CHUNG HOP SHING AND ANOTHER v. YEUNG SHUI FUN AND OTHERS

1984 No. 5416

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The writ in these proceedings was filed on 8th August 1984.

2. The writ claimed, under Tsing dynasty law, for certain reliefs for the 1st and 2nd plaintiffs who were respectively the widow and daughter of the deceased, Yeung Kong Lam.

3. The relief was claimed against the 1st, 2nd and 3rd defendants who were the sons of the deceased and, according to Tsing dynasty law, his only beneficiaries.

4. The 1st plaintiff claimed maintenance for life against the deceased's estate.

5. The 2nd plaintiff claimed maintenance until marriage and a dowry thereon, also against the estate.

6. The 1st and 2nd defendants filed defences and it was clear from these defences that there was little between the plaintiffs and the defendants. However there were inter family disputes. These had little to do with the plaintiffs' claims but apparently had prevented an amicable settlement of the disputes between them.

7. The 3rd defendant said he would not, and he did not, file  defence.

8. Hence the writ of summons.

9. Very early on in the proceedings an expert opinion on Tsing dynasty law was filed supporting the plaintiffs' claims. That opinion has never been challenged save with regard to the quantum of the 2nd plaintiffs' claim for her dowry.

10. So little was there between the plaintiffs and the defendants that Master Betts gave judgment for the plaintiffs in terms of their respective claims under Order 27 rule 3 (upon admissions) against the 1st and 2nd defendants and under Order 14 rule 1 (summary judgment) against the 3rd defendant.

11. The quantum of the various claims was to be assessed and the matter came before me on the 13th March 1986. It was adjourned part heard until the 16th April 1986 after which the assessment was reserved.

12. The evidence upon the assessment was long, acrimonious and to a large degree irrelevant to the plaintiffs' claim.

13. The issues were, and remained at the hearing, hidden from the parties by their inter family differences.

14. Before dealing with the plaintiffs' claims in detail I will briefly describe the estate of the deceased from which will come the fruits of the awards.

15. It is in the form of several landed properties in the New Territories. There is no need to enumerate them here as they are listed in the Statement of Claim. There were further extensively described in the evidence of the plaintiffs' first witness - Mr. M.J.E. McGuire of A.G. Wilkinson & Associates Surveyors etc. of Hong Kong - and in Exhibits 1-6 which he produced. This evidence was not seriously challenged although the point was made by the 2nd defendant, and I accept it, that the value placed on the properties by the valuers may not be one which is capable of being immediately raised thereon.

16. The deceased's estate was valued by Mr. McGuire at $468,000.00 and that figure is accepted by me.    

17. However only one of the properties is capable of generating income - that is lot 983B in D. D. No. 122, of which more later.

18. The 3rd defendant is in occupation of Lot 120 of Wong Chau House, also part of the estate.

19. Now to turn to consideration of the plaintiffs' claims.

The 1st plaintiff  - She claims maintenance from the estate for the period of her life time.

20. The deceased died (intestate) in January 1979.

21. The 1st plaintiff's grievance emerged starkly from her evidence. It was more of a moral one than a legal one.

22. The deceased, while he lived, was not a considerate husband. The family owned properties but the deceased was inclined to pledge these properties to obtain cash for purposes unconnected with his family. The burden was placed upon the 1st plaintiff not only to bring up the family but from time to time produce cash to redeem the pledged property.

23. When the deceased died she looked for better treatment at the hands of her offspring for whose up bringing she had sacrificed so much.

24. This is not to say she was left destitutes - she was not. She had a house to live in with the 2nd plaintiff. This is one storey of a house on 1618 in D.D. No. 123. This house is owned by the three defendants as tenants in common but whether this is so by inheritance from the deceased or not is not clear to me and maybe part of a dispute between the three defendants themselves.

25. After the death of the deceased the 1st plaintiff received monthly contributions from the rentals on 983B. The 1st and 2nd plaintiffs  lived together and the 2nd plaintiff, who was in employment, also contributed to the family expenses.

26. For the period between January 1979 and May 1983 the properties  on 983E were managed by the 2nd defendant. He handled the letting and collected the rents, arranging different bank accounts for different properties.

27. These bank accounts are exhibits in the assessment and the 2nd defendant has submitted his accounting for the management of these properties during his evidence. That was not strictly relevant to the issue but he was anxious to establish his bona fides and there was no harm done by allowing him to do so.

28. I am more than satisfied that during the period 1979 to 1983 the contribution of the 2nd defendant to the maintenance of the 1st plaintiff from the collection of these rents was, whatever it may have been in cash terms, more than sufficient for her needs. Having heard his evidence it is inconceivable to me, that he would have allowed her to be deprived in any way.

29. After May 1983 the 2nd defendant continued to collect the rents from 983B and, in his words, paid them all over to the 1st plaintiff. Again I have no reason to doubt his word and accordingly after that time I am satisfied that the 1st plaintiff was in no way deprived of any of her needs.

