LEUNG SUK YI AND ANOTHER v. PANG FUK CHOI

HCPI-438/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 438 OF 1998

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ASSESSMENT OF DAMAGES

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1. This is a claim by the Plaintiffs on behalf of the estate and the dependants of the deceased MAK Ho-wah pursuant to the Law Amendment and Reform ( Consolidation ) Ordinance Cap 23 and the Fatal Accidents Ordinance Cap 22.

2. The Plaintiffs are the administratrices of the estate of MAK Ho-wah. The 2 named Plaintiffs are sisters and LEUNG Suk-ki was the wife of MAK. MAK was survived by his wife and 2 children, Carmen and Ricky.

3. The present writ was taken out on 29 April 1998. Interlocutory judgment was obtained against the Defendant on 9 March 1999 for damages to be assessed.

The Incident

4. On 29 May 1995 MAK had a dispute with the Defendant whilst on board of a bus. The argument erupted into a fight when the two alighted from the bus. In the heat of the fight, the Defendant took out a knife and stabbed MAK in the chest. As a result, MAK sustained fatal injuries, collapsed and was certified dead about 1 1/2 hours later. The Defendant was subsequently prosecuted and convicted of murder.

Personal Particulars of the deceased

5. MAK was born on 7 January 1951. He married Madam LEUNG Suk-ki on 22 December 1985. Daughter Carmen was born to the marriage on 15 December 1990 and son Ricky was born on 5 May 1994. At the time of his death MAK was aged 44, Madam LEUNG was aged 37, Carmen was aged 4 while Ricky was aged 1.

(I) Claims under the Fatal Accidents Ordinance

(A) Loss of Dependency

6. Prior to the events MAK worked full-time as a Land Inspector (II) with the Lands Department of the civil service. His wife Madam LEUNG is a homemaker, committed to looking after the children and the family. Madam LEUNG and the children were wholly dependent upon MAK for his financial support.

Deceased's income

For the financial year of 94/95

7. According to MAK's salary statements, the income he received for the period from April 1994 to March 1995 was as follows:-

(a)	1 April 94 - 30 June 94 (3 x $11,610)	34,830.00
(b)	salary adjustment for 1 April 94 - 30 June 94 ( 3 x $1,150 )	3,450.00
(c)	1 July 94 - 31 March 95 ( 9 x $12,760 )	114,840.00
(d)	acting allowance received on 30 Aug 94	1,637.30
		HK$ 154,757.30
		============

8. As MAK was not liable to salary tax in the financial year of 94/95, adjustment in respect of tax liability is unnecessary. His average monthly intake was HK$12,896.44 ( 1/12 x HK$ 154,757.30 ).

9. MAK's income for the following years was projected on account of his promotional prospect, his yearly increments and the salary adjustments he would likely have on account of inflation.

For the financial year of 95/96

10. From the information contained in the Finance Committee paper of 5 June 1996 it can be seen that a Land Inspector (II) had a pay range commencing at Point 3 and ending at Point 12 of the Master Pay Scale for the period of April 95 - March 96.

11. MAK's monthly salary of HK$12,760 was, according to the civil service pay scale, at point 12 of the Master Pay Scale. Point 12 was the highest pay of a Land Inspector (II). The only adjustment MAK would be entitled for 95/96 was the yearly increment on account of inflation. In 1995 from 1 April the salary of a government employee at MPS-12 was increased from HK$12,760 to HK$14,055. MAK's monthly salary in 95/96 would likely be HK$14,055.

For the financial year of 96/97

12. In the staff report of MAK of 23 January 1995 his superior officer wrote " During the reporting period, Mr. MAK has been a diligent and capable officer. He had also acquired a very sound knowledge and practical experience. .......... In the recent survey....... he has exhibited the much needed qualities of a Land Inspector(I) particularly in the organization of work in the land team and the execution of the assignments with remarkable efficiency and tactfulness. Therefore I strongly recommend him be promoted to Land Inspector (I) in the next promotion exercise."

13. In light of the positive comments MAK received from his superior and the strong recommendation contained in his report, I accept MAK would have a high chance of promotion to the rank of Land Inspector (I) the following year had he not met his fate in May 1995. Thus it was likely that his salary for the financial year of 96/97 would be escalated to that of a Land Inspector (I).

14. In AG v Chun Yat-nam [1995] 1 HKC 218 the Court of Appeal was clearly of the opinion that the possibility of a person's promotion ought be taken into account in the assessment of his future earnings.

15. A copy of the Finance Committee paper was placed before me the contents of which suggested that a discussion had been scheduled on 5 June 1996 to consider the revision of the pay scale of Land Inspector (I). It was the recommendation in the paper that the salary of a Land Inspector (I) at the current pay scale of MPS-13 to MPS-17 be revised to the starting point of MPS-17 and ending point of PMS-22. Though the result of the discussion was unclear, yet it can be seen on a print out of the government publication on the internet of 10 November 2000 that the pay scale of a Land Inspector (I) was from MPS17 to MPS-22. This indicated that the salary increase recommendation had been approved by the Finance Committee sometime after 5 June 1996. Hence it was likely that MAK's salary would be HK$19,535, at MPS-17, for the financial year of 96/97 for the months after June 1996.

