COOLPOINT VENTILATION EQUIPMENT LTD v. YAU CHEUNG TRANSPORTATION CO LTD

DCCJ3425/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3425 OF 2004

J U D G M E N T

1.  This is the hearing of an assessment of damages pursuant to an interlocutory and final judgment dated 20 September 2004.

The Facts

2.  On or about 15 September 2003, the plaintiff stored in the defendant’s warehouse, or stored as bailee for reward, inter alia, 144 pieces of Maneurop scroll compressors, of which 72 pieces are model No. “SM148-4VAM”, and the remaining 72 pieces is Model No. “SM161-4VAM”.  The total cost of the said compressors amounted to US$69,840, which is equivalent to HK$544,752.  At a time unknown to the plaintiff, and without knowledge and authority of the plaintiff, the defendant removed and transported, or permitted, or caused to be removed and transported, the said compressors from the defendant’s said warehouse.

3.  On or about 4 June 2004, the plaintiff demanded for delivery of the said compressors but was informed by the defendant that the goods had been transported to mainland China in March 2004, and that the same compressors had been seized by the Customs and Excise Bureau of the People’s Republic of China.

4.  The plaintiff sued for delivery up of the compressors, or, alternatively, for the sum of US$69,840, or its Hong Kong dollars equivalent at HK$544,752, and damages consequent upon the wrongful interference or detention or conversion of the said compressors by the defendant.

5.  In the assessment of damages the plaintiff’s counsel submits that the plaintiff seeks damages for loss upon the wrongful interference or detention of the said compressors by the defendant pursuant to the second limb of the judgment obtained.

6.  As regards the measure of damages, the learned author of McGregor on Damages, 17th edition, said, at paragraph 33-026, at page 1072, that “the normal measure of damages or conversion is the market value of the goods converted”.  As regards the time at which the value of the goods is to be taken, paragraph 33-011 of McGregor on Damages states that “there is a good deal of authority for taking the time of the conversion as the time at which the market value is to be assessed.”  However, in paragraph 33-012 the learned author states that:

“On the other hand, Abbott CJ in Greening v Wilkinson(?), an action for conversion of cotton warrants ... on a rising market, he ruled that the jury ‘may give the value at the time of the conversion, or at any subsequent time in their discretion, because the plaintiff might have had a good opportunity of selling the goods if they had not been detained.’

At paragraph 33-013 the learned author states:

“It is submitted that the soundest approach is to start off with a value at the time of conversion as a prima facie measure; this is in accord with the general principle that damages are to be assessed as at the date of the wrong.  The effect upon this measure of damages of increases or decreases in the value between wrong and judgment must then be considered.  Increases must be divided into those that would have happened without the intervention by the defendant, i.e. rises in the market value, and those that are due to acts done or expenses incurred by the defendant in relation to the goods.”

7.  The plaintiff’s counsel also referred to the case of Rosenthal v Alderton, which is the case where the date of judgment was taken as the date for valuation of loss.

8.  The plaintiff’s witness, Leung Wan-ying, gave evidence.  She stated that the market value of the compressors has been rising since the date of the conversion of the said compressors.  She stated that on 11 October 2004 she wrote to the mainland branch of the supplier of the said compressors, i.e. the Danfoss Group in Tianjin, to obtain a quotation for Model SM148-4VAM and Model SM161-4VAM compressors.  The response from Mr Peter Zhou of Danfoss (Tianjin) Company Limited, Guangzhou Office, replied to state that the quotation for Model SM148-4VAM CIF Hong Kong is U$449 per unit and for SM161-4VAM at US$588 per unit.  These prices exceed those at the time of purchase of the said compressors that have been lost.  For 72 items of Model SM148-4VAM amounts to US$32,328 and 72 pieces of Model SM161-4VAM amounts to US$32,336, making a total of US$74,664.

9.  The defendant’s solicitor states that the photocopy email response from Mr Peter Zhou of the Guangzhou branch office of the Danfoss Group is hearsay evidence and no weight should be placed on it.  However, the witness herself refers to her own email to Mr Peter Zhou and the response that was obtained from him, and there is no dispute that her evidence is credible.  I accept her evidence and place weight on this evidence.  The witness states that the said compressors were specially made for the plaintiff according to their specifications, and hence, she did not obtain quotations of other brands of similar compressors.  I accept her evidence on this.

10.  In relation to the date of value for the purposes of assessment, I am of the view that as the market price was rising, and as the plaintiff was not able to sell or use the said compressors in the rising market because of the conversion, I am of the view that this is a case where the time at which value is to be taken is at date of judgment for the purpose of assessment of damages. 

11.  I take the value according to the quotation from Mr Peter Zhou, as disclosed at page 22 of the bundle of documents.  The total value of the two models of the said compressors amount to US$74,664; at exchange rate of 7.8, this amounts to HK$582,379.  I therefore assess damages in the sum of HK$582,379 together with interest thereon, from date of writ to date of judgment at judgment rate and thereafter until payment at judgment rate.  I grant an order for costs of the assessment to the plaintiff, to be taxed, if not agreed with certificate for counsel.