitor who is an officer of the court, and application must be made to the court for release from such undertaking on good grounds shown if it cannot be complied with. Breach of an undertaking to the court by its officer is a serious matter, which the court views with consternation and regret, and which may be visited with sanctions where appropriate.

In the end, Mr Wong sought leave to withdraw the Final Judgment Summons, and undertook not to charge the Plaintiff in respect of costs of and occasioned by the Final Judgment Summons. I therefore granted leave to the Plaintiff to withdraw the Final Judgment Summons with costs in favour of the 1st, 2nd and 3rd Defendants in any event to be taxed if not agreed.

V. Judgment : regular or irregular?
At the PTR, the 1st and 2nd Defendants informed me they still maintained the defence on liability as pleaded in the Defence. They have not applied to set aside the Judgment as they claimed to have been unaware of the effect of the Judgment, which regrettably was drawn up in the English language in breach of the Court Undertaking.

But quite apart from such consideration, there is a more fundamental problem with the Unless Order and hence the Judgment. The Unless Order provides that unless the 1st and 2nd Defendants file/serve copies of documents and file/exchange witness statements as to fact by a specified deadline, judgment on liability would be entered against them for damages to be assessed. There is no mention in the Unless Order that the Defence filed respectively by the 1st and 2nd Defendants would be struck out before judgment was entered. So when the 1st and 2nd Defendants failed to file and serve/exchange copies of documents and witness statements by the specified deadline, the Plaintiff entered judgment against them but did not strike out their Defence.

However, since the respective Defence of the 1st and 2nd Defendants that raised disputes on both liability and quantum (ie denying the Accident and/or averring that the damages claimed were incorrect, excessive and/or unreasonable) still stands, their very existence ought to preclude judgment on liability from being entered without trial.

I see no difference between judgment on liability entered by default and judgment on liability entered pursuant to an “unless” order. In either case, there is no trial on the merits. Thus, judgment on liability entered pursuant to an “unless” order for default in compliance with interlocutory directions is also necessarily based on implied admission of the plaintiff’s pleaded claim. Such rationale logically requires the defence (which disputes the plaintiff’s claim) to be struck out before entering judgment on liability otherwise such judgment will be irregular and embarrassing. That is why Order 24 rule 16(1) of the RDC provides for striking out the defence and entering judgment on liability and in Kai Yip Air-Condition Engineering Comapny Chung J granted an “unless” order to the effect that unless the defendant complied with his directions the defence be struck out and the counterclaim be dismissed before entering judgment. So long as the Defence filed by the 1st and 2nd Defendants stand (and there is no question that they still stand), the Judgment appears to be irregular.

IX. Lifting legal aid stay
As an initial observation, this was the first application for legal aid by the Plaintiff. According to the relevant Memorandum, such application appears to have been made a few days after the PTR on 15th October 2008. But notwithstanding such application, the Plaintiff is still represented by his solicitors. Further, there was no intimation by the Plaintiff’s solicitors to the court in the CLR Notice of 29th August 2008 or the PTR Notice of 8th October 2008 or by Mr Wong who appeared at the PTR on 15th October 2008 that there was already an application or there would be an intended application for legal aid by the Plaintiff. The silence is loud as the Plaintiff’s solicitors by both notices sought to set the case down for trial/assessment of damages with an estimated length of 2-3 days. No explanation is forthcoming for the lateness or suddenness of the application in light of the above.

Ms Gigi Mak, solicitor for the Plaintiff who appeared at the hearing of the 1st and 2nd Defendants’ summonses before me, accepted that if there were an extant application for legal aid, the Plaintiff’s solicitors should have informed the court about such application at the last CLR on 8th September 2008 or at the PTR on 15th October 2008 (as was appropriate) since it would have impact on the timeline for fixing the date for trial/assessment for damages or other case management directions.

Consequently, the court was surprised by Ms Mak’s submissions that in fact the Plaintiff approached the DLA prior to the PTR on 15th October 2008, but the DLA only issued the Memorandum subsequently on 20th October 2008. However, she was unable to tell the court the date when the Plaintiff approached the DLA or produce the acknowledgment card of the processing unit of the Legal Aid Department confirming receipt of the application for legal aid. Time was given to Ms Mak to take instructions and/or produce the acknowledgment card, but she was unable to bring the matter further except to say the Plaintiff told her by telephone he applied to the DLA by letter and it was on 20th October 2008.

I therefore ordered that the legal aid automatic stay be lifted in relation to the hearing and determination of the 1st and 2nd Defendants’ summonses dated 22nd October 2008.

In the circumstances, I made an order at the hearing that the Unless Order (which is the genesis of the Judgment) and the Judgment be set aside.

LEUNG WAI KEUNG v. CHOI YEE MAY, THE PERSONAL REPRESENTATIVE OF CHOI KWOK PING, DECEASED trading as CHOICE OPTICAL CENTRE HCPI 917 / 2005

2008-11-05T01:24:00.000+08:00

S’s words:-

The Plaintiff failed his claim on the issue of quantum with the issue of liability not in dispute. The employees’ compensation award was about HK$1.5 million. Such a huge amount for ECC compensation so received by a plainitff do make me feel surprising. If we understand about the formula for ECC claims well, it is too difficult to get an ECC award for such a huge amount bearing in mind in particular the plaintiff was very much over 50 years old at the time of the accident. Thus, one should have expected that the ECC award (which I believe the same was settled without a trial) did have at least partially taken into account of the common law claim (which later became the subject matter of this action).

I have no idea how the ECC award was so resolved but one should be careful as to how to proceed with a common law claim incidental to the same accident. If I were given the opportunity to handle such a case, Counsel’s advice to give a more precise estimate of the quantum was highly preferred even at pre-action stage. Certainly, only the handling solicitor/counsel would be in the best position to make comments or better estimate to the quantum of a claim.

Last to say, it is quite unusual for a defendant choosing to defend an action without any offer or payment into Court with the issue of liability being entered. If such settlement proposals was/were given to the plaintiff, the plaintiff might be regarded as having a hopeless case even before the assessment hearing. In any event, the case was just decided, it is not known yet whether the plaintiff would choose to appeal against the decision.

--- quote from judgment ---

Date of Judgment : 31 October 2008

1. By the Writ of Summons filed on 30 September 2005, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages sustained in the course of employment arising out of negligence and breach of contract of employment and statutory duty of the Defendant, its servant or agents at Shop G33, Ground Floor, Empire Centre Shopping Arcade, Tsimshatsui East, Kowloon, Hong Kong (“the Shop”) on 19 May 2003.

2. Interlocutory judgment on liability was obtained on 10 May 2006 with damages to be assessed.

3. The Plaintiff was born on 30 September 1949. He was almost 54 at the time of the accident. He is 59 at the time of this assessment.

87. Credit must be given to the sum of $1.5 million received by the Plaintiff in the Employees Compensation Claim. The award is less than the compensation received by the Plaintiff under the Employee Compensation Claim.

(i) Costs for the hearing on 6 March 2008
89. This assessment was first listed before me on 6 March 2008. The Plaintiff, then represented by Mr. T. Wong of Counsel instructed by Messrs. Yip, Tse and Tang, made an application for adjournment on the ground that the Plaintiff had a hoarse voice and was unable to give audible evidence. Mr. Sakhrani opposed the application on the ground that the Plaintiff’s complaint was not a genuine one. There was no medical evidence before me to support or contradict the Plaintiff’s complaint. I granted the application and with costs reserved. I also observed that it was very likely that I would order costs against the Plaintiff. Yet, should the Plaintiff be in the position to produce medical evidence to support his complaint was a genuine one, the position would be different.

90. Up till now, there is no evidence to support the complaint of the Plaintiff on 6 March 2008. The Plaintiff sought the adjournment and should bear the costs. Although there is no need for me to make any order in the light of the costs order made hereinbelow, ...

HKSAR v. BAILEY LEONIZA R. HCMA774/2007

2008-10-01T01:11:00.002+08:00

S’s words:-

The Appellant suggested that there was on the evidence a doubt as to whether she was properly warned that she would be prosecuted for careless driving pursuant to section 68 of the Road Traffic Ordinance, Cap. 374. That explains why a proper warning should be given to a potential defendant.

The Appellant and the police officer did have communications but it was not sure whether the Appellant did understand what the police officer was saying to her. Further, there was no written warning of the possibility of a prosecution being given to the Appellant within 14 days from the day of the incident.

Therefore, the Appellant had been prejudiced because it was suggested that she did not make a note of what had happened and she was unable to find any witnesses to testify on her behalf.:-.

It may not be correct to say that in all careless driving cases the police officer should give a written warning of the possibility of a prosecution or otherwise no charge should be laid. However, such a technical defence can be easily avoided by not only verbally informing the driver of the possibility of a prosecution but at the same giving the driver a written warning of the same. Issuing written warning is in fact quite a routine work that should not give the prosecution too much difficulties to overcome. Further, it should be expected that in future police officers would find not only English speaking drivers but Puotonghua Chinese. We could not ensure that all police officers are fluent in English or Putonghua.

--- quote from judgment ---

Date of Judgment : 11 January 2008

10. This is an appeal against the conviction by a Magistrate of the Appellant on a charge of careless driving for which the Appellant was fined $1,600.

11. The sole ground of appeal advanced by Mr Boyton is that the Appellant should not have been convicted as there was on the evidence a doubt as to whether she was properly warned that she would be prosecuted for careless driving pursuant to section 68 of the Road Traffic Ordinance, Cap. 374 (“the Ordinance”)
This was a reference to the Appellant coming out of St. Joseph’s Church onto Garden Road onto the path of the other vehicle. Then the police officer said that she then said something in English which he was not quite sure about. He said that he then told her that he would later prosecute her for careless driving. He said he spoke in very simple English. He was asked what the response of the Appellant was and he said “She said something but I didn’t understand”.

12. Mr Boyton submits that there must be a doubt as regards whether the Appellant in fact understood the warning given to her by the police officer. He relies on the English case of Bentley v. Dickinson [1983] Crim.L.R. 403 where the Divisional Court in England held that the mischief to which section 179(2) of the Road Traffic Act 1972 which is in very similar terms to our section 68, of the Ordinance :
“… the mischief to which section 179(2) was directed was that motorists were entitled to have it brought to their attention at a relatively early stage that there was likely to be a prosecution so that they could recall and if necessary record the facts as they occurred at the time. …”

The court also held that :
“… If there was room for doubt, the court should lean towards protecting the subject rather than dealing with the mischief. …”

13. The Appellant had given evidence that at the scene she only learnt from the police officer that someone had accused her of driving carelessly. She said that she was never told that she might be prosecuted for careless driving and she only became aware of that when she received the summons in January 2007. She then posted a notice which she produced as Exhibit D4, at the entrance of St Joseph’s Church around 7 January 2007 requesting for assistance, namely for any witnesses who witnessed the incident to come forward. And she further said that if she had been informed by the police officer that she might be prosecuted for careless driving she would have returned to St Joseph’s Church that same day to locate any possible witnesses.

14. Given that there was a possibility that the Appellant did not understand what the police officer was saying to her, my view is that in this particular case the police should have sent her a written warning of the possibility of a prosecution, which the police could have done within 14 days from the day of the incident. That would have removed all doubts about whether the Appellant understood what the police officer had said to her at the scene.

15. Mr Boyton submits that perhaps despite her finding, the Magistrate might have had a lurking doubt about whether the Appellant in fact understood what was said to her by the police officer which is why she carried on to make the second finding that even if that were so the Appellant had not been prejudiced.

16. Prejudice comes into play because section 68(2) says that :
“Subsection (1) shall not apply if it appears to the court or magistrate that—
(a) the person prosecuted was not prejudiced in his defence by a failure to comply with that subsection; …”

17. The Magistrate did not give any reasons why she found that the Appellant had not been prejudiced in her defence. With respect, quite clearly, the Appellant had been prejudiced because :
(a) she apparently did not make a note of what had happened to help her to refresh her memory when the trial came along; and
(b) because of the delay, she was unable to find any witnesses to testify on her behalf.

18. I find, despite the very persuasive submission by Mr Liu, that there is a doubt about whether the Appellant understood what the police officer was saying to her at the scene, and I find that the Appellant had been prejudiced in her defence. Accordingly, I allow the appeal and I quash the conviction.

香港特別行政區 v. 藍琼芳 HCMA344/2008

2008-10-01T00:35:00.002+08:00

S’s words:-

In order to ensure whether a successful defendant in a criminal case before a magistrate, the issue of “amounts to something less than proof of guilt, even though blameworthy” should be considered.

Now, there are lots of successful defendants in criminal cases still do not choose to ask for costs of the proceedings. They do have their own reasons, but, more important is, whether their legal representatives do have properly advised of their rights to claim for costs beforehand.

The following Chinese authority highlighted some relevant case authorities that could assist us to understand the succesful defendants’ rights for costs.

--- quote from judgment ---

裁判日期：2008年7月22日

1. 上訴人律師的完備上訴理由，概括來說，指裁判官質疑第一控方證人的證供，才裁定他不能倚賴所有控方證人的證供，從而判上訴人無罪。在一般情況下，裁判官理應行使酌情權，判予訟費給獲釋的被告，除非有正面的原因存在令致他認為不應頒下訟費令。但裁判官錯誤地裁定上訴人的作為是招致嫌疑，而沒有行使酌情權去接納成功脫罪的上訴人作出的堂費或訟費申請，錯誤拒絕頒予訟費令。

2. 一般而言，裁判官就批准或拒絕頒下訟費令的命令，上訴法庭是不會干預的。主審裁判官就決定訟費的事宜上是有廣泛的酌情權，他在庭上直接聽取證供，處於最有優勢的位置來決定什麼因素有助他對訟費作出裁決。除非裁判官明顯地在考慮行使酌情權時越權，否則上訴庭並無干預的基礎或理由。

3. 終審法院常任法官烈顯倫在HKSAR v. Tong Cun Lin [2000] 1 HKLRD 113第 117 頁中指出：
「……如果被告人為某些控罪受審而後來獲判無罪，在正常情況下，他顯然應當獲得補償，由公帑支付他為抗辯該等控罪而招致的訟費。當法官行使酌情權，考慮是否即使有該一般原則，也應判被告人不得獲付全部或部份訟費時，很明顯，法官必須整體審視被告人的行為，但大前提是該等行為須與被告人的控罪有關，這不得局限於某段時間。不過，既然法官是在被告人獲判無罪的情況下行使酌情權——換言之，構成控罪的事實陳述已被陪審團裁定為不足以作為罪證——一般而言，與斟酌事項最有關的行為，必定是被告人在接受調查及審訊時的行為：諸如被告人最初對調查人員有何反應，面對指控時如何應對，其應對與其後的抗辯是否一致。最後還須考慮的是：對被告人不利的理據的強弱，以及被告人在何種情況下獲判無罪。……」

4. 一般來說，假若被告人的行為本身招致嫌疑，或被告人令控方相信控方案情較實際情況有力，或被告人之獲釋乃基於技術上的情況，則被告人不應獲得訟費。

5. 夏正民法官在HKSAR v. Li Siu Tong & Others, HCMA547/2000一案中，詳細分析了何謂行為本身招致嫌疑，他認同如果要拒絕頒下訟費令：
“… there must be such a proximity between the behaviour that is condemned and the alleged criminal conduct that it can reasonably be said not just that the Appellants behaved badly but that their conduct brought suspicion upon themselves in respect of their alleged criminal conduct.”

他又指出：
“… What amounts to ‘relevant’ conduct will differ according to the circumstances of each and every case. While the relevant conduct, generally speaking, will be the conduct of the Appellants during the police investigation and at trial, that does not, in my opinion, prevent the magistrate from considering the Appellants’ actions directly surrounding the alleged criminal conduct.”

