Wong Sai Chuen and Another v. Tam Mei Chun and Others

CACV000133/1981

[Merger of FAO and LARCO awards. Calculation of damages for lost years.]

BETWEEN:

Coram: Roberts, C.J., Yang and Barker, JJ.A.

Date of Judgment: 19, 20, 22, 23, 26, 27 April, 12 May

------------------

JUDGMENT

------------------

Roberts, C.J.

Preliminary

1. On 6th April, 1979, a Collision occurred near Kam Tin in the New Territories between a taxi driven by Mr. AU Sun-kong and a private car driven by Mr. WONG Sai-chuen. Both drivers were killed.

2. The administratrixes of the estate of Mr. AU ("the plaintiff") brought an action for damages on behalf of the dependants, under the Fatal Accidents Ordinance ("FAO") and on behalf of the estate, under the Law Amendment and Reform(Consolidation) Ordinance ("LARCO") against the personal representatives of the estate of Mr. WONG Sai-chuen ("the defendant").

3. The judge found that the defendant was solely to blame for the accident and awarded $623,820 under FAO and $91,727 under LARGO - a total of $715,547. He did not order that there should be a merger of the LARCO award, or any part thereof, with the FAO award.

4. The appellants do not challenge the judge's finding that the defendant was wholly to blame for the accident. They dispute the amounts which were awarded, and the methods by which the judge arrived at them.

5. The plaintiff was a government officer, employed in the Agricultural and Fisheries Department. He also drove a taxi, without the permission of his employer, in the evenings and at weekends.

6. The judge's award of $715,547 was broken down by him into the following constituent parts -

I. UNDER FAO.

Item 3(Housing subsidy)

7. Evidence was given that the market value of the government housing occupied by the plaintiff was $500 per month. Since this accommodation was below the grade to which his actual salary entitied him, the plaintiff paid rent for it at the rate of $63 per month, or 5% of a notional salary of $1,260. So the value of the plaintiff's emoluments at the date of his death should be increased by $437 ($500-$63) until the end of March 1981.

8. The plaintiff's salary was revised to $3,010 per month with effect from 1st April, 1981. His rent would thereafter have been 5% on a notional salary of $1,860, or $93 per month, leaving the additional benefit to his estate of the subsidized accommodation as $407 ($500-$93) thereafter. There was no evidence that the market value of his accommodation has increased.

9. Counsel for the appellants stated that he would not ask us to apply the reduced subsidy value for the period of six months (April-September 1981) before judgment, and we follow his suggestion (the difference would, in any event, be only $180).

10. The Government permitted the plaintiff's widow to occupy the quarters rent free until 27th October, 1879, which I will take as being for 6 months after his death. Her loss of the value of the housing subsidy is agreed by the parties as running only from the date on which she vacated the quarters. Thus the value of the housing subsidy should be 23 months at the rate of $437 a month i.e. $10,051.

Item 4 (Taxi earnings)

11. The plaintiff's widow gave evidence that the plaintiff "started to drive every night", and earned "$100 odd" per night, during March 1979. The judge accents that he did word every evening in that month. The owner of the taxi, who drove the vehicle himself, testified that a net earning of $100 a night was common.

12. It was argued for the appellants that an account, kept by the plaintiff of his earnings during March, which was produced in evidence, showed that the net sum which the plaintiff retained, after paying for fuel, amounted only to $2,040, during the period 8th March to 4th April (28 days).

13. The figure of $2,040, however, does not give credit to the plaintiff for various items of maintenance for which he was entitled to be reimbursed by the taxi owner, so that, when these are allowed for, the average daily figure or net profit to the plaintiff is probably not very different from an average of $100 a day.

14. These accounts are not clear and no evidence was given to explain them. The judge does not refer to them in his judgment.

15. In my view, he was entitled to accept the widow's estimate, which is in any event largely supported by abase incomplete accounts. I see no grounds for interfering with his finding that there was an average net earning from taxi operations by the plaintiff of $100 per shift.

16. The judge reduced the loss of the taxi earnings from $3,000 to $1,200 after the first l2 months, on the ground that the plaintiff would probably have reduced the amount of his taxi driving after the first year, since it would have been a strain to keep two jobs going indefinitely. Perhaps he may have been influenced to some degree also by the fact that the plaintiff was in breach of his terms of employment by driving a taxi without permission and beat this might have been refused had he been discovered.

