CHIU SUI CHING, the administrator of the estate of LEUNG HO TIN, deceased v. CHENG KWAI HUNG t/a HANG NAGI WORKS AND OTHERS

HCPI 939/2017

[2024] HKCFI 635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 939 OF 2017

________________________

________________________

____________________________

DECISION ON COSTS

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Backgound

1.  Judgment on the assessment of damages in the present case was handed down with a nisi costs order (“the 2022 Nisi Costs Order”) by Hon Marlene Ng J in November and December 2022. The award fell below the interim payment already received by the plaintiff out of the sanctioned payments made by the 2^nd to the 5^th defendants (“D2-5”). Hence the summons of D2-5 filed on 25 November 2022 (“D2-5’s 2022 Summons”) for recouping the overpayment and variation of the 2022 Nisi Costs Order in view of such outcome.

2.  On 30 December 2022, by consent, this court ordered that, amongst other things, the plaintiff should repay D2-5 the amount of the interim payment received in excess of the award together with interest (“the Repayment Order”).

3.  On 4 January 2023, this court further ordered that the 2022 Nisi Costs Order be varied so that (i) D2-5 shall pay the plaintiff’s costs of the action relating to quantum up to 28 May 2018[1] on the District Court scale and on a party and party basis; (ii) the plaintiff shall pay the costs of D2-5 in the action in relation to quantum from 29 May 2018 on the High Court scale and on an indemnity basis with certificate for counsel; and (iii) the plaintiff shall pay D2-5 enhanced interest on the costs under (ii) above. This court also ordered the plaintiff to pay D2-5’s costs of the above disposed parts of their summons with certificate for counsel.

4.  The outstanding parts of D2-5’s 2022 Summons therefore were:

(1)  under §3 of the summons, D2-5’s application for an order that in case of default in compliance with the Repayment Order by the plaintiff, her solicitors (“MPC”) should inform the court of the reason and affirm to the court whether they had duly advised the plaintiff that there was a chance that interim payment should be repaid to the paying party in case of overpayment (“the §3 Application”);

(2)  under §5 of the summons, D2-5’s application for a wasted costs order against MPC to pay D2-5’s costs of this action in relation to quantum personally (“the §5 Application”);

(3)  Costs of the above applications.

The §3 Application and the §5 Application were adjourned for argument and disposal on paper by Hon Marlene Ng J.

5.  On 31 May 2023, Hon Marlene Ng J handed down her decision whereby both the §3 Application and the §5 Application were dismissed. Following such event, Her Ladyship made a nisi order that the costs of and occasioned by these applications, including all costs reserved, be paid by D2-5 to the plaintiff on the High Court scale to be taxed if not agreed (“the 2023 Nisi Costs Order”).

6.  By summons filed on 14 June 2023, MPC applies to vary the 2023 Nisi Costs Order so that the costs so ordered against D2-5 should be paid to MPC personally on the High Court scale and to be taxed on an indemnity basis if not agreed (“MPC’s Summons”).

7.  By summons filed on 25 July 2023, D2-5 applies for an order that their costs liability to the plaintiff (pursuant to the costs orders made in 2022 and 2023 mentioned above) be set off against the plaintiff’s liability to D2-5 under the costs orders made in 2022 and 2023 (“D2-5’s 2023 Summons”).

8.  On 27 July 2023, this court ordered MPC’s Summons and D2-5’s 2023 Summons to be dealt with together and be disposed of on paper. For such purpose, this court also gave directions in respect of affidavit evidence and written submissions. MPC and D2-5 have since filed their respective affirmations and lodged their respective written submissions.

MPC’s Summons

9.  MPC’s Summons made clear on its face that the application is taken out by MPC personally for their own purpose. The basis for the application essentially is as follows:

(1)  The outstanding parts of D2-5’s 2022 Summons (ie the §3 Application and the §5 Application) adjourned for argument before Hon Marlene Ng J were directed against MPC personally, who contested the same at their own costs instead of those of the plaintiff. Had D2-5’s those applications been successful, MPC would have been the party ordered to bear the consequence including the costs of resisting the applications. There is no reason why it is not the reverse, so that MPC should be entitled to receover their costs when they succeeded in resisting the applications.

(2)  The effect of the 2023 Nisi Costs Order would confer an unexpected windfall on the plaintiff to the extent of what are clearly intended to be awarded by the court to MPC as their costs following the failure of the §3 Application and the §5 Application.

10.  D2-5 oppose. Their arguments aside, the relevance of their stance in seeking to maintain the incidence of the benefit of the 2023 Nisi Costs Order on the plaintiff instead of MPC is readily apparent. If they are right, such costs liability would fall within the set off which they also seek by their 2023 summons.

11.  According to their grounds set out in the affirmation, D2-5 essentially argue as follows:

(1)  Generally costs are paid to a plaintiff through his solicitors. MPC are still on record the plaintiff’s solicitors, and were still incurring costs on behalf of the plaintiff. The plaintiff is obliged to settle the costs of her solicitors, and it is not proved that she is impecunious. Therefore, there is no question of MPC being deprived of their costs, which the plaintiff would gain as windfall, as a result of the 2023 Nisi Costs Order.

(2)  The §5 Application was limited to the 1^st stage of the court’s exercise of jurisdiction under section 52A(4) of the High Court Ordinance, Cap 4 where the court merely enquired whether a case was made out for it to proceed to the 2^nd stage by directing MPC to show cause why a personal wasted costs order should not be made against them.

(3)  The §3 Application and the §5 Application were not wholly unmeritorious. There is no other proven special or unusual feature which would have justified a more generous than usual scale of taxation of the costs in respect of these applications payable by them under the 2023 Nisi Costs Order.

(4)  MPC was a non-party.

Incidence of the benefit of the 2023 Nisi Costs Order

12.  In my view, MPC is correct and D2-5 are not.

13.  First, the §3 Application and the §5 Application under D2-5’s 2022 Summons were directed against MPC personally. Answering both applications was from the outset a matter for MPC personally instead of one subject to the instruction of the plaintiff as to whether and, if yes, how to proceed. That MPC in doing so might need to obtain the consent of the plaintiff, insofar as the necessary disclosure subject to legal professional privilege was concerned, did not alter this only permissible understanding of the position.

14.  Second, the argument advanced by D2-5 questioning that MPC were not a party joined in the proceedings is not accepted. Section 52A(2) confers discretion on the court to make, in accordance with the rules of court, an order awarding costs against a person who is not a party to the relevant proceedings. O62, r6A(1) of the Rules of the High Court, Cap 4A provides that in such case, that person must be joined as a party to the proceedings for the purpose of costs only. However, what section 52A(4) serves is to confer discretion on the court, in accordance with the rules of court, to order the legal representative conducting litigation on behalf of a party to meet any wasted costs in the litigation. O62, r6A(2) provides that where the court is considering whether to make such a wasted costs order, r6A(1) mentioned above does not apply. It follows that where a party seeks a wasted costs order against the legal representative of the other side but fails, the incidence of the consequential costs of the application may be determined without any issue of joinder of the legal representative as a party for costs purpose.

15.  Third, the costs occasioned by answering the §3 Application and the §5 Application were incurred by MPC personally, and thus not costs incurred on behalf of the plaintiff. As far as this is necessary, the plaintiff has filed her affirmation verifying such costs arrangement. In accordance with the principle of indemnity, there is no basis for awarding costs of successfully resisting the two applications other than to the party incurring such costs in answering those applications. See for instance, China Citic Bank International Limited v Durrant Simon Patrick Michael[2018] HKCFI 396; Tai Yuk Cheung v Hung Sing Construction Engineering[2018] HKCFI 739.

16.  Fourth, it is argued that before Hon Marlene Ng J was merely the 1^st stage hearing under O62, r8B so that the court was no more than invited to consider whether D2-5 had discharged their burden of demonstrating a prima facie case for directing the 2^nd stage hearing, and therefore MPC were yet to be directed to show cause why a personal wasted costs order should not be made against them. Such argument clearly detracts from what actually happened, which Her Ladyship indeed explained in her decision. By their 2022 summons, D2-5 applied for a wasted costs order against MPC to personally pay them their costs of the action in relation to quantum, and their counsel’s written submission was formulated on the basis that the hearing was one for MPC to show cause why the order should not be made against them. Specifically, counsel moved the court to make an order then and there that all or at least not less than 80% of D2-5’s costs awarded under the 2022 Nisi Costs Order should be paid by MPC personally. It was Hon Marlene Ng J who found and highlighted the procedural flaw of D2-5’s such application, and then concluded against D2-5 even as a matter of the 1^st stage enquiry. It was not D2-5’s initiative as now suggested in their argument for the present purpose.

17.  In my judgment, there is clear basis for acceding to the variation of the 2023 Nisi Costs Order so that the incidence of the benefit of the costs under that order should belong to MPC personally instead of the plaintiff.

Costs on a higher basis

18.  It is common ground that costs on higher than the usual party and party basis may be ordered if so justified by special or unusual features in the proceedings before the court. Costs on indemnity basis may be awarded in case such as abuse of process.

19.  MPC argues that they should be awarded the costs of successfully resisting D2-5’s applications on an indemnity basis whereas D2-5 argue that their applications, albeit unsuccessful, were not entirely without basis, and hence absence of special or unusual features to justify the higher scale of costs taxation.

20.  For this purpose, the reasoning behind Hon Marlene Ng J’s dismissal of D2-5’s applications is key. The analysis in respect of D2-5’s applications were explained in detail in her decision dated 31 May 2023. Of that, the analysis in respect of the proper procedure and governing principles of an application like the §5 Application was endorsed and applied in a similar application by the defendant for a wasted costs order against the former solicitors of the plaintiff in the subsequent non-personal injury case of Chan Chun Chuen v Kao Lee & Yip[2023] HKCFI 3009 (7 December 2023).

21.  In my judgment, D2-5’s emphasis on the merits of their application for the present purpose must be viewed in the light of the important parts of Her Ladyship’s analysis and findings.

22.  In respect of the §3 Application, Hon Marlene Ng J found that D2-5 failed to explain how non-compliance with the Repayment Order by the plaintiff would justify or allow the court to override what would have been protected by legal professional privilege between her and MPC and to order the solicitors to disclose their client’s reason for non-compliance. In view of the advice to the plaintiff actually given in writing disclosed by MPC under limited waiver of privilege, Her Ladyship also found that D2-5’s criticism about the choice of wordings in the advice did not give rise to any justifiable basis for the application when MPC did not owe any duty to D2-5 in the giving of such advice.