6. 賴盤德暫委法官在HKSAR v. Lam Chiu Fong and Ors, HCMA1148/2007一案中，處理訟費上訴時考慮了Qamar Sheraz v. HKSAR, FACC5/2007，他說：
“Quamar Sheraz decides that if a judge on appeal is sure a man committed the crime in question, the man’s acquittal at first instance by a magistrate prevents that finding, being used as a basis to deprive him of his costs as, without a conviction, the presumption of innocence is engaged. Conduct indicating guilt there, that amounts to something less than proof of guilt, even though blameworthy, obviously falls to the same argument.
The conduct identified by the magistrate here as attracting suspicion was either the commission of the crime charged or something falling short of it.
It follows that this appeal must be allowed …”

7. 在本案中，裁判官以上訴人回應證人價格查詢一點，作為構成她自招嫌疑之事實基礎：
「雖然被告人在證供中指出她曾向PW1表示那小販攤檔並不是屬於她的，但無論如何，被告人都回應了PW1有關售價的查詢。本席認為，任何合理的人看到被告人的表現都會認為被告人就算不是東主，都會是售貨員或類似身份的人士。被告人回應來自可能是客人的價格查詢，毫無置疑就是以行為將自己和有關貨品扯上關係。如果被告人所說屬實，她大可以向客人表示東主不在，但會在很短時間就回來，這樣便可以解決了所有問題。再者，被告人又聲稱她是不會代阿梅做買賣的，那為何她不將實情向PW1相告？本席認為，只要被告人沒有回應價錢的查詢，可能就沒有她被拘捕這一回事。結論是被告人在本案確有自招嫌疑的行為，因此本席拒絕了辯方的訟費申請。」

8. 然而，此作為正正就是賴盤德暫委法官所指“amounts to something less than proof of guilt, even though blameworthy”的作為。

9. 本席認為裁判官在本案中錯誤行使酌情權，本席須介入干預，下令上訴得直，頒下上訴及審訊時的訟費令。

SECRETARY FOR JUSTICE v. MAN KWONG CHOI & HO YAN KIU CAAR 8 / 2007 and CAAR 9 / 2007

2008-09-28T21:27:00.001+08:00

S’s words:-

This judgment provides the guidelines for sentences in the offence of possession of child pornography. For images with no sexual activities, a defendant may still have the chance not to be imprisoned. However, as soon as sexual activities can be found from child pornography, immediate custodial sentence cannot be avoided.

So, if one wants to browse through websites with child pornography, he takes the risk of committing an offence of possession of child pornography if he downloads the images and keeps the same.

How about if the cache of his computer keeps the image?

--- quote from judgment ---

Date of Handing Down Judgment : 16 July 2008

The Prevention of Child Pornography Ordinance, Cap.579 (“the PCPO”) was enacted to deal with the problems associated with child pornography. We are in these applications for review concerned with the appropriate sentences for the offence of possession of child pornography. Section 3(3) of the PCPO states :

“3. Offences relating to child pornography
(3) Any person who has in his possession any child pornography (unless he is the only person pornographically depicted in the child pornography) commits an offence and is liable —

on conviction on indictment to a fine of $1,000,000 and to imprisonment for 5 years; or

on summary conviction to a fine of $500,000 and to imprisonment for 2 years.”

Guidelines
We have in mind the following guidelines appropriate, after trial, to a first time offender who is in possession of child pornography (involving real children) :

Level 1
The least serious level is Level 1 (“Images depicting erotic posing with no sexual activity”). There, the effect on the children in the depictions might be said to be much less harmful than in the case of Levels 2 to 4, which, it may be assumed, will be substantially more harmful. In the case of possession of Level 1 depictions, it may be that a community service order, probation or fine is appropriate where the number is small (say 20 or less). Where the numbers are large or the depictions are extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.

Level 2
In the case of Level 2 (“sexual activity between children, or solo masturbation by a child”), this is already much more serious than mere posing. Here, depending on the number of depictions, an immediate custodial sentence of up to 9 months will be appropriate. Even the possession of a few depictions at this level will generally attract a custodial sentence.

Level 3
For Level 3 cases (“non penetrative sexual activity between adults and children”), the degree of seriousness is increased even further. Again, depending on the numbers involved, sentences of between 6 and 12 months will be appropriate.

Level 4
We consider Level 4 cases (“penetrative sexual activity between children and adults” and “sadism or bestiality”) as meriting the most serious treatment. Here, at Level 4, the range of custodial sentences should generally be from 12 months (even for a few images) to 36 months.

The four levels of sentence set out in the previous paragraph provide starting points for sentence after trial. As in any other case, there may be mitigating or aggravating factors that will have to be taken into account.

The principal mitigating factor will be a timely plea of guilty but the usual principles of sentencing will otherwise apply.

Aggravating features would include the following :

A previous record involving a similar offence (or offences) against children.

The age of the children depicted. Where the depictions involve particularly young children, this would be an important consideration.

The purpose for which the accused possesses the depictions will also be relevant. Where it is proved that the accused intends to disseminate the images for commercial (or even non commercial) gain, or intends to publish, these will be significant aggravating factors.

As mentioned earlier, the number of images is relevant.

It is important to stress that we are, in the two cases now before us, solely concerned with offences of possession of child pornography. Higher maximum sentences are provided under section 3(1) and (2) of the PCPO where more than mere possession is involved.

Who can be LEGAL EXECUTIVES in future?

2008-09-28T19:26:00.003+08:00

The Law Society of Hong Kong has recently issued a set of benchmarks for legal executive courses that entitle their graduates to describe themselves as "Legal Executive" in law firms ("Benchmarks"). The Benchmarks will apply to courses commencing from the academic year 2008/09.

The following courses commencing from the academic year 2008/09 have met the new Benchmarks:-

Advanced Diploma in Legal Studies (Professional Stream) from the School of Professional and Continuing Education of the University of Hong Kong;
Higher Diploma in Legal and Administrative Studies from the Hong Kong Institute of Vocational Education (Tuen Mun); and
Professional Diploma in Legal Executive Studies from the School of Continuing and Professional Studies, the Chinese University of Hong Kong and the English Institute of Legal Executives.

There are further new admission requirements for such Legal Executives Courses.

The purpose of making this new Benchmarks is good. However, it is still far away from improving the qualities of those existing Legal Executives and those intended to be Legal Executives.

Besides, apart from the title "Legal Executive", the works to be assigned to Legal Executives or Litigation Clerks/Conveyancing Clerks are not very much different. To be frank to say, only a very small portion of Legal Executives would be entrusted to attend 3-minutes hearings as an advocate on behalf of their employers.

Chinese Judgments of Jurisprudential Value

2008-09-28T19:22:00.002+08:00

Contents from The Law Society of Hong Kong:-

"The Judiciary Administrator has advised the Judiciary has uploaded selected judgments from 1997 Chinese judgments of jurisprudential value with an English translation on to its website at:-

http://legalref.judiciary.gov.hk/lrs/common/ju/judgment.jsp."

The Judiciary finally decided to upload English translations of useful Chinese judgments to its website. My personal comment is: "Better than None".

Defaulting Maintenance Payers in Hong Kong

2008-08-03T00:27:00.001+08:00

Legal practitioners can now act for clients who are maintenance payee to apply for details of the current address of a defaulting maintenance payer from the Immigration Department, Housing Department and the Transport Department ("the Departments") by sending an approved pro forma letter to trace the whereabouts of the defaulting maintenance payers.

Further, maintenance payees could report the matter to the police which will start an investigation.

The former could assist legal practitioners to trace the whereabouts of the defaulting maintenance payers so that judgment summons can be issued against defaulting maintenance payers. However, it is not yet so certain whether it is so efficient to report the matter to the police.

New Section 13A of the Conveyancing and Property Ordinance, Cap.219

2008-08-03T00:08:00.005+08:00

In the past, there were tons of arguments by legal practitioners in relation to the whereabouts of the originals of some old title deeds and documents. In particular, the judgments of Yiu Ping Fong & Anor v. Lam Lai Hing Lana HCMP No.3616 of 1998, Guang Zhou Real Estate Development (Hong Kong) Co. Ltd & Anor v. Summit Elegance Limited HCA 1531 of 1998 and Loyal Hope Limited v. Leung Pui Ming and others HCA 136 of 2007 could not assist the endless arguments but purely put more transactions into difficulties.

Effective from 11th July 2008, the new Section 13A comes into operation and relying on the said section, “unless the contrary intention is expressed, a purchaser of land shall be entitled to require the vendor to deliver to him, for the purpose of giving title to that land, the original of only (i) the Government lease that relates exclusively to the land; and (ii) any document that relates exclusively to the land and is required to be produced by the vendor as proof of title to that land under Section 13(1)(a) and (c)”

However, legal practitioners should amend their standard formats of formal agreement for sale and purchase at the same time.

New Amendments to Employees' Compensation Ordinance (2)

2008-08-03T00:00:00.001+08:00

The Employees’ Compensation Ordinance stipulates that an employer may require an employee to undergo medical examinations. In the past, it is too difficult for an employee to obtain a copy of the report. However, the new amendments now assist an employee to request the employer to send the employee free of charge a copy of the report and the employer is required to comply with such request before the later of the following:-
(a) the expiry of 21 days after the employer receives the request; or
(b) the expiry of 14 days after the report is received by the employer.

Unfortunately, the abovementioned only applies an employee's injuries caused by accidents arising out of and in the course of employment on or after 1 September 2008.

Again, the booklet in http://www.labour.gov.hk/eng/public/ecd/SummaryNewAmendmentsECO.pdf may assist our understanding to the same.

New Amendments to Employees' Compensation Ordinance

2008-08-02T23:13:00.001+08:00

The amendments to the Employees' Compensation Ordinance ("ECO") (Cap.282) made under the Certification for Employee Benefits (Chinese Medicine) (Miscellaneous Amendments) Ordinance 2006 will come into effect on 1 September 2008. These amendments recognize the medical treatment, examination and certification given by registered Chinese medicine practitioners for the purpose of employees' entitlement to benefits under the ECO.

These amendments apply to claims for compensation or other rights, obligations or liabilities in respect of an employee's injuries (including occupational diseases as prescribed by the ECO) caused by accidents arising out of and in the course of employment on or after 1 September 2008.

The booklet in http://www.labour.gov.hk/eng/public/ecd/SummaryNewAmendmentsECO.pdf may assist our understanding to the same.

RE LI SAU YING HCMP002384/2007

2007-12-13T01:28:00.000+08:00

S’s words:-

First of all, the Debtor suggested that the staff of the Unrepresented Litigants Resource Centre told her the wrong number of days to commence an appeal procedure against bankruptcy order. I believe that in our profession there are lot of people who do not know the differnce of the usual 28 days from the 21 days as prescribed by Section 98(2) of the Bankruptcy Ordinance. Thus, it is also not surprised that the Centre might wrongly inform the Debtor the same.

Fortunately, it should be expected that such a difference will be resolved after the passing of the Bankruptcy (Amendment ) Ordinance in future. In any event, it is still the existing bankruptcy law that an appeal should be made within 21 days and further, if extension of time is required, an application before the bankruptcy judge is required (but not to make the application to the Court of Appeal).

It thus explains that up to this moment, bankruptcy law is still not an easy subject at all with something different from the usual civil rules.

--- quote from judgment ---

Date of reasons for decision: 11 December 2007

On 31 October 2007, Deputy Judge L. Chan made a bankruptcy order against Li Sau Ying.

Appeals from orders given in bankruptcy proceedings are governed by s.98(2) of the Bankruptcy Ordinance Cap. 6. This section provides that every order of the court shall be subject to appeal to the Court of Appeal, and the appeal should be commenced within 21 days from the time when the decision appealed against is pronounced or made. In the context of this case, the appeal should have been commenced within 21 days of 31 October 2007, i.e. by 21 November 2007.

Miss Li says on affirmation that she had been informed by the staff of the Unrepresented Litigants Resource Centre that the appeal period was 28 days, and therefore after preparing her Notice of Appeal on 22 November 2007, she sought to file it on 27 November 2007. Of course by then the appeal was out of time.

I pause to note that this was not the first case where litigants (even those with legal representation) had missed the deadline for appealing an order in bankruptcy proceedings because of the shorter time limit in s.98(2), as in ordinary civil proceedings the time limit is 28 days from the sealing of the order (see e.g. re Li Tat-kong [2003] 2 HKC 72, Prudential Assurance Co. Ltd v Edward Ho [2003] 3 HKLRD L4, re Lau Kwok Fai, Bernard HCMP2224/2005). Happily this anomaly has now been addressed by way of the Bankruptcy (Amendment) Ordinance, which however does not apply to the present case.

Coming back to this case, on 27 November 2007 Miss Li had to make an application to extend time for appealing. This was done by way of a summons which was filed in Miscellaneous Proceedings. The summons was fixed to be heard by a single judge of the Court of Appeal.

The Petitioner opposed Miss Li’s application. In Mr Wong’s written submissions on behalf of the Petitioner he argued that the application for extension of time to appeal was governed by r.204 of the Bankruptcy Rules which provides:

“ The court may, under special circumstances and for good cause shown, extend or abridge the time appointed by these rules or fixed by any order of the court for doing any act or taking any proceeding”.

In written submissions, the Official Receiver submitted that Bankruptcy Rule 204 did not apply to appeals because the time limit for appeals was fixed by s.98(2) of the Bankruptcy Ordinance, not by the Bankruptcy Rules. Mr Wong rightly conceded this at the hearing.

The Official Receiver pointed out in his written submissions that applications to appeal an order made in bankruptcy proceedings are governed by s.100(4) of the Bankruptcy Ordinance, which provides:

“ Where by this Ordinance or by general rules the time for doing any act or thing is limited, the court may extend the time either before or after the expiration thereof upon such terms, if any, as the court may think fit to impose”.

This however led to another problem – under s.2 of the Bankruptcy Ordinance,

“ ‘court’ means the Court of First Instance sitting in its bankruptcy jurisdiction”.

Mr Wong also referred to paras.59/4/12 and 59/4/14 of Hong Kong Civil Procedure 2008. However the Official Receiver argued (rightly in my view) that Order 1 rule 2(2) of the High Court Rules specifically provided that the High Court Rules did not have effect to bankruptcy provisions, and s.99 of the Bankruptcy Ordinance applied High Court Rules only where they were not inconsistent with the provisions of the Bankruptcy Ordinance. As s.100(4) clearly stipulated that it was for the Court of First Instance sitting in its bankruptcy jurisdiction to consider applications thereunder, that would override any High Court Rules permitting the Court of Appeal to deal with applications for extension of time in ordinary civil actions.

In the circumstances, on Miss Li giving an undertaking that she will within 7 days make an application to the Court of First Instance sitting in its bankruptcy jurisdiction to extend time for appealing, I made no order on her application in these proceedings.

TSE PARC KI a minor by her father and next friend, TSE WAH YUEN JOSEPH v. ATLANTIC TEAM LTD t/a LE BEAUMONT LANGUAGE CENTRE DCPI001981/2006

2007-12-13T00:54:00.000+08:00

S’s words:-
The Minor was injured when she was having a Spanish program. The liability on the part of the school is obvious. Without legal representatives’ assistance, the Defendant chose to defend the issue of liability that caused a referral to the police for an investigation of employing an unemployable.

I believe the Defendant is/was not insured (or properly insured) at the material time, or otherwise, the insurer would take over the conduct of the proceedings and the tragdey abovementioned would not occur.

For the issue of quantum, the amount of PSLA awarded in the sum of HK$40,000.00 is another good amount that in future we can adopt to rely on for minor injuries. Certainly, it is expected the father of the Minor (as a father) would not regard the injuries as minor.

Who is the father of the Minor? That is another matter I believe the Honourable Court has not taken into account.

--- quote from judgment ---

Date of Handing down Judgment : 11th December 2007

Parc-ki was 2 and 1/2 years old when she was enrolled in a 12-lesson Spanish program offered by the Defendant at its language centre in Admiralty.

How did the accident happen?
Parc-ki’s parents were not present when the accident happened. According to Parc-ki’s mother, she was told what had happened when she returned to the Defendant’s language centre after the accident. Tony and Emily (who were both staff at the Defendant’s language centre) told her that Parc-ki had wanted to use the toilet during the lesson and left the classroom. As Parc-ki was trying to put on her shoes at the doorway, Sonia slammed the classroom door. Parc-ki’s right middle finger was caught by the door and was crushed.

The Defendant put forward a very different version of events in its Amended Defence. The Defendant says that the Spanish program had already finished when the accident happened. Parc-ki had left the classroom and was no longer under the care of Sonia. As Parc-ki’s parents were late to receive Parc-ki, she had to put on the shoes herself. When she lifted up one leg to put on her shoe, she lost balance and stretched her hands backward towards the doorway. Shortly before that, Sonia had just given a gentle push to close the classroom door. Parc-ki’s right middle finger was therefore caught by the closing door and was crushed.

