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如何界定為代理人 (agent) 呢？ |
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Mr. Justice Ribeiro PJ 在 HKSAR v Chu Ang (趙鶯) 案 [FACC 6/2019] or [2020] HKCFA 18 said 「36. Lord Hoffmann NPJ therefore construed section 9(1)(a) as qualifying a person as an agent where he or she was “acting for another”, having agreed or chosen so to act in circumstances giving rise to a reasonable expectation, and hence a duty, to act honestly and in the interests of that other person to the exclusion of his or her own interests, without the need for proving any pre-existing legal relationship between them or even necessarily proving a request by that other person for the agent so to act. As his Lordship noted, a fiduciary duty often arises in similar circumstances....... 」 |
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| 2 |
代理人有什麼責任呢？ |
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Lord Millett 在 Bristol & West BS v Mothew [1998] Ch1, 18 （www.bailii.org 資料） 案說 「A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary.」 |
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| 3. |
代理人的責任細分為： |
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3.1 |
Duty not to allow his interest to conflict with those of principal －上訴庭法官 Lord Cairns 在 Parker v McKenna [1874] LR 10 Ch App 966 （Wikipedia 資料）案說「....it appears to me very important, that we should concur in laying down again and again the general principle that in this Court no agent in the course of his agency, in the matter of his agency, can be allowed to make any profit without the knowledge and consent of his principal; that that rule is an inflexible rule, and must be applied inexorably by this Court, which is not entitled, in my judgment, to receive evidence, or suggestion, or argument as to whether the principal did or did not suffer any injury in fact by reason of the dealing of the agent; for the safety of mankind requires that no agent shall be able to put his principal to the danger of such an inquiry as that.」 |
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Duty to make full disclosure － 樞密院法官 Lord Wilberforce 在 New Zealand Netherlands Society 'Oranje' Inc. v Kuys [1973] 1 WLR 1126 （www.casemine.com 資料）案 說 「.....First, as to disclosure. Their Lordships entirely accept, as a matter of law, that if an arrangement is to stand, whereby a particular transaction, which would otherwise come within a person's fiduciary duty, is to be exempted from it, there must be full and frank disclosure of all material facts」 |
3.3 |
Duty not to take advantage of his position － House of Lords (相等香港終審法院） 法官 Viscount Dilhorne 在 Boardman v Phipps [1967] 2 AC 46 （www.bailii.org 資料） 案說 「There are, however, passages in the opinions delivered in that case which are very relevant to the issues your Lordships have to determine. Lord
Sankey at page 381 said: "The general rule of equity is that no one who had duties of a fiduciary nature to perform is allowed to enter into engagements in which he has or can have a personal interest conflicting with the interests of those whom he is bound to protect." Lord Russell of Killowen at page 386 said: " The rule of equity which insists on those who by use of a fiduciary position make a profit being liable to account for that profit in no way depends on fraud or absence of bona fides: or upon such questions or considerations as whether the profit would or should otherwise have gone to the plaintiff: or whether the profiteer was under a duty to obtain the source of the profit for the plaintiff or whether he took a risk or acted as he did for the benefit of the plaintiff or whether the plaintiff has in fact been damaged or benefited by his action. The liability arises from the mere fact of a profit having in the stated circumstances been made. The profiteer however honest and well intentioned cannot escape the risk of being called to account." He held that the directors were in a fiduciary relationship to the company and that they had acquired the shares " by reason and only by reason of" the fact that they were directors of Regal and in the course of their execution of that office ". Lord Macmillan at page 391 said. " We must take it that they entered into the transaction lawfully, in good faith and indeed avowedly in the interests of the company. However that does not absolve them from accountability for any profit which they made, if it was by reason and in virtue of their fiduciary office as directors that they entered into the transaction "...." The issue thus becomes one of fact. The plaintiff company has to establish two things: (1) that what the directors did was so related to the affairs of the company that it can properly be said to have been done in the course of their management and in utilisation of their opportunities and special knowledge as directors: and (2) that what they did resulted in a profit to themselves." Lord Wright at page 392 said that the question to be decided was: " Whether an agent, director, a trustee or other person in an analogous fiduciary position, when a demand is made upon him by the person to whom he stands in a fiduciary relationship to account for profits acquired by him by reason of his fiduciary position and by reason of the opportunity or knowledge, or either resulting from it, is entitled to defeat the claim upon any ground save that he made the profits with the knowledge and assent of the other person. The most usual and typical case of this nature is that of principal and agent. The rule in such cases is compendiously expressed to be that an agent must account for net profits secretly (that is, without the knowledge of his principal) acquired by him in the course of his agency." and a little later: " both in law and equity, it has been held that, if a person in a fiduciary relationship makes a secret profit out of the relationship, the court will not enquire whether the other person is damnified or has lost a profit which otherwise he would have got. The fact is itself a fundamental breach of the fiduciary relationship." And Lord Porter at page 395 said: "The legal proposition may, I think, be broadly stated by saying that one occupying a position of trust must not make a profit which he can acquire only by use of his fiduciary position, or, if he does, he must account for the profit so made."」 |
