AU KAM HAN v. AU KAM MING AND ANOTHER

HCPI 1069/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1069 OF 1998

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JUDGMENT

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1. Mr Leung Pui Hong was a 45 year old successful business man, with a wife and two sons and a daughter, the three children being respectively 20, 18 and 15 years of age. In 1990 with his wife and children, he emigrated to Canada where he bought a home, and the children were being educated either at university or at school in North America. He returned to Hong Kong, and his wife rejoined him in 1994. She commenced to work part-time for him in the family company. Mr Leung's business interests were primarily in real estate in Mainland China and in an electrical and plastics manufacturing business based in Hong Kong. He was murdered on, almost certainly, the 12 July 1996. It may be convenient to consider the appalling events of that day as can be established from his widow and a person who was subsequently arrested, convicted and sentenced for his part in the kidnapping of Mr Leung.

2. On the 12 July the elder son who was in Hong Kong and his mother, Madam Au, arranged to have lunch with their father at the East Ocean Chinese Restaurant at about 1:30 p.m. Madam Au was working in the company office for her husband and left at about 1p.m. to join her son at the restaurant and expecting her husband, who was still working at the company's premises, to join them a little later.

3. By the time they had finished he had not arrived. She tried to contact him on the mobile phone. By 2:30 p.m. he still had not arrived but contact with his office staff disclosed that he had left the office shortly after she had done at about 1 p.m. Their son went to the Treasure Chinese Restaurant which he frequented but he had not arrived there either.

4. At about 3:30 p.m. she received a call from her husband asking her to withdraw $200,000.00 from the Bank. She said she would, but within a few minutes he was on the telephone to her again urging quick action lest the banks close. Although this sum was larger than sums which he had asked her to withdraw on other occasions, she was not suspicious. She withdrew the money from the bank and returned to the company's offices. Sometime after 4 p.m. he telephoned again and told her someone would call to collect the money from her. When she started asking questions he terminated the call. At that stage she did begin to feel suspicious. She telephoned his mobile number but could not establish contact. At about 5:45 p.m, she received another call from him. He told her to put the money in a little bin at a designated address. At this time she suspected a kidnap and, no doubt, a ransom demand. She asked him if "Ah Au was making a fuss". His reply was a sound ' "um" or "mm" before terminating the call. It is likely that some other person was in fact cutting short the telephone conversation.

5. She went to put the money in the place he stated but the presence of vehicles and other persons deterred her. She returned to the company's premises with the money at about 6:30 p.m. At about 7 p.m. her husband phoned her again. His voice was different and she felt that he was in pain. She explained why she had not left the money. She was given instructions to leave the money at a different place. She did as she was told. He had said that he would return soon after the money had been collected. She never heard from him again. She never saw him alive again.

6. Later she went with her son to where she had left the money. It had gone. She contacted Tsuen Wan Police Station. A statement was taken from her the following day. On the 20 July she went to the mortuary at Shatin and identified her husband's body.

7. She was subjected - I use the word advisedly - to cross-examination by Counsel for the First Defendant which I regret to have to say was largely pointless. It consisted of questions to try and ascertain whether during any of her telephone conversations with her husband she could detect any background sound or interference during the calls, whether she could tell if he had made his calls from a landline or a mobile phone, and if the sound "um" or "mm" which she understood to mean "yes" could have meant "no" (I presume "mo (無) or moah (無呀)").

8. When was the body of Mr Leung found and in what circumstances? Between the 13 and 20 July Madam Au had made more statements to the Police who were clearly and necessarily interested in his business, social and family background.

Ho Yan-ching

9. As a result of Police investigation, an 18 year old decoration worker, HO Yan-ching, was arrested on 18 July at Park Excellent Villa, Yaumatei. He was interviewed on that and the following day. On the 19 July he took the Police to the scene where he had been involved in detaining Mr Leung with three others, after the kidnapping outside Mr Leung's offices. The next day Mr Leung's body was found at the scene in a shallow grave. He had been gagged and his wrists bound. He had suffered at least 16 injuries of a chopping nature with a heavy implement. Ho Yan-ching's part in this crime, accepted by the prosecution, included forcing the victim up a hill to a secluded area where he was tied up with wire and gagged with adhesive tape. He was present when the victim was forced to make the telephone calls to his wife. He stayed with one accomplice with the victim when the other two went to collect the ransom money. When they returned he was given an equal share of the ransom ($50,000.00) and then left with one accomplice. Later all four met up and had dinner together between 9 p.m. and 10 p.m. On his account he was not present when Mr Leung was murdered. The only other material detail from his account was that he met his accomplices two days before the kidnapping when the plan was hatched - as far as he was concerned. This must have been on the 10 July 1996.

10. One of his accomplices said that he would be able to recognise the man. Arrangements were made to effect the kidnapping at 1 p.m. on the 12 July. It was stated by one accomplice that after the kidnapping and when the ransom had been paid, the victim would be killed to avoid any problems from his recognising them.