Two different versions of events have been put forward by the parties. I find the Defendant’s version unreliable for the above reasons. On the other hand, the Plaintiff’s version is not based on direct evidence but on hearsay evidence. Be that as it may, there is nothing for me to cast doubt on the testimony of Parc-ki’s mother as to what she was told. It is only reasonable for the Defendant’s staff to report to her when she attended the Defendant’s language centre after the accident. Tony and Emily were clearly on duty at the time. Indeed, Tony admits having spoken to Parc-ki’s mother after the accident although he now claims to have forgotten what was said to her. The Defendant has also put much emphasis on the impossibility of Sonia “slamming” the door. In my view, it matters not whether the door was slammed shut or closed gently. This is a figure of speech and a matter of perception. There is really no dispute that Parc-ki’s finger was indeed caught by the door that was closed by Sonia. What matters is whether Sonia had done what was required of her as Parc-ki’s teacher in the circumstances of this case to ensure the safety of Parc-ki. This will be discussed further below.

In the premises, I find the Plaintiff’s version of what happened more believable.

Whether the Defendant is liable for the personal injuries suffered by Parc-ki?
There is a positive duty on schoolteachers to protect their students’ well-being. The duty of a schoolteacher has been said to be to take such care of his pupils as a reasonably careful father would take of the children of the family. It is a schoolteacher’s duty to take all reasonable and proper steps, bearing in mind the known propensities of children, to prevent any of his pupils from suffering injury, whether from inanimate objects, from the actions of their fellow pupils, or from a combination of both. What things are likely to injure pupils is a question of degree, depending on the nature of the thing and the age of the pupils. A schoolteacher is also under a duty to exercise supervision over pupils whilst they are on the school premises. The amount of supervision required depends on the age of the pupils and what they are doing at the material time, but no teacher could reasonably be expected to keep a close watch on each child every minute of the day, unless there is some reason to be alerted or put on inquiry. Given the level of responsibility, the standard of care is high, although not expressed as any more than should be reasonably expected in the circumstances. See Charlesworth & Percy on Negligence, 11th edition (2006), §§8-179 to 8-193.

The Defendant operated the language centre and Sonia was assigned by the Defendant to run that program. In my view, the positive duty put on schoolteachers to protect their students’ well-being applies equally to Sonia. On the day in question, Sonia closed the door knowing full well that Parc-ki was still trying to put on her shoes at the doorway. Sonia was negligent in failing to ensure that Parc-ki had put on her shoes or was otherwise well clear of the doorway before closing the door. Whether the door was slammed shut or closed gently is beside the point. The Defendant as the provider of the Spanish program relied on Sonia to run the program in order to earn the course fees. In my view, the tortious act of Sonia was so closely connected with her employment with the Defendant that it would be fair and just to hold the Defendant vicariously liable.

In the premises, I find the Defendant liable for the personal injuries suffered by Parc-ki.

What is the amount of compensation payable to Plaintiff?
After the accident, Parc-ki was taken to the Accident and Emergency Department of Queen Mary Hospital. Physical examination by Dr. Lo Wing-kee showed avulsed nail and bleeding from the nail bed in the right middle finger. X-ray showed a chip fracture in the distal phalanx.

According to Parc-ki’s mother, it took 8 months for Parc-ki to get over from being conscious of the injury. Thankfully, there is nothing to suggest that Parc-ki has suffered any permanent disability.

The Plaintiff’s counsel fairly concedes the claim for “future loss of earnings / loss of opportunity” and the claim for “loss of earning capacity / handicap in the labour market”. In any event, I do not think such an award is justified given the fact that Parc-ki has not suffered any disability that would affect her future earning capacity.

As to the claim for damages for PSLA, the Plaintiff’s counsel (who did not settle the Revised Statement of Damages) relies on Singh Jagdeep v. VSC Engineering Products Company Limited, DCPI 391/2005 and Yu Pau Yau v. Co-Ray Design & Construction Limited, DCPI 864/2006 and now suggests a figure of $50,000 to $100,000.

In Jagdeep, the plaintiff’s left hand was hit by a broken disc from an electric disc cutter machine. He suffered abrasion over the left dorsal part of his hand. Fingers’ movement and sensation were otherwise normal and there was no fracture. Sick leave was granted for a total of 16 days. The learned judge found that the plaintiff had suffered a ½ cm abrasion with minimal pain and suffering and awarded $30,000 for PSLA in June 2005. I find Parc-ki’s injury slightly more serious than that suffered by the plaintiff in Jagdeep.

Taking everything into consideration, I consider that an award of $40,000 for PSLA is justified.

As the facts of this case reveal that the Defendant might have committed a criminal offence in employing Sonia who was not legally employable in Hong Kong at the time, the case is referred to the Department of Justice through the Registrar for investigation.

HCB 9850/2002, HCB 17353/2002 and HCB 20609/2002

2007-11-15T00:34:00.000+08:00

S’s words:-

The trustees in those three cases tried to ask the Court to vary the costs order. Without going into details of each case, I believe the Judgment of HCB 11719/2002 should be sufficient for me not to repeat any words further.

Is it a coincidence that different Judge(s)/Master(s) all rejected the trustees’ entitlement for costs in different cases?

Please re-consider your quasi-judicial obligation before making applications.

--- quote from judgment ---

Date of Decision (Handed Down): 13 November 2007

By their letter dated 29 October 2007, the trustees asked me to vary my order to the extent that they are not entitled to recover their costs of and occasioned in the hearing for directions before Master Kwang on 27 March 2007 only, which was the hearing for the interim order prolonging the bankruptcy of the bankrupt.

The trustees’ grounds 1 and 2 can be considered together. It is not necessary to go into detail of the trustees’ grounds in support of their application as they have withdrawn their application. This court had no opportunity of investigating into those grounds. The trustees chose not to withdraw their application after Judge Kwan’s judgment handed down on 9 January 2007. In fact, Judge Lam in Fred Lee v Liu Man Hoo HCB11719of 20002 unreported and Judge Barma in Fred Lee and Chow Wai Lan, Christine v Wong Hing Wah Michael HCB26018 of 2002 commented that the trustees should have raised the misconducts with the bankrupt after they had discovered such misconducts. They should not wait until the end of the bankruptcy order. They have failed to do so here.

The question remains: Were they discharging their quasi-judicial obligations? I repeat my reasons in paragraphs 9-11 of my Decision in Bankruptcy Proceedings No.9850 of 2002. I take the view that in exercising my discretion as to the trustees’ costs from the estate, I should take a global view of the matter, taking into consideration of all relevant factors. I hold that the trustees have not shown to me that they had taken reasonable investigation into the matter before they took out this application. This application has prolonged the bankrupt’s bankruptcy order unnecessarily. I do not consider that the trustees have discharged their quasi-judicial obligations.

For the reasons above, I confirm my order to disallow the trustees’ costs of their application from the estate. I also disallow their costs for this application from the estate.

BANK OF CHINA (HONG KONG) LIMITED v. CHOI LAI LAR HCMP 3925/2002

2007-11-14T01:49:00.000+08:00

S’s words:-

I was not a party or any legal representatives in the action. Mr. Ng for the Bank did quite a good job in the application hereinbelow mentioned. The legal principles regarding the rules of maintenance and champerty and also contingency fee agreement have been considered. The Bank was not required to pay for the costs when the Wife did have legal representatives due to the so-called contingency fee agreement between the Bank and her former solicitors.

However, if the Wife was not asked to act for herself shortly before the trial, I would have some hesitations as to whether the Bank could establish a prima facie case of any breach of the indemnity principle.

Thus, with very much reluctance, I have to agree with the learned Master for his comment that “I can appreciate the lenience of Mr. Sun, but such fee agreement is not allowed under our costs system.”

--- quote from judgment ---

Date of Decision : 7 November 2007

The paying party (“the Bank”) raised a preliminary issue in a taxation. It argued that the costs arrangement between the receiving party (“the Wife”) and her solicitor was:

(a) against the rule of maintenance and champerty,
(b) a contingency fee agreement, and/or
(c) in breach of the indemnity principle.

So, in summary, C&A would charge the Wife on time basis, subject to discretionary discount. Due to the financial position of the Wife, C&A agreed that she did not have to pay the interim bill right away. Further, it was to be reviewed later. No further bill was issued. The question would be further discussed after settlement or determination of the Wife’s case at trial.

Applying the above costs arrangement to the complaints made by Mr. Ng. I do not find it contrary to the rule of maintenance and champerty. However, it is contingent. Further, I am not satisfied that the indemnity principle has not been breached in the circumstances.

Maintenance and Champerty?

The law of maintenance and champerty has been recently and thoroughly considered by the Court of Final Appeal in Siegfried Adalbert Unruh v Hasn-Joerg Seeberger (unrep., FACV Nos. 9 and 10 of 2006, [2007] HKEC 268)). Four points were stated to highlight the current approach of this principle.

(a) An agreement to share the spoils of litigation encourages the perversion of justice. Gambling the outcome of the litigation endangers the integrity of judicial process. These traditional legal policies underlying maintenance and champerty continue to apply.
(b) However, one has to examine the totality of the facts to see if the ends of justice is or is not undermined.
(c) In so doing, modern public policies should be taken into account, including ensuring the poor to give fair access to justice.
(d) The law of maintenance and champerty should not be relied too readily to strike down arrangements attempting to achieve justice. Other public policies may be relied upon instead, like unconscionable contract and contingent fee agreement.

In my view, under the present costs arrangement, C&A was not funding the Wife’s litigation. Mr. Sun was not trying to share in the spoils of litigation to the exploitation of the vulnerable Wife. Indeed, he did all he possibly could in the circumstances for the Wife. Only when he could not taken up the personal risk of liability to pay counsel fees, he then quitted. There is no risk to the integrity of the court’s process. Quite to the contrary, Mr. Sun tried to help to Wife to obtain justice.

Contingent fee agreement?

Contingency fee agreement is not allowed under our system. Wallersteiner v Moir (No. 2) [1975] QB 372, 402 was referred to by the said case of Siegfried Adalbert Unruh at paragraph 104.

“ Under a contingency fee agreement the remuneration payable by the client to his lawyer in the event of his success must be higher than it would be if the lawyer were entitled to be remunerated, win or lose: the contingency fee must contain an element of compensation for the risk of having done the work for nothing. It would, it seems to me, be unfair to the opponent of a contingency fee litigant if he were at risk of being ordered to pay higher costs to his opponent in the event of the latter’s success in the action than would be the case if there were no contingency fee agreement. On the other hand, if the contingency fee litigant were to lose the action, his opponent’s right to recover costs against him should not in fairness be affected by the fact that the former party has a contingency fee agreement. Consequently under our system of what are sometimes called indemnity costs a contingency fee litigant would in the event of success have to bear a heavier burden of fees, irrecoverable from his opponent, than he would otherwise do, while remaining exposed to the risk of being ordered to pay his opponent’s taxed costs in the event of his failure. The arguments in favour of a contingency fee system are accordingly a good deal less cogent here than they are in the United States of America.”

I can appreciate the lenience of Mr. Sun, but such fee agreement is not allowed under our costs system.

Indemnity Principle?

Indemnity principle in the context of taxation requires that the receiving party cannot recover a sum in excess of his liability to his own solicitors. Then, what exactly is the liability of the Wife towards C&A? A definite answer is unavailable because it is “variable” depending on the trial result. Will the answer of “the amount of costs I recover from the other side will be the costs charged by me” help Mr. Sun? I do not think so because such arrangement has been held by Mr. Registrar Chan under Holiday Resorts (Management) Co. Ltd v Chan Yuk Yan & another, judgment dated 2 May 2001, as “so vague and uncertain” that the liability of the client towards his client was not known. I agree with such observation.

顧明 v. 南方大廈業主立案法團HCSA11/2007

2007-11-14T01:27:00.000+08:00

S’s words:-

We have so many cases relating to water leakage, whether regarding outer walls or ceilings.

We do not know how many cases were ruled with the same wrong concept of an adjudicator in Small Claims Tribunal, of which now The Honourable Mr. Justice Jam clarified that how a plaintiff could establish his claim against the Incorporated Owners for damages in outer walls.

In this particular case, the subject outer wall do form a part of the common area and if the water leakage related to the poor condition of the outer walls, even though without a re-trial, a different conclusion from another adjudicator in Small Claims Tribunal could be expected after the actual re-trial to be taken place.

Unfortunately, what in my mind again is, why should we recommend the owners to form an Incorporated Owners for their own buildings?

--- quote from judgment ---

宣判日期： 2007年8月28日

上訴人顧明先生是小額錢債審裁處案件中的申索人。他是南方大廈7 字樓A 座的業主，因大廈外牆滲水影響他的居所，所以對南方大廈業主立案法團提起訴訟。他訴稱外牆滲水使他家中的牆壁受到損毀，以致須花41,000 元來維修；此外，他又申索9,000 元以補償他精神上的損失。換言之，他合共申索 50,000 元，然而，他的申索被小額錢債審裁處的審裁官撤銷，申索人因而提出上訴。

本席認為，審裁官的判決在法律觀點上犯了錯誤。審裁官在判決理由書第14 段中指出，申索人在法律上有舉證責任，須向法庭提出有關證據，根據相對可能性的衡量的準則，證明被告人疏忽造成外牆滲水，導致他的樓宇單位內的房間的窗邊牆身滲水，因而蒙受損失。審裁官接着談到上述兩封信，指出信中只是說「可能和懷疑外牆滲水」。在本案中，雙方就外牆滲水的原因有爭議，被告人指滲水的問題是因為申索人加建了一只窗而導致，申索人則辯稱外牆本身損毀，從外面也可以看到，而食環署的信亦指出外牆的防水層可能損毀。

審裁官在判案理由書第18 段中又指出，即使外牆的防水層損毀，申索人在法律上仍須舉證證明防水層損毀的原因，被告人怎樣疏忽，以及防水層損毀為何與他或前業主曾更改鋁窗一事無關。最後，審裁官基於申索人的樓宇單位內只是出現天花板滲水的情況，以及申索人沒有提出相關的證據，裁定申索人未能根據相對可能性的衡量的準則，證明防水層損毀和外牆滲水是因被告人疏忽所致。他最後在第20 段中重申：「基於以上理由，本席裁定申索人未能履行他的責任，根據相對可能性的衡量的準則，證明外牆滲水的真正原因是由於被告人疏忽。」因此，審裁官撤銷顧先生的申索。

本席認為，根據香港法例，申索人毋須證明滲水的問題是因業主立案法團疏忽而導致。首先，南方大廈的公契是於1964 年簽署的，這份公契屬於較舊的一種，並沒直接提到大廈外牆誰屬的問題，只是說明每一個樓宇單位都由單位的業主全權擁有，以及業主有責任保持單位內的良好狀況。《建築物管理條例》(香港法例第 344 章)第 2 條清楚說明公用部分(common part)是甚麼：「A. 建築物的全部，但不包括在土地註冊處註冊的文書所指明或者指定專供某一業主使用、佔用或享用的部分；及B. 附表1指明的部份，但上述文書如此指明或指定的部分除外。」附表1 清楚指明外牆屬公用部分的一部分。

接着下來要處理的問題是：立案法團對公用部分須負那些責任？答案於第18 條已清楚說明：

「第18 條法團的職責及權力
(1) 法團須——
(a) 使公用部分和法團財產維持良好、合用的狀況，並保持清潔。」

故此根據法例，法團有責任使公用部分(包括外牆)維持良好合用的狀況，並保持清潔。因此，顧先生只需證明外牆滲水，而他亦已通知法團有關的情況，便已完成舉證責任，因為外牆滲水已證明法團沒有使該部分維持良好合用的狀況。但審裁官裁斷申索人須證明因法團疏忽而導致滲水的情況，已犯了法律上的錯誤。當然，顧先生在舉證時，只須證明外牆損毀而導致他的睡房出現滲水情況，因為這是他的申索所指明的部分。被告人的代表李先生提到一些其他事情，如滲水情況是因窗戶打開而導致，但涉及的是樓宇單位內的其他部分，與本申索部份無關。

基於審裁官所犯的法律觀點上的錯誤，本席裁定申索人的上訴得直，案件須發還小額錢債審裁處重審，由另一位審裁官就以下的爭議點作出裁斷：顧先生的單位內的滲水問題是否由於大廈外牆損毀而導致？如果結論是滲水確由外牆損毀所導致而法團又已知悉上述情況的話，則法團便有責任進行維修，以維持大廈良好、合用的狀況。

Li Ching v. Guard Able Limited DCPI 2416/2006

2007-11-14T01:00:00.001+08:00

S’s words:-

No legal issues I would like to say but my feeling after I read the judgment.

