CHAN CHO FAI v. LAM KIT HEUNG

DCCJ 3766/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3766 OF 2016

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DECISION

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INTRODUCTION

1.  By a summons dated 28 June 2017, the plaintiff applies for default judgment against the defendant pursuant to Order 19 Rule 7 of the Rules of the District Court (“RDC”) seeking the following:-

(a) a declaration that the Left Property (as defined in §5 of the Statement of Claim filed herein on 29 July 2016 (“SOC”)) has been abandoned by the defendant and the plaintiff is entitled to dispose of the Left Property at his own will;

(b) costs incurred by the plaintiff for disposing of the Left Property be paid by the defendant with interest; and

(c) costs of this action, including costs of and occasioned by the Summons to be taxed and paid by the defendant to the plaintiff; and the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

(“the Summons”) 

BACKGROUND

2.  The present action arose out of a previous action commenced by the plaintiff against another defendant by the name of Hon Ying Muk in DCCJ 2935/2012 on 22 August 2012 (“the 2012 Acton”).  In the 2012 Action, the plaintiff, in his capacity as holder of a Government Land Licence No S12084 in respect of a premises situated at No 41 Luk Mei Village, Ho Chung, Sai Kung (“the Licensed Premises”), sought to recover possession of the Licensed Premises that was illegally occupied by the said Hon Ying Muk.  The Licensed Premises is a village house which had been occupied by the plaintiff’s deceased father under a government licence prior to his death.  Since 1 January 2012, the plaintiff became the licence holder of the Licensed Premises.

3.  On 24 October 2013, the plaintiff obtained judgment in the 2012 Action in his favour against the said Hon Ying Muk for possession of the Licensed Premises.

4.  On 3 December 2014, while executing a combined writ of possession and writ of fieri facias, the bailiff found the defendant, as trespasser, inside the Licensed Premises. Pursuant to the powers vested in him, the bailiff evicted the defendant and took inventory of the goods and chattels that the defendant left inside the Licensed Premises (“the Left Property”).  The inventory list of the Left Property drawn up by the bailiff included day to day household items like electrical appliances, furniture and fittings, kitchen equipment, bedding and other sundry items.  They indicate that the defendant had been unlawfully occupying the Licensed Premises as a dwelling place.   

5.  Repeated attempts had been made by the plaintiff since then to arrange with the defendant to remove/retrieve the Left Property but to no avail.

6.  As a consequence of the defendant’s failure to retrieve the Left Property, the plaintiff has become an involuntary bailee of the Left Property.

7.  On 25 April 2016, as a last attempt before the commencement of the present action, the plaintiff via his solicitors wrote to the defendant’s solicitors setting out conditions under which the plaintiff would allow the defendant to remove the Left Property. They further indicated that if the plaintiff did not hear from the defendant by the close of business on 3 May 2016, the plaintiff would take it to mean the defendant had abandoned the Left Property.  The defendant gave no reply to this letter.

8.  After the issue of the writ of summons, the plaintiff via his solicitors wrote to the defendant’s solicitors again on 1 August 2016 informing the defendant of the present proceedings.  In their reply dated 5 September 2016, the defendant’s solicitors stated that they had tried to contact the defendant but in vain. They had also left messages to friends of the defendant in Sai Kung requesting her to contact them but to no avail.  Hence, they had no instructions to act for the defendant in these proceedings[1].

9.  Pursuant to the Order of Master S P Yip dated 22 March 2017, service of the writ of summons in this action was effected by advertising a Chinese notice of these proceedings once in the Hong Kong Economic Journal（信報）on 18 April 2017.  No acknowledgement of service has been filed by the defendant since then[2].

10.  After the Summons was issued, an order for substituted service of the Summons was granted by Registrar Ho on 12 July 2017.  Pursuant to the said order, a Chinese notice of the Summons was advertised once in the Hong Kong Economic Journal（信報）on 21 July 2017[3].

DISCUSSION

A. Applicable principles

11.  The following principles governing an application under O19 r7 of the RDC are well established and have been summarized by the plaintiff’s solicitor Mr T K Koo, who represents the plaintiff in the hearing, as follows:-

(1) The court’s power to grant judgment under O19 r7 is discretionary and not mandatory (Hong Kong Civil Procedure 2017 Vol 1, §19/7/13);

(2) On the hearing of such application the court cannot receive any evidence but must give judgment according to the pleadings alone (Hong Kong Civil Procedure 2017 Vol 1, §19/7/11);

(3) The rule extends to actions in which the relief claimed is a declaration, but it is not the normal practice for the court to grant a declaration without a trial.  However, where a proper trial is not possible because the defendant cannot be traced, and the plaintiff has a genuine need for the declaratory relief and the court could properly grant him such relief based on the merits of the case, the court will do so (Lai Wai Kuen v Wong Shau Kwong, HCA 3424/2003, dated 12 November 2004, also cited in Hong Kong Civil Procedure 2017 Vol 1, §19/7/20);

(4) The power to make binding declaration of rights is a discretionary power …… the rule of the court that a declaration will not be granted when giving judgment by consent or in default without a trial is a rule of practice and not of law and will give way to the paramount duty of the court to do the fullest justice to the plaintiff to which he is entitled (Hong Kong Civil Procedure 2017 Vol 1, §15/16/2).