11. Ho Yan-ching pleaded guilty to forcibly detaining Mr Leung with intent to procure a ransom. He was sentenced to imprisonment for five years.

12. What had happened to lead to a group of ruthless men planning to kidnap Mr Leung outside his offices, demand a ransom and be prepared at the outset to kill him so as to prevent there being any chance of his living to identify them?

Leung Kang-yan

13. A man by the name of Leung Kang-yan was pivotal to the plan. He was interviewed first on the 17 July 1996 by the Police. It is not necessary for me to relate how the Police were led to him.

14. Leung Kang-yan knew a woman by the name of Keung Wan-ping to whom he owed in effect, a favour - he owed her money which she had loaned him.

15. In May she had contacted this man and they arranged to meet. She explained that she wanted a man "chopped". The victim of this arrangement was to be the deceased, Mr Leung Pui-hong. The initial fee for expenses was $5,000. A further payment of $70,000 would be made for the service to be rendered. As far as Leung Kang-yan was concerned the added incentive was that his debt would be discharged. At another meeting in May she pointed out Mr Leung Pui-hong at the Treasure Restaurant in Tsuen Wan where he was known to have tea. In June Leung Kang-yan introduced another man Wong Chi Ming to the woman Keung Wan-ping, as the one who would carry out the chopping. The latter two persons exchanged information, no doubt to facilitate contact and develop the scheme.

16. In late June or early in July, Leung Kang-yan took this same accomplice to the Treasure Restaurant, where again Mr Leung Pui-hong was taking tea, and pointed out the victim to the accomplice. At this stage, according to Leung Kang-yan, he dropped out of the picture and the accomplice Wong Chi-ming was left to contact the woman Keung directly. Wong Chi-ming has never been traced. At some stage Leung Kang-yan received his $5,000 from the woman.

17. A little later in the interviewing process, Leung Kang-yan added that the woman wanted the accomplice to "buy him up", which was explained as meaning that she wanted Mr Leung Pui-hong killed. He understood from her that Mr Leung had cheated her boss of money, a "few million dollars". The $70,000 dollars would be paid after Mr Leung had been killed.

18. Although Leung Kang-yan said that he had acted only as middleman and then dropped out of the picture, there is only his word for it. We shall perhaps never know the truth. He pleaded guilty to conspiring to cause grievous bodily harm with intent and was sentenced to a term of 8 years imprisonment. In view of his admissions in his last interview he was admitting involvement in a conspiracy to murder. In the light of the acceptance of his plea to a lesser offence, he may well have benefited from the approach the prosecution felt it had to take in respect of the other two accused.

19. As the chain extends backwards it is now necessary to look at the position of the woman, Keung Wai-ping, her motivation and actions in pursuit of what has so far emerged as a plan to cause grievous bodily harm, at least, to Mr Leung Pui-hong, and possibly to murder him.

Keung Wai-ping (Second Defendant)

20. Keung Wai-ping is a woman in her mid to late 40s. She is a co-director and shareholder in an electrical manufacturing company with a man by the name of Tsang Wai-man. He in turn is a co-director with a man by the name of Au Kam Ming in another electrical manufacturing company. She is, or was, the girl-friend of Au Kam Ming. She too was first interviewed by the Police on the 17 July 1996 before the victim's body had been found. Again it is not necessary to got into the detail of how the Police came to trace and interview her, but the likely sequence and line of investigation is very simple.

21. Initially she said she had only heard the name of Mr Leung Pui-hong but did not know him and had not seen him. Au Kam-ming had stated that Mr Leung had cheated him of a million dollars. Not long afterwards she said that whatever had happened was nothing to do with Au Kam-ming but that it was a friend of Leung Kang-yau who killed Mr Leung - "We only told them to teach Leung Pui-hong a lesson. We didn't tell them to kill him." At that stage Mr Leung's body had not been recovered. It was not of course known for certain that he was dead, although inevitably the worst was feared. Ho Yan-ching had not yet been arrested.

22. Later on she explained that Au Kam-ming and Tsang Wai-man, wanted someone to teach Mr Leung a lesson. As a result she contacted Leung Kang-yan who owed her $20,000. Having paid Leung Kang-yan $5,000 for his expenses she told Au Kam-ming of the arrangement she had secured. She was given a photograph of Mr Leung and was reimbursed the $5,000. She was told of Mr Leung's habit of taking tea at the Treasure Restaurant just after 1 p.m. every day. All this information was given to her with the obvious purpose that she should pass it on to enable the plotters to carry out the scheme. A month or two passed by without news at the end of which Leung Kang-yan introduced her to one of the men he had contacted to carry out the job. On the Friday (12th July) she received a telephone call from him saying that "he had done Leung (Pui-hong) in for me." She contacted Au Kam-ming who told her to be careful. She met the accomplice and he told her Mr Leung had been killed and wanted another $100,000 by Monday. She telephoned Au again whereupon he told her that the killing had nothing to do with him and refused to pay any more money. On the Monday she and Au Kam-ming met at Mongkok MTR Station. Au told her Mrs Leung had been on the phone asking for her husband to be released. Keung maintained that she had never told them to kill Mr Leung.

