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Homework answers / question archive / Andrew came to Hong Kong from Ethiopia joining his cousin, Ken who had migrated to Hong Kong since 2010
Andrew came to Hong Kong from Ethiopia joining his cousin, Ken who had migrated to Hong Kong since 2010. Andrew spoke very poor Cantonese, Putonghua and English. Ken helped him make an application for asylum, on the basis of persecution that he claimed to have suffered in Ethiopia. Andrew was sent a letter in January 2019 stating that he could remain in Hong Kong while his application was considered and that he could not work in the meantime without permission from the Immigration Department (according to the Immigration Ordinance Cap. 115 Section 38AA (1) (a) and (b), asylum seekers are not granted the right to work in Hong Kong, including paid and unpaid jobs). In early March, 2019, Andrew secretly obtained a job in a garage in Yuen Long. The garage is operated by Jimmy. He knew that Andrew was not permitted to work in Hong Kong but he still employed him with a monthly wage much lower than the market rate. Jimmy treated Andrew badly. He was required to work 15 hours a day and Jimmy had not paid any wages to Andrew since May 2019.
Ken has established a family in Hong Kong. He works very hard to sustain a living. He is employed by a department store as sales and works as part-time taxi driver during night time. One evening while he was driving a passenger to Sai Kung, he was tired and paid no attention to the traffic light. Carelessly he drove across the road when the traffic light had turned green for pedestrians. The road condition was clear at that time and nothing blocked his sight. He knocked down a teenager, Sam who died afterwards. Police investigation revealed no evidence that Sam has breached any traffic rule when he crossed the zebra crossing.
Besides operating a garage, Jimmy also sells second hand race cars. His business is very good and this brings him a lot of wealth. Recently a customer, Andrew, negotiated with him for the purchase of a race car previously belonged to a famous Formula One champion racing driver
Schumacher. Jimmy could not locate such a car in the market.
He only had with him a race car belonged to another world champion, Senna. Eager to complete the deal, Jimmy invited Andrew to look at the car and made a clear statement to Andrew that it once belonged to Schumacher. Relying on the statement of Jimmy, Andrew bought the car. A few months later, Jonah, a close friend of Schumacher told Andrew that the statement by Jimmy was not true since Schumacher never possessed a
race car of this model.
Lynn is Andrew’s wife. Last Friday, she attended a party where a lot of movie stars participated. Before she went to the party, she visited Mary’s hairdressing salon. After Mary finished setting her hair, she was so pleased with what Mary had done and said that she would give her an extra HK$3,000. Because she had not brought enough money with her, Lynn said that she would return the next Monday to give the extra money.
After the party, Lynn changed her mind and did not want to pay the HK$3,000.
Mary wants to expand her hairdressing business. She entered into a contract with a Hong Kong manufacturer for the supply of a famous brand of hair beauty products. One of the products is a shampoo made from a particular specie of ginseng from Korea. This has the effect of preventing hair loss. It was expressly stated as a description in the contract that the ginseng used to make the shampoo must be of that particular specie. Ginseng of other species is not acceptable. Upon delivery of the consignment of shampoo, Mary took samples to the local laboratory for test. The result showed that it only contained ginseng from other species but not the one stated in the contract.
1
After Andrew has discovered that Jimmy made an untrue statement to induce him to buy the race car, he wants to rescind the contract and gets back the purchase price. He also wishes to claim damages from Jimmy. Advise him the possible legal ground that he can base on to proceed. In your answer, explain in detail the operation of such ground by reference to legal cases and provisions, if any.
2
Lynn finally did not pay the HK$3,000 to Mary. Mary wants to take legal action to obtain the sum. Advise Mary the likelihood of success of her claim. Support your answer with detailed explanation of the relevant legal principles and cases.
3
Mary liaised with the manufacturer and expressed her intention to reject the consignment of shampoo. The manufacturer insisted that Mary could not return the goods and should perform the contract by paying the contract price. Analyse with reference to applicable legal provision whether Mary can reject the goods and give a full account of the legal principle she can base on to initiate legal action
Answer:
1.
Andrew cannot claim the salary from Jimmy because the contract they had was illegal. According to the Immigration Ordinance Cap. 115 Section 38AA (1) (a) and (b), asylum seekers are not granted the right to work in Hong Kong, including paid and unpaid jobs.
Explanation:
Andrew cannot claim the salary from Jimmy because the contract they had was illegal. According to the Immigration Ordinance Cap. 115 Section 38AA (1) (a) and (b), asylum seekers are not granted the right to work in Hong Kong, including paid and unpaid jobs.
