Wong Mui-mui v. Wing on Life Assurance Co Ltd and Another

DCCJ001398/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1398 OF 1975

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Coram: Jones, D.J. in Court.

Date of Judgment: 20th October, 1975

Mr. Fan of W.K. Poon & Co. for Plaintiff.

Mr. To of T.S. Tong & Co. for Defendant.

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JUDGMENT

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1. On the 30th March 1970 the Plaintiff a single woman then aged 22 saw an advertisement in the Positions Vacant Column of the South China Morning Post for junior staff in a big company of South East Asia. Applicants were required to have had secondary education, but previous experience was not necessary as training would be given.

2. The Plaintiff replied to the advertisement and received a letter headed with the name and address of the first defendant company asking her to call for an interview. When she attended the interview this letter was handed over to the interviewer. However, the Plaintiff produced a similar letter that had been received by her brother from the first defendant in April 1970 after he had written in response to the same advertisement. This letter requested the Plaintiff's brother to call at the first defendant's Kowloon Branch Office 40 Waterloo Road for an interview with supervisor Lui concerning the application for employment. The letter was chopped with the signature Lui Wing Hong. After she received the letter the Plaintiff went to the first defendant's branch office at this address on the 4th April 1970 where she saw the second defendant. She was informed by the second defendant that if she was employed by the first defendant she would be paid for the first month $350 and thereafter if she continued to be employed $400 per month. After a period of one year the salary would be increased to $500 per month. The second defendant told the Plaintiff that she would be employed to do clerical work such as accounts and typing. During the interview the second defendant said that he wanted to see the Plaintiff's father, but gave no reason for this request. Although she was surprised at this request the Plaintiff arranged for her father to see the second defendant later the same day. At this meeting the second defendant said that if the Plaintiff was to be employed by the first defendant a $1,500 guarantee would have to be paid. The money would be placed upon fixed deposit with the first defendant company and returned after three years. The Plaintiff's father said that he only had $1,014 upon him which the second defendant said would be all right as any balance would be deducted subsequently from the Plaintiff's pay. The Plaintiff's father paid over the sum of $1,014 for which the second defendant issued a temporary receipt saying that he would give a formal receipt to the Plaintiff after she commenced work. The second defendant instructed Yiu Chi Keung another employee of the first defendant to give the Plaintiff some employment forms to complete which Yiu Chi Keung said he would assist the Plaintiff to fill up. The Plaintiff said that Yiu Chi Keung left open the form but that it was partially covered so that she was unable to read all the printed words. At the request of Yiu Chi Keung she filled in her personal details in answer to questions 1, 2, 3, 16, 18 and 19 and signed the form but says she does not know who completed the other details. The Plaintiff believed the document to be an application form for employment with the first defendant. She said she had no intention to apply for a life policy.

3. It appears that the Plaintiff was not entirely satisfied with the temporary receipt that had been given to her father by the second defendant for she wrote out on a sheet of paper with the first defendant's name and address that the sum of $1,189 was received as security for employment as a clerk. This document was signed and chopped by Yiu Chi Keung. This evidence which has not been rebutted is clearly inconsistent with the defendants' contention that the Plaintiff was applying for a life policy. Although only $1,014 was paid I accept the Plaintiff's explanation that the balance was to be deducted later from her salary.

4. The Plaintiff reported for work as instructed by the second defendant the 7th April 1970 but during the period of four and a half days when she attended she did no actual work. On the third day she was asked by the second defendant to go out to get some business by which she understood that she was to be a broker for life insurance. After the period of four and a half days the Plaintiff did not attend again. She asked the second defendant to return the guarantee money, but he refused her request. She was then informed for the first time by the second defendant that she had purchased a life policy. The Plaintiff said she received the policy in August 1970. The Plaintiff's father corroborated the Plaintiff's evidence that he paid the sum of $1,014 in the manner and for the reasons described by the Plaintiff.

5. Neither the second defendant nor Yiu Chi Keung gave evidence. Poon Yue Shun who is an insurance broker employed by the first defendant was the only witness called by the defence; but his evidence was not relevant to the issue that I have to determine. He said that the first defendant did not place the advertisement for staff in the South China Morning Post. In all probability the advertisement was placed by the second defendant.

6. The Plaintiff is a woman of some intelligence having completed her secondary education up to Form V and this is further evidenced by her precaution in drawing up the document exhibit P5 which was signed by Yiu Chi Keung.

7. Having seen and heard the Plaintiff and her father I am quite satisfied that they were both telling the truth and I accept their evidence.

8. The evidence clearly shows that the Plaintiff was seeking employment and I am in no doubt that she had no intention to purchase a life policy. Apart from anything else she did not appear to have the means with which to do so. Further it is significant that she was not required to undergo a medical examination.

9. The statements made by the second defendant to the Plaintiff were both false and fraudulent. The Plaintiff was induced to believe by the fraudulent misrepresentations of the second defendant with the assistance of Yiu Chi Keung that she was completing an application form for employment with the first defendant whereas it was in fact an application for life assurance. The payment of $1,014 to secure the Plaintiff's employment with the first defendant was used by the second defendant as the premium for the first year upon which he would be entitled to receive commission from his employer the first defendant at the rate of 55%.

10. The statements made by the second defendant were within the scope of his authority with the result that the first defendant is vicariously liable for his fraud Lloyd v. Grace Smith and Co.[1912] A.C.P.716.

11. Accordingly the Plaintiff is entitled to rescission of the life policy with the first defendant and to judgment against both defendants for the return of the sum of $1,014 with interest at the rate of 8% per annum from the 4th April 1970. There will also be an order for costs in favour of the Plaintiff to be taxed on the standard scale. Usual taxation in accordance with the Legal Aid (Scale of Fees) Regulations.

Representation:

Mr. Fan of W.K. Poon & Co. for Plaintiff.

Mr. To of T.S. Tong & Co. for Defendant.