Chinese Arts and Craft (H.K.) Ltd. and Others v. Chan Kin Chung and Others

HCA009123/1991

HCA-9123/91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 9123 of 1991

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Coram: Master M. Yuen in Court

Date of hearing: 10 January 2001 and 11 January 2001

Date of handing down Judgment: 7 March 2001

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Assessment of Damages

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1. This is an assessment of damages for conversion.

The 7th Plaintiff

2. Pakuse Limited, the 7th named Plaintiff at the commencement of the action, was wound up by a court order on 14 June 1995. By an assignment dated 6 November 1995 the provisional liquidator of Pakuse Limited assigned the interest of Pakuse Limited in the present proceeding to CGM(H.K.) Ltd. CGM(HK) Ltd has since changed its name to Crawford-THG (HK) Limited. Crawford-THG (HK) Limited was substituted as the 7th Plaintiff in lieu of Pakuse Limted, after leave had been granted by the court.

Service of Process regarding the court's hearing of assessment

3. All Defendants were notified of the assessment hearing. Only D1, D6, D8 and D9 elected to attend. D1 declined to attend court on the 2nd day while D8 failed to turn up on the 2nd day of the assessment hearing.

4. D1, D4 and D8 are still detained in Siu Lam Psychiatric Centre. In the Plaintiff's affirmation it was stated that D1 and D4 were incarcerated in Siu Lam for their own protection as they had testified as prosecution witnesses in other criminal prosecution. D1, who appeared in court, gave clear and rational answers in court. There was nothing before me to suggest D1, D4 and D8 do not have the mental capacity to handle their own affairs even though they are detained in a psychiatric centre.

5. Affidavits of service on all 12 Defendants were filed. In the absence of evidence to the contrary, I accept service of the assessment hearing on all Defendants to be regular.

The Events

6. The Plaintiffs were business entities engaging in jewellery trades. Over a period of 2 years between July 1989 and July 1991 the Defendants robbed the eight Plaintiffs a total of over HK$70 millions worth of properties, including cash and jewelleries. In the course of the robberies the Defendants threatened the staff of the Plaintiffs with guns, damaged the showcases and furniture belonging to the Plaintiffs.

7. In the statement of claims the 9 robberies were particularized as follows: -

(i) The 1st Robbery - The 1st Plaintiff was robbed of jewelleries by D1, D3, D4, D5, D6, D9 and D10 at its shop located at the shopping arcade of Whampoa Gardens in Hung Hom, Kowloon on 29 July 1989.

(ii) The 2nd Robbery - The 1st Plaintiff was robbed of jewelleries by D1, D3, D6 and D9 at another shop in Silvercord Centre, 30 Canton Road, Tsimshatsui, Kowloon on 22 November 1989.

(iii) The 3rd Robbery - The 2nd Plaintiff was robbed of cash and jewelleries at Shop M5, mezzanine floor, Mandarin Oriental Hotel Shopping Arcade, Chater Road, Central, Hong Kong by D1 to D10 on 19 March 1991.

(iv) The 4th Robbery - The 3rd Plaintiff was robbed of cash and jewelleries at its shop at the ground floor of Hing Wai Building, 1A D'Aguilar Street, Central, Hong Kong by D1, D3, D5, D6, D7, D8, D9, D11 and D12 on 11 July 1990.

(v) The 5th Robbery - The 4th Plaintiff was robbed of cash and jewelleries at its shop at 341-343 Tower Two, Pacific Place, 88 Queensway, Hong Kong by D1 to D10 on 20 July 1991.

(vi) The 6th Robbery - The 5th Plaintiff was robbed of jewelleries at Shop 1-C, ground floor and the1st floor, 36 Queen's Road Central, Hong Kong by D1, D2, D3, D5, D6, D7, D8 and D9 on 6 June 1991.

(vii) The 7th Robbery - The 6th Plaintiff was robbed of cash and jewelleries at Shop 9A, Basement One, New World Centre, Tsimshatsui, Kowloon by D1, D3, D5, D6, D7, D9 and D10 on 9 December 1990.

(viii) The 8th Robbery - Pakuse Limited was robbed of jewelleries at Shop R011, ground floor, Regent Hotel Shopping Arcade, Tsimshatsui, Kowloon by D1, D3, D5, D6, D7, D8 and D9 on 16 November 1990.

(ix) The 9th Robbery - The 8th Plaintiff was robbed of jewelleries at its premises at Shop H3, Grand Hyatt Hotel, 1 Harbour Road, Wanchai, Hong Kong by D1,D3, D5, D6, D7, D8, D9, D11 and D12 on 7 March 1990.

Criminal Proceedings

8. The Defendants who were arrested had been brought to trial and were convicted of armed robberies in the following criminal proceedings:-

HCCC-159/92

(i) D1 was convicted of all of the above robberies, except the 7th and 9th robberies.