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Duty not to take bribes or secret commissions － 樞密院法官 Lord Templeman 在 Attorney General of Hong Kong v Reid [1993] UKPC 36 （www.bailii.org 資料） 說 「In that case a solicitor acting for trustees rescued the interests of the trust in a private company by negotiating for a take-over bid in which he himself took an interest. He acted in good faith throughout and the information which the solicitor obtained about the company in the take-over bid could never have been used by the trustees. Nevertheless the solicitor was held to be a constructive trustee by a majority in the House of Lords because the solicitor obtained the information which satisfied him that the purchase of the shares in the take-over company would be a good investment and the opportunity of acquiring the shares as a result of acting for certain purposes on behalf of the trustees: see per Lord Cohen ([1966] 3 All ER 721 at 743, [1967] 2 AC 46 at 103). If a fiduciary acting honestly and in good faith and making a profit which his principal could not make for himself becomes a constructive trustee of that profit, then it seems to their Lordships that a fiduciary acting dishonestly and criminally who accepts a bribe and thereby causes loss and damage to his principal must also be a constructive trustee and must not be allowed by any means to make any profit from his wrongdoing.」 |
3.5 |
Duty not to delegate his office; sub-agency － 很抱歉，未能在互聯網找到免費網站報道這個案例 de Busselche v Alt [1878] LR 8 ChD 286。 這個案例在高等法院、港大／中大／城大法律圖書館有相關案例書藉，因為案例書藉是這些圖書館之基本藏書，這 4 間圖書館只可以讓核准人士進入。 大會堂／中央圖書館之參考圖書資料可能有這類書藉讓公眾人士查閱。 在判詞第310頁內，法官說「...As a general rule, no doubt, the maxi "delegatus non potest delegare" applies so as to prevent an agent from establishing the relationship of principal and agent between his own principal and a third person; but this maxim when analysed merely imports that an agent cannot, without authority from his principal, devolve upon another obligation to the principal which he has himself undertaken to personally fulfil; and that, inasmuch as confidence in the particular person employed is at the root of the contract of agency, such authority cannot be implied as an ordinary incident in the contract.....」
香港上訴庭案件，法官Cheung, J 在 GIMEX DEVELOPMENT LIMITED v CUA WAI TAI and other [CACV 174/1999] 說「38. The legal principle is clear : an agent cannot himself delegate discretions to act for another person to someone. The effect of such an unauthorised delegation is that the acts performed by a purported sub-agent will not be valid, where validity is in question, nor bind or entitle the principal : Bowstead & Reynolds on Agency : Para.5-004.」
有一個間接案例 Biffa Waste Services Limited and other v Maschinenfabrik Ernst Hese GMBH and others [2009] 3 WLR 324 （www.bailii.org 資料） 涉及 principal 與未經批准外判工的索償，因為該外判工是未經 principal 批准，故此不能夠獲得索償。 簡單講解，代理人未得到 principal 批准是不能夠將 principal 的工作外判。 因為代理人對 principal 有 single-minded loyalty 的法定責任。 |
| 3.6 |
Duty to account －法官 Channell J 在 Henry v Hammond [1913] 2 KB 515 （www.swarb.co.uk 資料）案說 「It is clear that if the terms upon which the person receives the money are that he is bound to keep it separate, either in a bank or elsewhere, and to hand that money so kept as a separate fund to the person entitled to it, then he is a trustee of that money and must hand it over to the person who is the cestui que trust. If on the other hand he is not bound to keep the money separate, but is entitled to mix it with his own money and deal with it as he pleases, and when called upon to hand over an equivalent amount of money, then, in my opinion, he is not a trustee of the money, but merely a debtor.」 |
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| 4 |
代理人作出越權 (ultra vires) 時的法律責任？ |
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4.1 |
代理人在執行當事人(principal) 的事務時作出越權行為，該行為對當事人是沒有法律約束力。 Mr Justice Chan PJ: 在 MERCK SHARP & DOHME LIMITED v THE REGISTRAR OF PATENTS 案 [FACV 11/2002] said 「.....32. There is no doubt that if, in purporting to make subordinate legislation, a public authority acts beyond the powers conferred by the enabling Ordinance, such legislation may be struck down by the courts as ultra vires and of no legal effect: see, for example, Hoffmann-La Roche & Co A G v Secretary of State for Trade and Industry [1975] AC 295, per Lord Diplock at 365....」 |
| 4.2 |
代理人需承擔越權行為帶來的責任。 Sir Alan Huggins, VP, 在 Siu Ling v Wong Sum-fai [CACV 70A/1981] said ：「1. In the event we are concerned with the assessment of damages against the 2nd Defendant for breach of warranty of authority. The agreement into which he entered was for the sale of a shop at a price of $1,470,000. It is contended on his behalf that the Plaintiff became aware almost immediately that the owner denied the 2nd Defendant's authority to sell and that, accordingly, he ought to have taken steps to mitigate his damage by purchasing elsewhere. Indeed, it is said that there was evidence of the availability of another shop next door to that which was the subject matter of the agreement. Counsel for the Plaintiff, on the other hand, submits that his client was under no duty to accept the assertion that the 2nd Defendant had no authority to sell, was justified in taking that matter to trial and could, therefore, properly claim the difference between the contract price ($1,470,000) and the value of the property at the date of judgment ($2,978,750), namely $1,508,750. 2. The measure of damages for breach of warranty of authority was stated by Lord Esher in Firbank's Executors v Humphreys (1886) 18 Q.B.D. 54, 60 as follows : "The damages, under the general rule, are arrived at by considering the difference in the position he would have been in had the representation been true, and the position he is actually in, in consequence of its being untrue." That is a specific application of the general principle stated in Johnson v Agnew 1979 2 W.L.R. 487, 499E where Lord Wilberforce said : "The general principle for the assessment of damages is compensatory, i.e. that the innocent party is to be placed, so far as money can do so, in the same position as if the contract had been performed."
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