Chan Hon Wah v. Siu Koon Wah
Read the full judgment text of HCA 222/1969 on BabelCite. This High Court CFI judgment.
1. The Plaintiff, CHAN Hon-wah, issued a writ dated the 25th of February, 1969 against the Defendant, SIU Koon-wah, in which he claimed damages under a Chinese agreement for the partial failure of a series of Chinese women's wrestling performances scheduled to be performed in Tsuen Wan in February of this year because the Police intervened and refused to permit the performances to go on.
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HCA000222/1969 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 222 OF 1969 -----------------
----------------- Coram: J.R. Oliver, Deputy Registrar, Supreme Court, in Chambers. Date of Judgment: 29th day of December, 1969. --------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------- 1.The Plaintiff, CHAN Hon-wah, issued a writ dated the 25th of February, 1969 against the Defendant, SIU Koon-wah, in which he claimed damages under a Chinese agreement for the partial failure of a series of Chinese women's wrestling performances scheduled to be performed in Tsuen Wan in February of this year because the Police intervened and refused to permit the performances to go on. 2.The writ was served upon the Defendant on the 6th of March, 1969. 3.Since that date no appearance has been filed by the Defendant. 4.On the 10th of May, 1969 Mr. Justice McMullin adjudged that the Defendant do pay to the Plaintiff damages to be assessed and judgment was entered accordingly. 5.In accordance with the provisions of Order 37, rule 1 of the Rules of the Supreme Court, the reference for the assessment of damages was referred to me. 6.By virtue of Order 32, rule 2 of the Rules of the Supreme Court, notice of the appointment that the Registrar would assess the damages on the 5th of June, 1969 was given to the Defendant by registered post on the 21st of May, 1969. 7.On the 2nd of May, 1969 the Defendant applied to the Director of Legal Aid for legal aid. 8.On the 26th of August, 1969 the Director offered legal aid to the Defendant but the offer was not accepted within 14 days and on the 10th of September, 1969 the offer of legal aid lapsed. 9.On the 13th of September, 1969 the Plaintiff sent the Defendant a registered letter informing him that the Registrar had appointed the 23rd of October, 1969 as the day upon which the damages would be assessed in this case. 10.The Plaintiff appeared before me on that day - the 23rd of October, 1969, and on the 6th of November, 1969, and he gave evidence in support of his claim. 11.I have experienced considerable difficulty in assessing damages in this case for the following reasons:-
12.What I have done is to summarize the evidence given by the Plaintiff in support of the 7 claims put forward by him and then I have incorporated all these claims into one and a final assessment is made at 13.If the agreements are studied it will be seen that the preparation was to be done on the 16th of February and the show was to run from the 17th to the 23rd of February, 1969. 14.In his evidence the Plaintiff said that the police stopped the show 3 days after it started but he produced a letter - Ex. CHW4 (translation CHW4A) dated the 14th of February in which he was informed that the Police would not permit the show to proceed. 15.It will be seen therefore that he knew that no licence had been obtained before the show started and indeed before the day set aside for erecting the wrestling booth and setting chairs for spectators in place. 16.This venture between the parties was obviously to be conditional upon a licence being obtained from the police. It was not forthcoming and damages as might be expected were suffered. 17.The Plaintiff claimed damages under 7 heads and I will deal with each claim separately.
Under this head the Plaintiff said that he had rented another stall for selling things from the Defendant. He (the Plaintiff) said that he was to be allowed to sell things for 60 days but he was stopped by the Government as the Defendant was organizing gambling in the Tsuen Wan Park. The stall was set up for the purpose of selling jade. The Plaintiff said that he paid the Defendant the sum of $2,000.00 for the right to establish this stall. A receipt, Ex. CHW3, was produced which verified that such an amount had been paid over. The Plaintiff said that he employed 4 assistants or "fokis" at the stall and that he estimated his claim under this head at $5,400.00 made up as to:-
These figures fall short of the claim of $5,400.00 by $1,000.00. In any event there is no mention of this agreement in the Chinese agreement of the 7th of February 1969.
