SAMSUNG ELECTRONICS LTD AND OTHERS v. J & C CARGO SERVICES CO LTD AND ANOTHER

HCCL 14/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO. 14 OF 2005

---------------------------

---------------------------

---------------------------

J U D G M E N T

---------------------------

The action

1.  The claim of the plaintiffs in this action arises from the theft, on 3 May 2004, of a consignment of 6,068 Samsung GSM mobile telephones whilst this consignment (itself part of a larger consignment) was en route from Hong Kong airport to the warehouse of the 3^rd plaintiff (‘Ezcom’), the designated consignee, and the purchaser of these telephones from the 1st plaintiff seller (‘Samsung Electronics’).

2.  The 2^nd plaintiff (‘Samsung Fire & Marine’) is the insurer of this consignment.

3.  The 4^th plaintiff (‘CEIEC’) is a financial entity which opened a letter of credit in favour of the purchaser Ezcom; save for its status as apparent financier of the sale and purchase transaction, the 4^th plaintiff does not play any part in the facts of this case, and it is not clear why it was considered necessary formally to join CEIEC to this action.

4.  The 1^st defendant (‘J&C Cargo’) is a Hong Kong company which carries on freight forwarding services; the undisputed evidence is that this company had been providing freight forwarding/carriage services to the Hong Kong buyer of these telephones, Ezcom, for a number of years.

5.  The 2^nd defendant (‘Yeung’s Logistics’) is in the business of providing road haulage services in Hong Kong; its role in this case is apparently that of subcontractor of J&C Cargo.

6.  There is no lis constituted between the 1^st and 2^nd defendants.  In the circumstances perhaps this is unsurprising; the evidence is that the 2^nd defendant is a sole proprietorship owned by Mr Yeung Kwok Cheung, who is also an employee of the 1^st defendant or, at the least (on the evidence the precise situation is less than clear) of a sister company of the 1^st defendant.

The factual background

7.  The background details of the sale and purchase of the stolen consignment of telephones do not greatly matter, save to note that Samsung Electronics agreed to sell these telephones to Ezcom at a unit price of US$270.00, and further that, under Cargo Insurance Policy No. 90394040000080 dated 30 April 2004, Samsung Fire & Marine provided insurance cover for the shipment of telephones in a sum amounting to 110% of the total invoice value.

8.  The telephones were shipped by air from Korea to Hong Kong on 30 April 2004.

9.  The contractual arrangement was that the 3^rd plaintiff, Ezcom, had agreed with the 1^st defendant, J&C Cargo, to collect the telephones from the airport and to deliver them to the buyer’s warehouse; in turn, the 1^st defendant had subcontracted the actual collection and delivery of the shipment to the 2^nd defendant firm.

10.  What happened was this.

11.  On Friday 30 April 2004 J&C Cargo received by email a ‘pre-alert’ confirming that the telephones would be arriving from Korea on the evening of that day; in turn, one Mr WT Lam, a driver employed by Yeung’s Logistics, physically attended at the offices of the J&C Cargo to receive instructions regarding the collection and physical delivery in Hong Kong of the telephones on Monday 3 May 2004.

12.  The evidence is that Mr Lam then drove the 2^nd defendant’s truck to a garage in order to permit certain repairs to take place, and a photocopy of the ‘collection record’ was left in the truck during the repair period over the weekend.

13.  On 3 May 2004 Mr Lam drove the truck to Hong Kong airport and collected the telephones; for reasons which are not evident, he instructed his colleague, who otherwise should have accompanied him in the vehicle during the journey to Ezcom’s warehouse, to remain at the airport.

14.  The telephones never reached their destination.

15.  Mr Lam, the 2^nd defendant’s driver, claimed that, whilst driving from the airport en route to the warehouse along Ching Hong Road, he was threatened by a man wielding a knife.

16.  The only evidence available as to the circumstances of the robbery come from Mr Lam’s police statements; at the time it appears that the windows of the vehicle were wound down and the doors were unlocked; the vehicle’s central locking system apparently was broken, and had been for some time.

17.  It was further claimed by Mr Lam that he was forced to swallow some pills, which caused him to lose consciousness, and that when he regained consciousness the telephones were missing.

18.  Unsurprisingly, Mr Lam was interviewed by the police consequent upon this theft.

19.  In his third police interview record Mr Lam admitted that the test result of his blood and urine sample contained no indication of the ingestion of any drugs, notwithstanding his story that he had been forced to swallow pills which caused him to lose consciousness.