23.  As to the §5 Application, it was found to have failed to follow the 2-stage procedure under O62, r8B from the outset. D2-5’s 2022 Summons failed to identify MPC’s conduct said to have been improper or unreasonable and what costs said to have been so caused to D2-5 which were wasted. It followed that the affidavit in support of the application failed to serve the purpose of clearly verifying what ought to have been identified in the summons. D2-5’s attempt to do so by way of affidavit in reply would be late and thus unfair. The application was formulated and proceeded with without actual regard to the 2-stage enquiry under O62, r8B. Her Ladyship expressly found that these were not merely technical errors.

24.  This court notes that apart from Chan Chun Chuen (above), the District Court handed down the decision in Chung Ho Ming v Chan Wai Yip & Ors[2024] HKDC 269 (19 February 2024) 10 days ago. It was a personal injury case where the plaintiff’s claim was dismissed after trial. Whilst the defendant applied for its costs incurred subsequent to their offers for settlement, which were not accepted, to be paid by the plaintiff on an indemnity basis, the court at his own initiative directed the solicitors for the plaintiff to show cause why the costs wasted as a result of their client’s refusal to accept the defendant’s offers should not be borne by them personally on an indemnity basis.

25.  In line with what is expected at the 1^st stage consideration as explained by Hon Marlene Ng J, the requisite particularisation of the conduct on the part of the solicitors which are said to constitute a prima facie case of a wasted costs order against them in the case of an application, in my view, should equally be requisite where the court on its own motion directs the solicitors to show cause. The court is expected to particularise in the direction to the solicitors (to show cause) such impugned conduct and the resultant wasted costs which are said to have constituted a prima facie case. If the requisite particularisation vis-à-vis the solicitors has been identifiably set out in the judgment or decision in the matter vis-à-vis the parties, the relevant parts of the judgment or decision may be incorporated by reference in the direction. General reference however would not meet what is fairly expected under the procedure.

26.  In Chung Ho Ming, the court referred to the materials the defendants placed before him in support of what was their application for indemnity costs against the plaintiff which, he found, afforded the basis for his directing on his own motion for the plaintiff’s solicitors to show cause why a personal wasted costs order should not be made against them. Presumably the court considered that not only were the requisite elements of the prima facie case particularised in those materials, but that they were also clearly set out or incorporated by specific references in his written direction. Hence his response to the enquiry by the solicitors there for any other specific observation from the court against them other than what they managed to discern from the direction.

27.  Back to D2-5’s argument with reference to the merits of their applications before Hon Marlene Ng J. Insofar as D2-5’s attempt for the present purpose to attribute responsibility to the approach of MPC in terms of the latter’s disclosure and evidence in opposition is concerned, it is in my judgment wrong in principle. For the purpose of their applications, it was the burden of D2-5 instead of that of MPC to file evidence and hence disclosure of potentially privileged matters. Insofar as the §5 Application is concerned, the burden of MPC to show cause, as discussed, did not arise unless D2-5 has discharged their burden of demonstrating a prima facie case and the court was satisfied that it would be appropriate to exercise the discretion to direct the matter to proceed to the 2^nd stage hearing.

28.  As to the merits of the §3 Application, the above reference to Hon Marlene Ng J’s findings refers.

29.  As to D2-5’s argument in respect of the substance of the application at the 1^st stage enquiry, it must be also considered in the light of the discussion and other findings of Hon Marlene Ng J.

30.  First, Hon Marlene Ng J rehearsed the relevant case law, including the important starting point, as explained by the Court of Final Appeal ever since Ma So So v Chin Yuk Lun & Anor [2004] 3 HKLRD 294, that the jurisdiction of making wasted costs order against legal representatives must be exercised by the court with caution bearing in mind the need to balance the tension between competing public interests in litigation, and therefore only in reasonably obvious case.

31.  Second, the threshold in the local statutory wasted costs order regime, which is identifiably different from that in the English jurisdiction, cast further light on the relative stringentness of the criteria. As Hon Marlene Ng J noted, negligence is distinctly not the applicable threshold for invoking the local jurisdiction. The court in Chung Ho Ming did not seem to agree with that, and referred to cases of serious or gross negligence. However, one would have thought that impugned conduct of such nature and degree such as gross negligence or default or misconduct would probably be caught by the applicable threshold of improper or unreasonable conduct or even abuse. This court does not read the discussion of Hon Marlene Ng J to be suggesting otherwise. In any event, Her Ladyship found that D2-5 failed to meet the applicable threshold in terms of, amongst others, the consideration of the impecuniosity of litigant and hopeless claims in the circumstances of this case.

32.  Third, Hon Marlene Ng J explained that the causal nexus between the improper or unreasonable conduct complained of and the relevant wasted costs must be demonstrated as particularised in the summons for the purpose of the 1^st stage enquiry. Causation became an academic issue in view of the failure of D2-5 in demonstrating a prima facie case of improper or unreasonable conduct on the part of MPC. However, Her Ladyship found that D2-5 would have failed on causation in any event.

33.  Last, Hon Marlene Ng J found that the §5 Application as presented failed to satisfy the requirement of proportionality, and it would in any event be inappropriate to exercise discretion to direct the application to proceed to the 2^nd stage, ie requiring MPC to show cause.

34.  In the circumstances, D2-5 failed to discharge their burden in all the crucial aspects at the 1^st stage consideration of the section 52A application which suffered from substantive procedural defect from the outset. So lodged, the application was unfair to MPC at the receiving end of it and was inappropriate to proceed.

35.  The above circumstances readily lead one to ask whether or not the §3 Application and the §5 Application so formulated ought to have been taken out and/or persisted with as such. My answer to that is in the negative.

36.  MPC also advance other arguments. For instance, they argue that the §5 Application was motivated by D2-5’s concern about the prospect of successfully recovering their costs from the plaintiff. That, counsel argues, was deployment of section 52A for ulterior motive. So did Hon Marlene Ng J comment, he submits. Presence of such feature could found a situation of abuse. However, the absence of conscious ulterior motive does not therefore connotes the lack of abuse. Motive or subjective intent aside, the objective fact was that the application on the basis of the kind of criticisms directed at the solicitors in the present matter was initiated and persisted in without compliant or justifiable formulation. Nor was that substantiated even on prima facie basis. That was contrary to the level of caution and stringentness expected in such application. That warrants its categorisation as abuse.

37.  In the circumstances, I find proper basis for the costs awarded to MPC in respect of the §3 Application and the §5 Application to be taxed on an indemnity basis.

D2-5’s 2023 Summons

38.  Following from the above, where the costs of and occasioned by the §3 Application and the §5 Application should be paid by D2-5 to MPC personally, D2-5’s application for set-off between such costs and their costs payable by the plaintiff would have no basis for the lack of mutuality between the two sets (and recipients) of costs: see Re Finbo Engineering [1998] 2 HKLRD 695; Jora Sisi Omar v Jora Harmidar Omar [2017] HKCU 2328.

39.  Mutuality would have existed in respect of the costs payable by D2-5 to the plaintiff and those payable by the plaintiff to D2-5. D2-5 obviously contemplate that the costs awarded to them would exceed what they would have to pay to the plaintiff. However, as counsel for the plaintiff points out, it was by the orders of Hon Marlene Ng J that such costs shall be taxed unless agreed. There is no good basis for effectively varying that part of the nisi costs orders. Where it is intended that the taxed costs payable by the parties respectively should be set off against each other, that could happen as a consequential matter without the need for an order at this stage prior to taxation in any event.

Order

40.  The MPC’s Summons is allowed whereas D2-5’s 2023 Summons is dismissed.

41.  The circumstances warrant the award of costs of the present applications on an indemnity basis.

42.  Following the above event, I make a nisi order that D2-5 shall pay the costs of and occasioned by MPC’s Summons and D2-5’s 2023 Summons to MPC to be taxed on an indemnity basis, if not agreed, with certificate for counsel. In the absence of application in 14 days to vary, this nisi costs order shall become absolute without further order of the court.

Written submissions by Mr Kwan Ping Kan, instructed by Michael Pang & Co, for the plaintiff

Written submissions by Mr Ashok K Sakhrani, instructed by Munros, for the 2^nd to 5^th defendants

HCPI 939/2017

[2023] HKCFI 1417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 939 OF 2017

________________________

________________________

________________________

DECISION ON COST

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I. BACKGROUND

1.  Following the assessment hearing on 24-26 March and 28 April 2021, I handed down reasoned judgment (“Written Judgment”), corrigendum (“Corrigendum”)  and ruling on interest (“Ruling on Interest”)  in respect of the plaintiff’s (“P’s”)  claim against the 1^st, 2^nd, 3^rd, 4^th and 5^th defendants (“D1, D2, D3, D4 and D5” or collectively, “Ds”)  on 11 November, 7 December and 7 December 2022 respectively. I granted (a)  final judgment in the sum of $220,315.63 in favour of P against Ds jointly and severally (“Judgment”), and (b)  a costs order nisi that Ds shall jointly and severally pay P’s costs of and occasioned by the assessment of damages (including all costs reserved, if any)  to be taxed on District Court scale if not agreed (“Costs Order Nisi”).

2.  On 25 November 2022, D2-D5 filed a summons to seek various reliefs (“Summons”). A substantial part of the reliefs sought under the Summons was resolved by consent pursuant to 2 orders of DHCJ Simon Leung dated 30 December 2022 (“30/12/22 Order”)  and 4 January 2023 (“4/1/23 Order”).

3.  The plaintiff in this action was not legally aided. But on 6 December 2022, the Director of Legal Aid filed a Memorandum of Notification of an Application for Legal Aid to give notice that P had applied for legal aid to prosecute an appeal against the Judgment.

4.  After this court granted the Judgment and the Costs Order Nisi, it transpired that earlier in the proceedings between 30 April 2018 and 22 October 2020 D2-D5 had made sanctioned payments into court in the total sum of $3,900,000 (“Sanctioned Payments”).[1] On 12 September 2019, Master Roy Yu ordered D2-D5 to pay interim payment to P in the sum of $550,000 (“Interim Payment”)  out of the Sanctioned Payments, which meant that (a)  prior to the Judgment P had already received $550,000 as interim payment, and (b)  the remaining amount of the Sanctioned Payments in court was $3,350,000.

5.  By the 30/12/22 Order, DHCJ Simon Leung granted an order by consent as follows:

(a)	the Sanctioned Payments paid into court by D2-D5 respectively on 30 April 2018, 15 May 2019, 23 September 2019, 2 September 2020 and 22 October 2020 in the total sum of $3,350,000 be paid out forthwith and returned to D2-D5 together with all interest accrued thereon via their solicitors;
(b)	P do within 21 days from the date of such order repay D2-D5 the sum of $397,598.72 being overpaid Interim Payment together with interest thereon calculated at 8%pa from 12 September 2019 to the date of payment (“Repayment Order”).

