LIN RUIQING as the Administratrix of the estate of CHEUNG HIN FAI, deceased v. YUNG RUN YEW DANIEL (formerly known as YUNG DING LEUNG DANIEL)

HCPI 988/2017

[2026] HKCFI 614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 988 OF 2017

________________________

________________________

__________________

J U D G M E N T

__________________

1.  This is a fatal accident claim brought by the plaintiff (“Madam Lin”), wife and administratrix of her late husband, Cheung Hin Fai (the “Deceased”). She holds the defendant (“Yung”) responsible for causing the death of the Deceased by battery.

BACKGROUND

2.  The incident (“the Incident”) happened in the small hours of 18 August 2015 inside a public house named “C Union” at Waterloo Road, Ho Man Tin, Kowloon (the “Pub”) when the then 43-year-old Deceased and Yung were both patrons at the Pub. Sometime after 3 am, exchange of verbal and physical conflict broke out between the Deceased and Yung. In the course of that, Yung punched the Deceased at his neck, causing him to fall to the floor unconscious.

3.  Police was summoned, and the Deceased was sent to the hospital. The Deceased was resuscitated but in a coma state. On the following day, the Deceased was diagnosed to be brain dead caused by subarachnoid haemorrhage. He was certified dead subsequently on the same day. The autopsy report dated 17 December 2015 stated that the cause of the death of the Deceased was “acute subarachnoid haemorrhage due to traumatic left vertebral artery injury”. The forensic pathologist report dated 25 July 2016 confirmed that the injury could have been traumatically inflicted by Yung’s punch during the Incident.

4.  The Incident led to the prosecution of Yung for manslaughter (HCCC 83/2016) (the “Criminal Proceedings”). In June 2017, Yung was acquitted after trial by a judge with a jury in the High Court.

5.  The Deceased was survived by Madam Lin, his then 8-year-old son, his then 2-year-old daughter and his mother. Letters of Administration of the estate of the Deceased was granted to Madam Lin on 26 June 2017 (Grant No HCAG009421/2017).

6.  On 18 September 2017, Madam Lin as the administratrix of the Deceased’s estate commenced the present action on behalf of the above family members as the dependants and the estate pursuant to the Fatal Accidents Ordinance, Cap 22 (“FAO”) and the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (“LARCO”) respectively.

7.  Madam Lin was granted legal aid in July 2020 and was legally represented at the trial.

8.  Yung was legally represented, with his pleadings filed by his solicitors. He disputes both liability and quantum. However, he has since January 2023 been acting in person, and largely absent from court hearings.  He was absent from the trial.

9.  Remark about Yung’s address for service made at the end of this judgment aside, this court was satisfied with the service of notice of trial by those acting for Madam Lin. Hence no good reason for refusing her to proceed with proving her case notwithstanding the absence of Yung.

CASE OF MADAM LIN

10.  The pleaded case of Madam Lin is that the Deceased died as a result of battery by, and negligence on the part of, Yung.

11.  The Incident started at about 3:19 am when the Deceased suddenly walked towards Yung and attacked the latter on the back of his head with a dice cup. This caused verbal argument between the two persons. The Deceased turned away but soon afterwards again proceeded towards Yung and pushed the latter. Further argument between the two ensued, and in the course of that, at about 3:20 am, Yung punched the Deceased once on the left side of his head, and the Deceased immediately fell onto the floor unconscious.

12.  Madam Lin contends that Yung was grossly careless, and used unnecessary and excessive force on the Deceased. Hence battery and negligence. According to her re-revised statement of damages filed in February 2024, Madam Lin puts forward a claim for damages in the total sum of about HK$4.75 million.

YUNG’S DEFENCE

13.  Yung’s defence was first filed by him in person in 2019. This was subsequently replaced by that settled by his then counsel, and further amended in February 2021.

14.  According to Yung, the Deceased was with his friend, Mr Tam Pak Ho (“Tam”), already consuming alcohol at the Pub prior to the Incident. At about 2:45 am, they had an argument with Yung, during which both Tam and the Deceased made verbal threats to Yung. Tam then attempted to attack Yung while a staff of the Pub tried to stop and mediate. At about 3:19 am, when Yung was playing darts, the Deceased suddenly attacked him on the back of his head with a dice cup. Yung turned round and confronted the Deceased. The Deceased subsequently pushed him. In the absence of further mediation by the staff of the Pub, and seeing the Deceased grab a glass ashtray, Yung punched the Deceased once, causing the Deceased to fall.

15.  Yung admits that the Deceased’s death was caused by his punch. However, he contends that he so acted in fear of further attack by the Deceased and therefore self-protection. The force applied was no more than reasonably necessary. He also contends that the Deceased took the risk of injury involved in his conduct which he knew or ought to have known (volenti non fit injuria). By so conducting himself at the time, the Deceased acted illegally and was therefore barred from relying on such conduct to launch the claim in this action (ex turpi causa). Further or alternatively, Yung pleads the defence of contributory negligence on the part of the Deceased in causing or contributing to the Incident.

16.  Quantum is denied entirely.

MADAM LIN’S REPLY

17.  In joining issues with the above defence, Madam Lin avers that the argument prior to the Incident did not involve the Deceased, who also did not take side in the argument between Tam and Yung. The pleaded stance of Madam Lin in respect of the alleged verbal threats by the Deceased and Tam prior to the Incident could have been clearer. On the one hand, she admits that whether such verbal threats took place is beyond her knowledge, and therefore made no admission to Yung’s allegation. On the other hand, she denies that such verbal threats took place. What she does admit is that the staff of the Pub tried to mediate and demanded Yung and Tam to cause no disturbance. She also avers that the Deceased also tried to mediate the argument between Tam and Yung, so much so that he tried to bring him away from Yung.

18.  Madam Lin does admit that the Deceased then attacked Yung on the back of his head with a dice cup, causing the latter to turn round to confront the Deceased. She also admits that the Deceased answered Yung by saying “Yes, I hit you, so what?”. Seeing Yung make a complaint to the staff of the Pub, the Deceased walked towards Yung and pushed him. However, Madam Lin denies that the Deceased attempted to fetch a glass ashtray as alleged before Yung decided to hit the Deceased at his neck causing him to fall. According to her, Yung also proceeded to attack Tam.

ISSUES

19.  It was the Deceased who attacked Yung from behind first, and Yung subsequently punched the neck of the Deceased causing the Deceased to fall to the floor. This is the common ground.

20.  The major dispute lies in:

(1)  whether Yung launched his punch towards the Deceased in self-defence as alleged, and for such purpose exerted more than reasonably necessary force in the circumstances;

(2)  the defence of volenti non fit injuria;

(3)  the defence of ex turpa causa;

(4)  the defence of contributory negligence; and

(5)  the quantum.

