WONG YUK FUNG v. LEE SHU YUNG AND ANOTHER

HCPI 525/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 525 OF 2001

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JUDGMENT

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Background

1. The Plaintiff ["Madam Wong"] is claiming damages in respect of the death of her son ["Chun Hung"] as a result of a traffic accident which took place at about 4.52 a.m. at the Tuen Mun Road Chainage on 12th March, 1999. Chun Hung and his friends had a card game in a store in Yuen Long in the early hours that morning. They then drove to Yau Ma Tei to purchase some fruits. On their return trip, his friend fell asleep whilst driving. The car lost control and Chun Hung suffered fatal head injuries. He was about 20 at the date of his death.

2. The sole issue before me relates to Madam Wong's claim on behalf of Chun Hung's estate for an award in respect of loss of accumulation of wealth under section 20(2)(b)(iii) of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23).

3. Madam Wong came to Hong Kong in about 1979. Her husband left her 10 years ago. Madam Wong has 3 sons. Her 2 elder sons were both unemployed at the date of the accident.

4. Madam Wong contends that Chun Hung had 3 jobs prior to his death :-

(1) As a car mechanic earning $9,000 per month.

(2) As a part time construction worker earning around $5,000 to $6,000 per month.

(3) As a part time worker in a fish stall earning $2,800 per month.

Chun Hung's pre-accident earnings were said to be in the region of $16,800 per month. It is common ground between the parties that Chun Hung contributed $4,500 per month towards the household expenses of the family.

5. Ms. Chih, Counsel for Madam Wong, submits :

(1) on the basis of an alleged 10% notional approach, the award for loss of accumulation of wealth should be around $403,200 [$16,800 x 12 x 20 (multiplier) x 10%].

(2) on the basis of the global award approach, the award should range between $336,000 to $1,080,000.

Evidence adduced on behalf of the Plaintiff

6. Madam Wong gave evidence in support of her claim. I am not impressed by her testimony. She does not know about Chun Hung's gatherings outside the family. She is not clear whether Chun Hung had 3 jobs. She said Chun Hung got up early for about 5 days per week but she does not know where she went to work. She asserted that Chun Hung usually stayed at home and he did not drink nor gamble. The circumstances leading to the fatal accident indicate that Madam Wong might have overstated her case. I do however accept her evidence that Chun Hung gave her moral encouragement in relation to the construction of a house in her home village in Po On County, China. It is probable that Chun Hung would honour his promise with stable employment.

7. Mr. Wan Kwai On ["Mr. Wan"] is the brother in law of Madam Wong. He has been in the construction trade for more than 20 years. He told me that Chun Hung started working for him as an apprentice in August 1998. Chun Hung was paid $500 per day and he worked on average 11 to 12 days per month. In the normal course of events Chun Hung would be "2nd Hand" after one year earning about $600 per day. He would progress to become a "Master" earning $750 per day. I find Mr. Wan to be an honest and truthful witness. I have borne in mind his close relationship with Madam Wong. I do not find force in the submission of Mr. Lam, Counsel for the Defendant, that I should place no weight on his testimony due to the lack of documentary support. Given the rather humble background of Mr. Wan, I do not find the absence of contemporaneous document surprising.

8. There is no dispute between the parties that Chun Hung earned $2,800 per month as a part time worker in the Kam Yau Fish Stall.

9. Madam Wong called Mr. Chau Yung Wun ["Mr. Chau"] to support the earnings of Chun Hung as a car mechanic. Mr. Chau operates the Shing Fung Garage on the Ground floor of No. 7, Yin On Street, To Kua Wan, Kowloon. Mr. Chau said he knew Chun Hung since 1997. Chun Hung started taking vehicles to his garage for repairs in about May/June, 1998. Depending on whether Chun Hung was paid by his customers or not, Mr. Chau would charge Chun Hung $50 per hour for use of his garage. Chun Hung worked about 10 odd days per month but the hours were not regular. Mr. Chau said Chun Hung earned about $9,000 per month. He was cross examined at length in relation to his basis for this assertion. Initially Mr. Chau explained that according to his experience Chun Hung would be earning $400 to $500 per day and Chun Hung was in his garage 3 to 4 days a week. In re-examination, Mr. Chau said it was Chun Hung who told him about his earnings at about $9,000 per month. I have little confidence in the testimony of Mr. Chau. I am not persuaded that he has actual knowledge of the earnings of Chun Hung as a car mechanic. Chun Hung did not have any formal training in this trade. It is unlikely for car owner to entrust him with any major work.

10. In these circumstances, I find the following to be the pre-trial earnings of Chun Hung :

(1) $2,800 as a worker in the fish stall.

(2) $5,750 as an apprentice of Mr. Wan

(3) some but insignificant earnings as a car mechanic.