6.  By the 4/1/23 Order, DHCJ Simon Leung granted inter alia the following orders:

(a)	the Costs Order Nisi be varied as follows: (i)  D2-D5 do pay P costs of the present action in relation to quantum up to 28 May 2018 on District Court scale and on party and party basis to be taxed if not agreed, (ii)  P do pay D2-D5 costs of the present action in relation to quantum from 29 May 2018 on High Court scale and on indemnity basis to be taxed if not agreed with certificate for counsel, and (iii)  P do pay D2-D5 interest on costs of the present action in relation to quantum at an enhanced rate of 10% above judgment rate from 29 May 2018 until the date of payment;
(b)	costs of the Summons (save and except the following parts)  be paid by P to D2-D5 without certificate for counsel to be taxed if not agreed:
	(i)	D2-D5’s application under paragraph 3 of the Summons for an order that “in the case of default [in compliance with the Repayment Order by P], [P’s] solicitors shall inform the court of the reason and affirm to the court whether they had duly advised [P] that there is a chance that interim payment should be repaid to the paying party in case of overpayment” (“Para 3 Application”);
	(ii)	D2-D5’s application under paragraph 5 of the Summons that “[there] be a wasted costs order against [P’s solicitors] to pay [D2-D5’s] costs of this action in relation to quantum personally” (“Para 5 Application”);
(c)	costs of the Summons in respect of the Paras 3 and 5 Applications (collectively, “Disputed Applications”)  be reserved.

7.  The 4/1/23 Order also granted case management directions for (a)  filing/serving affidavit evidence and (b)  lodging/serving written submissions to support and to oppose the Disputed Applications, and for paper disposal of the Disputed Applications.

8.  On 25 November 2022 and 22 February 2023, D2-D5 filed the 2^nd and 3^rd affidavits of their solicitor Lam Bik Kwan Margaret (“Lam”)  (“Lam 2^nd Aff” and “Lam 3^rd Aff”)  respectively to support the Disputed Applications. On 1 February 2023, P filed the affirmation of her solicitor Pang Yiu Kwong (“Pang”)  (“Pang Aff”)  to oppose the Disputed Applications.

9.  On 8 March 2023, Mr Sakhrani, counsel for D2-D5, and Mr Kwan, counsel for P, lodged their respective written submissions and list of authorities.

10.  Paragraph 6 of Practice Direction 14.5 – Application for Wasted Costs Order under Order 62, rules 8, 8A, 8B and 8C (“PD14.5”)  provides inter alia that “[the] application [for wasted costs order] should usually be heard by the Judge …… who dealt with the proceedings in which wasted costs are alleged to have been incurred, unless there are exceptional circumstances which dictate otherwise”. It has been said that “[in] almost every case, the judge who heard the substantive application will be the right judge to deal with consequential issues as to costs, even if he made findings adverse to a party in the course of reaching his conclusion” unless necessary exceptions, eg apparent bias, require recusal.[2] After all, the trial judge is particularly well-placed to evaluate the evidence served in support of an application for a wasted costs order as he can rely on his own impressions, but this does not in any way reduce the burden on the applicant to demonstrate the requisite factors for a wasted costs order.

11.  For convenience, I shall adopt the abbreviations in the Written Judgment, the Corrigendum and the Ruling on Interest.

II.  LAM 2^ND AFF

12.  Lam noted that P by the RSoD claimed damages in the sum of $8,055,781.07, but the award under the Judgment was about 2.7% of P’s claim and less than the Interim Payment (which was overpaid by $397,598.72).

13.  Lam said this court (a)  heard evidence from P, the Sister, Chak and Tang at the assessment hearing, (b)  found P was not a reliable or credible witness, and (c)  did not accept P’s evidence as to fundamental elements of her case, eg (i)  P alleged at the time of the death of the Deceased he contributed $5,000/month to her as household financial provision but this court found he at most paid $1,500/month to her as pocket money, and (ii)  this court expressed concern over the contradictions between the SWD / HKHA Forms made by the Mother on the one hand and the 4/16/18 Parts of the Mother WStmt and the Mother’s oral evidence to the same effect on the other hand (“Discrepancies”). Lam said if the declarations in the SWD / HKHA Forms were true (as the Mother confirmed in evidence at the assessment hearing), it followed the claims in the Mother WStmt must be false, and this must have been abundantly clear to P’s solicitors, so the only inference to be drawn was that they deliberately turned a blind eye to this reality.

14.  Lam noted the SWD / HKHA Forms came to light upon D2-D5’s specific discovery requests in the present action, so P’s solicitors must have been fully aware of the Discrepancies, and should have made enquiries (eg obtain reasonable explanation from P), but no proper explanation was adduced by way of, say, the Mother’s supplemental witness statement.

15.  Lam referred to the Calderbank letters exchanged between P’s solicitors and D2-D5’s solicitors between 15 April 2019 and 25 February 2021, which were said to reveal the following:

(a)

as early as in May 2019 D2-D5’s solicitors wrote to P’s solicitors[3] to put them on notice (and to draw their attention to the fact)  there was no evidence to show the monthly household provision the Deceased allegedly gave to P, but the 2014 HKHA Declaration showed CSSA was the only source of income for P’s household in 2014;[4]

(b)

after considering the CSSA documents disclosed in/about November 2019,[5] D2-D5’s solicitors wrote to P’s solicitors to highlight relevant evidence/information contained in those documents, eg (i)  the Deceased moved out of P’s household/Flat in September 2012, (ii)  the Deceased made the 2 Deceased SWD Forms stating he had not made any financial assistance to P, and (iii)  P failed to make full disclosure to SWD about the EC she received even though she was obliged to do so.[6]

16.  Lam claimed that upon receipt of the aforesaid Calderbank letters from D2-D5’s solicitors, P’s solicitors should have reviewed P’s case, obtained proper explanation from P, “and adduced supplemental witness statement”, but no or no proper explanation by P was adduced, and the present action proceeded to the assessment hearing without support for P’s pleaded case by way of objective/credible evidence. Lam further claimed there was no credible basis to think P’s case could still be maintained with reasonable prospect of success to beat the Sanctioned Payments, and at the assessment hearing neither the Mother nor the Sister was able to provide any explanation when asked about the Discrepancies.

17.  Lam said P was impecunious and not on legal aid, so D2-D5 / their insurers were concerned the significant amount of costs they had incurred since the commencement of the present action could not be recovered from P. Lam further said P’s solicitors should have properly advised P to realistically reconsider her position to avoid incurring unnecessary costs, especially when her case was obviously contradicted by objective evidence, ie the SWD / HKHA Forms and the Deceased SWD Forms.

18.  Lam claimed that in light of the conduct of P’s solicitors, it was appropriate and just in all circumstances to make a wasted costs order against them to personally bear D2-D5’s costs.

III.  PANG AFF

19.  Pang emphasised that filing/serving the Pang Aff should not be regarded as waiver of legal advice privilege.

20.  For the Para 3 Application, Pang disclosed a letter dated 17 October 2019 by P’s solicitors to P (“17/10/19 Letter”)  that enclosed a cheque for the Interim Payment with advice to P that “請注意,若上述案件結案時所判定 [P] 應得之賠償額少於上述金額, [P] 可能要支付 [P] 多收了 [D2-D5] 的中期付款額給予 [D2-5]”.

21.  For the Para 5 Application, Pang did not see any reference in the Lam 2^nd Aff to any improper/unreasonable conduct or any misconduct on the part of P’s solicitors (which Pang denied in any event), and he claimed P’s solicitors all along had acted diligently in taking instructions from P on D2-D5’s offers by way of their Sanctioned Payments (see copies of written instructions on divers dates[7] that P signed to give instructions to P’s solicitors for each stage of proceedings when D2-D5 made the Sanctioned Payments, “SP Written Instructions”).

22.  The Pang Aff also disclosed (a)  copy written instructions dated 18 February 2021 that showed P’s solicitors had duly taken instructions for settlement of the present action (ie to make a sanctioned offer to D2-D5 to settle the present action upon receipt of $6,600,000 (inclusive of interest), but D2-D5 did not accept such offer put forward by P’s solicitors on behalf of P), and (b)  copy written instructions dated 18 December 2020 that P signed to confirm her intention to litigate despite D2-D5’s attack on the weaknesses of her evidence (eg D2-D5 claimed the Mother’s alleged dependency on the Deceased at $5,000/month was not supported by evidence, which appeared to be the weakest point in her claim, but P still wished to litigate and let the court decide the amount of compensation to be awarded)  (“18/12/20 Instructions”). Pang believed that whether the court would accept the Mother’s evidence turned on her credibility as witness, so P’s claim could not be considered a hopeless case.

23.  Pang also said P’s solicitors had informed and explained to P inter alia her various rights including her right to apply for legal aid as evident in paragraph 17 of the retainer agreement dated 27 April 2016 signed by P.[8]

IV.  LAM 3^RD AFF

24.  Lam said there was no lacuna in evidence as to the impugned conduct of P’s solicitors, which was clear from the chronology of discovery of the SWD / HKHA Forms:

Date	Event
13 June 2018	at the 1st Checklist Review hearing, D2-D5’s solicitors applied to the court for P’s income declarations made to the HKHA
15 August 2018	P disclosed the 2012 and 2014 HKHA Declarations by way of her affirmation
11 September 2018	P disclosed the 2016 and 2018 HKHA Declarations by way of her 3rd List of Documents
12 September 2018	P’s solicitors provided to D2-D5’s solicitors copy documents disclosed in P’s 3rd List of Documents
4 June 2019	based on the HKHA Forms, D2-D5’s solicitors wrote to P’s solicitors to ask for the SWD Forms
4 November 2019	P disclosed the SWD Forms by her 4th List of Documents after repeated chasers by D2-D5’s solicitors
18 November 2019	P’s solicitors provided to D2-D5’s solicitors copy documents disclosed in P’s 4th List of Documents

25.  Lam claimed that by/about 15 August 2018 D2-D5’s solicitors must have reviewed the 2012 HKHA Declaration and noted the discrepancies between the information therein and P’s case pleaded in the SoD, so when P’s solicitors prepared the Mother WStmt (exchanged on 25 October 2018 which was more than 2 months after disclosure of the 2012 HKHA Declaration)  and the RSoD, they ought to have taken P’s instructions and demanded explanation on such discrepancies, but P’s solicitors “in breach of [their] duty to the court” knowingly prepared the Mother WStmt / RSoD without explanation for the aforesaid contradictions, and “caused [the Mother] to swear an oath on the contents therein”.

26.  Even if P’s solicitors were not aware of the Discrepancies when they prepared the Mother WStmt, D2-D5’s solicitors by their Calderbank letter dated 15 May 2019 to P’s solicitors highlighted the discrepancies as to the dependencies on the Deceased between the HKHA Forms and the Mother WStmt, and thereafter repeatedly alerted/reminded D2-D5’s solicitors the same. Further, upon considering the subsequently disclosed SWD Forms, D2-D5’s solicitors also pointed out to P’s solicitors the discrepancies between P’s case and the SWD Forms as well as P’s failure to make full disclosure to SWD in respect of the EC she received.[9] There was still was no supplemental witness statement from P to account for the Discrepancies.

