NG KIN YUEN, the administrator of NG OI HA, deceased v. LAI CHUN HO AND ANOTHER

HCPI 390/2018

[2024] HKCFI 1644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 390 OF 2018

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is an assessment of damages in a fatal accident claim brought by the Plaintiff, Mr Ng Kin Yuen (伍乾元) (“Plaintiff”), the husband of Ms Ng Oi Ha (伍靄霞)(“Deceased”), acting as the administrator of the Estate of the Deceased.  The Deceased tragically died in a fire with explosion at 57-65, Wan Fung Street, Wong Tai Sin, Kowloon on or around 3:40 pm on 26 April 2015 (“Fatal Accident”).  Wu Hon Wai (胡漢偉) and another male also tragically died in the Fatal Accident and eight other persons were injured.  

2.  The Fatal Accident resulted in criminal proceedings against the 1^st Defendant who was, at all material times, under the employ of the 2^nd Defendant doing work on a liquefied petroleum gas tank inside the Vehicle Repair Workshop at Ground Floor No 63 Wan Fung Street, thereby causing the explosion and fire.  The 1^st Defendant was charged with three counts of gross negligence manslaughter under HCCC 213/2016 and two charges under KTCC166 / 2016:

(a)  failing to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work, contrary to section 6B of the Factories and Industrial Undertakings Ordinance (Cap 59); and

(b)  carrying out work on or in relation to a gas pipe while not being competent to do so, contrary to section 16 of the Gas Safety (Gas Supply) Regulations (Cap 51B). 

3.  As a result, the 2^nd Defendant was charged and convicted of three counts of gross negligent manslaughter, resulting in a total imprisonment term of 8 years on 17 August 2020: 香港特別行政區 訴 黎駿豪 [2020] HKCFI 2294. 

4.  At the time of the Fatal Accident, the Deceased was at the loft of the mirror shop at No 57 Wan Fung Street, Kowloon (“Mirror Shop”) and the rear portion of the Mirror Shop was abutting the back of the Vehicle Repair Workshop (§§5.2.2 and 5.2.4 of Fire Investigation Report). 

5.  The Plaintiff seeks damages against the 1^st and 2^nd Defendant arising from the Fatal Accident under inter alia, the Fatal Accidents Ordinance Cap 22 (“FAO”), and the Law Amendment and Reform (Consolidation) Ordinance Cap 23 (“LARCO”). 

BACKGROUND

6.  At the time of the Fatal Accident, the Deceased was 64 years old. 

7.  The Deceased was born in Mainland China on 27 April 1950.  She married the Plaintiff in Mainland China on 3 December 1969.  The Plaintiff was also born in Mainland China on 21 July 1949. 

8.  The Plaintiff and the Deceased have three children: the elder son, Wu Darong ( 伍達榮 ), who was 45 at the time of the Fatal Accident and is currently 53 living in New York; the middle son, Wu Dahua ( 伍達華 ), who was 42 at the time of the Fatal Accident and is currently 51 living in Florida, and the third son, Wu Dafu (伍達富), who was 40 at the time of the Fatal Accident and is currently 48 living in Hong Kong. 

9.  The Deceased also had three siblings in Mainland China: 伍瑞幟, 伍瑞章, and 伍藹雲. 

10.  On 11 November 2015, Tsang Wing Sze (曾穎詩) obtained the Grant of Representation for the Estate of the 2^nd Defendant. 

11.  On 12 April 2018, the Plaintiff issued the Writ of Summons.  

12.  On 21 February 2019, the Plaintiff obtained the Grant of Representation for the Estate of the Deceased. 

13.  The Order of Bharwaney J dated 31 August 2020 granted leave to the Plaintiff, administrator of the Deceased, to carry on these proceedings as the Plaintiff and for the Plaintiff to carry on these proceedings against Tsang Wing Sze, administratrix of Wu Hon Wai, deceased, as the 2^nd Defendant (“2^nd Defendant”). 

14.  An Amended Writ of Summons was issued by the Plaintiff on 4 September 2020 and an Amended Statement of Claim was filed on 4 September 2020. 

15.  On 12 March 2021, interlocutory judgment on liability was entered against the 1^st Defendant for damages to be assessed and costs to be taxed. 

16.  The Plaintiff discontinued proceedings against the 3^rd Defendant by Order of Master Kot dated 11 May 2021.  It was further ordered that the Plaintiff do pay to the 3^rd Defendant the costs of this action, to be taxed if not agreed. 

17.  An Amended Defence was filed by the 2^nd Defendant on 25 November 2021. 

18.  By the Order of Master Kot dated 18 August 2022, the Plaintiff has succeeded on the issue of liability in the case, and the 2^nd  Defendant do pay the Plaintiff’s damages, the quantum of which is to be assessed by the Court.  It was further ordered that the 2^nd Defendant do pay the Plaintiff’s costs of the liability proceedings up to 17 August 2022, irrespective of the decision of the proceedings. 

19.  The Plaintiff filed its Revised Statement of Damages on 13 September 2022.  The 2^nd Defendant filed its Answer to the Revised Statement of Damages on 1 March 2023. 

20.  The Plaintiff made an application to set down for Assessment of Damages on 22 September 2023.

21.  On 29 September 2023, the Plaintiff filed a Notice to Act in Person. 

PROCEDURAL MATTERS

22.  The hearing on assessment of damages was held on 29 November 2023.  Mr Shum appeared on behalf of the Plaintiff.  Mr Cheung appeared on behalf of the 2^nd Defendant.  The Plaintiff was the sole witness to give evidence. 

23.  Subsequent to the hearing, the Plaintiff filed Closing Submissions on 4 December 2023.  The 2^nd Defendant filed Closing Submissions on 11 December 2023 and the Plaintiff filed Reply Closing Submissions on 19 December 2023. 

24.  Pursuant to the Order of Master Kot dated 18 August 2022, it was ordered that the Plaintiff and the 2^nd Defendant do serve witness statements on or before 15 September 2022. 

25.  The Witness Statement of Ng Kin Yuen dated 13 September 2022 was filed in support of the Plaintiff’s claims (“Plaintiff’s Witness Statement”). §8 of the Plaintiff’s Witness Statement provides as follows:

“有關意外經過及起因，本案中各方披露之文件已有詳細提及，而且本案第一及第二被告人亦已承認責任；因此本人對於意外經過及成因亦不需再多說。至於有關本人於是次意外之損失，本人會於《經編正的損害賠償陳述書》再加詳述。”

“Detailed information on the sequence of events and the cause of the incident has been disclosed in the documents filed by all parties in this case. Furthermore, the 1^st and 2^nd Defendants have already admitted liability in this case. It is therefore, unnecessary for me to provide further details of the incident and its cause. I will provide a more detailed account of the losses I have suffered in the Revised Statement of Damages.” (English translation).

26.  Including §8 of the Plaintiff’s Witness Statement, there were only five substantive paragraphs.

27.  At the hearing, the 2^nd Defendant submitted that the Plaintiff did not file a witness statement on quantum and the trial should not proceed:

(a)  The witness statement does not cover the factual aspects on the damages.

(b)  Among other things, the objectives of the rules whereby the parties have to file their witness statements before trial are to achieve the fair and expeditious disposal of the proceedings, and elimination of any element of “surprise” before or at the trial as to the substance of the witnesses’ evidence (Hong Kong Civil Procedure 2023, § 38/2A/2).

(c)  The parties will no longer be able to spring or to be exposed to surprises as to the trial witnesses or their evidence, but will be required to “place their cards on the table.”

(d)  Without any witness statement filed by the Plaintiff in relation to the quantum of this case, the Plaintiff should not be allowed to adduce evidence on this aspect at the trial.  

28.  The 2^nd Defendant submits the Court should not allow the Plaintiff to adduce and to lead evidence from the Plaintiff’s witness at the trial for matters which are not even touched on in the Plaintiff’s Witness Statement.  

29.  Further, the Plaintiff should not be allowed to proceed with the trial with just a stack of documents (ie bank statements etc) included in the trial bundle but without any explanation as to the substance of these documents in a witness statement.  

30.  In this case, the 2^nd Defendant also did not file any witness statement.  However, the situation of the 2^nd Defendant is somewhat different from the Plaintiff.  There is no counterclaim by the 2^nd Defendant in this action.  The burden of proof of the entire case rests upon the Plaintiff.  The Plaintiff has to prove his case, including issues relating to quantum.  

31.  In summary, the 2^nd Defendant submits the Plaintiff should not be allowed to adduce evidence which is not covered in the Plaintiff’s Witness Statement. 

32.  I do not think Woonsing Limited v Wong Yi Ming (unreported judgment of Deputy High Court Judge Chu, HCA 6744/1998, 30 November 2000) which the 2^nd Defendant relies on assists the 2^nd Defendant.  In Woonsing Limited, the plaintiff made an application relating to the calling of a witness, a Miss Sung, the solicitor who was responsible for handling the transaction for the plaintiff.  Miss Sung was not scheduled as a witness and she had not given any witness statement.  Counsel for the plaintiff argued that O 38 r 2A of RHC has no restriction on the calling of new witness, and that the need for calling Miss Sung arose purely out of new matters occurring during the trial (namely the cross-examination of the plaintiff’s witness).  The application to call the new witness was refused on the basis that O 38 r 2A does not permit the calling of a witness, who had not given a witness statement, unless there is good cause and the court has given leave: The Supreme Court Practice 1999 vol 1 paras 38/2A/3 and 38/2A/4: §28 of Woonsing Limited.  

33.  In this case, the Plaintiff has provided a witness statement and referred to the Revised Statement of Damages in the Plaintiff’s Witness Statement.  The Plaintiff specifically stated in the Plaintiff’s Witness Statement that “I will provide a more detailed account of the losses I have suffered in the Revised Statement of Damages.” 

34.  When asked by this Court, Mr Cheung confirmed that he would be able to rebut the Plaintiff’s case on the basis of what was provided in the hearing bundle, and in the Revised Statement of Damages.  Further, the Court noted that the 2^nd Defendant had an opportunity to rebut the Revised Statement of Damages in the 2^nd Defendant’s Answer to the Statement of Revised Damages. 

35.  At the hearing, I ruled that the assessment of damages hearing shall continue on the basis that the 2^nd Defendant can always object to a particular piece of evidence which deviates from what was already included in the Revised Statement of Damages, and the Court could make an assessment as to the admissibility of that particular evidence from the Plaintiff.  The Court indicated that it would not allow evidence that strayed from the Revised Statement of Damages because it would prejudice the 2^nd Defendant. 

36.  For example, at §36 in the Plaintiff’s Opening Submissions, it is stated that no particulars of the three siblings in the Revised Statement of Damages or the Plaintiff’s Witness Statement have been provided regarding the dependants, and it was desirable for the Plaintiff while giving evidence in court to provide some oral clarifications. However, such oral clarifications in top up evidence would not be allowed by the Court. 

37.  Mr Shum submitted that the Plaintiff’s evidence is contained in the Revised Statement of Damages and it has been incorporated into the Plaintiff’s witness statement by §8 of the Plaintiff’s Witness Statement.  Therefore, these two documents together are the testimony and the Plaintiff’s Witness Statement.  I agree with these submissions.  I noted that the Revised Statement of Damages contained a Statement of Truth that was signed by the Plaintiff.  Both are dated 13 September 2022. 

38.  The Court indicated at the hearing if the Plaintiff wanted to proceed with the hearing, then it had to stick with the evidence already in the Plaintiff’s Witness Statement and Revised Statement of Damages of the Plaintiff and limited only to those pages without top up evidence in respect of other evidence which is not contained in the Plaintiff’s Witness Statement and the Revised Statement of Damages.  Otherwise the trial should be adjourned with submissions on costs.  When given these options, Mr Shum on behalf of the Plaintiff confirmed that the Plaintiff wanted to proceed with the assessment of damages hearing based on pages 44 to 51 of the hearing bundle, namely the Revised Statement of Damages.  Given the Plaintiff’s reference to the Revised Statement as to Damages in the Plaintiff’s Witness Statement, I am satisfied that these documents together form part of the Plaintiff’s evidence on damages. 

39.  Accordingly, the Court permitted the trial to proceed on the condition that the Plaintiff could only give evidence of the contents in the Revised Statement of Damages and while giving evidence, the Plaintiff could not deviate from the contents of the Revised Statement of Damages. 

40.  The 2^nd Defendant also submits that no document in the hearing bundles is admissible as evidence on the assessment of damages, save and except those expressly referred to during cross examination of the Plaintiff by the 2^nd Defendant (§7 of the 2^nd Defendant’s Closing Submissions). 

41.  This is plainly incorrect.  This court is entitled to take into account all documents in the trial bundles in assessing the quantum of the Plaintiff’s damages, since they have been admitted during the discovery process.  The Plaintiff’s Witness Statement does not have to refer to the documents in the trial bundles if they are self-explanatory.  Documents such as bank statements, speak for itself. 