EVIDENCE

21.  Obviously, Madam Lin does not possess personal knowledge about the Incident. Her admissions and contentions are based on the information obtained from the documentary evidence, including that arising out of the police investigation and the Criminal Proceedings after the Incident.

22.  In 2022, the master directed that the plans, sketches and statements prepared by the Police, the photographs taken and the CCTV recording obtained by the Police in relation to the Incident are agreed and shall be admitted into evidence at the trial without their makers being called to testify. The same applies to the reports of the hospital and the autopsy report concerning the Deceased after the Incident.

23.  By order made in March 2023 (after Yung has become acting in person), the master extended the time for the parties to serve and exchange witness statements as to fact. Any party failing to do so would be barred from adducing factual evidence at the trial. Madam Lin and her witnesses have served their witness statements. Yung has not.

24.  Madam Lin testified at the trial. She also called the following witnesses:

(1)  Chan Ngan Wah (“Chan”), a self-employed construction and decoration worker, who tendered evidence of his occupation and income level as reference for assessing the income of the Deceased; and

(2)  Keung Yee Kin (“Keung”), owner of the Pub at the material time, whilst he did not claim to actually witness the occurrence of the Incident.

25.  The principle applied in assessing the credibility and reliability of witnesses is often cited. Essentially the court will assess the inherent plausibility and consistency of a witness’ evidence against the other witnesses’ evidence as well as the undisputed and indisputable evidence: see for instance Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors HCA 1734/2009 (8 April 2014) §§75-82 and Luen Ming Supreme Fabricator Company Limited & Anor v Ng Chi Wah & Anor [2021] HKCFI 1501 §§82-86.

26.  Whilst Yung has failed to come forward to substantiate his contentions pleaded in defence, and the oral evidence tendered by Madam Lin and the witnesses she called were not challenged at the trial, the case of Madam Lin must nevertheless be assessed against the other evidence, including what the CCTV recording of the Incident manages to tell objectively. The CCTV recording is visual but not audio.

27.  Counsel also sought to adduce the evidence, admitted facts and transcripts from the Criminal Proceedings. As hearsay evidence, that is. Section 47 of the Evidence Ordinance, Cap. 8 provides that in civil proceedings, evidence shall not be excluded on the ground that it is hearsay unless objected to by a party against whom the evidence is to be adduced, and the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice. In the circumstances of this case, I see no good reason for preventing Madam Lin from relying on such evidence, subject to weight.

LIABILITY

Tort of battery; negligence

28.  The direct imposition of any unwanted physical contact on another person may constitute the tort of battery. The intention to injure is not essential. See Clerk & Lindsell on Torts (24^th ed) §14-09. In view of Yung’s admission that he did punch the Deceased causing him to fall to the floor unconscious, which eventually caused his death, commission of the act of battery by Yung in the circumstances is prima facie proven.

29.  The same may be said about the cause of claim in negligence. The fact at the material moment was such that the parties stood in sufficient proximity to give rise to a mutual duty of reasonable care in the circumstances then prevailing at the Pub. In my judgment, that cannot realistically be disputed.

30.  Whether or not Yung is liable for the tort of battery and negligence against the Deceased depends on (i) whether Yung’s conduct exceeded what would have been reasonable in the circumstances, and (ii) whether any of the specific defences raised by Yung is established.

The Incident

31.  Considering all the evidence, including the hearsay evidence from the Criminal Proceedings, I find the Incident consisted of the following factual details relevant to the issues in dispute.

32.  Tam arrived at the Pub at about 10 pm on 17 August 2015. By then, the Deceased was already there. They had drinks and played darts. Yung arrived at the Pub after midnight, and therefore the beginning of 18 August 2015. What started as a darts game among the present parties gradually developed into argument and even verbal threats. At about 3:19 am when Yung was playing darts, the Deceased left his seat, picked up a plastic dice cup and hit Yung at the back of his head. Yung turned around to confront the Deceased. The Deceased turned away but only to return shortly to push Yung once. In the heat of the further confrontation between the two, Yung used his hand to strike the left side of the neck of the Deceased causing the latter to fall to the floor. All these happened within a minute. Yung then proceeded to where Tam was sitting, and hit him with his fist until the two were separated. The party eventually discovered that the Deceased was lying unconscious on the floor.

The Criminal Proceedings

33.  As mentioned, Yung was prosecuted for manslaughter of the Deceased. In fact, he was prosecuted at the same time for the assault of Tam in the circumstances mentioned above.

34.  In defending the Criminal Proceedings, Yung also alleged self-defence as he does in the present case. As explained by the learned trial judge to the jury, this was raised as defence to the alleged unlawfulness of his killing of the Deceased, and this was the burden of the prosecution in those proceedings to prove beyond reasonable doubt that Yung made his punch without regard to the obvious risk of injury to the Deceased as well as in excess of necessary and reasonable force.

35.  The summing up by the learned trial judge of the evidence and submissions of the two sides of the Criminal Proceedings, with respect, was precise and comprehensive. At the end, the jury found Yung not guilty of manslaughter of the Deceased, and the learned trial judge acquitted him of the charge. Upon his own guilty plea, Yung was convicted of common assault of Tam, which led to his 4-month prison sentence.

36.  The reason why the jury returned a not guilty verdict in respect of the charge of manslaughter is of course unknown. But this is irrelevant for the present purpose. Madam Lin as the plaintiff has the burden of proving liability on the balance of probabilities on the basis of her pleaded causes and contentions. It is this court’s independent assessment of the evidence and finding by applying the same standard of proof. The acquittal of Yung of the specific charge on the basis of the criminal standard of proof provides or suggests no answer to the issues raised by the contentions of the parties in respect of liability in the present case.

Self-defence

37.  In Ashley v Chief Constable of Sussex Police [2008] 1 AC 962 §§16-20, the House of Lords emphasised the difference of self-defence in civil and criminal proceedings. A defendant may be entitled to be acquitted from any charge of assault, manslaughter or murder because of such defence. However, that does not bar any battery and assault claim brought in front of the civil court.

38.  The general criteria for a successful plea of self-defence in civil proceedings is based on the necessity to take action in response to an attack or imminent attack. This must be judged on the facts as the defendant honestly believed them to be, whether or not he was mistaken, but, if he made a mistake of fact, he can rely on that fact only if the mistake was a reasonable one for him to have made. See Ashley (above).

39.  Insofar as the evidence given in the Criminal Proceedings is concerned, the version of Yung was that apart from the verbal confrontation, the Deceased seemed to turn away after hitting the back of his head with the plastic dice cup, but was seen seeking to lay his hand on a glass ashtray on the table. As mentioned, Yung pleaded so in the present case. This caused him to fear another attack. Yung then struck the neck of the Deceased.

