XCHRX Tai Ping Yeung Motors Ltd. v. Mak Kan Heung and Others

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

Civil Action No. 14620 of 2000

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Judgment

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1. The plaintiff is suing the three defendants for trespass / conversion. The subject-matter is the title deeds of a flat (the "Titles Deeds") of which the plaintiff was at the material time the registered owner. On 9th June 2000 when Mr. Wan of the plaintiff called for the title deeds, she discovered that the Title Deeds were not with the solicitors ("LCK")of the mortgagee bank where they were supposed to be. However the title deeds were located quickly and within hours and on the same day that she managed to collect the same from another solicitors firm, the third defendant, who once acted for the Plaintiff in property matters. The reliefs sought by the plaintiff are:

1) damages;

2) an order that the Defendants do provide account and /or full explanation for the said Title deeds during the period between 20th April 2000and 9th June 2000

3) Costs.

2. The defendants admitted that they had the Title Deeds at different stages for different periods between 20th April 2000 and 9th June. Their respective accounts had been rendered at different times to the Plaintiff before the defendant took out the summonses. The Plaintiff did not accept the accounts given by the defendants and minutely scrutinise their accounts for discrepancies, illogical and unreliable features. Ms Wong argued that because of these discrepancies and features the case should go to trial and the applications by the defendants to strike out the claim should be dismissed.

3. The accounts given by the defendants are in fact quite consistent with each other as far as the physical movement of the Title Deeds during the period. The plaintiff was not satisfied with their motive and was allegedly in fear of some prejudice which might not have surfaced so far. The events collected from the accounts can be summarised as follows. On 20th April, 2000, on the instructions of the first defendant the second defendant after obtaining the necessary authorisation letter collected the Title Deeds from LCK and handed over the same to the first defendant. On 9th June 2001 Mr. Man went to the office of the first defendant to collect the Deeds and handed over to Ms Wan of the plaintiff. These basis facts are not in dispute.

4. The second defendant alleged that she was only an innocent agent of the fist defendant carrying the menial courier duty to collect the Title Deeds for the defendant. She had no idea of the nature of the documents she was collecting. Her version of events was corroborated by the accounts of the other defendants. While the plaintiff insisted that her version should not be accepted, its counsel could not suggest in what way the court should cast doubt on her innocence, nor could counsel suggest what other role the second defendant could have played. Whatever the other defendants were up to some sinister plan with the Title Deeds, someone had to collect the Title Deeds. Sending someone who was not privy to the sinister plan would be too natural and sensible. I did not see any realistic chance for the plaintiff to discredit her alleged innocence. Her case was plain and obvious. In order to save costs in respect of the second defendant, I dealt with her application first and eventually struck out the plaintiff's claim against her.

5. As to the account of the first defendant , he admitted that he had the Title Deeds with him during the period. He claimed that on 20th April 2000 he called for the title deeds of three properties. While Mr. Man provided him correctly the title deeds of two of the three properties, Mr. Man mistook the identity of the third property for the one to which the Title Deed related. Therefore Mr. Man gave the second defendant two title deeds and an authorisation letter for her to collect the Title Deeds from LCK. The first defendant discovered the mistake on the same day and asked Mr. Man to come to collect it. Mr. Man did not do so until 9th June 2000. Throughout the interim period the Title Deeds was put in a drawer at his office. The version of the third defendant was the same except that the third defendant contended Mr. Man made no mistake about the request of the first defendant for title deeds of the three properties but admitted to making by Mr. Man the mistake of wrongly believing that the first defendant acted. The first defendant used to be directors of the plaintiff. The other two directors at that time were the two brothers, Mr. Mai Kuo and Mak Chit Lun. The first defendant was very close to Mai Guo for whom he had been working for a long time. In the past it was the first defendant who gave instructions on behalf of the defendant to Mr. Man. This time Mr. Man thought the first defendant was acting on behalf of the plaintiff in requesting for the Title Deeds. Mr. Man claimed that he did not know that brothers Mak and Mai had fallen out and the first defendant and Mai Guo had ceased to be directors of the plaintiff. This was contradicted by Mr. Wan of the plaintiff. Mr. Wan said when he replaced the first defendant as director of the plaintiff in April 1997, he was so introduced to Mr. Man by the first defendant, as part of the hand-over exercise.

6. The plaintiff merely cast general doubt on the veracity of the three defendants and insisted that a trial should be conducted to find the truth of what happened to the Title Deeds. Ms Wong, counsel for the plaintiff in fact argued that should the trial fail to compel the defendants to tell the truth. The court should grant the order compelling them to do the truth. This is a very bizarre remedy. If the court was satisfied with the explanation of the defendants, the court would make its own findings of fact on the evidence before it. It would certainly be futile to make an order after the trial asking him to provide answers to question which he had already been asked. Furthermore there is nothing before me to suggest that new materials would come up during the interlocutory or and at the trial which can assist the plaintiff to find out matter which it has not already known. The plaintiff would not be in a better position at the trial.

7. The plaintiff seemed to suggest that both the first and the second defendants were involved in some kind of conspiracy to use the Title Deeds to assist brother Mai Kuo in the litigation with brother Mak. In what way the Title Deeds can be so used by the defendants, Ms Wong could not answer. I cannot think of a way in the circumstances of this case that the Title deed can be used to assist Mai Guo. Likewise Ms Wong could not provide and I cannot think of any way the defendant could have profited with the Title Deeds to the prejudice of the plaintiff. In the course of dialogue with the court, Ms Wong quite boldly and cleverly suggested the defendants might use the Title Deeds to commit crime, say obtaining money or advances from the bank. Be that as it may, if would be quite unrealistic for the plaintiff to expect the defendants to admit to crime at the trial. Even if they were asked questions about that I do not see any good reasons they should waive their privilege against self-incrimination and admit to a serious crime. Perhaps one should never underestimate the brilliant advocacy of its legal advisers. Assuming that the plaintiff succeeded one way or the other at these proceeding in getting an admissions and uncovered the illegal profits of crime they had committed with the Title Deeds. The plaintiff is not entitled to these profits. A thief who stole a bomb to commit extortion, would not be liable to account to the owner for the number of extortions he has made and how much extortion money he has obtained.

8. In any event it cannot be disputed that there was no damages caused to the plaintiff by the few hours to locate the Title Deeds. The action for trespass/conversion is not actionable per se. Ms Wong had no answer to this submission by the defence that this not a case for exemplary or punitive damage. I accept this submission.

9. If the case proceeded to trial, the plaintiff would not be in a better position in respective of its knowledge about the Title Deeds. There is no realistic chance for it to get damages nor the other relief. Incidentally I do not believe the plaintiff is not motivated by monetary gain. That other relief is both inappropriate or ineffective in achieving the purported purpose. The plaintiff or its legal adviser should have known all these. These proceedings should have never been brought and if brought should be stopped. I granted the application of the first and third defendant and order that the claim be struck out. I now also make an order nisi for costs in favour of defendants with certificate for counsel.