23. As the interviews progressed she shifted her ground somewhat. The meeting she had with Leung Kang-yan was to obtain repayment of the debt and he asked if he could do something for her. Then she told him she wanted someone "hit". Leung said he would do it for the amount of the debt whereupon she told Au Kam-ming of the offer, and he retorted that it was not worth the price. They concluded that since the debt could not be repaid they might as well tell Leung Kang-yan to go ahead.

24. The plot proceeded on the basis of Keung Wai-ping's contact with Leung. Au Kam-ming gave her a photograph of Mr Leung which she passed on, informing Leung, the 'rascal' as she called him, where Mr Leung was in the habit of "taking tea" (at Treasure Restaurant) just after 1 p.m. each day.

25. When she was asked about events after the telephone call on 12 July (which she later timed at about "shortly after 3 p.m.") she said she met one of the group who carried out the plot at about 10 p.m. that night on the Wah Ming Estate. She was told that Mr Leung had to be killed because he had put up such resistance and because he was in a position to recognise the "four persons who hit him". As a consequence they demanded $100,000. She was given, Mr Leung's identity card and told to burn it. No doubt the reason for this was to convince her that Mr Leung had been killed. She told the interviewing officer that she did in fact burn it.

26. In an interview on the 18 July, after she had read records of interviews of Leung Kang-yan, the following emerged:

She asked him if he could kill someone for her boss; a payment in excess of one hundred thousand dollars was agreed. Au Kam-ming and Tsang Wai-man were agreeable to the arrangement. Following this she was given the photograph which she passed on to Leung Kang-yan.

It was in the course of this interview that she introduced the allegation or suggestion that she told the man she met at 10 p.m. on the 12 July that she had said "not to kill" adding "why did you do that?" He explained that Mr Leung had resisted vigorously, and seen them so they had to kill him. She changed her story about burning the identity card of Mr Leung which she had been given - now she said she put it into a 'lai-see' envelope and send it to her mother's home for temporary safekeeping. Later she told her mother to burn it. She then left for Macau with Au Kam-ming. This was to obtain some record of movement so as to suggest that the $100,000 to be withdrawn from the bank to pay the murderers had been lost on gambling.

27. She pleaded guilty to conspiring to cause grievous bodily harm to Leung Pui-hong and was sentenced to 10 years imprisonment. Nowhere in those interviews is there any mention of any attempt by her to prevent what happened.

28. I now turn to the missing person in this conspiracy which resulted in a murder over 31/2 years ago.

Au Kam-ming (First Defendant)

29. This man ran a company business, Kui Keung Electrical Manufacturing Company Limited from the 19th Floor of the Shield Centre in Chai Wan Kok Street, Tsuen Wan. The victim Mr Leung Pui-hong ran his company from premises on the 20th Floor of the same building. It was from outside this building that Mr Leung was kidnapped on the 12 July 1996.

30. Sometime back in 1989 the two men embarked on a joint business venture in Dongguan, China. The two families became acquainted. Eventually they became involved in a real estate project near Dongguan. A dispute developed between the two men in 1993 which led to a significant deterioration in their relationship by 1996. AU Kam-ming believed he had been cheated by Mr Leung; at least, that was the story he put about. It is quite unnecessary in the context of this case to consider the reasons for or the merits of this conflict.

31. The police interviewed Au Kam-ming on a number of occasions commencing on the 16 July, four days after Mr Leung had disappeared. The first matter explored was his movements for the 12 July. It appeared that he made more than one visit to the Wah Ming Estate, that day, which is where his girlfriend Keung Wai-ping lived. The last was at about, 11 p.m. when he returned to his girlfriend's house from his own home.

32. At one stage, he said he had asked a Mainlander, a cadre in ChangPing who was responsible for factory applications, to talk to Mr Leung about their dispute over the land. He later approached a debt collecting agency, with a view to trying to collect the money from Mr Leung, of which he, Au Kam-ming, said Mr Leung had cheated him. The resort to this can only have been in the form of an illegal effort to extract money from Mr Leung. Au Kam-ming had no judgment in his favour which he could legitimately execute through proper channels. The debt collecting agency was in any event unsuccessful. During the course of the second interview he was asked "Do you know where Leung Pui-long is now?" He answered "No idea". He must have known he was dead of course because, according to his girlfriend, with whom he had stayed the night of the 12 July, she had discussed with him the $100,000.00 demanded, and must have told him of the full implications of her meeting with one of the men directly involved in the murder. He later agreed that he knew all this.

33. He then related it was his girlfriend's idea that Mr Leung should be taught a lesson. He later said that she knew someone who could "kill" him. Although originally the discussion centred around beating him up, this seemed to be extended in their discussions to "getting rid of him". This he explained meant killing him. Keung Wan-ping found someone to "fix" Mr Leung for $100,000.00, with $5,000.00 as expenses and the cancellation of the debt. She asked for a photograph of Mr Leung which he provided and he also informed her where he usually had his lunch.

