Yuen Tat Cheong and Another v. Urban Council

HCA007774/1984

HEAD NOTE

Negligence - Duty to take care - Act of third party - Duty of Urban Council to the public when performing its lawful duties - hawker fleeing from the General Duties team injuring the Plaintiffs - whether Defendants owe a duty of care to the Plaintiffs for act of a third party - whether Defendants liable for Plaintiffs' injuries.

IN THE HIGH COURT OF JUSTICE

HONG KONG

Action No. 7774 of 1984

__________

BETWEEN

Coram: The Honourable Mr. Justice Sears

Dates of Hearing: 9th - 13th February, 1987 and 16th - 19th February, 1987

Date of Delivery of Judgment: 24th February, 1987

___________

JUDGMENT

___________

1. On December 12th 1983 at about half past five in the evening the infant Plaintiff then aged 3?with his mother were standing at the corner of Un Chau Street and Fat Tseung Street, Shamshuipo, waiting to cross the road to the Un Chau Estate which was opposite. They had been shopping at the Shun Ning Market. Whilst waiting for the lights to change which controlled the road crossing, the Plaintiff was struck in the leg by a hawker cart or something sticking from a cart. A wok containing hot oil fell from the cart and badly scalded the head, face and leg of the child and slightly injured his mother.

2. The hawker who caused these injuries was Cheung Kwok-chuen who was arrested sometime later, charged with causing bodily harm by wilful misconduct and sentenced to 4 months imprisonment

3. The mother and child bring this action not against the hawker who caused the injuries but against the Urban Council who on that day had mounted a hawker raid in the vicinity of where the hawker had been trading. The Plaintiffs say that the criminal act or negligence of the hawker in hitting the mother was as a result of the negligence of the General Duties Team from the Urban Council who carried out the hawker raid. It can be appreciated, therefore, that this action raises important issues as to the liability of the Urban Council in its control of hawkers who are an everyday part of life in Hong Kong. I turn first to the facts of the case. Many of these are not in dispute.

4. On December, 12th there were in the upper part of Fat Tseung Street about 17 to 20 unlicensed hawkers. As it was winter time, most of these were selling hot food of various kinds. The carts would contain, therefore, a method of heating the food and such things as hot oil in which the food was cooked.

5. Further dorm the street was the Shun Ning Market which is a very busy market. There had been provided two hawker permitted places. These are areas in which a large number of licensed hawkers are permitted to trade. They are called HPP1 and 2 and are zones 11 and 12 in the Cheung Sha Wan area called CSW11 and 12; they have been marked and coloured on the large scale ordinance plan.

6. Part of CSW12 is Fat Tseung Street between Castle Peak Road and Shun Ning Road which is coloured blue. In that part (marked on the plan D5) are found nearly 100 licensed hawkers. Because of the busy nature of the market areas and the large number of people visiting them, unlicensed hawkers tend to concentrate there and also in the streets joining the areas. The Urban Council has listed CSW11 and 12 as hawker black spots places where groups of unlicensed hawkers gather.

7. On the day in question the Urban Council through its General Duties Team B carried out a hawker raid on CSW11 and 12. The team consisted of 22 men; one overseer Sin Yiu-kwong, one Senior Foreman Ng Chung-pak, six Foremen and fourteen Workmen. They had been carrying out other duties in the area and two Foremen and four Workmen were on static duty in CSW7.

8. At about 3.15 in the afternoon there was a briefing at the Po On Road godown. At about 5 o'clock two groups of team B left to carry out the raid. One group comprised Sin Yiu-kwong with two Foremen, Tang and Mok, plus three Workmen, the other Ng Chung-pak plus two Foremen, Wong Chuk-kin and Lee, seven Workmen and an auxiliary police officer. Sin's team walked along Po On Road, turned right into the Wing Lung Street and right again into Castle Peak Road. Ng's team went in a marked general duties vehicle, drove down Castle Peak Road from the direction of Cheung Wah Street and parked at the junction of Castle Peak Road and Fat Tseung Street. The plan was for Sin's team to carry out their duty in Wing Lung Street area and to meet up with Ng's team where the lorry was parked.

9. Before I turn to the next important group of facts, it is necessary to set out briefly the role of the Urban Council in hawker control and the philosophy behind hawker raids.

10. The Urban Council has made hawker by laws and at the relevant time it was an offence punishable by a fine to hawk without a licence and there was a power to arrest for, amongst other things, obstruction and also to seize abandoned equipment. The Court on conviction could order the forfeiture of the hawker's equipment. By setting out hawker permitted places the Council regulates the maximum number of hawkers who can trade there. Both the hawkers and the pedestrians shopping there are protected against overcrowding. Further, from a hygiene point of view the Council can control the standard of cleanliness in streets and the quality of the food sold. From a public point of view it is necessary for hawkers to be controlled.

11. Unlicensed hawkers, however, cause the following problems:

From a public point of view, they present a serious problem in Hong Kong.

12. Mr. Tommy Choy is the operational head for urban services, hawkers and markets. He has been associated with hawker control for many years. I found him an impressive witness. He told me of the nature of the unlicensed hawkers, how they can make substantial income with no tax or overheads, how they obtain cooked food from food factories with little regard for hygiene and how violent they are to protect their own trade.

13. In 1984 there were 95 cases of assault by hawkers on the General Duties Teams. Some of Mr. Choy's men had been very seriously injured. The hawkers possess sharp knives and choppers and cooking utensils. Many members of the public obviously go in fear of them. In my judgment, they are a menace and from a public order point of view, they are dangerous.

14. The Urban Council is provided with little manpower to control them. The underlying philosophy in hawker control is to deter them. If their trade is interrupted sufficiently, then there is a possibility they will not return. Arrest is not the primary object. The officers are told not to chase the hawkers, and one of their primary objectives is the protection of the public.

15. The factual position is that when hawkers see the General Duties Team approaching they run with their carts and a shout of 'Chou Gwei' goes up. It can be seen, therefore, that in the crowded streets of Hong Kong, the Urban Council has this problem. If they do nothing, then the public suffer. If they raid, then the hawkers flee and may cause injuries to pedestrians or cause traffic accidents. I accept that the Urban Council must do something. They have a duty to enforce the law. The evidence discloses that prior to this incident, there has been no occasion when any member of the public has been seriously injured by a fleeing hawker.

16. I turn back to the facts of this case. When Mr. Ng's team arrived at the junction of Castle Peak Road and Fat Tseung Street, they came out of the lorry and turned left into the hawker permitted place. There were a number of unlicensed hawkers at that junction and when the team was spotted, hawkers began to flee in all directions. Some 50 metres away at the junction of Fat Tseung Street and Un Chau Street, there were by the China State Bank 4 cooked food stalls. Closest to the junction was Mrs. Yip selling fried dry noodles, then Chow Yuk-keung selling cakes, then Mr. Lee selling glutinous rice and finally Cheung Kwok-chuen selling fried bean curd (it was this last hawker who caused the injuries to the Plaintiff). There were other cooked food stalls in the vicinity.

17. At about 5.30 which was the busy time of the day, someone shouted 'Chou Gwei' and the hawkers started to run. The only dispute as to fact between the parties is whether the General Duties Team turned into the upper part of Fat Tseung Street and chased the hawkers there. Of the Plaintiff's witnesses only Lee Wan-yun who sold glutinous rice says they did. I do not accept his evidence. He admitted, amongst other things, he could not see to the junction. In my judgment, what happened was that one or more hawkers fled across the road from the hawker permitted place and those in the upper part of Fat Tseung Street either heard the cry or saw a hawker running and themselves fled.

18. On the evidence I have heard, I have no doubt that the Urban District General Duties Team did not chase the hawkers along the upper part of Fat Tseung Street. The team's order was to go into the hawker permitted place and having seen and heard all the Defendant's witnesses I am in no doubt that that is what they did.

