GEOFFREY WILLIAM BARNETT AND ANOTHER v. CLP PROPERTY SERVICES LTD.

DCCJ 18435/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 18435 OF 2000

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JUDGMENT

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BACKGROUND:

[1] Kevin Tower is a prestigious building with 16 apartments, each occupying an entire floor.

[2] Since 1993, the Defendant, CLP Property Services Limited ("CLP") has been responsible for the management and security of Kelvin Tower. The Plaintiffs, Mr. and Mrs. Barnett, were tenants of Kelvin Tower. The Third Party, Security Alliance Limited ("Alliance"), was CLP's subcontractor for providing attendants for Kevin Tower.

[3] On or about 5th August 1998, the Barnett's premises was burglarized. A number of pieces of jewellery and foreign currencies were stolen. Mrs. Barnett originally estimated the value of the stolen goods to be HK$201,000; however, during her testimony, she corrected an error by her solicitors. Item 5 on her list, an 18K gold pendant set with an almond -shaped jade, was valued by her at $3,000 and not the $8,000 stated on the statement of claim.

[4] Mrs. Barnett testified in great detail on the value of the stolen jewellery, being a former head purchaser of jewellery for a large department store, I trusted her valuation on these items. In any event, her testimony was not disputed by CLP or Alliance. I therefore found that, with the sole exception of item 5, Mrs. Barnett's valuation was correct. Value for item 5 was, of course amended from HK$8,000 to HK$3,000.

[5] The Barnett's stated that they relied on CLP to provide a reasonable level of security for Kelvin Tower, which CLP failed to do and the burglary occurred as a result.

[6] Until the burglary to the Barnett's apartment, there had been no other burglary in the building since CLP took over management in 1993.

[7] The following were a list of the security systems in place at Kevin Tower, at the time of the Barnett burglary:

(a) Mechanical combination door lock at rear staircase door on podium level accessing to podium;

(b) Mechanical door lock installed at podium door on podium level accessing to podium;

(c) Mechanical door lock installed at podium door on podium level accessing to main entrance door and podium;

(d) Anti-burglary fencing and infrared-detector installed on podium level facing Tsing Yun Street;

(e) Digital combination door lock installed at main entrance gate with auto self-closing closer on podium level;

(f) CCTV camera focusing on main entrance gate, the car park entrance, the podium area, the main lift lobby on podium level, the passenger lift, and the service lift;

(g) Lighting system at the podium;

(h) Mechanical combination door lock installed at the door in front of the passenger lift and service lift lobby on basement level;

(i) Anti-Burglary fencing installed facing both Tsing Yung Street and Castle Peak Road;

(j) Roller shutter installed at the car park entrance;

(k) Intercom system linked with digital combination door lock system at main entrance;

(l) Intercom system and panic alarm system installed in the kitchen area, the living room and the master bedroom in each apartment;

(m) Main CCTV, infrared-detector system and panic alarm system located in the attendant's booth.

(At the time, the CCTV system had no recording device.)

[8] There were two entrances to Kevin Tower, the car park entrance and the main entrance for residents. The main entrance was protected by a digital electronic lock and the car park entrance, by an electrically operated roller shutter. The switch to the roller shutter was located in the attendant's booth. Inside the car park, there was an additional door, also protected by a digital lock, leading to the passenger lift of the building.

[9] No complaints were received from any tenants regarding the adequacy of the security system. The security codes were changed from time to time and the tenants had been told to keep them confidential.

[10] After the burglary to the Barnett's apartment, CLP added an additional attendant to the day shift and installed a video recording device in the CCTV system. However, a second burglary occurred in Kevin Tower even after these improvements were put in place.

[11] On or about December 1996, CLP entered into a contract with Alliance, an experienced security firm, to carry out general estate management and security duties. The contract required Alliance to provide 2 attendants, each working a 12 hours shift, for Kevin Tower.

[12] The building attendant was stationed in a booth at the car park entrance. The attendant could monitor the main entrance through the CCTV monitor located in the booth.

[13] The attendant was required to perform the following duties:

(a) sit in the booth at the car park entrance and monitor the main entrance via a CCTV system;

(b) make 2 to 3 patrols throughout Kelvin Tower, on each 12 hours shift;

(c) make minor repairs, like changing light bulbs etc.;

(d) reports any other repair requirements and make patrol and daily records; and

(e) escort some guests to the apartment they wish to visit.

[14] Although Alliance was invited to inspect the premises prior to submitting their contract bid, CLP did not ask nor did they receive any security appraisal from Alliance.

