CHIU WING SZE KARBY v. CHAN YING WAI AND ANOTHER

HCPI 616/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.616 OF 1999

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J U D G M E N T

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1. On 13 June 1998, the plaintiff was a passenger in a motor car, registered no. DF 6118, owned by the 2nd defendant and driven by the 1st defendant, which collided with the rear of a taxi on the West Kowloon Way. She suffered whiplash and other injuries.

2. Interlocutory judgment on liability was granted on 27 July 1999. The case comes before me for assessment of damages. There is some dispute about the quantum to be awarded for pain, suffering and loss of amenity but the main dispute relates to the claim for loss of earnings. The plaintiff's case is that she was at the relevant time a partner in a newspaper stall, making over $12,000 per month. Her claim for loss of earnings is based on this. The defendants' case is that the plaintiff was not working at the relevant time, but that if it be found that she was a partner in the newspaper stall, which was unlicensed, it would be contrary to public policy to award her any damages for loss of illegal earnings. I will deal with the factual issue first.

3. The plaintiff made four statements, which stood as her evidence-in-chief. In the first one dated 23 September 1999, she said that after working as a restaurant receptionist and a period of unemployment from April to November 1997, she commenced operating a newspaper stall at Cheung Shun Street near Cheung Sha Wan Plaza in December 1997 with a Mr Yip Chi Man. The stall was not licensed. She produced records of newspaper sales from May to July 1998 which purported to show that up to the date of the accident, her 50% share of the profits amounted to $17,677.20. After the accident, she was unable to return to work, and in July she sold out to her partner for $7,000. The statement also dealt with her injuries but I will deal with that aspect of the claim later.

4. In a statement dated 4 January 2000, the plaintiff identified the author of the records as Yip Chi Man, and explained them in detail. She said that the records did not show salaries paid to two employees of $3,000 per month each, nor did they show the fines paid by the business for illegal hawking. She estimated these at $3,500. She therefore revised her earnings figure to $12,927.20 per month to allow for these deductions.

5. In a statement dated 17 January 2000, the plaintiff denied allegations made in the defendant's statement about their relationship and various dealings between them. She denied that she had been his girlfriend, or had borrowed money from him. She said that she had told him that she was working at the newspaper stall. As to the newspaper stall itself, she said that she had paid Mr Yip about $10,000 to join the business. She explained their respective roles in the business and in particular said that Mr Yip ordered and paid for the newspapers, paid the fines, paid the employees and kept the business records. She herself had to sort the papers, i.e. put the various sections together, move them, sell them and then count up any unsold papers at the close of business. She identified one of the employees of the stall as a woman called "Ying Tse" who had babysat her brother's daughter. She knew the son of Ying Tse, Hong Wai Hung. When the hawker control officers came, they would arrest Ying Tse and take away 10 or 20 newspapers as exhibits. Ying Tse would later report the amount of the fine she had to pay to Mr Yip, and Mr Yip would give her the money to pay it.

6. The plaintiff further said that she had met Ying Tse, whose full name is Leung Kwai Ho, in February 2000 after the latter had made a statement to the police in which, apparently, she denied being Ying Tse. She had asked Madam Leung to testify but Madam Leung had refused.

7. From cross-examination, it appears that the arrangement between the plaintiff and Mr Yip was a casual one. He simply told her what she had to pay in at the outset, and what work she had to do. She had nothing to do with the accounts; Mr Yip did all that. She just handed over the money to him. He paid her about $400 per day and then settled any surplus or deficit with her after he had done the accounts. She did not even understand the accounts which had been produced with Mr Yip's statement.

8. She said that a deposit of $20,000 paid to her bank account on 23 March 1998 came from the defendant, but this was in repayment of a loan she had made to him, following an earlier road accident in which he had been involved. Another deposit of $3,000 on 22 January 1998 also came from the defendant; this time in repayment of her having paid the bill for a karaoke party.

9. Nevertheless, she said, the defendant was not her boyfriend, even though she had gone out with him and her sister on the night of the accident to celebrate her having passed her driving test. Her boyfriend was one Fu Wai Kwong. He used to give her money, usually less than $5,000 at a time; but she did not put these sums through her bank account.