In support of this claim the Plaintiff said that the agreed rent for the booth was $300.00 a day. That is to say $2,400.00 for 8 days. The Plaintiff said that he had paid a Mr. CHIU Fei the sum of $16,800 for 7 days. In addition to the hire of the women wrestlers the Plaintiff said that he also employed 9 other persons. They were made up of two ticket sellers, four ushers, 2 doorkeepers and an announcer. He paid all these persons $20.00 a day. Over a period of 3 days the Plaintiff paid these 9 employees $20 X 9 X 3 = $540.00. Frankly, I do not see how this claim for 57 days arises if the wrestling performances were only scheduled for 7 days.
The Plaintiff said that he employed a sub-contractor called WONG Cheng to do this. He paid him $400.00 but he received no receipt. He gave evidence that he paid him $150.00 to start with and $250.00 when the work was finished.
The Plaintiff here described that he hired chairs which were originally used for Chinese Opera shows and that they were hired from the Amusement Park. He said that he hired 700 chairs but he could not remember how much he paid for the hire of each chair, save that it cost him altogether $500.00. The chairs were used for 3 nights and then they were returned to the Amusement Park.
The Plaintiff produced Treasury Receipt No. 05723 (Ex. CHW2) to support this head of claim. It amounted to $3,780.00. This receipt was paid to the Inland Revenue to cover a deposit in respect of the entertainment tax which would have to be paid later on all tickets sold to cover the shows put on at which this spectacle of women wrestling would be witnessed by the public. For the 3 days during which the show was put on the Plaintiff became liable to pay to the Government $1,420.00 entertainment tax and therefore of the deposit of $3,780,00 he now says that he is entitled to recover the sum of $2,360.00. In his evidence he went on to say that in order to be able to recover this sum back from the Treasury the Defendant will have to sign for the recovery of this sum.
The Plaintiff bases this claim upon the evidence he gave that the Defendant had previously borrowed $2,000.00 from him to assist him in running a business of showing films.
The Plaintiff says that he employed workers to erect the booth. They were employees working in the Amusement Park. He says that he employed a sub-contractor and he in turn employed 5 or 6 people and they did the job in 3 days. He paid these persons by giving money in the form of a deposit of $200.00 and later when the work was finished a payment of $300.00 was made. Both payments were made to a person named Mr. Chan who was working in the Amusement Park. The Plaintiff could not produce a receipt and he said that he did not ask for one. 18.So much for the Plaintiff's evidence. He appeared in person and not surprisingly his evidence was far from clear. 19.It is not without significance that the original contract of the 7th of December (Ex. CHWl) has made provision for damages to be paid in the event of the show not going forward. 20.I refer to Clause 9.
21.This clause, entered into freely, by both parties before they embarked upon such a risky enterprise seems to clearly anticipate the damages which should be paid if no licence was issued. 22.I think that these figures are clearly in the form of liquidated damages and they are not intended to take the form of a penalty. 23.In framing the Statement of Claim in the manner in which it is drawn, and later in his evidence, I feel that the Plaintiff has (and it must not be overlooked that he is acting in person) unwittingly mislead the Court. 24.Furthermore, there are three important provisions in the agreement of the 11th of February, 1969. Clauses 2 and 3 read:-
25.The Plaintiff gave no evidence on this point but I assume that he has forfeited the $2,000.00 and that this sum was intended by the parties to be another head of liquidated damages. 26.My interpretation of this clause is strengthened by looking at the second part of clause 5 of the same agreement. It reads:-
27.The parties in this case have expressly provided for an event which has occurred, i.e., the failure of the show to proceed by the refusal of the police to grant a licence. The provisions of the Law Reform (Frustrated Contracts) Ordinance, Cap. 25, do not therefore apply and subject to the provisions made in the agreement for liquidated damages, the position at common law applies to this case, that is to say the loss lays where it fell. 28.I now assess the damages in this case as expressed in clause 9 of the agreement of the 7th of February, 1969 as follows:-
It would appear for the reasons I have already stated that the Plaintiff has already forfeited the $2,000.00 paid to him by the Defendant under clause (3) of the Chinese agreement of the 11th of February 1969. 29.The Defendant will pay the Plaintiff's taxed costs. Dated the 29th day of December, 1969.
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