For the years of 1997-2000

16. Assuming that MAK had carried on working with good performance, he would receive his yearly increments and yearly salary adjustments on account of inflation. His monthly salary would be HK$21,900 at MPS-18 for the year of 97/98. From April 1998 onwards there had been no salary adjustment on account of inflation for all civil servants for 2 years. Hence in the financial year of 98/99 MAK would receive a monthly sum of HK$24,320 at MPS-19. For the financial year of 99/00 he would be paid HK$ 25,530 a month at MPS-20. For the financial year of 00/01 he would be paid a monthly sum of HK$26,805 at MPS-21.

17. For a yearly income of HK$321,660 (12 x $26,805 ) in the financial year of 00/01 MAK would be liable to pay tax. His taxable income would be HK$45,660 after deduction of HK$216,000 married person allowance and HK$60,000 children allowance ( $321,660 - $216,000 - $30,000 - $30,000 ). His tax liability would be HK$1,446.20 ( the first bracket of HK$35,000 levied at 2% and the next bracket of HK$35,000 levied at 7% ), i.e. a monthly payment of HK$120.52

18. The projected monthly income of MAK of 00/01, net of tax, would be HK$26,684.48 ( $26,805 - $120.52 ).

19. MAK's pre-assessment median monthly income would be HK$19,790.46 ( the median of $12,896.44 and $26,684.48 ).

Family expenditure

20. From the testimony of Madam LEUNG, the monthly expenses of the family used to be roughly in the following sums:-

(i)	pocket money of Madam LEUNG, Carmen, Ricky	$3,500
(ii)	utilities	$ 300
(iii)	food and household expenses	$2,000
(iv)	medical expenses of Ricky	$ 200
(v)	family entertainment	$1,200
(vi)	rental	$1,300
(vii)	Carmen's school fees and miscellaneous expenses	$ 700
(viii)	Items of children expenses including milk powder, diapers and school uniform	$1,000
(ix)	personal expenses of the deceased	$1,500
(x)	savings of the deceased	$1,300
		HK$13,000

21. I accept Madam LEUNG's evidence to be a fair quantification of her monthly expenditure. MAK's share of the family expenses was HK$1,200 ( being 1/4 of $300 utilities+ $2,000 household + $1,200 family entertainment + $1,300 rent ), which was about 9.23% of his monthly income of HK$13,000. MAK's net contribution to the upkeep of his family was about HK$9,000 (HK$13,000 - $1,200 - $1,500 - $1,300 ) , which was equivalent to 69.23 % of his total monthly income.

22. The respective shares of the family expenses were as follows:-

23. Thus the respective dependencies of the Madam Leung, Carmen and Ricky were:-

Madam Leung (2,366.67/13,000)	18.2 %
Carmen (3,566.67/13,000)	27.43%
Ricky (3,066.67/13,000)	23.59%
Total	69.22%

Multiplier

24. MAK was aged 44 at the time of the accident. He would likely be able to work until normal retirement age of 55. I accept counsel's suggestion of a multiplier of 8 after comparing with cases of claimants of similar age group.

Pre-assessment Loss of Dependency

25. Pre-assessment period from death is a total of 65 1/2 months, i.e. from June 1995 to 16 November 2000. Hence the award for the pre-assessment dependency with reference to the median monthly income would be HK$897,281.64 ( $19,790.46 x 69.22% x 65 1/2 months )

Post-assessment Loss of Dependency

26. Post-assessment period is 30 1/2 months ( 8 x 12 months -65 1/2 months ). Post assessment of dependency with reference to the projected notional income at the date of assessment would be HK$563,365.41 ( $26,684.48 x 69.22% x 30 1/2 months )

27. Adjustment of the ratio of dependency is considered unnecessary, since Carmen and Ricky would only be aged 12 and 9 at the expiration of 8 years and their respective ratio of dependency is unlikely to have varied substantially within these 8 years duration.

(B) Bereavement

28. Since the cause of action arose prior to 18 April 1997 the amount of damages for bereavement prescribed by statute was HK$70,000.

(C)Funeral Expenses

29. A sum total of HK$56,170.60 of funeral expenses was spent as follows:-

(a) funeral expenses	9,470.00
(b) funeral parlour	19,300.00
(c) paper offerings	5,180.00
(d) meals	2,260.60
(e) worship & prayer fees	19,000.00
(f) cremation fees	960.00
Total	HK$56,170.60

30. In accordance with the Court of Appeal decision in WONG Sau Wah [1982] HKC 333 (C.A.) meals provided at a funeral service cannot be allowed as a head of funeral expenses. Item (d) will be taken out of the total sum of funeral expenses.