20.  The stolen telephones have not been recovered, and so far as is known the police have made no arrests consequent upon this theft; in particular Mr Lam himself neither was arrested nor charged with complicity in this event.

21.  On or about 3 September 2004, the insurer of the telephones, the 2^nd plaintiff, Samsung Fire & Marine, paid to the 3^rd plaintiff, Ezcom, the sum of US$1,802,196.00, which figure represented the amount payable under the policy as issued.

22.  As a result of these events, the plaintiffs mount the present claim in order to recoup the value of these stolen telephones, which claim is pleaded at 110% of the invoice price.

The evidence

23.  In addition to the documentary evidence discovered by the parties – which contains, in particular, the records of interview given to the police by the driver of the intercepted lorry, Mr Lam Wing Tong, only two witnesses of fact were called on behalf of the defence to give viva voce evidence at this trial.  

24.  No witness evidence was called on behalf of the plaintiffs.

25.  Significantly, Mr Lam Wing Tong, to whom the task of collecting the telephones had been delegated, was not called by either of the defendants, despite the fact that he was the one person within the matrix of facts who was in a position to give direct evidence in relation to the circumstances surrounding the robbery.

26.  The witnesses as were called by the 1^st defendant were Mr Lam Kwok Shing, the Operations Manager of the 1^st defendant,J&C Cargo, and Mr Yeung Kwok Cheung, the 2^nd defendant, whose firm Yeung’s Logistics was the subcontractor appointed by the 1^st defendant physically to collect and to deliver the telephones to Ezcom, the Hong Kong buyer.

27.  Neither man had any personal knowledge of the robbery, and it is fair to observe that the evidence of each was relatively uncontroversial.

28.  Mr Lam Kwok Shing gave evidence that he was the Operations Manager of the 1^st defendant, and that he had worked for that company for 10 years.  He said that for a period of some 8 years the 1^st defendant had been using the 2^nd defendant, Yeung’s Logistics, to collect and carry goods.

29.  He appeared to accept in cross-examination that it was the 1^st defendant, and not Ezcom, the buyer of the mobile phones, who had selected and had chosen to use the services of Yeung’s Logistics, although in re-examination he seemed to veer away from this version of events, and to suggest that the choice had been that of Ezcom.

30.  Mr Lam further stated that he had no personal knowledge of any background checks conducted on employees of Yeung’s Logistics, and also said in cross-examination that Mr Yeung Kwok Cheung was an employee of the 1^st defendant at the time of the robbery on 3 May 2004, and that he knew that Mr Yeung then was working as a manager of the 1^st defendant’s branch in Shenzhen.

31.  With regard to the extract from his ‘job book’ of the 1^st defendant, Mr Lam said that relevant pages thereof would be photocopied and handed to the relevant drivers; he described the meaning of the columns in this extract from his ‘job book’, which functioned as the driver’s ‘collection record’, and pointed out the columns which referred to the number of packages to be collected in terms of any particular job, and also where the weight of the cargo was indicated.

32.  He accepted that he did not know what any driver did with the photocopy of the relevant excerpt from the ‘job book’ which was handed to the driver, and stated that he became aware of the theft of the telephones at about midday on 3 May 2004; he made it clear, however, that he had no personal knowledge whatever as to the circumstances of the robbery.

33.  As for Mr Yeung Kwok Cheung, his testimony also was unable to throw much light on the events the subject of this claim.

34.  He stated that he had worked for J&C Cargo since 1992, and subsequently had set up his own business, the sole proprietorship ‘Yeung’s Logistics Company’ which, I understand, virtually solely focused upon carriage and delivery work for J&C Cargo; thereafter, in 1998 he resumed employment with the 1^st defendant company, or at the least with an associated J&C company, working as its manager in the Shenzhen branch.

35.  By reason of the fact that he was working in Shenzhen at the time, he was unable personally to supervise the operations of Yeung’s Logistics, and although he received a monthly report from his employees in Hong Kong, he did not supervise the day to day operations of his firm; these day to day operations were handled by Mr Lam Wing Tong, the driver of the lorry which had collected the stolen telephones, who was in charge of the business in Hong Kong.

36.  Nor had Mr Yeung been responsible for the repair of this vehicle, registration number KJ 4877, which was operated by his business; responsibility for the repair had been left to Mr Lam, and Mr Yeung was not aware that in 2004 there had been a defect in the central locking system of the vehicle.

