LAW WAI v. ATTORNEY GENERAL AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Fuad, V.-P.:

1. This is an appeal from the decision of Judge Wesley Wong dated 18th July 1990 given in the District Court when he was exercising jurisdiction under s.23 of the Pawnbrokers Ordinance, Cap. 166.

2. The background of the matter is as follows. A citizen of Hong Kong, Mr. Law Wai, bought a gold Rolex watch on 15th January 1987 for $61,000. The strap was also made of gold. The watch was set with 12 diamonds and it was what everyone called of "boys size". At about 11 a.m. on Saturday 1st April 1989 Mr. Law was robbed by three men when using a lift in an industrial building in Cheung Sha Wan, Kowloon. He was beaten about the head and rendered unconscious. He later discovered that he had lost all the valuables he had with him, as well as all his credit cards, his identification card, his driving licence, his portable telephone and so on. He made an immediate report to the police about the robbery, listing what had been stolen from him.

3. Sometime in the afternoon of the same day, 1st April 1989, a Rolex watch was pawned at the Tax Fat Pawnshop by a woman who produced an identity card with a serial number which was noted down in the pawnbroker's register. She gave her name as Madam Yip Chui Ping. The employee of the pawnshop, Mr. Lu Wai Lam, gave the woman a total of $48,000 made up as follows: $25,000 for the watch itself and $23,000 for the gold watch strap.

4. The police ascertained the serial number of Mr. Law's Rolex watch and circulated particulars about it to all pawnbrokers. The Tak Fat Pawnshop informed the police that they had taken in that particular watch. This was on 4th April, the date upon which the pawnshop had received the latest stolen property list from the police.

5. When the police went into the matter further, they discovered that the real Madam Yip Chui Ping had had her identity card stolen from her in a robbery on 22nd February 1989. They seized the watch for evidential purposes in May 1989 and later a man was arrested on suspicion of committing the robbery in the lift when Mr. Law's watch was stolen from him. On l6th January the man pleaded guilty to that offence in the District Court and was sentenced to imprisonment. The court did not make a restitution order.

6. The true owner of the watch and the pawnshop were not able to reach agreement as to how the matter should be resolved and so, on behalf of the police, the Attorney General sought relief by way of interpleader in the District Court.

7. The judge had before him an affirmation made by the investigating police officer, which had exhibited to it the police statements of Mr. Law and Mr. Lu. No oral evidence was tendered but this was entirely the choice of the parties who were represented respectively by counsel and a solicitor.

8. The learned judge, in his judgment, gave the background facts and stated that the main submission on behalf of the owner of the watch had been that the pawnshop had not taken adequate care because the item was not a woman's watch and yet a woman had pawned it. This should have put the pawnshop on alert.

9. The solicitor for the pawnbroker on the other hand submitted that the owner of the watch had been careless, his suggestion being that Mr. Law had gone about with too many valuable articles on his person when he was robbed. It is not surprising that the judge rejected that argument out of hand. He held that the pawnbroker, through his employee, had done all that could reasonably have been expected of  him. He observed that it was not unusual these days or women to wear larger watches than the ordinary smaller size ladies' watch. The test he applied was "whether the pawnbroker had exercised the degree of care any reasonable pawnbroker would have [exercised] having regard to the subject matter of the pawning."

10. Mr. Andy Hung, who now appears for Mr. Law, submitted that the judge had erred in acting upon his own knowledge when he remarked that it was not unusual nowadays for women to wear watches which were larger than the ordinary ladies' watch. Counsel also contended that the judge should not have found that Mr. Lu had done all that could reasonably have been expected of him. He drew attention particularly to s.18(1)(c) of the pawnbrokers Ordinance which requires the pawnbroker to be given information about the name, place and residence of the owner of goods being pawned if he is not the owner. Mr. Hung submits that it should be been obvious to Mr. Lu that the woman before him was not the owner of the watch. He had therefore failed to comply with the provisions of that section.

11. In my judgment it is quite impossible to say on the material before him that the judge erred in the conclusions he reached. I do not find it unreasonable or improper that he should have drawn upon his own knowledge that it does not necessarily follow that a woman will only wear a small woman's size watch. As one of my Lords mentioned during the hearing, the watch did have 12 diamonds set in it and it was smaller than the ordinary man size watch. Indeed, I would add that in my view the judge came to the right decision on the evidence as it stood. There was no way that he could have formed an opinion as to whether Mr. Lu had been careless when, according to his police statement, he had compared the photograph on the stolen identity card with the woman who pawned the watch and had found that "it was similar to her."

12. In the light of the judge's conclusions on the evidence, it seems to me that he correctly applied s.23 of the Ordinance. He was required to dispose of the goods which were the subject of these proceedings in the manner provided for by the section. The ownership of the goods had been proved and therefore under s.23(2) (a) he made an order for the delivery of the watch to Mr. Law. But the judge also had to comply with subsection (3) of s.23, and when considering whether to order that any money should be paid to the pawnbroker in accordance with the provisions of s.23(2)(a), he was required to take into account the conduct of the owner and of the pawnbroker and to consider whether the fault or carelessness of either party has caused or contributed to the unlawful pawning of the goods. Section 23(3)(a) directed him to apportion the loss in equal shares if he was satisfied that no fault or carelessness in the conduct of either party had contributed to the unlawful pawning. This is what the judge ordered.

13. For the reasons I have given I would dismiss this appeal.

Penlington, J.A.:

14. I agree with the judgment of the learned Vice President that the pawnbroker here has taken all reasonable steps in the light of the provisions of the Ordinance and there is nothing further I wish to add.

Sears, J.:

15. I also agree. This judge is criticised for saying these words "it is not unusual these days as to women to wear larger than ordinary small lady size watches." whilst it is always correct for evidence to be called on matters which have to be proved to a court's satisfaction, nevertheless, in my judgment, a judge is entitled to take judicial notice of ordinary matters of the habits of society. Indeed, in 1991 in my view, a judge should be well aware of what goes on in the community and how members of the community behave. This case involved essentially a question of fact for the judge and I can find nothing perverse in his finding such as would justify this court in interfering. I agree that the appeal should be dismissed.