With so many versions of the Plaintiff how she was injured, it was too difficult to convince the Court to accept her story.

I did have the opportunity to handle a case that faced with difficulties in the plaintiff’s story. That case was settled shortly before the trial for a minimal compensation.

--- quote from judgment ---

Date of handing down Judgment : 12th November, 2007

This is the Plaintiff’s claim for damages for personal injury, loss and damages sustained by her in the course of her employment arising out of the negligence and breach of common duty of care of the Defendant under the Occupiers’ Liability Ordinance.

In evidence-in-chief she said that she took a look and found that it was Tang Siu Kwong who touched her. She was frightened. She stood up quickly. Her leg was numb because she had sat there and it was cramped there. When she got up there was something in front of her. She turned 90˚. When she was turning she sprained her left ankle. She lost her balance.

Under cross-examination she said that when her superior asked her to patrol she was not running. She was walking. When she was turning her body she paid attention. She said that she did not walk hurriedly.

The Plaintiff’s Counsel submits that “As a result of the hurried return to work, she fell on weak legs and injured herself ….” But it was not pleaded in the Statement of Claim or in her witness statement that she “fell on weak legs and injured herself.” She only mentioned this matter in Court.

Dr. Cheung Tak Fai in his medical report (dated 26.3.2004) states that the Plaintiff attended his clinic on 28.3.2003, and “She gave the history of an injury during work on the captioned date. While she went out from the rest room, she tripped over the door-step and fell. She sprained her left ankle and hit her left side of body against door-case, sprained her neck and low back as well. She experienced severe left ankle and back pain and left upper limb numbness that she could barely walk a few steps.”

The medical report (dated 20.2.2004) of Dr. Y.F. Yeung of the Department of Surgery of the Prince of Wales Hospital states: “Madam Li fell down on duty after tripping over the door frame in 3/2001 and suffered from left shoulder pain radiating down to the fingers afterwards.”

The report of Dr. Li Shun Cheong of the Tai Po Jockey Club Clinic (dated 7/1/2004) states: “She claimed to experience a dizzy spell during work on 22/3/2002. This resulted in a fall and sprained her left ankle.” The medical report of Dr. Chan Ho Yan of the Alice Ho Miu Ling Nethersole Hospital (dated 14.3.2003) says that the Plaintiff sprained her left ankle while she was on duty with preceding syncope on 22/3/02.

In the Notification of Accident at Work submitted to the Labour Department on 29th April 2002, she stated “As I was wearing the shoes provided by the company and those were not in the suitable size, I fell and sustained sprain injury.”

The Plaintiff gave inconsistent accounts of the accident to medical doctors, to the Labour Department and to this Court. I am not satisfied that she was telling this Court what had actually happened on the date of the accident. In any event her evidence does not show the cause leading to the spraining of her ankle. She has failed to show how the spraining of her ankle had anything to do with the Defendant. The onus is on the Plaintiff to show that there was negligence on the part of the Defendant, or that the Defendant was in breach of the Occupiers’ Liability Ordinance. She has failed to do so. I therefore dismiss her claims against the Defendant.

FRED LEE, trustee of the property of LIU MAN HOO, a bankrupt HCB 11719/2002

2007-11-14T00:37:00.000+08:00

S’s words:-

The Trustee tried to make an application to vary the costs order regarding the Decision of the Court on 14th September 2007. In fact, as the Judge did have commented, “this is an application that should not have been brought in the first place.”

The quasi-judicial function of the trustees should be properly exercised, or otherwise, we may still have some cases that the Judge(s)/Master(s) may comment that such an application should not have been made at all.

Different Judge(s) and Master(s) have rightly pointed out the quasi-judicial obligation on the part of the trustees. Thus, the trustees should not raise applications for suspension as a norm but should take such necessary investigations beforehand.

In order to protect the interests of the creditors, we should not discourage the trustees to make applications, or otherwise, the trustees may choose to make no application at all even in suitable situations.

So, I wish I could have the chance to read more judgments that the trustees do have made investigations and submit applications with sufficient reasons. Some guidelines of the Court have already been given. It is the right time for the trustees to prepare their cases (including investigations) well. I further wish that we would not have the chance to read further judgments with groundless applications being put before the Court, but unforuntately, I cast some doubts thereon.

--- quote from judgment ---

Date of Decision on Costs : 13 November 2007

I made a costs order nisi in Para.87 of my Reasons for Decision of 14 September 2007. The Trustee applied for a variation of the order. At the hearing on 5 November 2007, I was invited by the Trustee to vary the costs order to no order as to costs.

The main plank of the Trustee’s argument is the finding by this court that the Bankrupt’s conduct before the commencement of the bankruptcy has been unsatisfactory and thus a case under Section 30A (4)(d) was established. Mr Chan submitted that in such circumstances, the Trustee was not at fault in the exercise of his judgment in applying for suspension. He also suggested that in these circumstances, the Bankrupt should not be regarded as the successful party in the application.

It is further submitted that though the court ultimately decided that there should not be any suspension, it was more in the nature of a grant of indulgence to the Bankrupt in the exercise of the discretion by the court.

Mr Chan also argued that given the quasi-judicial role of the Trustee, the normal rule of costs following event can be displaced more easily.

On the other hand, Mr Lam for the Bankrupt argued that the normal rule should apply and unless an exception under Ritter v Godfrey [1920] 2 KB 47 can be established, the Bankrupt should get his costs. In the present case, counsel submitted that none of the exceptions applies. It was an application that should never have been brought in the first place. Mr Lam also contended that the Trustee had not been acting reasonably.

Hence, I am of the view that the normal rule should equally be applicable to this type of proceedings. But that is subject to the principle laid down in Ritter v Godfrey.

As regards the third exception in Ritter v Godfrey, Atkin LJ said at p.61 that it “extends to cases where the facts complained of, though they do not give the plaintiff a cause of action, disclose a wrong to the public by which I understand some criminal or quasi criminal misconduct, e.g. fraud or crime or preparation of for a fraud or crime, or possibly some act of serious oppression.” I do not think the unsatisfactory conducts which I found to be established against the Bankrupt come anywhere near to this category.

Thus, I will answer the first question by holding that there is no good reason for depriving the Bankrupt of his costs in resisting the application in the present case.

Turning to the incidence of such costs, it could either fall on the Trustee or the estate. Rule 32A(3) of the Bankruptcy Rules gives limited protection to a trustee regarding personal liability for costs. However, it does not apply here since the application was made by the Trustee instead of he being made a party to proceedings issued by other parties.

There cannot be any doubt that the court does have the power to order costs against a trustee personally if the circumstances warrant such sanction. On the other hand, such power should be exercised with circumspection when a trustee is performing his ‘quasi-judicial’ function properly.

In the appeal in Leung Chin Yeung CACV 32 of 2007, 23 October 2007, the Court of Appeal upheld the decision of Kwan J. Further, the Court of Appeal took the view that the appeal should never have been brought and ordered the trustee to pay the costs of the Official Receiver and the respondent on indemnity basis and not to recoup the costs of the appeal from the estate.

In the present case, I regret to say that the Trustee had adopted a fundamentally flawed approach towards this application. As I said in my Reasons for Decision, the Trustee did not make any meaningful investigation before he decided to launch the application. Further, the Trustee took the misconceived view that he was only concerned with establishing a ground of objection under Section 30A(4) and failed to address his mind to the more important issue, viz. whether the circumstances as a whole warrant an application for suspension being made. This amounts to a serious failure on his part to carry out his quasi-judicial function properly.

Mr Chan submitted that the Trustee did not have the benefit of the recent case law on the subject when the application was made. I do not regard this as a good excuse for the Trustee’s failings mentioned above. It is not too much for the court to expect a reasonably competent trustee to carry out proper investigation on all relevant matters before making an application. Unless this has been done, it is difficult to see how a trustee can make a proper and responsible decision on whether it is appropriate to make an application for suspension.

Further, the decision of Kwan J in Leung Chin Yeung should have alerted the Trustee to reconsider his approach to this application. Unfortunately, the Trustee chose to press on with a flimsy application.

Looking the matter in the round, I am of the view that no reasonable trustee carrying out his quasi-judicial function could have concluded on the materials available that he should launch an application for suspension if he took a balanced and impartial attitude towards the matter. This is an application that should not have been brought in the first place.

In my judgment, the Trustee had acted unreasonably in the application and the incidence of costs should not fall upon the creditors. I therefore vary my costs order nisi by ordering the Trustee to pay for the costs of the Bankrupt in the application including the costs of the hearing on the question of costs personally and the Trustee shall not recoup his costs from the estate.

LIMBU LAXMI PRASAD v. DRAGAGES (HK) JOINT VENTURE DCEC 1227/2006

2007-11-02T01:14:00.000+08:00

S’s words:-

The following case is not any interesting case at all.
What attracts me is that His Honour Judge Lok refuses to join in the debate to the deeming provision of Section 10(2) of the Employees’ Compensation Ordinance.
We have two line of cases for this issue and that forms the views of the judges in District Court.
At the same time, in fact, legal practitioners do form two views as well.
It is expected that those concentrating their works for applicants are in favour of the view of irrebuttable presumption. On the contrary, those legal representatives acting for insurers do suggest the otherwise.
The debate may go on until a date that such an issue is put to the Court of Appeal (and further probably the Court of Final Appeal) for consideration.

Personally, I support the view that the presumption is irrebuttable.
But when we read the article of Hong Kong Lawyer in the issue of October 2007, the author therein may support the otherwise.

--- quote from judgment ---

Date of handing down of Judgment : 24 October 2007

Based on the aforesaid findings, the Applicant has suffered no occupational disease or permanent injury as a result of the accident, and so he is not entitled to claim any compensation for permanent partial incapacity under s. 9 of the ECO. His appeal against the assessment of loss of earning capacity made by the Board in the Certificate also fails.

The Applicant has managed to obtain various sick leave certificates from Dr. Alfred Lo covering the period from November 2004 to September 2005, and the next issue I have to consider is therefore whether the Applicant, by relying on these certificates, is able to claim any compensation for temporary incapacity under s. 10 of the ECO.

There is some uncertainty as to the effect of the deeming provision in s. 10(2). On the one hand, we have cases which suggest that, in the absence of fraud, the deeming provision is conclusive about the period of sick leave for the purpose of calculating the compensation under s. 10. On the other hand, we have another line of cases which suggest that the deeming provision is rebuttable. A good summary of these two lines of cases can be found in the judgment of Deputy Judge Anthony Chow in Siu Fu Yau v. Wong Po Lee Limited & 0rs., unreported, DCEC No. 654 of 2003 (decision on 5 October 2006). Unless the interpretation of s. 10(2) is clarified by the higher courts, such uncertainty in the law will still continue to exist. But fortunately for our present case, it is not necessary for me to resolve this particular issue, and so I do not intend to add further confusion in this area of the law by giving additional view. It is clear that even for the cases which suggest that the deeming provision is irrebuttable, it is subject to an important provisio that there is no fraud involved. As I find that there was malingering on the part of the Applicant and that his complaint is not genuine, the court is entitled to disregard the sick leave certificates issued by Dr. Lo for the purpose of assessing the compensation for temporary incapacity under s. 10.

As the Applicant is not entitled to claim for any compensation under the ECO, his claim is dismissed. I also dismiss the Applicant’s appeal against the assessment made in the Certificate. On the other hand, the Respondent’s appeal is successful and I disallow the sick leave period stated in the Certificate from 27 October 2004 to 8 September 2005. Further, I make an order nisi that the costs of this action be to the Respondent with certificate for counsel, which would be made absolute 14 days after the date of the handing down of this judgment.

ATHANASIOS KONDYLIS v. KIM'S YACHT COMPANY LIMITED DCEC 918/2005

2007-11-02T00:50:00.000+08:00

S’s word:-

It is so rare that we can find an employees’ compensation claim involving the issue of security for costs. The following case demonstrates an example.

I believe that we do have very much employees compensation claim involving such an issue due to the following reasons:-

1. most injured employees are not ordinarily residents overseas;
2. even though residents overseas, not all such employees do have the means to pay for security for costs;
3. in many employees’ compensation claims, the insurers/respondents do not agree the injured was not an employee.

But, in this case, the Applicant did have taken a very constructive approach for the issue of security for costs. Even before the hearing, the Applicant did have proposed to give a very substantial amount of security for costs and such amount was finally accepted by the Court.

Therefore, the Respondent could only get part of the costs for the application for security for costs but at the same time had to bear the balance and in more important the costs for the hearing.

So, the Applicant was still the winner of the application.

It thus also explains that why constructive offers should always be in our mind to protect the issue of costs.

--- quote from judgment ---

Date of delivering and handing down decision : 24 October 2007

This is the Respondent’s application for security for costs pursuant to O.23, r.1 of the Rules of the District Court, Cap.336. The ground is that the Applicant is ordinarily resident overseas.

There is no dispute that the Applicant is ordinarily resident overseas for the purpose of O.23. The Applicant’s address reported is in Guangdong, the Mainland.

The Applicant also does not argue that he has substantial assets within the jurisdiction which may be of sufficiently permanent nature and available for enforcement of any adverse costs order.

The Applicant opposes the application on the following grounds:

(1) The Applicant has a genuine and strong prospect of success in this case. Effectively the risk of an adverse costs order is low.
(2) There was intentional delay on the part of the Respondent in taking out the application for security.
(3) In any event, the amount of security requested is excessive.

In the circumstances, this remains an appropriate case to order security. The question will then be that of the appropriate amount.

In my view, the amount of HK$150,000 proposed by the Applicant is fair and realistic. I am minded to order security in such amount. I shall finalise the order after hearing parties on costs of this application since this forms part of the security requested.

[Parties submit on costs. The court’s attention is drawn to the fact that the Applicant offered security in the amount of HK$150,000 by his solicitors’ letter dated 30 August 2007, such offer being open for acceptance in 7 days. The Respondent rejected the offer.]

(1) All proceedings be stayed until the Applicant provides security for costs up to the end of trial in the amount of HK$150,000 by payment into court within 21 days from the date of this order.
(2) Costs of this application up to and including 6 September 2007 be to the Respondent, to be taxed, if not agreed.
(3) Costs of this application since 7 September 2007, including the costs of today’s hearing, be to the Applicant, to be taxed, if not agreed.

WONG KIN FAN v. FOK YUE MING DCPI 1207/2006

2007-11-01T01:07:00.000+08:00

S’s words:-

The parties agreed the quantum leaving the issue of liability and contributory negligence to be decided by the Court.

Drivers are still having a rather high requirement to take reasonable care.

In this case, even though the Plaintiff was the one that was substantially to be blamed, the Defendant being the driver was still liable for 1/3.

If there was any calderbank offer for the issue of contributory negligence, it is highly possible that the Plaintiff could get almost nothing from the action.

--- quote from judgment ---

Date of handing down judgment: 23 October 2007

The Plaintiff was to blame for the accident. But was the Defendant negligent too?

Ms Lau for the Plaintiff submitted that even if the Defendant’s case is accepted, the Defendant was still negligent. She relied on numerous cases in which the drivers were found liable for having failed to exercise reasonable care to avoid colliding with the pedestrians upon seeing them. Mr Wong for the Defendant submitted that the scenarios in these cases are distinguishable from the present case.

In Williams v Needham [1972] RTR 387, the pedestrian was standing by a car and clearly intending to cross the road. In Foskett (an infant) v Mistry [1984] RTR 1, the 16 and ½ year-old boy was cycling downhill and the defendant driver should have seen him from a distance. In Kong Chung Ching & Anor v Lam King Ho & Anor [1992] 1 HKC 104, the pedestrian was outside the railing and looking straight ahead as if he was about to cross the road. In Wong Shek Keung & Anor v Leung Sing Kiu & Anor [1989] 1 HKC 202, the defendant was driving at excessive speed without proper lookout.

