Ko Chuen v. Shum Tim and Others

HCA000358/1975

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 358 OF 1975

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Coram: Li, J.

Date of Judgment: 14th February, 1978 at 11.57 a.m.

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JUDGMENT

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1. On the 11th of September, 1972 a motor-cycle with the registration number AP8847 was involved in the collision with the plaintiff in Tsuen Wan. As a result, the plaintiff was injured. It was established at the time that the motor-cycle concerned was driven by one SHUM Tim, the 1st defendant. On a search of the register in the Transport Department, it revealed that at the material time, the 2nd defendant NG Wai-pong was the registered owner of that motor-cycle. Hence, this action against the 1st defendant SHUM Tim as the driver and the 2nd defendant NG Wai-pong in his capacity as owner of the motor cycle.

2. The 2nd defendant NG Wai-pong's defence is that at the material time the motor-cycle had been sold to one LAI Bing-leung trading as The Oscar Motors and therefore he was no longer the owner. For this reason the 3rd defendant LAI Bing-leung was sued in the alternative in his capacity as the owner as well.

3. The 3rd defendant's defence is that at the material time that motor-cycle had been sold to one SHUM Tim, the 1st defendant, in July 1972. The movement, in the form of ownership involving this vehicle, has completed one circle.

4. I have been informed that the parties, by consent, only ask me to decide on the question of liability. The quantum of damages will be assessed by the Registrar. In the course of the proceedings the plaintiff offered no further evidence against the 3rd defendant LAI Bing-leung. Thus the action reverts to the original position as against 1st defendant and 2nd defendant only. The 1st defendant did not enter an appearance. Judgment was entered against the 1st defendant SHUM Tim. The only party left in these proceedings then is an action by the plaintiff against the 2nd defendant NG Wai-pong. In view of what happened, the only issue left for me is whether the 2nd defendant NG Wai-pong was the owner of the motor-cycle AP8847 at the material time. If that answer is in the affirmative, the further issue is whether SHUM Tim drove that motor-cycle as NG Wai-pong's agent or alternatively drove the said vehicle with NG Wai-pong's consent and permission.

5. The plaintiff's evidence is that up to March 1973 the motor-cycle concerned was registered in the name of NG Wai-pong. This is evidenced on the documentary exhibits (1) and (2), certificates of particulars of motor vehicle and an extract of record in exhibit (3). The plaintiff further called LAI Bing-leung to give evidence to the effect that sometime in July 1972 NG Wai-pong took the motor-cycle number AP8847 to his company and left it on consignment to be sold on his behalf. Thus, as far as Lai is concerned, he regarded himself as nothing more than a sales agent. The request made after some negotiation was that the motor-cycle should be sold for eight hundred dollars and anything in excess would be received by LAI Bing-leung in the form of fees or commission. Exhibit (4) is a document which is called 'A consignment of motor-car vehicle' dated the 19th of July 1972 which was unsigned but clearly indicated that that motor-cycle was consigned to LAI Bing-leung to be sold for eight hundred dollars. Lai said that three days afterwards he sold this motor cycle to SHUM Tim. On receipt of a deposit and full payment of the balance, he paid NG Wai-pong in full the sum of eight hundred dollars in all. At the same time he required NG Wai-pong to sign the transfer papers and surrender the licence book and the insurance policy covering the said motor cycle to him, Lai. LAI Bing-leung in turn handed over the whole lot of the documents to SHUM Tim. Then there was a second transaction between him, LAI Bing-leung, and SHUM Tim for the purchase of a new motor-cycle on hire-purchase terms in 1972. By that time the accident had happened in September 1972.

6. SHUM Tim's evidence is that on the 11th of September he had not yet bought the vehicle AP8847 from anybody. The reason was that he purchased this motor-cycle on hire-purchase terms. At the time the transfer paper, the licence or insurance policy had not been handed to him at all. They were still retained by LAI Bing-leung. He paid for this motor-cycle with the down payment of fifty dollars and the balance to be paid by monthly instalment of eighty-six dollars. He paid for about two months or three months when the accident occurred. On the day the accident occurred, he had to go back to LAI Bing-leung to obtain the certificate of insurance to be shown to the police but returned the certificate to LAI Bing-leung after he had satisfied the police that there was a certificate of insurance.

