SECRETARY FOR JUSTICE v. YUEN WAI SHAN AND ANOTHER

DCMP 2261/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2261 OF 2011

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DECISION

1.  On 23^rd November 2011, I handed down my Judgment (“Judgment”) in respect of the interpleader summons herein and ordered that the gold items defined in my Judgment be returned to the 1^st Claimant, Ms. Yuen Wai Shan (“Yuen”) without any payment by Yuen to Shun Fat Pawn Shop, the 2^nd Claimant herein (“Shun Fat”).

2.  This is an application by Shun Fat for leave to appeal against the Judgment to the Court of Appeal.

3.  The facts of this matter were already set out in the Judgment and I do not propose to repeat them here.

4.  Mr. Chain, Counsel for Shun Fat, says Shun Fat relies on both limbs of section 63A(2) of the District Court Ordinance in seeking leave to appeal. 

5.  On the first limb, Mr. Chain is adamant in saying that Shun Fat would have a reasonable prospect of success or more than fanciful chance of success in the intended appeal. He submits that I was wrong in concluding there was no fault or carelessness on the part of Yuen. Yuen, he says, was at fault because (1) Sorreda as her maid had full access to her home; (2) but all that she had done to secure her valuables including the gold items was by a 3-digit combination lock; and (3) she failed to open her Chinese-style jewellery box to give a cursory check on her valuables for a year or so. And had she done so, the gold items would be put in the police’s stolen properties list so that Shun Fat would be able to spot that the gold items were stolen items earlier.

6.  On the second limb, Mr. Chain points out that this is probably the first case on section 23 of Pawnbrokers Ordinance, Cap. 166 (“the Ordinance”) which involves items stolen by a foreign domestic helper and the case has attracted widespread news coverage. Given the large number of foreign domestic helpers in Hong Kong, it would be of a matter of public interest for the Court of Appeal to examine what an owner and a pawnbroker have to do respectively in order to discharge their respective duties under section 23 of the Ordinance.

7.  Mr. Chain confirms, quite rightly so in my view, that he will drop the argument stated in para. 2(b) of the summons for leave to appeal, namely points of public interest are involved as to whether the provisions of the Race Discrimination Ordinance, Cap. 602 have been triggered or violated.

8.  There is no challenge on the finding of facts in the Judgment by Shun Fat. The challenge now is, as Mr. Chain terms it, on the drawing of inferences and application of law.

9.  I should start by saying that the facts of this case is set against the background that Sorreda, Yuen’s maid, had been working for Yuen for a consecutive of 9 years when the stealing was found out. During those 9 years, there was nothing phenomenal in Sorreda’s integrity. As I have said in the Judgment, some degree of trust, understandably, must have been established between Yuen and Sorreda.

10.  Allegation was made that Yuen was at fault for not opening the jewellery box for a year or so. Through Mr. Chain has tried his best to put forward his argument before me and with respect to Mr. Chain, I do not find this act of Yuen unreasonable, given the jewellery box contained mainly wedding gifts given away to her dated back to 1996. In the circumstances, I fail to see why the measure adopted by Yuen was insufficient against the background of this case. I cannot see there is any error in the conclusion of the Judgment. That said, I cannot see there is any reasonable prospect of success in Shun Fat’s appeal.

11.  As to Mr. Chain’s argument on the second limb, I would say this. The fact that there are a large number of foreign domestic helpers in Hong Kong does not necessary trigger the “public interest” argument, for not all foreign domestic helpers steal from their employers.  The fact that this case attracts widespread media coverage is certainly a non-pointer in any leave to appeal application.

12.  In the circumstances, I will, despite Mr. Chains’ able argument, dismiss Shun Fat’s application for leave to appeal.

13.  I shall make a costs nisi to the effect that Yuen do have the costs of this application. If neither party applies to vary the costs order nisi within 14 days from today, the said costs order nisi will be made absolute. In such an event, the following directions will then apply:

(1) Yuen do within 7 days from the date of the costs order absolute lodge and serve statement of costs, if any;

(2) Shun Fat do within 7 days thereafter lodge and serve summary of objections;

(3) In lieu of agreement on the amount of costs between parties, Yuen do within 21 days from the date of the costs order absolute fix a date with the Listing Clerk for summary assessment of costs to be heard before me in chambers (open to the public) with 30 minutes reserved.

14.  Lastly, Shun Fat shall serve this Order on the Secretary for Justice within 7 days upon sealing of this Order.

15.  There remains one last thing for me to do. I have, on the enquiry by letter of 13^th December 2011 from the solicitors acting for the Secretary for Justice (on behalf of the Commissioner of Police), directed earlier that the police should keep possession of the gold items pending the hearing of today’s application by Shun Fat or further order from this Court. Given the conclusion I have reached today, I see no reason why the return of the gold items to Yuen should be further held up. Accordingly, I will direct my clerk to inform the solicitors acting for the Secretary for Justice that the gold items shall be released to Yuen forthwith (neither Shun Fat or Yuen has any objection to this).