CHUNG SUI CHEONG THE ADMINISTRATOR OF THE ESTATE OF CHUNG WAI MAN JOSEPH DECEASED v. TSANG WAI HUNG

HCPI 1058/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1058 OF 2015

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D E C I S I O N

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1. This is the defendant’s application for specific discovery of the bank statements of the plaintiff and his wife.

BACKGROUND

2. The plaintiff is the father and administrator of the estate of the deceased who died in a road traffic accident.

3. It was not in dispute that the deceased had been living in a Home Ownership Scheme flat owned by the plaintiff (the “HOS flat”). The Statement of Damages dated 5 October 2015 claimed that the deceased would on average contribute about HK$59,334 monthly, or about 75% of his income, towards the maintenance of his household.

4. Accordingly to Ms. Winnie Chan, counsel for the plaintiff, this calculation was based upon an assumption that the deceased was living with the plaintiff and his wife in the same household on the basis of the “Harris v Empress Motors principle”.

5. On 9 March 2016, the defendant took out the current application.

6. Subsequently, there was a somewhat change in stance in the plaintiff’s case.

7. In his witness statement dated 10 May 2016, the plaintiff stated that, in fact, the plaintiff and his wife did not live in the HOS flat, and that the deceased only paid about HK$5,000 as “household expenses” and about HK$1,500 for meals with the plaintiff and his wife each month. Further, the plaintiff alleged that the deceased had promised to pay HK$8,000 per month as rent for the HOS flat (as a lump sum in March 2013 when the deceased expected to receive end‑of‑contract gratuity payments from his employer). But the deceased passed away before this so no rent was ever paid.

8. As such, the claim for loss of dependency for both the plaintiff and his wife was revised accordingly in the Revised Statement of Damages dated 15 June 2016. The claim for pre‑trial loss of dependencies under FAO was reduced from around HK$1.7M to around HK$740,000, and the claim for post­trial loss of dependencies from around HK$15M to around HK$3.4M.

THE MATTERS IN DISPUTE

9. The defendant’s Affidavit in support (1^st Affidavit of Leung Fung Chi, solicitor acting for the defendant) was made back in March 2016. This was before the plaintiff’s change of stance. It was submitted that :-

“In view of the plaintiff’s claim for the huge amount of loss of dependencies, it is necessary…to seek disclosure of the bank statements to identify the financial status of the plaintiff and Madam Ng Siu King (the plaintiff’s wife) and ascertain if there were any deposits made by the deceased into their accounts.”

10. The plaintiff’s Affirmation in opposition (Affirmation of Tam Ping Wah) was made by the solicitor acting for the plaintiff. The main objection was that the bank statements were irrelevant. It was submitted, quoting from a previous letter from the plaintiff’s solicitors, that :-

“…we are instructed by our clients that such payments were usually made in cash without transaction records in writing….In other words, we do not have records or bank statements relating to the contribution made by the deceased to his parents.”

11. The defendant’s Affidavit in reply (2^nd Affidavit of Leung Fung Chi) submitted that, apart from ascertaining the contributions from the deceased, the further purpose for seeking the bank statements were to show the financial status of the plaintiff and his wife for “evaluating the merit of the claim for loss of dependency, in particular, the claim for future loss of dependency”.

12. With regard to this “further purpose”, Ms. W.T. Lin, solicitor for the defendant, explained that the financial status of the plaintiff and his wife was relevant because of matters raised in the plaintiff’s witness statement, namely, that the plaintiff purchased a village house in Sai Kung in 2011 (“the Property”) on “guarantee” from the deceased that he would continue to contribute financial support (and also, if necessary, would assist in the mortgage payment, although the plaintiff did not claim for this “promise” to assist). Ms. Lin suggested that, on review of the deceased’s bank accounts, he was living rather extravagantly and she questioned whether the deceased had any financial ability to assist his parents.

13. With regard to what I shall call the “original purpose”, that is, to show the bank transactions of the alleged contributions made by the deceased, I note the plaintiff’s affidavit in opposition was made by his solicitor, whose evidence was no more than hearsay in nature: “we are instructed by our clients that such payments were usually made in cash without transaction records in writing…”

14. It is trite law that:

“The verification of documents by affidavit is a duty that is personal to a party in an action and cannot be delegated (Clauss and another v. Pir[1987] 2 All ER 752). That being so it must have been intended that each of the defendants should file an affidavit or affirmation giving the specific discovery of documents ordered.” (per Sakhrani J. in Lau Chi Wang v. Ip Fook Chuen [2003] 1 H.K.L.R.D. 485, CFI)

15. As such, whilst I appreciate that the plaintiff has already stated this in his witness statement supported by a statement of truth, he still cannot delegate the duty of the verification of documents to his lawyer: what is required here is an Affidavit from the plaintiff and another from his wife, Madam Ng Siu King, stating their positions with regard to the specific discovery application.

