Cheung Yiu Leung v. Cheung Chong Money Exchange O/B Cheung Chong Ltd and Others
Read the full judgment text of DCCJ 3533/2021 on BabelCite. This District Court judgment was delivered on 27 September 2024.
1. The plaintiff commenced the present action against the defendants for, inter alia , restitution of $800,000 that was paid to the defendants (either directly or indirectly) as a result of fraud. The plaintiff relies on the unjust factor of mistake.
Cited by 1 case · Cites 7 cases
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DCCJ 3533/2021 [2024] HKDC 1596 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 3533 OF 2021 --------------------------------------- BETWEEN
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------------------------- JUDGMENT ------------------------- 1.The plaintiff commenced the present action against the defendants for, inter alia, restitution of $800,000 that was paid to the defendants (either directly or indirectly) as a result of fraud. The plaintiff relies on the unjust factor of mistake. 2.The plaintiff has transferred two sums of $400,000 to the defendants. The first sum of $400,000 was transferred to the bank account of the 1st defendant directly (“1st Sum”). 3.Another sum of $400,000 was first transferred to an account held under the name of “SIU CHUN HONG” and then to a joint account held by the 2nd and 3rd defendants (“2nd Sum”). Part of the 2nd Sum was subsequently transferred to the personal bank account of the 2nd defendant. 4.According to the police, both the 1st and 2nd Sums are “frozen”. 5.Settlement has been reached between the plaintiff, the 2nd and the 3rd defendants. 6.The remaining claim in the present trial is the one between the plaintiff and the 1st defendant. 7.It was the common ground between the plaintiff and the 1st defendant that they never had any interactions (whether meetings or any form of communications) at all material times. In principle, they are putting each other’s cases to strict proof. 8.As such, the parties’ respective cases should be analysed separately. The plaintiff’s case 9.The plaintiff claims that he transferred the 1st Sum to the 1st defendant on the mistaken belief that such sum was meant to be a proof of his ability to repay an intended loan from Hang Seng Bank. It was subsequently revealed that he was deceived by certain fraudsters who passed off as the staff of Hang Seng Bank. The details are as follows. 10.In or around August 2020, the plaintiff, a practising barrister, made an online application to Hang Seng Bank for a personal loan. It was the first time he applied for any loan since the mortgage application for his residence in 1999. He also has not had any bank accounts with Hang Seng Bank since he went overseas for education in the 1980s. 11.In the subsequent liaison, the plaintiff provided his personal information and documents to Hang Seng Bank as requested. The plaintiff recalled that such information was provided to Hang Seng Bank through email. However, the plaintiff could no longer retrieve such email as a result of the change of his computer. 12.In late August 2020, the plaintiff received a call from an unnamed person who held himself out as a member of the staff of Hang Seng Bank. That person referred to the plaintiff’s application for loan and wanted to confirm the details of the loan, including the amount. That person gave the plaintiff an impression that he was well aware of the personal information that the plaintiff had provided to Hang Seng Bank previously. The plaintiff informed such person of his intention to raise a loan of minimum $2,000,000 and ideally $4,000,000 to cover the expenses of renovating his barristers’ chambers. No agreement was concluded in the said telephone conversation. The plaintiff regarded that as a mere follow-up for his loan application. 13.On or around 22 September 2020, the plaintiff received a phone call from a person who identified himself as “Fan Chun Yan” (范俊仁) (“Fan”) and held himself out as a member of the staff of Hang Seng Bank. Fan referred to the plaintiff’s loan application and suggested that Hang Seng Bank could grant a loan of $2,000,000. However, in order to assess the plaintiff’s financial situation and the ability to repay, the plaintiff would have to deposit a “refundable guarantee deposit” (“Deposit”) in the amount of $400,000. Fan further alleged that the Deposit was only temporary in nature and would be refunded to the plaintiff once the loan application was approved. Also, the plaintiff did not have any bank accounts with Hang Seng Bank at the time, and he asked Fan to where he should transfer the sum of $400,000. In reply, Fan alleged that Hang Seng Bank would designate a financial institution to receive the sum. 14.During the discussion, Fan was able to recite and refer to many personal details concerning the plaintiff. Fan also provided through WhatsApp a photo of his purported name card (in Chinese) which suggested that Fan was the “商務理財業務處助理副總裁” of Hang Seng Bank (“Fan’s Card”). Those matters led the plaintiff to believe that Fan had had sight of the said financial documents previously provided by the plaintiff to the Hang Seng Bank, and that he was a genuine staff member of the Hang Seng Bank. 15.Fan and plaintiff continued to liaise over the phone. Fan suggested that he would make arrangement for the plaintiff to sign the loan documents. When the plaintiff asked which branch of Hang Seng Bank he should attend to sign the documents, Fan hesitated, and then suggested that the plaintiff could sign the documents at any branch, but he would confirm the exact time and location in due course. 