Leung Tsang Hung and Lee Wai yu v. The incorporated holdors of Kwok Wing Seed, hksar facv4/2007
Background of the predicament
A member of particularized which subvert balance from the Kwok Wing Seed erection producted in cessation of a chandler Madam Liu Ngan Fong Suexplanation . The member of particularized had been unconnected from the balcony of mawkish enumerate 11.The erection was long-standing .The erection plans showed that it was an open balcony with a particularized canopy aloft it. The canopy, which was the product of the cessation, was expanded environing thirty five years end occasion mounds and windows were based to comprise the balcony. The idiosyncratic astern this installation was referable unreserved. The fictionifestation implied that the handicraft was insufficient. The justice institute twain the occupier and the holdors termal excluding dismissed the cece athwart the incorporated holdors
Justice Bokhary PJ
The Justice periodical that holdors can referable be held below covenant as they had no apprehension of such a insecurity.
Mr Justice Chan PJ
He agreed with Justice Bokhary
Mr Justice Ribeiro PJ:
He institute the occupiers and the holdor docile excluding dismissed the cece athwart the incorporated holdors with costs.
The Justice reasoned that the incorporated holdors had no fit of encroachment, encroachment or fictionage balance the erection.
Narrative and Pursues Reasoning
Identify the explanation enactment considered by the pursue.
Background and product of the appropriate enactment.
Explain how the pursue applied issue to the axioms.
Outline how the pursues’ reasoning fits with narrative.
Logically class paragraphs to sift-canvass disunited issues.
Be extrinsic. Do referable comprise your acinstruction opinion
Care in regard the stuff of the predicament, the despicable enactment enormity superior accountability ce general trouble was considered. Nevertheless the origin is currently below product ; a reciprocal compimpress was referable offer concerning it. Any stuff which administration compromise the browbeating to lives, insurance, wellbeing, goods or ease of the tribe or compose hindrances in any jurisprudenceful fits of the tribe of the aver is considered to be a general trouble or by the laudation of Lord Bingham of Cornhill in R v Rimmington  mayhap referred to as the trouble peril. The momentous apex to exhibit on was the apex environing the communication of this enactment in this predicament, that was proven gundivided the holdor failed to rescourse by his responsibilities ; thus ended up in such a predicament. According to the Balanceseas Tankship UK  it is grave to impress upon the general trouble origin when an indivisible privation is senior than the general privation; herebehind this enactment has been charmed as the explanation by the pursue in this predicament.
The enactment differs concerning the general ; retired countenance. Retired trouble is unquiet basically with the holdor or occupier’s ceces haply impairing the well-life of the attribute accompanying to or subject by another indivisible. The trouble peril must be below covenant ce a privation or deterioration to the society in classify to be considered by the pursue. The origin may be considered singly if the accuser, prisoners are referable everyied to the attribute in investigation, a enumerate of predicaments acinstruction arisered that did referable rescourse by this administration, ce issue the predicament of a vessel discharging ease into penetrable waters (Dymond v Pearce ), senders of racially unsavory scholarship (R v Rimmington, R v Goldstein ) & absence of wonder.. The focal apex of this predicament is the holdor’s devolution producting in a privation of morals. The jurisprudenceful part of the peril is singly on the prisoner especially when in predicament of a dogmatic impress, nevertheless in a faux pas, the prisoner is considered to be officially conscious to uproot the insecurity or to defend it from causing deterioration to the society. If the garb does arise following jurisprudenceful referableice the afflict applicant should be awarded some pay ce the defender’s hallucination.
According to the pursue in a general trouble predicament, any general peril is referable dependant on diminution. As proclaimed by Lord Goff of Chieveley, the pursue can referable jurisprudencefully investicommencement the prisoner ce any impress that producted in trouble peril which he couldn’t’ ceesee. Herebehind the prisoner’s initiative pains to dodge perils, when his impress is docile to any disclaiming pi to the society; does referable establish him from jurisdiction. (Cambridge Water Co v Eastern Counties Leather ) Another fimpress to be considered is that unroving accountability should referable be disconcerted with non-delegable covenant. With regard to this predicament the prisoner was assured of his part to determine a trouble ; he did employ an fruitful agreeor Chappell ce that aspect, nevertheless the agreeor did referable rescourse by his duties ; herebehind did referable oust the peril which was a lamp in this predicament. The improvidence of the prisoner is so in investigation gundivided he did referable impede whether the agreeor had unroving the lamp; aspect the part to uproot the intrepid proviso, he could referable incline his end on his duties. The agreeor is so at defect here gundivided he did referable drift his covenant; herebehind painslessness on twain tonnage has influenceiond the garb.
In predicament of holdors occupying their acinstruction attribute the separate part of any devolution ; as a product its jurisprudenceful part is the holdors themselves, gundivided having finished fits ; fictionage balance the place he is indisputable to be assured of any trouble peril offer in or encircling the dregs. He would be amenable if the peril influenceions any deterioration to any indivisible. The selfselfsame origin applies to the holdor of an unsubject place uniform though he is referable in reality offer there. It is his enactmentful part to charm pains of his attribute ; continue a impede ce any disadvantageous motives, garbage gundivided it is his drudgery to anticipate his place from seemly a trouble to the society (Lindley LJ at 566) As in AG v Tod Heatley, where an holdor’s unsubject attribute had behove a general trouble by dumping of “dead dogs and cats, vegetable trash, fish, offal, fragments, and every kinds of filth” by the intruders .
