XCHRX HUI HANG WAN and Another v. WONG KA FAI and Others

1991 No. A2609

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. These proceedings arose out of the death of Siu Wing Ming in 1988. The writ was not issued until 1991.

2. It is relevant to know that the proceedings were for the benefit of the following persons:-

(a) Hui Hang Wan, widow and relict of the Deceased, born on 2nd April 1952, housewife;

(b) Siu Cho Ching, lawful son of the Deceased, born on 30th October 1980, student;

(c) Siu Wang Ching, lawful son of the Deceased, born on 20th May 1982, student;

(d) Siu Ching Kit, father of the deceased, aged 72 years old, retired worker; and

(e) Tam Shuet Mui, mother of the Deceased, born on 8th October 1920, unemployed.

It will be noted that the sons are still infants.

3. In April 1995, the plaintiffs and defendants achieved a compromise that, of course, required approval by the court because of the infants involved. A summons was issued and came before a Master on 20 April 1995 supported by an affirmation by the solicitor for the plaintiffs setting out the proposal and exhibiting, certain correspondence between the parties. What was sought was a somewhat unusual order. The Master was invited to agree the terms of settlement as between the plaintiffs and the defendants but to adjourn any decision on the apportionment of the damages among the various interests. He acceded to that application and on 27 April 1995 judgment was entered against the defendants for $950,000 and costs. The Master made, in his order, provision in the following terms:-

"The Plaintiffs be at liberty to apply to the Court for directions on apportionment of the said judgment sum."

4. On 14 June 1995 the plaintiffs' solicitor appeared before another Master on which occasion, Miss Keung also appeared for the parents of the deceased and Madam Hui, the widow and one of the executors of the estate, appeared on her own behalf.

5. I should here mention that the summons purported to be issued under Order 18 rule 12 of the Rules of Supreme Court. So far as the requirement for approval of the settlement on behalf of the infants is concerned that is right. As it transpired, however, the more difficult matter was the apportionment to be made under that part of the order dated 20 April 1995 set out above.

6. When the summons came before the Master on 14 June it was supported by affirmation from the plaintiffs' solicitor setting out a proposed apportionment, and explaining how it had been reached. As is the normal practice, counsels' advice was also produced. In his affirmation the solicitor affirmed that the proposed apportionment had been agreed by all those concerned.

7. At the hearing, however, it emerged that Madam Hui then objected to the proposed apportionment to her mother-in-law, Madam Tam. As the matter clearly required further consideration, the Master adjourned the matter so that adequate time could be made available; and advised Madam Hui to approach the Legal Aid Department to seek representation so that her views could properly be advanced.

8. A few days before that hearing evidence was also filed on behalf of Madam Tam, who was then separately represented, supporting the proposed apportionment.

9. Nothing substantially changed by the time the summons came before me on 9 January 1996. No evidence had been filed on behalf of Madam Hui who was still not represented. She addressed me on the matter but really said no more than that she believed all the damages awarded should be used for the benefit of the children and that nothing should go to her mother-in-law.

10. I have considered very carefully the evidence that is in front of me particularly with regard to allegations by Madam Hui that her late husband had not contributed to the support of his parents. On the balance of probabilities I believe he had and, taking everything into account, I believe that the previously proposed apportionment is right.

11. For the reasons given, I direct that the apportionment of the damages be as set out in the draft exhibited as CSKS-19 in the 4th affirmation of Cheung Sai Kwong, Simon filed here in on 8 June 1995.

12. The sums awarded to the minors are to be paid to the Registrar, Supreme Court for investment and payment out on the usual terms and those parties who are legal aided are to have their costs taxed in accordance with the Legal Aid Regulations.

13. I was urged that, in the event that I approve the apportionment I should make an order for costs against Madam Hui for the additional work caused by her failing to agree, or resiling from, the proposed apportionment. I do not propose to do so. From her appearance before me she was clearly, and understandably, very emotional about these proceedings and I think it is, with hindsight, regrettable that those dealing with this matter did not settle the question of apportionment at the same time as agreement with the defendants. I believe it would have been easier to do at that time, which is the usual and preferable practice.

Julian Betts

Registrar, Supreme Court