LUK PO YING v. PAU CHING CHOW SANDICK AND ANOTHER

DCCJ 846/2017

[2018] HKDC 1440

IN THE DSTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 846 OF 2017

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JUDGMENT

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1.  This is a case of conversion.

Background

2.  The plaintiff was the registered owner of an apartment in Kowloon (“the Apartment”) which was assigned to the 1^st defendant (who is the husband of the 2^nd defendant) on 28 October 2016.

3.  The plaintiff is a shoe lover who claimed to own around 400 pairs of shoes and alleged that she kept at least 50 pairs of valuable shoes (“the Shoes”) in a specially built shoe cabinet located in the common area outside the back door of the Apartment. She alleged that the defendants have removed or caused to be removed the Shoes after the assignment of the Apartment, knowing that the plaintiff had not abandon them. She also claimed that the value of the Shoes was at least HK$300,000.

4.  The defendants denied even knowing the existence of the Shoes and, of course, denied ever dealing with or removing them.

The legal principle

5.  The law of the tort of conversion is trite. It is often defined as "a taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession" (Fouldes v Willoughby(1841) 8 M&W 540).

Issues in dispute

6.  There are two main issues before the court: firstly, whether the Shoes were available at all at the relevant time for the defendants to convert, and secondly, whether there was "a taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession" by the defendants.

The Whereabouts of the Shoes

7.  The plaintiff’s case was that she had last seen the Shoes on 3 September 2016, the day the defendants first came to see the Apartment. She claimed that she showed off the Shoes to the 2^nd defendant.

8.  When cross-examined on when she last opened the cabinet prior to 3 September 2016, the plaintiff agreed that she only opened the cabinet once every few months.

9.  During the pre-completion inspection on 17 September 2016, the plaintiff admitted that she told the 2^nd defendant that she would leave the cabinet behind and, more importantly, the plaintiff agreed that she did not inform the 2^nd defendant that she wanted to keep anything inside the cabinet. The cabinet was not opened on this occasion.

10.  Further, the plaintiff also admitted that during the move from the Apartment, she only told her helper to “leave the cabinet” or “leave it” without instructing the helper to pack the Shoes. The plaintiff later realised that the helper had misunderstood that she had meant leaving everything (including the Shoes) and the plaintiff admitted that both she and the helper were “somewhat negligent” in this miscommunication.

11.  The plaintiff did not attempt to pack the Shoes nor check the cabinet herself during all the moving process.

12.  The moving people came twice and the plaintiff finally moved out on 22 October 2016.

13.  The completion of the assignment of the Apartment took place on 28 October 2016.

14.  The plaintiff was travelling after this date and it was only on her return on 20 December 2016, almost two months after the completion, that she realised that the helper did not pack the Shoes.

15.  According to the plaintiff, after several unsuccessful attempts to contact the 2^nd defendant, she called a Mr. Wong who was the chairman of the incorporated owners committee in the building. She requested Mr. Wong to look inside the cabinet. Mr. Wong called back and told her that the Shoes were not there.

16.  The plaintiff said that she did not return to the Apartment until 27 December 2016 and she saw for herself that the Shoes were not there.

17.  It is clear that despite the plaintiff claiming how she valued the Shoes as if they were her pets and even talked to them sometimes, it would appear she was quite a neglectful owner.

18.  Even on the plaintiff’s case, I find insufficient evidence to establish the whereabouts of the Shoes between 3 September 2016 and 27 December 2016, a span of almost 4 months.

19.  There can be a number of scenarios.

20.  The helper stated in an Affidavit dated 24 February 2017 (page 190 of Trial Bundle B) that, “Madam Luk had delegated to me the task of moving her valuable shoes…inside a…cabinet…However, I had never moved the Shoes.”

21.  This was clearly inconsistent with what the plaintiff now said in court that the helper had misunderstood that she had instructed to leave the cabinet as well as the Shoes.

