The Queen v. Chan Lai Ping
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IN THE COURT OF APPEAL 1986 No. 574 BETWEEN THE QUEEN and CHAN Lai-ping (F) Coram: Roberts, C.J. Liu & Jones, JJ. Date: 19th August, 1987 ____________________ J U D G M E N T ____________________ Roberts, C.J. - Preliminary 1. Mrs. CHAN Lai-ping was convicted by a District Judge on 5th June, 1986, of persistently withholding a service with intent to cause a sub-tenant to give up occupation of premises contrary to section 70B(2)(a) of the Landlord and Tenant (Consolidation) Ordinance, (“Cap.7”) and was fined $5,000 on 19th June, 1986. 2. The Judge found that, on 6th December, 1984, the appellant landlord switched off the electricity supply to premises occupied by Mr. SHUM Lun and his wife, Mrs. CHAN Yin-mui, and that this continued until 3rd July, 1985. 3. At the conclusion of the hearing on 19th June, application was made to the Judge for the court to exercise the powers conferred upon it by section 70B(3) of Cap.7 and to award compensation for damage, loss or inconvenience suffered by the sub-tenant by reason of the acts constituting the offence. Appeal against conviction 4. Mrs. CHAN Lai-ping did not, at that stage, seek to enter any notice of appeal against her conviction and sentence. On 11th November, the application for compensation came before the same District Judge. At the conclusion of that hearing, at which the former sub-tenant and his wife both gave evidence and at which the appellant was present, the Judge awarded as compensation under section 70B(3) $5,000 for what he called “general inconvenience” and a further $15,000 in respect of loss of profits suffered by the wife, who had been, with her husband, living in the premises concerned. 5. Subsequently, on 21st November, Mrs. Chan entered a notice of appeal in which she sought leave to appeal against the order of compensation but not against her conviction. 6. At the outset of the hearing before us today, Mr. Christopher Smith, appearing on behalf of Mrs. Chan, sought leave to appeal out of time against the conviction, a notice to such effect having been entered on 8th June, 1987. We refused an extension of time, being of the view that where such a very long period has elapsed after the decision against which leave to appeal is sought, an extension should only be granted in unusual circumstances. In effect, the substantive ground for the application was that the applicant, who had riot been represented before, had only received legal advice in May of this year. In our view, this was an insufficient reason to justify such a very long extension as that which was sought. 7. The hearing before us, therefore, has been concerned solely with the award of compensation made by the Judge on 11th November last year. Compensation 8. Section 70B of Cap. 7 reads as follows -
9. This section was only added in 1983, and we know of no Hong Kong cases in which this section has so far been invoked. 10. We were, however, referred to a number of English authorities, which dealt with the application of section 35 of the Powers of Criminal Courts Act 1973, which has certain similarities to section 70B(3) of Cap. 7. 11. The approach which the English Courts have adopted in the application of that section is exemplified by the case of R. v. Vivian[1], in which the Court of Appeal commented that compensation orders were introduced as a “convenient and rapid means of avoiding the expense of resort to civil litigation” but added a caution that the powers should not be used -
12. A section of this nature is intended to do no more than provide a form of quick relief. It is not meant to involve the court in the sort of detailed examination of damages which is normally undertaken, for example, in a full claim in contract or tort. Indeed, when applying the section, the court should bear in mind the possibility that, in appropriate cases, the victim may resort to civil proceedings. 13. The sections purpose is more limited, enabling some immediate compensation to be paid to an injured party for obvious loss caused directly by the acts which have been the subject of the charge, and for what is described in the section itself as “inconvenience”. 14. In this case, it cannot be said that the Judge reached the award which he gave without any evidence. The complaint which Mr. Smith advances is that the evidence was misread by the Judge in the sense that the figures which he neither justified within the proper adopted as the measure of loss were neither justified by the evidence that was before him nor sphere of the section. 15. The Judge gives no reason for arriving at a figure of $5,000 for “inconvenience”. Such an award is by its nature not related to any quantifiable loss or damage and we would only have interfered with it if we thought that it was clearly excessive, which we do not. We see no reason why that part of the award should not stand. 16. The bulk of the award is derived from the Judge’s assessment of the income which Madam Chan Yin Miu, who lived in the premises with her husband, had lost in consequence of the appellant's acts. 17. Her evidence, which the Judge accepted, was that she was unable, as a result of the electricity being switched off from the premises, to carry on with her business of sewing. 18. She said that she had earned $1,800 a month sewing umbrella tops and that – “because I had no electricity for my machine I could not work”. She added that she could not take the machine with her to the relatives with whom she was staying. 19. The Judge accepted that she earned $1,500 a. month from her work, and found that she was deprived of the means of earning that sum for a period of 20 months, from the switching off of the electricity in December 1984 until the sub-tenants vacated the premises in September 1986. 20. In conducting an examination of loss of earnings in this way, the Judge performed the task which we think ought not to be undertaken in applying this summary remedy. Claims of this kind ought to be pursued by the usual methods of recovering damages. 21. However, even if it had been correct to assess damages for loss of profits, and not merely to compensate for obvious loss, we cannot think that it was correct for him to have multiplied the assessed monthly loss of earnings by a figure of 20. 22. Section 70B(3) empowers the court to order the payment of a sum by way of compensation “for damage, loss or inconvenience suffered by the tenant or sub-tenant by reason of the acts constituting the offence”. 23. The charge of which Mrs. Chan was convicted was of withholding a service, that is to say, the supply of electricity, with intent to cause the tenant to give up occupation between 6th December, 1984 and 3rd July, 1985. 24. Since the offence, as charged, did not continue after 3rd July, 1985, we do not consider that it can be said that any subsequent loss could have been caused by that offence. That is not to say that there may not be other circumstances, and it is not difficult to think of them, in which it would be proper to award compensation for damages suffered after the conclusion of the period during which the offence charged was committed. 25. We should, perhaps, deal briefly with one argument relating to the interpretation of section 70B(3) which allows for compensation by reason of “the acts constituting the offence”. In sub-section (2), the offence can be committed if a person, with the necessary intent, either does an act “calculated to interfere with peace or comfort” or “persistently withdraws or withholds services”. 26. The view we take is that sub-section (3) is intended to cover both situations. Where services are withdrawn or withheld this is achieved by a series of acts, so that sub-section (3) will apply, just as it would to a direct act calculated to interfere with peace or comfort. 27. We considered whether it would be proper to award any compensation to Mrs. Chan Yin-mui, on the ground that the section provides for compensation to a "tenant or sub-tenant", and the record was insufficiently clear as to whether she fell within that jurisdiction. 28. This was not a point taken by counsel for the appellant and, not without some hesitation, since the record is incomplete as to this, we have come to the conclusion that, in reality, the wife and husband were probably joint sub-tenants and that the Judge has not been shown to have been wrong in taking her loss and inconvenience into account in assessing compensation. 29. Having decided that we should not attempt to assess damages in the full civil claim sense, we are left with the task of attempting to find a simple and understandable formula which will give appropriate compensation to sub-tenants who were undoubtedly badly treated by the landlord. 30. The rent which was paid throughout the period of the offence, which was about seven months, was $514.80 a month. That rent was paid for premises which were of very much less value to the sub-tenants than they would have been had electricity been available. It would be unfair to say that, even without the electricity, the premises were worthless, because they were used by the sub-tenants to store goods throughout this period. 31. We, therefore, think that it would not have been unreasonable for the Judge to have found that the value of the premises, by virtue of the removal of the electricity, was greatly reduced and that about $400 a month of the rent was thrown away; or $2,800 for the period of seven months. To that figure should be added $5,000 for general inconvenience, making a total of $7,800, to be paid by the appellant, instead of the earlier figure of $20,000. To that extent, therefore, the appeal succeeds and the compensation order should be varied accordingly. 32. No order as to costs. Mr. Christopher Smith (D.L.A.) for Appellant. Mr. Winston Leung, Senior Crown Counsel, for Respondent/Crown Prosecutor. [1] [1979] 1 W.L.R. 291 |
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