10. The plaintiff also called as a witness Mr Yip Chi Man. He also relied on his statement as evidence-in-chief. This confirmed the arrangement between the parties and produced the accounts. Mr Yip was cross-examined at length. It must be said that he did not make a good impression. He professed himself unable to remember a great many simple matters, such as what he had been making from another newspaper stall which he operated, or from his transportation business; matters which any sensible businessman ought to be able to remember. He knew his employees as Cheung Shuk and Ying Tse, but he had apparently no idea of their proper names, nor could he explain what had happened to his other accounting records than those produced.

11. The plaintiff's other witness was Mr Hong Wai Hung. His evidence, contained in his statement, was that he was the son of Madam Leung Kwai Ho. He had known Mr Yip for a long time and had introduced his mother to work at the latter's newspaper stall in about September or October 1997. He had visited her at the stall, and found the plaintiff there; he knew her because his mother used to babysit her brother's daughter. Mr Yip told him that the plaintiff had joined as a partner.

12. Mr Hong said that his mother was known as Sister Ying because this was her nickname as a child. He said that he had been at the meeting on 13 February 2000 when the plaintiff had unsuccessfully tried to persuade his mother to testify.

13. Mr Hong was not cross-examined except to be asked if his mother was a truthful person, which he said she was. It was also put to him that she was not called Sister Ying, which he denied.

14. The cross-examination of Mr Hong related to statements made by Madam Leung to the police in connection with an allegation that the plaintiff's claim for loss of earnings was fraudulent. In the statement, she had confirmed that she worked at a newspaper hawker stall at the junction of Cheung Shun Street and Cheung Lai Street from about October 1997 to June 1998. As well as selling newspapers, she was the one who had to allow herself to be arrested by the hawker control teams and thereafter go to court and pay the fines. She was not called "Ying". She had worked with a female called "Ah B", for whose brother's child she had undertaken babysitting. She did not know Yip Chi Man and she did not know Cheung Shuk.

15. There are also before me various other statements to the police in connection with the accident and the fraud allegation. There is a statement by one Chan Lim To who apparently ran the same stall in 2000. It does not assist much. There are statements by the plaintiff and Mr Yip to the police in connection with the allegedly fraudulent claim, in which they refuse to say anything on legal advice. These do not assist at all.

16. The 1st defendant also gave evidence. He too relied on his statement. His evidence was that he was the plaintiff's boyfriend. They started going out together some time after they met in May 1997. He knew her family. In mid-January 1998, when she had borrowed $30,000 to help a friend who had gone missing, he had repaid the interest of $3,000 per month for her. She had asked him out on 12 June 1998 to celebrate passing her driving test. That was the night of the accident. After the accident, he had visited her in hospital and given her money for her medical expenses. Her brother had demanded compensation of $300,000 for her. After she came out of the hospital, the contact between them had dropped off.

17. With regard to the plaintiff's employment, the 1st defendant said that during the time he knew her, she had never worked at all.

Cross-examined the 1st defendant disagreed with the plaintiff's evidence about the payments to her bank account which she said came from him, he agreed that he had not been with her 24 hours a day, and that if she had worked for a few hours every morning, he would not have known about it.

18. In addition to this, the defendants rely on records from Tak Kee Newspaper and Magazine (Distribution) Co. Ltd. This company, also known as Tak Keung Kee, is the sole authorised distributor of the Apple Daily newspaper. The records show that in the period from 1 December 1997 to 30 June 1998, the number of Apple Daily supplied to the stall at Cheung Shun Street near Cheung Sha Wan Plaza increased from 135 to 200 copies per day. This is quite different from Mr Yip's records which show supplies of 320 copies per day.

19. Court records of prosecutions of Leung Kwai Ho in respect of the stall have also been put before me.

Evaluation

20. The issue here is, did the plaintiff work at this newspaper stall at all; and if she did, can the evidence of her earnings there be accepted?