The facts in these previous decisions are bound to vary from one to another. However the key question discerned from these decisions should be whether the driver was or ought to be aware of a real possibility that the pedestrian might cross the road though the pedestrian was apparently not looking in the direction of the approaching vehicle. How real such possibility has to be for the driver to take precaution was best explained by the Court of Appeal in Kong Chung Ching (at 107D referring to Ng Ching Hung v Lau Shun Hing, unreported, CA 182/90):

“……There, the court also referred to Fardon v Harcourt-Rivington (1932) 146 LT 391. The court said:

The root of this liability is negligence, and what is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.

The trial judge found that while there was clearly substantial contributory negligence on the part of the deceased, the first appellant was also to blame for the accident……”

Was the possibility of the Plaintiff suddenly stepping onto the Road reasonably apparent or a mere possibility which would never occur to the mind of a reasonable man?

The present case contains its peculiar facts. Unlike the cases referred to above, the spot where the Plaintiff stepped onto the Road was an open pavement without railings or parked vehicles. Pedestrians could step onto the Road at any time. This should not be surprising if they did. As can be seen from the photographs, the kerb of that part of the Pavement had in fact been modified into a concrete slope descending onto the Road, and so had been the corresponding kerb of the pavement on the other side the Road. Pedestrians were therefore reasonably expected to make use of this part of the Pavement (and the corresponding part of the opposite pavement) for crossing the Road. A driver approaching there should be able to see that.

In the circumstances, that the Plaintiff might all of a sudden step onto the Road from that part of the Pavement was not a mere possibility which would never occur to the mind of a reasonable man. The possibility in fact occurred to the Defendant’s mind. The whole point of his deciding to drive the Taxi further to the right was to avoid accident in case such possibility materialised. The Defendant had to agree with this in court.

In the circumstances, the Defendant was negligent in causing the accident.

I have no reservation that the Plaintiff was substantially to blame for causing the accident. In Williams, the plaintiff was 2/3 responsible. In Kong Chung Ching, the plaintiff was 50% responsible. In Foskett, the plaintiff was 75% responsible.

The quantum has been agreed at HK$120,000 inclusive of interest and net of the employees’ compensation received by the Plaintiff. Discounted by the contributory negligence, the amount would become HK$40,000.

FRED LEE, trustee of the property CACV 30/2007, CACV 31/2007 and CACV 32/2007

2007-11-01T00:36:00.000+08:00

S’s words:-

These three appeals were commented an appeal that should never have been brought.
More important, the Trustees in those three cases were required to pay for the costs of the appeal on INDEMNITY BASIS.

Further, with the support of the Court of Appeal, the judgment of Her Honourable Madam Justice Kwan on 9th January 2007 will be good guidelines for the trustees to decide whether to make objections.

As I have mentioned in other posts in this site, I do expect that we will have more cases in the future that the trustes could make much better objections. The incentive to make objections has been explained by these appeals that in each order in favour of the trustee, the like amount of the trustee’s costs may be in the region of $30,000.00.

--- quote from judgment ---

Date of Handing Down Reasons for Judgment: 23 October 2007

These were appeals from an order of Kwan J given on 9 January 2007 whereby the judge ordered that the 3 summons issued by the trustee in bankruptcy of three bankrupts be adjourned to the master and that, similarly, the joint applications for discharge made by the bankrupts and the trustee should likewise be adjourned back to the master to consider the merits of both applications with the guidance of the decision of 9 January 2007. The judge disallowed the trustee from recovering out of the bankrupts’ estates his costs of and occasioned in the hearing of 20 December 2006 before the judge.

The trustee in bankruptcy appealed the orders remitting the matter back to the master. He sought an order in each case that the summons issued by himself objecting to the automatic discharge of the bankrupts be allowed and he sought to appeal as to costs.

This court was concerned, for reasons which will emerge, that these appeals were incompetent in view of the stance taken on behalf of the trustee in the court below. Nevertheless, the court heard the matter on a de bene esse basis. The court considered that not only were there no grounds for appeal but the appeals should never have been brought. The appeals were therefore dismissed. The costs of the appeals of both the Official Receiver and the respondent to CACV 30 of 2007, who was represented in this court by counsel, were ordered to be paid by the trustee on an indemnity basis. The trustee was not to recoup the costs of the appeals from the estates. Furthermore, in view of the fact that the trustee conceded that he did not wish the interim suspension of the automatic discharge under section 30A(1) and (2) of the Bankruptcy Ordinance Cap. 6 (“the Ordinance”) to continue, those orders were discharged.

The manner in which these applications have come before the court justifiably led to the concern that the decision to abandon the opposition to the automatic discharge was taken solely on the basis that there would be some further contribution, albeit in some of the cases of almost negligible interest to the creditors, and a substantial contribution to the trustee’s costs of bringing the application to object to the automatic discharge. On that aspect, it might be observed that this court was told in the course of argument that 37 conditional discharge orders have already been made with the consent of the trustee. If each order provided for a like amount of $30,000 the total would come to $1,110,000. If similar consent orders were to be made in the 438 other cases in which the trustee has filed objection to automatic discharge, the amount involved would come to more than $13 million.

In those circumstances there is no question in my mind that these appeals should never have been brought. On that basis the appeals as to costs would have required leave; that had not been sought or obtained. Furthermore, it was not argued that the orders as to costs were not within the discretion of the court. In my view, the judge was correct in coming to the conclusion that the applications under section 30A(9) were joint applications by the trustee and the bankrupts. The circumstances of the volte face in originally applying that the periods for automatic discharge should cease to run and then seeking to withdraw the applications were not explained to the court. In the light of that I consider that the judge made the correct order in depriving the trustee of the costs of the hearing before her.

In this context I agree with the observations of the learned judge in her judgment – see [2007] 1 HKC 164 at 183H-184C – that “the trustee should not act too readily in deciding to object to automatic discharge”, that “the discretion to object should be exercised with caution” and that “an order of continued contribution to the estate as a condition to discharge should be made with restraint and circumspection”.

FRED LEE and CHOW WAI LAN, CHRISTINE v. WONG HING WAH MICHAEL HCB 26018/2002

2007-10-28T23:07:00.000+08:00

S’s words:-

A case that the trustees won.

However, please read CACV 30, 31 & 32 / 2007 as well.

In my own view, with more experience in making objections, I believe we will have more cases that are ruled against the bankrupts in the future.

The various case authorities, whether against or in favour of the trustees, are good examples/guidelines for the trustees to make objections in the future. Thus, planning can be made before objections are submitted.

--- quote from judgment ---

Date of Judgment : 12 October 2007

The grounds on which an order suspending an automatic discharge may be made are specified in section 30A(4) of the Ordinance.

The grounds on which the automatic discharge of Mr Wong from his bankruptcy are objected to were set out in an affirmation made by Mr Lee made in support of the application. Two matters were relied upon. Both were said to demonstrate unsatisfactory conduct on the part of Mr Wong in respect of the period before his bankruptcy.

The approach to the exercise of the discretion under section 30A(3)

As has been observed in a number of decisions, the introduction of the present section 30A of the Ordinance marked a significant change in the approach of the law towards bankrupts. Previously, there was no provision for automatic discharge. A bankrupt had to apply for his discharge, and it was generally difficult for him to obtain it. The effect of the change has been to place the emphasis on rehabilitation of the bankrupt so as to enable him to resume a normal life (see e.g. Re Hui Hing Kwok [1999] 3 HKC 683, per Le Pichon J at 687B).

So far as the power under section 30A(3) to suspend the automatic discharge of a bankrupt is concerned, it is, I think, clear that one of its main purposes is to provide the bankrupt with an incentive to cooperate with his trustee, and to comply with his obligations under the Ordinance. However, this cannot be its only purpose. If it were, there would be no point in including among the grounds for objection any reference to the pre-bankruptcy behaviour of the bankrupt. Other purposes that are served by the power to suspend automatic discharge would appear to me to include the protection of the public, where there is reason to think that the reintroduction of the bankrupt into ordinary commercial life might pose risks or dangers against which lenders and others who might have dealings with him should be protected, and, in appropriate cases, as a mark of disapproval of the way in which the bankrupt has conducted his affairs whether before or after his bankruptcy.

The court has recently considered the approach which should be adopted to objections to discharge in cases involving allegedly unsatisfactory pre-bankruptcy conduct in Lee Fred v Leung Chin Yeung [2007] 1 HKC 164 (Kwan J), Re Tong Yuk Kin (unreported, HCB 22870/2002, Deputy Judge A To, 20 June 2007) and Re Liu Man Hoo (unreported, HCB 11719/2002, Lam J, 14 September 2007). I should point out that the last of these decisions was given after the hearing in this matter concluded, and was not the subject of submissions by either party. However, the approach adopted in it is, I think, broadly in line with that taken in the other two decisions.

These authorities make it clear that there are two stages involved when the court is considering the exercise of its powers under section 30A(3). It is first necessary to determine whether one or more of the grounds mentioned in section 30A(4) has been established. If this is done, the court then moves on to consider whether or not, in the exercise of its discretion, a suspension of the automatic discharge that would otherwise have been available to the bankrupt should be ordered. It will not be in every case where a ground for suspension is made out that a suspension will be called for or imposed. In determining whether or not a suspension should be ordered, the court will have regard to all the circumstances of the case, including the nature of the acts complained of and the post-bankruptcy conduct of the bankrupt.

That said, bearing in mind the policy of rehabilitation, I would accept that save in very serious cases, a suspension of automatic discharge in respect of unsatisfactory pre-bankruptcy conduct is likely to be for a shorter period than might be ordered in a case in which a bankrupt had been guilty of other, post-bankruptcy ground for suspension, where a longer period of suspension may well be called for so as to ensure that the bankrupt properly complies with his obligations.

Taking account of the fact that there are no complaints as to Mr Wong’s post-bankruptcy conduct, and that he appears to have provided information to the Trustees as and when required, I have come to the view that a suspension of Mr Wong’s automatic discharge for a period of four months would be sufficient in this case. Accordingly, I shall order that the relevant period under section 30A(1) of the Ordinance shall cease to run, in the case of Mr Wong, for a period of four months. The effect will be that he is to be treated as having been discharged from his bankruptcy on 24 June 2007.

JERRY CHEN v. WHIRLPOOL (HONG KONG) LIMITED FACV 23/2006

2007-10-28T22:44:00.000+08:00

S’s words:-

The Final Court of Appeal was asked to decide an appeal of the Applicant that in my personal view was without merit at all. The Applicant was surprisingly supported with legal aid in this appeal to Court of Final Appeal. Why I make such a comment? Let us look at the decision of Court of Appeal refusing leave be given to the Appellant for leave to appeal:-

“1) We are not satisfied that this case involves matters of great general or public importance. First our decision is based on the unique facts of the case. The relevant legal principles are well established. Second while we accept many Hong Kong employers are asking their employees to work in the Mainland, we are not satisfied that the specific arrangement in this case is also a widespread practice which called for a determination by the Court of Final Appeal.

2) We are also not satisfied that this case comes within the ‘or otherwise limb’. It has not been shown that the situation is exceptional.”

I feel doubt whether we do require any law that extends the duty of an employer to such.

Why legal aid was granted? Would it be the situation that the Applicant had used all/most of the compensation he did receive in his Employees’ Compensation Claim in the litigations in High Court and Court of Appeal?

Anyway, the public fund is now required to pay for the costs of the Respondent. What a pity!

--- quote from judgment ---

Date of Judgment : 26 October 2007

The appellant was seriously injured in a traffic accident in Beijing on 13 October 1998. It happened when the car in which he was travelling as a passenger was negligently driven onto its incorrect side of the road and collided with an oncoming motor vehicle. He was in the employ of the respondent, designated as commercial director. The respondent is a Hong Kong company in the Whirlpool group. This group is centred in the United States, but is also present and active in many other parts of the world. As the appellant’s contract of employment with the respondent expressly provided, he was “based in Shanghai … with responsibilities to” a Mainland company headquartered in Shanghai. This company is named Whirlpool Narcissus (Shanghai) Co. Ltd (“WNS”). It served as the corporate vehicle for a joint venture in the Mainland between the Whirlpool group and a Mainland company named Shanghai Narcissus Electric Appliances Co. Ltd.

Employers’ duty of care/contractual liability

Whatever else employers’ common law duty of care and contractual liability despite delegation of performance involves in a case like the present, the appellant cannot succeed under either of these two bases of liability or both of them combined unless he can persuade us to reverse the concurrent findings of the courts below that Mr Zheng was a reasonably competent driver. After giving the matter anxious consideration, I have come to the conclusion that there are no circumstances that would justify us in the exceptional course of disturbing those concurrent findings. It is true that there is no evidence as to when Mr Zheng joined WNS, how long he had driven executives on his behalf or how often he did so. But the main thrust of the appellant’s case in the courts below in regard to the sort of driver required was that a professional one was required. That was the focus below, most significantly at the trial. Otherwise there might have been more evidence about Mr Zheng’s activities as a driver.

Vicarious liability

The two problems which the appellant faces on the foregoing argument as to vicarious liability are these. First of all, it cannot be said that there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other side if the point had been taken at the trial. Secondly, entertaining that point would certainly involve entertaining a point which was not taken in the courts below but which, if accepted, would constitute a major development in the law.

For those reasons, I do not think that the appellant can in the circumstances succeed on vicarious liability. I say nothing on how the law of vicarious liability may develop in future.

The appellant has recovered employees’ compensation. Hopefully he will find some solace in that. I can find no basis on which to enable him to recover more. In the result, I would dismiss the appeal with costs and make an order for legal aid taxation of the appellant’s own costs. It is common ground that costs should be dealt with that way if, as it has turned out, the appeal is dismissed.

LEUNG TSANG HUNG AND LEE WAI YU v. THE INCORPORATED OWNERS OF KWOK WING HOUSE FACV 4/2007

2007-10-28T22:19:00.000+08:00

S’s words:-

Kwok Wing House is a building in Mongkok with a famous bookshop in its Ground Floor. There was a loss of life in the accident. Not only the owner/occupier and tenant of the illegal structure, the Incorporated Owners of the Building was held liable. Once the Incorporated Owners was liable, it thus meant that every owner of the Building was liable. The Policy Consideration was rejected by the Final Court of Appeal. That should be the end of the appeal and the Incorporated Owners should have no way to avoid being responsible to pay for damages.

Personally, I partly agree with the view of Stock JA in Court of Appeal. It would be too harsh for the Incorporated Owners to be liable for the accident. The decision of the Final Court of Appeal was too harsh to the owners, but when we spend just a few minutes to consider the principle mentioned by Mr. Justice Bokhary, the decision was correct.

There is not yet any strict requirement for a building to have third party insurance to cover such kind of accident. We will have such statutory requirement soon. However, in the past, it was really difficult for a building to obtain any such insurance coverage. Now, every building whether old or not should obtain its own insurance.

But, if there was not yet any Incorporated Owners for the Building, it would be difficult for the Plaintiff to sue all owners. There are still lots of buildings in Hong Kong that are without any incorporated owners. The decision of the Final Court of Appeal may again discourage old buildings to have their Incorporated Owners.

That was definitely not in line with the existing policy of the Government to encourage owners to have their own incorporated owners.

---

Date of Judgment: 26 October 2007

Mr Justice Bokhary PJ:

Without attempting an exhaustive statement of the legal position, I think that at least this much can be said. Where any part of, or anything annexed to, the common parts of a building falls off as a result of its hazardous state and causes death, injury or damage in the street below, the incorporated owners are liable in nuisance for the consequences if they knew or ought to have known of the hazard in time to remove it but had unreasonably failed to do so. I regard such a rule as consistent with principle. And, as Lord Reid famously said in Dorset Yacht Co. Ltd v. Home Office [1970] AC 1004 at pp 1026H - 1027A, “when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it”. That was said in regard to negligence. It holds good in regard to nuisance. On the basis of what these incorporated owners ought to have known in the circumstances of the present case as disclosed by the evidence, I am of the view that the estate of this deceased woman is entitled to succeed against them. For the foregoing reasons and those more fully stated in Mr Justice Ribeiro PJ’s judgment with which I agree, I would allow this appeal in the terms which he proposes.