37.  His evidence was that all of the income of the 2^nd defendant firm emanated from the business of the 1^st defendant.

38.  As for any standing instructions which may have been in place regarding the method of collecting goods and making deliveries, he said that the instructions he had given in 2000 did not include instructions as to the number of employees who were required to accompany a delivery, nor instructions as to the locking of the doors and windows of the relevant delivery vehicle.

39.  Mr Yeung stated that he had become aware of this robbery only on the afternoon of 3 May 2004, when he was notified by telephone when he was in Shenzhen, and until that telephone call he had had no knowledge of any circumstances surrounding the robbery.

40.  As to the present whereabouts of Mr Lam, the driver of the vehicle on the day of the robbery, he said that he did not know where Mr Lam now was, this employee having left Yeung’s Logistics about a year ago.

Hearsay statements

41.  In his final submission, counsel acting on behalf of the 1^st defendant, Mr Pedruco, specifically referred to the content of certain statements which had been the subject of Hearsay Notices.

42.  These statements were the police statements of Mr WT Lam, the driver of the intercepted lorry and an employee of the 2^nd defendant, a statement of Mr Li Tong Wai, a director of one Ezcom Technology Limited (not the 3^rd plaintiff), a statement of Rachel Or, a clerk of Ezcom Technology Ltd, a statement of one Lo Kam Ling, a shipping supervisor of Ezcom Technology Limited, and lastly a statement of one Wong Man Kan, a marketing manager of the 3^rd plaintiff, Ezcom Electronics Limited.

43.  If it was intended to rely upon the evidence of these persons, I see no reason (and none has been canvassed) why they should not have been called to give viva voce evidence in the witness box, and consistent with the general practice of the Commercial Court, I decline to attribute much if any weight to such hearsay statements, notwithstanding Mr Pedruco’s submission that nothing in these statements was inconsistent with the evidence of those witnesses who gave viva voce evidence to this court.

The defence of the 1^st and 2^nd defendants

44.  As canvassed by Mr Pedruco in his written closing submission, the defence mounted on behalf of the 1^st defendant (which for all practical purposes appeared to be adopted by Mr Yeung Kwok Cheung, the proprietor of the 2^nd defendant, who appeared in person), ran as follows :

(1)	that there was express agreement between the 1st defendant, J&C Cargo Services and the 3rd plaintiff consignee, Ezcom Electronics, that all collections and deliveries made by the 1st defendant on behalf of the 3rd plaintiff should be effected by the 2nd defendant, Yeung’s Logistics, and that this conformed to the established course of dealing in place as at the date of the loss;
(2)	thus, the fact that the 2nd defendant, Yeung’s Logistics, effectively was the nominated sub-contractor of the 1st defendant, J&C Cargo, was a matter which, as Mr Pedruco put it, ‘broke the chain of causation’, and therefore by reason of the 3rd plaintiff consignee’s intervening act (that is, in terms of nominating the use of the 2nd defendant to collect and deliver the 3rd plaintiff’s goods), the plaintiffs were not entitled to claim against the 1st defendant any loss suffered by reason of such nomination; in fact, counsel submitted, the 1st defendant’s hands effectively were tied with regard to the selection of the 2nd defendant to collect and deliver the cargo in question, that in utilizing the services of the 2nd defendant for this job the 1st defendant in effect had been acting as no more than the agent of the 3rd plaintiff, and thus it was “unreasonable, perverse and disingenuous” for the plaintiffs now to claim that the 2nd defendant was not suitable or proper or that it was not a reputable and competent haulage contractor;
(3)	that in any event the evidence had not established that the 1st and/or 2nd defendants had been negligent, as alleged or at all, and that the defendants had taken more than reasonable industry approved/accepted precautions in order to ensure the safety of and safe delivery of the telephones the subject of the theft;
(4)	that in terms of bailment the 1st and 2nd defendants had acted properly with respect to the transportation of the telephones, and had taken all reasonable precautions in carrying out this task.

Specific findings

45.  In general I see no reason not to accept the broad tenor of the evidence of the two witnesses who have given viva voce evidence before this court, neither of whom had first hand knowledge of this theft, save that I do not accept the belated assertion, in re-examination by Mr Lam Kwok Shing, that the use of the 2^nd defendant’s services to collect and deliver the 3^rd plaintiff’s cargo of mobile telephones was the subject of specific nomination by the consignee thereof, the 3^rd plaintiff, Ezcom Electronics.

