IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 6684 OF 2004
Coram: H.H. Judge Chow
Hearing dates : 16th December, 2005, 22nd and 30th March, and 21st April 2006
Date of Handing Down Judgment: 12th June 2006
1. The Plaintiff is a company engaging in the trade of computer products, whereas the Defendant is a company carrying on the businessof provision of security services. The Plaintiff’s claim against the Defendant is for damages in the sum of $93,888.40, beingthe value of 7 notebook computers (“the Plaintiff’s properties”) stolen from the Plaintiff, on the ground that the Defendantbreached its agreement to exercise all reasonable care and skill as a professional service company to safeguard the Plaintiff’sproperties. No particulars of negligence were pleaded in the Statement of Claim.
2. On or about 4th March 2004, the Plaintiff and the Defendant reached an agreement that the Defendant would provide security services to the Plaintiffon the following terms:-
3. Pursuant to the Agreement, the Defendant arranged for one licensed and experienced security guard (Tse Shan Choi (“Tse”)) tosafeguard the Plaintiff’s properties at the Venue during the Service Period. In discharging his duties Tse patrolled the Venueafter the exhibition guests and the Plaintiff’s staff had cleared, kept a lookout for unusual circumstances and took note of passers-byduring the Service Period. During the Service Period Tse took toilet breaks of about 5 to 10 minutes for each break. During thosebreaks nobody substituted him.
4. On 21st March 2004, the Plaintiff discovered that the Plaintiff’s properties had gone missing when the Plaintiff’s staff arrived at thebooths and prepared to set up. The discovery was made shortly after 11:00 a.m.
When were the Plaintiff’s properties stolen?
5. The Plaintiff’s witness, Lo Ching Yee (“Lo”), said that she stayed on at the Venue until 7:30 p.m. on 20th March 2004, and that before Tse reported for duty, the Plaintiff’s properties were definitely in the booths. At the time theyclosed the exhibition she stayed at a higher position, and looked down to the exhibition site. She clearly saw that the Plaintiff’sproperties were still there. Her colleagues could not have stolen the properties because they all left together, having checkedeach their bag and belongings, in accordance with an established company procedure. I accept Lo’s evidence in this respect. Ifind that when Tse commenced his duty, the Plaintiff’s properties were still in the Venue.
6. Lo confirmed that between 11:00 a.m. and 12 noon on 21st March 2004 that a lot of security personnel (Sun Hung Kai staff) were near the exhibition area. It is not possible that in the presenceof these security personnel and the staff of the Plaintiff a thief (or thieves) could steal the Plaintiff’s properties withoutbeing discovered. I am satisfied that the Plaintiff’s properties were stolen during the Service Period between 19:00 hr. on 20th March 2004 to 11:00 hr. on 21st March 2004. The precise time at which they were stolen is unknown.
Whether the Defendant was negligent in performing its duties?
7. The Defendant’s duty was to exercise reasonable skill and care in safeguarding the Plaintiff’s properties. The question is:did Tse exercise reasonable skill and care to safeguard the Venue? The onus is on the Plaintiff to show that Tse’s performancemust have fallen below that of a reasonable security guard, and this in turn must have been the causation of the theft.
8. The Plaintiff’s Counsel attacked the credibility of Tse in relation to the assertion that he was physically located at Position2 (see Exhibit No. D1) in the exhibition area during the 2nd night. I accept that Tse made conflicting evidence in this respect.
9. The Plaintiff submitted that “the reality of the situation was that Tse was stationed from Position 1 the entire evening.” Thisproposition is not supported by evidence. To accept this would mean that Tse did not patrol the Venue. That simply cannot be thesituation. The fact that he gave incredible evidence about his guarding position at Position 2 cannot be taken to mean that he mustnecessarily be at Position 1 throughout the entire evening. The Plaintiff submitted that ‘Tse admitted that from Position 1 hewould not have been able to see a thief approaching the 3 booths, particularly after 2:00 a.m. when the lighting was off……. He said, “well, if they did it after 2 am, if they did it very carefully, gently, they could have succeeded to steal propertiesfrom there”…….. It is submitted, therefore, that his failure to be more readily stationed at a position where he would havebeen able to be alert to the risk of theft of the 3 booths was a primary and substantial cause of why the 7 laptop computers wereultimately stolen.’ The difficulty faced by the Plaintiff is that it is unable to prove when the Plaintiff’s properties werestolen. If they were stolen during Tse’s toilet break(s), this submission simply cannot stand. Furthermore there is no evidenceto show that there was a higher risk of theft of the 3 booths than other spots of the exhibition area. I therefore do not acceptthis submission.
10. The Plaintiff quoted the following question and answer to demonstrate that there was an obvious risk of theft:-
In answering the Question, Tse was merely expressing his opinion. He was not asked whether the Question passed his mind during thesecond night, or whether the Answer was his hind sight after the theft had taken place. I do not attach any weight to the Answer,unless it has been proved that the Answer is not his hind sight, and this has not been so proved.