27.  Lam contended that P’s solicitors disregarded the Discrepancies highlighted by D2-D5’s solicitors, and “deliberately proceeded with the claim unchanged”. The reply letter dated 17 May 2019 by P’s solicitors to the 3^rd letter dated 15 May 2019 by D2-D5’s solicitors[10] merely stated “…… [P] is not impressed by [the letter by D2-D5’s solicitors] ……” without explaining what they meant and without providing any reasonable explanation for the Discrepancies. Lam claimed that in subsequent exchange of correspondence P’s solicitors “continued to adopt an evasive attitude and refrained from addressing the [Discrepancies] raised by [D2-D5’s solicitors]”.

28.  Lam was unclear whether P’s solicitors consulted P when they prepared the reply letter dated 17 May 2019[11] because it was not until more than 1½ years later (ie on/about 18 December 2020)  that P confirmed with P’s solicitors she understood the weaknesses of her case (ie the 18/12/20 Instructions). Lam said the Pang Aff did not demonstrate P’s solicitors had at any time properly advised P on the Discrepancies and the potential criminal and/or other consequences.

29.  As regards the 18/12/20 Instructions that P signed, P knew D2-D5’s solicitors challenged her for not adducing evidence to prove the Deceased gave her $5,000/month as household financial provision, which would be her greatest weakness in the present action. Lam said it was plain and obvious P withheld evidence when the SWD / HKHA Forms showed she did not receive the Deceased’s contributions as alleged, which was the court’s eventual finding and which D2-D5’s solicitors pointed out to P’s solicitors on various occasions. Lam suggested whereas in any other case lack of documentary proof might well feed Pang’s assertion in the Pang Aff that it would be “a matter of credibility of witness whether Court will accept the evidence of [P], thus this action cannot be considered a hopeless case”, here “there was cogent (prior)  documentary evidence that contradicted [P’s] bare allegations”.

30.  Lam claimed P’s solicitors as officers of the Court owed a duty to the court not to pursue an unmeritorious claim on behalf of their client P when objective, unambiguous and unequivocal evidence by way of the SWD / HKHA Forms clearly indicated P’s pleaded claim or “instructions” were untenable, and there was simply no reason for P’s solicitors to believe P would be able to beat the Sanctioned Payments in view of the contrary evidence placed before the court. If P’s solicitors did not duly advise P despite their clear knowledge of the Discrepancies, it would be intentional omission on their part, disregarding their duty to P and to the court. If P’s solicitors duly advised P on the Discrepancies but P insisted on pursuing her claim, P’s solicitors ought to have ceased to act for P. Given the conduct of P’s solicitors, Lam considered it appropriate and just in all the circumstances for a wasted costs order to be made for P’s solicitors to personally bear D2-D5’s costs from the date of the Mother WStmt (ie from 25 October 2018)  onwards.

31.  As for the Para 3 Application, Lam said notwithstanding (a)  the Repayment Order requiring P to repay to D2-D5 on/before 10 January 2023 the sum of $397,587.72 being overpaid Interim Payment together with interest thereon at 8%pa from 12 September 2019 to date of repayment and (b)  a chaser letter dated 13 January 2023 by D2-D5’s solicitors, P still had not made any repayment to date, or offered any reply/explanation for the delay, or made any request for extension of time to repay.

32.  The 17/10/19 Letter showed P’s solicitors advised P that in the case of overpayment, the overpaid Interim Payment “may have to” (可能要)  be repaid to D2-D5,[12] but Lam claimed P’s solicitors ought to have known that if P was overpaid, the excess amount of the Interim Payment must be repaid to the paying defendants, and they erred in not properly advising P and/or possibly misleading P in this regard.

V.  PARA 5 APPLICATION

33.  The essential bases for the Para 5 Application were inter alia: (a)  given the material but unexplained Discrepancies, P’s solicitors (i)  ignored the “reality” that (1)  the Mother WStmt / RSoD were false “if” the SWD / HKHA Forms were true, (2)  P must have withheld information and (3)  P’s case had no or no substantial prospect of success, and (ii)  failed to advise P to accept the Sanctioned Payments and to not pursue her claim in the present action, but (b)  if P’s solicitors did advise P on the Discrepancies but P insisted on pursuing her claim, they should have ceased to act for her, but they did not and instead they “deliberately” progressed her claim to the assessment hearing despite her impecuniosity.

34.  Nevertheless, despite the breadth of the Summons and the Lam 2^nd Aff that asked for P’s solicitors to personally bear D2-D5’s costs in the present action, it appeared D2-D5 were not saying P’s solicitors knew at the outset P had no case that could have left the front door at all, but rather they claimed P’s solicitors should have realised so by the time the Mother WStmt was filed, so D2-D5 asked for P’s solicitors to bear their costs from 25 October 2018 onwards (or alternatively, according to Mr Sakhrani’s written submissions, “not less than 80% of [D2-D5’s] agreed or taxed costs that were incurred after 25 October 2018 (the date [the Mother/Sister WStmts] were filed)  ……”).

35.  On the other hand, P contended that a wasted costs order was wholly inappropriate in the circumstances, so the Para 5 Application should be dismissed with costs.

(a)  Jurisdiction

36.  Section 52A of the High Court Ordinance Cap 4 (“HCO”)  provides as follows:

“(1)  Subject to the provisions of the rules of court, the costs of and incidental to all proceedings …… in the Court of First Instance …… shall be in the discretion of the Court, and the Court shall have full power to determine by whom and to what extent the costs are to be paid.

……

(4)  In any civil proceedings before it, …… the Court of First Instance may, in accordance with rules of court, by order disallow, or order the legal representative concerned to meet, the whole of any part of any wasted costs.

(5)  When determining whether or not to make an order under subsection (4), …… the Court of First Instance shall, in addition to all other relevant circumstances, take into account the interest that there be fearless advocacy under the adversarial system of justice.

(6)  In subsection (4), wasted costs means any costs incurred by a party as a result of –

(a)  an improper or unreasonable act or omission; or

(b)  any undue delay or other misconduct or default,

on the part of any legal representative, whether personally or through an employee or agent of the legal representative.

(7)  In this section, legal representative, in relation to a party to any proceedings, means a counsel or solicitor conducting litigation on behalf of the party.”

37.  The court has inherent power to prevent its process from being thwarted by abuse, used for improper purpose and/or used as an instrument of injustice, which is related to the court’s power to supervise its own officers. As explained by Litton JA (as he then was)  in Ho Lee Man v Wong Wai Kai (No 2), “[the] source of the jurisdiction over solicitors in relation to the costs of legal proceedings, as regulated by O 62 r 8(1), is the inherent jurisdiction of the court to exercise control over its own officers, including solicitors”.[13]

38.  In Ma So So v Chin Yuk Lun & anor,[14] Li CJ said in considering exercise of the statutory wasted costs jurisdiction, the court should approach the matter by dealing with the following questions: (a)  whether the solicitor is responsible for (i)  acting improperly or without reasonable cause or (ii)  undue delay or any other misconduct or default in any proceedings, (b)  whether such conduct of the solicitor has caused costs to be incurred or wasted,[15] and (c)  whether the court should exercise its discretion to make the order (page 300). All 3 questions have to be answered in the affirmative before a wasted costs order can be made.

39.  The jurisdiction to grant wasted costs orders should be exercised in reasonably plain and obvious cases, and the courts should approach their task with caution bearing in mind the need to carefully balance the tension between 2 important public interests, ie (a)  that legal representatives should not be deterred from pursuing their clients’ interests for fear of incurring personal liability for costs to their clients’ opponents, and (b)  that litigants should not be financially prejudiced by unjustifiable litigation conduct of the legal representatives of their opponents.[16]

40.  The court has a parallel inherent jurisdiction to order a solicitor to pay wasted costs, but something more serious is needed than mere negligence.[17] However, as Jackson & Powell on Professional Liability explains, “it is difficult to foresee many circumstances in which it will be used given the easier requirements of the statutory provision”.[18]

(b)  General principles

41.  The applicable principles in relation to the wasted costs jurisdiction are well-established. I do not think Mr Kwan and Mr Sakhrani[19] were in disagreement over such principles although they had some differences in emphasis in their submissions. I have set out the principles extracted from Hong Kong Civil Procedure 2021[20] in paragraph 171 in Liu Hui Hong, the personal representative appointed to represent the estate of Li Shiyou, deceased (by carry on order dated 30 September 2015)  & anor v Fong Wai Meng & ors,[21] which I adopt but do not repeat here. But it is useful for the present purpose to reiterate some general principles.

42.  Improper/unreasonable conduct  In Ridehalgh v Horsefield & anor, Sir Thomas Bingham MR (as he then was)  explained that the word “improper” connotes conduct which is regarded as improper according to the consensus of professional opinion, and the word “unreasonable” connotes conduct which is vexatious or designed to harass the other side rather than to advance the resolution of the case:[22]

“‘Improper’ means conduct which it has been understood to mean in the context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct, as well as conduct which would be regarded as improper according to the consensus of professional (including judicial)  opinion can be fairly stigmatized as such whether or not it violates the letter of a professional code.”

“‘Unreasonable’ also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner’s judgment, but it is not unreasonable.”

“Improper” is plainly the more “serious” category of conduct concerned, but “it does not require proof of bad faith”.[23] “It would perhaps be more accurate to describe [the impugned conduct] as conduct which involves a failure on the part of the solicitor to fulfil his duty to the court and to realise his duty to aid in promoting in his own sphere the cause of justice (Myers v Elman [1940] AC 282; KB Chau & Co (a firm)  v China Finance Trust & Investment Corp [1995] 2 HKLR 567 (CA). The conduct must be inexcusable and such as to merit reproof (J v C [1995] 1 HKLR 19). The test was whether the conduct amounted to a serious dereliction of duty (Que Jocelyn Co (t/a Scented Delights)  v Broadair Express Ltd [1999] 3 HKLRD 104)”.[24]

43.  Both Mr Sakhrani and Mr Kwan agreed that mere mistake or error of judgment or even negligence is not sufficient.[25] It has been said that “…… any impropriety should be very serious …… There had to be something akin to abuse of process. It is a necessary requirement of any wasted costs order that there should be a breach of the lawyer’s duty to the court, there be something more than mere negligence for the wasted costs jurisdiction to arise ……”[26]

44.  In Dolphin Advertising Ltd v Tronken Enterprises Ltd,[27] Harris J noted that section 51(7)(a)  of the English Supreme Court Act 1981[28] defines wasted costs to mean any costs incurred by a party “as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative ……” (my emphasis), and held that the omission of negligence from the equivalent local provision, ie section 52A of the HCO, was not inadvertent. Consideration had been given to lower the threshold for liability to “encompass cases where wasted costs are incurred as a result of negligence which does not itself amounts to a species of misconduct, along the lines adopted in England and Wales”,[29] but such proposal was rejected. As Harris J explained at page 142, the correct approach is to ask at the 1^st stage in the exercise of the wasted costs jurisdiction[30] whether there is prima facie evidence of conduct that is improper, or constitutes an unreasonable act or omission, or amounts to misconduct or default, so as to engage section 52A of the HCO. I pause to note here that the English authorities that rely on the “negligence” limb of the wasted costs regime, eg Maurice Dempsey v Allan Johnstone,[31] should be read with caution given the absence of this criterion in Hong Kong. I will return to the “negligence” limb below to highlight the difference in meaning between “negligent” on the one hand and “improper” or “unreasonable” on the other hand since the former threshold, which is irrelevant in Hong Kong, is not to be applied for invoking the local wasted costs jurisdiction.

