HO SUI KAM v. ON PARK PARKING LTD

HCSA 15/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 15 OF 2004

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL NO. 74865 OF 2003)

____________

____________

______________

J U D G M E N T

______________

1.  In 2003, the Defendant operated an open car-park at Lai Po Road, Lai Chi Kok.  It is fair to say that the car-park was basically just an open space with iron fencing at its boundary.  There was a kiosk at the entrance.  An attendant was at the kiosk and ticket was issued to members of the public who parked there.  The parking charge was $4 per hour.

2.  The Claimant parked his car there on 30 July 2003.  When he returned on the same day, he found that his car had been burgled.  The hi-fi system, steering wheel and other accessories were stolen.  As a result, he incurred $24,630 to repair the same.  He considered that the Defendant should be liable to compensate him for such loss.  He therefore filed a claim against the Defendant in the Small Claims Tribunal.

3.  On 5 March 2004, the case was tried before Mr Pang Ka-kwong.  The Adjudicator decided the claim in favour of the Claimant and awarded him the sum of $24,630 plus interest and costs.  The Defendant appealed against that award and leave was granted by this court on 3 June 2004.

4.  Although two grounds of appeal were canvassed, it is apparent that if I decide the first ground in favour of the Defendant (viz. on the question of Defendant’s responsibility in keeping safe custody of the car at the material time), there is no need to deal with the second ground (viz. whether the Defendant could rely on the exemption clause).

5.  Before I turn to the law, I shall set out the terms of the Parking Rules which were found by the Adjudicator to be the terms of the contract between the parties.  They were in Chinese and parties have not provided any translation thereof.  I shall repeat the same in Chinese,

“停車場使用條例

車主請細閱進入和使用本停車場之規章。本規章乃為車主之利益而制訂，車主須遵守本規章之各項規定。如車主有投訴，須按照以下第3條方法提出，否則本公司難以處理有關投訴。

1.    本公司責任

車主應注意：本公司之業務，乃為向車主發出許可，以便車主在本停車場內泊車，而並非為車主保管汽車。公衆停車場乃開放與所有公衆人士使用。本公司職員已獲指示。會儘量減少車主和其汽車所遇到之意外事件，以及驅逐行為不檢之人士。但要完全防止不愉快事情發生，實屬不可能。因此本公司不能保證車主之汽車和當中財物之安全。因此：

(a)    如有汽車遭受損失、失竊、被盜、交失、損毀、暫時交失等意外，即使證實乃由於本公司、本公司僱員、代理人疏忽，或由於本公司僱員、代理人行為不正，或由於本公司、本公司僱員、代理人控制範圍以外之原因，本公司、本公司僱員、代理人概不負責。

(b)    如有汽車遭受損失、失竊、被盜、交失、損毀、暫時交失等意外，而香港法院裁定本公司、本公司僱員、代理人不得倚賴以上1(a)條得以免責，則本公司亦只會在證實確有以上意外之情況下負上責任；而只於證實以上意外乃由於本公司、本公司僱員、代理人疏忽、蓄意行為、蓄意錯失、玩忽本公司法定職守時、本公司方會負上各有關程度內之責任。

(c)    如本停車場內有車主及其他人死亡、受傷、本公司、本公司僱員、代理人只會在證實確有此事之情況下負責；而只於證實此事乃由於本公司、本公司僱員、代理人疏忽、蓄意錯失、玩忽本公司法定職守時，本公司會負上各有關程度內之責任。

2.    負責自己汽車之安全

車主離開本停車場前，應確保做好以下措施，但如本公司、本公司僱員、代理人要求車主不要作出以下措施，則屬例外：

(a)    妥為銷好汽車。

(b)    妥為關上汽車所有窗子。

(c)    如汽車已裝上駕駛盤鎖或其他防盜系統時，應確保此等系統已在發揮作用。

3.    財物之處理

(a)    車主離開汽車。(sic)

(b)    如車主須將財物留於於汽車內，亦不可將財物放於當眼之坐位上。應將財物放於儲物箱內鎖好。

(c)    車主應注意，汽車保險並不包括汽車內之財物。車主宜為車內財物另購保險。

…

7.    泊車票及每月泊車證

(a)     各汽車之泊車票不得轉給另一汽車使用。車主取得泊車票（連同每日泊車證），並不表示車主有權將汽車停泊於停車場內某特定車位，但不表示車主有優先泊車權利。每月泊車證必須貼於汽車檔風玻璃上當眼位置。每月泊車證乃本公司財物，車主應在本公司要求收費時交出。