21. I cannot say that the plaintiff gave me any particular impression of honesty or dishonesty. It is true that in the beginning, she said she was earning over $17,000 per month; which she had later to revise downwards to about $12,000. I do not find her evidence that she did not understand the accounts particularly convincing; it seems more likely that she just left out the wages and fines in the beginning but was constrained later to take them into account when they came to light from other sources. It is all too convenient. So is the evidence to the effect that the plaintiff was known as "Ah B", which also only came to light later.

22. As to whether she was working at all, the plaintiff told her doctor on 25 June 1998 that she was self-employed at a news agency, earning about $10,000 per month. This goes to show consistency though it is not independent corroboration.

23. The plaintiff has the apparently independent and largely unchallenged Mr Hong to support her. They both say that Leung Kwai Ho was the person whose job it was to undergo the arrests and pay the fines and indeed there are records showing that Leung Kwai Ho did this in respect of a stall which appears to be at the same location. They both identify Leung Kwai Ho, with some extra detail of how she is known to the plaintiff.

24. Mr Hong's evidence goes pretty well unchallenged. It is all very well to point to Leung Kwai Ho's statement to the police, which says something different; but she has not come to give evidence and indeed it is said that she has refused to do so. It is all very well to admit hearsay under section 47 of the Evidence Ordinance but the criteria for considering it are set out in section 49 and under those criteria, I do not see that it can be given much weight.

25. The 1st defendant seemed credible. I do not doubt that he was the plaintiff's boyfriend. I cannot see her going out with him to celebrate passing her driving test if she had another who was her real boyfriend. Even though they differ on the details, it is not in dispute that money was passing between them and that is another pointer to the relationship. The problem with the 1st defendant, however, is that as he fairly admitted he does not know what the plaintiff does 24 hours a day and he cannot directly. At the same time, there was no reason for the plaintiff to hide from him the fact of her partnership in a newspaper stall, if that was true. It is difficult to see why he would lie about what he was told.

26. As I have indicated, I was not at all impressed by Mr Yip. I was not impressed by his accounts. They are contradicted by the distributor's records.

27. It is true that the plaintiff and Mr Yip say that they were getting newspapers from other distributors. They were not specifically challenged on this and it is now argued that it is wrong to suggest that the figures are false or inaccurate. This is all very well but my function is to decide the case on the evidence rather than on some kind of point-scoring system relating to what is specifically challenged and what is not. In any event, it appears from the plaintiff's answers to the first set of interrogatories that the wholesaler for Apple Daily was Tak Kee.

28. There are apparently no sub-distributors. It may be that one stall could get a few papers from another stall in case of need but that this would happen as a matter of course seems most unlikely. It is also pertinent to note that according to Mr Yip's records, he was paying $3.55 per copy for the Apple Daily. This is what the distributor charged. It seems unlikely that any sub-distributor, especially one not recognised by the distributor or the publisher, would charge the same price as the distributor. People do business to make money and there would surely have been some kind of mark-up.

29. I do not believe Mr Yip's records. It seems most probable that they have been made up to add verisimilitude to an otherwise bald and unconvincing narrative. It must be said that without any records, the narrative is bald. There is no documentary evidence to support the plaintiff's evidence of buying into, or being bought out of the newspaper stall. If all she had to do was sort the papers, sell them and hand over the money, it is difficult to see why she would have been taken into partnership at all. The owner was after all paying others to do the same work, and one of them in addition to be prosecuted, for $3,000 per month.

30. If it were not for the largely unchallenged evidence of Mr Hong, as well as what the plaintiff told the doctor fairly soon after the accident, I would be inclined to find that she did not work at the stall. However, because of this evidence, I am satisfied that she did. I am not, however, satisfied that she earned what she says she earned.

31. Mr Harris, for the defendants, says that it is for the plaintiff to prove her loss. If she cannot, the court may not guess at a possible alternative figure but must dismiss this head of claim. He relies on Bonham-Carter v. Hyde Park Hotel [1948] TLR 177; Ashcroft v. Curtin [1971] WLR 1731; and Tate and Lyle Food and Distribution Ltd v. Greater London Council [1982] 1 WLR 149.