34. He then went on to say that he changed his mind and told Keung Wan-ping that he did not want Mr Leung "fixed". She told him that the gang had to do it because they were short of money. And there his story virtually ends until he sees Keung Wan-ping on the Friday 12 July when, in the evening, she discloses that Mr Leung had been taken captive, that he had been "done in", and that she had been given his identity card. They then discussed what was to be done about the demand that $100,000.00 be paid by Monday. He told her eventually to have the identity card burnt.

35. Au Kam-ming, the first Defendant, gave evidence in this trial. His defence was essentially that although the plan was originally conceived as a 'beating-up' of Mr Leung by a group unknown to him for payment, he changed his mind at some stage and told Keung Wan-ping that. But he knew that it was no effective way of putting an end to the plan since Keung told him the gang intended to go ahead because they wanted the money. I had the opportunity of seeing him over a period of time. Despite his protestations of regret for what happened and that he had done what he thought was necessary to stop what he and Keung had arranged, it was apparent to me that he was wholly indifferent to the tragedy that resulted, with an air of detachment occasionally broken by a smile at some matter which seemed to amuse him. I found him far less than credible. I have concluded that any effort he made or thought he made, was nothing more than an attempt to distance himself from what had been engineered. If he genuinely wanted to put an end to any threat to Mr Leung's life or limb, he had several options which are so obvious that it is unnecessary for me to state them. I will return to his evidence a little later.

36. On the second day of this trial Mr John Kerr who was appearing on behalf of the second Defendant, Keung Wan-ping, conceded that if the Plaintiff established liability against the first Defendant, then judgment would have to be entered against his client. There was no point he explained, in his client continuing to defend the action at the expense of public funds. This seemed to me to be a wholly responsible and realistic approach. On the opening day of the trial, Mr Kerr had set out those parts of the interview records of Keung Wan-ping which were disputed as an accurate record of what she in fact said. The essence of this case was that she had withdrawn from the conspiracy and matters proceeded beyond her control. It was conceded on her behalf that she had taken no steps to alert anyone to the fact that a plot initiated by her and Au Kam-ming which posed at the very least a risk, or more, of really serious physical harm to Mr Leung.

37. In his conduct of the first Defendant's case Mr Bedford objected initially to the admissibility of the relevant documents from the Police. He had of course initiated this unrealistic stance at an earlier interlocutory hearing when he mounted an unmeritorious appeal against an order for disclosure of police documents made by the Master.

38. He took the point in this trial that an absence of hearsay notices prevented the Plaintiff from adducing any of this evidence. As far as the interview records of the two Defendants in this civil action were concerned they were clearly admissible as such records. Mr Bedford indicated that he did not require the Police Officers who recorded the interviews to attend to give evidence. The convictions of the two Defendants, and of the other two co-accused in the criminal proceedings, were of course admissible by virtue of section 62 of the Evidence Ordinance. The interview records did not require Hearsay Notices.

39. Insofar as Hearsay Notices were required in respect of any of the material, I have no hesitation in saying that they are unnecessary in the circumstances of this case and it would be pointless to insist on a formal, technical step which would, in practice, make no difference to the eventual outcome. The Defendant well knew that he would be faced with such evidence of his and his co-accused's interviews and statements. That was why such a wasteful attempt was made to prevent the Plaintiff having access to them. I do not need to repeat my comments made in the judgment delivered in that earlier hearing. Any attempt to prevent the Plaintiff relying on such evidence was a futile effort to deny justice. Since the Police officers are not required to prove the recording of the statements or interviews - most of the contents are undisputed in any event - the dispute pales into insignificance.

40. Although both Defendants dispute the accuracy of the records in some respects, such disputes do not affect the overall picture disclosed by the investigation into this crime and the additional evidence adduced in this trial. Their challenges are really limited to a complaint that the Police Officers did not record clearly enough that the first Defendant told the second Defendant to cancel the plan and that the second Defendant told Leung Kam-yan and/or, one of the gang of four, to cancel the plan; and that neither Defendant had wanted Mr Leung killed or said anything to that effect.

The Defence

41. Mr Bedford advanced the proposition of the 'novus actus' as breaking the chain of causation. Quite what 'novus actus' he had in mind was difficult to fathom. However the argument, such as it was, was reduced to a contention that since the first Defendant allegedly told the second Defendant to abandon to plan, and the second Defendant allegedly told Leung Kang-yan to abandon the plan, neither of them could incur any liability for what eventually happened. It is not difficult to see the fallacy of this argument.

42. The two of them had set in train a plan whereby at the very least, Mr Leung was to be beaten up; they were prepared to pay some unknown violent criminals to kidnap him and 'teach him a lesson'. They passed on a photograph and identified the place he frequented. They had no idea what might become of him ultimately, assuming they had not specifically instructed that he was to be killed. They knew that the gang of criminals had rejected canceling the plan - if indeed either Defendant seriously attempted to cancel it. Not one single attempt was made to protect Mr Leung against the consequences of what they had originally contrived.

