XCHRX WONG HIN PUI v. MOK YING KIT AND ANOTHER

HCPI No. 763 of 1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 763 OF 1997

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J U D G M E N T

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1. The Plaintiff in this action was seriously injured when he was riding a bicycle at about 1800 hours on the 18th January 1995 along Tai Wo Road. He was struck, he alleges, by a light goods vehicle bearing registration plates FS488, which drove into him from behind. The vehicle did not stop.

2. Police inquiries eventually traced the vehicle to a man named Mok Ying Kit on the 8th May 1995 at Fanling. He was told the vehicle was believed to be carrying a false licence. Mok said he had borrowed the vehicle from a friend, "Ah Keung" the previous evening. He had no knowledge concerning the licence.

3. Mok later in an interview went on to state that he had known "Ah Keung" since 1993, that he lived in Shenzhen, but that he had no means of contacting "Ah Keung", though the latter phoned him on occasions to see if work was available. He knew "Ah Keung" had owned a vehicle for about one year. They arranged to meet on the 7th May in a telephone conversation in which "Ah Keung" asked if there was any job for him; Mok said there was. The meeting took place at 2030 hours that night when "Ah Keung" handed over the vehicle and then returned to the Mainland. He was to telephone Mok when he came back to Hong Kong. The story has all the elements of "a likely tale".

4. Just over a fortnight later (on 23rd May), Mok was seen again by the Police. He was told vehicle GB6121 had been stolen between 25th and 26th August 1994. At this stage it must have become apparent to the Police that "FS488" was in fact GB6121. It had belonged to Mr. Lau Wai Man who had reported it stolen at or about that time. Mok's reply was "I say nothing". A few minutes later it was put to him that he was in fact the driver on the 18th January 1995 when the Plaintiff was knocked down, and that he drove off without stopping. Again he said "I say nothing".

5. In view of his earlier story as to how and when he came to be in possession of the vehicle the two "No comment" reactions to the subsequent allegations are capable of bearing a clear inference. If he had nothing to hide the answers could so easily have been an unequivocal "no". Nearly three months later he was interviewed again with the allegation that he was driving "FS488" when it knocked down the Plaintiff. On this occasion he denied the allegation.

6. The Plaintiff commenced his action against Mok as the first Defendant and against Lau Wai Man as the second Defendant in the alternative. He has discontinued against the second Defendant, who was the original owner, on the agreed basis that the vehicle had been stolen and that he never recovered possession of the vehicle and was not driving it on the night of the accident.

7. The action therefore proceeds against the person in whose possession the vehicle was found some 31/2 months later. He is represented by Solicitors who happen also to be instructed by the original insurers of the vehicle when it was in Lau Wai Man's possession and control. These insurers are no doubt funding the cost of the defence. The former insurers are contending that they are no longer "insurers concerned". I am not concerned with that issue, if it is one. Mr. Mohan Bharwaney in his argument before me has contended that the insurers' decision to bear the costs of the defence of the action (against Mok) offends public policy and is an example of maintenance and champerty. At present the insurance position and the responsibility, if any, of the M.I.B. is unclear. These proceedings do not involve any requirement to determine those issues.

8. The AIU (the insurers of Mr. Lau Wai Man, the original owner of the vehicle) deny that they are the 'insurers concerned' on the basis that there was no insurable interest, the vehicle keys and documents having been transferred to AIU approximately one week before the accident occurred. However, the M.I.B.'s stance is that for a number of reasons, which I do not need to identify, AIU, remains the 'insurer concerned'.

9. The Plaintiff's contentions are also in the alternative; she is entitled to judgment against the first Defendant, with a view to enforcing that judgment against AIU as insurer concerned, or she fails in her case against the first Defendant there being an unknown or untraced driver of the vehicle which struck her. The judgment after trial will make one finding or the other, subject to any matter of contributory negligence.

10. In all these circumstances I see no offence to public policy in the insurance company (concerned or not) being prepared to meet the Defendant's costs in defending a claim where the basic issues have to be determined as a prerequisite to any resolution of the issues between the AIU and the M.I.B. I have considered the authorities referred to by Mr. Bharwaney. The problem he faces is that AIU clearly has a legitimate interest in the proceedings. In fact I would go so far as to say that there is a public interest in such proceedings being fully and properly contested. What proceedings the Plaintiff may or may not take after this action has been decided is not the Court's concern yet, and I do not need to apply my mind to that aspect. Buckley L.J. in British Cash and Parcel Conveyors Ltd. v. Lamson Store Service Co. Ltd. 1908. K.B. at 1021 said:

"It is not maintenance to uphold a party in litigation in whose result the party accused of maintenance has a real and bona fide interest."

Given the circumstances of this case - the first Defendant is "prima facie" a handler of stolen property; and certainly has no legitimate interest in the motor vehicle concerned, and could not himself benefit from any insurance cover, - it is inconceivable in my view, that AIU could be regarded as acting unlawfully. Danckwerts L.J. in Martell v. Consett Iron Co. 1955 1. Ch. at p. 386 in relation to maintenance said:

"A doctrine which was evolved to deal with cases of oppression should not be allowed to become an instrument of oppression .....

