Applied Learning
2011-13 Cohort
Understanding Hong Kong Law
Test
Answer
Multiple Choice
1.
c
2.
b
3.
d
4.
c
5.
d
6.
a
7.
d
8.
c
9.
a
10. d
11. a
12. b
13. a
14. c
15. b
16. b
17. c
18. a
19. b
20. d
Short Questions
1. Court of Final Appeal, Court of Appeal and Court of First Instance (1 mark each, total 3 marks)
2. Civil jurisdiction: exceeding $50000, but not exceeding $1 million (2 marks)
Court of Appeal may hear appeal case from District Court (1 mark) (total 3 marks)
3. England, Hong Kong, Australia, New Zealand, Canada, United States, except Louisianna (any
three of them, or any other acceptable answer, 1 mark each; total 3 marks)
4. Dishonesty, appropriation, property belonging to other, intention of permanently depriving the
property. (1 mark each; total 3 marks)
5. actus reus; mens rea (1.5 marks each; total 3 marks)
6. insanity; automatism; intoxication; duress; self-defence (any three of them, or other acceptable
answer, 1 mark each; total 3 marks)
7. National emergency, adoption of corporation as a sham for liability, fraudulent (1 mark each;
total 3 marks)
8. common mistake, mutual mistake, unilateral mistake (1 mark each; total 3 marks)
9. merchantable quality; fitness for purpose; correspondence to sample; correspondence to
description (1 mark each, or any acceptable answer; total 3 marks)
10. menu in restaurant, advertisement in bilateral contract, auction or any other acceptable answer
(1 mark each; total 3 marks)
1
Long Question
1. (a) Since part of the works is not completed, the first issue is whether the works
is regarded as severable or non-severable contract.
In Hoenig v. Issacs, the subject-matter for a non-severable contract was not satisfied. The
plaintiff was not entitled to the whole damages, but a reasonable portion of it. In other words,
the project was not substantially performed. In Sumpter v. Hedges, the damages for the
severable contract could be calculated on quantum meruit basis.
Student may answer EITHER point of view.
The parties seem to regard the works of building the two greenhouses as a whole. The
contract may be regarded as non-severable contract. One of the greenhouses is not completed.
It may not be regarded as substantial performance. Leon is not entitled to claim against Jacky
as the whole project is not substantially performed.
Leon, however, may claim against Jacky on quantum meruit basis if the works is regarded as
a severable contract. Since one of the greenhouses is completed, the damages may possibly
cover the greenhouse not built.
(10 marks)
(b) The deposit is regarded as liquidated damages which aims to reduce the damages of the
innocent part of the contract.
In Philips Hong Kong v. Attorney General of Hong Kong, the amount of liquidated damages
should be reasonable. Otherwise, it is regarded as a penalty which is forbidden by law.
The deposit of the works is half of the total amount. It may be regarded as a penalty since it is
over twenty percent of the amount. However, the amount is controversial.
(10 marks)
2
2. (a) According to the High Court Ordinance, the civil jurisdiction of Court of First
Instance is cases involving over $1 million. Since Ruby’s case involves $2
million, Ruby’s could start the proceeding in the Court of First Instance.
(b) Ruby’s Company may choose to have mediation, arbitration, if any under the
contract, or any other acceptable answer. (2 marks)
(c) Ruby’s may sue Dick in its own name. (2 marks)
In Solomon v. Solomon, company was capable of bearing liability independently without the
interference of other, including the shareholder. (2 marks)
In Macaura v. Northern Assurance, the ownership of company to the timber was not
interruptible by the third party, including the shareholder of the company. (2 marks)
Since Ruby’s becomes the interest party in the case, the company may sue Dick in its own
name. (2 marks)
(d) In the case of a litigation, the main duty of solicitor, with the instruction by
client, is to instruct barrister in litigation. The main duty of barrister is to appear
before court in litigation. (2 marks)
Client may not meet with barrister without the appearance of solicitor. (2
marks)
(e) The disciplinary issue of barrister is governed by Barristers Disciplinary
Tribunal while the one of solicitor is governed by Solicitors Disciplinary
Tribunal. (2 marks)
According to the Legal Practitioners Ordinance, Law Society of Hong Kong
governs solicitors while Hong Kong Bar Association governs barristers. (2
marks)
3