22.  However, the helper had long left the employment and did not give evidence in court. On balance, the court should accept the evidence of the plaintiff (especially as this amounted to an admission which was disadvantageous to her case). As such, the court accepts that the helper had misunderstood that the plaintiff was, effectively, abandoning the Shoes when moving. Under the circumstances, it was entirely reasonable to expect that the helper would have taken possession of and dealt with them.

23.  The plaintiff also admitted that the moving company attended the Apartment twice to deposit paper removal boxes. The movers also went to the Apartment twice on the day the plaintiff moved out.

24.  The plaintiff moved out on 22 October 2016 and the defendant only took possession on 28 October 2016, thus the Apartment was left vacant for this period.

25.  After the defendants have taken possession, the Apartment was renovated so there would have been any numbers of workers (there was a contractor plus 2 to 3 casual workers according to the 2^nd defendant) going in and out. The decoration process lasted around 4 weeks according to the 2^nd defendant.

26.  On top of all this, the cabinet was located in a common area just a few steps up from the main foyer of the building. The Apartment was located on the 1^st floor and the building has no lift, so all the neighbours or visitors to flats above (there were 3 floors and 2 apartments to each floor) would have passed quite close by the cabinet.

27.  In short, in this period of some 4 months, there can be many scenarios where someone other than the defendants could have discovered and removed the Shoes. The plaintiff has clearly not provided sufficient evidence, on balance of probability, to show that it was likely that the Shoes were even there at the relevant time for the defendants to convert.

The alleged “taking with intent…”

28.  Even if the plaintiff could show that the Shoes were available at the time for the defendants to convert, she still has to show that they actually had removed or dealt with them.

29.  The plaintiff relied on certain alleged conversations with the 2^nd defendant which she said amounted to a confession of the conversion. She claimed, for example, that the 2^nd defendant said, “I have already asked our renovation workers to bring your shoes to the Salvation Army.”

30.  This was denied by the 2^nd defendant who pleaded that she mentioned “Salvation Army” and donation because she told the plaintiff that no one wanted old shoes.

31.  The plaintiff also claimed that the 2^nd defendant mentioned the size of the plaintiff’s feet and took this as evidence that the 2^nd defendant must have seen the Shoes. The 2^nd defendant denied this and said that the plaintiff only asked her for her feet size during the conversation.

32.  What was not in disagreement was that there were several very bad tempered telephone conversations between the plaintiff and the 2^nd defendant, and that the 2^nd defendant had told the plaintiff on one occasion that she had never took any shoes (and if she did, there would be a curse that all her descendants would die), and on another, that she had never seen and dealt with the Shoes but that she would asked the decorators to check. It was also not in dispute that the 2^nd defendant mentioned other scenarios, for example, that the plaintiff’s helper might have taken them herself to sell off on the street.

33.  I would imagine this scenario: assuming that the plaintiff had, as alleged, really shown the 2^nd defendant the Shoes on 3 September 2016, and assuming that the 2^nd defendant flatly denied ever seeing the Shoes in a subsequent conversation. Under the circumstances, the plaintiff would have immediately challenged the 2^nd defendant, perhaps stating the circumstances of the showing of the Shoes and the conversations that took place. If the 2^nd defendant continued to deny this, there would bound to be very heated arguments and accusations along the lines of: “How can you deny this? You are a liar!” I would imagine that this would be something that the plaintiff would not forget as it would demonstrate to her that the 2^nd defendant was lying and she must have an ulterior motive. The plaintiff would certainly not accept the 2^nd defendant’s offer to “ask the decorators to check” under the circumstances.

34.  However, the plaintiff did not give any evidence of such arguments either in the witness statement or in court. More importantly, in the recorded voice messages of the plaintiff left in the 2^nd defendant’s phone, which took place contemporaneously with the various telephone conversations, the plaintiff did not make any challenge that the 2^nd defendant had lied about not being shown the Shoes. One would have thought that this would have been the most important and strongest accusation to make.

35.  In fact, when Mr. Brian Wong, the defence counsel, put it specifically to the plaintiff under cross-examination that the 2^nd defendant told her that she had never seen (or dealt with) her shoes during a telephone conversation, the plaintiff agreed. One would think that this would be a “cue” for the plaintiff to give evidence if she ever made a challenge against the 2^nd defendant during the conversation.