19. The Plaintiff's case as originally pleaded claims that the Urban Council acted negligently in a variety of ways and principally by chasing the hawkers knowing that danger was likely to be caused to the public. At the close of the evidence, I gave leave to Mr. Mitchell to amend his statement of claim which accorded more to the probabilities of the events. Might I say, at this stage,  that I am indebted to Mr. Mitchell for the clear and ingenious way he argued his case and also to Mr. Kat who provided the Court with all the possible information on this unfortunate matter.

20. As a result of the hawkers fleeing, the bean curd man Cheung Kwok-chuen ran around the corner and hit the Plaintiff causing severe injuries to her son. The parties have agreed that subject to liability and my approval the mother should receive $9,200 and the infant $344,200. The only area of dispute is over the cost of additional treatment with which I will deal later.

21. This child suffered disfiguring injuries to his head and face. I do not set them out in detail. I saw him in my Chambers with his parents and counsel. He is a brave child and he has loving and devoted parents. He has suffered grievously at the hands of this hawker and will have to endure surgery in the future. I would approve the amount agreed to by the parties.

22. Although I have naturally the greatest sympathy for this innocent child, I must examine this claim dispassionately and say whether, as a matter of law, it is sustainable. What then is the law? The claim is in negligence. The essential components of this tort are a duty to take care, breach of that duty and damage causally connected with such a breach and recognised by the law. Nevertheless, these categories are often blurred and it is not every wrongful act which receives compensation. Judges have an important role in the development of this tort and questions of judicial policy are often finally balanced and change according to the circumstances of the situation.

23. The first matter that calls for consideration is whether the Urban Council owes in law a duty of care to the public in its fulfilment of its duty to control hawkers. In my judgment, they do insofar as the actual acts or omissions of the General Duties Team are concerned. If, for example, the Team behave in such a way that they themselves injure passers-by or even the hawkers, then they may be liable.

24. In this case, however, the injuries have been caused by a third party. Are they under a duty of care to persons injured by the act of a third party? The answer to this question cannot be simply given. One of the reasons is that the circumstances of the occurrence may operate to limit the duty of care, or to break the chain of causation. The essential matter is whether on the facts there is liability on the alleged wrongdoer. Before I answer that, I turn to the second matter: Has there been a breach of some duty which Council owes, assuming that there is such a duty?

25. The Council must, in my judgment, act reasonably. They are under a duty to control hawkers, to arrest them and to bring them before the Courts. I was impressed by the witnesses called by for the Defence. They have a very difficult and unenviable task with a threat of personal violence always present. They carry no arms, are always in uniform and therefore readily recognisable, and they must act in congested areas. Like police officers, they often do not receive public sympathy for their dangerous tasks, and if anything goes wrong they are liable to be criticized by uniformed sectors of the public.

26. The Plaintiff suggests that they acted wrongly in a variety of ways. I do not set them all out. Basically, it is alleged that by carrying out a hawker raid when they did, parking an identifiable lorry at the junction, choosing the busiest time of the day and wearing uniforms they were bound to cause chaos as hawkers would flee in all directions. It is clear that that situation does occur when the General Duties Team moves into a hawker area.  I can see nothing wrong in that.

27. These unlicensed hawkers cause, as I have said, a serious problem and the philosophy of hawker raids is both sound and reasonable. I, therefore, reject the allegations of breach of duty which are levelled against this Team.

28. I turn finally to the last ingredient of negligence and I couple with it whether there is a duty of care owed. I gratefully cite the judgments of certain highly respected judges in England on the liability imposed for the act of a third party. In Lamb v. Camden London Borough (1981) 2AER 408 Oliver, LJ he said at p.419:

"There may, for instance, be circumstances in which the court would require a degree of likilihood amounting almost to inevitability before it fixes a defendant with responsibility for the act of a third party over whom he has and can have 20 control".