45.  Causation  As seen in paragraph 47 below, the wasted costs jurisdiction is also “compensatory and not merely punitive”.[32] It is essential for the party claiming for a wasted costs order to prove causation, ie to demonstrate a causal nexus between the improper or unreasonable conduct (or other misconduct or default)  complained of and the wasted costs that have been incurred and are being claimed.[33]

46.  Jackson & Powell on Professional Liability[34] says as follows:

“Causation  The Court of Appeal in Ridehalgh v Horsefield,[35] stated that it was essential to demonstrate a causal link between the improper, unreasonable …… conduct and the wasted costs. The importance of demonstrating a causal link is illustrated by Kilroy v Kilroy, where the Court of Appeal allowed an appeal against a wasted costs order as the judge had not identified the conduct of the solicitors which was improper, unreasonable ……, and he had failed to identify the costs wasted by the conduct, although a detailed enquiry was not required. In that case, there had been great delay in the litigation, but it was clear that much of the costs would have been incurred in any event. In Gill v Humanwave Europe Ltd the Court of Appeal held that the usual tests of causation should be applied, and causation was not provided there. The court must ask whether the costs in question would have been incurred on the balance of probabilities but for the lawyers’ conduct, not whether there was a substantial possibility that they would not have been incurred, see Brown v Bennett (No. 2)[36]……” (my emphasis)

Thus, an applicant for a wasted costs order must bring before the court proper evidence to identify what costs have been caused by the impugned conduct.

47.  Compensatory/punitive nature  The nature of the wasted costs jurisdiction is said to be (a)  compensatory in the sense the costs ordered to be paid by the respondent solicitors under a wasted costs order cannot exceed the amount of costs incurred and wasted, and also (b)  punitive to the extent the wasted costs order shifts the burden of costs from a party who will otherwise be liable onto the solicitor.[37] In Medcalf v Mardell & ors, Lord Hobhouse said as follows:[38]

“56.  …… First, from the point of view of the advocate the jurisdiction is penal. It involves making a finding of fault against the advocate and visiting upon him a financial sanction …… the jurisdiction to make orders at the instance of and in favour of the opposing party gives rise to wholly different considerations for the advocate. The risk of such an application, at best, only provide a distraction in the proper representation of his own client and, at worst, may cause him to put his own interests above those of his client. The construction of the section and the application of the jurisdiction should accordingly be no wider than is clearly required by the statute. Secondly, the fault must, in the present context, relate clearly to a fault in relation to the advocate’s duty to the court not in relation to the opposing party, to whom he owes no duty ……”

48.  Legal professional privilege  Legal professional privilege gives rise to practical difficulties for an application for a wasted costs order. The solicitor has a legal and professional duty to uphold his client’s arguable rights to legal professional privilege.[39] As explained by Sir Thomas Bingham MR (as he then was)  in Ridehalgh, “…… it is the client’s privilege, which he alone can waive …… [the] privilege is not [the respondent solicitor’s] to waive ……” (page 237). So before a respondent solicitor can use arguably privileged material, he has to consult his client, ask his client whether he consents to use of such material, and allow his client to assert any rights he believes he has. There is necessarily a tension between the respondent solicitor’s interest in seeking waiver of privilege to help defend a wasted costs application and his client’s interest in maintaining privilege, which means the respondent solicitor cannot advise his client on whether right of privilege subsists, and if so, whether to waive such right of privilege. As Sir Thomas Bingham MR (as he then was)  explained in Ridehalgh, the former may well feel bound “to advise that the client should take independent advice before doing so [ie waiving privilege]” (page 237). In the absence of a court decision that no privilege subsists or informed waiver by the client pursuant to independent legal advice, the respondent solicitor cannot reveal matters that are arguably subject to legal professional privilege.

49.  Thus, respondent solicitors responding to a claim for wasted costs may labour under significant difficulties in defending their conduct before the court if their client declines to waive privilege, so the judge must make allowance for the solicitors’ inability to tell the whole story, and in cases of doubt they are entitled to the benefit of the same. The Court of Final Appeal in Ma So So reminded as follows (page 302):

“…… [in] the absence of any waiver [of privilege by the client], the respondent solicitor would be unable to disclose what advice and warnings he had given to his client and what instructions were received from his client. So, the respondent solicitor would find himself at a great disadvantage in defending the application. In these circumstances, the court must make full allowance for his inability to tell the whole story.[40]Where there is room for doubt, the respondent solicitor is entitled to the benefit of it. Only rarely will the court be able to make full allowance or to conclude there is no room for doubt. Further, the court must satisfy itself that it is in all the circumstances fair to make the order ……” (my emphasis)

In this respect, Li CJ referred to Lord Bingham’s observations in Medcalf at page 136 as follows (page 302):[41]

“23.  …… Only exceptionally could these exacting conditions be satisfied. Where a wasted costs order is sought against a practitioner precluded by legal professional privilege from giving his full answer to the application, the court should not make an order unless, proceeding with extreme care, it is (a)  satisfied that there is nothing the practitioner could say, if unconstrained, to resist the order and (b)  that it is in all the circumstances fair to make the order.”

50.  In Medcalf, Lord Bingham at pages 136-137 emphasised 2 matters:

“First, in a situation in which the practitioner is of necessity precluded (in the absence of a waiver by the client)  from giving his account of the instructions he received and the material before him at the time of settling the impugned document, the court must be very slow to conclude that a practitioner could have had no sufficient material. Speculation is one thing, the drawing of inferences sufficiently strong to support orders potentially very damaging to the practitioner concerned is another …… Only rarely will the court be able to make “full allowance” for the inability of the practitioner to tell the whole story or to conclude that there is no room for doubt in a situation in which, of necessity, the court is deprived of access to the full facts on which, in the ordinary way, any sound judicial decision must be based. The second qualification is no less important. The court should not make an order against a practitioner precluded by legal professional privilege from advancing his full answer to the complaint made against him without satisfying itself that it is in all the circumstances fair to do so. This reflects the old rule …… that a party should not be condemned without an adequate opportunity to be heard. Even if the court were able properly to be sure that the practitioner could have no answer to the substantive complaint, it could not fairly make an order unless satisfied nothing could be said to influence the exercise of its discretion ……”

51.  Lord Hobhouse in Medcalf referred to the principles stated in Ridehalgh and stated as follows at page 146:

“61.  ……The answer given therefore was not to treat the existence of privileged material as an absolute bar to any claim by an opposite party for a wasted costs order but to require the court to take into account the possibility of the existence of such material and to give the lawyers the benefit of every reasonably conceivable doubt that it might raise. So, all that the lawyer has to do is to raise a doubt in the mind of the court whether there might not be privileged material which could affect its decision whether or not to make a wasted costs order and, if so, in what terms and the court must give the lawyer the benefit of that doubt in reaching its decision, including the exercise of its statutory discretion. I see nothing unfair about this approach ……”

52.  Medcalf concerns allegations of fraud contained in a notice of appeal drafted by leading/junior counsel. In the application for a wasted costs order against the barristers, the question was whether they had before them reasonably credible material that established a prima facie case of fraud. To justify their pleading, the barristers needed waiver of privilege from their clients to release the relevant materials, but there was no such waiver. Lord Steyn at page 139 held that the burden of proof was on the party claiming wasted costs and there was no shift in evidential burden “where barristers are prevented by professional privilege from telling their side of the story”, and he went on to say as follows:

“42.  …… Without knowing the barristers’ side of the story, I am unwilling to speculate about the nature of the documents before them …… Lawyers are also entitled to procedural justice. Due process enhances the possibility of arriving at a just decision. Where due process cannot be observed it places in jeopardy the substantive justice of the outcome ……”

53.  Jackson & Powell on Professional Liability[42] accepts that “…… [in] some cases, the court can come to a clear decision despite the absence of any waiver of privilege by making assumptions in the lawyers’ favour or by concluding (where an error had been admitted)  that legal professional privilege made no difference. However, there is a limit to what the courts will be prepared to assume. In Dempsey v Johnstone (Wasted Costs Order), the Court of Appeal was unwilling to infer from the fact that legal aid had been extended to trial that the lawyers were asserting that there were good prospects of success”.

54.  In Maurice Dempsey, a wasted costs order was made against the claimant’s solicitors for their “negligence” (based on the English provision equivalent to section 52A of the HCO, but see Harris J’s observations in Dolphin Advertising Ltd in paragraph 44 above)  in pursuing a hopeless case that was eventually struck out. The question under the “negligence” limb of the English statutory provision was whether no reasonably competent solicitor would have evaluated the chance of success as justifying continuation of the claim. I will return to this English “negligence” limb (which has no applicability in Hong Kong)  below, but suffice to state here that as regards legal professional privilege Latham LJ said as follows:

“31.  In determining that question, it seems to me that the judge could only come to a conclusion adverse to the [respondent solicitors] if he had the opportunity of seeing the privileged material. It is suggested on behalf of the [defendant] that it is an inevitable inference from the fact that counsel’s advice …… resulted in the extension of legal aid for the purpose of the trial that counsel, and inferentially the [respondent solicitors] were asserting there were good prospects of success, and that that was a judgment no reasonably competent legal advisor could have made. Medcalf v Mardell makes it plain that the court should only come to such a conclusion if it is satisfied that there was nothing that the legal advisors could have said by reference to the privileged material which could counter that inference. That cannot be the position here. All that the court could properly infer is that Legal Aid was extended as a result of the advice. We cannot know in what terms the advice was couched, because we do not know what motivated the Legal Services Commission to extend the certificate on the facts of this case.