Mr Justice Ribeiro PJ:

On 10 August 1999 at about 3.00 pm, Madam Liu Ngan Fong Sukey was plying her trade as a hawker at a fixed pitch in Tung Choi Street when she was struck by a piece of concrete which had fallen from the adjacent building. She died in consequence.

The building is known as Kwok Wing House (“the building”) and the object which had caused Madam Liu’s death was a triangular-shaped piece of concrete weighing some 15 lbs which had fallen from the 11th floor. It had formed the corner of a concrete canopy projecting out from over the enclosed balcony of Flat A on that floor (“the flat”), before it had become detached and fallen down into the street.

The plaintiffs are the administrators of the estate of Madam Liu. They sued Tse Yiu Pui and Ho Lai Bing who jointly owned the flat (“the owners”) as the 1st defendants. Chan Kwok Chi was their tenant (“the tenant”) and he was made the 2nd defendant. The 3rd defendants are the incorporated owners of the building, being a corporation which had come into existence on 12 April 1999 upon the owners being registered under the Building Management Ordinance[4] (“the BMO”).

The owners consented to judgment so that at the trial, the Judge was concerned only with the liability of the tenant and the corporation. They were each sued in negligence and public nuisance. His Lordship found the tenant liable along with the owners but dismissed the action against the incorporated owners with costs, holding that they did not owe any actionable duty to the deceased. Damages were assessed in the sum of $1,554,742.00 and judgment in that amount, together with various sums of interest and costs, was entered against the owners and the tenant. The plaintiffs’ appeal to the Court of Appeal in relation to the liability of the incorporated owners was dismissed,[5] again on the basis that the corporation owed the deceased no operative duty. An appeal on quantum is pending in the Court of Appeal. Leave to appeal to this Court was granted by the Court of Appeal[6] under section 22(1)(b) of the Court’s statute.

D.4 Control over the common parts

Given such attributes, can it be said that the incorporated owners in the present case exercised sufficient control over the building’s common parts to justify placing them in a category of actionability in respect of omissions?

In my view, the answer is affirmative. The Ordinance places the incorporated owners under a duty to “maintain the common parts and the property of the corporation in a state of good and serviceable repair ...; and to do all things reasonably necessary for the enforcement of the obligations contained in the deed of mutual covenant ... for the control, management and administration of the building.”[100] The common parts include the external walls.[101] Obligations deemed by the BMO to form part of the DMC which the corporation is duty-bound to enforce include a prohibition against any person converting any common part to his own use without the approval of the owners’ committee.[102]

The DMC in the present case requires each owner to share in the cost of keeping the external parts of the building in good and tenantable repair and condition.[103] It also provides that the parties should not “make any structural alteration to the said building”.[104] Each owner covenants “not to place anything in or to occupy ... any part of the ... said building intended for common use.”[105] The parties also covenant to employ an agent to “generally take care of the said building for the common benefit of the parties hereto and to repair ... the structure and exterior of the said building or any part or parts thereof which are used by the parties hereto in common ...”[106]

To give these powers and duties teeth, the BMO authorizes entry on behalf of the incorporated owners into any flat for the purpose of inspecting, repairing, maintaining or renewing any common parts or other property in the flat causing concern; or for the purpose of “abating any hazard or nuisance which does or may adversely affect the common parts or other owners”.[107] If entry is refused, the BMO empowers a magistrate to issue a warrant authorizing a person to break into the flat in the presence of a police officer.[108] Members of the management committee exercising such powers in good faith and in a reasonable manner are given personal immunity.[109] Costs incurred in the exercise of these powers are recoverable from the owner in question,[110] as are the costs of remedial works which the corporation may undertake itself where the owner fails to do what is necessary, such costs being a charge upon the defaulting party’s share of the property.[111]

D.5 Incorporated owners’ actionable omissions

In the light of the foregoing, it is my view that the legal attributes, duties and powers of the incorporated owners place them in a category closely analogous with that occupied by the owners and occupiers discussed above.[112] They exercise a sufficient degree of control over the common parts of the building to justify making them subject to a duty which is actionable on the basis of omission in respect of nuisance hazards arising on or emanating from those common parts, subject to proof of the other necessary elements of liability.

D.8 Conclusion as to liability

It follows, in my view, that all the elements of liability on the incorporated owners’ part have properly been made out. They are accordingly liable for damages for public nuisance along with the flat’s owners and tenant.

F. Policy considerations

In reaching his decision, Stock JA referred to policy considerations which led him to the view that fixing incorporated owners with liability in a case like the present might have “harsh and unreasonable pragmatic consequences”.

This passage suggests that Stock JA was proceeding on the basis that liability is strict, so that the incorporated owners would be liable even where there is no reasonable basis for considering the structure a hazard. However, if, as has been held above, it is recognized that the law has evolved to the point where liability is premised on the defendant knowing or properly being taken to know of the existence of the hazard, this policy objection falls away. There is nothing harsh or unreasonable about making the body responsible, on behalf of the owners collectively, for keeping the common parts in good repair liable for failing to do so where they know or ought to know of the existence of a nuisance hazard endangering members of the public. The powers of enforcement given to the corporation by the BMO have been mentioned above.[143] The available measures are not confined to action in the courts.

There are moreover, in my view, sound reasons for making the incorporated owners, and not merely the individual owners implicated, responsible. Where the hazard involves the external common parts of a high-rise building, effective inspection and maintenance works can really only be carried out if those parts (and any illegal accretions thereto) are dealt with as a whole, with the erection of scaffolding and the like and with all the owners’ contributing to the cost, subject to possible adjustment regarding the individual owners implicated. And where the nuisance hazard consists of some unauthorized structure encroaching upon or being attached to the common parts, the individual owners who may have erected or adopted the structure and benefit from its existence, may well be unwilling to take any steps to remove it. Compulsion from, or direct action by, the incorporated owners may well be required if the hazard is to be nullified.

HKSAR v. CHOW TIN SHING (周天勝) CACC 85/2007

2007-10-28T21:00:00.000+08:00

S’s words:-

We should have heard many cases that defendants were charged of dangerous driving causing death and finally sent to prisons.

For the appeal against conviction for Charge 1 (that suggested that the Applicant endangered the life of his own crew), the conviction was quashed without surprise. In fact, the breach of the International Regulations for Preventing Collisions at Sea did not automatically suggested that the Applicant was endangering the life of his own crew. The Court of Appeal used the words:-

We are not not sure why the judge referred to the prosecution having “proved beyond reasonable doubt the defendant’s conduct in not keeping a proper lookout”.

Then leaving the sentencing for Charge 2.

The Court refused to rely motor vehicles offences to consider the sentencing. In no doubt, we do not have much case authorities as reference for the sentencing of such charges pursuant to Section 72 of the Shipping and Port Control Ordinance. My personal view is that, motor vehicles offences are relevant, but that was not accepted by the Court of Appeal.

Fortunately, the Court of Appeal also agreed that those cases involving high speed chases were distinguished. The Applicant performed no deliberately dangerous maneouvres but a life was lost. That was the reason why the sentence of the Applicant was reduced to 17 months but not any further.

If there was no loss of life but injuries only, would the Applicant be sent to prison for only 12 months or even shorter period? I feel some doubt on whether immediate custodial sentence would be imposed if that was the situation.

--- quote from judgment ---

Date of Judgment : 22 October 2007

On 13 March 2007, the applicant was convicted after trial before Her Honour Judge Chua in the District Court of two offences of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap. 313 (“the Ordinance”), being Charges 1 and 2 respectively. In respect of the offence the subject of Charge 1, the applicant was sentenced to six months’ imprisonment and in respect of the offence the subject of Charge 2, to two years’ imprisonment. The sentences were ordered to be served concurrently, resulting in a totality of sentence of two years’ imprisonment.

The applicant has been granted leave to appeal out of time his conviction in respect of the 1st charged offence. He seeks leave also to appeal the sentences imposed for both offences.

Appeal against conviction for Charge 1

In all those circumstances, independently of any breach of the Regulations by the applicant, it is difficult to see how the prosecution on the evidence before the court had proven to the requisite standard that the applicant’s actions in failing to alter course so as to leave the tug to port had created a real risk of danger.

Accordingly, we grant leave to appeal against conviction so far as the 1st charged offence is concerned, treat the hearing of the application as the hearing of the appeal and allow the appeal. The applicant’s conviction of the 1st charged offence is quashed and his sentence in respect of that conviction is set aside.

Appeal against sentence

Mr Ross has provided us with a number of authorities related to sentences imposed in respect of motor vehicle offences, but we do not think those of direct application to a sentence imposed pursuant to section 72 of the Ordinance. As a matter of general principle, any sentence imposed pursuant to a section 72 offence will primarily depend upon the degree of danger created by the acts of the offender in the circumstances as they existed at the time of the offence. Those circumstances will vary enormously. The weather, degree of visibility, sea state, speed of vessels, manouvres performed and other factors pertaining to those circumstances will often be relevant.

In cases involving high speed chases by police launches of sampans carrying illegal immigrants in Hong Kong waters, sentences of 2½ years and three years’ imprisonment after trial have been approved by this court : see A.G. v. Chan Siu Yun (1995) 2 HKCLR 223 and R. v. Sze Yui, unreported, CACC 348 of 1995. In the latter case, a subsequent similar offence by the same applicant led to a starting point at the maximum of four years’ imprisonment being endorsed : see HKSAR v. Sze Yu,unreported, CACC 143 of 2003. It should be noted in these cases, however, that the acts of endangerment were deliberately reckless and of great risk to the safety of the passengers in the sampans and to a lesser extent to the crew of the pursuing police launches.

We do not think the same considerations apply in the circumstances of the present case. The applicant performed no deliberately dangerous maneouvres. He proceeded at the barge’s maximum speed, but at a speed well within the limit for the fairway. It is true he had elected to proceed on the wrong side of the fairway and in the vicinity of possible inshore traffic in circumstances where he knew his forward vision was reduced and that the applicant’s act brought about a person’s death. But it was not a situation where the applicant in a calculated way risked the lives and safety of others such as was so in the above cited cases. Indeed, immediately after the collision the applicant stopped and contacted the authorities in a successful attempt to bring assistance to the scene. Marine police came and rescued the injured son of the deceased. This is to be distinguished from the callous indifference to life displayed by the defendants in the cited cases. The fact that in those cases there was no loss of life is a matter of pure chance.

Given the maximum term for the sentence of four years’ imprisonment, the contrast between the applicant’s conduct and the conduct of those involved in intentionally risking the lives of others, should have been given greater recognition in the sentence imposed in this case.

For these reasons, we consider the sentence imposed to have been manifestly excessive. In our view in the circumstances of this offence a sentence of 18 months’ imprisonment after trial was called for. There was some mitigation available for the applicant given his clear record and his immediate calling of assistance to the scene, and that sentence should be discounted to 17 months’ imprisonment. We do not regard the applicant’s relative inexperience as a master of such vessels to be a mitigating factor in the circumstances of this case.

Francis Burkett passed away on 5th October 2007

2007-10-15T11:19:00.000+08:00

Francis Burkett passed away on 5^th October 2007

Quoted from an email from School of Law of City University of Hong Kong:-

“Dear All, some of you will no doubt remember Francis Burkett who was with the School of Law some 10 years ago. Others may have met him in Practice. Francis died on 5th October and I attach details of the funeral arrangements for your information. Regards, Tony Upham”

His funeral arrangements will take place on 19^th & 20^th October 2007.

Francis was a Barrister in Hong Kong from 1997 (but in UK from 1969). Although I do not believe he was once my lecturer, I remember that I did have met him in my practice. Unfortunately, I have to admit that I do not have a clear recollection of his appearance, age or otherwise. But, in any event, our legal professional again lost a senior member.

2007-10-15

CHAU MING LUNG v. FASTCUT SERVICES LTD AND OTHERS HCPI545/2001

2007-10-02T22:49:00.000+08:00

S’s words:-

What had happened ...
The plaintiff was 48 years when he was injured and now he is 57 years old.
The plaintiff spent 3 years for commencing legal proceedings and spent another 6 years to obtain his judgment.

Further, a simple calculation ... 48 + 9 + 6 = ??

Again, with due respect, ... nothing to say further ...

--- quote from judgment ---

Date of Handing Down Judgment : 17 September 2007

On 3 July 1998, the plaintiff Mr Chau was injured whilst working on a platform and fell from a height of about 3 metres. The platform on which he was standing collapsed and he fell to the ground. He was then 48 years of age.

Here Mr Chau has a continuing pain in his hip and both knees. He is now 57 years of age.

(a) Pre-trial loss of earnings
$15,383 x 12 x 9 years 2 months (9.17 years) $1,692,745.00
Less : Wages received - $409,986.00
$1,282,759.00

CHAN KAM PUI v. WONG SIU HUNG AND ANOTHER DCPI1920/2006

2007-10-02T22:42:00.001+08:00

S’s words:-
With due respect, ... nothing to say ...

--- quote from judgment ---

Date of Handing down Judgment : 28 September 2007

In these circumstances, I find the Plaintiff was 30% contributory negligent.

In view of the 30% contributory negligence on the part of the Plaintiff, there will be a Costs Order nisi that D1 pays 2/3 of the costs of the action to the Plaintiff, to be taxed if not agreed, with certificate for Counsel. Such Costs Order nisi is to be made absolute 14 days after the handing down of the Judgment.

FRED LEE, trustee of the property of WONG CHI WAI SUNMY, a bankrupt v. WONG CHI WAI SUNMY HCB12941/2002

2007-10-02T22:17:00.000+08:00

S’s words:-
Will the Court give more and more judgment in favour of the bankrupts in relation to the application for suspension of automatic discharge on the part of the Trustees, in particular, the Trustee who regarded by the Court as having routinely done the same.

Lam J’s judgment in Liu Man Hoo HCB 11719 of 2002 in no doubt will be the guidelines in future of which the Master in Wong Chi Wai Sunmy’s case also adopts the same.

The pre-bankruptcy conducts of the Bankrupt were doubtful. But when the total contribution to the Official Receiver in thie case was considered, “which is more than half of proven debts”, “the excessive borrowing conduct may be brushed aside.” It thus explains why no creditor would take initiative to object the automatic discharge.

Finally, a pure academic issue, that is, the decision of Master Au Yeung (now Registrar Au Yeung) was again adopted of which the suspension was lifted with retorspective effect as per the decision of Official Receiver v Chan Kwok Keung, HCB 20772 of 2002.

--- quote from judgment ---

Date of Handing Down Reasons for Decision : 28 September 2007

Envisaging that the Application would not be disposed of immediately should Mr. Wong object to the Application, the Trustee, who seems to have routinely done so, also on the same date of the Application issued a summons for an interim order to prevent Mr. Wong from being automatically discharged from bankruptcy. This resulted in the granting of an interim order by a Master on 1 September 2006 which order was further extended on 6 March 2007. The interim orders had been de facto preventing Mr. Wong from the automatic discharge until the Application was determined on 24 September 2007.

Before I handed down the judgment, Lam J on 14 September 2007 handed down a decision of Fred Lee, trustee of the property of Liu Man Hoo, a bankrupt v Liu Man Hoo, HCB 11719 of 2002, 14 September 2007 (unreported), which decision provides useful guidance (the relevant part of which will be discussed below) on how a trustee in bankruptcy should approach an objection to automatic discharge. That case involves not just the same trustee but also contains similar unsatisfactory pre-bankruptcy conducts as the present case. I consider that I should also have regard to the principles discussed in Re Liu Man Hoo.

In not less than 3 months before the date of Mr. Wong’s automatic discharge from bankruptcy, the Trustee on 3 June 2006 sent the section 30A(5)(a) notices to the proving creditors and informed them that he intended to object to the discharge on the ground of pre-bankruptcy unsatisfactory conduct under section 30A(4)(d).

No objection was raised by any proving creditors to Mr. Wong’s automatic discharge. The Trustee, as had indicated in his notices to the proving creditors, issued the Application, relying on the pre-bankruptcy unsatisfactory conduct ground under section 30A(4)(d).

