TING KAM YUEN v. CHEUNG WING KIN AND ANOTHER

HCMP 2276/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2276 OF 2010

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BETWEEN

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J U D G M E N T

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1.  This is an application by the Plaintiff for a declaration that all interests in two properties registered in the names of Cheung Tak Ming (“Tak Ming”) and Chow Tai Ho (“Chow”) as joint tenants had passed to Tak Ming as the surviving joint tenant upon the death of Chow, and now form part of the estate of Tak Ming, the 1st Defendant.

The background

2.  The properties are two residential flats with one situated in Chai Wan and the other in Aberdeen.  The Plaintiff is the personal representative of the estate of Tong Kwok Fong (“Tong”).  Tak Ming was the owner of a fishing vessel.  Tong was a Mainland fisherman working on Tak Ming’s vessel. Tak Ming secured Tong’s service by paying a management fee to Tong’s employer, the Hong Kong and Macau Floating Fishermen Service Company.  Tong died as a result of a collision between Tak Ming’s vessel and a ship somewhere at the south of Hong Kong.  The Plaintiff, herein as the personal representative of Tong’s estate, sued the estate of Tak Ming for damages in HCPI288 of 1996 and obtained judgments for liability and quantum.

3.  Tak Ming’s vessel went for a fishing trip on 14 March 1993.  Those on board the vessel were Tak Ming; his wife, Chow; his younger brother, Cheung Kwei Ming (“Kwei Ming”); his youngest brother, Cheung Sai Ming (“Sai Ming”); Sai Ming’s wife, Kok Kun Mui (“Kok”); Sai Ming’s daughter, Cheung Chi Ching (“Chi Ching”); and Tong.  The vessel finished the fishing trip at about 4 am on 15 March 1993 and commenced its return journey.  The vessel was then steered by Tak Ming.  At about 5 am on the same day, the vessel collided with a ship and sank. 

4.  It is the Plaintiff’s case that Chow died shortly after the collision while Tak Ming survived the collision but died after being rescued by a container ship, MV Kuo Chang, more than an hour later.  The Defendants, however, disagree.  They say that there is insufficient evidence to show whether Tak Ming survived Chow or vice versa.  The parties do not dispute that Tak Ming was older than Chow. 

5.  Section 11 of the Conveyancing and Property Ordinance, Cap.219 provides that:

“(1) Except for the purposes of section 4(11) of the Intestate Estates Ordinance (Cap.73), where, after the commencement of this section, 2 of more persons die in circumstances rendering it uncertain that any one of them, or which of them, survived the other or others, such deaths shall, for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.”

6.  However if the Plaintiff can demonstrate, with evidence, a defined and warranted conclusion that the younger person had died before the older one, the presumption in section 11 will not apply (Hickman v Peacy [1945] AC 304 at323-324 and Re Bate [1947] 2 All ER 418.  The burden of proof is, of course, on the Plaintiff and the standard is on a balance of probabilities (Re Phene’s Trust (1869-70) LR5 Ch. App. 139 at 151 and Hickman v Peacy at 321 and 324). 

Statements of Kwei Ming and Sai Ming

7.  After the collision, both Kwei Ming and Sai Ming had made statements to the police.  Kwei Ming gave his statement to a police officer on 17 March 1993 at 1530 hours which was about two and half days after the incident.  Sai Ming gave his statement on the same day at 1800 hours to another police officer. 

8.  The relevant parts of the English translation of Kwei Ming’s statement are as follows:

“…

3. At around 3 pm on 14 March 1993, our vessel reached Dangan Island and we started to catch fish. At about 3 am on 14 March, we started to draw up the net for the last time. At about 4 am we started to return to Hong Kong from the south of Dangan Island via the Dangan Bay. At that time my elder brother, Cheung Tak Ming was steering the fishing vessel and the other adults were sorting out our catch into different types at the stern while my niece was sleeping inside the cabin.

At around 5 pm when I was at the stern, I heard our fishing vessel sound out three short blasts and hurried astern swiftly. Shortly thereafter, I heard a roaring sound from the bow and the whole vessel suffered a big shock. I saw everybody at the stern had fallen to the floor. I heard my elder brother shouting from the wheel cabin above ‘A big ship knocked against our fishing vessel.’ I immediately saw at our starboard forward the bow of a big ocean going ship with a very high hull and of light grey colour. I then saw our vessel listed to the port side and the stern began to fill with water quickly.