17. There is no reference to this in his judgment and I do not think that any adjustment is appropriate for this reason, since there is no evidence as to the likelihood of permission being granted or, if so, for how much driving.

18. I think that the judge was entitled to take a common-sense guess at the amount of taxi. driving which the plaintiff would be likely to undertake in future. I can see nothing wrong with his estimate of 12 shifts a month after the first year, I would thus uphold his assessment under this item - i.e. $36,000 + $21,600 = $57,600.

Item 6 (Future loss of dependency)

19. The judge accepts the widow's evidence that the plaintiff handed to her the whole of his income, receiving in return from her pocket money of $700 per month. He also found that the plaintiff's own maintenance absorbed $500 per month out of the money which he had handed to his wife. These deductions are not disputed in relation to the FAO claims. By reason of the minor adjustment to the housing subsidy, this item should be taken as $3,010 + $1,200 + $407 (total $4,617) - $1,200 (plaintiff's own maintenance) - or $3,417 x 150 = $512,550. (There was no dispute as to the multiplier of 15 taken by the judge).

Item 8 (Loss of earnings for the lost years)

20. This is the item which, apart from the question of merger, gave rise to much of the argument in this appeal.

21. In assessing the amount of the award for the lost years, which Lord Fraser of Tullybelton described in Gammell v. Wilson⁽¹⁾ as the "free balance", the trial judge followed the method suggested by the trial judge in Yeung Wing v. VSL Engineers (Hone Kong) Limited⁽²⁾. This consists of taking 10% of the plaintiff's estimated life income, " in the absence of evidence to suggest another figure, as being his notional life savings and equating this figure with his "free balance".

22. The life savings were calculated by the trial judge as follows -

23. It has been strenuously argued before: us, however, that in law this approach is wrong. To decide whether this method of calculation of the free balance by the trial judge can be supported, it is necessary to examine the Hong Kong and English cases.

Calculation of the "free balance"

24. The concept of damages for the loss of future earnings was approved by the House of Lards in Pickett v. British Rail Engineering Ltd.⁽³⁾. This involved overruling Oliver v. Ashman⁽⁴⁾, in which the English Court of Appeal had decided that a living plaintiff could not recover for the toss of what he might have earned during the period which he could have been expected to live, had his expectation of life not been shortened by the accident - i.e. he could not claim for earnings during the "lost years".

25. Having thus, in effect, created a new head of damages, their Lordships had to consider the manner in which these damages for the lost years should be calculated.

26. At page 154 of Pickett⁽³⁾, Lord Salmon suggests that -

"there should be deducted the plaintiff'sown living expenses which h2 would haveexpended during the lost years, because these; clearly, can never constitute part of his estate."

27. Lord Edmund-Davies, at p.163, proposes -

"..... a suitable deduction for the total -sum which (the plaintiff) would have been likely to expend upon himself during the 'lost years'."

28. Lord Scarman, at p.171, concludes that the plaintiff should not recover more than that which would have remained at his disposal after meeting his own living expenses.

29. Lord Wilberforce, at p.151 says that the amount to be recovered should be what remains "after deduction of an estimated sum to represent the victim's probable living expenses during those years". He adds that the plaintiff would have made provision for dependants and others "out of his surplus".

30. It was not until Gammell v. Wilson⁽5) that the concept of damages for the lost years was held by the English Court of Appeal to apply so as to enable the estate of a deceased plaintiff to benefit, under the Law Reform Act 1934". Megaw, L.J. at p.595, states the basis of assessment in these terms -

"..... the judge held that the prospects were that, if this i5-year old boy had not been killed, he would have been a wage earner, in a very modest way, in future years and that, after making allowance for his own living expenses, he would have had an average of £8 a week remaining .......... Applying a 16 year multiplier, the judge arrived at the figure of £6,656 under this head."

31. Gammell v. Wilson ⁽¹⁾ was considered by the House of Lords. At p. 253, Lord Diplock states his view of the method of assessment of damages for lost years in these terms -

"Here was an obvious injustice which this House remedied by overruling Oliver v. Ashman [1962] 2 Q.B. 210 and holding that a living plaintiff could recover damages for loss of earnings during the lost years; but that in assessing the measure of such damages here should be deducted from the total earnings the amount that he would have spent out of those earnings upon his own living expenses and pleasures, since these would represent an expense that would be saved in consequence of his death. In the case of a married man of middle age and of a settled pattern of life, which was the case of Mr. Pickett, the effect of this deduction is to leave a net figure which represents the amount which he would have spent on providing for his wife and any other dependants, together with any savings that he might set aside cut of his income. If one ignores the savings element, which in most cases could be likely to be small, this net figure is substantially the same as the damages that would have been recoverable by the widow under the Fatal Accidents Acts; it represents the dependency. So, in the particular case of Mr. Pickett's widow the result was to do substantial justice."