(II) Claims under LARCO

(A) Loss of Accumulation of Wealth

31. The various bank statements showed MAK to have a saving habit. The balance of his bank accounts on the day of his death were as follows:-

HKSB	(i) A/C 014-0-033887	HK$27,183.04
	(ii) A/C 065-7-005003	HK$2,793.80
Hang Seng Bank (A/C 224-2-704258 )		A $220.00
Bank of Communications		HK$22,925.40
Commonwealth Bank of Australia:-
	(i) A/C 2319-5004-0389	A$5,900.33
	(ii) A/C201782	A$ 419.89

32. The figures showed MAK to have a consistent saving pattern. Based on the verbal testimony of his wife, I accept that but for his death, MAK would have been able to save about 10% of his monthly earnings. In the circumstances, the pre-assessment loss of accumulation of wealth of MAK's estate would be HK$129,627.51 ( $19,790.46 x 10% x 65 1/2 months ).

33. The post-assessment loss of accumulation of wealth would be HK$81,387.66 ( HK$26,684.48 x 10% x 30 1/2 months )

(B) Special Damages

Loss of commuted pension gratuity

34. But for his death, MAK would likely be able to continue his employment with the HKSAR until his retirement age and would be entitled to receive a lump sum gratuity of HK$1,200,864 if he retired as a Land Inspector (I) at the age of 55. Instead Madam LEUNG and her children only received a death gratuity of HK$476,620.76 upon MAK's death. The shortfall of the gratuity payable would be HK$724,243.24 ( $1,200,864 - $476,620.76 ). To account for an accelerated receipt of the payment, in light of MAK's age at the time of his death and in line with previous judicial decisions (WONG Kan [1975] HKLR 618; SIU Yuk Lin HCA-2103/83 ), I accept the estate is entitled to claim of 50% of the shortfall of HK$724,243.24. i.e. a sum of HK$362,121.62 .

Travelling Expenses

35. Though not supported by receipt, the Defendant raised no objection to the claim of HK$1,000 travelling expenses.

Interest

36. Counsel on behalf of the Plaintiff also claimed interest on the following heads:-

(A) Interest on the award of bereavement

37. Based on the decision of Mr. Justice Keith ( as he then was ) in the decision of Kwan Lai Kuen [1998]1 HKC 98, I am prepared to award interest on the award of bereavement at the prevailing rates of interest payable on suitors' funds from the date of the deceased's death to the date of judgment.

(B) Interest on funeral expenses and travelling expenses

38. Funeral expenses and travelling expenses were heads of economic loss, the rule in Ng Chai-man [1983] HKLR 303 has no application. These sums were incurred by the estate shortly after the death of the deceased. I grant the Plaintiff's application for interest to be awarded at approximately half the judgment rate at 6% per annum from the day of the ceremony on 17 June 1995 to the date of judgment.

Quantum

39. I accept the following to be reasonable and fair assessment of the claims by the Plaintiffs on behalf of the estate and the dependants of the deceased:-

(a)	Damages under FAO:-
	(i)	total pre-assessment loss of dependency		897,281.64
		(1)	$235,922.07 for Madam LEUNG (18.2/69.22)
		(2)	$355,568.27 for Carmen (27.43/69.22)
		(3)	$305,791.30 for Ricky (23.59/69.22)
	(ii)	total post-assessment loss of dependency 563,365.41
		(1)	$148,125.55 for Madam LEUNG (18.2/69.22)
		(2)	$223,246.36 for Carmen (27.43/69.22)
		(3)	$191,993.50 for Ricky (23.59/69.22)
	(iii)	bereavement 70,000.00
	(iv)	funeral expenses ($ 56,170.60- $ 2,260.60 )		53,910.00
(b)	Damages under LARCO:-
	(i)	pre-assessment loss of accumulation of wealth		129,627.51
	(ii)	post-assessment loss of accumulation of wealth		81,387.66
	(iii)	loss of pension gratuity		362,121.62
	(iv)	Travelling Expenses		1,000.00

40. Interest is awarded as specified in the previous paragraphs on bereavement, funeral expenses and travelling expenses. In accordance with KWAN Lai Kuen [1998] 1 HKC 98 interest is also awarded on the pre-assessment dependency sum of HK$897,281.65 at half the judgment rate, at 6% per annum from the date of death to the date of judgment.

41. Judgment interest accumulates from the date of judgment until payment.

42. I also award costs nisi in favour of the Plaintiffs. The Plaintiff's own costs to be taxed in accordance the Legal Aid Regulations.

43. In the course of the assessment hearing the Defendant brought to my attention that a bankruptcy petition has been presented against him. A subsequent check with the court records confirmed that the Defendant has petitioned for his own bankruptcy in HCB-4549/2000 on 3 Nov 2000. I do not consider it necessary to order a stay of the present proceeding.