(b)    如車主不出示泊車票，不展示每月泊車證，本公司有權不讓該汽車駛出停車場，直至本公司作出其認為合理之查詢並得滿意答案為止。因此，車主如不能出示泊車票或每月泊車證，會延遲駛離停車場時間。

(c)    每月泊車證在各曆月最後一天失效。車主如無當月之每月泊車證，即須按照本停車場的時租車位收費率支付泊車費。

(d)    車主如不能在離開停車場出示泊車票，須按本停車場的時租車位收費率支付泊車費，並繳交港幣二十圓正，作為本公司翻查泊車記錄之手續費。

(e)    如轉換車牌必須通知本公司及付手續費港幣壹佰元正，每月只准轉換乙次。

…

6.  The car-park was one with minimal facilities.  There was no barrier at the entrance.  In other words, if a car owner drove away without paying, he would not encounter any physical difficulty although he would probably be guilty of a criminal offence.  Needless to say, there was no CCTV.  However, the Defendant required the attendant to patrol around the car-park once every hour and this was checked by a supervisor.

7.  The duty of the Defendant depends on the legal analysis as to its relationship with the Claimant.  As stated by Palmer on Bailment, 2^nd Edn., p.426 n.2, it is a well established general principle of the law of tort that generally a person owes no duty of care to protect the property of another against theft by independent third parties.  It seems that the Adjudicator found the Defendant to be liable on the basis that it became a bailee of the car (see Paragraph 22 of the judgment of the Adjudicator). 

8.  Mr Chui submitted that the Adjudicator erred in law in holding that the Defendant was a bailee.  He submitted that the Defendant was only a licensor.  It granted a licence to the Claimant to park the car there.  It did not undertake the responsibility for the security of the car when it was parked there.

9.  On the other hand, Mr Mak contended that the Adjudicator made such finding on the basis that the Defendant had provided security services and used a ticketing system to exercise control over the car when it was parked there.  He submitted that it is a finding that the Adjudicator was entitled to make and even though this court might reasonably disagree with the Adjudicator, it is not a finding that could be disturbed in an appeal of this nature.

10.  In my judgment, the correct analysis of the relationship between the Claimant and the Defendant is a question of mixed law and fact.  Unlike a finding on primary fact, the conclusion of the Presiding Officer could be challenged in an appeal on such a question if it is a conclusion reached pursuant to misdirection in law.

11.  The essence of the reasoning of the Adjudicator were set out in Paragraphs 19 to 22 of his judgment (written in Chinese),

“19.    就停車場對於申索人的車輛是否有保管的責任這一方面，本席注意到雖然被告人一直强調停車場只是提供車位，對申索人的私家車沒有保管責任，但事實上被告人停車場向使用停車場人士的車輛提供了如被告人案情指出的種種保安服務。

20.    而且，《停車場使用條例》第（1）條有如下規定：

「(b) 本公司職員已獲指示，會儘量減少車主和其汽車所遇到之意外事件，以及驅逐行為不檢之人士。」

「如有汽車遭受損失、失竊、被盜、交失、損毀、暫時交失等意外，而香港法院裁定本公司、本公司僱員、代理人不得倚賴以上1(a)條得以免責，則本公司亦只會在證實確有以上意外之情況下負上責任；而只於證實以上意外乃由於本公司、本公司僱員、代理人疏忽、蓄意行為、蓄意錯失、玩忽本公司法定職守時，本公司方會負上各有關程度內之責任。」

21.    再者，《停車場使用條例》第（7）條裡有如下規定：

「如車主不出示泊車票、不展示每月泊車證，本公司有權不讓汽車駛出停車塲，直至本公司作出其認為合理之查詢並得滿意答案為止。」

22.    本席認為停車場藉着提供種種保安服務，和泊車卡制席，實質的受托管着申索人的車輛。”

12.  In those paragraphs, the Adjudicator seemed to suggest that under the contract as embodied in the Parking Rules, the Defendant had undertaken to provide security services.  With respect, insofar as the Adjudicator held that the Defendant had undertaken such a responsibility, he had misconstrued the contract.  Clause 1 specifically and categorically stipulated that the Defendant only gave a licence to the car owner to park within the car-park but did not undertake the safe custody of the car.  Clause 1 made it quite clear that the car was parked there at the owner’s own risk.  As said by Romer LJ in Ashby v Tolhurst [1937] 2 KB 242 at p.255-6,

“You cannot infer a contract by A to perform a certain act out of circumstances in which A has made it perfectly plain that he declines to be under any contractual liability to perform that act. The defendants made it as clear as writing can make it in the ticket … that they would not take any responsibility for the safe custody of any car. One cannot infer, therefore, in those circumstances that the car was left in the car park for the purpose of being in the custody of the defendants.”