43. He was murdered as a result directly of what they had planned. It defies logic and reason to argue that some "novus actus" had sprung up to relieve them of liability. Mr Leung's death was the direct, and I find, inevitable consequence of their evil plan.

44. Au Kam-ming was a devious, lying witness, a finding which I made clear in the course of Mr Bedford's submissions and to which he took objection. As his client sought unconvincingly to distance himself from the plan made by his girlfriend, which he enthusiastically endorsed, he made some statements which bordered on farce:

"I was told by my partner (Tsang Wai-man) that there was a worry about these people [the gang hired to beat up Mr Leung] - we did not know their backgrounds."

"My partner said he was afraid of these people."

"Keung told us they were bullies."

"I did not know if the people who were to beat up another person, on a contract, would be criminals."

"Had my partner agreed I would have implemented the plan."

"When I knew the plan was to go ahead I told Ah Keung to continue to look for Ah Kang (Leung Kang-yan)."

"I did not expect anything serious to happen."

"It did not occur to me to contact the victim."

"It was just like when we instructed a debt collecting agency. We just paid the expenses."

"It did not occur to me to contact his (Mr Leung's) wife."

The Defence Argument

45. Mr Bedford's arguments on liability went thus :

There is a paucity of provable facts. There is no evidence of kidnapping by the first Defendant. Tortious conspiracy is an economic tort. Trespass to the person requires direct contact between the Defendant and the deceased. Mr Leung died as a result of a second conspiracy. The pathologist was unable to say what the cause of his death was. It is difficult to reach any reliable conclusions on the evidence available. There are people who are yet to be arrested who have to make amends for their wrong doing.

46. Interesting though his comments and suggestions may be in the context of another case or other cases, they are entirely devoid of merit and relevance in this case.

47. The Plaintiff's case is based on trespass to the person. Undoubtedly these Defendants intended, at the very least, that he should suffer really serious harm. Setting aside for the moment whether they wanted him killed, or were quite happy to accept that as a consequence, it was unarguably foreseeable that death could result from an attack on him which intended serious physical injury.

The Chain of Responsibility

48. Au Kam-ming wanted Mr Leung physically harmed to a serious degree. It did not matter to him if he was killed. Whilst I am unable to find positively that he wanted him killed from the outset, I think that possibility did take hold of him, and he was content with such a solution. Careful plans were made to ensure that Mr Leung could be identified and his movements known. Au's activity demonstrated this fully. I do not believe that there was any serious attempt to cancel the 'contract' by him or his girlfriend. If there had been, and with full knowledge that the life of a man was at risk, either or both would have taken steps to warn or protect Mr Leung. I am satisfied on the balance of probabilities that both were as directly responsible for the murder of Mr Leung as if both had in turn, wielded the weapon that caused 16 or so horrendous head and neck injuries. If they had not wanted him dead or, at least subjected to the risk of death, they could easily have prevented his murder. They did nothing. I find them both liable at law for the results of their evil plan. They tried to wash their hands after the event.

49. The other three persons who actually carried out the killing are still at large and so remain unnamed.

DAMAGES

50. At the conclusion of the evidence both Counsel were in agreement that submissions on the various heads of damages could be exchanged and lodged with the Court. This was a sensible idea and I welcomed it in particular, as it gave the Defence the opportunity of putting forward coherent and realistic arguments on paper, earlier oral indications having been given to the effect that the first Defendant's advisers had little if any appreciation of the bases of certain heads of damage. As to the evidence in support of the claim for damages, it came in the testimony of the Plaintiff herself and her son, Daniel Leung, supported by company records and accounts and bank statements.

51. Although I was invited by Counsel for the 1st Defendant to treat these witnesses as "evasive, devious and untruthful" there was no basis for applying such tags to them. I do not propose to go into detail in respect of the Defence suggestions because they are untenable.

52. It has to be remembered that Mr Leung was running these businesses himself. His wife's involvement was minimal. Following his death his eldest son became involved in them to the extent that he could but obviously he had neither his father's experience, judgment or standing. It is hardly surprising that with his death there have been difficulties in getting a clear picture of the businesses. I have had to do the best I can. The Defendants' contention that the family are better off since his death and have not suffered pecuniary loss is once again flying in the face of reality.

Pain and Suffering and Loss of Amenity

53. That this man suffered pain and anguish before his death is unarguable. He was, on the evidence, abducted at about 1 p.m. His last telephone contact with his wife (and with anyone as far as is known) was at about 7 p.m. To the extent that one can rely upon Ho's information he was probably alive until 8 p.m. His hands were bound with wire and his mouth taped. The pathologist's report described his injuries in stark detail. He had 16 or so horrific "chopping" injuries. He was buried in a shallow grave. The report concludes that the cause of death was unascertainable. Decomposition of his body had made the pathologist take that view. This seems to have been the comment which led to Mr Bedford's submission that this somehow raised an obstacle to finding his client liable. It does not call for much understanding to appreciate that the chopping injuries were highly likely to be fatal. Polythene sheeting found covering his face and neck could have caused suffocation if, of course, he was still alive. It was not possible to say whether he died before or after burial. The accomplice Ho had been told that Mr Leung resisted vigorously before he was killed.