42.  Before the commencement of the trial, the 2^nd Defendant on or about 22 November 2023 proposed to the Plaintiff that the following two land research records should be added to the trial bundles:  

(a)  Land search of Flat D, 3/F, San On Building, No 12 Shung Fun Street, Kowloon (“Property 1”); and

(b)  Land search of 4/F Floor, Wah Hing Mansion, No 32 Sheung Fung Street, Kowloon (“Property 2”).

43.  The Plaintiff agreed to the 2^nd Defendant’s proposal to insert into the trial bundles the land search records of Property 1 and Property 2.

44.  In light of the proposed addition by the 2^nd Defendant, the Plaintiff also proposed to the 2^nd Defendant that the following two land search records should be added into the trial bundles:

(a)  Land search of 5th Floor, No 15 Tsui Fung Street, Kowloon (“Property 3”); and

(b)  Land search of Shop A on G/F, No 57 Wan Fung Street, Kowloon - the Mirror Shop. 

45.  The 2^nd Defendant did not indicate whether the 2^nd Defendant was agreeable to the insertion of the land research records of Property 3 and the Mirror Shop.  However, in the 2^nd Defendant’s Closing Submissions, the 2^nd Defendant submits that the Plaintiff has attempted to add an additional Property 3 in order to revise the monthly income (for its loss of accumulation of wealth claim).  The 2^nd Defendant submits it is clearly beyond the scope of evidence in the Revised Statement of Damages. 

46.  No other submissions were provided by the Plaintiff as to why the land search records were submitted only on the eve of the trial. 

47.  With respect to the Mirror Shop, this was clearly pleaded as part of the Deceased’s half share earnings at §1(a)i of the Revised Statement of Damages.  The Plaintiff’s Witness Statement (at §4) also gives evidence that:

“The ownership of the premises at Ground Floor, 57 Wan Fung Street, Wong Tai Sin, was jointly held by me and my son, Wu Dafu, in a shared ownership arrangement. Prior to the incident, I had been operating at Ground Floor, 57 Wan Fung Street, Wong Tai Sin, for approximately 7 years.”

48.  Accordingly I allow the Mirror Shop land search record to be included in the trial bundle. 

49.  With regard to the land search record of Property 3, the Plaintiff referred to owning three properties jointly with the Plaintiff in the Revised Statement of Damages at §1(a) without identifying this third property.  No land search records were provided for Property 1 and Property 2 until the 2^nd Defendant suggested they be included in the trial bundle, even though Property 1 and 2 were specifically referred to in §1(a)ii of the Plaintiff’s loss of accumulation of wealth claim under the heading titled “VII Claims Under the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (“LARCO”)” of the Plaintiff’s Revised Statement of Damages. 

50.  While it would have been preferable if the Plaintiff had produced the land search record for Property 3 earlier, I allow this to be admitted and included in the trial bundle.  The land search record for Property 3 is a matter of public record, and, as such, has been accessible to both parties all along:  Choi Keung v Choi Leung Chuen unreported judgment dated 2 February 2021, HCA 296/2018 per Linda Chan J at §25; upheld by the Court of Appeal in the unreported judgment dated 10 June 2022, CACV 80/2021, per Kwan VP at §51. 

51.  Under  §6 of the Order of Master Kot dated 18 August 2022, the parties shall, within 35 days thereafter (or upon the expiry of the service deadline), ie, on or before 15 December 2022, agree on the contents of the assessment hearing bundle, and shall, within the 7 days thereafter, ie, on or before 22 December 2022, lodge with the Deputy Judge a copy of the agreed bundle index. 

52.  The October to December Quarter 2015 and April to June Quarter 2016 Demands for Rates and Government Rent for Property 3 with rateable values of HK$87,480 and HK$92,640 respectively were disclosed as item 23 (together with the rate demand letters for Property 1 and Property 2) under Part 1 of Schedule 1 of the List of Documents of the Plaintiff prepared and filed on 5 March 2021.  The rate demand letters for Property 3 have been disclosed as they are relevant documents and must be relevant for the purpose of assessing the rental profits of Property 3.      

53.  The rate demand letters were addressed to an unknown person named Poon Choi Kam, who from the land search record of Property 3 appears to be one of the previous owners of Property 3 before the Plaintiff and the Deceased (see page 984 of the trial bundle). The date of registration of the assignment in respect of the Deceased’s and the Plaintiff’s joint ownership of Property 3 was 11 May 2015. 

54.  The Plaintiff, presumably with the agreement of the 2^nd Defendant, included in the trial bundles the rate demand letters for Property 3. 

55.  Furthermore, I note that the Rating and Valuation Department addressed a Requisition of Particulars dated 20 October 2015 to the Plaintiff at the Property 3 address.

56.  I do not think the land search record for Property 3 should be excluded when it is clearly relevant to the resolution of the present dispute, the Plaintiff had referred to owning three properties jointly with the Deceased in the Revised Statement of Damages at §1(a) in addition to Property 1 and 2, the rate demand letters for Property 3 were disclosed and included in the trial bundle, and the 2^nd Defendant had suggested to the Plaintiff to include the land search records for Property 1 and Property 2 in the trial bundles.  The land search records for Property 1, 2, and 3 are a matter of public record, and, as such, has been accessible to both the Plaintiff and the 2^nd Defendant all along. 

PLAINTIFF’S CLAIMS

57.  The Plaintiff’s claims in the Revised Statement of Damages are as follows:

(a)  Under the FAO:

i.    Loss of dependency in the sum of HK$199,620;

ii.   Bereavement in the sum of HK$150,000;

iii.  Loss of services / maternal affection in the sum of not less than HK$240,000.00 (HK$80,000 each).

(b)  Under LARCO:

i.    Loss of accumulation of wealth:

a.  Income comprising of:

(i)   Half share of her earnings from the Mirror Shop business of HK$8,449 per month (HK$202,780.00/2 /12 months);

(ii)  Rental income of the two properties after deduction of rates, government rent and management fees:

a)  Property 1 (12 Shung Wah Street, Flat D, 4^th Floor, Sun On House, Wong Tai Sin, Kowloon).

[(HK$7,600 x 12) - Rates and Government rents of $3,266.00 Management fees of HK$2,160]/12 = HK$7,147.83.

b)  Property 2 (4^th Floor, 32 Sheung Fung Street, Tsz Wan Shan, Kowloon).

[(HK$8,500 x 12) - Rates and Government rents of $3,696 Management fees of HK$1,200]/12 = HK$8,092.

(iii) Income from stock investments and their interests of approximately HK$10,000.

Monthly income totaling approximately HK$33,688.83.

All the household expenses (including electricity, water, gas fees), rates, government rent fees, management fees, entertainment expenses are paid by the Deceased’s husband, the Plaintiff. She only paid for the food and her own personal expenses. She was able to save about HK$19,000 per month.

b.  But for her death, it is claimed that the Deceased would have achieved an accumulation of wealth under section 20(2) of LARCO.  A multiplier of 20 is appropriate for calculating the loss of that wealth.

c.  The loss of accumulation of wealth is as follows:

Monthly savings of about HK$19,000 x 12 x 20 = HK$4,560,000

ii.   Funeral expenses of HK$120,000

iii.   General damages

Pain and suffering: should not be less than HK$200,000

iv.  Special damages

Items claimed	Amount
Air tickets for the Deceased and the Plaintiff for the trip to New York on 28 April 2015 which have been cancelled due to the Fatal Accident	HK$16,000
Cash of HK$46,800 (US$6,000 x 7.8) in which the Deceased and the Plaintiff were prepared to bring to New York (burnt at the scene)	HK$46,800
Chinese drug, nourishing food, bracelet and other gifts which the Deceased and the Plaintiff were prepared to bring to New York (burnt at the scene)	HK$10,000
Diamond ring of the Deceased (burnt at the scene)	HK$10,000
Expenses incurred in obtaining an Order of Administration and Letters of Administration	HK$65,000
	HK$147,800

58.  In summary, the Plaintiff claims as follows:

Head of claim	Amount
Loss of dependency	HK$ 199,620
Bereavement	HK$ 150,000
Loss of services/ loss of maternal affection	HK$ 240,000
Loss of accumulation of wealth	HK$4,560,000
Funeral expenses	HK$ 120,000
Pain and suffering	HK$ 200,000
Special damages	HK$ 147,800
TOTAL	HK$5,617,420

59.  I now turn to the claims advanced by the Plaintiff. 

Claims under FAO

Loss of dependency claim

60.  This is an action brought by the administrators of the deceased for the benefit of her dependants under the FAO.  

61.  Under section 2(1)(h) of the FAO, dependant (受養人), in relation to a deceased person, is defined to mean “any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.”

62.  According to the Plaintiff, before her death, the Deceased gave red packets to her three siblings in Mainland China, namely,伍瑞帜, 伍瑞章, and伍窃云at every major Chinese festival including Chinese New Year, Mid-Autumn festival and Ching Ming festival at RMB1,000 per person on each occasion. The average monthly value of the contributions to the siblings is as follows:

(RMB$1,000 x 3 x 3) / 12 =  RMB750 (x 1.109 = approximately HK$831.75).

63.  Adopting a multiplier of 20, HK$831.75 x 12 x 20 = HK$199,620 is claimed (as detailed in the Revised Statement of Damages under the heading “IV Particulars of Dependency”). 

64.  According to the 2^nd Defendant, it is denied that the yearly giving of red pockets to the three siblings of the Deceased as a seasonal gift would constitute or establish the relationship of dependency.  It is denied the siblings of the Deceased were dependants of the Deceased (§§ 3 and 4 of the 2^nd Defendant’s Answer to Revised Statement of Damages).

65.  According to the 2^nd Defendant, there is no evidence to support the giving of red packets on major festivals by the Deceased. Further, red packets are well-known to be given to the younger generation only (§19 of 2^nd Defendant’s Closing Submissions). 

66.  The 2^nd Defendant submits that claims for dependency can be dismissed based on the paucity of evidence: Lam Yau, the Administratrix of the Estate of Lam Yuk Kwai, deceased v Shun Shing Construction & Anor [1992] 2 HKC 407.  In Lam Yau, the dependants were claimed to be the mother and father and all three brothers in the writ, but the evidence showed that the father and the two older brothers worked and contributed to the family budget.  Jennings DHCJ in the Court of First Instance held that the dependants were only the mother and younger brother.  The mother was 43 at the time of the accident, and a multiplier of 10 was adopted. The pre-trial period was 50 months. 

67.  The younger brother was 15 at the time of the accident and in education.  Both full-time and part-time education ceased a year ago, and during that year the boy had not worked.  No clear reason was given for this and although in evidence, he said he intended to resume education, he had no firm plans as to what sort or when it would start.  In Jennings DHCJ’s view, there was a likelihood is that he would start work.  The court considered his dependency ceased at trial. 

68.  In Cheng Shiu Ling and Hung Yuk Wah administrator and co-administrator of the estate of Tsai Lao Sha, deceased v Hui Wai Hung & Anor[1990] 2 HKC 367, the statement of claim particularised as dependants the mother, and grandmother of the deceased’s husband, who both live in the family home. 

69.  In Cheng Shiu Ling, the deceased had other relatives in China who were particularised as her father, mother, grandmother and younger brother.  The plaintiffs sought a dependency award on their joint behalves of $20,000 based on evidence in a declaration by the parents of the deceased, made in China and legalised at the British Embassy in Beijing.  Whilst disputing neither the provenance of this declaration nor the fact of the remittances declared therein, the defendants submitted that they failed to prove a dependency. 

70.  The declaration states that an average of $4,000 per year was received from the deceased since 1978.  Particular sums of varying amounts and totalling $18,500 were also declared to have been received on five occasions from February 1984 to January 1986.  The defendants argued that these payments were irregular, were not apportioned between each dependant, and were anyway from the family pool rather than from the deceased’s own earnings. 

71.  The Court accepted that $200 per month was appropriated by the deceased for her family in China.  It was a reasonable sum, it accords with the probabilities, and it accords with the figures accepted by the defendants in the context of the Hong Kong dependencies. 

72.  Master Jones was also of the view that it is inconsequential that the support can be continued by the remaining Hong Kong relatives: “A dependency award is founded not on need or legal entitlement, but on the actual fact of support prior to death.  I find that the payments in the declaration at page 26 of the plaintiffs’ bundle were payments for the support of the China relatives; I find also that on average the deceased probably allocated $200 per month towards those payments.  In the circumstances, the China relatives are entitled to awards.” [at §20] This was despite the four China dependants, with their respective ages at date of writ and relationships to the deceased, were: the father (aged 58), mother (56), grandmother (91), and brother (22) (at §22). 

73.  Kemp and Kemp on Quantum of Damages (Vol 4 §3-030) also refers to Betney v Rowlands and Mallard [1992] CLY 1786 in which ruled in favour of the adult dependants which included the elder daughter, who, at the time of fatal accident, was already in her adulthood at the age of 20, living with her boyfriend and had a full-time employment; and the middle daughter, who married 12 months after the fatal accident and by the date of trial already had a 16-month-old child and was expecting a second child. 