40.  Putting aside his absence from the trial to actually testify to such version of the Incident, Yung’s version is not really corroborated by this court’s view of the CCTV recording. The recording shows the Incident as found and illustrated by this court above. Apart from pushing Yung once in the midst of verbal argument, the circumstances do not give the impression of any further imminent act of the Deceased which would have called for reaction by force from Yung intuitively to defend himself. If anything, that Yung proceeded to assault Tam who was then further away from the spot, immediately after striking the Deceased, tends to corroborate the real nature of such course of conduct of Yung at the time. Be it retaliating or pre-empting, the act of striking the Deceased at his neck, I find, was an initiative rather than self-defence.

41.  Once the nature of the conduct of Yung being self-defence at the material time is ruled out, the sub-issue of necessity or reasonableness of the force applied in so conducting does not arise.

Volenti non fit injuria

42.  Generally speaking, the defence of volenti non fit injuria consists of these elements: (i) agreement by the plaintiff to absolve the defendant from legal responsibility for his conduct; (ii) this agreement must be voluntary, not due to compulsion by the defendant or external circumstances; and (iii) the plaintiff should have full knowledge of the nature and extent of the risk it is alleged that he has assumed: see Clerk & Lindsell on Torts (24^th ed) §3-47.

43.  In my judgment, it is unrealistic to consider that the Deceased, by putting himself among those present at the Pub and interacting with them in darts game and drinks at the time, voluntarily assumed the risk of physical violence, let alone fatally, with expectation of no legal responsibility on the part of the assailant.

44.  The circumstances at the time must be viewed as a whole. They started with the consumption of alcohol. As mentioned, evidence shows that Tam arrived at the Pub at about 10 pm on 17 August 2015. By then, the Deceased was already there. Yung arrived after midnight and therefore the beginning of 18 August 2015. According to Keung, the Deceased and Tam had by then consumed the half bottle of whisky kept by the Deceased at the Pub and proceeded to finish half of another bottle. As mentioned, the Incident took place another 3 hours later. The timespan of nearly 5 hours of presence of the Deceased drinking at the Pub and the demeanour of the parties discernible from the CCTV recording immediately prior to the Incident, in my judgment, fairly give the impression that the Deceased was less than completely sober or controlled at the time. The testimony of Keung that he had never seen the Deceased and Tam leaving the Pub drunk previously and that both of them were sober by the time of arrival of Yung on the day must be scrutinised in such light. The Deceased was in such a state at that point of time when he would walk up to suddenly strike the back of the head of Yung with the dice cup.

45.  Speaking in terms of assumption of risk in a setting in these circumstances, one should probably consider that all the parties involved are taken to have reasonably contemplated, and thus assuming, the risk of encountering misdemeanour brought about by compromised soberness. However, this does not absolve a person of legal responsibility for misdemeanour in the form of actual physical violence. Nor does this absolve a victim of such violence who reacted by physical violence from legal responsibility unless in necessary and reasonable self-defence. On the basis of the above findings, Yung, I also find, cannot avail himself of the defence of volenti non fit injuria in respect of his attack on the Deceased in the circumstances.

Ex Turpi Causa

46.  A plaintiff cannot have a cause of action based on his own wrongdoing. However, not all wrongful conduct will affect the ability to obtain remedy. There has to be a sufficient connection between the criminality of the claimant’s conduct and the tort claim. See Clerk & Lindsell on Torts (24^th ed) §3-02.

47.  The Court of Appeal in Chung Man Yau & Anor v Sihon Co Ltd [1997] 3 HKC 197 at 204G explained that the following circumstances should be considered when ex turpi causa is pleaded: (i) the nature of illegality complained of; (ii) the moral and criminal culpability; (iii) the plaintiff’s conduct; and (iv) any relevant legislation. The court should also consider whether it would offend the notions of justice held by right thinking people, should the court allow a plaintiff to recover for such illegality, or whether it would be more offensive if such remedy is refused.

48.  The question is whether a plaintiff should be precluded from recovering damages because of his illegal and criminal conduct. This is when the plaintiff’s claim was so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct: see Ng Ching Ying v Lee Siu Yeung Danny & Anor [2002] 1 HKC 154 at 158H. It is not sufficient if the criminal activity merely gave rise to the opportunity for the tortious conduct of the defendant: see Delaney v Pickett [2011] EWCA Civ 1532 (citing Vellino v Chief Constable of the Greater Manchester Police [2001] EWCA Civ 1249 §70).

49.  In the present case, the Deceased hit the back of Yung’s head with the plastic dice cup in the first place and subsequently pushed Yung once. Not much may be argued as to whether or not such conduct of the Deceased was illegal or criminal in nature. They were prima facie against the law. Yung reacted by striking the neck of the Deceased. Should the Deceased be deprived of his right to claim for injury or Madam Lin be deprived of her right to claim for the resultant death of the Deceased so caused by Yung? In my judgment, the answer is in the negative.

50.  Where, as found above, self-defence by Yung and voluntary assumption of risk by the Deceased of being injured or killed in the circumstances of the case are ruled out, the requisite connection between the present claim for the Deceased’s death becomes less closely or inextricably bound up with his own illegal conduct. Allowing the claim would not be tantamount to condoning such conduct of the Deceased. Put differently, the Deceased’s assault on Yung might have given rise to the situation resulting in Yung’s subsequent attack on him. However, a reasonable person would not be expected to react the way Yung did, which caused the Deceased’s death illegitimately. Allowing the present claim would not offend the notion of justice or ordinary right-thinking citizen more than barring the claim would in the circumstances.

51.  The defence of ex turpi causa fails.

Contributory negligence

52.  In the recent case of Chan Hui May Kiu v Ching Wing Fat & Anor HCPI 1394/2016 (23 December 2025), this court explained (at §§113-116) that in a claim for personal injuries caused by intentional tort such as personal violence, common law generally does not recognise contributory negligence on the part of the victim of personal violence as a valid defence: see Co-Operative Group (CWS) Ltd v Pritchard [2011] EWCA Civ 329 §§61-63. This court sees the significance of upholding the principle in a civilised and law abiding society.

53.  The Deceased’s attack on Yung was prima facie illegal and probably provocative. However, the circumstances, I find, were not such that Yung was unable to step back or, if so desired, to seek help. He chose to resort to violence in return. In the absence of legitimate self-defence, the intentional tort of Yung by hitting back cannot be condoned. Nor is it legitimate to blame the Deceased for not taking reasonable care of his own safety in the circumstances.

Conclusion

54.  All the evidence and circumstances considered, I find that none of Yung’s specific defences stands. I find that Madam Lin has proved the claim on the balance of probabilities.

QUANTUM

55.  According to the re-revised statement of damages filed in February 2024, the pleaded amount of claim is HK$4,751,820.93 with interest.