In that case, the Court of Appeal held that there was no bailment and the relationship between a car park proprietor and car owner, on the facts of that case, was only licensor and licensee.

13.  The taking of extra precaution by the Defendant in requiring the attendant to patrol once an hour (and in my view, that was the only measure that could be regarded as security measure) could not and did not alter the contractual obligation undertaken by the Defendant towards the Claimant.

14.  Neither does the provision in Clause 1(b) of the Parking Rules assist the Claimant.  That clause was plainly inserted ex abundante cautela.  It did not purport to re-define the primary legal obligation undertaken by the Defendant as regards the safe custody of cars parked within the car-park.

15.  Clause 7 laid down the requirement as to production of parking ticket.  This was referred to in Paragraph 22 of the judgment of the Adjudicator as the parking ticket system.  Mr Mak also relied on this clause to contend that the Defendant had obtained possession of the car upon the issue of the parking ticket.  He submitted that it was a case of constructive possession although the key of car was retained by the Claimant.

16.  In the context of hourly parking, the production of a parking ticket was to facilitate the calculation of parking charges.  This is reasonably clear if one reads Clause 7(b) together with (d).  I could not accept that these provisions implicitly placed the car in the possession of the Defendant, constructive or otherwise.  All it said is that if the parking ticket could not be produced, the owner might be delayed in driving the car away pending reasonable inquiry.  It does not tantamount to the transfer of the possession of the car from the car owner to the Defendant.

17.  I can readily think of several scenarios in which a car owner is prevented from driving his car away from a site or place where it would be absurd to suggest that possession of his car has been transferred to others.  Take the case of vehicular ferry, in the course of crossing the harbour, even if the car owner has left his car and went to the passenger section of the ferry, I do not think anyone would suggest that he has parted with possession of his car.  Another instance is where a police officer stops a car in the street for investigation.  No-one would suggest that the possession of the car is transferred thereby to the police officer.

18.  Of course, the factual circumstances are quite different.  However, there is a clear conceptual distinction between the transfer of possession of a car to another and a restriction, whether physical or intangible, imposed on the car owner from driving his car away.  In the present case, as mentioned above, there was no physical barrier to prevent the Claimant from driving the car away from the Defendant’s car park.  The restriction under Clause 7(b) was at most an intangible one.

19.  Mr Chui cited a number of cases to show that parking ticket system could not be conclusive in determining whether there was a bailment, see Ashby v Tolhurst [1937] 2 KB 242; Fred Chappell Ltd v National Car Parks Ltd (1987) The Times, 22 May 1987; BG Transport Service Ltd v Marston Motor Company Ltd [1970] 1 Ll Rep 371; Bata  v City Parking Canada Ltd (1973) 43 DLR (3d) 190.

20.  Counsel have in fact referred to a number of authorities and there is a detail discussion on the topic in Palmer on Bailment, 2^nd Edn., pp.382 to 413.  I do not find it useful to go through each and every case and it is perhaps impossible to reconcile some of the cases.  It would also be futile to try to distil a single test from the cases.  The conclusion of Palmer at p.412 after surveying the cases is noteworthy,

“As the foregoing analysis has shown, one can rarely answer this question with complete certainty.  Certain features appear regularly in the decisions but, taken overall, enjoy only a limited and variable significance.  Often, they are effective in establishing a bailment only when combined with other factors not, in themselves, conclusive.  Consequently, the side of the line upon which a given case may fall is largely intuitive ---- “ a matter of impression”.” 

21.  A host of factors have been listed by Palmer.  The more pertinent ones seem to be the following,

(a)     transfer of the means of access to or control over the chattel: the ignition key;

(b)    procedures for recovery;

(c)     fees and charges;

(d)    physical geography: the layout of the car park;

(e)     proximity of the owner;

(f)     staffing;

(g)     purposes to which  possession a necessary incident;

(h)     the terms of the ticket.

22.  From a legal point of view, Palmer identified the difference between bailment and licence as follows at p.382,

“The law has repeatedly drawn a distinction between bailments and licences; the former requiring a transfer of possession and a voluntary acceptance of the common law duty of safekeeping, the latter amounting to no more than a grant of permission to the user of a chattel to leave it upon the licensor’s land on the understanding that neither possession shall be transferred nor responsibility for guarding the chattel accepted.”