32. Lord Scarman states the principle as he sees it at p.265 -

"The loss to the estate is what the deceased would have been likely to have available to save, spend, or distribute after meeting the cost of his living at a standard which his job and career prospects at time of death would suggest he was reasonably likely to achieve."

33. Some of the language in Pickett⁽3) and Gammell ⁽¹⁾ might suggest that the "free balance" was the residue after the entire expenditure of the deceased, including his contributions to his dependants, had been deducted - i.e. his savings only. Most of the passages quoted, however, contemplate that the free balance should be a figure which is reached after deducting from his net earnings his personal expenditure only - i.e. it will he the sum of what he would have contributed to his dependants, plus what he would have saved.

34. In the recent English High Court case of White v. London Transport Executive⁽⁶⁾, Webster, J. held, following Gammell v. Wilson⁽¹⁾ as he understood it, that an award for lost earnings should be a moderate but not a conventional figure and that the free balance was to be measured by taking the difference between the estimated net earnings of the deceased and the estimated cost of his maintenance. In reaching the latter figure, the cost of maintaining a family was to be disregarded so that the free balance must be large enough to cover the cost of maintaining a family.

35. It is worth noting that in White⁽⁶⁾ the deceased plaintiff was unmarried at his death, so that the notional cost of supporting a non-existent family increased the award under this head. This seems to me to be an unnecessary leap in the dark. I would have thought that the effect on the estate of the deceased should be based upon the facts as they were when he died and that a single men should be treated as if he would have continued to be so.

36. At p.415 of White,⁽⁶⁾ Webster, J. considers which of the alternative approaches to the free balance should be applied. Should it be "the surplus available for spending after living expenses had been deducted, or the surplus available after all expenditure is taken into account?" He decides that Pickett's Case⁽³⁾ compels him to accept the former method and that what the deceased would have spent on his dependants (if he had had any) is not to be taken as part of his "living expenses".

37. The trial' judge in Yeung Wing⁽²⁾ had adopted the alternative ("the net savings method") which was rejected by Webster, J. in White⁽⁶⁾ - i.e. that the free balance is that which remains after all the deceased's expenditure is taken into account.

38. The net savings method has attractions. It involves a relatively simple calculation. It treats the amount which the deceased handed to his wife for her maintenance in the same way as that which he handed to her for his maintenance. It ensures that there would accrue to the deceased's estate only what, had he lived, would have been found in it at his death, because he would have saved it. And it avoids the inflation of LARCO awards by the amount of the dependency, which will appear in the FAO award as well.

39. If the net savings method is adopted, it is logical for this residue, which is clearly additional to and separate from the sum to be expended on dependants, not to be merged with the FAO award to dependants. No doubt these considerations weighed with the trial judges in Yeung Wing⁽2) and this case, both in their calculations of the free balance and in their approach to the question of merger.

40. However, it seems to me that there can be no doubt, in the face of Gammell⁽¹⁾ (which had not reached the House of Lords at the time of the trial in Yeung Wing)⁽²⁾ that the correct approach for a trial judge, in assessing the free balance must be as follows -

41. The effect of such a formula will be that an award under LARCO will exceed the amount to be awarded under FAO, save only where the deceased's "personal expenses" would have absorbed the whole of his net earnings. Thus in most cases, where there is a LARCO award for lost years, the FAO award will merge with it and disappear.

42. In White⁽⁶⁾, the judge reached the view that the average available surplus in a case such as that of the deceased would be one-third of his net earnings for the first five years after death, when it was assumed he would continue to live with his mother, and one quarter of the net earnings thereafter, when it was assumed he would be married.

43. The case illustrates well the traps which lie in wait for trial judges seeking to calculate the free balance. Webster, J. has found that the deceased's personal expenses increased from 2/3, when he had only a mother to support, to 3/4 when he had to support a family. Surely, it would be more natural for a young man to reduce what he spends on himself when he acquires a wife and family - not to increase it.

