Cheung Kwok Kuen v. Young Tin Kin

CACV000175/1984

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Cons & Fuad, JJ. A.

Date of hearing: 15th January 1985

Date of handing down: 31st January 1985

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REASONS FOR JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The substantial issue on this appeal was whether the judge was right when he said that the defendant Respondent was a person to whom the Housing Authority had delegated the power under which he claimed to have done the act complained of in the action.

2. The matter arose in this way. The Plaintiff formerly worked for the Housing Department of the Hong Kong Government. His employment was terminated and he felt aggrieved thereby. He became a hawker and for this purpose used a hand-cart. In March 1983 he moved his hand-cart into the Kai Yip Housing Estate, of which he was a resident, and from it offered cooked food for sale. On several occasions he was warned that he was not permitted to hawk his wares within the estate. On 22nd March he informed the police that he intended to continue using his hand-cart in the Kai Yip Estate by way of protest against the Housing Department. On 28th March he was seen with his hand-cart in the estate by the Defendant, who was the Senior Housing Assistant on the estate. As such the Defendant was, I understand, a servant of the Hong Kong Government assigned to the Housing Department who was engaged on duties with the Housing Authority, a body incorporated by statute. He gave evidence that it was part of those duties to control hawkers in the estate and that he told the Plaintiff that he was not allowed to hawk there and should move out of the estate. There was a dispute whether he also told the Plaintiff that he had authority under s.24(1)(d) of the Housing Ordinance to seize his hand-cart if it were not removed, but none that he did in fact direct its removal. This was the action which led the Plaintiff to institute the present proceedings.

3. Endorsed on the Writ was a "Statement of Claim" signed by the Plaintiff himself and claiming damages, an injunction and two declarations. In truth it was no more than a general endorsement. Attached to it were several sheets, the first of which was headed "Particulars", and these set out the Plaintiff's version of the events surrounding the seizure of the hand-cart. They further alleged that the Housing Authority did not authorize the Plaintiff to carry out "hawker control duties" either inside or outside the housing estate and, in particular, to seize the Defendant's hand-cart without an order of the court. Subsequently an amended Statement of Claim was filed, claiming damages and three declarations but no injunction. It was not accompanied by any "Particulars" but I think the intention probably was that they should remain as part of the new pleading. Whether those representing the Defendant so understood the position does not appear clearly from the amended Defence. The trial judge thought there was no doubt that the Defendant was authorized to make the seizure. He did not indicate when or how that authority had been conferred, probably because he assumed that no live issue as to the Defendant's authority remained.

4. The Notice of Appeal was a rambling document which appeared to complain of two matters, (1) that the seizure was unlawful because it had been effected under s.24(1)(b) and not, as the Defendant alleged in his defence, under s.24(1)(d), and (2) that no seizure could lawfully be effected without prior recourse to the courts. At the hearing the Appellant sought to argue in addition that the Defendant was not authorized to act on behalf of the Housing Authority at all.

5. It was a question of fact under which provision the Defendant acted and the Defendant asserted in evidence that he was not told until after the seizure had been made under what power it was made. In any event, he said, the Defendant did not tell him whether he was complaining of obstruction or nuisance or both, and therefore the seizure was bad. He pointed out that a report by a police constable who went to the scene indicated that the complaint was one of selling cooked food without a licence.

6. The judge did not make a specific finding as to what the Plaintiff was told but did find that "the Defendant considered that the hawker's cart constituted an obstruction and/or nuisance". It is implicit that the judge found that the Defendant acted under s.24(1)(d). There was evidence upon which such a finding was open to him and we cannot say that the finding was wrong. In my view it matters not whether the seizure was made on the basis of obstruction or nuisance or both: the judge was satisfied that the Plaintiff's conduct justified seizure on either ground. The Defendant testified that he told the Plaintiff he had authority under s.24(1)(d) and the Plaintiff himself admitted that shortly after the seizure the Defendant, in his presence, told the police constable that he had the right to take the cart under that provision. The judge unfortunately did not make any finding as to what the Plaintiff was told, but I think it is implicit that he believed the Defendant on this point. Even if he did not, that would not make the seizure unlawful if it was in fact made with authority.

7. There is clearly no merit in the contention that a seizure could not lawfully be made under s.24(1) without prior recourse to the courts. That leaves the point - which was not raised by the Notice of Appeal -that the Defendant had no right to act on behalf of the Housing Authority under s.24(1). One would have expected to find evidence in such a case to establish the Defendant's authority beyond question, especially as the amended Defence had alleged that the seizure was made by the Defendant in the exercise of powers vested in the Housing Authority pursuant to s.24(1)(d). There was no Reply and issue was joined on the Defence. At the trial the point was overlooked: in his evidence the Defendant did not assert that he had authority but merely that he told the Plaintiff he had authority. It was not suggested to him in cross-examination that he did not have the authority which he had alleged in his Defence: indeed, it was suggested to him, in effect, that he was authorized but that he had acted under a different paragraph of s.24(1).

8. Faced with such a paucity of evidence on what was obviously a vital issue, counsel for the Defendant on the appeal sought leave to adduce further evidence as to his client's authority. That evidence consisted of a copy of the Hong Kong Government Gazette dated 7th January 1983, which contained General Notice No.38 to the effect that the Housing Authority had (inter alia) delegated its powers under s.24(1) to Housing Assistants. Clearly that evidence was available at the time of the trial and ought to have been adduced then, so that the conditions prescribed in Ladd v Marshall 1954 1 W.L.R 1489 could not be satisfied. Nevertheless we thought that, especially having regard to the manner in which the case was presented to the trial judge, it would be wrong to decide the appeal without taking cognizance of a notice given the publicity of publication in the Gazette and we admitted it in evidence. Whether or not the other evidence would have justified a finding of lawful authority - and I am surprised that that was a matter which the trial judge thought was beyond doubt - the new evidence was conclusive in favour of the Defendant and the appeal had to be dismissed. It may be that the other evidence would have been just sufficient to establish the Defendant's authority, but I prefer to express no decided view upon that.

Cons, J.A.:

9. I entirely agree with the reasons given by my Lord. I would merely add that even in the absence of the additional evidence I would not, for my part, have interfered with the decision of the judge below. Although I would have expected in the evidence of the defendant a direct assertion of authority, reinforced by the kind of evidence adduced before us, there seems to me such an assertion implicit in the evidence which he did give and which was not challenged by cross-examination or in any other way.

Fuad, J.A.:

10. I also agree and having nothing to add.

31st January 1985

Representation:

Appellant in person

Fleming for Respondert