11. The Plaintiff submitted “the fact that a thief targeting the 3 booths, could not be seen from Position 1, and it is clear thatthere was an obvious risk of theft of the 7 laptop computers had the thieves been equipped with the necessary tools……. This,coupled with the fact that there was nothing valuable which could have been easily stolen in the vicinity of Position 1, will leadthe Court to the natural inference that Tse ought to have taken more measures to ensure that the 3 booths were adequately patrolledand supervised. This he could not have done simply by sitting there at Position 1.” I do not accept the proposition that Tsesimply sat at Position 1. He must have patrolled the Venue. It is easy to say with hind sight that there was an obvious risk oftheft of the 7 laptop computers. The most important thing is whether, during the Service Period, Tse was aware that there was anobvious risk of theft of the 7 laptop computers stored at the 3 booths. He was not so asked, and there is no evidence to show thathe was so aware during the Service Period in the second night. There is no evidence to show that he knew that there was nothingvaluable in the vicinity of Position 1. I cannot draw the natural inference as alleged.
12. I do accept the submission that Tse’s evidence about patrols in the exhibition area is inconsistent.
13. The Plaintiff submitted that Tse himself admitted that he had not fully discharged his responsibility, quoting the following questionand answer:-
Whether he was fully discharging his responsibility is to be judged objectively. Tse did not go into details as to how he did nottake the best possible measure. There is no evidence to show that he knew that things would go wrong that night. Therefore I donot accept the Plaintiff’s submission.
14. The Plaintiff submitted that “the natural inference to be drawn is that Tse had failed to regularly patrol the exhibition area,particularly when he knew or must have known that there was an obvious risk of theft from the 3 booths furthest away from Position1…….. On his admission, he stated that he did not fully discharge his responsibility as a security guard in making more frequentpatrols……. His failure to patrol the exhibition area more regularly to avert the risk of theft was the substantial and effectivecause of the 7 laptop computers being stolen.” There is no evidence to show that he knew or ought to have known that there wasan obvious risk of theft from the 3 booths. He was not asked if he knew at the material time there was such an obvious risk. Hedid not even know exactly what were on the 3 booths. So he was not aware of the value of the properties on these 3 booths. I donot accept the Plaintiff’s submission in this respect.
15. I do accept the Plaintiff’s submission that Tse did not lift about 6 times the red cloth covering the booths to see if anythinghad gone wrong.
16. The Plaintiff submitted that it would only take 1 or 2 minutes (definitely less than 10) to walk from Position 1 to the toilet (whichwas a mere 30 metres away), urinate, and return. I do not accept this submission. I do accept that for each toilet break Tse spentabout 5 to 10 minutes, during this period sometimes he smoked a cigarette. It is reasonable for him to take a break of such duration,when he could relax himself and answer the call of nature. The Plaintiff submitted that during this small window of time, it wouldsimply be inconceivable that a theft would be able to get across the red lining, take away the tip of the cloth covering 3 booths,and use pliers to cut the laptop wires of 7 locks, and take away 7 laptop computers undetected.
17. It is most probable that during one or more of these 5 to 10 minutes’ toilet breaks the theft took place. The laptop wires mustbe cut before the laptop computers could be taken away. So the thief (or thieves) must have used the necessary equipment to cutthe wires. The thief (or thieves) must have brought along the necessary equipment in order to commit the theft. That being thecase, the theft must have been planned, and the thief or (thieves) must have observed the best opportunity to commit the theft. They must have observed what was happening in the exhibition area. They must have noticed that there was only 1 security guard tosafeguard the properties in the exhibition area. They must have anticipated that the security guard would have to go to the toiletto answer the call of nature. That would be the best opportunity to commit the theft. During one or more of these toilet breaks,the thief (or thieves) could use a plier or pliers to cut the laptop wires within a short time, and part of the computers could betaken away first, leaving the other computers to be taken away during other toilet breaks. If there was more than 1 thief, thenall the computers could be taken away during 1 toilet break. This is the more plausible cause for the theft to have taken placethan the cause advanced by the Plaintiff. In the circumstances of this case the doctrine of res ipsa loquitur does not apply.
18. The onus is on the Plaintiff to show that Defendant’s negligence is the causation of the theft of the Plaintiff’s properties. But it has failed to do so. I therefore dismiss its claim.
19. I make an order nisi for costs, to be made absolute in 14 days’ time, that the Plaintiff do bear costs of this action, to be taxedif not agreed, with Certificate for Counsel.
The Plaintiff : represented by Mr. Jin Pao, instructed by Messrs. S.K. Lam, Alfred Chan & Co., Solicitors.
The Defendant: represented by Mr. Maurellet, Jose Antonio, instructed by Messrs. Clyde & Co., Solicitors.