16. As for the “further purpose” for the specific discovery, the issues related to this dispute can be summarised as :-

  i)  whether the deceased was actually making such contributions as alleged;

  ii)   whether the deceased had actually made various “promises” or “guarantee” as alleged; and if so

  iii)  whether the deceased would likely be in a position to continue such contributions or hold good any such “promises” or “guarantee” in the future.

17. Ms Chan submitted the case of Fung Suen Sim v Liu Chun Pong and Anor HCPI 896/2007 which seemed to suggest that a dependent’s actual financial status should not affect his dependency claim. However, a proper reading of the relevant paragraphs in the judgment showed that the Judge did not intend to establish a legal principle, he was merely presenting his findings on the evidence.

18. Ms Lin submitted the case of Tang Ho Yuen v. So Hing Kwong and Anor HCPI 318/2010 where the Master allowed such a similar application.

19. The objection of the Plaintiff is the relevancy of the parents’ bank statements, not to their existence. There is clearly no hard and fast rule and each case turns on its own facts. The overriding principle is that the documents should relate to a matter in issue in the action and that the discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs.

20. In this case, the alleged contributions were not trivial: the average contribution was claimed to be around HK$5,000 a month which in itself amounted to almost 10% of the deceased’s income. This was beyond what one might expect as some occasional “Lai See” as a gesture of filial piety or the like.

21. There was also an alleged promise to pay rent of HK$8,000 per month. The total alleged contribution would have been substantial (over 20% of the deceased’s income).

22. Further, the plaintiff claimed that he had committed himself to buying the property in 2011 on reliance of a “guarantee” by the deceased in continuing and even to increase his contributions, and to assist in paying the mortgage if needed in the future.

23. There was no other evidence at present of such contributions or “promises” / “guarantee” except what the plaintiff and his wife were saying.

24. It is clear to me that the bank statements of the plaintiff and his wife must be relevant. The relative financial status of the deceased versus the parents, as well as the “financial stresses” each party might be under, must be something that the court would consider in settling the issues in dispute.

25. As stated above, the alleged contributions and “promised” contributions were above and beyond what might be considered a gesture of filial piety. The payments were claimed to be a basis for the parents to commit to a substantial property investment.

26. It would be less likely that well-off parents would be receiving substantial contributions from a poor son, that under such circumstances the parents would be making a substantial investment on reliance of the son’s contributions, or that the son would be prepared give such a promise (or even a “guarantee”) to assist the father’s investment, and if he did, even less likely that he would be able to keep such a promise in the future.

27. On the other hand, a case might be made that well‑off parents might be prepared to provide rent-free accommodation for a poor son. It would unlikely under the circumstances that the parents would seek any promise from the son to contribute to the parents’ investment, especially on a long term basis.

28. Further, if the deceased was contributing rather substantial sums regularly during his life, one might expect a change in financial status and “financial stress” of the parents after his death which might be reflected in the bank statements of the parents.

29. In view of the above, I would allow the defendant’s application, but I am of the view that the requests covered too long a period for the above purpose, which is to show the relative financial status and “financial stress” of the parents and deceased around the time of purchase of the property and to show any change after death of the deceased. I would allow the application to cover the period from 1 April 2011 to 31 March 2014 (i.e. about 1 year after death which should reflect any change in circumstances).

ORDER

30. As such, I would make the following order :-

  i)  The plaintiff shall, within 28 days of this Order, make an affidavit stating whether all passbook entries / monthly statements of all savings / current and other bank accounts held solely or jointly by the plaintiff for the period from 1 April 2011 to 31 March 2014 are, or have any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with them and what have become of them; and

  ii)   Madam Ng Siu King (the mother of the deceased) shall, within 28 days of this Order, make an affidavit stating whether all passbook entries / monthly statements of all savings / current and other bank accounts held solely or jointly by Madam Ng Siu King for the period from 1 April 2011 to 31 March 2014 are, or have any time been, in her possession, custody or power, and if not then in her possession, custody or power when she parted with them and what have become of them.

31. There be an order nisi for costs of and occasioned by this application be to the defendant. If no agreement on costs is reached, the defendant to serve and lodge a summary statement of costs within 56 days of this Order and the plaintiff is to serve and lodge a list of objections 28 days thereafter for summary taxation.