LOUIS PAO v. CHAN SHUET CHU

IN THE COURT OF APPEAL

1987, No.68

(Civil)

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J U D G M E N T

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Yang, V.-P.:

1. This is the judgment of the Court.

2. This appeal arose out of a tenancy dispute between Mr. Louis Pao and Madame Chan Shuet Chu. The matter goes back many years and culminated in an action taken by Madame Chan against Mr. Pao for failure to pay rent for the premises which Mr. Pao was occupying as Madame Chan's tenant.

3. On the 25th November 1980, Madame Chan and a Bailiff went to the premises in question and  a writ of possession were executed; the Bailiff seizing certain items belonging to Mr. Pao. These were eventually sold by auction on the 3rd December.

4. The main issues for the trial judge were the question as to what items were on the premises on the 25th November, and whether any of those not seized by the Bailiff, in fact, belonged to Mr. Pao or to Madame Chan. Much evidence was heard before the judge and many issues were canvassed. To say the least, it had not been an easy case for the learned trial judge, for both the passage of time and the bad blood between Madame Chan and Mr. Pao tended to confuse the main issues. On essential matters he preferred the evidence of Mr. Pao to that of Madame Chan.

5. At the end of the trial, the judge took a global view of the evidence and came to the conclusion that there were certain items left on the premises and not seized by the Bailiff, and these were in fact the property of Mr. Pao and wrongly converted by Madame Chan. It was in the light of the mass of evidence, all of it very confusing to the judge, that he came to the view that an award of damages of $15,000 was appropriate in spite of the claim of $60,000 by Mr. Pao.

6. Mr. Pao applied for a review of the judgment, and upon review the judge considered again and more carefully the question as to whether Madame Chan, having admitted that she had converted certain property belonging to Mr. Pao, was obliged to prove that all the items setort by Mr. Pao in a document (called "exhibit P2") were the not on premises on the 25th November. The judge came to the view that nothing he heard led him to change his view:originally taken at the end of the trial.

7. Mr. Pao then applied for leave to appeal against the judgment. The judge gave leave to Mr. Pao to appeal on four matters, namely (1) whether tools or implements of trade are exempted from attachment and sale in execution of a writ of fieri facias; (2) whether the judge was right in refusing to give leave to Mr. Pao to give further evidence at the review as to the location of his dance: notes on the basis that such evidence was available and should have been given at the trial; (3) whether there was sufficient evidence that all of the items set out in pages 3, 4 and 5 of "exhibit P2" were in the premises on the 25th November 1980; and (4) whether, having regard to the judge's finding that the airconditioners, fans, and some domestic items and utensils had been converted by the defendant, and the defendant's formal admissions, the maxim omnia praesumuntur contra spoliatorear should have been applied, so as to impose upon Madame Chan the burden of proving that the items set out in pages 3, 4 and 5 of "exhibit P2" were not in the premises on the day in question.

8. This appeal must then be confined within these four matters set out by the judge.

9. Before moving on, it would be useful to note what items of belongings are included on pages 3, 4 and 5 of "exhibit P2". Page 3 of the exhibit mentions what might be described as household utensils such as plates, buckets, baskets and so on. Page 4 relates to clothings, furniture, medicine and certain items which are described as 'dance, musical, cassettes, recorders, etc." Page 5 refers to dance books, stationary, airconditioners, carpets, etc.

10. Mr. Pao has prepared a very detailed set of grounds of appeal. He started off by giving his preliminary view on the judge's findings as to credibility and on what he described as the defendant's dirty intention and so on. Little need be said on those preliminary points, four in number, save that they do not, strictly speaking, fall within the matters on which,leave to appeal had been granted. These preliminaries are followed by six detailed grounds of appeal. We are of the view that only three of them come within the four matters on which leave has been granted. Accordingly we declined to hear Mr. Pao on Ground 4 and the subsequent grounds.

11. Ground 1 argues that all the items were on the premises. This is a question which was considered in full by the judge. His view of the evidence was that it was impossible for him to make a detailed and definitive finding on this issue. He was of the view that some of the items listed were indeed on the premises. We cannot say that the judge, faced with a most difficult situation, was wrong in coming to the conclusion as he did.

12. The second ground of appeal argues that Madame Chan must be made responsible for the loss of all the dance notes. In the course of his.arguments Mr. Pao attempted to give us an estimate of the monetary value of those dance notes. Strictly speaking, the only point that is open to Mr. Pao to argue before us was whether the judge was wrong in disallowing him to give further evidence on the location of his dance notes Mr. Pao has said hardly anything upon this specific issue and we do not think we need say anything more about that ground.

13. Ground 3 argues that all items listed in "exhibit P2", whether they are seizable or not, have been, and he used the words "cheated and stolen" by the defendant. In truth, the only items which come within the judge's leave of appeal are what might be called "the tools of trade and the dance notes". The dance notes might probably be described as "tools of trade" butMr. Pao would have us say that even the airconditioners were "tools of trade". We do not think the airconditioners could, in the light of Mr. Pao's occupation as a dance instructor, possibly be described as his tools of trade. It matters not, however, because it is clear law that the dance notes as his tools of trade were not then exempted from execution. The judge deals with this in his review where he said -

"In the case of distress for rent, section 88(b) of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) expressly provides that 'tools and implements not in use' are not to be seized where there is other movable property; upon the premises sufficient to cover the amount of rent and costs."

14. The judge noted that the judgment which Madame Chan obtained in the High Court in 198C was for possession and arrears of rent and mesne profits. However she sought to enforce the judgment not by distress but by a writ of fieri facias. Such restrictions on what can be seized as are imposed by section 88, cannot be extended to other remedies or modes of execution.

15. The judge further noted that the only provision having statutory force in Hong Kong which governed writs of fieri facias was Rule 7(1) of order 47 of the Rules of the Supreme Court and this rule does not provide for any exceptions such as tools or implements of trade.

16. Having considered the judgment as a whole and having heard the appellant, we are of the view that the appeal must be dismissed.

17. Appeal dismissed.