74.  The Plaintiff was not cross-examined regarding his dependency claim in respect of the three siblings.  I am of the view that the red packet sums of RMB1,000 each to the Deceased’s siblings are reasonable and accords with the probabilities.  There is actual fact of support for the three siblings.  Given what the Plaintiff has stated in the Revised Statement of Damages at “IV Particulars of Dependency”, which is referred to in the Plaintiff’s Witness Statement, I am satisfied that the Plaintiff did give red packets to her siblings of RMB1,000 per person for the three festive occasions. 

75.  I now turn to what multiplier should be adopted. 

Multiplier

76.  The multiplier for the claim of the red pockets by the three siblings should be only limited to the remaining notional working life of the Deceased, as the Deceased would cease her support for the three siblings upon her notional retirement. 

77.  The Plaintiff pleaded a multiplier of 20 for the three siblings’ dependency claims (and for loss of accumulation of wealth). 

78.  The Plaintiff conceded that a multiplier of 20 is a bold averment (at §40 of the Plaintiff’s Closing Submissions), in light of the Deceased’s age of 64/65 and inferred ages of the three siblings.  There is no evidence adduced of the ages of the three siblings.

79.  At the hearing, due to procedural fairness and the 2^nd Defendant not be taken by surprise, I did not allow any evidence in chief for the Plaintiff to provide oral clarifications on the three siblings’ ages as none was provided in the Plaintiff’s Witness Statement or the Revised Statement of Damages (which the Plaintiff’s Witness Statement refers to). 

80.  In his Closing Submissions, the Plaintiff submitted that in the absence of further particulars, the multiplier(s) for the claim of the red pockets by the three siblings should be only limited to the remaining notional working life of the Deceased, as on the balance of probabilities, the Deceased would cease her support for the three siblings upon her notional retirement.  As such, a multiplier of 5 should be adopted (§43(b) of the Plaintiff’s Closing Submissions). 

81.  The 2^nd Defendant submits that the multiplier of 5 suggested by the Plaintiff assumes that she would work until 70, in the absence of proof of bad health on the part of the Deceased.  However, there is no such evidence in the Revised Statement of Damages or in the examination in chief that the Deceased and the Plaintiff was in good health (§§20 and 21 of 2^nd Defendant’s Closing Submissions). 

82.  According to the 2^nd Defendant, assuming that the Plaintiff can prove that the Deceased was entitled to profit from the Mirror Shop Business, this Court has to consider the actual amount of profit the Deceased earned and the multiplier (§16 of 2^nd Defendant’s Closing Submissions).   

83.  I will go on to discuss the Mirror Shop business below.  As the Plaintiff was 65 years of age at the time of death of the Deceased, he had already reached the retirement age of 65 (§16 of 2^nd Defendant’s Closing Submissions).  Accordingly, the 2^nd Defendant submits the multiplier for the Deceased at age 64 is 0.98, with reference the multiplier proposed by the 2^nd Defendant on the head of loss of accumulation of wealth (§14 of the 2^nd Defendant’s Answer to the Revised Statement of Damages). 

84.  At §14 of the 2^nd Defendant’s Answer to the Revised Statement of Damages, the 2^nd Defendant averred that the multiplier of 0.98 according to the relevant Personal Injury Tables Hong Kong should be applied. 

85.  The Plaintiff concedes there is no direct evidence that the Deceased was in good health.  However, the Plaintiff submits that there is indirect evidence for the finding that the Deceased was in good health, and there is direct evidence at trial showing that the Plaintiff was and still is in good health (§§14-16 of Plaintiff’s Reply Closing Submissions). 

86.  The Plaintiff invited the court to logically infer that both the Deceased and the Plaintiff were in good health at about the time of the Fatal Accident, thereby finding that they would continue to operate the Mirror Shop until the age of 70 (§§18-22 and 26 of Plaintiff’s Reply Closing Submissions):

(a)  The Deceased and the Plaintiff bought a connecting flight in economy class to New York with the intention (and mental preparation) to endure no less than 18 hours of discomfort.  If the Deceased and the Plaintiff were not in good health, either one of them would not commit to such a long haul journey.  Assuming the Deceased was not in good health, the Plaintiff could have arranged the trip on his own alone, and vice versa. 

(b)  Also, if they were not in good health, but they were so eager to see their sons in the U S , they could have purchased the tickets to fly directly to New York in business and/or first class, which would be much more tolerable (especially they were perfectly and financially capable of doing so in light of them purchasing Property 3 with cash without a mortgage). 

(c)  However, they chose to endure the discomfort of a long-haul connecting flight in economy class.  This goes to show that they were physically fit for such prolonged discomfort.   

87.  Regarding the health of the Plaintiff, even at the age of 74 on 29 November 2023, the Plaintiff was walking with a normal gait agilely without a walking stick, and had no hearing problems at the hearing.  

88.  Accordingly the Court is invited to find that they were in good health such that together they would continue to operate the Mirror Shop until the age of 70 of the Deceased (§§27 to 30 of Plaintiff’s Reply Closing Submissions). 

89.  It is not ideal that the Court has no direct evidence of the Deceased’s and the Plaintiff’s health.  This is particularly so given that the Plaintiff initially claimed a multiplier of 20, and then advances a claim in its Closing Submissions of a multiplier based on 5, on the basis that the Deceased would be working until 70. 

90.  However, based on the fact that the Deceased and the Plaintiff bought a connecting flight in economy class to New York to endure no less than 18 hours of flight time, I am prepared to accept the Plaintiff’s submissions that they were good health.  If they were not physically fit and in good health, then both the Deceased and the Plaintiff would not commit to such a long haul journey.  They could have purchased a direct flight or tickets in business and/or first class, given they purchased Property 2 and 3 with cash without a mortgage. 

91.  Accordingly, I am prepared to accept a multiplier of 5, on the basis that the Deceased would be working until 70. 

92.  Regarding the exchange rate, the 2^nd Defendant has agreed to the exchange rates both for RMB & USD pleaded in the Revised Statement of Damages.  As to the exchange rate between HKD and RMB, the Plaintiff pleaded 1.109.  As to the exchange rate between HKD and USD, the Plaintiff pleaded 7.8.  Mr Cheung confirmed his agreement to the exchange rates for both RMB and USD at the hearing. 

93.  The award for the three siblings for the red packets is calculated as follows:

(a)  The three siblings’ individual pre-trial loss of dependency is: RMB1,000 x 3 x 5 (years/multiplier) = RMB15,000 plus interest.

(b)  With the multiplier being 5, there is be no post-trial dependency for the three siblings.

(c)  The three siblings’ individual pre-trial loss of dependency is RMB15,000 x 1.109 = HK$16,635 plus interest. 

94.  I now turn to the dependency claim of the three sons. 

95.  At §6(b) of the Amended Statement of Claim, the Plaintiff pleads that the dependants of the Deceased under the FAO are (i) Wu Darong, son of the Deceased, born on 9 October 1970; (ii) Wu Dahua, son of the Deceased, born on 30 October 1972; and (iii) Wu Dafu, son of the Deceased, born on 27 March 1975. 

96.  The particulars of the children of the Deceased as dependants are pleaded in Section III of the Revised Statement of Damages. 

97.  Under section 6(1) of the FAO:

“In the action, such damages, other than damages for bereavement, may be awarded to dependants in such proportions as reflect their respective injuries as a result of the death.”

98.  “Dependants” is defined in section 2(1)(f) of the FAO as “any child or other descendant of the deceased.” 

99.  The Plaintiff claims on behalf of the Deceased’s three children in the sum of not less than HK$240,000 (HK$80,000 to each of the three children) for loss of services under section 6(1) of the FAO (§2(b) of Section VI of the Revised Statement of Damages). 

100.  In §2(a) Section VI of the Revised Statement of Damages which the Plaintiff has referred to in the Plaintiff’s Witness Statement, before her death, the Deceased and her husband would visit their two elder sons who resided in New York and California respectively.  The Plaintiff’s Closing Submissions clarified this to be Florida instead of California (see §§10.2, 19, 28 and 91 of Plaintiff’s Closing Submissions).  Shortly before the Deceased’s death, they bought air tickets for their trip to New York to visit their elder son’s family since his wife was about to give birth.  The Deceased would have helped out with the caring of the new born and their daughter-in-law during her “月子”(the first 30 days after the birth) but for the Fatal Accident.  However, due to the Deceased’s death, the Deceased’s three children lost the means of support and services and have suffered a pecuniary loss of the gratuitous services rendered by the Deceased, which services would have continued but for the death. 

101.  In the 2^nd Defendant’s Answer to the Revised Statement of Damages, the 2^nd Defendant denied the Plaintiff’s claim and averred that the Deceased has been living apart from the children.  The Deceased’s gratuitous services and personal care would have ceased when their children have their own families and/or move out to live on their own.  The 2^nd Defendant further denied that the children of the Deceased or any of them have suffered loss or services and care as alleged or at all.  

102.  In the 2^nd Defendant’s Opening Submissions, the 2^nd Defendant submits that it is difficult to establish a claim for loss of services for the three sons living apart (in the U S ) with their own families (§11 of 2^nd Defendant’s Opening Submissions). 

103.  The 2^nd Defendant submits that under section 20C(3) of LARCO, damages for loss of society or services shall not be payable by virtue of subsection (1) if the injured person dies as a result of the act neglect or default referred to in that subsection and his death gives rise to a right to claim damages for bereavement under section 4 of the FAO (§12 of 2^nd Defendant’s Opening Submissions). 

104.  I will first address whether a claim for the loss of the services of the deceased is maintainable by the dependants under section 6(1) of the FAO, in light of s 20C of LARCO.  Given the cases that I refer to below, I conclude that the dependants can maintain such a claim. 

105.  In Leung Sing Kiu & Anor (Administrators Of The Estate Of Chan Lai Wah, Deceased) v Wong Shek Keung & Anor [1989] 1 HKC 206, this case concerned a traffic accident on Des Voeux Road West during which the deceased was knocked down by a van owned by the second defendant and driven by the first defendant.  The plaintiffs initiated proceedings under the FAO for her dependants and under LARCO in their capacity as administrators of her estate. Interlocutory judgment having been entered, the court only had to assess the damages.  

106.  The question arose whether the claim for the loss of the services of the deceased was maintainable.  The first defendant contended that it was not, on the basis that ss 20B and 20C of LARCO abolished such claims.  He further submitted that even assuming that such claims were still possible, they were maintainable only if domestic help was in fact hired, or at least there was a real probability that it would be hired. 

107.  Master Jerome Chan held that the estate’s right to claim for loss of services had been abolished by s 20B of the LARCO.  However, a dependant was entitled to be awarded damages under s 6(1) of the FAO in such proportions to reflect their respective injuries as a result of the death (at 210F).  Such injuries included a claim for loss of services.  The language of s 20C of LARCO was not capable of depriving a child of a deceased mother of a claim under s 6(1) of the FAO for loss of services (irrespective of whether a right to bereavement under s 4 of the FAO had arisen or not) (at 211F and 212F-G). 

108.  In Chan Ki & Anor v Travel Trade Communication Network and Marketing Services Ltd & Anor [1998] 2 HKC 57, the court followed Leung Sing Kiu and held that s 20C of LARCO was not capable of depriving the children of the deceased a claim under s 6(1) of FAO for loss of services (at 66B-C).  

109.  The second issue to address is whether a claim for loss of services for the three sons living apart (in the U S ) with their own families can be awarded.  

110.  I note the Plaintiff’s evidence at §2(a) Section VI of the Revised Statement of Damages that the Deceased had purchased air tickets to New York, the departure of which was scheduled on 28 April 2015, to help out caring of the new born and their daughter-in-law during her “月子”. As such, it is claimed that the three sons’ dependency claims are practically child-minding services.

111.  It has long been established that the award should represent the pecuniary value of even gratuitous services likely to have continued but for the intervening death.  Moreover, it has been recently recognised that replacement services need not actually be purchased for the right to compensation to arise: Cheng Shiu Ling & Anor (Administrator and Co-administrator of the Estate of Tsai Lao Sha, deceased) v Hui Wai Hung [1990] 2 HKC 367 at 372G-H.  

112.  I agree with the Plaintiff’s submissions that a loss of dependency under the FAO is not limited to the loss of benefit in money or money’s worth which would have accrued to the dependant if the deceased had not died as a result of the tort complained of.  In Burgess v Florence Nightingale Hospital For Gentlewomen [1955] 1 QB 349 at 357, Devlin J (as he was then) observed:

“I think it is clear that the authorities establish that if the benefit [for which compensation is sought in a fatal injuries’ action] arises out of the relationship it need not be a monetary benefit, but it can be services rendered which can then be translated into money; if a relationship, out of filial duty or any other motive that arises from the relationship, renders services to the plaintiff which he gives either free or at less than the market rate, the loss of those services is something that can be translated into cash and is recoverable under [the equivalent provisions of] of Act.”

113.  It is up to the Plaintiff to prove that services would be rendered to the three sons by the Deceased.  In Kan Wai Ling & Another v Kan Chi Fai [2018] 4 HKC 324 at 335-337, Bharwaney J held that awards for loss of dependency would be made by considering the evidence of the contributions made by the deceased to his dependents prior to his death – evidence of actual contributions made to the family. 

