Chow Hing Chuen v. Chu Kwan Kwong
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IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CIVIL JURISDICTION ACTION NO. 1909 OF 1972 _________________ Between
_________________ Coram: N.B. Hooper, D.J. _________________ JUDGMENT _________________ 1. This is an action for damages arising out of an assault committed by the defendant and others on the plaintiff on the 17th of November, 1971 at approximately 2.15 p.m. outside a lift on the ground floor at No.733 Nathan Road. The Writ was issued out of the Kowloon District Court on the 25th of March, 1972 as action No. 2527 of 1972. The defendant filed a defence to the action that bears no date except that there appears at the top of the document the imprint of a rubber stamp showing the date to be the 30th of March, 1972. In his defence he claimed that although there was a fight at the time and place in question it was caused by the plaintiff who hit him first and that he merely acted in self defence. He admits in his defence that he was convicted on the 22nd of November in respect of a charge of assault under S.40 of the Offence against the Person Ordinance and was fined $750, but he maintained that he was hit first and that he acted only in self defence. He gave his address at two places firstly No. 93 Tung Choi Street, 11th floor, Kowloon, and secondly Room 777, Block 12, Li Chang Uk Resettlement Estate, Kowloon. 2. The next step in the action was taken by the plaintiff when his solicitors Messrs. D’Almada Remedios applied for a date of trial and on the 28th of April 1972 the hearing date was set for the 1st of June at 10 a.m. at the Victoria District Court an order being made for the transfer of this case to the Vicoria District Court. A formal notice of trial dated the 1st of May, 1972, was sent to the defendant by registered post to his address at Room 777, Block 12, Li Chang Uk R/E, Kowloon, one of the two addresses given by him on his statement of defence. The letter was returned with an endorsement in the form of an imprint of a rubber chop bearing the words “return to sender” and a tick against the word “unclaimed”. Evidence has been given by a clerk at the Victoria District Court Registry confirming the return of this letter unopened and varifying that when he opened the envelope it contained the notice of trial giving full particulars. It appears from the Court’s record that a further letter was sent to the respective parties in this case informing them of the new action No. V.C.J. Action No. and of the time and date for hearing. This second letter was addressed to the defendant at the first of the 2 addresses given by him in his statement of defence, namely No. 93 Tung Choi Street, 11th floor Kowloon. Again the envelope was returned bearing the same imprint from a rubber stamp with the words “returned to sender” and a tick opposite the word “unknown”. On the day of the trial, not surprisingly the defendant failed to appear. On hearing the evidence of the Registry Clerk of the Victoria District Court, I was satisfied that Rule 38E(a) of the District Court Civil Procedure (General) Rules regarding service of the notice had been complied with. The hearing therefore carried on. 3. The plaintiff went into the witness box and described the circumstances which led up to the assault, and also gave details of the assault. It would appear from his evidence that the defendant was at one time a very good friend of the plaintiff, but that their relationship changed when the defendant made off with the plaintiff’s wife. Eventually the plaintiff entered into a separation agreement with his wife under which he agreed to allow the wife to retain custody of the three children of their marriage. This agreement was made in August, 1971. 4. Shortly after this in August 1971 the eldest daughter of the marriage came back to the plaintiff and begged him to let her stay with him, because the defendant had been ill-treating her. He therefore telephoned his wife and asked her to come and take away the child, and also to tell the defendant not to ill-treat her. 5. However early in November 1971 the same thing happened again, but on this occasion the eldest daughter came to the plaintiff with the other 2 children, claiming that the defendant ill-treated them. Once again the plaintiff made arrangements for his wife to take them back. This incident was followed then days later by the plaintiff’s eldest daughter ringing him up on the telephone and begging him to let her stay with him as she was ill-treated. The plaintiff arranged to meet her at her school but also rang up his wife making arrangements for her to also meet them at school. When they had all met at the school, they went of the police station in order to resolve their problems, but were unable to get any assistance from the police as it was a domestic matter, though they were advised that a reasonable solution would be to allow the children to select the parent with whom they wanted to stay. The children then all said that they wanted to stay with the plaintiff so he took them home. 6. The following day the plaintiff received a telephone call from the defendant saying unless the children were returned he would be beaten up and that he would also have to apologise. The defendant further accused the plaintiff of telling people that he had snatched the plaintiff’s wife away from him saying that this had impaired his reputation. 7. The assault upon which this action is based, took place on the 17th of November, 1971 at about 2.15 p.m. on the ground floor of the building at No. 733 Nathan Road, Kowloon, at a spot just outside the lift. When the plaintiff arrived to take the lift up to his office on the 13th floor, there were 6 people waiting for him outside the lift on the ground floor. Of the 6 people, one was the defendant, another was the plaintiff’s wife, and a third was a man called Chan Keung. The identity of the other 3 has not been disclosed. 8. As soon as the plaintiff saw the 6 persons, the defendant said “This is the bugger. Hit him.” He then gave the plaintiff a blow with his fist and said to the other men “Don’t be afraid. Beat him up. Chung Ming Kwong is my friend.” (The plaintiff did not know this man Chung Ming Kwong at the time but subsequently learned that it was the name of a detective station sergeant at the Mongkok Police Station). The defendant and the other three men then beat up the plaintiff with fist blows and also they kicked him at the same time. The plaintiff described this assault in some detail, and there can be no doubt that it was a deliberate and most vicious assault upon the plaintiff, as a result of which the plaintiff suffered multiple bruises over his limbs, neck, ribs, back and sides. Fortunately for him a detective who happened to be passing saw what was happening and took the plaintiff to the police station where the plaintiff became unconscious as a result of the assault. The plaintiff was eventually sent to hospital where he regained consciousness, and was a patient for three days. 9. Subsequently the defendant and one of the other assailants Chan Keung were prosecuted in the Magistrate’s Court, and were both convicted and fined. The defendant was fined $750, and Chan Keung was fined $1000. The Plaintiff was present throughout the trial at the Magistrate’s Court and heard the man Chan Keung admit 10 previous convictions, one of which was of a similar character. Chan Keung declined to give evidence in the Magistrate’s Court, and the plaintiff formed the opinion that he was a professional fighter. 10. There can be no doubt that because of the strained relationship between the plaintiff and the defendant, and because the plaintiff at the request of the children took the children back to his home, this assault was deliberate and planned attack by these four men upon the plaintiff to compel the plaintiff to return the children to his wife. I think anyone hearing the story of the plaintiff, would feel that the defendant’s conduct in the circumstances was outrageous. The defendant’s attitude arranging for the beating up of the plaintiff, was wilful and unlawful conduct of a high order. 11. Mr. Remedios who appeared for the plaintiff informed the Court that no special damages were claimed, only general damages. He then addressed the Court on the subject of the law relating to exemplary damages. He referred first to the case of London v. Ryder 1953 2 Q.B.D. p.202. In that case there was a dispute between the plaintiff and her mother over the devolution of certain property which had been left to the plaintiff by her father. At the instigation of the plaintiff’s mother the plaintiff was assaulted by a man who was the friend of the plaintiff’s mother. There was very little physical injury from the assault, but the plaintiff suffered shock. The jury awarded the plaintiff £5500 made up in the following way. £1500 for trespass and £4000 for combined assault, in the proportion of assault £1000 and exemplary damages £3000. In both the reported case and the present case the plaintiff was assaulted by a third party in respect of a personal dispute between the plaintiff and a close member of the plaintiff’s family. The facts of the present case, however, would appear to justify even more an award of exemplary damages against the defendant because the act of the defendant was deliberate and premeditated act, and because the assault was committed by four people upon the plaintiff who was alone. 12. The reported case was decision of the Court of Appeal. Its effect as a precedent however was severely limited when in 1964 the House of Lords restricted the sort of cases in which exemplary damages could be awarded to 3 defined categories. (Rookes v. Barnard 1964 1 A.E.R. p.367). 13. Lord Devlins’s judgment in the Rookes case has however come under attack in most of the Commonwealth countries. The Privy council has supported the High Court of Australia in a judgment which marshalls the arguments against the new doctrine (see Australian Consolidated Press Ltd v. Uren 1967 3 A.E.R. p.523 and 1969 1 A.C. p.590) The new doctrine in Rookes case was recently condemned by the Court of Appeal in England in the case of Broome v. Cassell & Co. Ltd. and another 1971 2 A.E.R. p.187. It was held by the Court of Appeal that the decision of the House of Lords in Rookes case on the question of exemplary damages was made per incuriam because it was in conflict with earlier decisions of the House of Lords and, when the case was decided, the House was bound to follow its own previous decision; furthermore the decision was made without any argument on the point, and the decision was not therefore binding on the Court of Appeal. It further held that there was therefore no rule restricting the award of exemplary damages in tort actions to the narrowly defined categories of cases described in Rookes v. Barnard which were in any case illogical and unworkable; the power of common law to award exemplary damages in appropriate cases was well settled. It further suggested per curiam that the difficulties presented by Rookes v. Barnard were so great that until the House of Lords has considered the problem again judges should direct juries in accordance with the law as it was understood before Rookes v. Barnard. 14. The Court of Appeal did not have to wait long for the House of Lords to consider the problem again because the first appellant appealed from the Court of Appeal’s decision. The hearing lasted 13 working days before the appellate committee of the House comprising Lord Hailsham of St. Marylebone L.C., Lord Reid, Lord Morris of borth-y-gest, Viscount Dilhorne, Lord Wilberforce, Lord Diplock and Lord Kilbrandon. 15. It was held (Viscount Dilhorne Dissenting) that Rookes v. Barnard was not arrived at per incuriam and further that in the hierarchial system of the English courts it was not, in any event, open to the Court of Appeal to direct Judges of the first instance to ignore a decision of the House. (Cassell & Co. Ltd. and Broome (1972) 2 W.L.R. 645). 16. Rookes v. Barnard must therefore still be regarded as defining the common law of England with regard to the categories for which exemplary damages can properly be awarded. (The Privy Council in Australian Consolidated Press Ltd. v. Uren upheld the decision of the High Court of Australia only on the basis of the law of Australia). 17. However as has now been made clear, there is a distinction between exemplary damages and aggravated damages. It is only with regard to the former that the categories are restricted by the decision in Rookes v. Barnard. 18. Lord Hailsham makes this abundantly clear in the following passage from his judgment:
19. I am satisfied that in the present case I have power to award aggravated damages though not exemplary damages. Taking into account in the present case the obvious feelings of hurt pride which the plaintiff felt, the pain and suffering he felt, the high handed action and out-rageous conduct of the defendant showing a complete contempt for the plaintiff’s rights as a member of the public, I could award damages to the plaintiff in a sum of $2,000.00 with costs.
Mr. Remedios (D’Almada Remedies & Co.) for Plaintiff. Defendant absent |