Ng Kwok Tat and Others v. Lau Tin Sun and Another

HCA001452/1980

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Mantell J.

Date of Hearing:16th December, 1983.

Date of Delivery of Judgment: 16th December, 1983.

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JUDGMENT

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1. The plaintiff have a plot of land in the New Territories which, in 1979, was used as a joint venture for pig farming. Next door to their farm was another worked by a Mr. Ng Kwok Pa. He was unfortunate enough in 1979 to suffer judgment at the hands of the defendants to this action who, in due course, sought to levy execution. against. him under colour of a combined writ of possession and fi. fa. On 20th December 1979, both defendants accompanied by court officers, as I am inclined to suppose, came to Mr. Dig Kwok Fa's farm and possibly under the mistaken belief that the land farmed by the plaintiffs was part of Mr. Ng Kwok Fa's property, took away a number of the plaintiffs, breeding sows, pigs, some feed stuffs and some weigh scales. In due course, some of the pigs and feed stuffs were returned. But to this day? I have been told and I accept, a number of the pigs and a quantity of the feed stuffs and the scales has never been returned, and the plaintiffs, claim in this action is for damages equal to their value and also for damages resulting from the loss of a number. of litters expected from the breeding sows which were not returned.

2. Towards the end of November after the action had been set down, solicitors formerly acting for the defendants served upon the plaintiffs, solicitors notice that they were no longer acting pursuant to an order made by the Registrar in July this year. I am satisfied on evidence which I have heard that all steps were taken necessary to comply with 0.34 r.8 so as to given the defendants to this action notice of setting down and the fact that the matter was in for hearing today. It is perhaps, worthwhile my saying a word or two about what is necessary in circumstances such as this. It would completely defeat the object of having cases brought in for hearing from the running list at short notice if personal service were to be required in all cases where defendants are acting in person. And in my judgment, all that is necessary for compliance with the rule is for reasonable or sufficient notice to be given and it will be in each case a matter for the court as to whether or not that has been done. In this case, I am entirely satisfied that it has been done and so it was that the plaintiffs, through their counsel Mr. Leung, proceeded to try to prove their case in the absence of the defendants.

3. That was done in the first instance through the evidence of Mr. Ng Kwok Tat who happened to be present on the occasion when the bailiff, as I have assumed him to be, arrived at the farm with both defendants. He told me that they came on to the land which he farmed jointly with his brother and brother's wife and took away the pigs, feed stuffs and scales. He was not able to tell me just how many they took away or how many they eventually returned, but I was told that by his brother, Mr. Ng Kwok Wo, in due course. He told me that in all, some 20 breeding sows, 195 maturing pigs, 50 bags of corn, 75 bags of malt husk and the scales, out of a greater number taken were never returned. He also told me that of the sows which were taken and not returned, ten were expecting litters, that an average litter would be of the order of eleven piglets and he expected 80% to 90% of any litter to survive. So I have taken it that there has been a loss of 90 piglets. He valued each of those items for me. The sows, he said, were worth $1,500 each, which seems to me to be an entirely reasonable valuation to place upon. a breeding sow. Each of the maturing pigs was worth no less than $350 which also, to me, seems to be entirely reasonable. The piglets would have been worth $150 each. I do not think anyone could quarrel with the valuation of the piglets. The corn was worth $100 a bag, the malt husk was worth $40 a bag and the scales were worth $100. All of that comes to, I am told, $180,430.

4. I have been referred to the law and, of course, there is a deal of it concerning execution carried out under the authority of the court pursuant to writs of possession and/or fi. fa. and there are circumstances, of course, in which the landlord or judgment creditor will not be liable if such execution is carried out wrongfully or illegally or is excessive. But that cannot be the case where the judgment creditor or, I think, as in this case the landlord is present and actively takes part in the wrongful seizure and in so doing. enters upon another's property. In any event, I take the view that once the primary facts have been established, as they have been in this case, it is for the party who has been guilty of the wrongful taking to justify or excuse his actions and that has not been done in this case for obvious reasons.

5. Consequently, there will be judgment in this case for the plaintiffs in the sum of $180,430 with interest running from 20th December 1979 at 12%. I am conscious that in awarding interest from that date I am not taking account of the fact that some of the loss or damages would not have been sustained until slightly later in that the piglets at that date have not been born but the calculation would become, I am afraid, far too intricate and in assessing interest at the rate of 12%, I intend to take account of that contingency. The counterclaim will be dismissed. The plaintiffs shall have their costs against the defendants, such costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Frankie Leung (Michael Cheuk & Co.) for Plaintiffs.

Defendants - absent.