In P. Perl (Exporter) v. Camden L.B.C. (1984) 1 QB 342, Waller L. J. at 349 said:

"But no case has been cited to us where a party has been held liable for the acts of a third party when there was no element of control over the third party ........".

At page 359 Goff L. J. is a lucid exposition of the liability in negligence for the wrongdoing of a third party concluded by saying:

"I know of no case when it has been held in the absence of a special relationship, that the defendant was liable in negligence for having failed to prevent a third party from wrongfully causing damage to the Plaintiff".

The decision in Home Office v. Derset Yacht Co. Ltd. (1970) AC 1004 was an example of such a special relationship. A more recent case was King v. Liverpool  C. C. (1986) 3AER 544, when the earlier decisions were received and the difficulties of establishing liability pointed out.

29. In my judgment, it is not possible for the Urban Council to prevent these unlicensed hawkers from fleeing when they appear. They are unlawfully there and all that is happening is that the Council is upholding the law. The injuries to the Plaintiffs were caused by the criminal act of this hawker. The callous nature of such a person can be gauged when Chow Yuk-keung, said to the hawker concerned, "You scalded someone!". The hawker replied, "Ignore him ! The most important thing is I go free."

30. In my judgment, the act of the hawker was an independent matter for which the Urabn Council are not liable. Whether, therefore, it is right to say there is no duty of care owed by the Urban Council to the public for the acts or omissions of hawkers, or that such an act is a break in the chain of causation, is not necessary to decide; I would prefer to say that there is a limit on the area of the duty owed. I am in no doubt, however, that the Urban Council, as a matter of law, are not responsible for injuries caused by hawkers when they run from a General Duties Team.

31. Although, on the facts, I am satisfied that the team did not go into the upper part of Fat Tseung Street until after the incident, it would have not made any difference had they done this. They are entitled to apprehend wrongdoers, but as a matter of common sense the Urban Council stipulate that hawkers should not be chased. From a public point of view, judicial policy should permit the Urban Council to exercise its lawful powers without interference. In my judgment, this Court should not seek to lay down any form of restriction on the Urban Council, nor dictate how it exercises its powers. It comprises experienced administrators who are faced with an intolerable problem. If further help should be given to the public over this problem, then it should come from the Government and not  from the Courts.

32. I only add two matters. First, the Plaintiffs claimed an additional  sum of $124,000 for surgery in the future. The Plaintiffs said they wished Dr. Ma, now in private practice, to continue with the child's treatment and I refer to the case of Brink in 1965. Dr. Chau gave evidence as to the treatment which he and his team at Princess Margaret Hospital could provide. I am satisfied that it would be unreasonable to allow this sum had I found liability established.

33. Secondly, I would have awarded this innocent child $340,000. There exists in Hong Kong a body under the chairmanship of Robert Tang  Q. C., called the Criminal and the Law Enforcement Injuries Compensation Board. It provides a level of compensation to persons injured as a result of certain acts. It is obviously a well administered body giving assistance to those who are entitled to receive it. The level of compensation, however, for a person such as this child bears little relationship to the sum I would have awarded.

34. That is no criticism of the Board because they act within a framework which imposes such a restriction. The vast majority of people in Hong Kong are law abiding and caring. Some, however, suffer at the hands of criminals. I saw this child and recognised the agonies he has suffered and the problems he will suffer in the future. As I have said before, it is a comfort that he has loving, devoted parents. I would have thought that the time has come when a caring society such as Hong Kong would provide a level of compensation more commensurate with a Court award. There are many claims on the public purse and compensation paid for such injuries, as this child suffered, does not give a monetary return except that it does provide some relief to human suffering. I would dismiss the Plaintiffs'  claims.

35. No order as to costs.

Representation:

Mr. Denis Mitchell, instructed by Messrs. Robertson, Double & Boase, assigned by D. L. A., for the Plaintiffs.

Mr. Nigel Kat, Crown Solicitor, for the Defendant/Urban Council.