FAO claim

56.  Section 3 of FAO provides that:

“If death is caused to any person (the deceased) by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the deceased to maintain an action and recover damages in respect thereof, then subject to section 4(2) an action for damages may be brought for the benefit of the dependants of the deceased against the person who would have been liable in damages to the deceased in respect of that wrongful act, neglect or default.”

57.  The court in Tsang Mei Ying & Anor v Lam Pak Chiu & Anor [1999] 3 HKC 59 explained (at 60) the basis of loss of dependency:

“The starting point is to calculate the value of the dependency as at the date of death, usually as a percentage of the income of the deceased. It is then revised in the light of the income which he would have received at the date of trial had he survived. The best means of calculating the dependency is to set out item by item where possible, the value annually (or monthly) of the payments made for the benefit of the family as a whole subject to any deduction to represent the benefit to the deceased. It is a check on the reasonableness of such figures to compare the total with the net annual or monthly income of the deceased at the date of his death. The calculations are easier to make where the evidence clearly shows the deceased making a regular payment to his wife for running the family and the home, and also paying for certain fixed items e.g. rent. The reasonableness and the accuracy of such calculations often depend upon hard evidence, in the form of records, and oral evidence e.g. from the widow. Sometimes the picture can be more complex such as where the wife earns and contributes to the household, unless there is clear evidence which allows that to be treated in isolation so as to determine real dependency. Many items of dependency are common to the family whether there are children or not, and, if there are, when they leave home and the picture of dependency in other respects, changes. The common items remain part of the dependency picture. Examples of these are rent, utilities (though these may vary according to exceptional use) and other fixed payments. Moreover as some dependants cease to be such, the dependency of those remaining in the household often increases. The modern practice is to deduct a percentage from the net income of the deceased to represent what he would have spent on himself. These percentages tend to be used ‘unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts’ (per O’Connor L.J. in Harris v Empress Motors Ltd [1984] 1 WLR 212 (at p.216-217).)”

The Deceased and the dependants

58.  The Deceased was born on 11 February 1972 and was 43 years old at the time of his death. The Deceased and Madam Lin were married in Hong Kong in October 2006. Their son (“the Son”) was born on 18 March 2007. Madam Lin and the Son obtained their residence right in Hong Kong in 2010. The daughter of the Deceased and Madam Lin (“the Daughter”) was born in Hong Kong on 18 December 2012. At the time of the Deceased’s death, the Son and the Daughter were respectively 8 and 2 years old.

59.  Prior to the Incident, the Deceased’s family resided at a public rented housing unit. So did his mother (“the Mother”) who was born in or about 1938 and hence 77 years old at the time of the Incident. The Mother moved out of the family household, according to Madam Lin in court, about a year after the passing of the Deceased.

The Deceased’s income

60.  Prior to the Incident, the Deceased allegedly had several jobs at the same time: as full-time labourer under the employ of the Universal Engineering Co (“Universal”), as part-time worker at a pub or bar in Kwun Tong and as casual steel frame making contractor.

61.  According to Madam Lin, the Deceased had been engaged in full time employment as a labourer with Universal since 2011. This is supported by the Deceased’s employment contract dated 29 August 2011. Madam Lin testified as to the income of the Deceased from this job in February and March as well as August 2015. Meanwhile, the income of the Deceased for the year ending 31 March 2015 is evidenced by his employer’s return of remuneration filed with the Inland Revenue Department. According to this return, the total wages and bonus of the Deceased for the period was HK$145,750 and HK$25,625 respectively. His average monthly income from Universal by then was therefore HK$(145,750 + 25,625)/12 = HK$14,281.25. On behalf of Madam Lin, counsel proposes to adopt this as the average monthly income of the Deceased from Universal.

62.  Regarding the part-time job of the Deceased at a pub or bar, Madam Lin managed to tell that it was in Kwun Tong, and the Deceased was paid an hourly wage of HK$60. The Deceased is said to have worked for about 5 hours each in 4 to 5 evenings per week. The Deceased thus earned HK$5,000 to HK$6,000 (or average HK$5,500) in cash from such job per month. There is no documentary evidence.

63.  According to Madam Lin, the Deceased also accepted steel frame making on a sub-contract basis. He made such frames about 3 to 4 times per month, earning at the rate of HK$700 per frame or HK$4,000 to HK$4,500 (or average HK$4,250) per month. She witnessed the Deceased did such work at home. There is no documentary evidence. She called Chan as a witness, who confirmed that he carried on such steel frame making subcontracting work for building and decoration works, from which he charged HK$700-800 per frame. Where he outsourced such work to other contractors, he would pay them a lower per piece rate (ie earning the price difference). Chan did not claim any association with the Deceased insofar as such steel frame making contracting work is concerned. Whilst that may not therefore prove the income of the Deceased from such line of work, there is no compelling reason to question the existence of such job and the likely income from such job as Chan managed to obtain in the market.

64.  As such, I accept the case of Madam Lin that the Deceased’s total average monthly income before his death was HK$(14,281.25 + 5,500 + 4,250) = HK$24,031.25 (or annual amount of HK$288,375).

65.  Madam Lin added that she had occasionally worked part-time at Chinese restaurant earning HK$7,000-8,000 per month, but that stopped due to the COVID pandemic in 2020. I accept counsel’s submission that this should not affect the big picture of the Deceased being essentially the sole breadwinner of the family prior to his death. The family has been depending on comprehensive social welfare assistance by the time of the trial.

Pre-trial loss of dependency

66.  According to Madam Lin, the regular family outgoings at the time of the Incident were as follows:

Expenses	Annual Amount (HK$)
Water	1,800.00
Electricity	6,600.00
Gas	3,900.00
Phone	3,360.00
School Activities	3,000.00
Books and stationery	2,500.00
Travelling Expenses	24,000.00
School Uniform	5,000.00
Lunch Fee for Children	12,000.00
Tutorial Fees	36,000.00
Food/clothing/miscellaneous Family Expenditure	78,000.00
Medical fees	2,000.00
Family Trip	3,000.00
Red Packets (Birthday)	600.00
Red Packets (Chinese New Year)	600.00
Tomb-sweeping	2,600.00
Hong Kong Insurance - Spouse	8,004.00
Hong Kong Insurance - Children	4,056.00
Mainland Insurance	5,060.00
Total:	202,080.00

67.  On average, the monthly outgoings were about HK$(202,080/12) = HK$16,840 per month. Indeed, according to Madam Lin, the Deceased would give her about HK$16,000 per month, which enabled her to manage that. On top of that, according to Madam Lin, the Deceased paid rent directly. That was HK$4,067 per month (or HK$48,804/year). Further, the Deceased also gave about HK$2,000 per month to the Mother.