54. Miss Yip puts forward $300,000.00 as an appropriate figure under this head.

55. Mr Bedford suggest seemed to that the Plaintiff had failed to prove that at the time the deceased died he could have brought an action to recover damages. That I reject as being an unsustainable argument. This man died as the result of the criminal act of the Defendants. His estate is entitled to recover damages appropriate to the pain and suffering experienced by him which was more than transient for which he could have brought an action had he survived. He was kidnapped, caused fatal head injuries from a large number of blows with a weapon, and detained forcibly against his will. He must have been terrified.

56. Mr Bedford's arguments against anything other than a nominal award under this head are, and I regret to have to say this, quite unacceptable as to the premises of fact and law on which they purport to be based.

57. I consider Miss Yip's assessment to be reasonable. It is difficult to imagine what this defenceless man experienced over these hours. The award will be $300,000.00

Aggravated Damages

58. I start with Mr Bedford's submission that no award can be made against the two Defendants because they were not directly involved in the kidnapping. I do not propose to repeat my findings or the incontrovertible inferences to be drawn from the evidence. I reject his argument. It has no merit and proceeds from a fundamental misunderstanding.

59. Miss Yip claims the sum of $150,000.00 which she says is modest. I agree. It is. This will however, be the award.

Claims under the Fatal Accidents Ordinance

60. The legal basis for the Plaintiff's claim under the Ordinance cannot be challenged. The tortfeasors caused death and loss. That is the simple basis for the action.

Pre-trial loss of dependancy.

61. At his death Mr Leung had, as his dependants, his wife, both sons, and a daughter. He was 45 years of age at his death. 4 1/2 years have elapsed since. That is the multiplier to be applied to this head of damage.

62. He was clearly a relatively wealthy businessman with homes in Canada and Hong Kong, and his children being educated at University and school in North America. His wife helped to some extent in the running of his business. His death has removed from them as his dependants, significant financial support.

Income from the Company, Wing Hong

63. Over the four financial years of the Wing Hong Company prior to his death, he had received Director's remuneration which averaged $22,445.00 monthly.

64. There was also a figure for entertainment expenses in the company some of which must have been for genuine business expenses. The remainder consisted of some form of benefit for his wife and himself in the sense that much of their own entertainment was charged against the company as business expenses. This benefit should form a taxable benefit and therefore I have to strike a figure or proportion which reflect these factors.

65. This is not an easy exercise and I have to adopt a rough and ready rule of thumb. For the family benefit from entertainment I will take the net figure of $8,500.00 monthly.

66. Household expenses were similarly charged to the company. They too would be subject to taxation. Applying the same rule, the net figure I will take is $10,000.00 monthly.

67. There was a company car from which a clear benefit was derived. This would be worth $7,500.00 monthly.

68. The domestic helper was paid for by the company. Again it is a taxable benefit. I will use the net monthly figure of $3,409.00.

69. I propose to ignore the item "Directors Quarters" as I presume this relates to a portion of the family's home which is used for business purposes as an office. It is really only a form of tax relief.

(a) Income from Rental of Workshops

70. Mr Leung owned the factory premises from which the company ran its business. It paid him, over the last three years before his death $42,500.00 per month. This was taxable as a benefit. The net figure is $36,125.00 monthly I having taken the average over three years, not five years as Miss Yip has done. I see no reason to include the figures for the year ended March 1993.

(b) Sub-contracting Fees

71. These were fees paid by the main company to a company which seemed to exist as an artificial entity, on the Mainland, solely for the purpose of receiving fees which formed a benefit for Mr Leung and his family. It seems to have escaped formal taxation on the Mainland but fees or tax were paid on an irregular basis to those who had the power to permit the business to operate. It also paid the wages of the employees. 40% of the figure would represent money actually received by Mr Leung and his family. It is by no means clear how this benefit should be treated in Hong Kong as far as any tax liability is concerned. It may be that there was a rather loose acceptance that the money paid to "oil the wheels of commerce" should be regarded as tax. It certainly represented a mediaeval notion of such. I think it safer to reduce Miss Yip's figure to a round one of $100,000.00 net monthly.

(c) Dividend

72. I have ignored this. It is of little consequence. In view of the benefits paid by the company for the Leung family it is artificial. No dividend had been paid since the year ending March 1993.

(d) Rental Workshop M.

73. This was owned by Mr Leung and produced rental income. In 1996 Wing Hong took it over and paid Mr Leung rental of $19,000.00 monthly. This would have been taxable. The income may have been unreliable. Miss Yip calculates a net average income after tax of $6,325.00. This seems sensible.