Shortly thereafter I fell into the water. I then exerted my utmost strength to swim up to the surface. When on the surface, I saw the port side of our vessel had heeled over to facing the sky and the starboard side was already underneath the water but not completely sunk. At that time, I did not see any other vessel at the sea surface. Then I shouted loudly at the water surface for my elder and younger brothers. I saw my elder brother carrying my niece on the water surface and my younger brother was also on the water surface. The others were not seen.

At that time there were many sundry items floating in the surrounding area of the sea surface. We three brothers saw a refrigerator. (We) then used the refrigerator and placed our niece onto it. We three brothers maintained the refrigerator and floated on the sea surface. After floating for about five minutes, fog began to appear at the sea surface. Whilst floating, we, the three bothers, shouted for help unceasingly.

(After) about more than an hour, we heard some person’s voice. We therefore swam towards the direction of the person’s voice and shouted for help at the same time. Shortly thereafter, I saw a big ocean going ship. It had a black colour hull and a few very large white colour English letters at the middle of the hull. There were many containers on board the ship. We then shouted loudly to the ship to lower a life boat. But it did not respond. Then my younger brother said he had sufficient stamina (and we should) let him swim to the ship.

Then my younger brother swam to the ship. I and my elder brother continued maintaining the refrigerator and floating on the sea surface. After waiting for about several five minutes, I realised that my elder brother had begun to suffer from lack of physical strength. I then shouted loudly to the ship for my younger brother to lower a life boat. But there was still no response.

Shortly thereafter I saw three persons bringing life boats and life jackets swimming towards us. Two of them rescued my elder brother. The other one gave me a life jacket. He then supported the refrigerator and swam back to the ocean going ship. And I myself swam back (sic) to the ocean going ship. After having returned (sic) to the ship, I saw my younger brother, who told me to go up to the wheelhouse of the ship to liaise with the Marine Department to ask for a helicopter to rescue us.

After finishing the talking, someone then gave me a blanket (and) led me to the resting room for a rest.

4. Having waited on the ship for about several five minutes, a marine police vessel carried us the brothers and our niece from the ship to Sai Wan Ho, Marine Police Base to board an ambulance to a hospital. After arriving at Tang Shiu Kin Hospital, I learned that my elder brother had passed away and my niece had to be sent to Queen Mary Hospital. I was discharged from Tang Shiu Kin Hospital after examination by the doctor.

…

Q. At the time of the collision, did you see if the wind and wave at the sea surface was big or small, the visibility was clear or not and how was the weather?

A. At that time, there was no wind (and) no wave, the sky was still very dark, but there was the moon. Visibility was about two nautical miles. No fog yet.

…

Q. Before the collision, did you hear any other vessel letting off any warning signal or light signal?

A. No.”

9.  The relevant parts of the English translation of Sai Ming’s statement are as follows:

“…  At about 4 pm, we started to go home from the south of Dangan Island via Dangan Bay.  At that time it was my eldest brother who was steering the vessel, the others were sorting out the fishes at the stern.  My daughter was sleeping in the cabin.  At about some time after 4 to 5 o’clock, I suddenly heard our vessel sounded out three short blasts.  I felt that my vessel was moving swiftly astern.  I then heard a “bang”.  I then fell on the floor.  Then my eldest brother shouted loudly that (we were) knocked by an ocean going ship  Then I looked up from the edge of the starboard side and saw a light grey colour bow of an ocean going ship. 

Shortly thereafter, water came into the stern of the vessel.  Then I was washed down to the sea.  I swam back to the water surface, looked around (but) had already lost sight of the ocean going ship.  I shouted loudly for my eldest/elder brother and looked for my wife.  I heard the responses from my eldest and second elder brothers.  I then swam towards them.  I saw my eldest brother holding on to a piece of wood and carrying my daughter.  We then found a refrigerator at the scene.  We placed the baby in the refrigerator.  The three of us maintained the refrigerator. 

Whilst floating at the sea, we shouted for help continuously.  After about more than an hour, the day began to dawn (and) there was already some fog.  I heard some person’s noise.  We shouted for help continuously whilst swimming towards the voice.  Then I saw an ocean going ship with a black colour hull (and) with containers.  I asked them to lower a life boat to rescue us. They did not lower any lifeboat.  They only used non-standard Cantonese to tell us to swim to them.  (I) then saw them throwing into the sea several pull buoys that were tied to ropes.  I also saw that the ship was dashing forward.  So I told my eldest brother, “I have enough stamina.  I swim to them and ask them to release a life boat.” 

