Leung Ming v. Lau Sai-wing

CACV000041/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 41 OF 1974

(ON APPEAL FROM O. J. 2879/73)

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

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

Coram: Full Court (Briggs, C.J., Huggins & McMullin, JJ.)

Date of Judgment: 7th July, 1975.

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

JUDGMENT

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

McMullin J. :

1. I am quite satisfied that this appeal must be dismissed. It has never been disputed that a large quantity of valuable machinery belonging to the plaintiff was on the premises purchased by the defendant nor is it denied that a considerable part thereof has disappeared. Although there was wanting explicit evidence as to how various items of the machinery listed in the schedule to the Bill of Sale were actually removed, at what time or times, and in what manner eventually disposed of, the evidence was quite sufficient to justify the inference drawn by the learned judge that they had been disposed of by the defendant.

2. The defendant's case was that whatever machinery was removed had not been removed by him and he pointed out that it could have been removed by the plaintiff at any time after the latter had purchased the premises in February 1972 and before the date of the defendant's purchase of the premises in May, or indeed that they could have been removed by other persons at any time thereafter up to December 1973 since the premises were apparently in the hands of watchmen only and not personally occupied by the defendant who admits that legal possession thereof had been restored to him on the 8th of June.

3. There was an agreed inventory of machinery still on the premises in December and the judge accepted the plaintiff's estimate of what remained as being worth about $15,000 only. In other words an inconsiderable proportion of the original machinery remained.

4. There was a period between the 23rd of May and the 5th of June when both the plaintiff and the defendant had access to the premises and the judge accepted the plaintiff's evidence that on the 4th of June he found some items of machinery missing and one of the largest machines partially dismantled. On the 5th he discovered two persons dismantling some of the larger machinery. It is plain from the evidence generally that some of the machines were very large indeed and that the premises were virtually filled by the machinery as a whole. The plaintiff admitted having removed some small items before he received the ultimatum from the solicitors for the defendant by letter of the 25th of May calling upon him to remove all his property within three days, a request which was clearly not possible to comply with in view of the nature of the property. Also he admitted to having removed some small parts on the 7th of June but the rest he maintained had been made away with by the defendant or his agents.

5. Prima facie since the defendant was in control of the premises from the 8th of June onward the judge, accepting the plaintiff's evidence even thus far, had adequate material for his finding that it was the defendant who had caused their removal. In addition however he relied on the letter dated 15th June 1973 in which the solicitors for the defendant complained that the defendant had had to employ contractors to "dispose of derelict machineries and chattels which were trespassing his premises" and impeding his use thereof. The very fact that the defendant in giving evidence sought to resile somewhat from this admission was additional reason for not believing his disclaimer of responsibility. Most remarkable of all, he never at any time informed the plaintiff or the plaintiff's solicitors of what had happened to the property on his premises and it is impossible to believe that he did not know that it had been removed therefrom.

6. The only reasonable inference from all of this was that the defendant had indeed disposed of the plaintiff's property in a manner inconsistent with the plaintiff's title thereto. He cannot have believed that he was dealing with bona vacantia and his description of property as "derelict machinery" which had fetched $125,000 on the open market is clearly disingenuous. The self-help cases to which Mr. Bernacchi referred us are quite sufficient to establish that an owner of land may abate a nuisance thereon without committing a conversion of it but they scarcely cover the act of deliberately making away with valuable machinery in such a way as to frustrate the owner's rights in it and this without any attempt to apprise him or his legal advisers of the steps being taken.

7. As to whether the judge was right to reduce the damages by reason of the plaintiff's failure to remove any of the machinery in the three days limited by the letter of the 27th of May I prefer in the present case to express no opinion. It may be that the power to do so in the case of conversion is given by S. 21 of the Law Amendment and Reform Ordinance. Certainly that section appears to extend the notion of contributory fault to a range of cases wider than those normally in question when considerations as to contributory negligence arise. But at all events even if we were to say that the judge was wrong the effect would be that the successful plaintiff had recovered less by way of damages than he deserved to recover and there is no appeal by either party here on the question of damages.

8. For these reasons I would dismiss the appeal.

Representation: 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 41 OF 1974

(ON APPEAL FROM O. J. 2879/73)

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

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

Coram: Full Court (Briggs, C.J., Huggins & McMullin, JJ.)

Date of Judgment: 7th July 1975.

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

JUDGMENT

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

Huggins, J.:

I agree. The issue is whether the evidence justified the inference that the machinery was converted by the Defendant to his own use. The Defendant purchased the factory on 23rd May under a contract which gave him vacant possession. He maintains in the first place that there was insufficient evidence that the machinery which he is alleged to have converted was then in the premises. Next he says that, even if there was, there was insufficient evidence that he dealt with it in a way which amounted to conversion. I think there was sufficient evidence on both points. I do not question the Defendant's right to remove goods which were unlawfully on his land. The judge was satisfied that the Plaintiff had no valid permission to keep his machinery there and in my view the Defendant was under no obligation to give him time to remove the goods. What he could not lawfully do was to dispose of them himself. It was one limb of his defence that he did dispose of what he described as "derelict machineries and chattels" but of nothing else. The judge found that the Plaintiff did not remove the missing goods himself and that the Defendant's agents were seen dismantling some of them. A letter from the Defendant's solicitors admits that he called in contractors to remove what was "trespassing his premises", although in his cross-examination the Defendant denied having done so.

It was a reasonable inference that the Defendant in fact disposed of more than he admitted to. I, too, would dismiss the appeal.

7th July 1975.

Representation: