Florence Hsia v. Fung Po Yuk
|
CACV000001/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 1 OF 1973 (On appeal from O.J. 1475 of 1972) -----------------
----------------- Coram: Huggins and McMullin, JJ. Date of Judgment: 15th March 1973. ----------------- JUDGMENT ----------------- Huggins, J.: 1. This is in substance an appeal against an assessment of damages. The Plaintiff sued in the Supreme Court for damages for assault. She claimed a sum of $20,000 by way of general damages. There was no claim for special damages, although, in fact she has repeatedly maintained that there was some damage to her clothing and to a wig. The Defence did not, strangely enough in the circumstances, raise any defence under s.38 of the Offences Against the Person Ordinance, but was a simple denial of the assault and of the loss and damage. 2. The claim came on for trial before Trainor, J. and the evidence of the assault was initially that of the record of proceedings for assault instituted by the Appellant in the Causeway Bay Magistracy. Those proceedings resulted in a conviction of the Respondent, who was "bound over under Common Law in the sum of $500 without conviction recorded" - a somewhat puzzling form of order. However, the important thing is that there was a conviction although it was not recorded. Therefore under s.38K of the Evidence Ordinance the conviction could be evidence of the assault. In addition, before the learned judge in the court below the Appellant gave evidence saying that her hair was pulled and that she suffered, and she gave a brief statement of what had happened. Apparently she was the customer of the Respondent's shop: she went in and had refreshment on one or two occasions on the day in question in that shop, then went out and visited a bookshop: thereafter she returned to the Respondent's shop and sought to wash her hands in the sink: the Respondent objected because there was a risk that the Appellant would splash and dirty some of the crockery which was lying nearby and, as a result of this attempt to stop the Appellant, an argument ensued. It was alleged by the Respondent that the Appellant then picked up a stool and tried to smash the counter with it, that she tried to take the stool from the Appellant and pushed her to the door, that the Appellant then hit the Respondent and that a melee ensued. The Respondent denied tearing the blouse but admitted that she did pull the Appellant's hair. 3. The learned judge was disinclined to believe the Appellant at all. He said:
but he went on to say that the evidence adduced by the Respondent fell far short of disproving the correctness of the conviction. There is nothing in the record of the Magistrate's Court, and there is nothing in the papers before us, to show what either the magistrate or the learned judge thought was the true course of events at the time of the assault. All that can be said is that the learned judge was obviously disinclined to believe the Appellant's version. 4. Quite clearly the claim for $20,000 was a grossly inflated claim. On no possible version of the facts in this case could anything approaching that figure - indeed, anything approaching a figure of $1,000 - have been appropriate. I think that we must assume that the learned judge was inclined to the view that the Appellant brought this assault very much upon her own head. Had this been an unprovoked assault, speaking entirely for myself, I think that the damages could not even then have been as much as four or five hundred dollars, but, assuming that the Respondent was provoked so that the Appellant was very much the authoress of her own damage, this was obviously a mitigating factor which the learned judge was entitled to regard in reduction of damages. 5. On the papers before us I can see no reason to interfere with the assessment which the learned judge has made and I would dismiss this appeal. 15th March 1973. Representation: |