(e) Kong Hong International Investment Ltd

74. This was a property developing vehicle. It appears to have paid Mr and Mrs Leung $60,000.00 monthly and is still producing income for the family through Mr Daniel Leung and his mother. That figure should also be taxed although it is received on the Mainland and seems to be subject to the same irregular "taxes". The net monthly income would therefore have been $51,000.00.

75. These various sources of income total $245,304.00. It was used to maintain this family in some comfort and educate three children. Mrs Leung lacked for nothing. Out of it were bought homes, cars and other assets. Firstly the dependency figure needs to be calculated.

76. Could this level of income be maintained? As far as the property development on the mainland is concerned, we know from Mr Daniel Leung's evidence that it is expected to continue to produce $20,000.00 for Mrs Leung and $60,000.00 for him for the foreseeable figure. This will of course reduce the basic figure for the dependency claim and I should regard that income as for the collective benefit of the family.

77. It is extremely difficult to calculate the dependency on anything resembling a precise basis. Since the future investments and savings would have come out of the overall income, the safer course is to determine what proportion of that income should be applied to the father to represent what would have been spent on him and by him, and in purchasing assets or making savings in any form.

78. I propose to round the monthly figure down to $245,000.00. In my view a proper percentage to deduct to represent the cost of Mr Leung's own life style and maintenance would be 25% leaving a monthly figure of $183,750.00 or $2,205,000.00 yearly.

79. I am left with one problem and that is whether Mr Leung would have saved money and bought assets by reference to available monthly income, or whether, he would have purchased assets as and when he thought it commercially sensible. It is highly likely to have been the latter. But how much would he have acquired on an annual basis, or, more realistically over the remaining years of his life?

80. At his death he had over $2.311 m in cash at the bank. He had shares worth $2.68 m. The companies owed him $1.9 m. There were the warehouses and shop units, a home and an interest in a warehouse in Canada apart from the value of his shares in the Hong Kong and Mainland companies. Altogether he was worth in terms of assets at least $10 m.

81. Any attempt to calculate the rate of future savings must be arbitrary and guesswork based on the past history and current values. I think it would be sensible to discount the dependancy to $1,750,000.00 per annum therefore setting aside an annual sum of $455,000.00 for savings, purchase of property, and other investments.

82. The pretrial dependency has to be reduced by the sums received by the family from the companies since his death.

83. Mrs Leung (Madam Au Kam Han) and her son received collectively $47,000.00 monthly from Wing Hong and $120,000.00 monthly from Kong Hong Investment until January 2000. They still receive $80,000.00 which will continue indefinitely according to the son's understanding of this aspect of the business.

84. Adding those figures together means that for the first 3 1/2 years of the pretrial loss of dependency the net figure will be $183,750.00 less $167,000.00 = $16,750.00 monthly or $201,000.00 annually, and for the remaining year pretrial it will be $183,750 less $80,000 = $103,750 monthly or $1,245,000 for the year.

85. The pretrial loss will therefore be:

(1) $201,000.00 x 3 1/2 years =	$703,500.00
(2) $1,245,000 x 1 =	$1,245,000.00
	$1,948,500.00

Post-trial loss of dependancy

86. I think the business of Wing Hong would have remained economically viable and capable of producing the same benefits for the family. I think the Toshiba contract would have matured and enabled the business to extend its base. There is no reason to think that its long term future would have been stunted. It is appropriate therefore to take the same base figure for the purposes of the future dependency.

87. At some stage the children would have ceased to be dependents but as everyone knows, parents continue to treat their children as dependents, at least to the extent of providing financially for their future. I do not believe that this family would have been any different.

88. I propose to take the same dependency figure for the next four or five years. The children will, I believe, continue and finish their tertiary level of education once they have the means to do so.

89. Miss Yip suggested the overall multiplier for the future is 8.5. I will take 3 as the multiplier for the immediate future period of 4 or 5 years:

$1,245,000.00 x 3	$3,735,000.00

90. The balance of the multiplier is 5.5. The remainder of the future loss must reflect the cessation of the children as strict dependants. This means the large part of the income from Kong Hong Investment should go to Madam Au Kam Han and my calculations proceed on that basis. Although the earlier figure for the first post-trial period, before the deduction of the continuing income represented the dependency of four people (mother and three children) a straightforward division by four would be artificial and unfair, Mr Leung looked after his wife well and she had no fully independent career.

91. The annual figure was $2,205,000. Her share is more likely to be in the region of 40% = $882,000. From that needs to be deducted $60,000 monthly, or $720,000 per annum. The net dependency for the last period is therefore $162,000 x 5.5 = $891,000. This may seem extraordinarily low in view of the earlier figures but I have assumed that of the continuing income from Kong Hong, she will derive the larger benefit.

Loss of Accumulation of Wealth

92. Earlier it will be seen that I set aside an annual sum, out of the income, of $455,000 to represent accumulation of assets etc. Given that he would have invested as and when it was prudent commercially, my approach was artificial but it was necessary to set a base figure and of course derive a dependency figure first.