I swam close to them (and) embraced a pull buoy.  They pulled me to a rope ladder.  I climbed up the rope ladder (and) reached the deck.  I asked them loudly to release a life boat.  A crew member pointed the wheelhouse to me.  I went up to the wheelhouse and saw a man dressed in a white shirt.  I believed he was the Master of the vessel.  I begged him to release a life boat.  I told him that there was a baby in the sea and it was very dangerous, but he ignored me.  He asked a crew member to …  I begged him again and knelt before him.  He replied, “I know.”  Then he signalled me to the port side with his hand.  I looked down and saw nobody to release the life boat.  Then I walked back to the Master and begged him again to lower the life boat.  He then used the intercom to tell the crew to release the life boat. 

I then assisted in releasing the life boat but when (the life boat) was put on the water surface, the hook could not be unfastened.  Then I walked back to the starboard side and saw several sailors taking off their clothes (and) go down to the sea to rescue my brothers. 

Shortly thereafter, my brothers and daughter were rescued and brought back by the crew members.  I saw that my eldest brother had fainted.  I asked my second eldest brother to go up to the wheelhouse to call for the police (and) ask for a helicopter to rescue us.  I then carried out artificial respiration for my eldest brother.  After about a few minutes, he failed to respond.  Then I went into the cabin to look for my daughter. 

About five minutes later, a marine police special arrived.  We were rescued to the police vessel and driven to the Sai Wan Ho Marine Police Base to board an ambulance to Tang Shiu Kin Hospital.  …

‘Q. Before the collision how was the traffic and weather condition at the sea surface?

A.  At that time, I was working at the stern.  (I) did not pay attention to the traffic condition at the sea surface.  The sky was then very dark but the moon was there.  Visibility was about 2 to 3 knots.  There was no wind or wave and no fog.  However, shortly after we had fallen into the sea, fog began to appear.

…

Q.  Before the collision, did any other vessel let out any signal?

A.  No.

…

Q.  After you had fallen into the sea (and) swam to the water surface, did you see the ocean going ship which knocked against your vessel?

A.  When I swam up to the surface I could only see that our vessel was already sinking.  (I) did not see other vessels.’”

Three letters from the Marine Department

10.  I also refer to three letters from the Marine Department.  The first letter is dated 9 August 1993 and addressed to Sai Ming’s solicitors.  The letter enclosed a weather report from the Royal Observatory, Hong Kong which gave a warning that there was fog in all areas of the South China Coastal waters in the morning of 15 March 1993.  The weather situation was that a maritime air stream was bringing fog and mist to the coastal region of South China.  This letter further said that the weather report was supported by the statement of the Master of Kuo Chang and the report of the Maritime Rescue Coordination Centre, Hong Kong which stated that helicopters could not commence search until 1015 hours due to poor visibility.

11.  The second letter is dated 6 September 1993 and also addressed to Sai Ming’s solicitors.  It stated:

“Thank you for your letter of 16 August 1993 enclosing a letter from Sureness Marine Services Limited and requesting me to comment on Sureness’ denial that MV “Kuo Chang” collided with the fishing boat.

I have gone through all the documents I have in my possession and I cannot say for sure that MV “Kuo Chang” collided with the fishing boat.  The master of MV “Kuo Chang” reported to the Vessel Traffic Centre (V.T.C.) at about 0503 hours on 15 March 1993 on Channel 12 of the VHF (Very High Frequency) Transceiver that his ship collided with an unknown object.  The master of MV “Kuo Chang” could not identify the object as there was dense fog in the area.  The master of MV “Kuo Chang” picked up the first survivor at 0630 hours and at 0700 hours picked up two men and a baby.  It was therefore thought MV “Kuo Chang” may have collided with a fishing boat.

According to the officer who was in-charge of the V.T.C. at the time of collision, there were a few ships navigating in or around the position 22°06.7’N 114°19.8’E where the collision reported to have occurred between 0500 hours and 0530 hours.”

12.  The third letter is dated 8 May 1995 and addressed to another firm of solicitors.  It stated that the department did not have the evidence showing which ocean going vessel had collided with the fishing vessel.  It also said that the survivors were picked up by MV “Kuo Chang” at about 0530 hours.  I think this reference to time is probably a typographical error.  The times of rescue of survivors stated in the letter of 6 September 1993 appear to be more reliable as they tally with the details in the witness statements of Kwei Ming and Sai Ming.  This third letter also repeated that the visibility in the area where Kuo Chang has collided with an unknown object at 0503 hours was reported as 100 metres due to fog. 