7. Such is the sum total of material evidence adduced by the plaintiff.

8. The defence evidence is that the motor-cycle concerned was sold by NG Wai-pong to LAI Bing-leung. According to the 2nd defendant NG Wai-pong, he brought the motor-cycle concerned to LAI Bing-leung to be sold at the price of one thousand dollars. The original intention was that LAI Bing-leung should sell it on consignment. However, LAI Bing-leung said that the vehicle was too old and he had to do repair work for it. Lai induced NG Wai-pong to sell it to Oscar Motors at the price of eight hundred dollars, so that Oscar Motors could re-sell it at whatever price they liked at a later stage. On this agreement as to price and method, Ng sold this motor-cycle to LAI Bing-leung. He signed all the papers, handed over the licence book and the insurance policy and obtained full payment for that motor-cycle. That was the end of it. As far as the defence evidence is concerned, by September 1972, NG Wai-pong was no longer the owner and therefore he could not be liable.

9. Pausing at this stage, I must observe that liability in traffic accidents depends not entirely on the register. It depends on ownership. It may well be that at the material time NG Wai-pong was the registered owner. If there is satisfactory evidence to my satisfaction, that ownership had changed, clearly Ng is not the owner and will not be liable.

10. The plaintiff relies on the register. That only raises a presumption which can be rebutted. The plaintiff also relies on LAI Bing-leung's evidence that the motor-cycle was merely consigned to LAI Bing-leung for sale. If the sale had not been effected, then the 2nd defendant NG Wai-pong was still the owner and would still be liable.

11. I have already summarized Lai's evidence that the motor-cycle was merely on consignment. Lai produced exhibit (4), the consignment form, which has not been signed by anybody. However, Lai's evidence is in conflict with the evidence of SHUM Tim. Lai Bing-leung said that he had sold this cycle to SHUM Tim. SHUM Tim said he had not done so. Although it has no direct bearing on the issue, which depends on the fact whether NG Wai-pong had sold the motor-cycle to LAI Bing-leung, yet the conflict of evidence rather reflects on the credibility of the evidence of LAI Bing-leung. I accept in this instance the evidence of SHUM Tim that the motor-cycle was sold to him purely on hire-purchase terms. Although there is no documentary evidence to substantiate it, and that SHUM Tim, gives me the impression, that he could not differentiate between credit sales and hire-purchase, yet on the day of the incident, SHUM Tim had to go back to LAI Bing-leung to obtain the certificate of insurance. It shows that LAI Bing-leung has not told me the whole truth. That bit of evidence of SHUM Tim has not been contradicted in any way.

12. I accept also the evidence that the transaction between SHUM Tim and LAI Bing-leung is that the latter kept all the papers. The question finally has come back to the same issue: whether NG Wai-pong had sold his motor-cycle to LAI Bing-leung. I have the evidence from NG Wai-pong that he had delivered the motor-cycle to LAI Bing-leung. He had obtained full payment for that motor-cycle. He signed all the transfer papers and having done so, everything was over. In the mind of NG Wai-pong, he had done everything to divest himself of ownership. One thing he had failed to do was that he failed to lodge the duplicate of the transfer form with the Transport Department. That, of course, is a statutory offence under the Road Traffic Registration and Licensing of Vehicles Regulation. However, looking at the evidence of the whole case, it appears to me that these people have very little concern and very little knowledge of the Traffic Regulations. As far as they are concerned, once they have sold something, they have signed away the papers, they have divested themselves of the ownership. The contravention of the regulations does not affect the issue that the ownership of the motor-cycle had been changed. On the balance of probability, I accept NG Wai-pong's evidence that he had in July divested himself of the ownership of that motor-cycle AP8847. Indeed, he has contravened the Traffic Regulations. So has LAI Bing-leung. I do not accept the evidence of LAI Bing-leung that he received only the motor-cycle on consignment. Otherwise, he would not have kept all the papers from NG Wai-pong. No one in his right mind, if he has not the intention of divesting himself of his ownership, would sign all the papers. NG did sign the transfer. He also received full payment.

13. I have the greatest of sympathy for the plaintiff in this case that he is left without recourse solely because of the irresponsible attitude or the ignorance of these people, the various defendants involved. I think LAI Bing-leung is the one who should tkae the major portion of the blame.

14. For these reasons, I have decided in the first issue that at the material time, NG Wai-pong was no longer the owner of the motor-cycle AP8847. I will not then have to decide the subsidiary issue whether SHUM Tim was driving as his agent or with his consent. Accordingly, the action by the plaintiff must be dismissed with the cost to be taxed according to the Legal Aid Regulations.

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