WING LUNG INSURANCE CO LTD v. LO WAI FAI

HCMP 1939/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1939 OF 2007

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J U D G M E N T

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1. These proceedings relate to the commercial vehicle insurance policy no. E32-096255 issued by the plaintiff to the defendant (“the policy”).  The policy dated 30 November 2006 was issued by the plaintiff for the policy period from 5 December 2006 to 4 December 2007 to the defendant in respect of the vehicle registration no. LG 1734 (“the vehicle”).  The policy was issued based on all the information and particulars in the proposal form signed by the defendant.  The proposal form was signed by the defendant in November 2006 (“the proposal form”). 

2. In the proposal form the defendant declared, inter alia, that he had not been convicted of any motoring offence (other than parking offence) during the last five years.  He also declared that to the best of his knowledge and belief all material particulars affecting the assessment of risk had been disclosed. 

3. On 25 July 2007 the defendant reported to the plaintiff the occurrence of an accident involving the vehicle and another vehicle on 9 February 2007 (“the accident”).  The defendant was subsequently summoned for a charge of careless driving. 

4. In the course of investigating the accident it was revealed that the defendant had been convicted of motoring offences during the five years’ period prior to the signing of the proposal form.  These included convictions for careless driving on 1 April 2003 and speeding offences on 28 November 2004, 7 March 2005 and 15 September 2006.  The full particulars of his previous convictions are set out in paragraph 8 of the 1^st affirmation of Chan Shuk Yee.

5. It seems to me that the plaintiff is entitled to a declaration that it was entitled to avoid the policy on the ground that the policy was obtained by the non-disclosure of a material fact, namely, his previous convictions for motoring offences as well as by a representation of fact which was false in some material particular namely, the defendant’s representation of fact that he had not been convicted of any motoring offence during the five years’ period prior to the signing of the proposal form.

6. On the evidence the defendant has indicated to the plaintiff’s solicitors that he would not contest the plaintiff’s application.  He has also indicated in the acknowledgement of service of the originating summons that he would not be contesting the relief sought by the plaintiff in the originating summons. 

7. In the circumstances, I am satisfied that the plaintiff is entitled to judgment and I give judgment to the plaintiff for a declaration that the plaintiff was entitled to avoid the policy on the ground that the policy was obtained by the non-disclosure of a material fact and also on the ground that the policy was obtained by a representation of fact which was false in some material particular. 

8. The costs of these proceedings are to be costs to the plaintiff to be borne by the defendant such costs to be taxed if not agreed.