IN THE DISTRICT COURT OF HONG KONG
HOLDEN AT KOWLOON
Action No. 3016 of 1968
|Lo Chi Ming alias Lo Bill
|Shum Kin Yuen
|Leung Kit Hing
Coram: Judge Yang.
Date of Judgment: 4 February 1969
1. In this action the plaintiff claims damages against the defendants for breach of contract.
2. The issues as pleaded may be thus briefly stated. The plaintiff in his Statement of Claim avers, inter alia, that in 1967 by a written agreement made between him and the first defendant, he purchased from the latter a public car registration No. AC 7447 which was then the subject matter of a hire-purchase agreement made in 1965. One of the terms of the 1967 agreement was that on the plaintiff's payments of the purchase price of $3,900- to the first defendant and also of the three outstanding instalments under the hire-purchase agreement totalling $1,077- the first defendant would "sign the necessary transfer form and complete all formalities for the transfer of the ownership of the said vehicle to the plaintiff, and assign all interest in the said vehicle to the plaintiff". After the purchase price had been paid, the vehicle in question was duly delivered to the plaintiff, and the plaintiff spent $1,800- for repairs thereto. The plaintiff having made all the payments mentioned above, the first defendant not only failed to execute the transfer of ownership, but on the 19th of December, 1967, "forcefully and without the permission of the plaintiff, took physical possession of the vehicle". The plaintiff holds the first and second defendants jointly liable for breach of contract and says in the alternative that the first defendant was the agent of the second defendant. The plaintiff's claim is for the repayment of the three sums of money referred to.
3. The substance of the somewhat lengthy Statement of Defence by the first defendant is that he has performed all that was required of him under the 1967 agreement by assigning his interests in the vehicle to the plaintiff, and he denies having taken possession of the vehicle from the plaintiff as alledged. The second defendant makes no admission to any of the matters pleaded in the Statement of Claim and denies that the first defendant was his agent.
4. For reasons which will become apparent below, it will not be necessary for me to state my finding of facts in extense. The second defendant was at all material times the sole proprietor of Wing Lok Tours & Travels Company, and as such was the holder of a number of public car licence but not being himself qualified for it, entered into an agreement with the second defendant with a view to hiring one such licence from him. In pursuance of the agreement (hereafter called "the 1965 agreement"), the first defendant purchased a vehicle and made part payments thereon totalling $3,660-The balance of the purchase price was paid by the first defendant by instalments in the name of Wing Lok Tours & Travels Company under a hire-purchase agreement entered into between the Company and Wayfoong Finance, Ltd. For a consideration of $2,100- the first defendant was then permitted to and in fact did hire the second defendant's public car licence No. AC 7447 for his vehicle for a period of five years from 3rd November, 1965 to 2nd November, 1970. At the expiration of this period, the public car licence would go back to the second defendant and the vehicle would be registered in the first defendant's name as a private car. As an attempt to comply with the Traffic regulations, the first defendant was also required to pay the second defendant a monthly rental for a garage space for this vehicle, though the space, if it was ever available, was never in fact used for that purpose. Furthermore, to give it the semblance of legality, the parties agreed that the second defendant should be the ostensible owner of the vehicle. The motor vehicle registration book therefore shows the second defendant as the registered owner of this vehicle, and the third party risks insurance policy shows Wing Lok Tours & Travels Company as the insured. In these circumstances the first defendant drove public car AC 7447 for hire from November 1965 until September 1967, retaining complete control over the vehicle and making all necessary payments including that of licence and insurance fees. Thus, while the second defendant remained the nominal owner, the first defendant was in reality the beneficial owner of the vehicle, the second defendant having parted with the possession and control of it under the 1965 agreement. It is therefore clear that the intention of both parties was that the vehicle should belong to the first defendant and be used by him on his own account.
5. In September 1967, the plaintiff, desirous of purchasing a vehicle with a public car licence, through the introduction of a mutual acquaintence entered into negotiations with the first defendant with that...