68.  The Deceased had his own spending on habits such as going to pub and gambling. According to Madam Lin, the Deceased spent about HK$1,000-1,500 (or average HK$1,250) on gambling each month. According to Keung, the Deceased had been a regular customer at the Pub since its commencement of business at the end of 2014. The Deceased would visit the Pub about once a week, spending about 4 to 5 hours each and about HK$3,000 per month. This tallies with the evidence of Madam Lin that the Deceased would visit the pub with friends once a week after work. He wanted people to give him face, and therefore would pay for consumption at the pub amounting to about HK$700 each time. Madam Lin added that if the Deceased had meals outside home, he would incur further personal expenses of about HK$1,200 per month. All these would add up to a monthly sum of HK$(1,250 + 3,000 + 1,200) = HK$5,450 (or annual sum of HK$65,400).

69.  According to Madam Lin, the Deceased also made the following gratuitous payments for occasional and festive gifts to her, the Mother and his in-laws.

Item of Expenses	Annual Amount (HK$)
Cash to Mother (Birthday)	500.00
Cash to Mother (Chinese new year)	1,500.00
Cash to Madam Lin’s Parents (Birthday)	1,750.00
Cash to Madam Lin’s Parents (Chinese new year)	1,750.00
Gifts for Madam Lin (Anniversary)	2,500.00
Gifts for Madam Lin (Birthday)	2,500.00
Gifts for Madam Lin (Mother’s Day)	2,500.00
Gifts for Madam Lin (New Year)	2,500.00

70.  The available bank statements of the Deceased as of the time of his death shows that he did not have any real savings after spending on himself and the family. This is not surprising. In fact, the average monthly income of the Deceased as discussed above would have fallen short of meeting both the family expenses and his personal expenses in the total sum of HK$(16,840 + 4,067 + 2,000 + 5,450) = HK$28,357. That is yet to take into account the occasional and festive gifts.

71.  In view of the average monthly income of HK$24,031.25 contended for the purpose of calculating dependency, a realistic view of the matter is necessary. This requires prioritising the items, putting the expenses such as those on occasional and festive gifts to the family and relatives into the category depending on spare cash.

72.  It is pleaded and submitted on behalf of Madam Lin that 25% of the income of the Deceased would be spent by himself, allowing the balance of 75% to be shared by the other 4 members of the family. On the one hand, the Deceased’s share of the family expenses and his own personal expenses, as mentioned above, might amount to such portion of his income. On the other hand, on the basis, also as mentioned above, that his income might not manage to meet the ends as projected by Madam Lin, one may expect that the Deceased, as a responsible family man and father as she described, would probably have allowed the welfare of his family, particularly his children, to take precedence over his own spending. That said, any attempt for that reason to reduce the personal share of the Deceased’s income as pleaded would disturb the base figure for the assessment of the loss of dependency, resulting in the total dependency to exceed the pleaded claim. That equally is undesirable, if not wrong in principle, and unfair to Yung who was absent from the trial. All things considered, I am prepared in the circumstances to proceed on the basis as pleaded in this respect.

73.  Common family expenses would be rightly assumed to be shared equally by all the members of the household (the Deceased included). However, specific expenses could only be peculiar to particular family members. Madam Lin’s evidence mentioned above indeed suggests that. Effectively the respective dependencies could not be equal. Evidence contrary to assumed circumstances suggested by counsel prevails: see Tsang Mei Ying (above).

74.  On this basis, the rent paid by the Deceased direct and the family expenses managed by Madam Lin as tabulated above are categorised as follows:

(1)  Common family expenses: rent (HK$4,067/month or 48,804/year), water (HK$1,800/year), electricity (HK$6,600/year), gas (HK$3,900/year), telephone (HK$3,360/year), miscellaneous (HK$78,000/year), medical fees (HK$2,000/year), family trip (HK$3,000/year), tomb sweeping and travelling (HK$2,600/year) , ie total HK$150,064;

(2)  Expenses on the 2 children: school activities (HK$3,000/year), books and stationery (HK$2,500/year), travelling expenses (HK$24,000/year), school uniform (HK$5,000/year), lunch fee (HK$12,000/year), tutorial fees (HK$36,000/year), red packets (HK$1,200/year), ie total HK$83,700;

(3)  Expenses on Madam Lin: insurance premium (Hong Kong) (HK$8,004/year);

(4)  Further expenses on the Son: insurance premium (Hong Kong and Mainland) (HK$9,116/year);

(5)  Expenses on the Mother: HK$24,000/year.

75.  The above regular expenses would come to a total annual sum of HK$274,884 which, though manageable by the Deceased’s income as discussed above, would have left much less for his own personal spending than that suggested by Madam Lin.

76.  At the time of the Deceased’s death, the respective annual shares of the family members of such expenses were as follows:

(1)  Madam Lin: HK$(150,064/5) + HK$8,004 = HK$38,016.80

(2)  The Son: HK$(150,064/5) + HK$(83,700/2) + HK$9,116 = HK$80,978.80

(3)  The Daughter: HK$(150,064/5) + HK$(83,700/2) = HK$71,862.80

(4)  The Mother: HK$(150,064/5) + HK$24,000 = HK$54,012.80

77.  Of their total dependency (HK$38,016.80 + 80,978.80 + 71,862.80 + 54,012.80) = HK$244,871.20, the above 4 members’ respective share would be:

(1)  Madam Lin: 38,016.80/244,871.20 x 100% = 15.53%

(2)  The Son: 80,978.80/244,871.20 x 100% = 33.07%

(3)  The Daughter: 71,862.80/244,871.20 x 100% = 29.35%

(4)  The Mother: 54,012.80/244,871.20 x 100% = 22.06%

78.  On the 75% of the Deceased’s annual income of HK$288,375 (ie HK$288,375 x 75% = HK$216,281.25), their respective annual dependencies on the Deceased were:

(1)  Madam Lin: HK$216,281.25 x 15.53% = HK$33,588.48

(2)  The Son: HK$216,281.25 x 33.07% = HK$71,524.21

(3)  The Daughter: HK$216,281.25 x 29.35% = HK$63,478.55

(4)  The Mother: HK$216,281.25 x 22.06% = HK$47,711.64

79.  At the time of the trial, the Son and the Daughter were respectively 18 and 12 years old. The former was about to finish the last year of the hairstyling course at the Vocational Training School while the latter was promoted to secondary Form 2. Apart from minor health issues, the Mother was alive and well. As such, it is not unreasonable to assume that the respective dependency of the family members on the Deceased would have remained at least the same until the trial but for his premature death.