……

33.  Accordingly, I do not consider that the judge was right to make an order under section 51 on the facts of the present case and would allow the appeal ……”

(c)  Procedure

55.  Rules of High Court  Order 62 rules 8, 8A and 8B of the Rules of the High Court (“RHC”)  provide as follows:

“Personal liability of legal representative for costs – wasted costs order (O.62 r.8)

(1)  The Court may make a wasted costs order against a legal representative, only if –

(a)  the legal representative, whether personally or through his employee or agent, has caused a party to incur wasted costs as defined in section 52A(6)  of [HCO]; and

(b)  it is just in all the circumstances to order the legal representative to compensate the party for the whole or part of those costs.

(2)  A wasted costs order may –

……

(b)  direct the legal representative to –

……

(ii)  indemnify other parties against costs incurred by them.

(3)  The Court shall give the legal representative a reasonable opportunity to attend a hearing to give reasons why it should not make the order.

……

(5)  The Court may give directions about the procedure that should be followed in each case in order to ensure that the issues are dealt with in a way that is fair and is as simple and summary as the circumstances permit.

(6)  The Court may direct that notice must be given to the legal representative’s client, in such manner as the Court may direct –

(a)  of any proceedings under this rule; ……

……

Court may make wasted costs order on its own motion or on application (O.62 r.8A)

……

(2)  A party may apply for a wasted costs order –

……

(b)  by making an interlocutory application by summons.

(3)  Where a party applies for a wasted costs order by making an interlocutory application by summons, the party shall serve the summons on –

(a)  the legal representative concerned;

(b)  any party represented by that legal representative; and

(c)  any other person as may be directed by the Court,

not less than 2 clear days before the day specified in the summons for its hearing.

……

Stages of considering whether to make a wasted costs order (O.62 r.8B)

(1)  The Court shall consider whether to make a wasted costs order in 2 stages –

(a)  in the first stage, the Court must be satisfied that –

(i)  it has before it evidence or other material which, if unanswered, would be likely to lead to a wasted costs order being made; and

(ii)  the wasted costs proceedings are justified notwithstanding the likely costs involved; and

(b)  in the second stage (even if the Court is satisfied under sub-paragraph (a)), the Court shall consider, after giving the legal representative an opportunity to give reasons why the Court should not make a wasted costs order, whether it is appropriate to make the order in accordance with rule 8.

(2)  On an application for a wasted costs order, the Court may proceed to the second stage described in paragraph (1)(b)  without first adjourning the hearing if it is satisfied that the legal representative has already had a reasonable opportunity to give reasons why the Court should not make a wasted costs order. In other cases the Court shall adjourn the hearing before proceeding to the second stage.

(3)  On an application for a wasted costs order, any evidence in support must identify –

(a)  what the legal representative is alleged to have done or failed to do; and

(b)  the costs that he may be ordered to pay or which are sought against him.”

56.  Summary jurisdiction  It was made clear in Ma So So that the summary jurisdiction under Order 62 rule 8 of the RHC is confined to questions that are suitable for summary determination,[43] which will usually be clear cases: where the need for an order is reasonably obvious and where there is a clear picture of the solicitor’s fault (page 301).[44] Lord Bingham at page 136 in Medcalf citing Harley v McDonald[45] gave examples of such clear cases, such as “…… [failure] to appear, conduct which leads to an otherwise avoidable step in the proceedings or the prolongnation of a hearing by gross repetition or extreme slowness in the presentation of evidence or argument ……”, which matters “…… can thus be dealt with summarily on agreed facts or after a brief inquiry if the facts are not all agreed”. While the desirability of compensating litigating parties who have been put to unnecessary expense by the unjustified conduct of their opponent’s legal representatives is an important public interest, it is only one of the public interests which have to be considered. Another important consideration is that “any hearing to investigate the conduct of a complex action is itself likely to be expensive and time-consuming” (page 136).

57.  Thus, the Court of Final Appeal in Ma So So reminded judges to be astute to control any application for wasted costs from becoming a new and costly form of satellite litigation (page 301).[46] A wasted costs application should not be allowed to go forward if it cannot be dealt with by means of a simple and summary procedure and at a cost which is proportionate to the sum claimed. Elaborate pleadings and interlocutories such as discovery or interrogatories are generally inappropriate. “Hearing should be measured in hours, and not in days or weeks.”[47] This is especially so in the context of the court exercising its supervisory jurisdiction over its own officers. Justice is served so long as the procedure is fair in that the respondent solicitor is “very clearly told what he is said to have done wrong and what is claimed” and opportunity is given for him to answer the claim.[48] In Burkhard Hedrich &anor v Standard Bank London Ltd,[49] Ward LJ said as follows:

“12.  The admonition to ensure that the remedy is not more painful than the disease has been stressed many times, but, as the House was at pains to point out in Medcalf,disaffected litigants are not always heeding the advice.  I can pick out but a few of the warnings.  In Wall v Lefever [1998] 1 F.C.R. 605, 614, Lord Woolf M.R. said:

“The wasted costs jurisdiction is salutary as long as it is not allowed to be a vehicle which generates substantial additional costs to the parties.  It should not be used to create subordinate or satellite litigation, which is as expensive and as complex as the original litigation.  It must be used as a remedy in cases where the need for a wasted costs order is reasonably obvious.  It is a summary remedy which is to be used in circumstances where there is a clear picture which indicates that a professional adviser has been negligent etc.”

13.  In Re: Freudiana Holdings (unreported)  CA 28^th November 1995 Rose L.J. said:

“Unless wasted costs proceedings can take place in summary form, on or soon after delivery of judgment, they are unlikely to be appropriate.”

Millett L.J. said:

“The jurisdiction to make a costs order is a summary jurisdiction.  It follows, first, that the hearing should be short; secondly, that the procedure followed should not be unduly elaborate; and thirdly that the jurisdiction should only be exercised in reasonably plain and obvious cases ……”

58.  In short, the applicant party for a wasted costs order against his opponent’s solicitors has to satisfy both a merits test and a proportionality test,[50] which is now enshrined in PD14.5 as follows:

“……

2.  The Court of Final Appeal in [Ma So So] has given guidance on applications for wasted costs orders.

……

8.  The wasted costs jurisdiction is intended only for clear cases, that is, cases where there is prima facie liability unless the charge is answered.

9.  This fact, together with the fact that the application should usually only be made at the conclusion of the proceedings before the Judge or master who tried the matter, enables a summary procedure to be adopted.

……

12.  But the need for a simple, summary and fair procedure must always be borne in mind. It would defeat the purpose of the jurisdiction, which is to compensate for wasted costs, if such proceedings were allowed to become themselves an elaborate and costly form of satellite litigation.

……”

59.  2-stage approachMa So So noted the summary jurisdiction under Order 62 rule 8 of the RHC, which is discretionary, is to be exercised in 2 stages:[51]

(a)	at the 1st stage, the court is invited by the applicant to call on the solicitor to show cause as to the making of a wasted costs order, and the court will assess the strength of the applicant’s prima facie case and the proportionality of the exercise, comparing the amount of costs at stake with the likely costs of the application, and in doing so the court should give the solicitor an opportunity to be heard (page 303);
(b)	if the court allows the matter to proceed at the 1st stage, then it should give directions aimed at ensuring procedural fairness for both the solicitor and the complainant (page 318);
(c)	the 2nd stage follows where it has been shown that conduct of the kind prescribed by Order 62 rule 8 of the RHC has occurred and costs have been incurred or wasted, and the court is to decide whether or not to make the wasted costs order, but the court is not bound to make such an order, and if it declines to do so, clear reasons must be given (page 302).

60.  Paragraph 13(1)-(3)  of PD14.5 elaborates on the procedural approach by noting that procedural issues arise at 3 points: (a)  when an application is initially made by a party,[52] (b)  at the 1^st stage when the court decides whether the proceedings should proceed further,[53] and (c)  at the 2^nd stage when the court proceeds to a substantive assessment of the application.[54]

61.  On (a)  above, ie the initial application, PD14.5 provides as follows:

“14.  ...... it should normally be commenced by an inter partes summons in the proceedings in which wasted costs are alleged to have been incurred ……

15.  The application should be served by the applicant on the legal representative against whom an order is sought, any person represented by that legal representative and any other person as may be directed by the Court (see Order 62, rule 8A(3)).

16.  The summons, which seeks an order that the legal representative to show cause under Order 62 rule 8(3), should be accompanied by particulars clearly specifying the conduct of which complaint is made, that is, the particulars must identify precisely what the legal representative is alleged to have done or failed to do.

17.  The particulars to the summons should also state precisely what wasted costs are alleged to have been caused by such acts or omissions of the legal representative and how much of such costs are being claimed by the applicant.

18.  The less clear the complaint is and/or the more complicated and wide-ranging the particulars are, the less likely that it will be that the court will be prepared to allow the matter to proceed to the second stage hearing.

19.  The summons should be supported by an affidavit which verifies the facts alleged in the particulars of complaint and identifies the evidence or other material on which the applicant relies in support.

……

22.  Since the particulars and any affidavit should make the case against the legal representative clear, there usually should be no need for any preliminary directions hearing before the first stage hearing. If the complaint is unclear or plainly unsustainable, objection can be taken or directions sought at the first stage hearing itself.” (my emphasis)

62.  On (b)  above, ie the 1^st stage, PD14.5 provides that the court must be satisfied the evidence before it, if unanswered, would likely lead to the making of a wasted costs order, and the wasted costs proceedings are justified notwithstanding the likely costs involved:

“23.  At the first stage hearing, the Court decides whether the matter should be allowed to proceed further. The Court will only do so if it is satisfied that the criteria in Order 62, rule 8B(1)(a)  have been met.

24.  The applicant and the legal representative are given an opportunity to be heard at this hearing. But submissions should be succinct, bearing in mind the Judge’s familiarity with the matter and the papers instituting the application. It would be helpful for both parties to indicate to the Court the extent of any genuine factual or legal disputes.

25.  If the Judge decides that wasted costs proceedings are justified, directions to ensure that the legal representative is afforded a reasonable opportunity to show cause why a wasted costs order should not be made will be considered.

26.  Where the Court is satisfied that a legal representative has already had a reasonable opportunity to give reasons why the Court should not make a wasted costs order, it may proceed without adjournment from the first stage to the second stage hearing (see Order 62 rule 8B(2)).

……”

In Persuad v Persuad & ors,[55] Peter Gibson LJ said at page 4 that “…… [as] is made clear in Ridehalgh v Horsefield [1994] Ch 205 at page 239D per Sir Thomas Bingham giving the judgment of this court (consisting of himself, Rose and Waite LJJ), the first stage is no mere formality but requires the court to exercise its discretion judicially having regard to the case put by the party seeking the order. A strong prima facie case must be shown ……”

63.  On (c)  above, ie the 2^nd stage, PD14.5 provides the respondent legal representative will have an opportunity to give reasons or show cause why the wasted costs order should not be made, and then the court is to consider in light of such evidence whether to make the wasted costs order:

“29.  The jurisdiction is discretionary and, after hearing the applicant and the legal representative and taking into account relevant materials before the Court, the Judge will decide whether he ought to exercise his discretion in favour of making an Order.