DISPUTED FACTS:

[15] There was only one significant disagreement in the parties' evidence. The Barnett's alleged that the car park roller shutter was usually kept closed, the attendant would only roll up the shutter when a resident enters or exists the car park; however, whenever the attendant was on his patrol duties, he would leave the roller shutter opened.

[16] Mr. Phoon Wing Sing of CLP ("Mr. Phoon") stated that he had given instruction to Alliance that whenever the attendant was on their patrol duties, the roller shutter was to be kept closed.

[17] On the other hand, Mr. Khan Mohamed Farouk of Alliance ("Mr. Khan") testified that Mr. Phoon's instruction was to leave the roller shutter opened whenever the attendant was on patrol duties.

[18] Additionally, Mrs. Barnett testified that she had never been provided with the security code to the door leading from the car park to the passenger lift and this door was always left open. She complained about the open roller shutter to the attendants, nothing was done to improve security.

[19] Mr. Phoon testified that he had given all security codes, including the code to the door in the car park, to the Barnett's at the time the apartment was turned-over to them.

[20] The door leading from the car park to the passenger lift was significant because if I found that the roller shutter was left opened while the attendants were on their patrol and this door was also kept opened, the result would be an unimpeded access into Kevin tower for several prolonged periods per day.

FINDING:

The roller shutter

[21] The patrol records showed that the attendants routinely did 3 patrols per 12-hour shift. Mr. Phoon and Mr. Khan agreed that it would take 20 to 30 minutes to complete a routine patrol. In other words, if the roller shutter was kept closed, the residents would not be able to enter or exit the car park for 6 times a day, each for about 20minutes to half an hour.

[22] The patrol record showed that the patrols were very regular, at approximately 8.00am, 12.30pm, 4.30pm, 9.00pm, 11.30pm and 5.00am. Anyone who wanted to enter or leave Kevin Tower during these periods would have to wait up to half an hour.

[23] Mr. Phoon stated that the patrols were designed to occur at times when residents had gone to work or had already returned home. However, it was inevitable that on some occasions, a resident would have been made to wait, either late at night when they were returning home or when they were in a hurry to get out for an urgent appointment.

[24] If this were true, the arrangement would have been extremely inconvenient to the residents of Kevin Tower. Under the circumstance, one would expect some complaints from the residents or discussions would have been raised on this topic. Yet Mr. Phoon's testimony was that there had never been any complaints received on the security arrangement at Kevin Tower.

[25] When asked by Mr. Beukema for the Third Party, whether the residents were happy to be locked in or out of the car park for up to half an hour, Mr. Phoon's reply was that due to security reasons, there was no choice and that the residents were used to this arrangement. I found this part of Mr. Phoon's testimony very difficult to accept.

[26] On the other hand, I found Mr. Khan to be a truthful witness. Although his ability to express himself was slightly weak, his testimony was consistent and he stood up well to vigorous cross-examination by Mr. Boyton.

[27] Mr. Khan testified that Mr. Phoon's instruction was, prior to midnight, the roller shutter should be opened when the attendant was on patrol; after midnight when all resident vehicles have returned, the attendant should leave the roller shutter down, when he went on patrol. This arrangement was a sensible and practical balance between convenience and security. I preferred Mr. Khan's testimony.

[28] I found that Mr. Phoon's instruction to Mr. Khan was, before midnight, the attendant should leave the roller shutter open, whenever he went on patrol.

The door

[29] As to the door leading from the car park to the passenger lift, Mrs. Barnett's testimony was that it was always opened. However, unlike the roller shutter situation, she had never complained about the open door to the attendants.

[30] When asked if she had closed the door herself, Mrs. Barnett said no, because it was not up to her to keep the security in the building.

[31] Mrs. Barnett's attitude was strange, especially when she testified that security was of the utmost concern to her. The only explanation on why Mrs. Barnett had not complained about the door was because she had only notice it opened occasionally.

[32] Additionally Mr. Phoon testified that he had never noticed this door to be opened. Mr. Khan's testimony was that the attendants were told to keep this door closed at all times, but he guessed that someone might have forgotten to close it on occasion.

[33] After considering all evidence, I came to the conclusion that the door in the car park leading to the passenger lift was not kept constantly opened. On occasions, residents using it might have left it opened by mistake, but it was not kept opened deliberately.

THE ISSUES:

[34] The issues in this matter were no different from any other claim for negligence. The Barnett's must prove that there was a duty of care owed to them by CLP; CLP breached that duty of care; and the breach must have caused the Barnett's their damages.

[35] CLP did not really dispute the fact that it owed the Barnett's a duty to provide a reasonable level of security. In any event, given the background, even if CLP had denied that there was a duty of care, it would not have been difficult to find that CLP had taken on that duty, when it became the manager of Kevin Tower.