80.  No proposition is made in respect of variations in the Deceased’s income in the following years but for his premature death in 2015. No assumption otherwise is made, however tempted. This is particularly true, in view of the extent of the likely counter-balancing impact of the subsequent years of COVID pandemic on the Deceased’s income level. In view of the state of the evidence in respect of the Deceased’s income level, this court could at best proceed on the basis that these considerations applicable to the roughly two parts of the last decade would have offset each other. The pre-trial loss of dependency would then be as follows:

(1)  Madam Lin: HK$33,588.48 x 10 years = say HK$335,885

(2)  The Son: HK$71,524.21 x 10 years = say HK$715,242

(3)  The Daughter: HK$63,478.55 x 10 years = say HK$634,786

(4)  The Mother: HK$47,711.64 x 10 years = say HK$477,116

81.  The total pre-trial loss of dependency is HK$(335,885 + 715,242 + 634,786 + 477,116) = HK$2,163,029.

Post-trial loss of dependency

82.  The Hong Kong Life Tables 2016-2046 published by the Census and Statistics Department (“the Life Tables”) and the Personal Injury Tables Hong Kong 2019 (“Chan Tables”) are referred to.

83.  The Deceased would have been 53 years old at the time of the trial, and there would have been 12 more years before his natural retirement at the age of 65. The appropriate discount rate for period exceeding 10 years would be 2.5%: see Chan Pak Ting v Chan Chi Kuen & Anor (No 2) [2013] 2 HKC 365 at §139. The multiplier for the calculation of loss of dependency of the dependants would be 10.39: see Table 28 of the Chan Table. At the age of 51 years old on the date of trial, Madam Lin is expected to live for another 41.7 years until 88.7 years old and thus exceeding the Deceased’s life expectancy: see the Life Tables. The multiplier for her loss of dependency would be 10.39.

84.  The Son was 18 years old on the date of trial. Madam Lin testified that the Son has been studying a hairdressing course with the Vocational Training Council and due to graduate in September 2026. The nature of the education and training undertaken by the Son gives the impression that he planned to enter the job market after graduating. The pleaded expectation that the Son would have proceeded further to complete tertiary education at the age of 22 lacks factual basis. In other words, the Son is assumed to have achieved financial independence at least to the extent of footing his share of the family expenses and personal expenses soon after graduation from his current curriculum. That would at most be 1 more year.

85.  The Daughter was 12 years old in her Form 2 on the date of the trial. According to Madam Lin in court, it was a Band-2 school, and the Daughter ranked top 10 in her class in terms of academic performance. The assumption that she would continue to tertiary education, and the Deceased would have provided his support for that, should stand. She would be expected to finish her tertiary education by the age of 22. The rate of return is 2.5%. The appropriate multiplier for the loss of dependency of the Daughter would be 8.86: see Table 28 of the Chan Tables.

86.  According to Madam Lin in court, the Mother moved out of the household to another public housing unit, but within walking distance from their home, 1 year after the passing of the Deceased. By that, the Mother ceased to be a member of the family household. It is unclear if this happened due to or irrespective of the premature death of the Deceased. In any event, the Mother was 78 years old when she moved out, and the evidence suggests that she did not support herself. Therefore, whether or not she might have moved out of the family residence even if the Deceased had been alive, I am not inclined to assume that she would have depended on the Deceased less than before, particularly when she continued to grow old. There would be medical needs and, as mentioned, the Deceased would also find ways such as gifts to benefit the Mother. In other words, her moving out of the family household, I assume, would not disturb her extent of dependency on the Deceased.

87.  In accordance with Table 13 of the Life Tables, female aged 83 would continue to live for another 10.64 years until the age of 93.64. The Mother was 87 years old at the time of the trial. The rate of return would be 1% given the difference is less than 10 years: see Chan Pak Ting (above) at §139. The multiplier for the loss of dependency of the Mother would be 6.76: see Table 28 of the Chan Tables.

88.  In other words, I accept counsel’s submission on the above applicable multipliers. I differ in the case of the Son, which for the reason discussed above should in my judgment attract a multiplier of 1.

89.  Again, for assessing the post-trial loss of dependency, no proposition is made in respect of the likely current income level or its prospective variations. Thus, the calculation of the post-trial loss of dependency is as follows:

(1)  Madam Lin: HK$ HK$33,588.48 x 10.39 = say HK$348,984

(2)  The Son: say HK$71,524 x 1 = HK$71,524

(3)  The Daughter: HK$63,478.55 x 8.86 = say HK$562,420

(4)  The Mother: HK$47,711.64 x 6.76 = say HK$322,531

90.  The total post-trial loss of dependency is: HK$(348,984 + 71,524 + 562,420 + 322,531) = HK$1,305,459.

Bereavement

91.  The claim for damages for bereavement in the sum of HK$242,500 pursuant to section 4 of the FAO is not disputed on pleading.

Funeral Expenses

92.  HK$70,000 is claimed for funeral expenses while the receipts suggest a sum of about HK$66,000. I allow such proven sum.

LARCO Claim

Loss of Accumulation of Wealth

93.  Section 20(2)(b) of LARCO provides:

“(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person—

...

(b) shall, where the death of that person has been caused by the act or omission which gives rise to the cause of action—

(i) be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included;

(ii) not include any damages in respect of loss of ability to render services after his death;

(iii) not include any damages for loss of property, whether income or otherwise, in respect of any period after his death, except in so far as the court is satisfied that, but for the act or omission that gave rise to the cause of action, the deceased would have achieved an accumulation of wealth by the time that he would otherwise have died, in which case damages may be awarded in respect of the loss of that wealth:

Provided that damages awarded under this sub-paragraph shall be subject to such deduction as the court considers it just to make in the circumstances of any particular case on account of the accelerated receipt of that wealth and in order to avoid over-compensation.”

94.  The Court in Ho Pang Lin & Anor (Co-Administrators of the Estate of Wong Hup Yim, deceased) v Ho Shui On & Anor [1994] 3 HKC 294 explained (at 299C-299H):

“I suggest that there are three situations a court will have to consider on the issue of accumulation of wealth. Firstly and most simply, there is the deceased with the obvious savings pattern. This should be applied in quantifying the accumulation and perhaps upgraded for a likely increase, for example, when the future departure of children from the household would increase the disposable income.

The second category is where there is no savings pattern and no indication whatsoever from the lifestyle of the deceased whether or not accumulation was likely. This situation would usually be found when the deceased was a young person whose lifestyle had not yet crystallized into a recognizable pattern. This was precisely the position I addressed in Wai Kang Kwan in declining to make an accumulation award to the estate of a young girl who died at 17. Not only did the evidence fail to disclose a savings pattern, but there was no indication that the deceased either was or was not likely to have accumulated wealth. In those circumstances, an award could only have been speculative.

The third category of situation is that of the deceased without any identifiable savings pattern, but whose habits and lifestyle indicate a probability that he would accumulate wealth. As always, the court must avoid speculation. However, if thrift, frugality, responsibility and perhaps good employment prospects clearly emerge from the evidence then an award should be made even if the contemporary income is fully utilized, for example, on maintaining a young family.”