30.  If he decides to make an Order, he will consider how much the wasted costs are the responsibility of the legal representative, specifying the extent of the costs recoverable in the award.

31.  The [HCO], section 52A(5)  imposes a duty on the Court, when considering whether to make a wasted costs order, to take into account the public interest that there be fearless advocacy under the adversarial system of justice.

……”

(d)  Procedural defects

64.  In my view, Mr Kwan was right in submitting that D2-D5 failed to follow the requisite procedures for the Para 5 Application:

(a)	The Summons for the Para 5 Application merely sought a wasted costs order for P’s solicitors to personally pay D2-D5’s costs of the present action in relation to quantum. The Summons was not accompanied by any particulars that specified clearly or at all (i)  “the conduct of which complaint is made, that is, …… precisely what the legal representative is alleged to have done or failed to do”,[56] and/or (ii)  “what wasted costs were alleged to have been caused by such acts or omissions of the legal representative and how much of such costs are being claimed by the applicant”. But the RHC required such application to identify what the respondent solicitor is alleged to have done or not to have done, and the costs that he may be ordered to pay.[57]
(b)	The Lam 2nd Aff was filed on the same day as the Summons. 2 matters of were note in respect of such affirmation. First, for the Para 5 Application, the Lam 2nd Aff should (i)  verify “the facts alleged in the particulars of complaint”, and (ii)  identify “the evidence or other material on which [D2-D5] relies in support”.[58] Since no particulars were given in the Summons for the Para 5 Application, the Lam 2nd Aff could not have (1)  verified the facts alleged in the “particulars of complaint” and/or (2)  identified the evidence/materials in support of either the “particulars” or the facts alleged in the “particulars”. Secondly, the Lam 2nd Aff was filed to support the entire Summons, including reliefs sought against P that were the subject matters of the 30/12/22 and 4/1/23 Orders[59] (collectively, “Paras 1-4 Applications”). It was unclear from the Lam 2nd Aff which facts/materials asserted therein were in support of the Para 5 Application in contra-distinction to those in support of the Paras 1-4 and Para 3 Applications.
(c)	But even if one were to look for the “particulars of complaint” in (a)(i)-(ii)  above in the Lam 2nd Aff itself, the facts/materials deposed therein that might possibly be relevant to the Para 5 Application were the suggestion that P’s solicitors turned a deliberate blind eye to the Discrepancies between the declarations in the SWD / HKHA Forms and the assertions in the Mother WStmt, the latter of which must be false if the former were true (which truth the Mother confirmed at the assessment hearing)[60] such that P’s solicitors should have properly advised P to realistically reconsider her position to avoid incurring unnecessary costs, especially when (i)  she was not on legal aid, (ii)  her case was obviously contradicted by the SWD / HKHA Forms and the Deceased SWD Forms, and (iii)  the Discrepancies were unexplained.[61] I agree with Mr Kwan that such complaints in the Lam 2nd Aff did not “clearly” and “precisely” specify the act or omission complained of on the part of P’s solicitors. First, such complaint partly relied on the assumption if the declarations in the SWD / HKHA Forms were true, which assumption was said to have been confirmed by the Mother at the assessment hearing.[62] But such assertion left a lacuna as to how the conduct and carriage of the present action by P’s solicitors on behalf of P in the course of the present litigation amounted to turning a blind eye to the reality that unravelled at the end-point of the assessment hearing. I refer to the discussions in paragraphs 213-214 below on limitations in channelling the court’s findings made at the end-point of the litigation into alleged impropriety or unreasonableness of the alleged act(s)  or omission(s)  (or alleged other misconduct or default)  of the respondent solicitors prior to the trial. Secondly, such complaint relied on P’s failure to adduce statement evidence to explain the Discrepancies (which contradictions were said to be known to P’s solicitors)  so as to suggest there was no credible basis for maintaining P’s case with reasonable prospect of success to beat the Sanctioned Payments.[63] I refer to the discussions in paragraphs 89-130 below on limitations in channelling (1)  the respondent solicitors’ representation of the client who has made inconsistent statements to them, (2)  the respondent solicitors’ presentation of the client’s case without disclosing all the facts, (3)  the respondent solicitors’ representation of the client in pursuit of a hopeless case and/or (4)  the judicial fact-finding function premised on the court’s assessment of the totality of the evidence into alleged impropriety or unreasonableness of the alleged act(s)  or omission(s)  (or alleged other misconduct or default)  of the respondent solicitors prior to the trial. Thirdly, such complaint relied on the duty of P’s solicitors to properly advise P to “realistically reconsider her position” (presumably to not progress the present action to the assessment hearing and/or to accept the Sanctioned Payments)  so as to avoid incurring unnecessary costs in view of the Discrepancies between P’s case and the SWD / HKHA Forms.[64] But the Lam 2nd Aff fell short of particularising whether there was breach of such alleged duty, ie whether P’s solicitors actually failed to so advise P. Further, I refer to the discussions in paragraphs 48-54 above and paragraph 96 below on limitations in channelling the client’s insistence on litigation and his failure to follow legal advice (especially when there is no waiver of privilege over the legal advice given)  into alleged impropriety or unreasonableness of the alleged act(s)  or omission(s)  (or alleged other misconduct or default)  of the respondent solicitors prior to the trial. As regards the other complaints in the Lam 2nd Aff, it was quite unclear whether they were against P or P’s solicitors when the Lam 2nd Aff was filed also in support of the Paras 1-4 Applications against P.
(d)	Further, neither the Summons nor the Lam 2nd Aff stated what wasted costs were alleged to have been “caused” by the conduct of P’s solicitors complained of and were being claimed.[65]

65.  Mr Kwan submitted the above defects were no mere technicalities for they went to the crucial matter of whether P’s solicitors knew what allegations were made against them. Li CJ in Ma So So made clear “[the] solicitor concerned should be informed of the allegations made against him: the conduct complained of, how such conduct caused costs to be incurred or wasted and all other circumstances relied on” (page 304). The importance of procedural compliance in this regard by the applicant for a wasted costs order was underlined by paragraph 18 of PD14.5 which provides that “[the] less clear the complaint is and/or the more complicated and wide-ranging the particulars are, the less likely that it will be that the Court will be prepared to allow the matter to proceed to the second stage hearing”.[66]

66.  In my view, the rationale for this is clear. First, fairness and justice demand that a legal representative (in contra-distinction to the litigant whom he represents)  should know clearly and precisely why it was said he should be visited with a costs order payable to the opposing party. Secondly, whilst the legal representative need not file any evidence for the 1^st stage, he is free to do so if it is desired to place some important item of evidence before the court for the purpose of its decision at the 1^st stage (see paragraph 21 of PD14.5), and the legal representative cannot effectively do so unless (a)  clear and precise particulars are given in the summons and (b)  the supporting affirmation verifies the facts alleged in the particulars of complaint and identifies the evidence or other material on which the applicant relies in support.

67.  Here, D2-D5 only set out the fullness of their case against P’s solicitors in the Lam 3^rd Aff (ie after the Pang Aff was filed). For example, the Lam 3^rd Aff for the 1^st time stated (a)  if P’s solicitors had duly advised P on the Discrepancies but P insisted on pursuing her claim then P’s solicitors should have ceased to act in the present action,[67] and/or (b)  the wasted costs that P’s solicitors should personally bear were D2-D5’s costs from the date of the Mother WStmt (25 October 2018)  onwards[68] (and it later transpired from Mr Sakhrani’s written submissions that D2-D5 invited the court to grant a wasted costs order on such basis “or alternatively not less than 80% of [D2-D5’s] agreed or taxed costs that were incurred after 25 October 2018 (the date [the Mother WStmt and the Sister WStmt] were filed)  to be paid by [P’s] solicitors to [D2-D5]”), but it was far too late to give fair opportunity for P’s solicitors (if they so wished)  to file responsive evidence to deal with the allegations made in the Lam 3^rd Aff.

68.  Further, I note the title of Mr Sakhrani’s written submissions was “For [P’s] solicitors to show cause”, which in conjunction with the last paragraph therein showed that D2-D5 appeared to have jumped over the 1^st stage envisaged in Order 62 rule 8B(1)(a)  of the RHC and paragraphs 23-25 of PD14.5[69] and proceeded directly to the 2^nd stage (a)  by having P’s solicitors to show cause why a wasted costs order should not be made, and (b)  by inviting this court to now grant a wasted costs order against P’s solicitors as set out in paragraph 67(b)  above. But as Order 62 rule 8B(2)  of the RHC and paragraph 26 of PD14.5[70] provide, it is only when the court is satisfied a legal representative has already had a reasonable opportunity to show cause by giving reasons why the court should not make a wasted costs order that the court may proceed to the 2^nd stage without adjournment from the 1^st stage. But as seen in paragraph 67 above, P’s solicitors at this stage did not yet have reasonable opportunity to address the fullness of D2-D5’s particulars and/or facts/materials (especially those in the Lam 3^rd Aff)  in support of the wasted costs order sought, so no wasted costs order could be granted at this 1^st stage in any event.

(e)  Duty to the court

69.  Solicitors’ function/responsibilities  The starting point is that a barrister (in my view, likewise a solicitor)  “must promote and protect fearlessly and by all proper and lawful means his lay clients’ interests ……”[71] Lord Hobhouse at page 141 in Medcalf notably explained as follows:

“51.  …… The duty of the advocate is with proper competence to represent his lay client and promote and protect fearlessly and by all proper and lawful means his lay client’s best interests. This is a duty which the advocate owes to his client but it is also in the public interest that the duty should be performed. The judicial system exists to administer justice and it is integral to such a system that it provides within a society a means by which rights, obligations and liabilities can be recognised and given effect to in accordance with the law and disputes be justly (and efficiently)  resolved. The role of the independent professional advocate is central to achieving this outcome, particularly where the judicial system uses adversarial procedures.

52.  It follows that the willingness of professional advocates to represent litigants should not be undermined either by creating conflicts of interest or by exposing the advocates to pressures which will tend to deter them from representing certain clients or from doing so effectively …… Unpopular and seemingly unmeritorious litigants must be capable of being represented without the advocate being penalised or harassed whether by the Executive, the Judiciary or by anyone else. Similarly, situations must be avoided where the advocate’s conduct of a case is influenced not by his duty to his client but by concerns about his own self-interest.” (my emphasis)

70.  Duty to client’s opponent?  The solicitor owes no duty to his client’s opponent. Any such duty will be fundamentally inconsistent with the adversarial legal system because inevitably the proper discharge by the solicitor of his duty to his own client will more often than not be disadvantageous to the interests of his client’s opponent.[72]

71.  Duty to the court As Lord Hoffmann explained in Arthur J S Hall & Co (a firm)  v Simons, “[lawyers] conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice ……”[73] Where the solicitor’s duty to the court comes into conflict with his client’s wishes or what the client thinks are his personal interests, the overriding duty that the solicitor as an officer of the court owes to the court eclipses all other duties.[74] The underlying purpose of the paramountcy of the solicitor’s duty to the court is to protect the public interest in the administration of justice. It is a duty to act with independence in the interests of justice.