Kwei Ming’s affirmation and analyses

13.  Kwei Ming has also made an affirmation for these proceedings on 31 January 2011 which was some 17 years and 10 months after the accident.  He said that the time when the fishing vessel started its return journey and the time of collision were his estimates as he did not wear a watch.  He learned from the clock in the wheelhouse that they started to haul the net for the last time some time after 3 am and it took them over an hour to finish the exercise.  He also said that after he had swum to the water surface, he shouted loudly for his brothers only because he could only see them.  His line of vision was limited by lots of sundry goods floating around him.  The sky was also dark and there was not much moonlight as that was the 23rd day of the second lunar month.  Since he only saw his brothers he, therefore, only looked and swam towards them.  He focussed his efforts to keep himself afloat and to swim to his brothers.  He did not notice any other people around him because the sky was dark.  Regarding the appearance of fog, he said it came very soon and the interval of five minutes after floating in the water was just his estimate when he made the witness statement.  Regarding the shouting for help, he said they only shouted during the first half of the period when they were floating in water and looking for rescue.  They did not shout during the second half of the period until they saw MV Kuo Chang.  They did not shout for the purpose of conserving energy.

14.  In his witness statement, he put the period in which he floated in water before hearing voices from Kuo Chang at more than an hour. He said in his affirmation that that was also an estimate which was made when he was anxious for rescue.  He referred to the letter of the Marine Department dated 8 May 1995 which said that the survivors were picked up by Kuo Chang at 0530 am.  I have already said that this brief reference as to the time of rescue does not appear to be reliable. 

15.  The rescue itself, in fact, took quite some time.  It was Sai Ming who first swam to Kuo Chang.  He then spent quite some time to procure a life boat, which, in the end, could not be unhooked.  Tak Ming, Kwei Ming and Sai Ming’s daughter were eventually rescued by three sailors who jumped into the sea to carry out the rescue. 

16.  He also said that when they spotted Kuo Chang, it was only he and Sai Ming who shouted for help and Tak Ming did not.  This, however is contrary to the witness statements by him and Sai Ming.  He said, in his statement, “We therefore swam towards the direction of the person’s voice and shouted for help at the same time.” (emphasis supplied).  Sai Ming also said in his witness statement, “We shouted for help continuously while swimming towards the voice.” (emphasis supplied). 

17.  Furthermore, it was several five minutes after Sai Ming had swum to Kuo Chang that Kwei Ming realised that Tak Ming had begun to suffer from lack of physical strength.  Tai Ming did not appear to him to be lack of strength before and immediately after Sai Ming had swum to Kuo Chang.  I therefore do not accept Kwei Ming’s assertion in his affirmation that when he said, “We shouted for help”, he was only referring to himself and Sai Ming and not Tak Ming. 

18.  Kwei Ming did not know when Tak Ming died but the earliest time of Tak Ming’s death must be after his beginning to suffer from lack of strength.  He could have died before he was rescued.  That should be around 6.30 am when Sai Ming was rescued to Kuo Chang.  If the Plaintiff can prove on a balance of probability that Chow should have passed away before that time, then the Plaintiff should succeed in these proceedings. 

19.  Kwei Ming also said in his affirmation that he did not look for other survivors as he and his brothers had to ensure the safety of his niece and their own survival.  However, even if he was not actively swimming around to look for other survivors, he would still have looked around whilst shouting. 

20.  All the evidence suggests that the sea was calm though foggy.  However, counsel for the defendants submitted that the sea was rough.  This of course is contrary to what Kwei Ming and Sai Ming had said in their witness statements.  They were both questioned by the police officers on the condition of the sea.  Both said that there was neither wind nor wave.  But counsel said that the master of Kuo Chang was reluctant to lower a life boat hence the sea must have been rough and the master was wary about the safety of his crew.  I however do not think this submission is correct. 

21.  Counsel for the Plaintiff rightly pointed out that when the life boat could not be unhooked, three sailors went into the sea with buoys and lifejackets to rescue the survivors.  If the sea was rough, it would have been more dangerous to swim in it than to lower a life boat in it. I therefore find that the sea was calm.  In fact, neither Sai Ming nor Kwei Ming had suggested that the sea was rough at any time when they were in the water. 