114.  In Cheung Kai Chi, Administrator of the estate of Cheung Kin Keung, deceased v Chun Wo Contractors Limited & Another (unreported judgment of L Chan DHCJ dated 29 December 2005, HCPI 572/2004), the deceased welder ganger left behind his widow, two sons, one daughter and the mother.  The elder son and daughter were at work.  The elder son and daughter were in gainful employment and making contributions to the family, and although they claimed to pursue further studies, there was not much evidence of that.  L Chan DHCJ found they were no longer dependent on the deceased (at §§34-35 of Cheung Kai Chi). 

115.  The only evidence that the Court has is the Deceased was going to New York to help out with the new born for the elder son’s family.  There is no evidence that the other adult sons had children and that the Deceased had cared for their children, or any gratuitous services performed by the Deceased that would have continued but for the intervening death.  There is no evidence of actual contributions to the other two adult children whatsoever. 

116.  On that basis, I decline to find that the other two adult children, Wu Dahua (42 at the time of the Fatal Accident; 51 at the notional date of trial) and Wu Dafu (39 at the time of the Fatal Accident; 48 at the notional date of trial) were dependents of the Deceased for child-minding services.  I decline to award any sums to the Deceased’s other children. 

117.  I am satisfied that HK$80,000 for child-minding services in New York and Hong Kong (where the Deceased was based) is reasonable for the prevailing circumstances around the time of the Fatal Accident.  Accordingly a sum of HK$80,000 is awarded plus interest.  This represents the eldest son’s pre-trial loss of dependency (Wu Darong). There will be no post-trial loss of dependency given the sums claimed relate to child minding services, and would have been performed before the trial. 

Bereavement

118.  The Plaintiff claimed the sum of HK$150,000 for damages for bereavement under section 4(2) of FAO (§1(a) of the Revised Statement of Damages).  In the 2^nd Defendant’s Answer to the Revised Statement of Damages, the 2^nd Defendant admitted this sum (at §VI1(a)).  Accordingly the Court grants the sum of HK$150,000 plus interest. 

Claims under LARCO

119.  This is an action by the administrators of the deceased for the benefit of the estate under LARCO.  

Loss of accumulation of wealth

120.  Under section 20(2)(b)(iii) of LARCO, this is the assessment of the amount which the Deceased would have saved during her working life, not spent during her retirement, and possessed when she died but for the Fatal Accident.  

121.  Such an award is recoverable if and in so far as the court is satisfied that, but for such fatal act or omission, the Deceased would have left an accumulation of wealth by the time when she would otherwise have died: Lam Pak Chiu & Anor v Tsang Mei Ying & Anor [2001] 2 HKC 1 per Bokhary J at 4E-F. (see section 20(2)(b)(iii) of LARCO). 

122.  The Plaintiff claims that the Deceased had regular savings during her life time, she owned three properties jointly with him (which have been rented out with monthly rental of HK$7,600 and HK$8,500 respectively, and she kept all the rental herself), she owned numerous stocks and had seven bank accounts (four in joint names with him).  It is claimed that on average, before the accident, the Deceased had monthly income as follows:

(a)  Half share of her earnings from the Mirror Shop of approximately HK$8,449 per month (HK$202,780/ 2 / 12 months). 

(b)  Rental income from the two properties after deduction of rates, government rent and management fees:

i.    Property 1

[(HK$7,600 x 12) – Rates and Government rents of $3,266 – Management fees of HK$2,160]/12 = HK$7,147.83

ii.   Property 2

[(HK$8,500 x 12) - Rates and Government rents of $3,696 Management fees of HK$1,200]/12 = HK$8,092

(c)  Income from stocks investments and their interests of approximately HK$10,000.

i.    Monthly Income totaling approximately HK$33,688.83.  All the household expenses (including electricity, water, gas fees), rates, government rent fees, management fees, entertainment expenses are paid by the Deceased’s husband.  She only paid for the food and her own personal expenses. She was able to save about HK$19,000 per month. 

ii.   But for her death, she would have achieved an accumulation of wealth under section 20(2) of LARCO. A multiplier of 20 is appropriate for calculating the loss of that wealth. 

iii.  The loss of accumulation of wealth is as follows:

Monthly savings of about HK$19,000 x 12 x 20 = HK$4,560,000

Was the Deceased a Co-operator of the Mirror Shop?

123.  It is the Plaintiff’s case that the Deceased was the co-operator the Mirror Shop (§1(a)i of the Revised Statement of Damages). 

124.  The Plaintiff submits that the Deceased was a partner to the Mirror Shop business and/or entitled to 50% of its profit and the Deceased was earning around HK$8,449 per month from the operation of the Mirror Shop after deduction of expenses. 

125.  The Plaintiff submits that it is open to this Court to find that the Deceased was the cooperator of the Mirror Shop, thereby entitling half of its proceeds, based on the following evidence.

126.  As shown in the Letters of Administration of the Deceased’s estate, the Deceased’s assets were practically intermingled with the Plaintiff’s. All the substantial assets of the Deceased were jointly owned with the Plaintiff:

(a)  Four out of the seven bank accounts were in the joint name with the Plaintiff;

(b)  All the stocks, shares and securities investments were in the joint name with the Plaintiff; and

(c)  From the land searches of the properties, Property 1, 2, and 3 were in the joint name with the Plaintiff as joint tenant before her death. 

127.  §§5 and 6 of the Plaintiff’s Witness Statement provide as follows:

“5. The incident occurred on Sunday, 26 April 2015. The shop was not open for business that day. At around 3:40 p.m. on that day, I was on the pedestrian path across from the shop collecting salted fish. Just as I was returning to the shop and standing at the entrance, I heard a deafening explosion sound.

6. After the explosion sound, I saw the wall at the end of the shop, connected to the twin mirror garage, collapsing towards the shop, followed by fire spraying towards my shop. A privately-owned car parked nearby was affected by the explosion and caught fire. At that time, my wife was in the attic. She might have been tidying up clothes or resting.”

128.  I also note the Plaintiff’s statement to the police on 26 April 2015:

“On 26 April 2015, since it was a Sunday and the shop was closed, my wife [the Deceased] and I were residing in the loft above the shop. At the rear of my shop, there is a wall and a garage (Twin Lens Motor Service) attached to it.”

129.  This tends to suggest that the Deceased and the Plaintiff were living in the Mirror Shop, given it was a Sunday and the shop was closed. 

130.  From the Plaintiff’s Witness Statement and evidence above regarding the Letters of Administration and the joint ownership of assets, the property searches of Property 1, 2, and 3 which showed joint ownership, and the Plaintiff’s statement to the police, I am satisfied that the Deceased was a cooperator of the Mirror Shop, thereby entitling the Deceased to half of its proceeds. 

131.  The Plaintiff also submitted that when passing the sentence on the 1^st Defendant in the criminal proceedings, Barnes J observed that the Deceased was in fact the co-owner of the Mirror Shop:

“Ms Ng Oi-ha and her husband Ng Kin-yuen actually jointly own a company called Po Kwong Mirror shop. This Po Kwong Mirror shop is actually located at No 57 Wan Fung Street, and that place is actually connected to the rear of this Twin Lens Motor Service.”

132.  However, the court was not asked to adjudicate on the issue of whether the Deceased was in fact the co-owner of the Mirror Shop.  Accordingly I placed little weight on the statement of Barnes J made in the criminal proceedings. 

133.  I now deal with the Deceased’s tax returns and whether they are an accurate reflection of the Deceased’s earnings. 

134.  The 2^nd Defendant submits that the major dependant of the Deceased as revealed in the Revised Statement of Damages is the surviving husband, the Plaintiff, now aged 74 years old (age 65 at the time of Fatal Accident) (§13 of the 2^nd Defendant’s Opening Submissions).  The Mirror Shop business was previously owned by the Plaintiff.  The alleged profit was derived from the business of the Plaintiff (§14 of the 2^nd Defendant’s Opening Submissions).  There is no evidence of the Deceased’s earnings from the Mirror Shop Business.  In the tax return of the Deceased for the year 2013/2014, there is no income reported (§15 of the 2nd Defendant’s Opening Submissions).   

135.  When questioned there was no income indicated the tax return of the Deceased in the year 2013/2014 in cross examination, the Plaintiff responded as follows:

Q. This is the tax return of the deceased in the year of 2013
and 2014.

A. Yes.

Q. It was report to the Inland Revenue there is no income at
all. I’m asking on the document.

A. If this is stated in the tax return, then so be it, but she
did have income. We are husband and wife.

Q. You just answer my question. Agree or not? Witness...

A. Definitely she had income. At that time, we jointly filed a
tax return as husband and wife.

136.  On re-examination, the Plaintiff clarified that:

A. However, if they are a couple, then the allowance would be
more than that. That would become $200-odd thousand. So
then if a single person can only have that allowance of
130,000 but a couple would allow a 260,000, then if the wife
has no income, then how could the allowance reach $260,000?

137.  The Plaintiff conceded in Closing Submissions that the explanations provided either under cross-examination or re-examination did not adequately account for the failure of reporting income on part of the Deceased (§76(d) of Plaintiff’s Closing Submissions). 

138.  The Plaintiff invited the court to ignore the tax return which are allegedly false. 

139.  In Kan Wai Ling (簡慧玲) and Fan Mei Na (范美娜) the co-administratrices of the estate of Kan Siu Hong (簡肇康), Deceased v Kan Chi Fai  (簡志輝) [2018] HKCFI 1024, Bharwaney J of the Court of First Instance observed that it was clear on the evidence that the deceased had grossly understated his income to the Inland Revenue.  The profit and loss accounts submitted to the Inland Revenue bore no resemblance whatsoever to reality (at §26). 

140.  Bharwaney J referred to §80 of the Inland Revenue Guidelines on the Projection Method which stated (at §26):

“Where the representative is confident that the taxpayer’s assessable profits have been correctly determined for a particular year of assessment, the relevant figure may be used for the purpose of estimating assessable profits for years where profits have been understated (provided that a more accurate means cannot readily be used).”

141.  He concluded that no reliance whatsoever could be placed on the utterly false returns that had been submitted to the Inland Revenue (at §26). 

142.  Bharwaney J at §26 referred to Fung Suen Sim v Liu Chun Pong at §15 on p.10 as follows:

“[Counsel for the defendant] rightly submitted that the court is not necessarily bound by matters stated in a tax return and is required to investigate what the real facts are. The contents of a tax return are admissible evidence and ought to be accepted as correct unless, on the totality of the evidence adduced, the court is satisfied that the true position is otherwise than that set out in those returns. As Reyes J. said in his judgment in the decision of the Court of Appeal in Christopher Gordon Young v Lee Chu (CACV 131/2003, 19 May 2004), at §132:

‘In ascertaining damages consequential on a wrong, a Court has to investigate the actual facts.  However tempting, the Court cannot prejudge its assessment of the facts on the basis that a plaintiff derived a significant tax advantage by presenting a certain picture of his affairs in his tax returns and should be held to that picture.  The picture painted in the tax returns may or not have been accurate in its characterization of fact.  The picture cannot bind a judge.  The Court may thus find at the end of the day that the true state of affairs was something other than that depicted in a plaintiff’s returns.  In appropriate circumstances, the Commissioner of Inland Revenue may consider whether or not a plaintiff has wrongly obtained a benefit for which he should be re-assessed to additional tax or penalized in some way.  But that is a decision for the Commissioner.  It does not affect the Court’s investigation of fact.’”

143.  Similarly, I do not think any reliance can be placed on the income tax returns of the Deceased in respect of no income being reported for the Mirror Shop for the reasons below. 

144.  The 2^nd Defendant puts the Plaintiff to strict proof that the Deceased has been earning around HK$8,449 on average per month after deduction of expenses (§8 of the 2^nd Defendant’s Answer Revised Statement of Damages).  The 2^nd Defendant contended, on the assumption that the Deceased’s income is arising solely from the Mirror Shop, the Deceased’s average income from the Mirror Shop was HK$4,000 after the deduction of necessary expenditures (§15 of the 2^nd Defendant’s Answer Revised Statement of Damages).  The calculation is as follows: HK$4,000 x 12 x 0.98 = HK$47,040. 

145.  In the personal tax return of the Plaintiff dated 4 May 2015, the profits of the Mirror Shop for the financial year 2014/2015 were HK$202,780 after deductions of expenditures and losses (HK$307,300 for 2015/2016).  I accept the Plaintiff’s submissions that it is likely that this amount was understated in the tax return.  From the land search of Property 3, the Plaintiff and the Deceased were able to acquire Property 3 in the sum of HK$3,230,000 without the assistance of a mortgage in April 2015.  

146.  With a yearly business profit of HK$202,780 for the year 2014/2015, it would take at least 16 years to accumulate circa HK$3.2 million to acquire Property 3 without mortgage assistance.  I conclude that the tax return stating the business profit of the Mirror Shop business cannot be accurate and the Deceased and the Plaintiff had understated their income in their tax returns. 

