Wing on Life Insurance Co. Ltd. v. Liu Fook-yau
Read the full judgment text of HCSA 2/1977 on BabelCite. This High Court CFI judgment.
1. I agree that this appeal must be allowed. The adjudicator appears to have based his decision upon two matters: (1) that the Claimant had no intention to purchase a life policy, and (2) that "the statements made by the defendant's representatives were false and fraudulent". As to the first of these points it is clear, and the adjudicator accepted, that the Claimant did in fact take out a life policy and he ended his judgment by saying that the Claimant was entitled to rescind it. The right to
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HCSA000002/1977
----------------- Coram: Briggs, C.J. Huggins, J.A. and McMullin, J. Date of Judgment: 15th March 1977. ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. I agree that this appeal must be allowed. The adjudicator appears to have based his decision upon two matters: (1) that the Claimant had no intention to purchase a life policy, and (2) that "the statements made by the defendant's representatives were false and fraudulent". As to the first of these points it is clear, and the adjudicator accepted, that the Claimant did in fact take out a life policy and he ended his judgment by saying that the Claimant was entitled to rescind it. The right to rescind was said to depend upon the fraud. There was some discussion as to the motive which led the Claimant to take the policy, but in my view that was totally irrelevant. Equally irrelevant was the evidence relating to the medical examination of the claimant. The adjudicator states that "in the form required to be completed by the doctor the insured sum was stated to be $5,000" but, with respect to him, I find nothing in the evidence to that effect. The instruction to the doctor, as testified to by himself, was that "no X-ray was required where the sum insured was $5,000 or less". It is a matter of speculation whether the form handed to him indicated (incorrectly) that the policy to be issued to the Claimant was for $5,000, although it is to be noted that at the foot of his report the figure was clearly stated to be $10,000. 2. The adjudicator said that he was satisfied both the claimant and his witness were telling the truth and he accepted their "evidence". It is submitted on this appeal that only the Claimant's nephew gave evidence and that the Claimant himself merely made a submission, which should not be honoured with the description "evidence". Certainly the Claimant did not go into the witness-box and he was never cross-examined upon what he said. It is perhaps open to argument whether s.23 of the Small Claims Tribunal Ordinance allows persons to give evidence before the tribunal otherwise than upon oath or affirmation, and without their being subjected to cross-examination. For my part I think it highly undesirable that such "evidence" should be allowed but would prefer to leave it for decision after full argument on both sides in a case where the point must needs be decided. For the purposes of this appeal I as disposed to assume that the Claimant did give evidence. It is difficult to understand how the adjudicator could accept that evidence in toto, since the Claimant said he paid $1,000 whereas the adjudicator appears also to have accepted that the premium paid for this policy was only $963. The Claimant then said "I was persuade (sic) falsely to pay it by Cheng Shiu-ching. I was told I would get $10,000 in 10 years or interest and $1,000 within three years". This was the only evidence relied upon as supporting the finding that the statements made by the Claimant's representatives were false and fraudulent. The suggested falsity is as to the effect of the document which the Claimant signed. He knew the nature of the document and in my view there was nothing in the evidence to justify rescission of the contract, even if the Small Claims Tribunal had jurisdiction to make a decree of rescission. 3. The Claimant took out a policy of life insurance and had the benefit of that policy for a year. In my view he was not entitled to repayment of the premium. 15th March 1977. Representation:
Coram: Briggs, C.J., Huggins, J.A. & McMullin, J. Date of Judgment: 15th March, 1977. ----------------- JUDGMENT ----------------- I have read the judgment of Huggins, J.A. in this appeal and I am entirely in agreement with its contents. However, I think that the following point should be made. The basis of a trial in the Small Claims Tribunal is that the hearing should be informal. This is clearly stated in section 16(1) of the Small Claims Tribunal Ordinance which reads as follows:-
In addition, section 23 of the Ordinance reads as follows:-
In the present case, the plaintiff did not give evidence himself. He called one witness who was cross-examined by the defendant. The defendant called two witnesses who were cross-examined by the plaintiff. The plaintiff then stated before the adjudicator: "I paid $1,000. I was persuaded falsely to pay it by CHENG Shiu-ching". That statement passed without challenge because the plaintiff was not in the witness box and there was no question of him being cross-examined by the defendant. In my view, when such a statement is made, particularly a statement alleging fraud, the adjudicator should invite the plaintiff to go into the witness box and give evidence on oath. I am not saying that it is necessary in a small claims tribunal that all evidence must be given on oath. The contrary is the case in view of the two provisions of the law which I have quoted above but whenever there is a matter which requires to be challenged, it is very desirable that evidence of that matter should be given on oath so that there can be proper cross-examination. In the event, the appeal must be allowed, and the judgment of the tribunal set aside. Judgment will be entered for the appellant and the sum of $1,265.86 now in court is to be paid out to the appellant.
Representation: P. Fung (T.S. Tong & Co.) for appellant. Respondent not appearing.
Coram: Briggs, C.J., Huggins, J.A. & McMullin, J. Date of Judgment: 15th March, 1977. ----------------- JUDGMENT ----------------- McMullin, J.: I am in agreement with the substance of both the foregoing judgments and do not wish to add anything on my own account.
Representation: P. Fung (T.S. Tong & Co.) for appellant. Respondent not appearing. |