It is vital for Andrew to understand that a contract is voidable if it is determined that it involves an illegal activity. Although Jimmy ha accepted to give him a job, according to the as an asylum seekers who is waiting for the determination of his case, it is illegal for him to work. If he takes legal action against Jimmy, the court will determine that the contract between him and Jimmy is void. He will also risk deportation or being sent to jail because he has engaged in an illegal activity under the Hong Kong laws.
In the case, GA v. Director of Immigration, the Court of Appeal affirmed the ruling of lower courts that someone who is a refugee had the right to employment. This affirms the advice given to Andrew that he was engaging in an illegality and the contract with Jimmy was void.
Sources
Francis, Angus, and Rowena Maguire. "Prospects for Refugee Rights in Hong Kong." Protection of Refugees and Displaced Persons in the Asia Pacific Region. Routledge, 2016. 88-108.
Wilson, Fan Chun Yip, et al. "ADMINISTERING ASYLUM SEEKERS IN HONG KONG: GOVERNMENT POLICIES AND ACTION." (2016).
Yasini, Marifatulhaq. "The implications of voidable contract (al aqd al-fasid) to Islamic financial transactions: a study from Shari'ah and legal point of view." (2017).
Chirica, Simona. "Considerations on the void or voidable agreement under Romanian law." Proceedings of the International Conference on Business Excellence. Vol. 14. No. 1. Sciendo, 2020.
2.
Is Ken liable for the death of Sam through negligence?
To prove negligence, one has to prove the following elements, Duty, breach, causation, proximate cause, and harm. Duty of care is the first element in proving negligence. Under common law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others see (Stansbie v Troman and Dnoghue v Stevenson (1932). As a road user, you owe a legal duty to all other road users who can be seen as your neighbours as described by lord Atkins in the neighbour test (Applegarth, 2016). If a road user fails to act or acts in a manner that can foreseeably cause harm to another, they are in breach. In our case study, ken was tired and paid no attention to the traffic light. Carelessly he drove across the road when the traffic light had turned green for pedestrians. this is a breach of the duty to act in a way that would not cause harm to other road users (Sam). the standard of care is that of any motorist and being tired does not excuse Ken from being able to observe basic driving skills such as traffic lights
Explanation:
Once the duty of care and breach has been established, courts will look whether the bleach in care caused any harm or injury. If so, the person will be liable for the injury caused by their negligence,
References.
Applegarth, P. D. T. (2016). Lord Aitkin: Principle and Progress. The Australian Law Journal, 90.
Neighbors, C., Brown, G. A., Dibello, A. M., Rodriguez, L. M., & Foster, D. W. (2013). Reliance on God, prayer, and religion reduces influence of perceived norms on drinking. Journal of Studies on Alcohol and Drugs, 74(3), 361-368.
3.
Jimmie commits a fraudulent misrepresentation; his statement is false about the car that was used by sportsman; this statement made it prove that he fraudulently put another party to entering into the contract. He used the false statement with intend to induces Andrew to enter into a contract with Jimmie. Later on when Andrew know the fact he is eligible to claim all the damages and get all the loss what he bears loss emotionally and financially as well according to Article 2(1) Misrepresentation Act 1967 of UK law. The contract also revokes but enforce the revocation through the court. The legal proposition may vary with country.
4.
Mary has a legal position to succeed in lawsuit under promissory estoppel
Explanation:
Mary v Lynn
The above case study shows the facts that Lynn made a promise to pay Mary extra HK$ 3,000 for her skillful work , which economically Mary planned on.
To Her surprise Lynn changed her not to pay leading to financial damage.
According to common law , Promissory estoppel doctrine allows Mary to make ac claim that the decision made by Lynn is unconscionable and has a detrimental economical impact on Mary because she has relied on the promise made by Lynn.
Similar judgement was made in the case of Luo Xing Juan v Hui Shui , where Luo Xing successfully argued her case base on the promise made to him
5.
Mary can reject the good. Under the uniform commercial code, a buyer can reject the goods which are under-performing. It gives the buyer the right to inspect the goods before paying them. The buyer will then reject the goods that do not conform to their contract. In this case, the contract between Mary and the manufacturer clearly indicated that Mary's shampoo must be of that particular specie of ginseng from Korea. After the inspection, Mary found the shampoo did not conform with the specification as per their contract. The manufacturer did not meet the contractual obligation through substantial performance, and Mary has the right under the Uniform commercial code (UCC) to reject the good. Mary also has the right to file a lawsuit against the manufacturer for the contract's breach as the manufacturer failed to deliver the goods as specified in their contract. Their contract was legal and enforceable.
