Au Muk Shun v. Choi Chuen Yau
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IN THE COURT OF APPEAL 1987, No. 125 BETWEEN
_________________ Coram: Hon. Cons, V.-P., Fuad & Power, JJ.A. Date of hearing: 8th December, 1987 Date of delivery of judgment: 8th December, 1987 _________________ JUDGMENT _________________ Cons, V.-P.: 1. This is an appeal, with the leave of the court below, from an order of Deputy Judge Crawshaw disposing of some 43 tons of pig-iron. The order was made at the conclusion of criminal proceedings which had been taken against persons who had stolen the pig-iron from the Appellant. Those persons had sold the iron to a third party who, in his turn, had sold it to the Respondent. 2. It is well established that a purchaser of goods cannot, in normal circumstances, take a better title to the goods than that which the seller possessed. In this instance the seller possessed no title at all. 3. The Respondent below relied upon Section 24 of the Sale of the Goods Ordinance, Cap.26. The judge accepted his reliance to be well founded. Section 24 of the Ordinance is in these words –
4. It can be seen that to obtain the benefit of the section four conditions must be fulfilled: (1) the goods must be openly sold; (2) the sale must take place in a shop or market; (3) the sale must be in the ordinary course of business of that shop or market; and (4) the purchaser must act in good faith and without notice of any defect of title. 5. The present Notice of Appeal suggests that the first three of the conditions were not fulfilled. No point is now taken as to the fourth, although reliance was placed thereon in the original grounds of appeal. 6. The evidence before the judge below, though the Appellant and the Respondent were both represented, was very slight. The sale had taken place in what the witnesses referred to as the third party’s “warehouse”. The nature of the warehouse is not very clear from the evidence. The Respondent spoke of it as being “the place where buying and selling takes place. Anyone wanting to buy pig-iron may go there and negotiate there. Normally business will be done there.” Later on he said “Anyone wanting to buy pig-iron and scrap can go inside. Sze Hing Cheung is a scrap-metal company. It does sell pig-iron …” 7. That was the only oral evidence. There were also photographs. They depict what seems to be a large open yard, containing all sorts of metal tubes and wooden drums, with a building at the far end of a rather fragile nature. The witnesses did not make clear, when they mentioned the warehouse, whether they were speaking of the yard or the building. The latter does not have the appearance of what one normally would look upon as a shop, but it has to be accepted that the appearance of some shops, particularly those in remote areas, is sometimes hard to reconcile with the image of shops found, say, in the centre of a sophisticated town. 8. There was no evidence as to the actual circumstances of the sale, - for example whether it took place in the yard or the building, or which part thereof – which might have enabled the Court to judge whether it had been undertaken openly. 9. The judge dealt with the conditions required by the section in these words –
10. “Shop” is not defined in the Ordinance. Mr. Tsu, for the Respondent, has drawn our attention to two definitions in English ordinances. The Pawnbrokers and the Shops Acts, but with respect definitions in particular Acts do not help. We points out that “shop” is a conceptual idea. With that I would not disagree. 11. For myself, I do not propose to lay down any definition of shop. For present purposes it is a question of fact to be considered in the context of the section. One important aspect is the retail nature normally associated with a shop. In this instance it cannot possibly be said that the sale of 43 tons of pig-iron was a retail sale. 12. Next I would observe that in order to get the benefit of the section the purchaser must prove that the conditions have been fulfilled. The burden of doing that rests fairly and squarely on him. In my view, the Respondent has not discharged that burden. The evidence is insufficient to establish that, whatever exactly comprised the warehouse, it was a shop. Indeed such evidence as was called tended to show that it was not. 13. It is not necessary then to give a concluded opinion on whether the iron had been “openly sold” or whether its sale was in the ordinary business of the third party. But I should add, in deference to the arguments, that I have grave doubts as to the former. As to the latter I think the Respondent might be on firmer ground, particularly as we have been told that the normal trading invoice of the third party describes him as a “specialist dealer in new and old metals”. 14. But for the reason that in my view it was not shown that the premises were a shop, I would allow the appeal and make an order disposing of the pig-iron to the Appellant.
Fuad, J.A.: 15. I agree that the appeal should be allowed for the reasons given by my Lord the Vice-President, and I also agree with the order he proposes to make.
Power, J.A.: 16. I also agree with both the reasons of the learned Vice-President and with the order proposed.
Kwok Wai-kin (M/s C.P. Tsang & Co.) for Appellant Sterling Tsu (M/s W.K. Leung & Co.) for Respondent |