147.  I accept that the Deceased was entitled to half of the profits of the Mirror Shop and she was the cooperator of the Mirror Shop.  Even using the unrealistic figure of the profits of the Mirror Shop reported for tax purposes of HK$202,780, the Deceased’s share of the income of the Mirror Shop was therefore: HK$202,780/12 months x 50% = HK$8,449.13 per month. 

Rental income

148.  The 2^nd Defendant agreed that Property 1 and 2 were held by the Deceased and Plaintiff as joint tenants before the Fatal Accident (§10 of the Defendant’s Answer to the Revised Statement of Damages). 

149.  The 2^nd Defendant submits that as a result of the wife’s death, the surviving husband as joint tenant retained all the interests in the Properties and therefore he could not prove any financial loss that was occasioned by his wife’s death: Ng Shiu Chun (administratrix of the estate of Chow Shun Hong, Deceased) v Lai Tak Ming & Anor  HCA 4506/1984, 23 February 1991. 

150.  But this is not a claim for loss of rental income.  I consider that Ng Shiu Chun is different. In Ng Shiu Chun, it was not a claim under section 20(2)(b)(iii) of LARCO for loss of accumulation of wealth but was a FAO claim for loss of dependency.  In that case, the defendant contended that the evidence showed that the plaintiff was well able to carry on running the business in exactly the same way as before her husband’s death, apart from the modest drop in profit caused by him ceasing going out to look for new business.  The court was satisfied that the plaintiff failed to prove that any financial loss was occasioned to her by her husband’s death, so made no order under the FAO claim.

151.  I was referred by the Plaintiff to Chan Sim Lan and Another v Sheen State International Ltd. and Others [1994] 2 HKLR 173, in which Kaplan J discussed the operation of section 20(2)(b)(iii) of LARCO (at §50 and 51):

“50. It is clear from this sub-section that an award of damages based on an accumulation of wealth which would have existed as at the date of the likely natural death of the deceased can be made provided that the court is satisfied that some would have existed. I can find nothing in this section that provides for the award of a conventional or notional sum which I note is frequently awarded in some of the reported cases.

51. It seems plain to me that what the court has to consider is whether, at the date of death by natural causes, there would have been an accumulation of wealth, the realization of which the tortious death has prevented. The mere fact that some savings can be shown at the date of the tortious death is not tantamount to saying that such savings would have been in existence at the date of the natural death. It seems clear to me that whereas a man in this sort of work can make some savings, these are inevitably earmarked for the period after which he has retired and during which there is no meaningful old age pension or other support. Further, savings that can be identified at the date of the tortious death may well be spent on a variety of matters during the normal working life.”

152.  So the Court needs to decide an award of damages based on an accumulation of wealth which would have existed as at the date of the likely natural death of the deceased and be satisfied that some would have existed. The rental income of the Deceased goes towards the court’s consideration of accumulation of wealth. 

153.  The rental income from Property 1 and 2 after deduction of rates, government rent and management fees are as follows:

(a)  Property 1

i.    The yearly rental income of Property 1 is HK$7,600 x 12 = HK$91,200 at the time of the Fatal Accident (§1(a)ii of the Revised Statement of Damages).

a.  The Yearly Rates and Government Rent based on the rateable value in 2015 (see October to December Quarter 2015 Demand for Rates and Government Rent) is (HK$59,400 x 5%) + (HK$59,400 x 3%) = HK$4,752.

b.  The yearly management fees is HK$2,160 (§1(a)ii of the Revised Statement as to Damages).

c.  The monthly income generated by Property 1 after the deduction of costs is HK$91,200 – (HK$4,752 + HK$2,160)/12 = HK$7,024.

ii.  P roperty 2

a.  The yearly rental income of Property 2 is HK$8,500 x 12 = HK$102,000 at the time of the Fatal Accident (§1(a)ii of the Revised Statement of Damages).

b.  The Yearly Rates and Government Rent based on the rateable value in 2015 (see October to December Quarter 2015 Demand for Rates and Government Rent) is (HK$67,200 x 5%) + (HK$67,200 x 3%) = HK$5,376.

c.  The yearly management fees is HK$1,200 (§1(a)ii of the Revised Statement as to Damages).

d.  The monthly income generated by Property 2 after the deduction of costs is HK$102,000 – (HK$5,376 + HK$1,200)/12 = HK$7,952.

154.  It is further pleaded by the Plaintiff that the Deceased owned three properties jointly with the Plaintiff (§1(a) of the Revised Statement of Damages).  For Property 3, this was at 5/F, 15 Tsui Fung Street, Golden Phoenix Building, Kowloon (as indicated by the demand for rates and Government rent letters for the October to December Quarter 2015 and April to June Quarter 2016).  From the land search of Property 3, this was jointly owned by the Deceased and the Plaintiff.  It was purchased without a mortgage. 

155.  Although the rental income for Property 3 was not addressed in the Revised Statement of Damages, I consider that I am entitled to take the disclosed documents in the trial bundle into account to consider and calculate the Deceased’s monthly income (for the Plaintiff’s loss of accumulation of wealth claim).  I note that the address of the Plaintiff in the Letters of Administration is that of Property 3.  Further, that is the address in the Plaintiff’s Witness Statement and on the Hang Seng Bank Limited (addressed to the Plaintiff and the Deceased jointly) and Bank of China (Hong Kong) Limited (addressed to the Deceased) bank statements.  The Plaintiff submits that but for the fire, the Deceased and the Plaintiff would have continued to operate and live in the Mirror Shop. Accordingly, Property 3 could have been rented out for rental profits (§85(a) of the Plaintiff’s Closing Submissions). 

156.  I note that on the day of Fatal Accident, the Plaintiff’s statement to the Fire Services Department’s Wu Chan Lok (Assistant Divisional Officer) confirmed that although the Mirror Shop was closed on Sunday 26 April 2015 as it was a holiday, the Deceased was at the cockloft, possibly tidying up clothes or resting (see also the Plaintiff’s Witness Statement at §§5 and 6).  Property 3 was only purchased in April 2015 and the date of registration of the assignment was 11 May 2015 (which is after the Fatal Accident).  I am satisfied that but for the fire, it is more likely than not that the Deceased and the Plaintiff would have continued to operate and live in the Mirror Shop, and Property 3 could have been rented out for rental income.   

157.  I will now go on to consider the rental income from Property 3 after deduction of rates, government rent, and management fees. 

158.  The yearly rental income (rateable value) of Property 3 was HK$87,480 at the time of the Fatal Accident (see October to December Quarter 2015 Demand for Rates and Government Rent).

159.  Given the unavailability of the yearly rental income, I adopt the rateable value.  The yearly rates and Government rent based on the rateable value in 2015 were (HK$87,480 x 5%) + (HK$87,480 x 3%) = HK$6,998.40.

160.  The yearly management fees were unknown. The management fees of Property 3 would not be lesser that those of the Property 1 and the Property 2, as in the year of 2015, Property 3 had a higher rateable value (HK$87,480) than Property 1 and 2 (HK$67,200 and HK$59,400 respectively).  I use the rateable values of Property 1 and 2 to calculate the approximate management fees of Property 3. 

161.  The rateable value of the Property 1 in 2015 was HK$59,400, and the yearly management fees of the Property 1 were HK$2,160 (§1(a)ii of the Revised Statement as to Damages).  The ratio of the management fees to the rateable value is HK$2,160/HK$59,400 = 3.63%. 

162.  The rateable value of Property 2 in 2015 was HK$67,200, and the yearly management fees of Property 2 were HK$1,200 (§1(a)ii of the Revised Statement as to Damages).  The ratio of the management fees to the rateable value is HK$1,200/HK$67,200 = 1.79%. 

163.  Accordingly, the approximate yearly management fees of Property 3 are HK$87,480 x (3.63% + 1.79%)/2 = HK$2,370.71.

164.  Finally, calculating the monthly income generated by Property 3 is HK$87,480 – (HK$6,998.40 + HK$2,370.71)/12 = HK$6,509.24. 

165.  Further, it is noted that the total net rental income of the properties are applied notwithstanding the Deceased was only one of the joint tenants.  Accordingly, only 50% of the total net income should be applied. 

166.  The Plaintiff agrees with this and submitted that consistent with arguments of “high degree of asset intermingling” advanced for the Deceased being the partner and/or cooperator, for the purpose of determining her monthly income, the Deceased should be only entitled to 50% of the rental profits from the Property 1 and Property 2 (at §81 of the Plaintiff’s Closing Submissions).  

167.  Since the Deceased should be only entitled to half of the rental profits from Property 1, 2 and 3, the Deceased’s share is HK$7,024 + HK$7,952 + HK$6,509.24/ 2 = HK$10,742.62. 

Stock investments

168.  The Plaintiff claims income from stock investments and their interests of approximately HK$10,000 per month for the Deceased as part of the loss of accumulation of wealth claim under section 20(2)(b)(iii) of LARCO: §1(a)iii of the Revised Statement of Damages.  This is equivalent to HK$5,000 for the Deceased’s half share: §83 of the Plaintiff’s Closing Submissions. 

169.  At §20 of the 2^nd Defendant’s Opening Submissions, the 2^nd Defendant submits there is no evidence of the earning in stock investments and it is not a must that stock investments would inevitable generate income or profit. 

170.  I have reviewed the Letters of Administration of the Deceased and the Schedule of Assets and Liabilities of the Deceased dated 23 January 2019.  At §4(a) under “Stocks, Shares, Warrants and Unit Trusts”, the Deceased held under Investment Funds Account No 240-182055-382 (should be 240-182055-882 – see Hang Seng Bank Statement of Integrated Account and Statement Date 11 November 2015) opened with Hang Seng Bank Limited in the joint names of the Deceased and the Plaintiff were 326.30 units of U43158 – Fidelity Funds – China Focus Funds Class A Shares (USD DIST).  

171.  At §4(b) under “Stocks, Shares, Warrants and Unit Trusts”, the Deceased held under Securities Account No 012-683-63-03117-5 opened with Bank of China (Hong Kong) Limited in the joint names of the Deceased and the Plaintiff were shares held in Hong Kong & China Gas (00003): 9,020 shares; Yuexiu REIT (00405): 10,000 shares; Yanzhou Coal (01171): 4,000 shares; Midland Holding (01200): 4,000 shares; ICBC (01398): 10,000 shares; Country Garden (02007): 10,000 shares; China Life (02628): 2,000 shares; and Hong Kong Electric-SS (2638): 5,000 shares. 

172.  I have reviewed the documents adduced in the trial bundle, including the Statement of Integrated Account of the Deceased and the Plaintiff with Account Number 240-182055-882 at Hang Seng Bank of 11 November 2015 and 11 December 2015 which indicates the financial position of investments and the Bank of China statement addressed to the Deceased dated 31 October 2015. 

173.  There is no evidence adduced, and none was referred to me by the Plaintiff, to support the Plaintiff’s claim that the Plaintiff and the Deceased would have earned income of HK$10,000 per month from stock investments.  In fact, the December 2015 Hang Seng Bank Statement shows a decrease in the value of the stock investments from the November 2015 position - from HK133,559.22 to HK$128,419.04.  

174.  The Plaintiff, on cross-examination, also agreed that stock investments would not necessarily earn a profit.  

175.  I am not satisfied that the stock investments would have generated income of HK$10,000 per month as claimed.  I decline to include HK$5,000 in the Deceased’s monthly income for the purposes of consideration of the accumulation of wealth claim under section 20(2)(b)(iii) of LARCO. 

176.  In summary, the Deceased’s monthly income is HK$19,191.75.  This consists of her 50% share of the income from the Mirror Shop in the sum of HK$8,449.13 and rental income of the three properties of HK$10,742.62. 

177.  According to the Plaintiff’s evidence at §1(a) of the Revised Statement of Damages, all the household expenses (including electricity, water, gas fees), rates, Government rent fees, management fees, entertainment expenses are paid by the Deceased’s husband.  She only paid for the food and her own personal expenses.  According to the Plaintiff, she was able to save about HK$19,000 per month.  This is based on a total monthly income of HK$33,688.83. The Deceased had a monthly expenditure of HK$14,688.83 (§1(a) of the Revised Statement of Damages). 

178.  In calculating the income from the Properties above, I have already assumed that the Deceased paid half of the rates, Government rent fees and management fees to generate half of the rental income from the three properties. 

Analysis of Deceased’s Accumulation of Wealth

179.  I now turn to the analysis of the Deceased’s accumulation of wealth, if any.  

180.  From the Letters of Administration and the Schedule of Assets and Liabilities of the Deceased, the Deceased had cash deposits at seven bank accounts (four of them in joint accounts with the Plaintiff), investments in a fund and stocks which were identified above at §§170 and 171, various insurance policies, the joint owner of three properties, and the cooperator of the Mirror Shop. The Letters of Administration of the Deceased revealed that the Deceased had assets but did not have any liabilities. 

181.  For Property 1, the purchase price was HK$750,000 (June 1998) and it was purchased with a mortgage (HSBC) but paid off within 3.5 years (December 2001).  For Property 2, the purchase price was HK$2,250,000 but it was purchased without a mortgage. For Property 3, the purchase price was HK$3,230,000 but it was purchased without a mortgage.  From the above, I find that the Deceased had an obvious savings pattern. 