46.  Not only did this response directly contradict what initially had been said by Mr Lam in cross-examination, but in my view (and on the evidence I so find) the overwhelming probability is that the use by the 1^st defendant of the 2^nd defendant was not reflective of any particular contractual agreement between the 3^rd plaintiff and the 1^st defendant, but merely reflected the standard practice, existing over some years, of the 1^st defendant utilizing the services of the 2^nd defendant whenever possible, and regardless of the identity of the purchaser/consignee in any given transaction; in turn this further reflected the obviously very close working relationship between the two entities, wherein Mr Yeung, the eponymous sole proprietor of the 2^nd defendant, was at that time also an employee of the 1^st defendant (or a sister company of the 1^st defendant), in that he then was responsible for managing the 1^st defendant’s mainland operations in Shenzhen.

47.  In any event, if and so far as it be relevant, I reject Mr Pedruco’s submission which sought to paint the 2^nd defendant as the ‘nominated subcontractor’ of the 3^rd plaintiff, with the 1^st defendant merely acting as agent in this regard for the 3^rd plaintiff.

48.  As to the circumstances of the robbery, all that this court has available to it is the account of the robbery as contained in the police statements of the driver of the lorry in question, Mr Lam Wing Tong, who, as earlier indicated, was not called to give evidence.

49.  For the purpose of deciding this case, however, there is no necessity for this court to make a finding in terms of any personal involvement by Mr Lam Wing Tong in the robbery, tempting though it may be to speculate, and in the circumstances I do not seek to do so, not least because the police who investigated the incident did not charge Mr Lam, notwithstanding certain curious aspects within his account of the specific manner in which the robbery had transpired; I do accept, however, and on the probabilities I so find, that the lorry from which the telephones had been stolen had been in a state of disrepair in terms of the breakage of its central locking system, that prior to the robbery the vehicle had been in the garage for repair thereto, and further that on the probabilities the photocopied extract from the ‘job book’ detailing the collection which was to be made had been left inside the cab during the period of repair.

50.  I am also persuaded to conclude, and on the probabilities so do, that this was not simply an opportunistic theft, but that it was well planned and that the lorry carrying the mobile phones was intercepted by the robbers who knew – or at the very least had a well-founded anticipation – that the goods stored in the cartons on board the lorry were valuable mobile phones.

51.  On the available evidence I further find that both the 1^st and 2^nd defendants were, respectively, bailee for reward and sub-bailee for reward, and in light of this conclusion it seems to me that the issue of liability in this case can be decided by application of general principles relating to the liability of such bailees, and in particular in terms of the application of this burden of proof.  It is for this aspect of the case I now turn.

Bailee for reward: general principles

52.  In principle a bailee for reward owes a duty to the bailor to return the bailed goods safely at the conclusion of the bailment relationship, and if the bailee fails to do so, he is liable for the loss of the goods unless he is able to prove that he exercised all due care for the goods : see, eg, British Road Services Ltd v. Arthur V Crutchley & Co Ltd [1968] 1 All ER 811; Richmond Metal Co v. Coales & Son [1970] 1 Ll Rep 423;Dense Billion Ltd v. Hui Tian-Sung and ors [1996] 2 HKLR 107; G Bosman (Transport) Ltd v. LKW Walter International Transportorganisation AG [2002] EWCA 850.

53.  This fundamental principle is not, I think, in dispute in this case; Mr Pedruco for the 1^st defendant did not seek to challenge the proposition that the defendants bear the burden of proving that they took all reasonable care of the telephones the loss of which forms the subject-matter of this claim.  Nor was there any attempt to challenge the proposition that the 1^st defendant, qua bailee for reward, was obliged by itself and through its servants or agents to take proper and reasonable care of the bailed goods, and thus that the 1^st defendant could not escape liability qua bailee for reward simply by the expedient of delegating the task of looking after the goods to an independent contractors.

54.  Accordingly, the 1^st defendant, and also the 2^nd defendant, was obliged to establish that it had taken all reasonable care of the goods.

55.  The approach to be taken by a court in determining whether the burden has been discharged in instances such as the present is illustrated by several cases involving like, or broadly similar, factual situations.