Support of legal proceedings based on a bona fide community of pecuniary interest or religion or principles or problems, is quite different and .....

the law would be wrong and oppressive if such support were to be treated as a crime or a civil wrong. But I do not believe that the law is in that condition."

He cited Lynskey J.'s comments on the Legal Aid Acts which can be seen in its full, and in my view significant, context in Baker v. Jones 1954 1. W.L.R. at p. 1011:

"In these days, however, of insurance policies giving an indemnity against both damages and costs to wrong doers, trade unions whose rules provide for paying the legal costs of their members, and the Legal Aid Acts, maintenance is not now regarded with the same repugnance as it was by the old common law."

11. We do not need reminding these days of the approved existence in some common law jurisdictions of actions funded on a contingency fee basis, a far more questionable practice in the context of the old common law practices of maintenance and champerty. We do however need to remind ourselves of the purpose of the AIU funding the defence: to require the Plaintiff to prove his case, to determine whether the Defendant or some untraced driver was at the controls of the vehicle, and whether the Plaintiff was responsible to any extent for the collision. These are not issues giving rise to the spectre of unlawful participation in an action, regardless of whether the tort of maintenance has been abolished in Hong Kong. The idea of injunctive relief against the firm or an individual therein restraining it or him from acting is unacceptable in the context of this case. There is therefore, no substance in the Plaintiff's argument against AIU's involvement.

12. The second purpose of this application is to join the M.I.B. as a Defendant to the action with a view to obtaining a judgment against the M.I.B. either in addition to a judgment against the first Defendant or as an alternative to such.

13. The only M.I.B. agreement in existence in Hong Kong is that of the 1st February 1981 entitled the Domestic Agreement. There is regrettably no M.I.B. agreement relating to the situation where the driver of the vehicle is unidentified/untraced. This is therefore unlike the position in the United Kingdom.

14. Mr. Bharwaney seeks to fill this gap relying upon the English Court of Appeal decision in Gurtner v. Circuit 1968 2. Q.B. p. 587, made before an Untraced Driver's M.I.B. Agreement came into existence in the United Kingdom. A quick review of the facts in the headnote of the report of that case illustrates Mr. Bharwaney's difficulties and the weakness of his argument. The Defendant had been identified. Indeed the Police had interviewed him, seen his Insurance Certificate but omitted to note his Insurance Company. He emigrated to Canada and could not be traced for service of the writ. The M.I.B. were contacted, tried to assist but was unable to do so. The Plaintiff obtained leave for substituted service upon the insurance company which had on behalf of the M.I.B. carried out investigations to trace the Defendant. The M.I.B. then applied to be joined as a Defendant as it considered it might be liable to satisfy any judgment obtained, by reason of its 1946 Agreement with the Minister of Transport. It also wanted to set aside certain interlocutory matters and to argue whether the Plaintiff in that action had complied with its obligations under the agreement. The Court of Appeal reversed the Single Judge's decision and restored that of the Master. The judgment of Denning M.R. at p. 595 to 596 covers succinctly (as one had come to expect) the issues and the just and legal way of resolving them. This case is not authority for Mr. Bharwaney's proposition. The situation with which it dealt is wholly removed from that in this case. The M.I.B. cannot be brought into the proceedings at the whim of the Plaintiff without any proper basis. The Court is not to be used as a cudgel to take a partisan stance to force an outcome for which there is at present no legal basis. This is not a case in which the M.I.B. is likely to want to participate of its own volition. The basic issues, which may never concern it, will in any event be covered by the representation available to the Defendant. The proper course for this action to take is for the question of liability to be resolved as soon as possible. Depending on the outcome the AIU and/or the M.I.B. can consider its stance. The Plaintiff can also consider his position. Just as the Minister of Transport was the only party entitled to enforce the contract with the M.I.B. in the United Kingdom so the authorised insurers who were parties to the M.I.B. agreement in Hong Kong and the Government of Hong Kong who made authorised insurers bound by the provisions of the agreement as a condition of their being authorised, are the only parties entitled to bring an action to enforce the contract. In the event we are some stages removed from that potential state of affairs. The Plaintiff has no cause of action against the M.I.B.

15. Clarke v. Vedel 1979 R.T.R. 26 a decision by a strong Court of Appeal in England, was made against the background of the existence of both M.I.B. agreements (in the United Kingdom), but was concerned with the position in respect of the Untraced Drivers Agreement. Without going into the circumstances of that case it is clear that it lends no support to Mr. Bharwaney's argument.

16. Accordingly the application for joinder is misconceived and must fail. The action must proceed, as presently constituted, to judgment. I have been asked by the Defendant to consider a split trial. Although I appreciate the arguments that the Defendant's solicitors will incur substantial costs in preparing the quantum issue when they may not have to meet any judgment; - in short, where the Plaintiff fails on liability, - I think there is another factor to consider and that is the cost of a second hearing on quantum. There is also this factor. The Defendants do not have to obtain their own battery of medical advisers. They can sensibly agree the reports of the Plaintiff's medical experts thereby keeping the time and cost of this aspect to a bare minimum.

17. I will reserve the question of costs. On the face of it the Defendants are entitled to their costs of this hearing but given the complexities of this case, it may be possible to make a fairer decision at a later stage when finality has been reached. I leave open until that date any argument as to costs.