182.  On the balance of probabilities, I find that the Deceased would have achieved accumulation wealth at the time of her notional retirement.  She had an obvious savings pattern. She was a frugal person, taking connecting flights of more than 18 hours to New York in economy class.  On the day of the Fatal Accident, which was a Sunday, the Plaintiff and the Deceased stayed at the Mirror Shop, even though it was closed.  This goes to indicate that the Deceased (and the Plaintiff) didn’t spend much and preferred to stay at “home”.  As stated above, Property 2 which was purchased for HK$2,250,000 in or around March 2013, and Property 3 which was purchased for HK$3,230,000 in or around April 2015, did not require mortgage financing.  Furthermore, Property 1, which was purchased for HK$750,000 and did require a mortgage, only took the Deceased and the Plaintiff about 3.5 years (10 June 1998 to 14 December 2001) to pay off the mortgage completely. 

183.  I accept the Plaintiff’s submissions that this shows that the Plaintiff and the Deceased must have been hard-working, frugal and prudent with their earnings and spending. 

184.  On the question of post-notional retirement, I am of the view that the Deceased’s post-retirement incomes are likely to exceed her post-retirement expenditures, such that the wealth accumulated at the time of her notional retirement would remain at least undiminished.  The Plaintiff and the Deceased were the joint tenants of Property 1, 2, and 3.  They would continue to generate rental profits for the Plaintiff and the Deceased for their post notional retirement expenditures.  Given my finding that the Deceased must have been hard-working, frugal and prudent with their earnings and spending, I am satisfied that the wealth accumulated by the Deceased at the time of her notional retirement would at least remain undiminished, by the time of her notional death. 

The Wealth Accumulated by the Deceased at the time of the Notional Retirement

185.  This section deals with how much wealth the Deceased would have accumulated at the time of her notional retirement, but for her death. 

The multiplier

186.  In Fung Suen Sim v Liu Chun Pong (unreported judgment of Bharwaney J, HCPI 896/2007, 23 December 2011) and Kan Wai Ling & Anor v Kan Chi Fai [2018] 4 HKC, in the absence of evidence indicating ill health, business losses, and anything that would have prevented them from working until the age of 70, business owners would continue to carry on their businesses until the age of 70. 

187.  In Kan Wai Ling, Bharwaney J observed as follows (at §§118 & 119):

“118. In Fung Suen Sim v. Liu Chun Pong, I had concluded that the probabilities were that the deceased in that case would have continued his occupation as a sole proprietor of his wholesale vegetable business and would have carried on his business until he reached the age of 70. His pre-accident lifestyle was such that I could not conceive of any reason why he would stop working, in order to pursue other activities, unless he had to stop by reason of ill health or business losses. I had found that the outlook for his business was very positive and continued to remain positive. I noted in that case that I had not received any evidence that would have led me to conclude that he was unlikely to remain healthy up to the age of 70. I found particular assistance from the decision of O’Connor J, as he then was, in Davies v Whiteways Cyder Co Ltd [1975] 1 Q.B. 262 before reaching that conclusion. In that case, Mr. Davies was killed in a traffic accident in 1971 when he was 55 years old. He was a successful businessman. Until 1963, he owned and ran a family business. In that year, the business was taken over. He then started a partnership with a Mr. Phillips to build houses and to sell them. In assessing the appropriate multiplier, O’Connor J had regard to age of health of Mr. Davies, the age of health of Mr. Phillips, and the age of the business. Mr. Davies enjoyed excellent health prior to the time of his death. He was an active man and highly enjoyed the business in which he was engaged, which was carried out from his home. O’Connor J was of the view that it was highly improbable that he would have wanted to retire before he reached the age of 70. He also held that the probability was that the business would have remained profitable for a long time to come.

119.  The deceased in the present case also carried out his dump truck transport business from his home. Cheung Hong employed drivers to operate the dump trucks. The deceased did not himself drive the dump trucks. I have already found that his business was profitable and I have assessed his notional net of tax income today to be HK$1,194,775 per annum or HK$99,565 per month (HK$1,194,775/12). Cheung Hong had purchased a dump truck in 2007 and 2 more dump trucks in 2008. I have no basis to find that his business would not have remained profitable. His habit of often travelling to Shenzhen for massages would not have prevented him from working until the age of 70.  I accept the evidence of Madam Fan and find that, prior to his death, the deceased was in good health and lived a normal life. He did not smoke or drink. He was a hard-working person, cheerful and helpful, and he was well liked by his friends and business colleagues who liked to work with him. I have no basis to conclude that he was likely to become healthy before the age of 70 years. I find that, but for his untimely death, the probabilities are that the deceased would have continued to carry on his dump truck transport business for a further 9.5 years until he reached the age of 70.”

188.  Applying Fung Suen Sim and Kan Wai Ling to the present case, there is no evidence to indicate that the Deceased or the Plaintiff were unhealthy.  There is no evidence to show that the Deceased and the Plaintiff had any unhealthy habits, such as smoking or drinking, which would diminish their working longevity.  The Mirror Shop, which was the Deceased’s joint business with the Plaintiff, was profitable.  I have no basis to find that his business would not have remained profitable.  According to §4 of the Plaintiff’s Witness Statement, the Mirror Shop is held jointly by the Plaintiff and his son, Ng Dafu, as tenants in common.  This provided the Deceased and the Plaintiff with security.  It was a Sunday but the Plaintiff and the Deceased were at the Mirror Shop, even though it was closed. The Plaintiff and the Deceased were practically living at the Mirror Shop. 

189.  Accordingly, I find that the Deceased’s notional retirement age would be 70 and her notional retirement day would be on 27 April 2020.  The multiplier for the loss of accumulation of wealth is 5, because at the time of the Fatal Accident, the Deceased was practically 65 years old (1 day shy of 65 years old). 

190.  The Plaintiff submits that the multiplier for the three siblings’ dependency shall be 20, as opposed to 5.  The reason for this is the three siblings’ dependency does not hinge upon whether or not the Deceased would be working at the Mirror Shop as there were other continuous passive incomes, such as the rental profits and incomes from the stocks and shares, independent of the Deceased’s earnings from the Mirror Shop.  The Deceased’s share alone in the rental profits generated by Property 1, 2, and 3 would be more than adequate to provide the seasonal gifts to the three Siblings. 

191.  Based on my analysis above at §§86-91, I reject this submission.  Furthermore, the Plaintiff acknowledged at §43(b) of the Plaintiff’s Closing Submissions that in the absence of further particulars, the multiplier(s) for the claim of the red pockets by the three siblings should be only limited to the remaining notional working life of the Deceased, as on the balance of probabilities, the Deceased would cease her support for the three siblings upon her notional retirement. As such, a multiplier of 5 should be adopted.

The multiplicand

192.  The Deceased had a monthly expenditure of HK$14,688.83  (HK$33,688.83 – HK$19,000 = HK$14,688.83) (§1(a) of the Revised Statement of Damages). 

193.  The Plaintiff submits that the estimated monthly spending of HK$14,688.83 for the Deceased for a frugal elderly lady is rather generous.  The Deceased did not have to pay rent by living at the loft of the Mirror Shop jointly owned by her husband and the third son. 

194.  I am of the view that this estimated monthly spending of the Deceased does look to be on the high side.  However, the Plaintiff has not adduced evidence of the actual amount of expenditure other than what was contained in §1(a) of the Revised Statement of Damages, which the Plaintiff referred to in the Plaintiff’s Witness Statement.  No other amount of expenditure was advanced by the Plaintiff in the Plaintiff’s Closing Submissions.  I shall proceed according to this monthly spending when calculating the amount that the Deceased was able to save. 

195.  From §176 above, the Deceased’s monthly income is HK$19,191.75.  This consists of her 50% share of the income from the Mirror Shop in the sum of HK$8,449.13 and rental income of the three properties of HK$10,742.62. 

196.  With the Deceased’s monthly income at HK$19,191.75, the Deceased would have been able to save about HK$4,502.92 per month  (HK$19,191.75 – HK$14,688.83 = HK$4,502.92).  

197.  At the time of her notional retirement at the age of 70 on about 27 April 2020, the Deceased would have accumulated wealth of HK$270,175.20 (HK$4,502.92 x 12 x 5 = HK$270,175.20). 

Post-Notional Retirement Circumstances

198.  I will now proceed to determine if post-retirement circumstances would increase or deplete the wealth accumulated at the time of the notional retirement.  To do this, I need to determine the notional death of the Deceased.  

199.  In Kan Wai Ling & Anor, Bharwaney J (at §123) took judicial notice of the Hong Kong Life Tables published by the Census and Statistics Department in respect of the current expectation of life for females, being 87.3 years.  I also do so likewise.  The Hong Kong Life Tables 2011-2066 published by the Census and Statistics Department Hong Kong in September 2017 show that the Deceased had a life expectancy of 87.3 years.  Given that the Deceased was born on 27 April 1950, the Deceased’s notional death would be in or around August 2037.

200.  A discount rate is the rate of return used to discount future cash flows back to their present value.  In Chan Pak Ting v Chan Chi Kuen (No 2) [2013] 2 HKC 365, Bharwaney J embarked on a critical analysis on the validity of the presumed rate of return of 4.5% adopted (from Cookson v Knowles [1979] AC 556) by the Court of Appeal in Chan Pui Ki v Leung On [1996] 2 HKLR 401.  Bharwaney J observed that a 4.5% return was unrealistic and unachievable.  Instead, a range of discount rates corresponding to the duration of future expenses to be incurred were adopted: - 0.5% (up to 5 years), 1% (up to 10 years) and 2.5% (beyond 10 years) (at §139): 

“139. However, there is a sufficiently significant difference in the discount rate of plaintiffs with future needs of more than 10 years, and the discount rate of plaintiffs with future needs of less than 10 years, as would justify different discount rates for these two categories of plaintiffs. I, therefore, adopt a discount rate of 2.5% for plaintiffs with needs of more than 10 years. As I have decided to adopt a different discount rate for plaintiffs with needs of more than 10 years, in order to be consistent, I should also adopt a different discount rate for plaintiffs with needs of less than 5 years, which I assess to be -0.5%, and less than 10 years, which I assess to be 1%.”

201.  The Deceased’s notional retirement age would be 70 on 27 April 2020 and the Deceased notional death would be at the age of 87.3 in August 2037. 

202.  Hence the investment term is 17.3 years (more than 10 years). Thus a rate of return of 2.5% should be adopted. 

203.  The Deceased would have started to invest her notional retirement wealth upon her notional retirement on or around 27 April 2020, up to the date of judgment, namely June 2024, the notional wealth would have increased as follows:

HK$270,175.20 + (HK$270,175.20 x 2.5% x 4.17 [4 years and 2 months]) = HK$298,340.97.

204.  This remaining net balance on the notional date of death would then have to discounted for accelerated receipt of 13.17 years from the date of natural death (in August 2037) to the date of judgment (June 2024). 

205.  Table 27 of the Chan Tables 2019 shows a discount factor of 0.7254 for a term certain of 13 years at the discount rate of 2.5%.  It shows a discount factor of 0.7077 for a term certain of 14 years at the discount rate of 2.5%. 

206.  I adopt a discount factor of 0.7224[1] (ie a discount of about 28%), as the appropriate discount factor to apply for this length of time.  Applying this discount factor to the accumulated fund at the time of natural death produces the sum of HK$215,518.83 (HK$298,340.97 x 0.7224). 

207.  On the basis of the above assessment, I award the sum of HK$215,518.83 as the loss of the net accumulation of wealth in favour of the estate under the provisions of LARCO.  

208.  I am satisfied that wealth notionally accumulated by the Deceased at the time of the notional retirement to the time of her notional death would at least remain undiminished, due to the following reasons:

(a)  the Deceased and the Plaintiff were frugal, requiring modest expenditures.  The Deceased would not have to pay rent; and

(b)  there would be passive profits from Property 1, 2, and 3.  I am satisfied that a frugal elderly couple living in Hong Kong could survive on the rental profits from three properties alone without the need of drawing money down from their savings. 

Funeral expenses

209.  Under §2 of “VII Claims under LARCO” of the Revised Statement of Damages, the Plaintiff claims the expenses for the funeral and burial of the Deceased in the sum of HK$120,000.00 under section 20(2) of LARCO. 

210.  At §16 of the Answer to the Revised Statement of Damages, the 2^nd Defendant is prepared to pay HK$80,000 for the expenses for the funeral and burial of the Deceased. 

211.  In §22 of the 2^nd Defendant’s Opening Submissions, the 2^nd Defendant submits that the total sum of HK$86,400 for funeral expenses is from all the relevant receipts (as evidenced in the trial bundle). 

212.  In §132 of the Plaintiff’s Closing Submissions, the Plaintiff invited the court to award HK$86,400 plus interest for funeral expenses.

213.  In §28 of the 2^nd Defendant’s Closing Submissions, the 2^nd Defendant accepted the sum of claim under this head should be HK$86,400. 