44. Nor can I see how a reasonable young man would spend only 25% of his net income on his family, leaving 75% for his own personal expenses.

45. If I am correct, the calculations in White⁽⁶⁾ are quite unrealistic and seem to flow from the confusion likely to arise in calculating a free balance which deducts some types of personal expenditure and ignores others.

46. The House of Lords has stated that there should be no conventional award, which I take to mean a fixed sum which is applied without reference to the circumstances of the plaintiff, as happens in the case of damages for loss of expectation of life. This does not, however, seem to prevent the courts from adopting a starting point, which is what the trial judges in Yeung Wing⁽²⁾, in this case and in White⁽⁶⁾ all sought to do.

47. Although the starting point suggested in Yeung Wing⁽²⁾ was, in view of Pickett⁽³⁾ and Gammell ⁽¹⁾, wrong in law, I think it would be helpful to substitute another, if a sensible figure can be devised.

48. Lord Diplock in Gammell⁽¹⁾ has said that the net surplus for lost years will (discounting savings which the deceased might have set aside out of his income) be substantially the same as the damages which the dependants would have been awarded under FAO.

49. Guided by this statement, I suggest that it is open to a trial judge, having assessed the FAO dependency -

50. As a starting point, it would be reasonable, in my view, to adopt the formula proposed by the trial judge in Yeung Wing⁽²⁾ of taking 10% of the deceased's net earnings as the amount of his notional savings, a method which received the approval of this court in Yeung Wing ⁽⁷⁾ on appeal.

51. The natural thrift of the inhabitants of Hong Kong suggests that this is not an unreasonable assumption. Certainly, it is borne out by the facts of this case, which establish a saving of $400 a month out of a notional income after death of $4,617.

52. The free balance should therefore be the sum of the following.

Net Earnings

53. The above calculations are based on "net earnings". This means no more than earnings after the payment of tax.

54. This need cause no difficulties, in relation to a 'lost years' award, since the necessary calculation will already have had to be done when arriving at the amount of the dependency under FAO.

55. In this case, there was no evidence as to what tax, if any, was paid by the deceased. If there was any, it would, at Hong Kong tax rates, have been too small to be significant and we shall assume for the purposes of this judgment that he was not liable to pay any.

Summary of awards by trial Judge and on appeal.

56. The judge ordered the payment of the full sum of $715,547, with no merger of the LARCO and FA0 awards i.e. he did not reduce the FAO awards by the amount of the lost years or loss of expectation of life awards.

57. Was the judge correct in ordering no reduction of the FAO award to take account of the LARCO award, it being agreed that the beneficiaries under LARCO and the dependants under FAO are the same persons, namely the widow and the children?

Merger of awards under LARCO and FAO

58. In Davies v. Powell Duffryn Associated Collieries Ltd.⁽⁸⁾, Lord McMillan stated the general principle in the following terms at P.609 -

"..... the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased. It is the net loss on balance which constitutes the measure of damages."

59. There are statutory exceptions to this principle, for example pensions and life insurance benefits. Otherwise, the effect of this ruling is that an FAO award to any individual dependant must be reduced to the extent of any LARCO award from which that dependant also benefits.

60. There are, of course, instances in which the dependants who are entitled to claim under FAO, are not the same as the beneficiaries under the estate of the deceased - for example, if the deceased leaves, the bulk of his estate to friends or cousins (leaving out of account the effect, if any, of the Deceased's Family Maintenance Ordinance).

61. In the past, when there was no accretion to the LARCO award for lost years, the LARCO award was usually less than the FAO award. The creation of the award for lost years has reversed this norm, so that it will be unusual for a LARCO award not to exceed an FAO award.

62. Thus, according to Davies ⁽⁸⁾ if the LARCO benefits exceed those under FAO, the latter will disappear, leaving a nil FAO award. The converse would be wrong - i.e. a LARCO award should not be abated by reason of any FAO award.

63. There is no question of any "merger" of funeral expenses, since these are a reimbursement of money spent and cannot he said to confer any benefit on the beneficiaries. The items in issue are the awards for lost years ($680,107) and for loss of expectation of life ($15,000), a total of $695,107. Should this be deducted from the FAO total, giving the plaintiffs $695,107 (plus $7,000 for funeral expenses) or should they receive both the FAO award of $608,107 and the LARGO award of $695,107 - a total of $1,303,214 (+$7,000)?