[36] Since the damage was caused by the act of a thief and not directly by CLP. The difficult issue in this case was in causation.

[37] Chung J. (as he then was) in Always Win Ltd. v. Autofit Ltd. (City Property Management Ltd., Third Party) [1995] 2 HKC 48, summarized the general rule in negligence claim due to thief or burglary as follows:

"The general rule at common law is that a person is not liable for the acts of an independent third party. In P Perl (Experters) Ltd. V. Camden London Borough Council [1984] 1 QB 342, it was re-affirmed that even in circumstances where it was recognized that a defendant was liable for the acts of a third party because of a special relationship which imposed a duty on the defendant to exercise control on the third party causing the damage, there could be no exception to the rule unless there was a high degree of foreseeability that damage would occur as a result of the act or omission of the defendant."

[38] The issue was therefore: Was there a high degree of foreseeability that a burglary would occur as a result of allowing the roller shutter to be opened while the attendant was patrolling the building?

[39] Mr. Burney for the Plaintiff provided me with several cases where the requisite high degree of foreseeability was found to be present. I am grateful for his in-depth research; however, after careful analysis of these cases, I came to the conclusion that the requisite degree of foreseeability was lacking in this case.

[40] In David James Howells and Another v. On Kui Development Co. Ltd. [1987] HKDCLR 48, in a case where the plaintiff's flat was broken into and a quantity of jewellery was stolen. Judge Scriven held that there was the requisite high degree of foreseeability when at the time of the burglary: The building was undergoing extensive renovation; Scaffolding had been erected for an extended period; There were a large number of empty flats in the building; The Defendant management company knew of the danger of theft when scaffolding was erected and took the step of warning the tenants to take extra precautions, but failed to take any extra security measures itself.

[41] Unlike Howell, Kevin Tower was in a safe neighbourhood, no burglary had ever happened in the building and there was already an extensive list of security equipment in the building. The Defendant had no reason to take any extra security measures.

[42] In Hui Kay-cheong, Hermann v. Chi Wo Properties Ltd. [1992] HGKDCLR 51, a case where the plaintiff apartment was broken into and he was robbed in his own flat. The plaintiff discovered that one of three security guards, who were supposed to be on duty, was fast asleep and the other two were nowhere to be found. Judge Downey held that there was a complete withdrawal of services leaving the building completely unprotected. There was a serious and fundamental breach of the defendant's duty to take reasonable care. The required high degree of foreseeability was thus present.

[43] Unlike the facts in Hui Kay-cheong, there was no evidence that the attendant was not either at his booth or patrolling the building. Kevin Tower had a reasonable security system in place at the time of the burglary. Even with the roller shutter up, there was still a digitally locked door in the car park, separating the building from the outside. In any event, there was no evidence on how the thief had gained entrance into the building.

[44] In Always Win Ltd. v. Autofit Ltd. (supra), a case where the plaintiff entrusted his BMW automobile to the defendant car repairer and the automobile was stolen while it was stored in a car park where the defendant had its workshop. Chung J. held that the defendant had failed to discharge its duty. It was held that during a period where thief of expensive vehicles was prevalent in Hong Kong and just 2 months before thief of the plaintiff's car, another expensive vehicle was stolen from the same car park; the defendant should have procured extra security for the car park where they stored their customer's vehicles.

[45] Again, unlike Always Win, there was nothing to put the Defendant on alert. There was no evidence that burglary was on the rise in Hong Kong generally or in the neighbourhood and there had been no history of break-ins in Kevin Tower. There was nothing to put the Defendant on the alert that extra security was needed.

CONCLUSION:

[46] I have great sympathy for the Plaintiffs, especially for Mrs. Barnett. The jewellery had sentimental value to her, which made them irreplaceable, but the loss of a sense of security in ones own home must have been an even greater loss.

[47] There is however, no such thing as a perfect security system. What the law requires from property managers, like the Defendant, is not perfection but only to exercise reasonable care under circumstances known to them. If there was information that they should increase their vigilance, then they must take positive steps to increase security. However, prior to the 5th August 1998 burglary, there was nothing to put the Defendant on alert. The requisite high level of foreseeability was not present in the facts of this case.

JUDGMENT:

The Plaintiffs' claims are dismissed.

The third-party claim is also dismissed.

As to costs, the Defendant should have its costs against the Plaintiff as usual. However, as I found that the Third Party had followed all of the Defendant's instruction in respect of the roller shutter, the third-party claim was without any merits. Costs of the Third Party should be against the Defendant, without recourse to the Plaintiff.

Both the Defendant's costs against the Plaintiff and the Third Party's costs against the Defendant are to be taxed on party/party basis if not agreed.