56.  In Richmond Metal v. Coales & Son, op cit, for example, a carrier had been engaged to deliver a high value cargo, which subsequently was hijacked in transit.  The driver employed by the carrier was the sole witness to the hijack, and his evidence was wholly uncorroborated; moreover, he had a prior conviction for theft and previously had lost the contents of another truck.  It was held by Mocatta J that the carrier had not discharged the burden of establishing the burden upon it, in particular on the facts that the copper scrap had been stolen without the negligence of the driver, one Cantwell, or that the loss had occurred by reason of a riot as defined by the relevant authorities, and accordingly judgment was given for the plaintiff.

57.  In Dense Billion Limited v. Hui Tian-Sung & ors, op cit., the carrier in that case had been entrusted to carry a valuable consignment of silk fabric.  The driver of the vehicle in question had decided to leave the truck unattended overnight, and the consignment was stolen during the night.  The Court of Appeal held, inter alia, that the carrier was liable for the loss of the consignment as it had failed to discharge the burden of proving that it had exercised reasonable care of the consignment, and (applying British Road Services Ltd v. Crutchley & Co Ltd. [1968] 1 All ER 811) that a bailee for reward could escape liability only by discharging the burden as to the taking of appropriate care or that his failure so to do was not causative of the loss.  The court also held that if a bailee for reward should entrust the duty of care to his servant or agent, he is equally answerable for the acts or omissions of that servant or agent (applying Port Swettenham Authority v. Wu & Co Sdn Berhad [1979] AC 580.)

58.  Nor is the obligation of the bailee for reward to take reasonable care of the goods the subject of the bailment extinguished by the mere fact of sub-bailment: see Gilchrist Watt and Sanderson Pty Ltd v. York Products Ltd [1970] 3 All ER 61.

59.  Further, absent a direct employment situation, utilisation by the bailee for reward of an independent contractor, which then acts negligently or in breach of contract, does not suffice to avoid liability on the part of the bailee; thus in British Road Services v. Crutchely & Co Ltd., op cit., Lord Pearson observed (at 820D) :

“	Although there can be bailment without a contract, there usually is and was in this case a contract, and the obligation of the bailee can be formulated as an implied term of the contract.  This may help to bring out clearly the nature of the obligation.  The bailor could not reasonably be expected to be content with a contractual promise of the bailee to take proper care of the goods or engage a competent contractor to do so.  If that were the contractual promise, then in the event of default by a competent contractor duly selected by the bailee, the bailor would have no remedy against the bailee and would have to rely on the possibility of an action in tort against the contractor.  To give business efficacy to the contract, the bailee’s implied promise should be that he will himself or through his servants or agents take proper care of the goods…”
whilst in the same case Sachs LJ stated (at 824H) :
“	…I am in full agreement with the view expressed by Lord Pearson and by the trial judge, that the defendants must accept responsibility for the negligence of the third parties in the same way as if the patrolmen had been the defendant’s own employees.  The bailee is responsible for proper care being taken of the goods and to my mind he cannot escape from that liability merely by employing sub-contractors for that purpose, however reasonable may be his confidence in them.  Any contrary decision would make a serious and unjustifiable inroad on the rights of bailors, and for this inroad there does not appear to me to be any authority.”

60.  The decision in British Road Services, op cit, was followed by the English Court of Appeal in G Bosman (Transport) Ltd v. LKW Walter Transportorganisation AG [2002] EWCA 850 in which Longmore LJ stated that he was “more than content” to adopt the formulation of Lord Pearrson in that case. 

61.  In G Bosman, op cit., the security company which was found to be the immediate cause of the loss had been engaged by independent contractors of the initial bailee a fact which, as Mr Wright for the plaintiff has pointed out, was a step further removed from the position of the 2^nd defendant to the 1^st defendant in the present case, but notwithstanding absence of direct nexus between bailee and the entity whose direct negligence was the immediate cause of the loss, the Court of Appeal nevertheless held that the bailee was responsible for the acts and omissions of the security company.

62.  British Road Services, op cit., also has been followed in Hong Kong in Always Win v. Autofit Limited, HCA 10735 of 1993, decision dated 28 March 1995, in which Cheung J (as he then was) stated (at page 12) :

“	The emphasis of Lord Pearson and Sachs LJ was that to give efficacy to the contract between bailor and bailee, the bailee must be responsible for the goods and it cannot escape responsibility by delegating that responsibility to someone else”.

