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.

(a) Andrew wants to claim from Jimmy the unpaid wages from May to August, 2019. He consulted a lawyer who advised him that his employment contract with Jimmy is void and it is unlikely that his claim will be successful. Explain to Andrew the possible legal reasoning that supports the advice of his lawyer.

(b)Sam’s parents wish to claim from Ken based on negligence causing the death of their son. With the assistance of relevant legal cases and principles, explain to Sam’s parents the concept of “duty of care” which is essential in establishing negligence.

(c) 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.

(d) 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.

(e) 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. Analyze 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 rating: 100% (QA)

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 ... View the full answer