B. The plaintiff’s need for the declaratory relief

12.  As pleaded in the SoC, the plaintiff has been the licence holder of the Licensed Premises since 1 January 2012 but was deprived of his right to use and enjoy the Licensed Premises as the latter was illegally occupied by the said Hon Ying Muk, the defendant in the 2012 Action.  Even after possession of the Licensed Premises was recovered on 3 December 2014, the plaintiff continues to be deprived of such use and enjoyment as a result of the Left Property of the defendant herein cluttering up the Licensed Premises.  Despite the plaintiff’s repeated invitations to the defendant to remove/retrieve the Left Property, the defendant gave no response since the plaintiff’s solicitors replied to the defendant’s solicitors letter on 11 February 2015.  The plaintiff is therefore thrown into the dilemma of an involuntary bailee of the Left Property.

13.  The difficulties encountered by an involuntary bailee in such situation are succinctly pointed out by the learned authors of Palmer on Bailment at §13-050 as follows:-

“There is at common law no general right to dispose of goods which a bailor has refused, or is unable to collect. In Sachs v Miklos, Lord Goddard C.J. suggested that the bailee might place the bailor in a position of having impliedly consented to a sale, by writing to him and warning him that this will take place unless the goods are collected within a specified time. But this raises difficulties, not least in that silence in response to an offer cannot generally be taken to connote consent. Nor will the principle of agency of necessity relieve the bailee, except in very limited circumstances, from the consequences of an unauthorized disposal. It should be borne in mind that, according to Lord Diplock in The Winson, the strict concept of agency of necessity is now to be limited to situations where the national agent seeks to create contractual relations between his notional principal and a third party. As the decision of McCardie J. in Pager v Blatspiel, Stamp and Heacock shows, there must be an actual commercial necessity dictating the disposal before the bailee can evade liability for conversion; in addition, the bailee must have acted prudently and bona fide in the interests of theowner and must have been, for practical purposes, unable to communicate with his bailor prior to the disposal. Although this doctrine may apply where goods are deteriorating or otherwise falling in value (provided the depreciation is sufficiently serious to constitute an emergency) there is little prospect of its acceptance in situations where the disposal or other treatment is for the benefit of the bailee alone.

…… Clearly, this is one situation in which the common law is incapable of supplying a satisfactory solution.” (Palmer on Bailment 3^rd edition, para 13-050 at pages 742-743)

14.  The draconian liability seems to be have been modified by the court in the local case of Desir Anthony C v Knight Frank (Services) Ltd & Others, unrep., HCSA 36/2013 (DHCJ Marlene Ng; 9.1.2015), which held that “… if an involuntary bailee performs in good faith an act which, taken in the abstract, would amount to a conversion, he is liable only if the performance of that act was accompanied by a lack of reasonable care.  If an involuntary bailee conscientiously performs acts with the object of returning the goods to their owner, such acts would be regarded as reasonable acts.”  However, the court went on to state that “what is reasonable will depend on all the circumstances, including the nature of the goods.  The burden falls on the involuntary bailee to prove that the has exercised the required standard of care.”: (per DHCJ Marlene Ng at §82).

15.  Desir Anthony C v Knight Frank (Services) Limited & Others, supra concerned a resident who had left some bicycles in the common area of a building.  The management company issued a series of circulars followed by two “Final Notices” requiring the resident to remove the bicycles, and when no agreement could be reached with the resident, the management company removed and later disposed of the bicycles.  DHCJ Marlene Ng held in that case that the IO/management company were liable to the resident in conversion having regard to the legal principles on involuntary bailment and the fact that the resident was in constant contact with the management company and persistently demanded the return of the bicycles. 

16.  However, in my view, the fact in that case is quite different from ours as the plaintiff in our present case had made multiple attempts to contact the defendant to ask her to remove and/or retrieve the Left Property and the defendant had simply ignored such requests, despite the same had clearly been received by her and her solicitors.