HCC-160/92

(i) D3 was convicted of the 1st, 3rd, 6th, 7th and 8th robberies.

(ii) D4 was convicted of the 1st and 3rd robberies.

HCCC-120/92

(i) D6 was convicted of the 1st, 3rd, 4th, 5th, 6th, 8th and 9th robberies.

(ii) D7 was convicted of the 3rd, 4th, 5th, 6th and 8th robberies.

(iii) D8 was convicted of the 5th, 6th and 8th robberies.

(iv) D9 was convicted of the 3rd and 6th robberies.

(v) D10 was convicted of the 3rd, 5th and 8th robberies.

Compensation Orders made in the Criminal Proceedings

9. At the conclusion of the criminal proceedings the trial judge awarded compensation orders, restitution orders and orders for sale in respect of items seized from the Defendants. Pursuant to the said Orders the Plaintiffs were compensated in part as follows:-

(i) The 2nd Plaintiff received cash HK$283,919.02 and the return of a pair of HK$20,000 ear-rings.

(ii) The 3rd Plaintiff received cash HK$1,076,130.08 and a pair of HK$50,000 cuff-links

(iii) The 4th Plaintiff received cash HK$504,227.19.

(iv) The 5th Plaintiff received cash HK$65,834.98 and the return of a HK$500 necklace.

(v) The 7th Plaintiff received cashed HK$849,547.36.

(vi) The 8th Plaintiff received cash HK$77,882.95.

Civil Proceeding and Default Judgments on Liability

10. On 14 August 1997, in default of notice of intention to defend by the 12th Defendant, judgment was entered in favour of the 3rd and 8th Plaintiffs against the 12th Defendant for damages to be assessed with interest and costs.

11. On 23 October 1998 in default of notice of intention to defend by the 1st, 3rd, 4th, 5th, 7th, 8th, 9th and 11th Defendants, and in default of defence by the 2nd, 6th and 10th Defendants, the Plaintiffs were granted judgment, in addition to costs, in the following terms:-

(i) D1, D3, D4, D5, D6, D9, D10 do pay the 1st Plaintiff damages for conversion and interest thereon to be assessed;

(ii) D1, D3, D6 and D9 do pay the 1st Plaintiff damages for conversion and interest thereon to be assessed;

(iii) D1, D2, D3, D4, D5, D6, D7, D8, D9 and D10 do pay the 2nd Plaintiff damages for conversion and interest thereon to be assessed;

(iv) D1, D3, D5, D6, D7, D8, D9, D11 and D12 do pay the 3rd Plaintiff damages for conversion and interest thereon to be assessed;

(v) D1, D2, D3, D4, D5, D6, D7, D8, D9 and D10 do pay the 4th Plaintiff damages for conversion and interest thereon to be assessed;

(vi) D1, D2, D3, D5, D6, D7, D8 and D9 do pay the 5th Plaintiff damages for conversion and interest thereon to be assessed;

(vii) D1, D3, D5, D6, D7, D9 and D10 do pay the 6th Plaintiff damages for conversion and interest thereon to be assessed;

(viii) D1, D3, D5, D6, D7, D8 and D9 do pay the 7th Plaintiff damages for conversion and interest thereon to be assessed;

(ix) D1, D3, D5, D6, D7, D8, D9, D11 and D12 do pay the 8th Plaintiff damages for conversion and interest thereon to be assessed;

The Assessment

12. At the date of the assessment hearing, the 1st Plaintiff was no longer interested in pursuing with the assessment of damages. What remain to be decided are the damages the remaining seven Plaintiffs suffered as a result of the 3rd to the 9th robberies, i.e. the value of the properties stolen or damaged by the 12 Defendants in the robberies.

Quantification of Damages

13. The questions this court is invited to resolve are :-

(i) the quantity of property stolen from the respective Plaintiffs;

(ii) the value of the goods at the date of conversion;

(iii) any restitution of the property stolen; and

(iv) rebate given for compensation received by the Plaintiffs.

14. It is the Plaintiffs' case that the participating Defendants are jointly and severally liable to the Plaintiffs for the robberies they respectively took part in. No argument has been presented against upholding joint and several liability against the participating Defendants. No contention has been put forward for apportionment of liability between the respective defendants. I accept on balance that all the participating Defendants are jointly and severally liable for the acts of conversion practiced upon the Plaintiffs in the respective robberies.