30. It is common cause that the 1st plaintiff's needs will be fulfilled if she receives approximately $2,500.00 per month. This in my view appears too low but there is a degree of consensus about it so it behoves me not to express my own opinions.

31. It is also common cause that she should receive this sum from the rentals of 983B.

32. That being the case I, for one, am puzzled by these proceedings. The only purpose for them that I can see is to formalise the prior existing informal arrangement and perhaps by that formal arrangement persuade the defendants to put their personal differences behind them for the benefit of their mother in her remaining years.

33. Although such differences as there are appear to be only between the 2nd and 3rd defendants. The 1st defendant is now resident in England and has entrusted the 2nd defendant to manage his share of the estate.

34. The 3rd defendant appears to desire an accounting from the 2nd defendant in regard to the 983B properties but that has nothing to do with these proceedings. Even so the 3rd defendant wishes his mother no ill and is quite prepared for her to be maintained from the estate.

35. So be it - she is and always has been maintained by the estate in one way or another. It does appear, peripherally, from her evidence that her desire is to have 983B conveyed to her, there to live her life out and support herself on the rents thereof.

36. Well of course she has no legal right, in Tsing dynasty law, to that remedy. Consequently that is not part of the judgment entered by Master Betts and there would be no place for such an order by me in any assessment of damages.

37. It remains only to decide the form that the order is to take in respect of the 1st plaintiff.

38. Any award is, according to the judgment of Master Betts, to be paid out of the estate of the deceased. The estate, in so for as I can see, is administered in a very slap dash manner. There is no established residue after administration from which such a payment out to the 1st plaintiff can be made.

39. There is agreement between the 1st and 2nd defendants that the latter administer the former's share. There is however no accounting between the 2nd and 3rd defendants.

40. It is all very well for the defendants to concur in the payment to the 1st plaintiff of maintenance from the rents of 983B. It begs the question of who is to administer the property, arrange tenancies, collect rents, make disbursements and deal with repairs. At present I would assume that this is done by the 2nd defendant. But can the court order him to continue - I think not. What happens of there is a shortfall between the 1st plaintiff's maintenance and rental income? Can the court call the 2nd defendant to account if his voluntary stewardship produces this result? Again I think not.

41. The court has to make an order that is capable of enforcement. To make an order enforcable in these circumstances it must be made against the estate as a whole.

42. Consequently I order that the estate pay to the 1st plaintiff the sum of $2,500.00 per month. The payment will be made quarterly in advance, into court, on the 1st July 1986, and on each quarter day thereafter. Payment out of court will only be made into an account specially designated for the purpose and separate from those into which the rentals from 983B are paid.

43. I will make it clear that this award to the 1st plaintiff, which I have already stated appears low, is made on the basis that she continues to occupy the one storey on 1618 in D. D. No. 123 free of all charges relating to rent, rates and repairs. Should she for any reason in her life time have cause to vacate those premises she has liberty to apply for a variation of the order. This is in addition to the general liberty to either party to apply in the event of a change of circumstnaces.

44. The 2nd plaintiff - The 2nd plaintiff's claim to maintenance pending marriage was abandoned by Mr. Leung during his final submissions. He did so quite properly in my view. The 2nd plaintiff is quite capable of supporting herself as she has shown. She also has had the benefit of rent free accommodation since the death of her father, the burden of which has been borne, if not by the estate, then by the three defendants who are the sole beneficiaries thereunder.

45. Her second claim is for a dowry from the estate upon her marriage.

46. At no stage has her entitlement to a dowry been disputed by any of the defendants.

47. The expert on Tsing dynasty law and Nr. Leung before me relied upon Wong Pun Ying etc. v. Wong Ting Hong etc. [1963] HKLR 3] where a dowry of $40,000.00 was awarded, being 1/10th of the estate.

48. Mr. Ng for the 1st defendant sought to distinguish Wong Pun Ying in part, in that there were two male beneficiaries in that case whereas here there were three. The value of the estates in both cases, it will be noted, is approximately $400,000.00.

49. He said that a dowry of $30,000.00 would be more appropriate.

50. That is all that is between the parties in respect of the 2nd plaintiff. I will do what the parties should have done - or what their legal advisers should have told them to do - prior to he expenditure of, what will I am sure prove to be, large legal costs.

51. I award the 2nd plaintiff the sum of $35,000.00 as a dowry to be paid to her by the estate within 7 days of her marriage.

52. The plaintiffs' costs of this assessment will, following the order of Master Betts, be paid out of the estate of the deceased with the plaintiffs' own costs being taxed in accordance with the Legal Aid Regulations.

53. There will not be a certificate for counsel. In my view Mr. Leung's fees should not be borne by either party but should be met from public funds.

54. This action need not ever have been brought - it cried out for a settlement. The defendants have at all times been willing to settle. The 1st plaintiff gave no evidence whatsoever to being deprived of maintenance by her sons and there was little dispute as to the quantum of the 2nd plaintiff's dowry.

55. We are accustomed now to lawyers being regarded as devourers of men's estates by contention but where the Director of Legal Aid joins those ranks it is time to pause for reflection.