95.  The Court of Final Appeal in Lam Pak Chiu & Anor v Tsang Mei Ying & Anor (2001) 4 HKCFAR 34 explained (at 39H – J and 48A – F) that:

“Where a person is killed by an act or omission giving rise to a cause of action which survives for the benefit of his estate, the damages recoverable for the benefit of his estate may include an award in respect of loss of accumulation of wealth. Such an award is recoverable if and in so far as the court is satisfied that, but for such fatal act or omission, he would have left an accumulation of wealth by the time when he would otherwise have died. Section 20(2)(b)(iii) of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23, so provides.

…

Thus if the court were to find in any given case that an accumulation of wealth would have been achieved by the notional time of retirement, the realistic possibilities, factoring in probable inflation, would then be as follows:

(i) expenditure during retirement may exceed the income from the accumulation plus any pension and the like received during retirement so as to exhaust the accumulation some time before the notional time of death, thus leaving the deceased dependent upon state, family or other help during his notional final years; or

(ii) post-retirement expenditure may exceed post-retirement receipts but only so as to diminish the accumulation without exhausting it; or

(iii) such receipts may more or less match such expenditure so as to leave the deceased's financial position at the notional time of death much the same as it had been at the notional time of retirement; or

(iv) it may even be that such receipts would exceed such expenditure so as to leave his financial position better at the notional time of death than it had been at the notional time of retirement.

It would be for the court to select from these possibilities the one which it considers the most realistic in the particular circumstances of the case, remembering that the burden lies on the party who asserts.”

96.  In Kan Wai Ling & Anor v Kan Chi Fai [2018] HKCFI 1024, the court explained:

“129. As I stated in Fung Suen Sim v. Liu Chun Pong, it is inappropriate to use a multiplier to assess his notional savings over this period of time. The award under this head of claim is not a lump sum award to represent the loss of a future continuing stream of income, which has to be discounted, on account of accelerated receipt, by the use of a multiplier. The above assessment has to be made in order to assess the total notional accumulation of wealth from the time of death to the time of notional retirement, including any likely growth of these accumulated savings from investment returns. Once this amount has been assessed, the next stage is to determine whether this accumulated wealth would grow, or be depleted, by the time of natural death. If there is a net balance at the time of natural death, this net balance, which is a future loss sustained by the estate of the deceased, must be discounted for accelerated receipt. However, this discount is a discount for the accelerated receipt of a future lump sum loss rather than for the loss of a future continuing stream of income.

130. In Fung Suen Sim v. Liu Chun Pong I had stated:

‘The current practice is to assess multipliers, and discounts for accelerated receipt, on the assumption that prudent investments made of the damages awarded to victims of torts would yield an annual return of 4.5% per annum (see Cookson v. Knowles [1979] AC 556 and Chan Pui Ki (an infant) v. Leung On [1995] 3 HKC 732). Where a court finds that the deceased would, but for the accident, have accumulated wealth from the date of his death to the date of his natural retirement and that he would have invested the wealth he accumulated, then, in order to be consistent with the current practice, it is only right that the court should assume that such investments would yield a similar rate of return of 4.5%. Although I have not attempted to make detailed calculations in this regard, I am probably not much off the mark in assessing the assumed return on savings to have augmented the accumulated fund to about HK$1,300,000.’

…

131. The discount rate was reduced to 2.5% for future losses in excess of 10 years by my decision in Chan Pak Ting v. Chan Chi Kuen (No. 2) [2013] 2 HKLRD 1. In Bibi Bushra and Nabela Qoser, the co-administrators of the estate of Khalid Mehmood, deceased v. Method Building and Engineering Works Ltd (in liquidation) & Ors. [2014] 3 HKLRD 21, I observed that:

‘In Fung Suen Sim, the personal representative and administratrix of the estate of Lung Kai Hon, deceased v. Liu Chun Pong & Anor., HCPI 896/2007, 23 December 2011, I held that the claim for loss of accumulation of wealth, a remnant of the abolished lost years’ claim, was unlikely to yield a very high award, even in cases where the deceased was likely to accumulate substantial savings on account of the fact that he was a high income earner and lived frugally. In that case, I assessed the award for loss of accumulation of wealth based on a rate of return, net of inflation, of 4.5% per annum. If the net rate of return of 2.5% per annum, assessed in Chan Pak Ting v. Chan Chi Kuen & Anor. [2013] 2 HKLRD 1, is taken to make the assessment, the award may be even lower.’ ”

Pre-trial loss

97.  As pleaded, Madam Lin claims loss of accumulation of wealth both before and after trial at the rate of saving of 10% of the Deceased’s income. I doubt that.

98.  As discussed, the evidence shows that the Deceased had a negligible credit balance in his bank account at the time of his death. This is not surprising, when his income from multiple sources would have barely met the ends in providing for the family members and, to any extent available, his own spending. He had no other assets, and the residence was rented public housing. The likelihood of accumulation of wealth would have to hinge upon the sparing of disposable income upon the commencement of financial independence of the children. That would have been yet to happen at the time of the trial. The proposition that the Deceased would have accumulated material wealth by the time of the trial, in my judgment, is unrealistic as a matter of fact.

Post-trial loss

99.  In his circumstances, the Deceased, I find, would not have had any real chance of accumulating wealth until he started to have spare disposable income. This would have happened after the children have become financially independent. The Daughter has just passed her 13^th birthday and in her Form 2 now. Expecting her to graduate from tertiary education in 9 years or at the age of 22, this would bring us to about 2034. By then, the Mother’s life expectancy would have been over as well. However, the Deceased would also have become 62 years old, leaving him with only 3 more years of income earning before retirement.

100.  The extent of accumulation of wealth which the Deceased would have achieved since 62 years old until his retirement may sound like guesswork. The possibility that he would have scaled down work engagement by then as opposed to what he did at the time of his premature death may not be ruled out. Further or alternatively, there would have been the possibility of increase in spending on himself and Madam Lin to the extent afforded by the income spared by the children’s financial independence by then. If one assumes that 40% of the Deceased’s income being spared during those 3 years, this would be HK$24,031.25 x 40% = say HK$9,612.50 per month, or HK$9,162.50 x 12 x 3 = HK$346,050 before his retirement.

101.  In view of the complete lack of evidence of potential or likelihood of specific investment, nothing much may be said about the potential of such accumulated wealth compounding over the years until the Deceased’s natural death. The usual assumed annual return rate of 2.5% mentioned above seems appropriate.