214.  Accordingly, I award HK$86,400 plus interest for funeral expenses. 

Pain Suffering and Loss of Amenity (“PSLA”)

215.  Under §1 “VIII General Damages” in the Revised Statement of Damages, the Plaintiff claims damages for PSLA in the amount of not less than HK$200,000. 

216.  In the Revised Statement of Damages which the Plaintiff referred to in the Plaintiff’s Witness Statement, the Plaintiff contends that he heard the Deceased screaming “救命呀…救命呀” on the 2^nd Floor of the Mirror Shop immediately after the Fatal Accident. The Plaintiff immediately asked the firewoman nearby to save his wife but the firewoman said they could not enter the scene.  Some policemen dragged him away.  Her body was removed from the scene after 11 pm and was certified dead.  Since the Deceased was screaming “救命呀” immediately after the explosion, taking into consideration of her pain, fear and distress, the award for PSLA should not be less than HK$200,000.  

217.  In §7 of the Plaintiff’s Witness Statement, he states that:

“After the incident occurred, I was standing outside the shop and heard my wife shouting for help, ‘Help... Help... Help...’ . At that moment, I wanted to rush into the fire and rescue my wife. However, due to the intense and overwhelming flames, I called for the female firefighter present to enter the shop and save my wife. Shortly after, I was escorted away from the scene by the police officers present. I could no longer hear my wife’s cries for help.”

218.  In §§17-19 of the 2^nd Defendant’s Answer to the Revised Statement of Damages, the 2^nd Defendant denies that the Plaintiff is entitled to claim PSLA when the Deceased died almost immediately after the explosion.  According to the autopsy report of the Deceased, the Deceased was found dead at the scene after an explosion and it was also found that the main cause of death of the Deceased was severe deep burns.  The 2^nd Defendant therefore denied that the Deceased was suffering pain, fear and distress after the explosion as alleged.

219.  In his limited cross-examination, I found that the Plaintiff was a reliable witness, and I have no reason to doubt his account of the Fatal Accident.  He told the fire services officer that the Deceased was trapped inside M/F of the shop after the explosion (see below).  In cross-examination, the Plaintiff confirmed that he told the fire services officer that he could hear the Deceased cry ‘help’:

Q. Mr Ng, I’m representing the 2nd defendant. May I refer you
To page 88 -- 89, bundle A? You mentioned about you heard
the voice of your wife yelling “Help, help, help”.

A. Yes.

Q. And I further refer you to bundle B, page 462. This is a
witness statement given by you.

A. Correct.

Q. To the Fire Service Department.

A. Yes.

Q. You -- in the statement, you have signed at the bottom,
signed your own name.

A. Correct.

Q. And in the statement you mentioned about the encounter of
the accident.

A. Yes.

Q. But you didn’t mention about the yelling of your wife for
help.

A. I did, I did. I said to the fire officer, I even said to
the female fire officer at the scene. I said that “My wife,
I could heard that she was yelling ‘Help.’ Please go up to
save her.”

Q. But that was not mentioned in the statement, do you agree?

A. Because that question was not asked and therefore I didn’t
provide that particular answer, but you can ask the female
fire officer.

Q. You mean the fire officer at the scene?

A. Yes, that fire officer, female fire officer. I personally told her.

220.  I have reviewed the police and fire services reports that were contained in the trial bundle. 

221.  In the Plaintiff’s statement given to the police on 26 April 2015 (DPC 34888 Lau Ka Fai), the Plaintiff informed the officer that he heard his wife shouting, which is consistent with the Plaintiff’s Witness Statement and his testimony in court:

“As I reached the entrance of my shop, I suddenly heard a loud explosion and saw a huge fireball bursting out of the car garage (Twin Lens Motor Service). After that, a fire broke out in the car garage, and the mirrors and other items inside my shop fell to the ground, blocking the path to the upstairs flat where my wife was. I heard my wife shouting for help, and she was not very mobile, so she could not leave the cockloft to go to the floor. I tried to find a way to enter the shop to rescue her, but there were too many obstructing items, and the fire was raging intensely.” (at §4).

222.  In the Fire Services Department report of the Plaintiff’s statement taken by Assistant Divisional Officer Wu Chan Lok on 29 May 2015, the Plaintiff was not asked about his wife screaming ‘help’.  

223.  In fireman Lai Cho Man’s report dated 2 May 2015, he mentioned “as there were people trapped in Unit of No 57, we needed to extend the first line of water from the aerial platform and use breathing apparatus to conduct firefighting and search in Unit of No 57.  However, the fire at the scene was extremely fierce, with intermittent small explosions inside, so I was unable to successfully enter the unit despite multiple attempts.  I could only conduct external firefighting.”

224.  In Senior Fireman Mok Kin Hung’s statement dated 2 May 2015, he said that “after entering [Ground Floor Unit at No 57 Wan Fung Street] … I observed the surrounding environment and found an iron staircase, and near the loft there was an object that appeared to be a burned human body.  When I shone the flashlight on it again, I discovered human organs.”  

225.  In fireman Wong Ngai’s statement dated 2 May 2015, he states that he proceeded to the 1^st Floor of 57 Wan Fung Street, where he discovered a “badly burned body on the staircase.  The body’s legs were exposed to the bone, indicating the person was clearly deceased.”  

226.  At §§6.2.10 and 6.2.11 of the Fire Investigation Report titled “No 3 Alarm Fire at No 57-65, Wan Fung Street, Wong Tai Sin, Kowloon on 26.4.2015” (“Fire Investigation Report”) it is stated that when firemen reached the rear portion of this shop, they found a seriously charred body stranding on the metal stairs connecting the loft and ground floor of such shop, with the head of such body pointing downwards.  This was the Deceased. 

227.  Senior Station Officer Law Ka Yan’s statement dated 15 May 2015 stated that “[w]hen I ran back to Wing On Building, I saw a male adult was trying to go into a glass and mirror shop at No 57 Wang Fung Street.  Such male adult was later identified to be the owner of such shop.  He told me that his wife was trapped inside M/F of the shop after the explosion.”  

228.  In the Fire Investigation Report, it was reported at §6.2.3 that “[w]hen SStnO LAW reached Wing On Building, she met the owner of the glass and mirror shop (later known as Mr NG Kin-yuen).  Mr NG told her that his wife was trapped on M/F of the shop after explosion.”  At §9.4.2, it is stated that the Deceased “who was on the loft at that moment was unable to escape from the fire in time.  She reached the metal stairs which was the only access going downward to G/F of the shop yet unable to go further and lost her life there.  The FS personnel in attendance were informed of this missing lady soon after they arrived at scene.  However, due to intense heat and smoke, they were unable to enter the shop through the entrance at Wan Fung Street to carry out search and rescue of [the Deceased].”

229.  The direct cause of death as shown in the Autopsy Report was inhalation of the fire fumes and severe burns (§9.4.3 of the Fire Investigation Report).  

230.  I have reviewed the Autopsy Report dated 3 August 2015 performed by Dr. Poon Wai Ming, Senior Medical & Health Officer, Forensic Pathology Service, Department of Health (“Autopsy Report”).  I note from the Order of Master Kot dated 18 August 2022, this shall be adduced as agreed evidence, without the need to call the authors to testify in court.  Under the heading titled “External Examination”, the following was observed: “[e]xtensive deep burns were present over the whole body surface.  The burns were mostly in form of charring of skin with many areas of skin completely burnt away, exposing underlying charred muscles with heat ruptures.  There were heat fractures of bilateral forearm bones and bilateral leg bones with absence of left foot.  The distal parts of all fingers were completely burnt away.  The outer surface of skull, cheek bones and jaw bone were severely charred with areas of the outer cortex completely burnt away.  There was full-thickness heat rupture of abdominal wall on left side exposing charred underlying charred underlying stomach and small intestine.”  

231.  In the general remarks, the following observations were made:

“(1) Deceased was found dead at the scene of a fire that occurred after an explosion.

(2) Autopsy showed extensive deep burns on the whole body surface. There were no other identifiable injuries apart from heat ruptures and heat fractures due to the effects of fire.

… …

(4) Carboxyhaemoglobin was detected in the blood at a level of 42% saturation, indicating the deceased was alive and breathing at the outset of the fire.” (emphasis added).

232.  The statement of Wong Tai Wai, chemist in the Forensic Science Division, Hong Kong Government Laboratory dated 9 June 2015 showed that after blood and urine toxicological examination, carboxyhaemoglobin was detected in the blood at a level of 42% saturation.  

233.  I summarise the findings from the Investigation Report, Autopsy Report, and the statements:

(a)  the Deceased’s body was seriously charred;

(b)  there were extensive deep burns were present over the whole body surface;

(c)  the direct cause of death was inhalation of the fire fumes and severe burns; and  

(d)  carboxyhaemoglobin was detected in the blood at a level of 42% saturation, indicating the deceased was alive and breathing at the outset of the fire. 

234.  I accept that it is more likely than not that before her death, the Deceased had personal awareness of pain, was able to perceive it, and had the capacity to suffer. 

235.  In Mak Hoi Chu (麥海珠),the personal representative of the estate of Tam Mo Ho (譚毛好), deceased v Lui Chi Yin and anor [2011] 5 HKLRD 157, the Court of Appeal had to consider, inter alia, the award for pain, suffering and loss of amenities.  The deceased was 82 years of age at the time of death.  The evidence was that she was optimistic in character and physically able, maintaining a daily regime of exercise.  Her eyesight and hearing were good and she could walk unaided.  In short, she was fully able to enjoy the ordinary experiences and amenities of life.

236.  When hit by the public light bus, the deceased suffered multiple injuries of the most traumatic kind.  These included a fractured skull, an open wound to her scalp and severe bruising to the face.

237.  Immediately after the accident, the deceased appeared to be in a state of semi-consciousness. There was a detectable pulse and she was still breathing.  The evidence therefore did not support any suggestion that she was at this time completely insentient. 

238.  The Court of Appeal was of the view that the trial judge Mimmie Chan J, was correct in being not prepared to dismiss the probability that at this time the deceased would have been suffering deep shock, confusion, fear and pain even if she was unable to communicate the fact.  By the time the deceased arrived at hospital, she had fallen unconscious and had to be actively resuscitated.  She remained in an unconscious state for a period of some eight hours until her death that night (at §23). 

239.  The Court of Appeal upheld the trial judge’s award of HK$30,000 for pain, suffering and loss of amenities (in her judgment of October 2010).  Hartmann JA observed that quantum of damages in these claims are never easy to assess, but the Court of Appeal were satisfied that the trial judge’s assessment could not be criticised (at §26). 

240.  In Mak Hoi Chu, Hartmann JA of the Court of Appeal recognised that the law draws a distinction between damages for pain and suffering and damages for loss of amenities. Damages for pain and suffering depend upon the victim’s personal awareness of pain, the victim’s sentient capacity to suffer.  Damages for loss of amenities, however, are awarded for the fact itself of deprivation whether or not the victim is aware of it: Lim v Camden Health Authority [1980] AC 174 at 188G per Lord Scarman.  In this case, the deceased was deprived of the ordinary experiences and amenities of life from the moment she was struck until her death more than eight hours later (at §25). 

241.  In Wong King Tai v Lau Ka Kui and Another (unreported judgment of de Souza DHCJ dated 24 November 1998, HCPI 488/1996) the court drew a distinction between pain and suffering on the one hand and loss of amenities on the other.  Reference was made to Lim v Camden Health Authority in that recovery under the head of pain and suffering would be dependent upon the deceased’s realisation and ability to experience physical pain and mental anguish whereas the claim for loss of amenities would not be so dependent.  Such deprivation would have occurred regardless of whether he was conscious, semiconscious or unable to experience anything at all: see H West & Sons Ltd v Shephard [1964] AC 326 at 349 per Lord Morris. 

242.  In Wong King Tai, the deceased was semi-conscious on admission and had only survived for about 12 days, without ever regaining consciousness.  The court awarded $30,000 under the PSLA head of claim (at §46). 

243.  The Plaintiff referred me to Chouza v Martins & Ors [2021] EWHC 1669 (QB), in which Martin Spencer J allowed the claim under PSLA.  He considered that that the sum claimed of £2,500 to be much too high for a maximum of 5 seconds of mental anguish and fear followed by almost instantaneous death.  In his view, the appropriate sum to be awarded is £500 (approximately HK$60,000 for one minute). 

244.  It is always difficult to assess the quantum of a PSLA claim.  The Plaintiff did not provide any guidance in the Plaintiff’s Closing Submissions.  There was no evidence of how long the Deceased experienced physical pain and mental anguish, although I accept that the Deceased was alive and breathing at the outset of the fire.  I accept the Plaintiff’s evidence that the Deceased did scream “救命呀…救命呀”. 

245.  Even on the Plaintiff’s case, the Deceased must have been terrified and endured mental anguish and fear for a duration of minutes, as opposed to a duration of seconds (§144 of Plaintiff’s Closing Submissions). 

246.  I award the sum of HK$60,000 plus interest for PSLA.  I take guidance from Chouza v Martins & Ors, which is a recent English authority and more comparable to this case than the Hong Kong authorities that I have referred to above.