93. Taking Miss Yip's overall multiplier of 13 this would produce savings of nearly $6 m. I think that is an entirely reasonable figure in the light of his capital assets at his death and for the sake of consistency I will allow it at $5,915,000.

Bereavement Award

94. This is fixed by law at 70,000 (prior to 16 April 1997).

Special Damages

95. These are itemised under 7 of page 14 of Miss Yip's submissions.

96. Madam Au gave lower values for certain items in a Police Statement of 29 July 1996. In view of the tragedy which had overtaken her and her family, it is quite likely that she was unable to give true value. She was a truthful lady who treated some banal questioning with dignity and restraint. She may have underestimated the values then. She may have overestimated them unwittingly now. I will make a small overall adjustment. I allow $465,000. Mr Bedford says the ransom money belonged to the Company and cannot be claimed by the Plaintiff. Of course it can. The Company could look to the family for it as paid on its behalf, so the family should claim it. Alternatively the family could claim it and hold it in trust.

Summary

		$HKD
Pain and Suffering		300,000.00
Aggravated Damages		150,000.00
Pre-trial Dependency		1,948,500.00
Post-trial Dependency	1)	3,735,000.00
	2)	891,000.00

Loss of accumulation of wealth

1)	Pre-trial $2,047,500.00
2)	Post-trial $3,867,500.00	5,915,000.00
Bereavement Award		70,000.00
Special Damages		465,000.00
Total:		13,474,500.00

97. I have not calculated the interest on the various heads of damage which attract this. The Plaintiff's Solicitors will no doubt prepare these calculations applying the appropriate rates for the relevant periods.

98. There will therefore be judgment for the Plaintiffs for $13,474,500 with interest and with costs to be taxed. There will be an order for the Plaintiffs legal aid costs to be taxed. The basis of the costs to be paid by the Defendants will be the Common Fund basis. I will set out the reasons for this in the following paragraph.

Conclusion

99. Actions to recover damages against persons responsible for crimes of violence are rare. The reason for this is most probably that few offenders are worth "powder and shot". They have few if any assets. That is not the case as far as the 1st Defendant is concerned because he has business interests and some money is held by the liquidators of a company. There may be more assets elsewhere, no one currently knows for sure. In the United Kingdom there have been similar actions brought by victims of rape or other sexual abuse although of course such damages, including awards of aggravated damages, are not on the scale of this action which arises out of the murder of a relatively wealthy businessman.

100. For some reasons which I do not yet understand, the 1st Defendant had the benefit of Legal Aid. I must assume that one or more lawyers on his behalf were able to persuade some authority that there was a defence on the merits. There was no valid defence to this claim by either Defendant. Public money had been wasted irresponsibly by the interlocutory appeal to which I referred earlier and by an application, also made to me, to vary the Mareva injunction to allow some of the funds held by the liquidators to be used for the purposes of instructing Leading Counsel on behalf of the 1st Defendant. I find it difficult to understand how lawyers with a knowledge of the salient undisputed facts of this case could have lent themselves to such exercises when public funds were at stake. I make it clear that the lawyers eventually representing the 2nd Defendant did not associate themselves with these actions.

101. Furthermore this case on liability was conducted on behalf of the 1st Defendant with scant regard for the obvious and the unarguable.

102. Whilst there was certainly justification for a close examination on behalf of the Defendants of the evidence relating to the level of dependency and loss of accumulation of wealth, there was none for the attempt to raise an argument on liability.

103. The Amended Defence settled by Counsel perhaps gave some foretaste of the stance to be adopted. Paragraph 10 reads :

"..... the Plaintiff has failed to claim for financial assistance that was available to the Plaintiff under the Criminal Injuries Compensation Scheme ..... and ..... this represents a failure to mitigate the Plaintiff's loss."

104. Any suggestion that the Plaintiff's decision to sue the tortfeasor for compensation instead of resorting to a plea for public funds represents a failure to mitigate loss, defies logic and the law. Fortunately it was not pursued in written argument.

105. The Defendant pursued a case on liability which wasted costs to a significant effect. Happily the argument on damages has been confined to paper but is also wasteful to some extent. The conduct of the Defence in this case calls for costs on a common fund basis. However, since both Plaintiff and Defendant are legally aided it becomes a pointless exercise. Nonetheless if the 1st Defendant's assets are found to be sufficient to meet the costs awarded to the Plaintiff then the basis on which the Defendant should pay such costs will be the Common Fund basis.

106. Finally the last paragraph of Mr Bedford's written submission sets the tone for the nature of the arguments raised. I simply quote the last two sentences :

"Plaintiff's claim is a vengeful attempt to exact an outrageous blood money claim from the 1st Defendant. The 1st Defendant calls upon the court to send a clear message to the Plaintiff that the injury claims are intended to be compensatory and not punitive and that the civil jurisdiction is not to be made an arena for spiteful and unnecessary claims of this kind."

107. Such incredible statements are calculated to produce only a deafening silence.