SECRETARY FOR JUSTICE v. WONG CHAU ON

DCCJ 1731/2013

[2024] HKDC 1332

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1731 OF 2013

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BETWEEN

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ASSESSMENT OF DAMAGES

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Introduction

1.  This is an assessment of damages of property damage caused to government property.

2.  The Plaintiff commenced the present proceedings for and on behalf of the Highways Department (the “Department”) against the Defendant by issuing a Writ of Summons with a Statement of Claim on 14 May 2013.

3.  In default of Notice of Intention to Defend, interlocutory judgment is entered against the Defendant on 10 October 2013 with damages to be assessed and costs.

4.  On 30 March 2023, the Plaintiff issued a Notice of Appointment of Assessment of Damages. Directions were given as to filing of evidence and to trial in the absence of the Defendant. Despite such directions, D has neither filed any documents or witness statements nor participated in the proceedings in any way.

5.  At the hearing of assessment of damages, the Defendant was absent. Mr Li, Government Counsel appearing for the Plaintiff has confirmed that the Order dated 16 January 2024 setting out the date and time of the hearing, the hearing bundle, and the Plaintiff’s written submissions and list of authorities had all been served on the Defendant.

6. I am satisfied that, the Defendant had been properly notified of the hearing. Upon the Plaintiff’s application pursuant to Order 35, rule 1(2) of the Rules of the District Court, Cap 336H, I proceed with the hearing in the absence of the Defendant.

The Plaintiff’s Case

7.  The Plaintiff’s claim is made against the Defendant for the damage of a crash cushion situated near Chainage 13.7, Sha Lek Highway, Shatin (the “Crash Cushion”), as result of a traffic accident on 10 June 2007 (the “Accident”). At the time of the Accident, the Defendant was the owner and the driver of the vehicle bearing registration number MT8098 who collided into the Crash Cushion causing damage. The Crash Cushion is government property.

8.  The Plaintiff claims for the repair costs of the Crash Cushion and the related expenses as its loss and damages. The total sum claimed is HK$ 138,294.40, with (1) HK$ 137,292 being the actual repair costs, and (2) HK$ 1,002.40 being the administration costs.

9.  The Plaintiff called Mr Cheung Chun Ki, an engineer of the Highways Department to give evidence. He adopted his witness statement filed on 20 September 2023 as evidence-in-chief and answered the Court’s questions.

10.  Since July 2022, Mr Cheung has been employed by the Department working as Maintenance Engineer. His main job duties include planning works, supervising the performance of contractors and ensuring the quality of the maintenance works of highway structures at high speed roads in the New Territories.

11.  During the hearing, Mr Cheung explained he was responsible for monitoring the repair works at Sha Lek Highway after the Accident. He acknowledged he did not personally handled the repair works of the Crash Cushion at the material time, however, he had access of the online system of the Department which he used to supervise the repair works carried out. He gave evidence based on the documents of the Department. He gave clear answers to the Court’s questions and referred to the relevant contemporaneous records to corroborate his evidence. I therefore accept his evidence in its entirety.

Repair and related costs

12.  The Plaintiff claims repair costs of HK$ 137,292.

13.  According to Mr Cheung’s evidence, the Department engaged Gammon Construction Limited (the “Contractor”) for maintenance works and the Contractor has completed the repair of the Crash Cushion shortly after the accident. Mr Cheung referred the Court to the photos of the Crash Cushion produced by the Plaintiff which were taken on 20 June 2007 when the repair works were completed.

14.  Mr Cheung also confirmed, upon checking their internal records, that the actual repair costs has been paid to the Contractor. The Plaintiff has produced the report showing the breakdown of costs claimed by the Contractor as evidence.

15.  I have considered the evidence and find that the sum claimed is actually incurred by the Department is a reasonable sum. I allow the sum in full.

Administrative costs

16.  The Plaintiff also claims administrative costs in the sum of HK$ 1,002.40.

17.  Mr Cheung explains that, this head represents costs incurred by the Department to have staff supervise the site works and handle administrative work in connection to the repairs. In that regard, the Plaintiff has produced a breakdown of those staff costs.

18.  Having considered the Plaintiff’s records, I am of the view this head is reasonably incurred and is of a relatively small amount. I would allow it in full.

Interests

19.  Mr Li, Government Counsel appearing for the Plaintiff, asks for both pre-judgment and post-judgment interest on the sum awarded.

20.  At the hearing, I raised the issue of delay by the Plaintiff in pursuing the action. I note that the action was commenced on 14 May 2013 and the interlocutory judgment was entered into 10 October 2013. Since then, the proceedings had been left dormant until 8 March 2023 when the Plaintiff filed a Notice of Intention to Proceed.

21.  Mr Li sought to explain that, the Plaintiff had taken the time to conduct further address searches to issue written demands to the Defendant. He further submits that, there should be some discretion allowed to give reasonable time for the Plaintiff to proceed with the action.

22.  Despite the submissions made on the Plaintiff’s behalf, I do not find it a satisfactory explanation to account for the unjustifiable delay of more than 9 years to proceed with assessment of damages since interlocutory judgment was obtained. I am of the view that interests for the period of inaction, being that from when interlocutory judgment was obtained to when the Plaintiff gave notice of intention to proceed with the action, should not be allowed.

23.  On a broad-brush approach, I would only allow pre-judgment interest from 14 May 2013 to 10 October 2013 and from 8 March 2023 to the date of this judgment. I would also grant post-judgment interest on the sum from the date of this judgment until payment in full. I would not make any deductions to the usual interest rates.

Orders

24.  Accordingly, I award damages in the sum of HK$ 138,294.40 to the Plaintiff.

25.  I also find that, the Plaintiff is entitled to interest on the sum at 1% above the best lending rate of HSBC from 14 May 2013 to 10 October 2013 and from 8 March 2023 to the date of this judgment, and thereafter at judgment rate until payment in full.

26.  Costs should allow the event. I order that the Defendant should pay the Plaintiff’s costs of the assessment. Mr Li asked for those costs to be taxed if not agreed. I so order.