32. I note that in Bonham-Carter, although the judge considered the evidence of damages extremely unsatisfactory, he did in fact award damages. In Ashcroft, the head of damages concerned was impossible to quantify. The same applied in Tate and Lyle. That is not the position here. I have found that the plaintiff was working at the stall. I am not prepared to accept Mr Yip's figures, but there is evidence that others working at the stall were paid $3,000 per month. This is consistent with the statement of Chan Lim To as to what he paid his workers and it does not seem unreasonable. Subject to consideration of the defendants' argument that the plaintiff should not recover because of illegality, I will allow pre-trial loss of earnings at $3,000 per month for 12 months.

Illegal hawking

33. The defendants say that the plaintiff should not recover any loss of earnings because of their illegality. In Chung Man Yau & Another v. Sihon Co. Ltd [1997] HKLRD 1221 at page 1227, Mortimer VP set out the principles relating to illegality as a bar to recovery as follows :-

"The principles to be applied

For my part, I would apply the principles which were discussed in the course of argument. As I see it, they are these. The court must examine all the circumstances - the nature of illegality complained of, the moral and criminal culpability and the plaintiff's conduct. Also any relevant legislation must be considered. Having done that the court must decide whether in all those circumstances it would affront the public conscience or offend the ordinary right-thinking citizen if compensation for the loss concerned is awarded."

34. Hawking without a licence is of course illegal, but it is not, or certainly not in the case of hawking newspapers, particularly morally or criminally culpable. There are many such hawkers and otherwise ordinary, right-thinking citizens do not hesitate to patronise them. I do not see that it would be an affront to the public conscience, or offend such a citizen, if compensation is awarded to the plaintiff for loss of earnings from illegal hawking.

Medical evidence

35. The plaintiff was admitted to hospital after the accident, and then discharged but later she suffered severe headache and vomiting. She was taken to the Accident and Emergency Unit of the Caritas Medical Centre and then transferred for observation to the Princess Margaret Hospital. She remained there for 10 days. After discharge, she went to see Dr Keith K.W. Chan, whose report is before me. She was treated with neck collar, manipulation and physiotherapy. She complained of continuing pain in the neck with occasional numbness of the right hand, and pain in the right gluteal region after walking for 5 minutes.

36. She had an MRI scan of her cervical spine on 24 September 1998 with no abnormality detected. An x-ray on 30 September 1998 revealed a linear crack of the transverse process of L5, but an MRI of the lumbar spine on 7 May 1999 showed no significant findings to account for continuing symptoms.

37. She was later examined for the purpose of litigation by Dr Chun Siu Yeung, an orthopaedic surgeon, on 13 July 1999, and by Dr Lee Po Chin, also an orthopaedic surgeon, on 7 October 1999. By the latter date, she was still complaining of burning neck pain which persisted most of the time and also lumbar pain.

38. In her own statements, the plaintiff complained of considerable pain and stiffness in the neck and the lumbar region in the beginning. It seems that there was considerable improvement but there is still occasional neck and back pain. She says that this pain stopped her from working as a waitress when she tried it in October 2000. It is suggested that she is exaggerating, but there was never any cross-examination on this.

39. Both orthopaedic surgeons accepted that the plaintiff had suffered a whiplash injury to her neck. Neither could find anything much wrong with her lumbar spine, though she was complaining of pain and tenderness there. Dr Lee said that it had healed with no residual anatomical derangement.

40. Both surgeons accepted that there is probably some permanent disability. Dr Chun said that she had 5% permanent impairment of the whole person and a loss of earning capacity of 5-8%. Dr Lee likewise put permanent impairment of the whole person at 5% and loss of earning capacity at about 6%.