15. According to the reports of the adjusters I accept the damages suffered by the 2nd to the 8th Plaintiffs in the eight robberies were as follows:-

2nd Plaintiff
(i)	cash stolen		HK$260,000.00
(ii)	cash stolen( Jap Yen $3,000,000 )		HK$169,200.00
(iii)	jewelleries stolen
	(a)	Plaintiff's own stock ($5,231,395 -$50,442 )	HK$5,180,953.00
	(b)	Consigned goods	HK$693,522.40
	(c)	Customers' goods	HK$420,000.00
(iv)	compensation received		( HK$283,919.02)
(v)	restitution of ear-rings pursuant to 2nd Order		( HK$ 20,000.00)
			HK$6,419,756.38
3rd Plaintiff
(i)	cash stolen		HK$26,950.00
(ii)	jewelleries stolen
	(a)	the Plaintiff's finished goods	HK$16,129,909.70
	(b)	the Plaintiff's loose stock	HK$2,657,544.00
	(c)	consigned stock	HK$6,154,310.22
	(d)	gold and labour costs for customer's jewelleries	HK$55,354.00
(iii)	compensation received		(HK$1,076,130.08)
(iv)	restitution of a pair of cuff-links		(HK$50,000.00)
			HK$23,897,937.84
4th Plaintiff
(i)	jewelleries stolen		HK$10,888,375.00
(ii)	compensation received		(HK$504,227.19)
			HK$10,384,147.81
5th Plaintiff
(i)	jewelleries stolen		HK$1,316,911.67
(ii)	replacement of jewellery stands		HK$ 4,520.00
(iii)	compensation received		(HK$65,834.98)
(iv)	restitution of gold coloured necklace		(HK$500.00)
			HK$1,255,096.69
6th Plaintiff
(i)	cash stolen		HK$17,036.00
(ii)	jewelleries stolen		HK$2,091,326.00
(iii)	costs for replacement of jewellery stands		HK$14,375.00
			HK$2,122,737.00
7th Plaintiff
(i)	jewelleries stolen
	(a)	Plaintiff's own stocks	HK$1,542,336.00
	(b)	consigned stocks	HK$17,804,132.25
(ii)	compensation received		(HK$849,547.36)
			HK$18,496,920.89
8th Plaintiff
(i)	jewelleries stolen
	(a)	Plaintiff's own stock	HK$1,083,272.00
	(b)	consigned stock	HK$1,585,060.00
(ii)	replacing cracked glass of show case		HK$500.00
(iii)	compensation received		(HK$77,882.95)
			HK$2,590,949.05

16. I award judgment in favour of the 2nd to the 8th Plaintiffs against the respective Defendants as follows:-

(i) D1, D2, D3, D4, D5, D6, D7, D8, D9 and D10 do pay the 2nd Plaintiff damages in the sum of HK$6,419,756.38.

(ii) D1, D3, D5, D6, D7, D8, D9, D11 and D12 do pay the 3rd Plaintiff damages in the sum of HK$23,897,937.84

(iii) D1, D2, D3, D4, D5, D6, D7, D8, D9 and D10 do pay the 4th Plaintiff damages in the sum of HK$10,384,147.81.

(iv) D1, D2, D3, D5, D6, D7, D8 and D9 do pay the 5th Plaintiff damages in the sum of HK$1,255,096.69.

(v) D1, D3, D5, D6, D7, D9 and D10 do pay the 6th Plaintiff damages in the sum of HK$2,122,737.00.

(vi) D1, D3, D5, D6, D7, D8 and D9 do pay the 7th Plaintiff damages in the sum of HK$18,496,920.89.

(vii) D1, D3, D5, D6, D7, D8, D9, D11 and D12 do pay the 8th Plaintiff damages in the sum of HK$2,590,949.05.

17. I also award interest at 1% above prime from the date of the writ to the date of judgment. Judgment interest accrues from the date of judgment at judgment interest rate until payment.

18. Costs nisi is awarded in favour of the 2nd to the 8th Plaintiffs, with certificate for counsel, against all twelve Defendants in respect of the present assessment hearing. Unless parties apply to be heard on the question of costs, the order nisi would become absolute at the expiration of 14 days from today.

Representation:

Mr. Daniel Wan instructed by Messrs. Deacons for the Plaintiffs.

1st Defendant : CHAN Kin-chung in person, present on the 1st day and absent on the 2nd day.

2nd Defendant : CHAN Man-chi in person, absent.

3rd Defendant : CHOY Sze-man Mandy in person, absent.

4th Defendant : HO Shu-wing in person, absent.

5th Defendant : HO Suet-ping in person, absent.

6th Defendant : HO Tung-shing alias HO Pak-kai in person, present.

7th Defendant : LEE Chun-man in person, absent.

8th Defendant : LEE Tak-wah in person, present on the 1st day and absent on the 2nd day.

9th Defendant : TANG Yuk-tong in person, present

10th Defendant : TSANG Chi-fung in prerson, absent.

11th Defendant : CHANG Wen-hwei in person, absent.

12th Defendant : AU Sick-fong Candy in person, absent.