63.  It follows from the foregoing review that the principle that a bailee for reward is liable for the acts and omissions of an independent contractor to whom responsibility for the goods has been entrusted is well-established; moreover, the obligation to exercise all reasonable care to avoid loss or damage of the bailed goods includes taking appropriate steps to ensure that the goods were not stolen by employees: see Transmotors Ltd v. Robertson, Buckley & Co Ltd [1970] 1 Lloyd’s Rep 224.

64.  Failure to take such steps results in breach of the primary duty owed to the bailor, and the bailee also will be liable for the acts of a servant or agent if the goods are found to have been stolen as the result of participation in such theft by a servant or agent : see Morris v. C W Martin & Sons Ltd [1966] 1 QB 716, wherein it was held that the bailee is answerable for all the acts or omissions, including causatively careless and dishonest acts, of such servant or agent.  This decision was approved by the Privy Council in Port Swettenham Authority, op cit, and has been applied in Hong Kong in Bewise Motors Co Ltd v. Hoi Kong Container Services Co Ltd [1997] HKLR 986.

Decision

65.  In light of the survey of applicable principle, and on the basis of the evidence as led, it is clear in the circumstances of this case that the task of Mr Pedruco, for the 1^st defendant, was daunting.

66.  In this connection, even if the 2^nd defendant, Yeung’s Logistics, in fact had been a ‘nominated subcontractor’ of the 3^rd plaintiff (which in the event I have held not to be the case), it is difficult to see why that fact in itself necessarily would suffice to release the 1^st defendant from its raft of obligations as bailee for reward, albeit no doubt this would have assisted in surmounting the hurdle of establishing that the 1^st defendant had taken all reasonable care to ensure selection of a competent subcontractor.

67.  I am also unable to appreciate why the fact that at no time prior to 3 May 2004 had any complaint been received from the 3^rd plaintiff – which up to then consistently invariably had utilized the services of the 1^st and 2^nd defendants in the collection and delivery of its imported consignments of goods – is anything to the point; all that this fact tends to indicate, it seems to me, is that up to the date of this theft the 3^rd plaintiff consignee had had no reason for any complaint in that the 1^st defendant successfully had successfully avoided losing such goods as had been entrusted to its care by the 3^rd plaintiff, and thus had not been in breach of its obligations qua bailee for reward.

68.  So in my view these two specific matters, as pressed upon the court by counsel for the 1^st defendant, have no probative or analytical significance in terms of the 1^st defendant’s attempt to avoid liability for this loss.

69.  At the end of the day, therefore, as is the situation in the vast majority of ‘bailee cases’, the issue comes down to whether, on the evidence, the bailee/sub-bailee – in this instance the 1^st and 2^nd defendants – are able successfully to discharge the burden of proof which lies upon them as a consequence of such legal characterisation.

70.  In light of established principle – the principal elements of which have been set out above – and in light of the findings of this court on the evidence, it is difficult to see how the 1^st defendant is not to be held liable for this loss; moreover if the 2^nd defendant is to be characterized as an independent contractor, as in the circumstances I am prepared to find that he is, the result is that that the 1^st defendant, qua bailee for reward, remains liable for the negligent act of the 2^nd defendant, Yeung’s Logistics, which on the evidence invariably was used for its collection/delivery jobs. 

71.  In my judgment the available evidence before the court regarding the circumstances of this robbery reveal a signal lack of precaution and care for the safety of these goods on the part of Mr Lam, the driver employed by the 2^nd defendant.  Putting to one side the somewhat dubious account of events as given in Mr Lam’s police statements, it is clear (and for the avoidance of doubt I so find) that the most basic precautions were not taken to prevent theft.

72.  Even taking Mr Lam’s account to the police at face value (which, if I may say so, requires a certain suspension of disbelief), the intruder entered the vehicle by the left front passenger door at a time when the vehicle’s windows were wound down and the doors unlocked; moreover, the central locking system of the vehicle appears to have been broken and in need of repair since mid-February 2004, and that no steps had been taken to remedy the problem; it is also clear that the passenger door could have been locked manually, so that if Mr Lam had taken the basic and most obvious precaution of so doing, on his case the robbery would not have happened, since the robber would not have been able to gain access to the truck’s cab.

73.  From that which Mr Lam told the police it seems that he had told employees of another company that the central locking system of the truck was broken, whilst the fact that it is not disputing that this truck was left for repair over the weekend (albeit apparently not for repair to the locking system) with a copy of the relevant extract from the ‘job book’ left on the front seat; additionally no explanation has been given as to why in any event Mr Lam had instructed his colleague not to accompany him on the fateful journey, and both are matters which not only serve to stimulate suspicion but which also indicate an alarming degree of carelessness, which ultimately bore fruit in the robbery as ensured.