36.  As such, I think the plaintiff never challenged the 2^nd defendant when she said she had not seen the Shoes, so no arguments on this topic took place. The reason, as logic goes, must be that the plaintiff never did show the 2^nd defendant the Shoes on 3 September 2016 or at all so, during that conversation, the plaintiff was rather hoping that the 2^nd defendant might have seen the Shoes after taking possession of the Apartment and knew of their whereabouts. The plaintiff only fabricated that evidence of the showing of the Shoes at a later stage to support her claim. On balance, the court would accept the 2^nd defendant’s evidence that she had never been shown the Shoes.

37.  As for the mention of “Salvation Army”, I would seriously doubt that the plaintiff would remember the conversation in such “verbatim form” during these heated conversations. It was more likely that the 2^nd defendant have mentioned the Salvation Army under the context of “possible scenarios”.

38.  I would therefore hold that any such conversations would not amount to sufficient evidence of a confession of conversion.

39.  In any case, even if the 2^nd defendant had actually instructed the decorators to clear the Shoes, there might be a good defence of abandonment: the plaintiff had effectively said the same thing to her helper and 2^nd defendant, that is, she would “leave the cabinet” and did not contact the 2^nd defendant until almost 2 months after the completion of assignment.

40.  The plaintiff had admitted that the helper had misunderstood and had failed to move the Shoes. As such, I cannot see why the 2^nd defendant might not have misunderstood as well. After all, the defendants’ interests were to clear the Apartment and redecorate it for renting out, and I can think of scenarios where, with or without the instructions from the defendants, the decorators might have taken their own initiative to clear out the cabinet. However, this was not the defendants’ pleaded case.

41.  This would not be relevant to my decision but I also note that when the plaintiff returned on 27 December 2016, she took it upon herself to move the cabinet from the back entrance area of the Apartment to the back entrance to the neighbouring flat (Flat 1B). She claimed that Mr. Chan of Flat 1B wanted the cabinet and so she gave it to him.

42.  I find that the cabinet is not hers to give away. She has clearly abandoned it: she has told the 2^nd defendant that she would leave the cabinet, and has moved out and left the cabinet for almost two months without instructing the defendants that she was giving it to Mr. Chan in good time.

43.  Further, the plaintiff also claimed that when she attended outside the back entrance of the Apartment on 27 December 2016, a notice stating in Chinese “Private property, please do not remove, 1B” was already stuck on the side of the cabinet (as shown on page 319 in Trial Bundle B). She claimed that this showed that Mr. Chan was claiming the cabinet and that she recognised Mr. Chan’s handwriting.

44.  I would seriously doubt the truthfulness of this claim. The plaintiff gave evidence that she moved the cabinet to outside Flat 1B by physically turning it 180 degrees. Thus if Mr. Chan had placed the notice on the cabinet beforehand, the notice would have been stuck on the side of the cabinet facing a blank wall and back window instead of the corridor and foyer. The plaintiff also did not tell the court how she could recognise the handwriting of Mr. Chan, whom she said was an old man with health problems and who did not even live at Flat 1B (Flat 1B was only attended occasionally by a cleaner).

45.  As such, I also seriously doubt that Mr. Chan would express any particular interest in the cabinet. I doubt that he has many shoes to store in a place he does not even live in, and if I were very cynical, I would think that the notice was written and put on by the plaintiff herself out of spite to try to deprive the defendants of the use of the cabinet.

46.  In any case, I find that it was unlikely that the plaintiff ever told or shown the 2^nd defendant more about the cabinet and its contents, if any, besides telling her that she would “leave it” after moving out.

Conclusion

47.  For the reasons stated above, I find that there was insufficient evidence to support the plaintiff’s claim of conversion. I would therefore dismiss the claim and award the costs of the action to the 1^st and 2^nd defendants to be taxed if not agreed with certificate for counsel.