Chea Kam Wing Victor v. Kwan Kin Travel Services Ltd

cacv 82/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 82 of 2007

(on appeal from HCPI NO. 970 of 2005)

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BETWEEN

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Before : Hon Rogers VP, Le Pichon JA and Stone J in Court

Date of Hearing : 20 February 2008

Date of Judgment : 20 February 2008

Date of Handing Down Reasons for Judgment : 26 February 2008

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.I agree with the reasons for judgment of Le Pichon JA.

Hon Le Pichon JA:

2.This was an application for leave to appeal to the Court of Final Appeal from the judgment of this court dismissing the defendant’s appeal from the order of Deputy High Court Judge Longley awarding the plaintiff damages for personal injuries sustained in a traffic accident in Taiwan.  The application, made on the basis of section 22(1)(b) of the Court of Final Appeal Ordinance, was dismissed with reasons to be handed down which we now do.

Background

3.The defendant is a Hong Kong tour operator.  The plaintiff purchased a package tour to Taiwan from the defendant who was responsible for organising the tour.  The double-decker tourist coach in which the tour group was travelling went out of control as it was going downhill, crashed through the safety barrier, fell down the hillside and overturned.

4.The plaintiff who sustained injuries successfully brought an action for damages based on the defendant’s breach of contract and/or negligence.  The judge held that the defendant was a provider of services rather than a mere agent of the plaintiff in arranging those services and that, as such, it was under an obligation to ensure that the elements of the package tour were provided with reasonable skill and care, even if provided by others on its behalf and that it had failed to do so.

5.This court, in dismissing the appeal, affirmed the judgment below and further held that even if the defendant was merely an agent for the plaintiff, it would still have to show that it had exercised due care in the selection of a competent contractor and, on the facts, it had failed to do so.

Questions of great general or public importance

6.The defendant’s application identified four questions that were said to be of great general or public importance.  At the outset of the hearing, Mr Wong who appeared for the defendant abandoned the second and third of those questions.  That left the first and fourth questions.

7.The first question set out in the application is somewhat lengthy and not readily intelligible.  As I understand it, it would appear that the question Mr Wong wishes to raise is something like this: where the tour involves travel overseas, whether the reasonable skill and care the local tour operator is contractually bound to exercise (as the provider of tour services) should cease when the tour is overseas, and whether it has any duty in respect of how the overseas service provider selected by the local tour operator seeks to discharge its obligations.  Mr Wong’s position was that the plaintiff’s remedy is against the overseas service provider.

8.Mr Wong would appear to accept the proposition that the local tour operator selling overseas tour packages does owe a duty to exercise reasonable skill and care in its selection of the overseas service provider.  That being the case, if the proposition is properly understood, the first question said to be a matter of great or general public importance simply does not arise.  If anything, Mr Wong’s challenge is to the application of that proposition to the particular facts of the case.

9.The fourth question reads as follows:

“

4.

Whether a package tour operator, who undertakes merely as agent to arrange a package tour for the participants, has a duty to exercise with reasonable skill and care in the selection of the immediate service provider or has the duty to ensure the quality of each and every ultimate service provider.”

10.Mr Wong was asked whether he agreed with the statement of principle in § 12 of my judgment to the effect that even as a mere agent for the plaintiff, the defendant would still have the burden of showing that it exercised due care in the selection of a competent contractor.  He confirmed that he had no quarrel with it.

11.Mr Wong went on to say that the fourth question arose from § 14 of my judgment, which he considered went beyond the duty as stated by Lord Slynn in Wong Mee Wan (Administratrix of the Estate of Ho Shui Yee, deceased) v Kwan Kin Travel Services Ltd [1995] 3 HKC 505, 510H.

12.However § 14 which reads:

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14.

Having regard to these facts, the judge came to the conclusion that the defendant was in breach of its contractual obligations to the plaintiff because it had entrusted the provision of transportation to Zhong Chun with no stipulation as to those to whom the driving of the coach should be entrusted and no prohibition against subcontracting the work.”

was nothing more than a statement of the judge’s conclusion (with which I agreed) when applying the statement of principle to the facts before him.  I do not accept that it gives rise to the fourth question as now framed.

13.Accordingly, I was unable to identify any principle of great general and public importance which would merit the grant of leave to appeal to the Court of Final Appeal.

Hon Stone J:

14.I agree with the Reasons for Judgment of Le Pichon JA.

Mr Wong Chi Kwong, instructed by Messrs Chau & Associates, for the Plaintiff/Respondent

Mr Kevin C W Wong & Mr Victor K H Chiu, instructed by Messrs Reimer & Partners, for the Defendant/Applicant