17.  In seeking the declaratory relief to remove the Left Property, Mr Koo also relies on the English Court of Appeal’s decision in Jones v Gospel & White (1998) 76 Planning and Compensation Report, D43 (Beldman, Millett & Mummery LJJ; 25.6.1998).  The case concerned a chalet left on a site by its former occupier.  The English Court of Appeal held in that case that “to place or leave a chattel on the land of another, without consent, is a trespass and the owner of the land is entitled, taking reasonable care, to remove the offending chattel”.

18.  I accept Mr Koo’s submissions that the dicta in Desir Anthony C and Jones v Gospel & White both highlighted the importance for an involuntary bailee to demonstrate that it has acted in good faith and exercised reasonable care (meaning having taken reasonable steps) in dealing with the offending articles.

19.  Applying the above principle to our present case, I accept the fact that, as soon the plaintiff became aware of the Left Property, he had conscientiously approached the defendant via her solicitors to remove/retrieve the Left Property.  While there were initially discussions between the parties on the removal arrangements, after the plaintiff solicitors dismissed the defendant’s threat to restore the 2012 Action by its letter dated 11 February 2015, the plaintiff heard nothing from the defendant and/or her solicitors since then[4].

20.  I further accept Mr Koo’s submissions that the conscientious and repeated attempts by the plaintiff to invite the defendant to remove the Left Property are clear evidence that the plaintiff had exercised the required standard of care and taken reasonable steps to return the Left Property to the defendant.  On the other hand, the fact that the defendant has not pursued the Left Property since the plaintiff’s solicitors’ reply dated 11 February 2015 strongly suggests that the defendant has abandoned the Left Property.

21.  The learned authors of Palmer on Bailment at 13-025 on p723 cited the remark of Bramwell B in Hiort v Bott (1874) LR Ex 86 at 90 to suggest that the safest way of dealing with the plaintiff’s predicament was perhaps to wait until the case arose.  What this essentially means is to ask an involuntary bailee to remove the offensive articles at his peril and wait and see if the owner (bailor) would sue him.  This, however, in my view, may produce a totally unjust and absurd result due to no fault of the involuntary bailee.

22.  It is clear that the plaintiff in the present case is a man of straw and has had to rely on legal aid to assert his rights to recover possession of the Licensed Premises and evict the defendant.  In my judgment, it would be grossly unjust to expect the plaintiff, who is dragged into this quandary through no fault of his own, to have to either allow the Left Property to clutter up the Licensed Premises indefinitely (which practically have prevented him from making use of the Licensed Premises) or to dispose of/destroy the Left Property and then be kept on tenterhooks as to whether he would be sued by the defendant.

23.  In my view, the plaintiff has rightly instituted the present proceedings for the purpose of addressing these undesirable alternatives.  In my judgment, the declaratory relief being sought is genuinely needed by the plaintiff to regain his full rights to use and enjoy the Licensed Premises while having the peace of mind that the removal/disposal of the Left Property is lawful.  In my judgment, the only way to do the fullness justice to the plaintiff in this case is to grant a declaratory order sought by the plaintiff in the Summons.

24.  In the aforestated circumstances, I so make a declaratory order that the Left Property (as defined in §5 of the SoC) has been abandoned by the defendant and the plaintiff is entitled to dispose of the same at his own will.  

C.  Costs in disposing of the Left Property

25.  The learned authors of Palmer on Bailment at §§13-027 & 13-028 alluded to inconsistent authorities as to whether an involuntary bailee can recover expenses incidental to the removal or disposal of goods from the party who placed them with him without his consent.  One school of authority took the view that such expenses were recoverable under the law of quasi-contract or restitution but on the other hand, the modern English authorities held that an involuntary bailee may only recover expenses which were incurred in the course of discharging some duty of care towards the goods, and that he has no general right to recover the cost of storage unless such entitlement was derived from some antecedent contractual relationship.

26.  As said, the Court of Appeal opined in Jones v Gospel & White, supra, to place a chattel on the land of another without consent is tantamount to trespass.  Our present case is pleaded on the basis of the defendant’s trespass to the Licensed Premises of which the defendant did not dispute.  It is trite that, in cases of trespass to land, the cost of removing the offensive articles / illegal structures is a form of damages recoverable from the trespasser.  A fortiori, in my judgment, the plaintiff is entitled to recover from the defendant the cost of removing the Left Property.  I shall so make such an order as sought in §1(b) of the Summons.

CONCLUSION

27.  In the aforesaid premises, I shall grant the declaratory reliefs sought by the plaintiff in §1(a) & (b) of the Summons. 

28.  Costs should follow the event.  I make an order that the defendant do pay the costs of this action, including costs of and occasioned by the Summons, such costs to be taxed if not agreed and the plaintiff’s own costs to be taxed in accordance with the legal aid regulations.

29.  Lastly, I would like to thank the plaintiff’s solicitors for the very succinct and helpful submissions they have prepared for this hearing.