16.On or about 22 September 2020, the plaintiff received a call from Fan inviting him to attend to a financial institution called “Think Market” at 19/F of the Two IFC. Fan alleged that “Think Market” was running a foreign exchange business and was in charge of approving the plaintiff’s loan application. Fan requested the plaintiff to bring his identity card and address proof to find one “Mr Ng” at Think Market’s office. Fan further suggested that the plaintiff would receive details of how to remit the Deposit after all documents were signed. 17.On or about 29 September 2020:
18.Two to three days after the 1st Sum was remitted, Fan called the plaintiff again, and suggested that Hang Seng Bank could raise the loan amount to $4,000,000 on the condition that the plaintiff should made another Deposit. Fan reassured the plaintiff that this further Deposit would also be returned to the plaintiff within two weeks. The plaintiff expressed interest and requested some time to prepare for the sum. 19.On 7 October 2020:
20.One or two days after 7 October 2020, Fan contacted the plaintiff and requested him to attend the Hang Seng Bank office at Kowloon Bay, which was the address stated on Fan’s Card, on 12 October 2020 at noon. The proposed meeting was subsequently rescheduled to 14 October 2020 at noon. 21.On 14 October 2020:
22.In the beginning of November, the plaintiff was informed by the police that a few suspects were arrested, and both D1’s Account and Siu’s Account were frozen. 23.On 18 November 2020, the plaintiff attended an identity parade and identified Ng. The plaintiff also gave another witness statement on the said occasion. 24.It is also the plaintiff’s case that he had never met any persons that had featured in the case of the 1st defendant. The plaintiff’s case: credibility and reliability 25.Insofar as evidence is concerned, the plaintiff relies mainly on his own testimony. He has not called any other witness. Documentary evidence is also limited. It is noteworthy that the plaintiff cannot produce any emails or WhatsApp messages featured in his case. The explanation given by the plaintiff was that he has lost the emails because of the change of computer, and he had a habit of deleting WhatsApp messages. 26.Mr Stephen Siu, counsel for the 1st defendant, argued that the plaintiff is not a reliable witness. He, however, refrained from making an outright attack on the credibility of the plaintiff. Mr Siu submitted that the plaintiff’s evidence should be approached with caution, particularly on his explanation as to what his subjective state of mind was when he transferred the 1st Sum to D1’s Account. 27.The plaintiff’s statement of mind is the key to one of the crucial issues in the present case, namely whether the plaintiff was labouring under a mistaken belief, or whether such mistake was (for the purpose of establishing a case of unjust enrichment) negatived by any doubt on his mind about the truthfulness of what the plaintiff was given to believe. 28.The 1st defendant, whether in cross-examination or in closing submissions, has pointed out a series of discrepancies or omissions of the plaintiff’s evidence set out in the witness statement and the police statement, for example:
29.The 1st defendant also heavily criticised the plaintiff’s explanations for his failure to produce any emails as well as the WhatsApp messages in the evidence. Mr Siu in his closing submissions invited the Court to draw an adverse inference against the plaintiff and to find that the plaintiff was not mistaken about the identities of Fan and Ng. Effectively, Mr Siu is suggesting that the plaintiff was not an honest witness and did not tell the truth of what actually happened. 30.I have considered the evidence as a whole. Whilst the plaintiff’s evidence between the police statement and the witness statement differed to some extent, I do not find him an incredible witness, or there were grounds for any inference that the plaintiff in fact knew the true identifies of Fan and Ng:
31.As far as the plaintiff’s failure to produce the material emails and WhatsApp messages is concerned:
32.The plaintiff’s actual state of mind when he made the payment of the 1st Sum will be analysed in the later part of this judgment. The 1st defendant’s case 33.The 1st defendant relies on the defence of bona fide change of position. 34.Since 2017, the 1st defendant has been licenced by the Customs and Excise as a money service operator under the Anti-Money Laundering and Counter-Terrorist Financing Ordinance, Cap. 615 (“Ordinance”). 35.During September 2020:
36.The 1st defendant came across the plaintiff (on paper only) through one Choi Chun Fung (蔡振鋒, “Choi”). In 2017, Chong met Choi at a wedding banquet. Both Chong and Choi were of Fujian origin. At the wedding banquet, Chong was given to understand that Choi was in the business of insurance. Chong and Choi did not meet after the said wedding banquet until September 2020. 37.On 11 September 2020, Choi attended the shop of the 1st defendant and met Chong. Choi suggested to Chong that his friends, relatives and clients needed to remit funds to the Mainland. Chong inquired with Choi as to the source of funds and the use of them. Choi suggested that the funds were mostly sale proceeds of stocks in Hong Kong which needed to be remitted to the Mainland. Chong stated to Choi that the 1st defendant did provide such remittance service, but Choi should provide information of his clients, such as identity documents and address proof, for the 1st defendant to perform due diligence. Also, Chong requested Choi to provide identity documents and address proof if Choi were to handle the remittance on behalf of his clients as an agent. If the remittance sum was substantial, further documents would be required. Choi suggested to Chong that he understood the 1st defendant’s requirements and exchanged mobile numbers with Chong for future contact. 38.Choi subsequently sent a copy of his identity card and his address proof to Chong. 39.On 29 September 2020:
40.In October 2020, the 1st defendant was informed by Public Bank that some of its funds were frozen. 41.After the present action was commenced, Chong attempted to contact Choi but to no avail. The 1st defendant’s case: credibility and reliability 42.Both Chong and Loh testified in the trial. Their credibility as witness is not seriously challenged by the plaintiff. There is no suggestion that their evidence was in any way incredible or unreliable. 43.Nor do I see any valid grounds for such suggestion. Chong and Loh were forthcoming in their oral testimonies. At times, they volunteered details that would be to the detriment of the 1st defendant’s case (to be detailed below). 44.I therefore accept that both Chong and Loh as truthful witnesses. There evidence will be further analysed when the 1st defendant’s case analysed in detail. Issues 45.As held by the Court of Final Appeal in Shanghai Tongji Science & Technology Industrial Co Ltd v Casil Clearing Ltd (2004) 7 HKCFAR 79, at §79, the useful framework for approaching a claim of unjust enrichment involves four questions:
46.There is no dispute between parties that the 1st defendant was enriched to the extent of the 1st Sum, and such enrichment was at the plaintiff’s expense. 47.The parties’ focus was on the third and the fourth questions. As the trial progressed, parties have crystalised the key issues as follows:
Operative mistake 48.A “mistake” for the purpose of the law of unjust enrichment involves an incorrect belief or assumption about a past or present state of affairs: Goff & Jones: The Law of Unjust Enrichment, 10th ed., §9-06. 49.A claimant will not be denied recovery for mistake merely because he is negligent where he was unaware of the risk that his belief or assumption might be incorrect: Goff & Jones: The Law of Unjust Enrichment, 10th ed., §9-034. 50.As analysed above, the plaintiff’s case is based on the following mistaken beliefs about the state of affairs which were present when he transferred the 1st Sum to D1’s Account:
51.The 1st defendant first argued that the plaintiff’s mistaken belief was only a misprediction of a future event, namely the intended loan would be granted after the payment of the 1st Sum to D1’s Account, which did not ground a claim for restitution. The 1st defendant relied on Dextra Bank & Trust Co Ltd v Bank of Jamaica [2001] UKPC 50 to support the said argument. 52.With respect, such argument is simply a non-starter. The fallacy of the 1st defendant’s argument is immediately apparent in paragraph 29 of Dextra Bank & Trust Co Ltd v Bank of Jamaica which was quoted in its submissions:
53.As set out above, the fundamental elements of the plaintiff’s mistaken belief are all specific facts that were past or present as of the transfer of the 1st Sum, rather than a mere misprediction of the nature of the transaction which would come into existence upon the payment of the 1st Sum to the 1st defendant. The plaintiff was induced by Fan and Ng to believe that he was all along following Hang Seng Bank’s instructions, and the payment of the 1st Sum was required by Hang Seng Bank and was made to the agent of Hang Seng Bank. The plaintiff took no risk in transferring the 1st Sum to D1’s Account. The plaintiff transferred the 1st Sum on the belief that it was refundable whether the intended loan materialised or not. 54.I therefore reject the argument of the 1st defendant that the plaintiff was labouring under a mere misprediction. 55.The second argument of the 1st defendant was that if the plaintiff was labouring under a mistake (as opposed to a mere misprediction), such mistake was negatived by (i) his doubt as to the truthfulness of the matters that he was induced to believe, and (ii) his failure to respond to the doubt reasonably, or the plaintiff had waived any inquiry into true facts. 56.Whether the plaintiff had doubts about the truth of what he was induced to belief is a subjective matter. A doubt was described as “a claimant’s conscious appreciation that the facts or law may not be as he believes them to be.”: Goff & Jones: The Law of Unjust Enrichment, 10th ed., §9-18. 57.As to the degree of doubt that is required to negative an operative mistake, a “mere passing uncertainty about whether there is liability in the mind of the payor…when considering what to do does not amount to doubt of the kind that might preclude recovery, and these difficult questions arise when the payor has persisting doubt when the decision to pay was taken and acted upon”: BP Oil International v Target Shipping Ltd [2012] 2 Lloyd’s Rep 245, at §223, emphasis added. 58.The 1st defendant referred to Derby v Scottish Equitable Plc [2001] 2 All ER (Comm) 274, at §§23-24, and argued that one does not have to be under a substantial degree of doubt to negative a mistake, as it would suffice if the plaintiff was put on inquiry but consciously decides to pay without making further inquiry. The 1st defendant further argued that “it is unnecessary that the claimant has to be under a substantial degree of doubt; where a claimant is put on inquiry, it is sufficient to trigger the subsequent question of whether the claimant responded reasonably to the inquiry.” The 1st defendant then proceeded to made substantial submissions on whether the test for assessing if a claimant had responded to the doubt or inquiry reasonably should be an objective or a subjective test. 59.Two points in the 1st defendant’s said argument should be rejected. 60.First, the phrase “being put on inquiry” by no means suggests a minimal threshold for the definition of a doubt. Derby v Scottish Equitable Plc was not an authority of such proposition. Instead, the English Court of Appeal in that case simply affirmed the contrast between carelessness, however culpable, and the situation where the paying party is on inquiry but consciously decides to pay without making further inquiry (see §24). In other words, the need for a subjective doubt, as opposed to merely being objectively negligent, is necessary to negative a mistake. 61.Ultimately, the test of whether the claimant was mistaken despite his doubts is “whether the claimant believe that it was more probable than not that the facts or law were otherwise than they in fact were.”: Goff & Jones: The Law of Unjust Enrichment, 10th ed., §9-23. “[A] payer can still be said to be under a mistake, even if he has doubts, provided that he paid concluding that it was more likely than not that he was liable to pay.”: Marine Trade SA v Pioneer Freight Futures Co Ltd BVI [2010] 1 Lloyd’s Rep 631, at §76, emphasis added, adopted in Globenet Droid Ltd v Hong Kong Hang Lung Electronic Co [2016] 3 HKLRD 863, at §36. 62.Second, I take the view that the law does not introduce an objective test into the assessment of whether a claimant has responded reasonably to a doubt or an inquiry. In Globenet Droid Ltd v Hong Kong Hang Lung Electronic Co, Deputy District Judge Gary Lam (as he then was) held, and I respectfully agree, that:
63.In fact, Derby v Scottish Equitable Plc was an example where the inadequacy or negligence in the investigation carried out in good faith to address the initial inquiry was held not to be a waiver of inquiry or cancelling the mistake. 64.It is only consistent with the subjective nature of a doubt to require a good faith response to an initial doubt (rather than an objectively reasonable one with reference to the concept of negligence). If there is an initial doubt, and the claimant did not honestly resolve it, the doubt simply persists on his mind, and the mistake is negatived. If a claimant responds to an initial doubt in an objectively unreasonable manner, and yet, he claims that the doubt has been resolved, it might provide a basis to infer that the doubt has in fact not been resolved. However, it is no more than an evidential matter. To introduce an obligation to respond to a doubt in an objectively reasonable manner with reference to the concept of negligence would fundamentally change the subjective nature of a mistake. The terminologies such as “assumption of risk” or “waiver of inquiry” do not suggest that whether a doubt has negatived a mistake is an objective question. The ultimate question should remain the same: when the claimant pays, does he subjectively believe that, more likely than not, he is liable to pay? 65.The 1st defendant’s argument that the plaintiff’s mistake was negatived by a doubt boils down to two points:
66.For reasons set out above, I have rejected the objective test for assessing the “reasonableness” of a response to an initial doubt. 67.The 1st defendant’s factual arguments that the plaintiff did in fact have initial doubt about Fan and Ng’s assertions were also invalid on evidence. 68.Whether in the witness statement or in his oral testimony, the plaintiff had consistently explained that he all along had never doubted the truthfulness of what was said to him by Fan and Ng for the following reasons:
69.The 1st defendant’s argument that the plaintiff simply made the payment of the 1st Sum irrespective of the validity or invalidity of the 1st defendant’s authority to receive the 1st Sum is incompatible with the plaintiff’s clear evidence. Whilst the plaintiff explained that he did not have concerns when he acceded to the request for the payment of the 1st Sum because the transaction would be traceable, he was justifying his confidence in Fan and Ng rather than the lack of it. 70.All in all, any suggestion that the plaintiff believed that, more likely than not, Fan and Ng did not represent Hang Seng Bank is both inherently improbable and contrary to the evidence. 71.I therefore find that the plaintiff has established an operative mistake for the purpose of his claim for unjust enrichment. Bona fide change of position 72.The defence of bona fide change of position was described by Lord Goff in Lipkin Gorman (A Firm) v Karpnale Ltd [1991] 2 AC 548, at pp. 579F, 581-583, as follows:
73.Such formulation has been consistently followed by the Courts in Hong Kong, which regarded it as having the greatest persuasive effect: Credit One Finance Ltd v Yeung Kwok Chi & Ors [2021] 1 HKC 598, at §63. 74.In deciding whether a defendant should be entitled to successfully rely on a defence of change of position, the fundamental issue is the justice or injustice of enforcing a restitutionary claim in respect of a benefit conferred. But the Courts must proceed on the basis of principle, and not sympathy, in order that the defence of change of position should not disintegrate into a case-by-case discretionary analysis of the justice of individual facts: Credit One Finance Ltd v Yeung Kwok Chi & Ors, at §69. 75.The burden is on the defendant to establish that (i) he has suffered a detriment (e.g. reduction of asset), (ii) such detriment was causally linked with his enrichment, and (iii) the defendant changed his position in good faith: Goff & Jones: The Law of Unjust Enrichment, 10th ed., §§27-08, 27-11, 27-46. 76.There is no dispute that the 1st defendant has suffered detriment as a result of the Mainland Transfer, and such detriment was causally linked to the enrichment, namely the receipt of the 1st Sum. 77.The main dispute is whether the 1st defendant made the Mainland Transfer in good faith. 78.The defence of change of position is not open to one who has changed his position in bad faith, and it is commonly accepted that the defence should not be open to a wrongdoer: Lipkin Gorman (A Firm) v Karpnale Ltd, at p. 580C. 79.In Niru Battery Manufacturing Co & Anor v Milestone Trading Ltd & Ors [2004] QB 985, at §164, the English Court of Appeal approved a judgment in the court below explaining the breadth of bad faith:
80.The business of the 1st defendant, as a licensed money service operator, is subject to the regulatory regime under the Ordinance.[1] 81.Pursuant to section 5 of the Ordinance:
82.Pursuant to section 2 of Schedule 2 of the Ordinance, if a person purports to act on behalf of the customer, the 1st defendant shall adopt, inter alia, the following customer due diligence measures:
83.Pursuant to sections 3(1)(a) & 3(1)(b) of Schedule 2 of the Ordinance, the 1st defendant must carry out customer due diligence measures in relation to a customer before establishing a business relationship with the customer, and before carrying out for the customer an occasional transaction involving an amount equal to or above $120,000. Customer due diligence must also be carried out before carrying out for the customer a wire transfer involving an amount equal to or above $8,000 under section 3(1A) of Schedule 2. 84.Pursuant to section 23 of Schedule 2 of the Ordinance, the 1st defendant must take all reasonable measures:
85.Money laundering is defined under Schedule 1 of the Ordinance as an act intended to have the effect of making any property that is the proceeds obtained from the commission of an indictable offence under the laws of Hong Kong, or of any conduct which if it had occurred in Hong Kong would constitute an indictable offence under the laws of Hong Kong; or that in whole or in part, directly or indirectly, represent such proceeds, not to appear to be or so represent such proceeds. 86.In such context, the requirements under the Ordinance on how the 1st defendant should conduct its money service business weigh heavily on the assessment of whether the 1st defendant had acted in a commercially acceptable or unacceptable way for the purpose of the defence of bona fide change of position. Should a defendant’s enrichment and/or change of position involve any material breach of such statutory requirements, the defendant should be held as acting in a commercially unacceptable way and fail on the bona fide change of position defence: Arrow ECS Norway As v M Yang Trading Ltd & Ors [2018] 5 HKC 317, at §§31(4)(6) and 36; Yip Wai Hung v Shang Hai Bsuiness Information Limited [2023] HKDC 401, at §50. 87.In the present case, the evidence is clear that the 1st defendant did not act in a commercially acceptable way in arranging for the receipt of the 1st Sum and the making of the Mainland Transfer. 88.From Choi’s initial approach to the 1st defendant on 11 September 2020, to the Mainland Transfer being made on 29 September 2020, the 1st defendant had only performed the following steps of due diligence:
89.Crucially, the 1st defendant never asked for any proof of Choi’s authority to act on behalf of the plaintiff to tranfer the RMB equivalent of the 1st Sum to Yang. 90.Chong in his testimony insisted that the facts that (a) Choi could provide the identity documents and address proof of the plaintiff, as well as that (b) the 1st Sum was transferred from the plaintiff’s personal account to D1’s Account were sufficient proof of Choi’s authority to act on behalf of the plaintiff. 91.I do not accept what Chong suggested was sufficient for the purpose of sections 2(1)(d)(ii) and 23 of Schedule 2 of the Ordinance:
92.I do not consider Loh’s evidence to be able to alter the conclusion above:
93.For reasons above, the 1st defendant has failed to establish the defence of bona fide change of position as a result of its commercially unacceptable conduct. 94.For completeness, the 1st defendant argued that the since the illegality principle in Tinsley v Milligan [1994] 1 AC 340 has been replaced by the principle in Patel v Mirza [2016] UKSC 42 as a result of the ruling of the Court of Appeal in Monat Investment Ltd v All Persons in occupation of part of No. 16, Ma Po Tseun, Mui Wo, Lantau Island & Anor [2023] HKCA 479, illegality no longer automatically defeat the defence of change of position in good faith; instead, the Court shall apply the test in Patel v Mirza to decide whether the illegality has negatived the good faith. 95.For reasons I have stated above, the failure of the 1st defendant to carry out proper due diligence was by itself a commercially unacceptable behavior. There is no need to invoke the illegality principle whether under Tinsley v Milligan or Patel v Mirza. Even if one were to apply the test in Patel v Mirza to the facts of the present case, the result will remain the same:
Reliefs 96.At the opening submissions, the plaintiff abandoned the claim for punitive damage and focused solely on the claim for restitution. 97.For reasons above, I grant a monetary judgment of $400,000 against the 1st defendant, with interest thereon at the rate of 1% above the HSBC Hong Kong Dollars Prime Rate from 29 September 2020 until judgment, and at judgment rate from the date hereof until payment. 98.I also make an order nisi that costs of the action be to the plaintiff, with certificate for one counsel, to be taxed if not agreed.
Mr Shek Randy, instructed by Kenneth Lam, Solicitors, for the plaintiff Mr Siu Stephen, instructed by Jisp Cheung & Co, Solicitors for the 1st defendant The 2nd and 3rd defendants, represented by Messrs. Cheung Fung & Hui, (appearance exempted) [1] In the closing submissions, the plaintiff included the Guideline on Anti-Money Laundering and Counter-Financing of Terrorism (For Money Service Operator) published by the Custom and Excise in June 2023 (“Guideline”) as an additional authority. Such attempt to slip a piece of evidence into the trial and pass it off as a legal authority is unacceptable. The Guideline is not law but evidence, which to the fairness of the 1st defendant must be put to the relevant witness(es) at the evidence stage of the trial. The plaintiff did not do so. The plaintiff’s attempt to rely on the Guideline in such manner is clearly prejudicial to a fair trial and must be rejected. In any event, the Guideline was only published nearly 3 years after the subject incident and is prima facie irrelevant. I will not consider the Guideline in this judgment. | |||||||||||||||||||||||||
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