Special Damages

247.  The Plaintiff claims as special damages expenses incurred in obtaining an Order of Administration and Letters of Administration, in the sum of HK$65,000 (§5 of Revised Statement of Damages under the heading “IX Special Damages”).  

248.  The 2^nd Defendant submits that the expenses incurred in obtaining Order of Administration and Letters of Administration are costs incurred in this action and not special damages (§22 of the 2^nd Defendant’s Answer to the Revised Statement of Damages; §28 of 2^nd Defendant’s Opening Submissions). 

249.  In the Plaintiff’s Closing Submissions (at §147), the Plaintiff drew my attention to the observations of Cruden DHCJ in Loong Choi Hing v Yam Kit Ying & Anor [1987] 2 HKC 482 at 487G-I in which Cruden DHCJ was of the view that the cost of obtaining letters of administration to enable the action to be commenced is not an item of special damages but instead should be included as the plaintiff’s disbursements in the party and party bill of costs to be taxed at the completion of the action. 

250.  Accordingly no award of damages is made for this item. 

251.  The following other items are claimed as special damages by the Plaintiff: 

(a)  air tickets for the Deceased and the Plaintiff for the trip to New York on 28 April 2015 which have been cancelled due to the Fatal Accident) in the sum of HK$16,000; 

(b)  cash (US dollars) of HK$46,800 (US$6,000 x 7.8) in which the Deceased and the Plaintiff were prepared to bring to New York (burnt at the scene) in the sum of HK$46,800;

(c)  Chinese drug, nourishing food, bracelet and other gifts which the Deceased and the Plaintiff were prepared to bring to New York (burnt at the scene) valued at HK$10,000; and

(d)  a diamond ring of the Deceased (burnt at the scene) valued at HK$10,000.

252.  The 2^nd Defendant alleges that the Plaintiff’s claims under these items are not recoverable as personal property as a direct result of the accident.  Further or alternatively, it is averred that the Plaintiff is only entitled to claim the precancellation expenses on the Deceased’s air ticket (§§20 and 21). 

253.  I am of the view that these items are recoverable under section 20(1) of LARCO which provides inter alia that on the death of any person, all causes of action (except for defamation, seduction, inducing one spouse to leave, and claims for damages for adultery) subsisting against or vested in him/her shall survive against, or, as the case may be, for the benefit of, his/her estate. 

254.  Such special damages were awarded in Wong Ting Wai, where the Court awarded special damages for a Rolex watch and jade pieces that the deceased had on his person or was wearing at the time of the accident, but the amount sought of $20,000 had been challenged in its entirety for lack of supporting evidence. That these possessions of the deceased were damaged in the collision was uncontested.  Despite the lacuna in the evidence and the inherent difficulty of quantification, de Souza DHCJ awarded this amount even though no valuation had been adduced (§§49-52).  

255.  In the 2^nd Defendant’s Opening Submissions, the 2^nd Defendant submits that there is no evidence that the cash in US$ dollars and various gifts were present at the scene (§26 of 2^nd Defendant’s Opening).  In the Autopsy Report, there is no finding of diamond ring save that the Deceased was found wearing a metal watch (§27 of 2^nd Defendant’s Opening).

256.  In cross examination, the Plaintiff was asked about the Autopsy Report and gave evidence that:

A. I asked the person who performed the autopsy and then I said
that “Did you find the earring and did you find the ring?”
And then the answer was “It was not found, perhaps it was
damaged or lost in the fire.” I made it very clear at that
time to the one who performed the autopsy.

257.  In re-examination, the Plaintiff gave evidence that:

A. Yes, yes. When the corpse was pushed out, that was the
first thing I asked him, “Did you see my wife’s earring and
ring?”

Q. Yes. And how many times you asked him about this?

A. Two times at least.

Q. Two times at least. And what was his explanations about not
finding them?

A. He said that perhaps during the time of burning of the
flesh, causing those rings to drop into the scene of the incident.

258.  I have no reason to doubt the evidence of the Plaintiff and that the Deceased had a diamond ring. As stated at §219 above, the Plaintiff appeared to me to be a credible witness and was trying to be helpful to this court. 

259.  The Plaintiff submits the colour photographs at pages 234 to 237 of the trial bundle shows the extent of damage by the fire was substantial (§148-b of the Plaintiff’s Closing Submissions).  Given the photos are not marked with the rooms and I cannot tell whether they were photos of the Mirror Shop, I place no weight on these photos. The Plaintiff does not refer to them in the Plaintiff’s Witness Statement or Revised Statement as to Damages, and no witness has explained the provenance of these photos. 

260.  However, the statement of Cheung Yiu Ming titled “Fire and Explosion Investigation Report Ma Keng Garage at G/F, 63 Wan Fung Street, Tsz Wan Shan, Kowloon” stated that the partition wall separating the rear end of the garage from the inner side of Shop No 57 was ruined by the fire and explosion blast (see Photo 33).  Photo 33 does show the extent of the substantial fire damage to the Mirror Shop and specifically identifies it.  The report goes on to state that: “[t]he inner side of the shop had suffered from relatively more serious fire damage to the front portion of the shop, suggesting that the damage was due to a dire originated from the garage.  There was an internal staircase at the inner side of the shop for accessing the loft above.  It was revealed that there was a bedroom at the loft situated immediately above the front portion of the shop.  The burn pattern at this bedroom indicated that the fire damage was due to a fire spreading from the loft entrance outside the bedroom (see Photo 34).”  Photo 34 also indicated extensive fire damage to the bedroom of the Mirror Shop.   

261.  Photo 28 of the Fire Investigation Report also shows extensive damage to the rear portion of the Mirror Shop compared to the front portion.  The extensive damage to the rear portion of the Mirror Shop is also seen in Photo 29 of the Fire Investigation Report.  In the Fire Investigation Report, it was stated at §6.3.2.2 that “[t]he metal stairs erected at the rear portion of this shop which led up to the loft was found displaced due to the pushing forces of the collapsed toilet wall.  The loft which nearly covered the entire area of this shop was inspected which revealed that the rear portion of such loft sustained more severe fire damage than the front portion.”  

262.  It was stated at §9.4.2 of the Fire Investigation Report that “[t]he explosion also pushed down the wall between the VRW [Vehicle Repair Shop] and the glass and mirror shop, allowing heat and smoke from the fire in the VRV to spread upward to the loft of the glass and mirror shop.”

263.  The reports and statements described the Deceased as “seriously charred body” (§§6.2.10 and 6.2.12 of Fire Investigation Report); “seriously charred with large areas of skins and muscles decomposed” (§9.4.3 of Fire Investigation Report); “female deceased was seriously burnt with some of the muscle having been consumed by the fire rendering the exposure of some internal organs”  (statement of Cheung Yiu Ming); “charred body” (statement of Ado Pang Chun Yin; statement of Law Ka Yan; statement of Mok Kin Hung); “severely burned body” (statement of Wong Chi Chiu); and “badly burned body” (statement of Wong Ngai).

264.  I am satisfied there was severe fire damage in the Mirror Shop and the Deceased’s body was seriously charred.  I am satisfied that the diamond ring is more likely than not to have been destroyed in the fire.

265.  As to quantum, the Plaintiff claims HK$10,000 being the value of the diamond ring.  I would have preferred evidence as to valuation, although I note that this did not deter de Souza DHCJ in Wong Ting Wai in awarding special damages, despite no valuation evidence had been adduced (§§49-52 of Wong Ting Wai).

266.  The amount of HK$10,000 was claimed in the Revised Statement of Damages, which the Plaintiff referred to in the Plaintiff’s Witness Statement.  I have no reason to doubt this.  Accordingly, I award HK$10,000 being the value of the diamond ring of the Deceased burnt at the scene.  

267.  Given my factual finding at §264 above that there was severe fire damage in the Mirror Shop, I am satisfied that (i) cash of US$6,000 (equivalent to HK$46,800); and (ii) Chinese drug, nourishing food, bracelet and other gifts which the Deceased and the Plaintiff were prepared to bring to New York are more likely than not to have been destroyed in the fire, valued at HK$10,000.   

268.  Accordingly, I award the sums of HK$46,800 and HK$10,000 for these items respectively. 

269.  Regarding the last item of special damages, being air tickets for the Deceased and the Plaintiff for the trip to New York on 28 April 2015 (which have been cancelled due to the Fatal Accident), the Plaintiff claimed HK$16,000 in §1 of the Revised Statement of Damages under the heading “IX Special Damages”.  

270.  In cross-examination, the Plaintiff was asked whether there was any refund for cancellation of the air tickets, and gave evidence there was:

Q. Is there any rebate upon your cancellation?

A. Very minimal amount was rebated.

Q. Can you remember how much?

A. 30 per cent only.

Q. So the 16,000 inclusive of the rebate or after deduction of
rebate?

A. Because the time is too short.

Q. Is the amount of 16,000 including the rebate or not?

A. After the calculation, I could only get $4,000 to $5,000
back.

Q. Then it should be less than 16,000.

A. Correct.

271.  In re-examination, the Plaintiff confirmed that the refund for cancellation of the air tickets was approximately around HK$4,200 to HK$4,500:

Q. Moving on to another topic, the last topic, the air ticket,
and you said you were given back 4K to 5K. So how much can
you recall exactly?

A. Approximately around 4,200 to 4,500.

272.  The median of HK$4,200 to HK$4,500 is HK$4,350 in respect of the refund.  Accordingly, an amount of HK$11,650 is awarded for the loss of the air tickets. 

273.  Given my findings at §§266, 268, and 272 above, the total amount of special damages awarded is HK$78,450. 

SUMMARY OF THE PLAINTIFF’S CLAIMS

274.  In summary, I award the Plaintiff the following:

Head of claim	Amount
Under FAO
Loss of dependency for the three Siblings
伍瑞幟	HK$16,635  plus interest
伍瑞章	HK$16,635  plus interest
伍藹雲	HK$16,635  plus interest
Bereavement	HK$150,000 plus interest
Loss of services/ loss of maternal affection/ pre-trial dependency for the eldest son: WU Darong (伍達榮)	HK$80,000 plus interest
Under LARCO
Loss of accumulation of wealth	HK$215,518.83
Funeral expenses	HK$86,400 plus interest
PSLA	HK$60,000 plus interest
Special damages	HK$78,450 plus interest

Interest

275.  The Plaintiff made claims for interest in the Revised Statement of Damages under the heading titled “X Interest” and submissions in §§159-162 of the Plaintiff’s Closing Submissions.  The 2^nd Defendant did not plead to this in the 2^nd Defendant’s Answer to the Revised Statement of Damages, or make any submissions as to interest in the 2^nd Defendant’s Opening and Closing Submissions. 

276.  The award for PSLA in the sum of HK$ 60,000 carries interest at 2% per annum from the date of the Writ (12 April 2018) to the date of judgment (18 June 2024): §144 of Chung Sui Cheong, the administrator of the estate of Chung Wai Man Joseph deceased v Tsang Wai Hung [2017] HKCU 2796, (unreported judgment of Wilson Chan J dated 3 November 2017, HCPI 1058/2015). 

277.  Damages for bereavement in the sum of HK$150,000 carries interest at the judgment rate from the date of death (26 April 2015) until the date of judgment (18 June 2024): §17 of Bushra Bibi v Method Building & Engineering Works Ltd (No 2) [2015] 2 HKLRD 402 per Bharwaney J; §139 of Kan Wai Ling per Bharwaney J. 

278.  Funeral expenses in the sum of HK$86,400 carries interest at the judgment rate from the date of death (26 April 2015) to the date of judgment (18 June 2024): §143 of Chung Sui Cheong per Wilson Chan J. 

279.  Damages on pre-trial loss of dependency in the sums of HK$$16,635 x 3 = HK$49,905 (for the three siblings) and HK$80,000 (for the eldest son: WU Darong 伍達榮) carry interest at half the judgment rate from the date of the Writ (12 April 2018) to the date of judgment (18 June 2024): §141 of Kan Wai Ling per Bharwaney J; §145 of Chung Sui Cheong per Wilson Chan J. 

280.  Special damages in the sum of HK$78,450 carries interest at half the judgment rate from the date of death (26 April 2015) to the date of judgment (18 June 2024): see for e.g. Cheung Kai Chi v Chun Wo Contractors Ltd [2008] 1 HKLRD 102 at §50 per Linda Chan DHCJ; Lam Yau at §48 per Jennings DHCJ.   

281.  No interest is awarded on damages for loss of net accumulation of wealth (HK$215,518.83) which is an award to compensate for future loss. 

282.  Judgment rate to apply for all of the above items from date of judgment to the date of payment.

DISPOSITION

283.  For all the reasons above, I order the sums awarded in §§274 and 282 to be paid by the 2^nd Defendant to the Plaintiff. 

284.  Costs should follow the event.  I make a costs order nisi that the 2^nd Defendant do pay the costs of the action to the Plaintiff, to be taxed if not agreed.  Any party who seeks any variation should lodge their submissions within 14 days from the date hereof, response within 7 days upon receipt, and reply within 7 days thereafter. 

285.  I thank Mr Shum and Mr Cheung for their helpful submissions.