At the hearing, Miss Ng has largely relied on the recent decision of Deputy High Court Judge To in Fred Lee and Chow Wai Lan, Christine (trustee of the property of Tong Yuk Kin) v Tong Yuk Kin, HCB No. 22870 of 2002, 20 June 2007 (unreported), a decision based on pre-bankruptcy conducts of excessive borrowing as well as misrepresentation as a ground of objection to discharge by the same trustee. In this case, the learned Judge referred to an earlier decision by Kwan J in Fred Lee and Chow Wai Lan, Christine (trustee of the property of Leung Chi Yeung) v Leung Chin Yeung, HCB No. 8779 of 2002 (and two other cases), 9 January 2006 (unreported) and expounded in detail the meaning of unsatisfactory pre-bankruptcy conduct under A30A(4)(d) in the context of the legislative objectives of section 30A.

Miss Ng also alluded to an earlier decision of Re Hui Hing Kwok [1993] 3 HKC 683, a decision expounding on the legislative objective behind section 30A, which lies in rehabilitation in allowing a bankrupt to resume a normal life in society.

To conclude, given the lack of detailed and timely investigations by the Trustee and the unchallenged evidence of Mr. Wong, I am unable to accept that the Trustee has satisfied me that the excessive borrowing and loss of money in speculation being unsatisfactory conduct. I however find that the conducts of gambling and misrepresentation have been - when viewed objectively - unsatisfactory.

Having concluded that some aspects Mr. Wong’s conducts have not been satisfactory, I should carefully consider whether I ought to exercise my discretion to suspend Mr. Wong from discharge of bankruptcy, and should I so find, to decide the appropriate period of suspension.

In considering how my discretion should be exercised, I shall bear in mind the principles elucidated in the cases referred to above, in particularly the very powerful observations of Lam J in Re Liu Man Hoo (op. cit.) at paragraph 66 that the court should take an overall view of the matter in the exercise of discretion and that suspension of automatic discharge should only be applied to conducts of exceptional gravity (See paras. 65 to 68 in Re Liu Man Hoo).

Mr. Wong’s said pre-bankruptcy unsatisfactory conducts should be balanced against the post-bankruptcy conducts as well as other factors such as the manner the Trustee conducts the investigations and all the circumstances of the case. The unsatisfactory conducts that I have found proved, in my view, are not grave. Further, no objections were raised by any proving creditors against Mr. Wong’s discharge from bankruptcy. Mr. Wong has cooperated with the Trustee in the administration of the estate. Further, from the amounts of contributions he had made to the bankruptcy estate, I am satisfied that Mr. Wong had done his best to contribute to the bankrupt estate without abusing the bankruptcy regime as a debt-clearing house. Last but not the least, by virtue of the interim orders, Mr. Wong prior to the disposal of this case, had effectively been prevented from discharge for about 12 months, which must have caused him much distress.

After having considered all the evidence and balanced the interests of Mr. Wong, that of the commercial world as well as the moral values behind section 30A, I consider that it is not fair to exercise my discretion to suspend any period of automatic discharge.

Upon dismissal of the Application, I also lifted the suspension imposed by the two interim orders granted by Masters and ordered that it should take retrospective effect, adopting the reasoning (with which I agree) in Official Receiver v Chan Kwok Keung, HCB 20772 of 2002, Master Au Yeung (as she then was) 5 July 2007 (unreported).

WONG MAN TAT v. CHAN YUEN MAN AND OTHERS DCCJ2853/2005

2007-10-01T02:37:00.001+08:00

S’s words:-
It is rare that we can find case authorities that leave to appeal was granted by District Court.

The following case is one of them of which the Judge agreed that part of his findings came from inference and the Court of Appeal is entitled to draw a different inference.

However, it does not imply that every losing party could suggest the Judge form his conclusion by way of inference; otherwise, the Judge would be a rubber stamp in leave to appeal applications..

I believe this case will be an interesting case in the Court of Appeal in the future. In other daily life, we have received too much enquires in relation to water seepage allegations.

--- quote from judgment ---

Date of Handing Down Decision : 27th September 2007

DCCJ 2853/2005 was a claim by the owner of Flat 1802 (“1802”) of Block C, Westlands Gardens, No. 4 Westlands Road, Quarry Bay, Hong Kong (“the Building”) and against the ownersof Flat 1801 (“1801”) of the Building, due to water seepage from the Defendant’s master bathroom into the Plaintiff’s master bathroom.

The Plaintiff applied to this Court for an injunction restraining the Defendants from repeating or continuing the nuisance of water seepage from the shower stall and floor drain of the master bathroom in 1801 to 1802; an order that the Defendants to rectify the same; and damages for: (1) diminution in value of the premises to be assessed; (2) discomfort and inconvenience and disturbance; (3) surveyor fee of HK$20,000.00 and; (4) plumber charges of HK$15,000.00.

The Defendants counterclaimed against the Plaintiff for: (1) discomfort and inconvenience and disturbance to be assessed; (2) surveyor fee of HK$10,000.00; and (3) plumber charges of HK$8,500.00.

After trial, I granted the Plaintiff’s application for injunction, ordered the Defendants to rectify the water seepage, ordered the Defendants to pay the Plaintiff plumber charges of HK$15,000.00 and ordered the Plaintiff’s claim for diminution in value of the premises to be assessed on a day to be fixed. The counterclaim was dismissed with costs of both the claim and counterclaim to the Plaintiff, to be taxed if not agreed.’

The Defendants now seek leave to appeal my decision and a stay of execution pending appeal.

The applicable test is set out in Smith v Cosworth Casting Processes Limited [1997] 1 WLR 1538. Lord Woolf, MR stated the relevant principles as follows:

“ i) The court will only refuse leave if satisfied that applicant has no realistic prospect of succeeding on the appeal. The test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phase is because the use of the word “realistic” makes it clear that a fanciful prospect or an unrealistic argument is not sufficient.
ii) The court can grant the application even if it is not satisfied. There can be many reasons for granting leave even if the court is not satisfied that the appeal has any prospect of success. For example, the issue may be one which the court considers should in the public interest be examined by this court or, to be more specific, this court may take the view that the case raises an issue where the law requires clarifying.”

Part of the grounds of appeal deals with my finding of fact that water seeping from the tiles in the 1801 shower area was the source of water seeping into 1802. This finding was made by a process of inference, drawn when I found the 1801 shower area wall-tiles seeped water under the floor tiles, that it was more likely than not the shower area also seeped water under the wall-tiles onto the partition wall. When there was no evidence of any other source of water seepage, the water seepage under the shower area wall-tiles was more likely than not, the source of water seepage in the 1801 side of the partition wall.

The proper approach, when an appeal is against a Court’s finding of primary facts is set out in Ting Kwok Keung v Tam Dick Yuen & Ors [2002] 3 HKLRD at para. 32 to 46. Bokhary PJ’s judgment in Ting Kwok Keung can be summarized as follows :

(1) Appeals against findings of primary facts are approached very differently from appeals against findings of fact made by a process of inference;
(2) Where findings of facts are made by a process of inference, no question of credibility arises;
(3) An appellate court is universally reluctant to reject a finding of specific fact, particularly where the finding could be found on the credibility or bearing of a witness;
(4) On the other hand, an appellate court is customarily willing to form an independent opinion about the proper inference of fact, subject only to the weight which should be given to the opinion of the court below;
(5) Where the judgment turns on an issue of facts, the Court of Appeal must have regard to the nature of that issue of fact and to the advantage enjoyed by a trial judge who received evidence on such issue first-hand;
(6) The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received evidence first-hand, it is nevertheless satisfied that the trial judge’s conclusion on the facts is plainly wrong.

My finding of fact was based on a process of inference and the Court of Appeal is entitled to form its own opinion about the proper inference. Leave should therefore be granted.

RE EDMUND JAMES LAWSON QC HCMP1722/2007

2007-10-01T02:17:00.000+08:00

S’s words:-
Overseas Counsels to be approved to act for defendants in criminal cases are rare. The following case is an example. However, it tells us the truth that Hong Kong do not have much specialist criminal leading counsel who are family with the Takeovers Code or company takeovers in general.

--- quote from judgment ---

Date of Judgment : 24 September 2007

The Applicant seeks admission to appear for a defendant (whom I shall refer to simply as “L”) in a trial in the District Court commencing on 7 January 2008. The trial is fixed for 40 days although the Applicant’s solicitors (also the solicitors for L) are of the view that this may well prove to be conservative.

Although I have not been provided with much by way of material, it is reasonably clear that the issues likely to arise in the trial are factually, and perhaps legally also, difficult and complex. Regulatory issues will arise (the Stock Exchange of Hong Kong and the Securities and Futures Commission were said to have been defrauded) in the context, as far as L is concerned, of professional legal advisors. The amount of documentation is said to be voluminous. I am prepared to assume in the Applicant’s favour that the case is one of unusual difficulty and complexity, despite the submissions of Mr Robert Pang (for the Hong Kong Bar Association) that the only issue is really whether L was dishonest. Mr Ronny Tong SC (for the Applicant) points out that there are more legal issues than just dishonesty, such as that of non-economic loss.

The trial will take place in the District Court but this is neither here nor there.

However, one matter regarding the application initially caused me some concern. No evidence was provided over the aspect of the availability or non-availability of local leading counsel. Serious and genuine efforts to instruct local counsel have to be demonstrated or where it is said there are none, an explanation must be provided to the court justifying this : - see Re Flesch QC & Another [1999] 1 HKLRD 506 and Re Kosmin QC & Another [1999] 1 HKLRD 641. All this is to provide a complete picture to assist the court to make an informed decision, giving it some idea as to the size of available and suitable counsel, and the calibre of this pool : see Re McGregor QC [2003] 3 HKLRD 585, at pages 590-591, paragraphs 11(2)-11(3); Re Pannick QC, unreported, HCMP 1414/2006, 21 July 2006 at paragraph 9. The relevance of this is to enable the court to determine whether the counsel who seeks admission would be able to add a significant dimension to the case.

This morning, Mr Tong has informed me that there was a certain embarrassment for the Applicant’s solicitors to state on affidavit why certain Hong Kong leading counsel were unsuitable or unavailable. These reasons include the important fact that there are a very few specialist criminal leading counsel in Hong Kong who have a working and familiar knowledge of the Takeovers Code or company takeovers in general.

I am of the view that the available pool of local counsel for a case such as the present is necessarily small. There have been to date very few, if any, criminal cases in Hong Kong involving legal advisors in Hong Kong in the context of company takeovers. This is a rare type of case even in a jurisdiction such as the United Kingdom. It is not apparent that there are many Hong Kong leading counsel who would have extensive experience of this area of the law, although a few no doubt would be more than competent. The Applicant is an experienced practitioner in this field and he will no doubt add a significant dimension to the case.

In these circumstances, in my judgment, the Applicant should be approved, admitted and enrolled to practise as a barrister of the High Court of Hong Kong for the purpose of conducting DCCC 980/2006 in the District Court for and on behalf of L rendering advices in conferences in Hong Kong and appearing at the trial of L.

TANG KA HUNG ROBERT & TANG MEI SZE v. TANG TIM CHUE alias TANG TIM CHU HCAP 7/2006

2007-10-01T02:10:00.000+08:00

S’s words:-
The following case only concerns about the issue of costs for an aided person, whether he should be personally responsible to pay for such costs with legal aid certificate be granted in his favour.

It is the existing practice that unless the Court otherwise directs, a plaintiff cannot recover his costs from either the Director of Legal Aid or a defendant the costs so long as the defendant is legally aided.

The governing provisions are Sections 16(C) and 17(3) of the Legal Aid Ordinance and those two sections have been referred to in the judgment.

If the Defendant in this case insisted to defend the application of the Plaintiffs for striking out despite legal advice of his legal representatives, it may be an appropriate case for the Court to make an order as requested.

Such applications should not be used as oppressions to the aided persons.

However, a defendant should be properly advised of the risk whether he would be personally responsible to pay for the costs, whether his own costs of the costs of the other side.

--- quote from judgment ---

Date of written Reasons for Decision: 27 September 2007

The plaintiffs are the executors named in the last will dated 27 September 1991 made by their late father, Mr Tang Sum On. Mr Tang died on 7 November 2005 in Hong Kong.

The defendant is the son of Mr Tang and the half brother of the plaintiffs. On 18 November 2005 and 26 January 2006, the defendant entered a Caveat and an Appearance to Warning in HCCA002730/2005 to oppose to the will to be admitted to probate.

In March 2006, the plaintiffs commenced this probate action to have the Caveat withdrawn and for probate to be granted to them.

The defendant was privately represented until legal aid was granted to him. The Legal Aid Certificate was issued on 29 August 2006 and counsel was later assigned by the Director of Legal Aid.

By summons filed on 28 February 2007, the plaintiffs apply to strike out the Defence and Counterclaim on the basis that none of the matters raised in it affects the validity of the will or the plaintiffs’ entitlement to probate and also on the basis that they are devoid of merits.

Shortly before the hearing, the defendant’s solicitors indicated to the plaintiffs’ solicitors and the court that the striking out application would not be opposed. The arguments at the hearing were directed at the question of costs. Apart from asking that the costs of the caveat proceedings and this probate action be paid by the defendant, the plaintiffs further applied for an order under section 17(3) of the Legal Aid Ordinance, cap.91 (“LAO”) that the costs incurred by the plaintiffs after the grant of Legal Aid Certificate be paid by the defendant personally. The application was opposed by the defendant. After hearing arguments, I refused to make an order under section 17(3) of LAO and gave oral reasons for the decision.

On the question of entitlement to costs, there is no reason to depart from the normal rule of costs follow event so that the costs of the caveat proceedings and this probate action should be to the plaintiff against the defendant to be taxed if not agreed.

The plaintiff’s application for an order under section 17(3) of the LAO will impact on the defendant's personal liability for costs incurred after the Legal Aid Certificate was issued. This is because in the normal course, the plaintiffs' ability to recover costs or to enforce the costs order that I had made will be subject to section 16C of the LAO.

The effects of section 16(C) insofar as they are relevant to this action are that: (1) The defendant will be personally liable for the plaintiff’s costs in the Caveat proceedings and this probate action incurred prior to the grant of the Legal Aid Certificate: section 16C(2); and (2) The Director of Legal Aid will be responsible for the plaintiff’s costs occasioned by the Counterclaim: section 16C(1)(b)(ia). It follows that under section 16C, the plaintiffs cannot recover from either the Director or the defendant the costs of their claim in this probate action incurred after the issue of the Legal Aid Certificate.

Section 17(3) provides:
“Where it appears to a court or judge that an aided person has acted improperly in bringing or defending any legal proceedings or in the conduct of them, the court or judge may order the aided person to pay the costs of the Director and of the counsel or solicitor who acted for him or the costs of the other party, or the costs of the Director and such counsel and solicitor and such party.”

Section 17(3) of LAO is an exception to the general position governing an aided person's personal liability to costs, which is provided under section 16C. I do not believe that the spirit of section 17(3) is to expose an aided person to costs liability as a result of inapt advice given by his legal representatives. In this regard, I note in particular that section 17(3) not only deals with liability for costs of the aided person’s opponent, but also extends to liability for costs of the Director as well as costs of the aided person's own counsel and solicitors.

In the circumstances of this case, given what Mr Tang has informed the court, I do not feel that the discretion of the court should be exercised in making an order under section 17(3). Accordingly, I will not order the defendant to pay the plaintiff’s costs of the claim incurred after the issue of the Legal Aid Certificate.

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

2007-09-21T13:41:00.000+08:00

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

2007-09-20T19:16:00.000+08:00

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)

2007-09-16T22:57:00.000+08:00

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)

2007-09-16T21:05:00.000+08:00

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)

2007-09-16T20:49:00.000+08:00

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

2007-09-16T17:32:00.000+08:00

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

2007-09-06T13:54:00.000+08:00

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

2007-09-03T23:43:00.000+08:00

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

2007-09-03T23:17:00.000+08:00

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

2007-09-03T23:06:00.000+08:00

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。

香港特別行政區 v. 黃鑾堅HCMA664/2007

2007-08-22T14:10:00.000+08:00

S’s words:-

When I was reading the first paragraph of this judgment, I formed a bias view against the Appellant. However, his appeal was allowed. The Appellant had relied on “exceptional hardship” to convince the Court. I believe the Judge in this case had paid some sympathy to the Appellant, and in particular, the factor of his mother. In other words, we cannot say that the Magistrate gave a wrong decision.