11. I am reinforced in these conclusions by the following factors :

(1) According to Chun Hung's death certificate dated 3rd September, 1999, his occupation was given as that of a "Construction Worker".

(2) Mr. Wong Kwok Kay ["Mr. Wong"], brother of Madam Wong, furnished a statement to the Police on 16th March, 1999. Mr. Wong told the Police that Chun Hung left schools after Form III. Initially Chun Hung was a construction worker but commenced helping Madam Wong at the fish stall in 1998. According to his knowledge, the monthly income of Chun Hung was $7,000. In a witness statement dated 23rd November, 2001, Mr. Wong sought to correct the address that he gave in the Police statement. He made no attempt to rectify what he said in relation to Chun Hung's earnings. It was only in a subsequent witness statement dated 21st March, 2002 that he explained his lack of knowledge of Chun Hung's earnings. He told this Court that he was emotionally disturbed when he gave the Police statement. I do not accept his explanation. His Police statement was given several days after the accident. He described in vivid terms the family circumstances and the life-style of Chun Hung. He would not have done so in the absence of any knowledge.

Law on loss of accumulation of wealth

12. Guidance can be found in the recent Judgment of the Court of Final Appeal in Lam Pak Chiu v. Tsang Mei Ying [2001] HKC 1. The Court of Final Appeal makes it clear [at 10G] that a pattern of savings by the deceased during his lifetime is not an absolute pre-condition to an award of loss of accumulation of wealth. The Court of Final Appeal reviewed the awards made by judges and masters adopting either a global basis or by the multiplier and multiplicand method. In relation to the former, the Court of Final Appeal did not express any disapproval to the awards made in Ho Pang Lin v. Ho Shui On [1994] 2 HKLR 313; Kwan Lai Kuen v. National Insurance Co. Ltd. [1998] 1 HKC 98 and Wang Chin Ying v. Lam Ping Fung [1993] 3 HKLRD 190. The Court of Final Appeal further states [at 14G] that :

"Finding a multiplier for a loss of accumulation of wealth award would present no greater difficulty than finding a multiplier for a loss of dependency award. But finding a multiplicand for a loss of accumulation of wealth award would be very difficult, to say the least. Except in cases where there is something more to go on than one has in those cases where the court is driven to taking an almost arbitrary percentage of earnings as a multiplicand, judges and masters calculating such awards would be well advised to make global awards. This is not to say that a conventional figure across the board ought to be adopted. Nor is it to say that a figure should be plucked out of the air. Even where the exercise does not lend itself to the precision of a multiplicand as in loss of dependency claims, some process of ratiocination must underlie the global award made. And it is necessary that the judge or master indicate at least in general terms how the award has been assessed in the light of the relevant factors, including expenditure during the retirement years".

13. I am of the view that the authorities do not support the alleged 10% notional approach as contended by Ms. Chih. I reject that submission of Ms. Chih.

14. In Ho Pang Lin v. Ho Shui On [1994] 2 HKLR 313 at 317, Deputy Judge Jones identified 3 situations where a court will have to consider the issue of accumulation of wealth.

"First and most simply, there is the deceased with the obvious saving 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 where 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 utilised, for example on maintaining a young family".

15. The dividing line between Ms. Chih and Mr. Lam is whether Chun Hung's case falls within the 2nd or the 3rd of the 3 categories identified by Deputy Judge Jones. In support of the 2nd category, Mr. Lam pointed out that there is no savings pattern in this case. The evidence before me suggests that Chun Hung had only 1 account with the Hong Kong Bank and there was no movement in this account for the period between 12th March, 1998 and 12th March, 1999. I have also not lost sight of the fact that Chun Hung met his death after a night out with his friends. However I am of the view that on balance this case falls within the 3rd category as identified by Deputy Judge Jones. Of the 3 sons of Madam Wong, Chun Hung was the only one who shouldered responsibility. He held 3 separate jobs. Whilst there might be ups and downs in the construction industry, there is no reason to believe why Chun Hung would not progress and become a master earning a respectable income. I also attach weight on Chun Hung's promise to assist Madam Wong in the house in Po On County. For these reasons, I am of the view that an award for accumulation of wealth would be appropriate in this case.

16. Given the age of Chun Hung, there are too many imponderables for me to realistically adopt the multiplier and multiplicand approach. Bearing in mind the decisions in Ho Pang Lin v. Ho Shui On; Kwan Lai Kuen v. National Insurance Co. Ltd. and Wang Chin Ying v. Lam Ping Fung [above cited], I am of the view that I should make a global award and the appropriate award is the sum of $150,000. Chun Hung's employment prospects and propensity to save are on balance better than the claimants in Kwan Lai Kuen and Wang Chin Ying. For these reasons, I make an award in favour of Madam Wong in the sum of $150,000. I further make an order nisi for costs in Madam Wong's favour.