41. Overall, it seems that the plaintiff has had a nasty accident with whiplash to her neck and some involvement of her lower back. It does not seem that there is now any evidence of continuing physical abnormality in either the neck or the lower back. In particular, there is nothing wrong with her discs. Of course, whiplash injuries may produce continuing soft tissue pain. Lower back injuries are notorious for producing ongoing symptoms without any very solid medical signs to explain them. I do not think I can simply discount what the plaintiff says about her lower back symptoms as exaggeration. At the same time, she is a young woman - now only 21 (d.o.b. 2/2/1980) - so she has at least better hope of a full recovery than would an older person. Dr Lee says that further progress may still take place.

Pain, suffering and loss of amenity

42. I have been referred to various cases dealing with whiplash injury. Counsel for the plaintiff argues that she should be regarded as being at the lower end of the "serious injury" category in Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657 and that allowing for inflation she should have an award of $460,000. He also relies on Li Yuk-ching v. Secretary for Justice (1998) HKLJ 444; Lau Kam Tai v. United Soundfair Engineering Co. Ltd (1999) HKLJ 338; and Yip Yuen v. Lam Sai Cheong [1994] HKLY 497.

43. Defence counsel says that a proper award is $100,000. He says that her injuries are less serious than those in Li Yee Yuen v. Tam Wing Keung and Lee Miu Ling v. Wong Nim Chee which are digested in [1985] HKLY 433, both whiplash cases in which the award of $35,000 would equate nowadays to an award of about $130,000. He says that the case is comparable with Chan Siu Youn v. Ng Kam Man [2000] HKLRD G9 where the award was $100,000.

44. I accept that the cases relied on by the plaintiff seem to deal with rather more serious injuries than those she suffered, with worse continuing disabilities. Two of those cases involved disc lesions which persisted. There is nothing wrong with the plaintiff's discs. I accept that the figure for the whiplash should be $100,000. That for the lumbar injury should be $50,000. The total is $150,000.

Pre-trial loss of earnings

45. As I have indicated, I will allow pre-trial loss of earnings at $3,000 per month. The plaintiff was off work for 12 months. The award is $36,000.

Post-trial loss of earnings

46. The medical evidence is that the plaintiff can earn $6,000 per month. I have accepted that she could have earned $3,000 at the newspaper stall. This is inevitably something of a guess but there is no evidence to suggest that she was earning more than $6,000. So I can allow nothing in respect of post-trial loss.

Loss of earning capacity

47. There is evidence of continuing disability. The surgeons put the loss of earning capacity at about 6% but it is difficult to see how that could be applied to a newspaper seller earning as little as $3,000 per month. The plaintiff is able, according to the surgeons, to resume that work. There is no evidence that she is under any handicap in the labour market. I do not see that an award for loss of earning capacity is appropriate.

Other special damages

48. The following are agreed :-

	$
a) Medical Expenses paid to Princess Margaret Hospital	612.00
b) Out-patient treatment expenses	572.00
c) Physiotherapy	2,728.00
d) Private doctor consultation fees	1,150.00
e) X-rays	1,550.00
f) Medicated cream for pain relief	1,440.00
g) Travelling expenses	8,810.00

49. The plaintiff also claims tonic food at $11,637.00. She has produced receipts for this, dated between July and November 1998. If we take a period of six months for the consumption of tonic food, the average per day would be about $90 per day. The amount awarded must be reasonable and appropriate; see Law Hing v. Leung Tin Kan & Anor [1989] 1 HKC 572 and the cases cited therein. I think $90 per day is excessive, without evidence as to the advisability or suitability of the food concerned. $30 per day, the figure adopted in Law Hing, seems more reasonable. I will award $5,400, i.e. about $30 per day for 6 months.

50. The plaintiff claims $1,600 for lost contact lenses. There is evidence in her statement to cover this, and no indication in the medical evidence that she would not need to have her vision corrected in some way, so I will allow this also.

51. The total for the other special damages awarded is $23,862.

Summary

	$
PSLA	150,000
Pre-trial loss of earnings	36,000
Other special damages	23,862
Total	209,862

52. There will be judgment in favour of the plaintiff for $209,862.00 with interest on the special damages at half the judgment rate from the date of the accident, and interest on the general damages at 2% p.a. from the date of the writ. Costs nisi to be taxed if not agreed.

53. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.