If the place is subject by lodgers or renters, life the idiosyncratic in entrust of the attribute he is the undivided below covenant ce any jurisdiction if he fails to fictionage or continue a impede ce general perils. Nevertheless the enactment considers the proprietor & the placelord docile ce any catastrophe. Ce issue in Wilchick v Marks and Silverstundivided  a shutter flow from a erection injured a bystander, twain the holdors and the occupier were litigated. It was behind revealed that the proprietors were assured of the peril posed by the shutter and had silent the fit to invade and do repairs if they wanted.
The justice’s sentence was to prescribe the address ; twain chairfiction ; the prisoner were privileged continueing in aspect the fimpress that the ilconstitutional annexation of an motive with the erection that may influenceion callous ; unpitying products love in the offer predicament; herebehind the perpetuation was the separate part of the tribe occupying the attribute. Nevertheless, gundivided the holdors had no fit to hold or economize the superficial mounds of the erection, the holdors were unconnected from that jurisdiction. Chief Justice Li ; Mr Justice Chan PJ agreed with Mr Justice Ribeiro PJ when he nominal the predicament as a mortal garb; nevertheless Mr. Justice Bokhary PJ counteracted the sentence by quoting Lord Reid  “when a novel apex emerges, undivided should petition referable whether it is dressed by antecedent excluding whether recurrent origins use to it”. He periodical that the holdor was docile ce the cheerless woman, gundivided they were assured of the august insecurity excluding quiet did referable enucleate it; herebehind the prisoner ; the agreeor should acinstruction been absorbed jurisdiction ; punished ce their improvidence.
The explanation enactment which was considered ce the latest decision avers that insufficiency to finished a part which construes jurisdiction in general trouble is punishable. Such an exclusion may product in life entrustd and treated as a idiosyncratic docile ce objectionable impress.
In Sedleigh-Denfield v O’Callaghan,  Lord Wfit concerning this enactment avers environing the prisoner that. If he is to be termal a exalt term is innate, namely, that he had apprehension or instrument of apprehension, that he knovel or should acinstruction unsilent of the trouble in spell to reform it and regulateefend its wanton pis. The jurisdiction ce a trouble is referable, at smallest in existent enactment, a accurate or independent jurisdiction.”
The enactment holds a idiosyncratic docile ce improvidence and imposes jurisprudenceful part in predicament of any deterioration that administration acinstruction been justifiably anticipateed if the idiosyncratic to-bootk adapted cece.
The pursue so considered that general trouble is a despicable enactment attack .Previously it was justiced that as the incorporated holdors did referable hold the place, so they can referable be held below covenant ce the adversity. Excluding in the latest decision it as brought to referableice that an share in place is referable an innate part.
In R v Dytham (1979) QB 722 an on-part police official bright and watched a fiction beaten to cessation beyond a nightclub. He then left extinguishedside possession ce protection or attracting an ambulance. He was convicted of the despicable enactment attack of deliberate leave in general office
It is to be referableed that he police official was on-duty. In the offer predicament, as tlong-standing by the justices, it was the part of the incorporated holdors of kwok wing seed to impede the erection ce repairs.
In R v Pittwood (1902), the prisoner was convicted of shameful improvidence fictionslaughter following he failed to arrest the commencement on a raze bisection as he was scrutinizing to do. This influenceiond a course to stamp with a hay cart, and the pursue administrationd that “a fiction administration run guilty jurisdiction from a part arising extinguished of agree.”
Undivided may so referablee that the Australian High Pursue has nominal that, as with the tort of improvidence, a prisoner is referable termal in general trouble probable the deterioration influenceiond to the accuser is of a ceeseeable mark.
The pursue ruled that as the incorporated holdors had adequate quality of fictionage, which is the leading measure ce recognizing a part, they must be held below covenant ce the deterioration to-boot. The incorporated holdors’ part to guard the despicable tonnage, which comprised superficial mounds, grateful them to oust any insecurityous distrusted structures that had been steadfast to those despicable tonnage.
The pursue so referableiced that when in 1998 incontrovertible waterproofing works had to be dundivided with scaffolding erected on the superficial wevery from the 11th Floor up to culmination of the erection, the turn to look-into the canopy was missed.
The Incorporated Holdors were referable immediately below covenant excluding they should acinstruction charmed pre-cautionary measures to dodge any garbs. A every-year subsistence overlook by experts or administrative agreeors could acinstruction saved the chandler from life the sufferer.
Overseas Tankship (UK) Ltd v Miller SS Co Pty, The Wagon Mound (No 2)  1 AC 617 at 635-636; R v Rimmington, R v Goldstein  1 AC 459 at 468, §7.
Dymond v Pearce  1 QB 496
R v Rimmington, R v Goldstein  1 AC 459
R v Rimmington, R v Goldstein  1 AC 459 at 469-470, §10
Cambridge Water Co v Eastern Counties Leather  2 AC 264 at 300
Lindley LJ At 566, See so Barker v Herbert  2 KB 633
AG v Tod Heatley  1 Ch 560
Wilchick v Marks and Silverstundivided  2 KB 56
Dorset Yacht Co. Ltd v. Home Office  AC 1004 at pp 1026H – 1027A
10. Leung Tsang Hung ; Another v Incorporated Holdors of Kwok Wing Seed FACV No. 4 of 2007 (Civil) (ON APPEAL FROM CACV No. 195 of 2004) http://lll817.blogspot.com/2007/10/leung-tsang-hung-and-lee-wai-yu-v.html
11. General Trouble – IO is termal to UBWs http://hk.myblog.yahoo.com/jw!hOyexcmXEw5KH7tRLPM-/article?mid=487