22.  However, I would accept that the sky was dark at about 5 am as that was 15 March and the day in Spring is shorter than the day in Summer, but it was not so dark that there was no visibility as the three brothers could still see each other.  Since the sea was calm, if there were other survivors, they would not have floated far away from the brothers who were within visible distance from one another.  Though the sea was foggy and the day was early, there was still some visibility.  The letter of the Marine Department of 8 May 1995 did say that the visibility in the area of Kuo Chang was reported as 100 metres due to fog.  That was at about 0503 hours at Kuo Chang’s position. 

23.  The other survivors if any would also have responded to the incessant shouting of the brothers.  This would have been so regardless if the brothers had been shouting throughout the time when they were in the water or just for the first half of the period as Kwei Ming now suggests in his affirmation.  Furthermore if the master and/or crew members of Kuo Chang should have seen other survivors when they rescued the brothers, they would have tried to rescue them as well.  Sai Ming also said in his statement that he had looked down from the port side and starboard side of Kuo Chang when trying to procure a life boat for his brothers and daughter.  If he thought that there could be other survivors he would have looked for them, but he did not.

24.  I also note from the witness statements that after Kwei Ming and Sai Ming had been rescued, neither of them had asked the Master of Kuo Chang or the Marine Department to search for other survivors there and then.  This only confirms the Plaintiff’s case that the two of them at that time did not harbour any hope that there was any other survivor.   

25.  Kwei Ming said in his affirmation that Chow could have grabbed hold of a piece of wood or other floating objects to stay afloat given that the three brothers could stay afloat by grabbing on to the refrigerator.  However, if Chow was around on the sea surface and floating with or without the help of a floating object, she would have responded to the shouts of the three brothers.  Counsel for the defendant suggested that Chow might have been too weak to make an audible response to the brothers and she might only have had the strength to hold on to the floating object.  If Chow was indeed so weak that she could not have made any audible utterance in a calm sea, then she could not have survived until Tak Ming’s death.  It is clear that immediately after the collision, Tak Ming still had the strength to shout and swim.  He also rescued his niece.  But he did not survive for possibly more than one and a half hours later. 

26.  There is also no evidence to suggest why Chow, if she had the strength to swim to the water surface, would be so weak thereafter that she could not make an audible shout.  She might have lost her breath when exerting herself to the utmost in swimming up, but her breath would come back in a few minutes.  The visibility might have been poor, but the fog could not have stopped the travel of sound and the shouts of the brothers would have been heard by Chow if she was there. 

27.  Furthermore the visibility might be so poor that it affected navigation at sea and prevented a search by helicopter.  It does not mean that there was no visibility within a short distance.  A helicopter, of course, cannot conduct a search operation when the visibility is only 100 metres. 

28.  Given the scenario described by Kwei Ming and Sai Ming in their witness statements, it is more likely than not that Chow, Kok and Tong had all been carried into the water by the sinking vessel and the thrust of water created by the sinking movement and were unable to swim up again.  Chow was also a pregnant woman. 

29.  Kwei Ming also said in his affirmation that he had, on the same day, notified other fishermen of the accident and they sailed out to the sea near the scene to conduct a search for survivors including Chow.  The search lasted for a few days but produced no result.  He also said that he had told the Marine Department that there might be other survivors and the RAF did conduct a search for survivors in the morning of 15 March. 

30.  I think regardless of their conscious belief of the existence of other survivors, their desire for search for survivors is understandable.  They were obviously hoping against hope that there would be survivors.  In any case if Chow, Kok and Tong did not survive, they would still wish to recover their bodies.  However, it is their conduct whilst floating at sea and immediately upon being rescued to Kuo Chang which showed that they harboured no belief of other survivors including Chow. 

31.  Counsel for the defendants have also referred to authorities on the last person being seen, the shouting for help, the asking for rescuers, and a person not being seen after the accident.  These cases do not assist because they are all fact sensitive. 

Decision

32.  In the premises, I find that the Plaintiff has proved on a balance of probability that Chow had passed away shortly after the collision and Tak Ming survived her for no less than an hour. 

33.  I therefore declare that the two properties set out in the schedule to the Originating Summons passed to Tak Ming on the death of Chow and all the interest in the two properties now form part of the estate of Tak Ming.  I also make a cost order nisi that the Defendants do pay the Plaintiff the costs of these proceedings.  I further order that such costs be summarily assessed at a 9.30 am hearing to be fixed outside the next 14 days unless an application should be made for variation of the cost order nisi within the next 14 days.