102.  However, the above accumulated wealth would have certainly been subject to depletion during the 19.57 years between the Deceased’s retirement at 65 years old and his natural death at 84.57 years old. Rent and other essential items of household expenses would have continued. With reference to the rent and essential household expenses mentioned above, the Deceased would have needed to spend at least HK$5,000 per month or HK$60,000 per year. Future needs, particularly medical, of himself and Madam Lin could not be under-estimated. The possibility of financial support or subsidy from the children may be there, but such support would have served to ease the parents’ burden than to enable the Deceased to accumulate net wealth in a real sense. After the passing of the Deceased, Madam Lin would probably have had to depend on the children.

103.  In the circumstances, even assuming that the Deceased could have accumulated wealth in the sum mentioned above by the time of his retirement, which would have since further accumulated at an annual rate of return of 2.5%, it would be unrealistic to expect such increment to be able to catch up and to match the rate of the spending on him and Madam Lin over the last 19.57 years of the Deceased’s life. As such, the likelihood of a net positive balance of wealth at the time of his natural death which would have to survive the further discount for accelerated receipt now, in my judgment, is low.

104.  All things considered realistically, I decline to make an award for this item of claim in the circumstances of this case.

Special damages

105.  The sum of HK$1,540 claimed for the medical expenses of the Deceased and travelling expenses of Madam Lin to the hospital is admittedly not evidenced by receipts, but I find the same was incurred and not unreasonable in the circumstances.

Summary

106.  The quantum is assessed as follows:

Item	Amount (HK$)
Pre-trial Loss of dependency
Madam Lin	335,885
The Mother	477,116
The Son	715,242
The Daughter	634,786
Post-trial Loss of dependency
Madam Lin	348,984
The Mother	322,531
The Son	71,524
The Daughter	562,420
Bereavement	242,500
Funeral expenses	66,000
Pre-trial loss of accumulation of wealth	Nil
Post-trial loss of accumulation of wealth	Nil
Special damages	1,540
Total:	3,778,528

Interest

107.  Interest on damages for bereavement as well as funeral expenses shall run at the judgment rate from the date of service of writ to the date hereof.

108.  Interest on damages for pre-trial loss of dependency and other special damages shall run at half judgment rate from the date of death to the date hereof.

109.  Interest from the date hereof on the judgment sum until payment runs at the judgment rate.

ORDER

110.  Judgment is entered in the above sum as assessed with interest as aforesaid against Yung. As the Daughter is still a minor, her share of the award would have to be paid into court pending disposal.

111.  Following the event, I make a nisi order that Yung do pay Madam Lin her costs of the action, including any costs reserved, to be taxed if not agreed. Her own costs shall be taxed in accordance with legal aid regulations.

112.  However, I expressed during the trial reservation about Madam Lin’s entitlement to costs of the trial as a 3-day hearing. No doubt the trial was scheduled for 3 days. However, noting the history of consistent default of appearance of Yung in previous court hearings, the number of witnesses for Madam Lin, the lack of witness statement and thus oral evidence to be adduced by Yung, and the unlikely event of extensive cross examination in the circumstances, even if Yung attended the trial, this court sees no justification in the circumstances for those acting for Madam Lin to have not arranged all her witnesses to stand by in court on day one of the trial. Had that been done, the evidence at trial would have finished on the same day. Instead, the witnesses were arranged to attend only on day two, but only to report on day two that Keung could not attend for personal circumstances on that day. The course of oral evidence turned out to take less than 2 hours spread over 3 days. I also adjourned closing submission to be supplemented on paper only. Ordering Yung to pay the costs of Madam Lin for a full 3-day hearing in these circumstances, in my judgment, would hardly be fair.

113.  I maintain the above observation. Hence, for taxation purpose, the costs of the trial payable by Yung under the above nisi costs order shall refer to those incurred on the basis of a 1-day trial.

114.  In the absence of application in 14 days from the date hereof to vary, the above nisi costs order shall become absolute without further order.

SERVICE ADDRESS OF YUNG

115.  Before leaving this judgment, I have some observation about the service address provided by Yung. This court noted that upon receipt of the application to set down the case for trial.

116.  Yung used to be represented by Messrs Chan Wong Yip (“CWY”) but filed his notice to act in person on 9 January 2023. Notwithstanding that, the address for service provided by Yung in the notice remained that of CWY. The affirmations of service filed by those acting for the plaintiff since that notice showed that further documents in the present action were served at that address, and CWY invariably acknowledged receipt of them. Despite such service, the defendant has not appeared in subsequent proceedings, so that orders were repeatedly given by the court in his absence.

117.  By allowing its address as that for service on Yung and acknowledging receipt of the documents thereafter, CWY prima facie represented that it had instruction to accept service on behalf of Yung, albeit without further instruction to act for him in this action. Further or alternatively, they had, and continued to have, the means to bring the documents received to the attention of Yung, and that they in fact did so. The fact was none of the documents so served on behalf of Madam Lin had been rejected or returned with explanation.

118.  However, when CWY was alerted to the above situation at the stage of setting down, they seemed to suggest that it had just come to their notice that Yung had not come to collect the documents so far served at their address. They even ventured to seek the court’s direction that they cease allowing their address to continue as that for service on Yung.

119.  In coming to such arrangement with Yung and since then allowing their address to remain on record as that for service on him, it was entirely the professional concern of CWY to possess at all times the contact details of Yung to enable them to perform their part of the arrangement. It fell on CWY to consider whether and, if yes, what ought to be done to ensure that the documents received by them would be brought to Yung’s attention via his contact details. This was what the court would expect regardless of the actual terms of their arrangement. It was therefore the least expected that CWY sought to suggest otherwise and only at that stage.

120.  CWY are not on record solicitors acting for Yung. The agreement by CWY to receive documents on his behalf, be it for a fee or not, is a private arrangement. That however would not afford CWY with locus, like what solicitors on record have under the rules of court to apply to cease to act, to apply to cease such private arrangement. With the arrangement came the incidental rights and liabilities of the parties to it. CWY were not in a position to expect or to ask the court to sanction a course impacting on the rights of Yung or the liabilities of CWY under their own private arrangement. Assuming that this kind of service arrangement, whilst the solicitors are not acting for the party using such service, prevails in professional practice, this court believes that solicitors should bear in mind the incidental duties expected of them as mentioned above.

121.  Regarding service on Yung, neither Madam Lin nor the court has been informed by Yung of change of address for service. Nor had they been informed of any other address of his. For the above reasons, this court directed that the notice of trial as fixed should nevertheless be served on him in the manner as before as well as Yung’s 2 other addresses at Homantin and Kwun Tong known to the court. Though not raised and argued, it would also appear that the circumstances mentioned above may well put the court in a position to consider exercising power to dispense with service pursuant to O65, r9 RHC: see for instance Szeto Kwok Hung Roque v Szeto Kwok Kwong Bernard [2023] 3 HKLRD 702.