64. In making his award, the judge makes no reference to the possibility of merger and cites no authorities. He merely sets out the amounts which he awards under FAO and LARCO and adds them together to produce the total of $715,547. He deducts neither the lost years award nor that for loss of expectation of life from the FAO total. He gives no reasons for adopting this course and I can only assume that he must have been following the decision of this court in Yeung Wing⁽⁷⁾.

65. The trial judge in Yeung Wing⁽²⁾, having made an award under LARCO, which included both a sum for loss of expectation of life and another in respect of "lost years", ordered that the former should merge with the FAO award but that the latter should not.

66. There is nothing to indicate that the attention of the trial judge in Yeung Wing⁽²⁾ was drawn to Davies ⁽⁸⁾. Nor did he have the benefit of the House of Lords decision in Gammell⁽¹⁾.Pickett⁽³⁾ does not seem to have been cited and he gave no reasons.

67. His decision to merge the damages for loss of expectation of life was in accordance with previous practice and authorities.

68. I have already stated my view that the course which he adopted is not without practical attraction and some logical support. But it seems to me that, in view of Pickett⁽³⁾ and Gammell^(I), he must be held to have misapplied the law.

69. When Yeung Wing⁽⁷⁾ reached this court, the trial judge's ruling was varied. Whereas he had ordered the merger with the FAO award of the damages for loss of expectation of life, but not of those awarded for lost years, this court decided that neither should be merged.

70. This latter decision has the virtue of consistency, which that of the trial judge did not, in that both LARCO awards were ordered to be treated in the same way. But, with respect to the members of that court; it is not easy to reconcile their decision with Davies⁽8), save on the basis that Davies⁽⁸⁾ should not be held to apply to awards for lost years, the latter only developed in 1981, whereas Davies⁽⁸⁾ dated from 1942.

71. I am persuaded that I must respectfully disagree with the trial judge in Yeung Wing⁽²⁾ (which I do not find difficult in view of his identity) in so far as he fails to merge the lost years award, though he was correct in merging that for loss of expectation of life.

72. In this court, in Yeung Wing⁽⁷⁾, argument proceeded upon the basis, which was agreed by both counsel, that the 10% "Net savings" approach of the trial judge was not disputed, although, as I have said, I am satisfied that on the authority of Pickett⁽³⁾ and Gammell⁽¹⁾ he was wrong.

73. By his L mean that he was in error in basing his calculation of the "free balance" on net savings alone. He should have added to it the value of the dependency. Gammell⁽¹⁾ does not prevent the 10% method being used to calculate savings.

74. This court was not asked to consider whether or not he was correct in the method by which he reached his assessment of the free balance. Had counsel decided that this should be tested, I have no doubt that this court would have come to the same conclusion as I have, namely that the LARCO award for lost years should comprise both savings and the amount of the FAO dependency, on the authority of Pickett⁽³⁾ and Gammell⁽¹⁾ .

75. Faced with figures of the kind which apply in this case, i.e. with a LARCO award which greatly exceeds the FAO award, I cannot but think that this court would have reached the conclusion in the Yeung Wing⁽⁷⁾ appeal that there must be merger. But because the Yeung Wing⁽⁷⁾ appeal was conducted on the basis that the lost years award would be a very small figure, compared with the FAO award, it is understandable that it should have reached the conclusion that there should be no merger.

76. This court in Yeung Wing⁽7) was not called upon to decide if the correct method of assessment of the lost balance was that of the trial judge, since this was assumed. It is therefore open to us to rule that he was among and that the right means of calculation is that advocatedin Pickett⁽³⁾ and Gammell⁽¹⁾

77. It follows therefore, that the factual basis upon which this court decided that there should be no merger of awards will not occur again.

Apportionment

78. Our attention was drawn, at the end of the hearing, to Benson v. Biggs Wall & Co.⁽⁹⁾ in which Pain, J. appears to have imposed upon the trial judge in actions of this kind yet another calculation.

79. After awarding sums under FAO and LARCO to a widow and her son, he apportions the amount which each would separately have received under FAO, after an apportionment of FAO damages, and under LARCO, by reason of their succession to the estate of the deceased, who died intestate.

80. What the judge has said, in effect is that a dependant will not lose the whole of his share of dependency under FAO because he is also a beneficiary under LARCO. It must be shown how far he benefits under the estate and his FAO award is reduced pro tanto only.

