Potential Communication Services Ltd. v. Shun Cheong Motor Service

HCA010550/1994

1994, No. A10550

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Deputy Judge W. Wong in Court

Date of hearing: 5 December 1996

Date of delivery of judgment: 18 December 1996

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J U D G M E N T

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FACTS

1. The Plaintiff on or about 16th December 1993 delivered its vehicle registration No. FP3268 ("the vehicle") to the Defendants' garage for repair and service. On 23rd December 1993 the 1st named Defendant, Lo Sai Wa, informed the Plaintiff that the vehicle disappeared and could not be located.

Plaintiff's Claim

2. The Plaintiff now claims against the Defendants for damages for negligence as bailee.

Defence

3. The Defendants denied that they were negligent as when the vehicle was parked, the lock on the steering wheel was applied, the anti- theft alarm was activated and the cord connecting the sparkling plug and the distributor was removed.

Evidence

4. Lo Sai Wa, the 1st named Defendant, had requested for permission from the Plaintiff for the use of the vehicle on 22nd December 1993 after the repairs and service on the vehicle were completed. After he used the vehicle that evening, he parked it on the roadside on the ground floor of his residence as the parking spaces in the garage were occupied when he finished work. Before he left the vehicle he had applied the lock on the steering wheel, activated the anti-theft alarm and had the cord connecting the sparkling plugs and the distributor removed. He said he could not park the vehicle in the garage because it had a floor area of about 900 sq. ft. and could only park 2 vehicles inside. He in the statement which was used as evidence stated that normally he would park vehicles pending repair at public car parks somewhere near the garage. In cross-examination, he said that there were no car parks near to the garage which was quite near his residence.

5. I do not find Lo Sai Wa to be a reliable witness. He in evidence said that there were no public car parks nearby but in his statement he said that vehicles delivered to the garage for service were normally parked at the public car park. Further, he did not make any effort to see if there were parking spaces in the public car park after he used the vehicle. As a result, the vehicle disappeared. It was a lame excuse to say that when he finished work the parking spaces near the garage were filled. I find that he parked the vehicle on the ground floor of his residence purely for his own convenience after he had used the vehicle. It is common knowledge that car thefts were prevalent at that time.

6. I find that he has failed to exercise due care to ensure and safeguard the vehicle from being stolen and had parked the vehicle on the roadside thus exposing it to risk. In the circumstances, I find the 1st named Defendant, Lo Sai Wa, liable for damages.

QUANTUM

7. Ng Kuen Kon, an auto adjuster for over 22 years, assessed the market value of the vehicle to be in the region of $130,000 and $135,000. I accept his evidence.

8. Interlocutory judgment had been entered against the 2nd named Defendant.

9. In the premises there be judgment for the Plaintiff in the sum of $130,000 with interests at 11.5% p.m. from date of writ to judgment and costs. The 1st named Defendant's own costs to be taxed in accordance with Legal Aid regulations.

Representation:

Mr. Kam-leung Cheung, instructed by Messrs. Raymond Ho & Koo, for the Plaintiff.

Mr. S H Kwok of Messrs. Tang, Wong & Cheung instructed by Director of Legal Aid for Lo Sai-wa t/a Shun Cheong Motor Service - (Defendant D1)