23.  For reasons given, in the light of the terms of the Parking rules, the physical layout of the Defendant’s car park, the quantum of the fees charged, I do not think the factors adverted to by the Adjudicator support a conclusion that the Defendant had assumed responsibility for the safe custody of the car.  I also do not consider there had been any transfer of possession of the car by the Claimant to the Defendant.

24.  Although it is obvious that in dealing with a question of this nature, each case must depend on its own facts, I shall briefly comment on some of authorities cited.  Mr Mak placed strong reliance on Always Win Ltd v Autofit Ltd [1995] 2 HKC 48.  He properly acknowledged that the facts in the claim between the plaintiff and the defendant in that case were substantially different from ours.  He however referred to the third party claim in that case.  The third party in that case was the manager of the building and responsible for management of the carpark in question.  After occurrences of car theft at the carpark, the third party implemented an in and out permit system to step up the security.  Cheung J (as he then was) found at p.67F to H that although the initial arrangement was a mere licence, the third party assumed possession of the car by imposing the in and out permit system.  It is however important to note Cheung J’s rationale in so holding set out at p.67G to H,

“This measure [viz. the permit system] was no doubt implemented to prevent car theft … This is the clearest indication that the third party was assuming possession of the cars of the defendant.”

25.  In my judgment, that was a decision on the special facts of that case.  In contrast, I do not think the totality of the evidence before the Tribunal justifies any finding that by having Clause 7(b) in the Parking Rules, the Defendant assumed responsibility for the safe custody or possession of the cars parked in its carpark.  That case cannot avail the Claimant.

26.  Mr Mak also relied on the passages in Palmer on procedures for recovery at p.391-2.  A number of Australian cases were cited there: The Council of the City of Sydney v West (1965) 114 CLR 481; Walton Stores Ltd v Sydney City Council [1968] 2 NSWR 109; Walsh v Palladium Car Park [1975] VR 949.  I have read those cases.  Whilst the courts in those cases did place significance on the requirement as to the production of parking ticket as a prerequisite for removal of the car from the carpark in concluding the relationship between the parties before the court was a bailment, the terms in the parking tickets in those cases were quite different.  In particular, the tickets in those cases did not clearly spell out, as in the present case, that the car park operator only gave a licence to the car owner to park within the car-park but did not undertake the safe custody of the car.

27.  On the other hand, the relevant terms and conditions in Fred Chappell Ltd v National Car Parks Ltd (1987) The Times, 22 May 1987 (a Lexis copy was supplied by Mr Chui) are quite similar to those in the present case.  The physical layout of the carpark was also similar.  However, the car owner paid the parking fees immediately after he parked the carpark.  There was a clause similar to Clause 7(b).  Deputy Judge Hamilton QC held that the relationship was a licence as opposed to bailment.

28.  Ultimately, it is a question that must be decided by reference to the facts of the case and previous cases could only provide limited guidance.  Although I agree with Mr Mak that this is a question that different judges may reasonably hold different views, I am of the clear view that the matters relied upon by the Adjudicator did not support his conclusion that this was a bailment situation.  Hence, this court must examine the situation afresh to see whether a conclusion could be reached on the primary facts found by the Adjudicator.

29.  I am satisfied that I have all the relevant facts before me and I have set out those in the earlier part of this judgment.  This is a case where this court can properly substitute its conclusion in accordance with the approach I set out in Para.37 of my judgment in Wong Man Kwan v Chun Shing Holdings Ltd  [2003] 3 HKLRD 403.  In my view, on such primary facts, the proper conclusion is that the relationship between the Claimant and the Defendant at the material time was licensee and licensor.  In other words, the Defendant did not undertake any responsibility for the safe custody of the Defendant’s car.

30.  For this reason, the Defendant did not owe the Claimant any duty to prevent theft or damages to his car.  Due to the general principle set out in Paragraph 7 above, in the absence of any bailment, the fact that the Defendant’s attendant might have been careless in performing his patrol duties and the loss occurred within the car park did not give the Claimant any right to claim against the Defendant.  The fundamental position remains that the Claimant parked his car there at his own risk.  In a way, there is no difference between parking at such a car park and parking at the street at parking space with meters.  Incidentally, the fees charged by the Defendant was in fact less than that for parking meters.

31.  The appeal must therefore be allowed and the award of the Adjudicator is set aside.  I will also dismiss the claim of the Claimant.  As regards costs, I make an order nisi that the Claimant shall pay the Defendant’s costs of the appeal, such costs to be taxed if not agreed, and no order for costs as to the proceedings in the Tribunal.