81. Thus, for example, if a son is awarded $10,000 under FAO but receives nothing under the deceased's will, because everything is left to the widow, the son's award under FAO will not be reduced.

82. This achieves, perhaps, fairness to the individual dependants. But it can work injustice to defendants, who may find themselves obliged to "pay twice" because of the operation of the deceased's will. The amount of damages which they must meet will thus depend upon circumstances which are wholly unconnected with the accident.

83. I do not wish to decide the point, in the absence of full argument on both sides. I confine myself to saying that it seems to me, though this is obiter, that principle requires that an FAO award to an individual dependant should be reduced only to the extent which that dependant himself benefits from the LARCO award, even if this involves another set of calculations, no doubt often based on hope and speculation, rather than on real evidence. I shall attempt no apportionment in this case.

Conclusion

84. The assessment of damages constitutes a collector's example of the way in which judicial tears have converted a firm path into a swamp, infested with intellectual alligators,

85. I cannot do better than quote Moult, J., who commented in the Tsuen Wan Brewery case (unreported), in which he was required to interpret an obscurely worded section of the Deceased Concubines Land Entitlement Ordinance -

"The draftsman cannot have been in control of himself. Nobody could have got the law into this state on purpose."

86. I can only hope that the Legislature will intervene.

87. I therefore vary the judge's awards of $623,820 under FAO and $91,727 under LARCO totalling $715,547, by substituting awards of $608,107 under FA0 and $702,107 under LARCO.

88. The award under FAO will be merged into the LARCO award and disappear, leaving $702,107 payable to the plaintiffs.

89. In arriving at this conclusion, I therefore find that both appeal and cross-appeal succeed in part.

(1)    [1981] 2 W.L.R. 248.
(2)    [1981] H.K.L.R.130
(3)    [1980] A.C. 137
(4)    [1962] 2 Q.B. 210.
(5)    [1980] 3 W.L.R. 591.
(6)    [1982] 1 All E.R. 410.
(7)    [1981] H.K.L.R. 407
(8)    [1942] A.C. 601
(9)    [1980] Current Law

Yang, J.A.:

90. I have had the advantage of reading the Chief Justice's judgment, in draft. I agree with his conclusions on the main issues and the reasons given in support. I prefer to express no views on the question of apportionment, which. does not arise in the present case.

Barker, J.A.:

91. I agree with the reasoning and the conclusion of Roberts, C.J.

92. I would add two comments First, in Gammell v. Wilson⁽¹⁾ Lord Scarman said, at page 267 -

"The logical, but socially unattractive, way of reforming the law would be to repeal the Fatal Accidents Act, now that the rule actio personalis moritur cum persona has itself belatedly perished."

I respectfully disagree. I am of the view that the logical and socially attractive way of reforming the law would be to abolish the claims under LARCO for lass of expectation of life and for any loss of earnings in respect of the lost years. I understand that a Bill is at present before Parliament in England in which it is sought to bring about this change. In my view the sooner the Legislature in Hong Kong introduces similar amending provisions the better.

93. Secondly, there was much argument before us on the stare decisis rule. It was said, correctly, that subject to the exceptions set out in Young v. Bristol Aeroplane Company, Limited ⁽¹⁰⁾, the Court of Appeal in Hong Kong is bound to follow its own decisions. The only remedy, it was argued, was for the defeated appellant to appeal to the Privy Council.

94. This rule may work little injustice in England, where in cases of emergency, an appeal from the Court of Appeal to the House of Lords can be heard in a matter of weeks. But that is not the case where there is an appeal from the Hong Kong Court of Appeal to the Privy Council. The hearing of such an appeal may not take place for something like two years from the decision of the Court of Appeal. In the meantime, Judges of the High Court would have been obliged to follow the earlier decision of the Court of Appeal which the later Court of Appeal was satisfied was wrong. In these circumstances the Hong Kong Legislature may well think that there should be a procedure whereby a court of five in the Court of Appeal shall be empowered to overrule a previous decision of an ordinary Court of Appeal.

(1)    [1981] 2 M.L.R. 248.
(10)  [1944] 1 K.B. 718.

Representation:

N. Pirie, instructed by Messrs. Hastings & Co.; for Appellants.

William Waung, Shane Cunningham, instructed by Messrs. Ho & Wong, for Respondents.