74.  As stated earlier there is no necessity for present purposes to make any finding of fact regarding any complicity by Mr Lam in this theft, although it is difficult to read the police statements without some degree of suspicion.  Be that as it may.  On the basis of his account as given in his police statements, and on the basis that Yeung’s Logistics, the 2^nd defendant, functioned as an independent contractor and sub-bailee for reward, I have little difficulty in finding the case made out in terms of the liability of the 2^nd defendant also.  Absent complicity on the part of Mr Lam, there can be no doubt in my view as to the causative carelessness demonstrated by the 2^nd defendant in terms of care for this consignment of telephones, and there has been no evidence led in this case which can suffice to discharge the burden of proof upon a bailee for reward that all appropriate care was taken with the goods as bailed; on the evidence the contrary appears to be the case.

75.  Moreover, if and in so far as Mr Lam was complicit in this theft – which I have not seen fit to find as a fact – then it would follow, if such were to have been the case, that on established principle liability for the loss would follow in terms of both the defendants to this action; indeed, this would be an a fortiori case.

76.  At the end of this day, therefore, on such evidence is available in terms of the circumstances of this robbery, the short point is that this court has concluded that neither the 1^st nor the 2^nd defendant has been able successfully to discharge the burden placed upon them of demonstrating that all reasonable care was taken of this consignment of telephones.

77.  Nor, for that matter, am I satisfied that the circumstances demonstrate that the 1^st defendant had taken steps to ensure that the 2^nd defendant was a competent sub-contractor; in this regard it strikes me that invariable usage of the 2^nd defendant’s services had bred a laxity of approach on the part of the 1^st defendant in terms of the entity to whom it delegated control of goods the subject of the instant collection and delivery. 

78.  It follows from the foregoing, therefore, that in my judgment the plaintiff has succeeded in this action in terms of establishing liability for the loss on the part of the 1^st and 2^nd defendants, and I so hold.

79.  I turn, lastly, to the issue of quantum.

Quantum of loss

80.  As Mr Wright has pointed out, the amount claimed represents 110% of the invoice value of the stolen telephones.

81.  The position is that in September 2004, the 2^nd plaintiff, Samsung Fire & Insurance, as insurer of this consignment paid to the buyer/consignee thereof, Ezcom Electronics, the sum of US$1, 802,196.00, representing the amount payable under the relevant policy, namely 110% of invoice value.

82 . Mr Wright submits that this amount was incurred directly from the loss of the telephones, which loss was caused by the failure of the defendants to take proper care of the consignment of telephones, and thus that this is the amount for which judgment should be entered against the defendants.

83.  I do not agree.

84.  I fail to see why an amount in excess of the invoice value of the telephones should be visited upon the defendants simply by reason of the fact that this apparently was the manner in which these goods were chosen to be insured.

85.  Accordingly, in my view the amount of the judgment consequent upon the action herein should be the alternative sum propounded by Mr Wright, namely US$1,638,360.00, which represents the loss of 6,086 units at US$270 per unit.

86.  As to which of the four plaintiffs should be the judgment creditor, it seems to me that this should be the 2^nd plaintiff, the insurer, Samsung Fire & Insurance, which already has indemnified the 3^rd plaintiff, Ezcom Electronics, and thus it is the 2^nd plaintiff which ultimately has borne this loss.

Order

87.  In light of the foregoing judgment, I make the following order consequent upon the trial of this action :

(1)	there is to be judgment for the 2nd plaintiff against each of the 1st and 2nd defendants in the sum of US$1,638,360.00;
(2)	interest is to run on the said sum from the date of payment by the 2nd plaintiff to the 3rd plaintiff until the date of judgment herein at the rate of 1% over US dollar prime rate from time to time prevailing, and thereafter on the principal sum of US$1,638,360.00 at the judgment rate from time to time prevailing until payment;
(3)	there is to be an order nisi as to costs against the 1st and 2nd defendants in favour of the 1st, 2nd and 3rd plaintiffs, such costs to be taxed if not agreed;
(4)	there is to be an order nisi that there be no order as to costs of the 4th plaintiff;
(5)	such orders nisi as to costs are to become absolute unless application be made so to vary the same within 28 days from the date judgment herein.