--- quote from judgment ---

裁決日期： 2007年8月15日

上訴人於2005 年2 月6 日至2007 年1 月26 日期間因違例駕駛被記滿15 分。裁判官應運輸署的申請，按香港法例第 375 章《道路交通(違例駕駛記分)條例》第 8 條，下令取消上訴人的駕駛資格，為期6 個月。上訴人現就該項命令提出不服判處的上訴。

上訴人再次因記滿15 分而被停牌，除非裁判官或法庭認為有額外的情況，否則必須按照法例規定取消駕駛資格6 個月。上訴人所倚賴的就是「極度困苦」(exceptional hardship)的情況。

「極度困苦」並非指極端程度的困苦，而是指有異於一般或常軌的困苦(參閱香港特別行政區訴江德安 [1999] 1 HKC 399及HKSAR v. Chan Po Wah, Richard Oliver, HCMA193/2000)。

但本席認為上訴人母親的情況則不同。以他母親的情況而言，若上訴人能在短時間內回家作安撫，小則可避免濫用救護車服務，大則可避免其母自殺枉死。上訴人此一特別家庭情況是有異於一般或常軌的因素，構成「極度困苦」。

本席必須明言，上訴人母親的情況並非給予上訴人一「免死金牌」，以後不論在任何情況下也不會被停牌。若證據顯示上訴人明知故犯，不理母親此一特殊情況而繼續違規，法庭將不會再考慮此「極度困苦」理由。

HKSAR v. CHAN CHUN MAN CACC 57/2007

2007-08-17T00:25:00.001+08:00

S’s words:-

Stanley C K Siu won a case through the instructions of Legal Aid Department.
The guidelines of trafficking had again been considered.
The Appellant got an imprisonment of 66 months (reduced from 76 months).

Combined Approach is applicable in this case. However, the District Court Judge adopted an excessive starting point for the sentencing.

--- quote from judgment ---

宣判日期：2007 年 8 月 2 日

上訴申請人陳俊文（以下稱“上訴人”）於2007年2月2日在高等法院原訟法庭潘敏琦暫委法官席前承認一項販運危險藥物罪，被判入獄76個月。

法官判刑時正確地援引香港特別行政區訴葉偉賢[2004] 3 HKC 367一案，即如果案件涉及販運多過一種毒品，一般來說“combined approach”（即以組合量刑方法）處理是適合的。這量刑方法是用毒性最嚴重的毒品作為量刑基準，然後再把其他同時搜出的毒品適當地放在考慮之列。法官判刑時說本案主要的毒品是冰毒，而就該冰毒法官判上訴人監禁8年半，再因其他毒品故把刑期調高至9年半，經上訴人認罪扣減三份一後，判刑76個月。

代表上訴人的蕭朝堅大律師陳詞說，法官就販運17.77克冰毒所採納的8年半起點明顯過重，因為案例顯示販運冰毒10克至70克刑期應為7年至10年，既然本案的冰毒為17.77克，法官是應該採納一個較接近7年的量刑基準。

本庭接納蕭大律師的陳詞。本庭認為考慮到本案冰毒的重量，適合的刑期為7年3個月，但鑑於其餘毒品，法官把刑期調高一年是適合的。

基於以上理由，本庭給予上訴人許可上訴，視本申請為正式上訴，並裁定上訴得直，刑期基準應為8年3個月（即99個月），上訴人認罪扣減三份一，則刑期改為66個月。

HKSAR v. CATACUTAN, PRESLYN-SAGA HCMA 31/2007

2007-08-16T01:57:00.000+08:00

S’s words:-

A simple case of theft with domestic helper in breach of trust for stealing the properties of her employer. No one would pay attention to this case if the employer was not a famous entertainer Mr. Jacky Cheung.
Although the stolen items were not of any substantial value, the breach of trust element would justify an immediate custodial sentence against a first offender, for example 3 months’ imprisonment in this case. In no doubt, my view is that the original 6 months imprisonment was quite excessive.

--- quote from judgment ---

The Appellant is a woman of previous good character in her early 30s. She was convicted after trial before Winston Leung, Esq. in the Magistrate’s Court at Eastern on two charges of theft. The Magistrate sentenced her to 6 months’ imprisonment by way of concurrent terms of that length on each charge. She now appeals against conviction and sentence.

At the time of the offences of which she was convicted, the Appellant worked as a domestic helper at the home of a well-known entertainer, Mr Cheung Hok-yau. The offences were charged as having been committed at the premises where the Appellant worked. Charge 1 is of stealing a personal letter addressed to Mr Cheung and therefore his property. Charge 2 is of stealing three photographs which were Mr Cheung’s property. The charges did not state the value of that letter or those photographs. But the Magistrate was of the view that they could be of high commercial value given what he called Mr Cheung’s “celebrity status”.

I find no basis on which to disturb either of these convictions, and the appeal against conviction is dismissed.

So I turn to the appeal against sentence. The Magistrate was right to bear in mind that theft by a domestic helper from an employer at his home involves a betrayal of trust.

What does trouble me, however, are the Magistrate’s statements that the Appellant “had all the trappings of a spy in Mr Cheung’s household”; that her conduct is “all the more vicious in that she had the intention of selling the privacy of her employer for money”; and that for the exploitation of an employer’s “celebrity status” the “deterrent must be harsher”.

As it seems to me, the detriment to the employer and the gain to the domestic helper in a case like this might both be considerably less than when the theft is of, for example, a large sum of cash stolen from an employer of relatively modest means.

Depriving someone of timely receipt of a letter can cause them considerable loss and inconvenience. But there is no evidence as to what harm arose out of the theft of the letter to Mr Cheung in the present case. All the items stolen could have some commercial value arising out of Mr Cheung’s position as a well-known entertainer. But there is no evidence as to the value or range of value of any of the items concerned.

This case cannot be regarded as trivial. Even so, I am left with the impression that the Magistrate formed a considerably exaggerated view of the Appellant’s role and the harm she caused. It is impossible to say what lesser sentence he would have passed if he had not, in his anxiety to do the right thing, fallen into that error. Doing the best I can in all the circumstances, I allow the appeal against sentence so as to cut each concurrent term by half, so that the Appellant’s total sentence is reduced from 6 months’ imprisonment to 3 months’ imprisonment.

香港特別行政區 v. AENGYONG, SOMCHAI HCMA 1194/2006

2007-08-16T01:43:00.000+08:00

S’s words:-

It is too embarrassing for the Counsel for the Appellant (if he was the same Counsel in Shatin Magistracy on behalf of the Appellant) to attend High Court on behalf of the Appellant in this case.
The incompetence of a defence counsel/solicitor is a good ground of appeal (but very embarrassing in fact). That probably relates to the issue of justice.
Thus, if a defence counsel/solicitor adopted a tactics not to raise questions in certain area, that would not be a ground of appeal unless one can suggest that such also relates to the incompetence of a defence counsel/solicitor.

--- quote from judgment ---

上訴人於裁判法院經審訊後，被裁定一項違反逗留條件罪罪名成立，現上訴人不服定罪，提出上訴。而在上訴聆訊當日，本席已判上訴人上訴得直及案件需發還裁判法院重審。

代表上訴人的梁大律師提出數點上訴理由，但本席認爲只有一點是有理據的。梁大律師陳詞說，原審時在控方舉證完畢後，辯方大律師曾向裁判法官申請重召控方證人作進一步盤問，指進一步盤問與上訴人如何替其他顧客清理桌子這案中爭議點相關。

原審裁判法官不批准重召控方證人作進一步盤問，卻沒有説明理由，這便引出秉行公正未能有目共睹的這番陳詞。

梁大律師陳詞說，他很想控方證人可被重召作進一步盤問，最重要的原因是上訴人被捕後，控方證人曾各自在自己的記事冊裏記下當晚事發經過。他看過有關記事冊，發覺内容一模一樣。

很明顯，控方第一和第二證人的證供是否可信可靠是案中的爭議點。如果記事冊内容真的一模一樣，很明顯她們應該就有關事宜接受盤問，而既然辯方說上訴人是被警員誣陷的，這個説不定對辯方會有幫助。

這是一宗簡單的案件，而從謄本清楚可見，梁大律師在處理這宗案件方面上準備不足。如果辯方大律師妥為準備的話，他定必明白控方證人是否可信在案中至爲重要，而他因此應就有關記事冊内容及她們證供矛盾的地方盤問她們。很可惜當時他沒有這樣做，而上訴人的確因爲代表大律師原審時準備不足而得不到公平審訊。

因此，在這種情況下，縱使本席極不情願，也不得不判上訴得直。但本席必須強調，在許多案件裏，大律師爲了戰略或策略上的理由，蓄意不就案中某些方面作出盤問，在這個情況下，被定罪的上訴人是不能以此作爲上訴理由的。很不幸，本案純粹因爲大律師不稱職才弄至這個不幸的境地。

HKSAR v. CHAN KIN KWOK & POON CHI YUNG HCMA235/2007

2007-08-10T23:39:00.000+08:00

S’s words:

For this case, the reason why the appeal against conviction being dismissed is not so interesting.

For act of foolish, the Court would be free to impose a more lenient sentence.

Without threat or oppression, 6 months’ imprisonment as starting point is appropriate.

With aggravating fact being a police officer, a higher starting point of 8 months (9 months originally but 1 month was discounted) is appropriate.

In other words, if element of threat or oppression is present, 12 months’ imprisonment starting point should be expected.

--- quote from judgment ---

Both appellants were convicted after trial at Shatin Magistracy of separate offences of professing to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151. Each was sentenced to 12 months’ imprisonment. The 1st appellant appeals both his conviction and sentence. The 2nd appellant appeals his sentence only. ... and the 1st appellant’s appeal against conviction is dismissed.

Both appellants appeal their sentence of 12 months’ imprisonment as being manifestly excessive. I agree. That is a sentence commensurate with the claim being made in circumstances of threat or oppression. Here the circumstances of both claims were relatively more benign. The claims were made by both the 1st and the 2nd appellants in a social setting amongst other persons who were apparently either themselves triads or associates of triads.

The claims were made not to threaten or coerce but to identify the purported status of the claimant. Both the 1st and the 2nd appellants, it is apparent, made their claims during casual and even friendly conversation with persons they no doubt regarded as associates or at least as like minded individuals.

A claim of triad membership can involve various and sometimes subtle degrees of culpability. For that reason it has long been recognised there are no “tariffs” involved in sentencing. Culpability can range, at one end of the scale from the foolish, for example, a plainly unthreatening claim of membership made on the spur of the moment during an argument : see HKSAR v. Khan Umer, HCMA932/2001, to the terrifying where, for example, an individual may be forced to give up his property or livelihood in response to a threat accompanying the claim to membership : see HKSAR v. Hung Shing Chung & Anor, HCMA790/2005. There are a multitude of circumstances where claims may be made falling between those extremes.

In my view an appropriate starting point of sentence for the 1st appellant would have been six months’ imprisonment. The aggravating factor of the 1st appellant’s membership of the Hong Kong Police Force enhances the starting point of sentence to nine months’ imprisonment. I appreciate the 1st appellant has lost a 21-year pension as a result of this offence and that, together with his years of service in the police force as a person of apparent unblemished record, allows him a one month discount from the starting point. Accordingly the sentence of 12 months’ imprisonment imposed by the magistrate is set aside and substituted with a sentence of eight months’ imprisonment.

I take into account the 2nd appellant has recently suffered from bowel cancer and that it is at risk of recurring. But I do not regard the past illness of the appellant to be a material mitigating factor. He is currently clear of cancer. There is no other mitigation. Accordingly the magistrate’s sentence of 12 months’ imprisonment is set aside and substituted with a sentence of six months’ imprisonment.

NG TIM YIP KEVIN v. CHAN HO KIN (formerly trading as KENNY’S ENGINEERING COMPANY) HCPI 948/2005

2007-08-10T22:57:00.000+08:00

S’s words:-

Another plaintiff has failed to establish a claim against his former employer. One of the defence of the Defendant was that the Plainitiff was not his employee. That “standard” and “usual” defence was not accepted by the Court, not surprisingly.

However, if the Defendant did agree the Plaintiff an employee at the very first beginning, the Defendant would have his insurers (and the solicitors of the insurers) to assist his case. Thus, is it always preferable to suggest a plainitiff not his/her employee? It is too difficult to set up a formula, and also, in many occasions the defendant’s insurers would draw their own conclusions leaving the disappointing employer to consider arbitration.

Never mind. The Honourable Court in this action did conclude that the works assigned to the Plaintiff was a simple task and the accident was caused due to the fact that the Plaintiff (and his colleague) failed to follow the instructions of the Defendant. Therefore, the Plaintiff’s claim was dismissed.

--- quote from judgment ---

It is the plaintiff’s case that he started working for the defendant in about September 2002 as an apprentice in repair and maintenance of water plumbing and electrical work. The plaintiff was only 17 at the time.

On the day of the accident, the plaintiff, still an apprentice, was assigned by the defendant to dismantle drainage pipes at the Site. That work of dismantling was carried out by the plaintiff working together with another apprentice of the defendant by the name of Ah Cheong.

At about 5.30 p.m. when the two of them had dismantled a section of the drainage pipe which weighed about 100 lbs, and both of them were carrying the dismantled pipe, one at each end, the colleague of the plaintiff slipped letting fall his end of the dismantled pipe. As a result, and because the plaintiff could not get away in time, the plaintiff’s right hand was crushed by the dismantled pipe thereby causing very serious injuries to the plaintiff’s right hand and fingers.

Counsel for the plaintiff, in his opening, based the negligence of the defendant to be as follows :

(a) insufficient manpower allocated by the defendant to carry the heavy dismantled pipe;
(b) failure of the defendant to be present and to properly supervise the work of two inexperienced apprentice;
(c) failure to give proper training and instructions to the plaintiff and his colleague;
(d) failure to provide a proper platform for the work of dismantling; and
(e) failure to provide the proper tools or equipment to properly transport the dismantled pipe.

In so far as the working relationship between the plaintiff and the defendant goes, I have no difficulty accepting the plaintiff’s evidence that he was the employee of the defendant, even taking into account the terms of the employment contract between them.

From the findings above, there can be no doubt but that the plaintiff was an employee of the defendant and therefore at the time of the accident, the defendant was under the duty to the plaintiff to act as an employer.

Given the findings above, there was no good reason for the plaintiff to have ignored the instructions of the defendant to cut the pipe into smaller pieces or sections for dismantling, I find this accident to have come about because of the failure of the plaintiff to follow the instructions that he was given by the defendant.

The work involved in this case was not work which involved any great complexity. It has never been challenged by the plaintiff that the defendant had given them full instructions as to how to cut and dismantle the water pipe.

For the reasons given, I do not find any negligence on the part of the defendant. The accident came about only because of the plaintiff’s failure to follow the instructions given to him to cut the pipe into manageable sections.

Accordingly, the plaintiff’s claim is dismissed.

S v. Y FCMC 8775 / 1998

2007-07-23T23:50:00.000+08:00

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

2007-07-23T00:44:00.000+08:00

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

2007-07-23T00:03:00.000+08:00

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

2007-07-18T02:04:00.000+08:00

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

2007-07-18T01:08:00.000+08:00

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

2007-07-14T00:19:00.000+08:00

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

2007-07-13T23:55:00.000+08:00

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

2007-07-13T23:21:00.000+08:00

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)

2007-07-12T00:27:00.000+08:00

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

2007-07-10T02:03:00.000+08:00

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.

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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

2007-07-10T01:29:00.000+08:00

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

2007-07-08T02:49:00.000+08:00

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

2007-07-06T23:54:00.000+08:00

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

2007-07-06T23:16:00.000+08:00

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

2007-07-06T23:05:00.000+08:00

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

2007-07-05T23:23:00.000+08:00

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

2007-07-05T22:55:00.000+08:00

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

2007-07-05T01:24:00.000+08:00

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

2007-07-04T23:14:00.000+08:00

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

2007-07-04T01:44:00.000+08:00

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

2007-07-04T01:43:00.001+08:00

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

2007-07-04T01:03:00.000+08:00

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.