LAM FONG v. WONG KWOK HING AND OTHERS

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J U D G M E N T

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Hooper J.

1. This is an appeal from the decision of the District Court at Kowloon in Employees' Compensatiion Case No. 191 of 1986 in which the Deputy District Judge awarded compensation to the mother of Chan Kin Keung, the deceased under section 6 of the Employees' Compensation Ordinance, Cap. 282 on the basis that she was not wholly dependent on the deceased but only partially dependent on him.

2. The accident took place on the 15th March 1986 and this action was brought on the 15th December 1986. The judgment is dated the 6th May 1987 and Notice of Appeal was given on 28th May 1987.

3. The appellant who was the applicant in the court below now appeals against the decision given there seeking to have this Court substitute an order that the respondents do pay the mother of the deceased the maximum of HK$299,000 on the basis that she was wholly dependent on her son.

4. The grounds of appeal are that the finding that she was not wholly dependent on her son was (1) against the weight of evidence and (2) that there was no evidence that she was dependent on anyone else.

5. The only relevant evidence on this issue before the District Court was Hearsay Evidence admitted under section 47 of the Evidence Ordinance and consists of a declaration by the mother on 24th April 1986 before a Notary Public at Siu Kwan Municipality Kwangtung Province in The People's Republic of China. In that declaration Madam Chu Yun King asserted, amongst other things, that she was the mother of the deceased, her husband died on the 23rd February 1985, she had three sons and two daughters. Apart from the deceased son they were not responsible for her living expenses. She has a brother-in-law Chan Chun Yun. Her own living expenses and medical fees averaging 150 Remenbi were provided solely by the deceased son who entrusted persons to bring her and her brother-in-law HK$1,000 per month on average. Various drugs and clothing were also brought by them.

6. There was a formal notice dated 23rd April 1987 under section 47 of the Evidence Ordinance and Order 38 of the Rules of the Supreme Court that the appellant would rely on this declaration as well as other documents at the trial, including a declaration by her brother-in-law, the deceased's uncle. A counter Notice dated 28th April 1987 was served requiring the appellant to call the mother and her brother-in-law at the trial on the grounds that they could and should be called. It appears that at the trial the applicant did not rely on the declaration of the brother-in-law and did not call either the mother or the brother-in-law relying solely on the declaration of the mother which was accepted in evidence. That was the only evidence before the trial court on the issue of dependency. The Deputy District Judge said in his judgment:-

"Such evidence as I had to assist me in that was admitted pursuant to a Hearsay Notice dated 23.4.87, particularly a declaration by the deceased's mother Chu Yun King.

It is not drafted in a way to inspire implicit trust in its truth and accuracy. The Respondent is helpless since it has been unable either to cross-examine the mother or call evidence in rebuttal. The weight I give to it is reduced by considerable scepticism.

The first reason is that she says she has three sons and two daughters living, all adult. Four of them are married and the fifth is not accounted for. Yet she goes on to say that her "monthly living expenses and medical expenses were provided solely by (the deceased)".

That seems to me to be highly unlikely. I find it hard to believe that the other five children made no contribution to their mother's welfare at all. That is not my understanding of Chinese filial responsibility towards a parent.

The second reason is that she states her dependency as "HK$1,000 on the average per month". I note that that sum provided for the uncle as well, so that her actual dependency comes to "HK$500 per month on average". My comment is that average figures of this kind give me no reliable guide to the actual figure, particularly when they are used, as here, to substantiate a claim which it is in the mother's interest to enhance."

7. The first ground of appeal is that the finding of the Deputy District Judge was against the weight of evidence. Section 51(3) of the Evidence Ordinance provides (extracting irrelevant provisions) - "in estimating the weight, if any", and I emphasize the words "if any", "to be attached to a statement admissible in evidence by virtue of section 47, regard shall be had to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement", and in particular subparagraph (a) "to the question whether or not the statment was made contemporaneously with the occurence or existence of the facts stated and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent the facts".

8. Now the Deputy District Judge was required to have regard to all the circumstances from which an inference can reasonably be drawn as to the accuracy or otherwise of the statement. For my part, it seems to me that that is what he did. He did not regard the statement as completely accurate. He looked at the drafting of it which did not inspire him with implicit trust in its truth and accuracy. That was in my view, a proper way to consider the weight to be attached to that declaration. In my view there was room for his scepticism. It seems to me to be a relevant consideration to consider the likelihood, in the absence of any explanation, that of all her sons and daughters, all of whom were adult, only her unfortunate deceased son should have had any responsibility to maintain her and her brother-in-law at the time of the accident, having regard to the traditional Chinese filial responsibility to a parent.

9. The judge properly took into consideration that only average round figures were referred to in the declaration and that it was in the mother's interest to enhance her claim. It was therefore open to the Deputy District Judge on the facts to reject the appellant's claim that she was wholly dependent on her son. I do not see, for my part, how we can criticise him for doing that, though some of his reasoning may not have been strictly accurate.

10. The burden was on the appellant to prove the total dependency of the mother and I do not see how it can successfully be argued that the contrary finding of the District Judge was against the weight of evidence when the only evidence was a declaration which he did not believe in this respect. I do not agree with the first ground.

11. The second ground of appeal can be disposed of immediately in my opinion. Once it is accepted that the burden was on the appellant and that he failed in that respect, it was not necessary for the respondent to provide evidence to establish the contrary. So in my view, ground two goes out of the window.

12. No Respondent's Notice has been filed in accordance with O.59, r.6. that the decision should be varied in any way. There is thus no appeal against the methed of calculating the sum awarded. It is however clear that the Deputy District Judge has adopted an incorrect approach. It is the duty of the Court to award such sum as is "reasonable and proportionate" to the injury to the dependent in accordance with the provisions of section 6(4) of the Employees Compensation Ordinance. There are plenty of authorities, both in Hong Kong and under the former Workmen's Compensation Acts in England, from which our provisions have been taken, as to the way the dependency should be assessed. The applicant in this case appears to have obtained a very favourable order for it would appear to be unlikely that the dependency would have continued for many years. However, in the absence of a Respondent's Notice, it is not for this Court to interfere with the Deputy District Judge's assessment.

13. For these reasons, I would dismiss the appeal and would not alter the award.

Cons, V.-P.

14. Mr. Clifford who appears today for the applicant skillfully dissected the language of both the declaration and the judgment in an endeavour to show that the former is inherently truthful and that the judge incorrectly discharged the burden to evaluate the declaration that is placed upon him by the Ordinance. In circumstances such as these, that burden cannot be easy for any judge to discharge. Despite Mr. Smith's persuasiveness, I am not persuaded that the judge did adopt a wrong approach to his duties or that the limited extent to which he accepted that statement was not warranted.

15. The words of one particular part of the declaration may well have misled him to the exact number of brothers and sisters of the deceased who are still alive, but I cannot think that his decision would have been any different had he been fully appraised of what we are told is the true situation. I too would dismiss the appeal.

Hunter, J.A.

16. I agree, particularly, with the judge's description of the material before him as "flimsy and insubstantial". One of the more striking omissions, as I see it in the court below, was the failure to call either of the couriers who were named in the declaration as the persons who are said by the lady to have been bringing sums of money in Hong Kong dollars with some regularity to her in Mainland China. Had that evidence been given, then the court would have known precisely how much she was receiving and with what frequency and continuity. The absence of that evidence, to my mind, was a matter which the judge could have relied upon as adding to his scepticism about the total dependency claimed.