72.  As explained by Lord Hobhouse at page 142 in Medcalf, which explanation reflects the public interest in the administration of justice, the duties that the professional advocate, whether solicitor or barrister, owes to the court arise out of the distinctive role and position of the advocate in the legal system and the special relationship between the advocate and the court, and represent the price which he must pay for the privileges and immunities he enjoys:

“54.  The professional advocate is in a privileged position. He is granted rights of audience. He enjoys certain immunities. In return he owes certain duties to the court and is bound by certain standards of professional conduct in accordance with the code of conduct of his profession. This again reflects the public interest in the proper administration of justice; the public interest, covering the litigants themselves as well, is now also expressed in CPR Pt 1. (See also paragraph 9 of the Practice Direction, Statements of Case supplementing CPR Pt 16.)  The advocate must respect and uphold the authority of the court. He must not be a knowing party to an abuse of process or a deceit of the court. He must conduct himself with reasonable competence. He must take reasonable and practicable steps to avoid unnecessary expense or waste of the court’s time. The codes of conduct of the advocate’s profession spell out the detailed provisions to be derived from the general principles …… All this fits in well with an appropriate constitutional structure for a judicial system for the administration of justice.

55.  The introduction of a wasted costs jurisdiction makes an inroad into this structure. It creates a risk of a conflict of interest for the advocate. It is intended and designed to affect the conduct of the advocate and to do so by penalising him economically. Ideally a conflict should not arise. The advocate’s duty to his own client is subject to his duty to the court: the advocate’s proper discharge of his duty to his client should not cause him to be accused of being in breach of his duty to the court: Arthur J S Hall & Co v Simons [2002] 1 AC 615. But the situation in which the advocate finds himself may not be so clear-cut. Difficult tactical decisions may have to be made, maybe in difficult circumstances. Opinions can differ, particularly in the heated and stressed arena of litigation. Once an opposing party is entitled to apply for an order against the other party’s legal representatives, the situation becomes much more unpredictable and hazardous for the advocate. Adversarial perceptions are introduced …… The factors which may motivate a hostile application by an opponent are liable to be very different from those which would properly motivate a court.

56.  In my judgment, the jurisdiction must be approached with considerable caution and the relevant provisions of section 51 construed and applied so as not to impinge upon the constitutional position of the advocate and the contribution he is required to make on behalf of his client in the administration of civil justice ……”

73.  But at the same time, given that the duty to the court serves a vital public interest in the proper administration of justice, the court is empowered to enforce appropriate behavior by legal representatives so as to achieve such end, notwithstanding the caution urged by Lord Hobhouse in the exercise of the wasted costs jurisdiction. Consequently, “…… the Court has a right and a duty to supervise the conduct of those appearing before it, and to visit with penalties any conduct of a lawyer which is of such a nature as to defeat justice in the very same cause in which he is engaged professionally”.[75]

74.  The circumstances that may give rise to breaches of the duty to the court are infinite. While it is impossible to enumerate them all, the content of such duty is set out in the case authorities,[76] and also find expression in The Hong Kong Solicitors’ Guide to Professional Conduct. Solicitors are required to act professionally with fairness and integrity, and they have a general duty not to mislead the court and/or not to abuse the court’s process. Further, the integrity of the legal system also requires solicitors (irrespective whether or not they are so instructed)  not to bring proceedings or to make claims for ulterior purpose.

75.  Ulterior purpose Taking the last point first, solicitors should not distort the course of justice by using litigation procedures for purposes for which they are not intended, eg (a)  pursuit of a claim known to be dishonest in order to harass the opposite party, (b)  issuing or pursuing proceedings for purposes unconnected with success in the litigation, eg to generate costs for the solicitors or to gain a temporary bargaining position rather than to vindicate the client’s rights,[77] (c)  lodging and pursuing an appeal which the solicitors know is manifestly hopeless and will not go ahead to full hearing, eg as delaying tactic to postpone payment, to resist execution[78] or to pressure the opposite party to accept a lower sum to dispose of the matter.

76.  An example of (a)  above in Tolstoy-Miloslavsky v Aldington,[79] which is discussed in paragraphs 113 below.

77.  An example of (b)  above is Re Estate of Lau Heung[80] cited by Mr Sakhrani. In that case, the plaintiff beneficiary of his father’s estate issued an originating summons against the executor defendants seeking inter alia an account of the estate and interim payment. The estate monies were deposited into a bank account in the executors’ joint names. It was eventually agreed that the plaintiff was at least entitled to an undisputed sum for which the executors were prepared to make interim payment, but one of the executors (Deng)  being resident in Mainland China was unable to come to Hong Kong to authorise payment out of the bank account for the interim payment and to complete the account. On 6 October 2020, the executors’ solicitors sent a without prejudice letter to the plaintiff’s solicitors (a)  stating Deng had secured a 3-month exit and re-entry permit and could stay in Hong Kong until 20 December 2020, (b)  enclosing a cashier order for the undisputed sum and interest thereon until 7 April 2020, and (c)  proposing inter alia to render the account on/before 20 December 2020, and asked to vacate the hearing of the originating summons with no order as to costs. The plaintiff’s solicitors replied by open letter on 7 October 2020 seeking payment of the undisputed sum, the account and costs of the originating summons in the sum of $135,000 otherwise the plaintiff would issue a joinder summons to join the bank for a vesting order. The plaintiff’s solicitors in asking whether Deng could come to Hong Kong to authorise payment of the undisputed sum (i)  ignored the without prejudice letter by the executors’ solicitors,[81] (ii)  relied on an earlier affirmation filed by the executors to the effect that Deng was previously unable to travel to Hong Kong, and (iii)  deliberately did not present the cashier order for payment because, as evident from the plaintiff’s eventual skeleton submissions, “[they] considered that they should turn a blind eye to what was said in without prejudice communications” (page 549).

78.  When the executors’ solicitors did not respond on the next day, the plaintiff filed a joinder summons. Then, on the following day, the executors (a)  by open letter reminded the plaintiff’s solicitors of the earlier without prejudice letter and the cashier order, and urged the plaintiff’s solicitors to withdraw the joinder summons, and (b)  by without prejudice letter offered to pay interest on the undisputed sum after 8 April 2020 and to pay costs of the originating summons in the sum of $33,750, confirmed completion of the account as proposed earlier, and suggested vacating the upcoming hearing. The executors’ solicitors also explained that the cashier order was not without prejudice but was for distribution of the estate to the plaintiff, and confirmed that receipt of the cashier order would not bind the plaintiff to any terms proposed in the without prejudice letter in (b)  above. But the plaintiff’s legal team considered they could not act on such assertions, and ignored the cashier order and the fact Deng had arrived in Hong Kong.

79.  DHCJ To considered the joinder summons was unnecessary as the plaintiff essentially got what he asked for, and the only outstanding issue was the amount of costs of the originating summons, so he ordered the plaintiff to pay the executors’ costs of the joinder summons with certificate for counsel to be taxed if not agreed. As regards the plaintiff’s solicitors, the learned judge found they took a mechanistic approach, turned a blind eye to disclosed facts (albeit in without prejudice letters), and sought an unnecessary confirmation by their letter dated 7 October 2020 to which they knew the answer (pages 557-558). Also, there was no satisfactory answer why, when the cashier order was to hand, they would still (a)  issue the unnecessary joinder summons except for the de minimus interest after 7 April 2020 which the executors promptly agreed to pay within 3 days, and (b)  proceed with the hearing of the unnecessary joinder summons (which was doomed to fail with costs against the plaintiff and which was eventually withdrawn)  to argue just for costs (pages 558-559). The learned judge considered it quite improper to take out the joinder summons (and thereby to incur disproportionate costs)  to coerce the executors to comply with the demand for costs of the originating summons or additional interest (pages 559-560), and he went on to say as follows at page 560:

“35.  It appears to me that the plaintiff’s solicitors were the mastermind in the issue of the Joinder Summons. In so doing, not only did they incur costs on their client which they benefitted, they put their client at risk of an adverse costs order. That risk materialized …… Their conduct has gone beyond the realm of error of law or judgment. This is a plain and obvious case of abuse of legal process. The plaintiff’s solicitors were just creating work to generate costs for themselves at the expense, not only of their client but also of the client’s opponents. They were working on their own agenda regardless of the interest of their client, not to mention the unfair and unnecessary prejudice to the opponents. They unnecessarily prolonged the litigation which was about to conclude, increased the parties’ costs and created unnecessary acrimony. They were cost-thirsty. I condemn such gross conduct. Without a wasted costs order, the plaintiff would be prejudiced by such misconduct of his solicitors. Such cost-thirsty approach of legal representatives should be discouraged. A wasted costs order is justified in the circumstances …… Accordingly, I make a wasted costs order that the costs which the plainiff is ordered to pay to the Executors be repaid to the plaintiff by the plaintiff’s solicitors ……”

80.  I note that in Re Estate of Lau Heung the abuse was clear and obvious and required no further investigation because (a)  the plaintiff’s solicitors already had the cashier order to hand which showed Deng was already in Hong Kong, (b)  the interest after 7 April 2020 was de minimus and was met by the executors’ prompt offer to pay the same, and (c)  the executors had agreed to render the account by 20 December 2020 before Deng returned to Mainland China. There was nothing more to be gained by the unnecessary joinder summons, which was not to the plaintiff’s interest since there was foreseeable risk of adverse costs order that eventually materialised. In my view, this case is a good illustration of the straightforward and obvious nature of the necessary abuse required to attract a wasted costs order.

81.  An example of (c)  above is Re Labour Buildings Ltd[82] which is discussed in paragraphs 189-191 below.

82.  However, conduct is not unreasonable simply because it led to an unsuccessful outcome or because some other more cautious solicitors would have acted differently. It is not unreasonable to be optimistic and “…… [the] acid test is whether the conduct permits of a reasonable explanation ……”[83]

83.  Duty not to mislead the court  There is a general duty of legal representatives (including solicitors)  not to mislead the court. Where the litigation solicitor consciously or knowingly misleads the court by act or omission, the inevitable inference is that he has deceived the court and acted dishonestly. The court regards this as one of the most serious offence that a litigator can commit as “such conduct is a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings”.[84]

84.  As regards the content of such duty not to mislead the court, the litigation solicitor must refrain from, say, consciously or knowingly misstating the true facts, stating untrue facts, concealing facts which should have been drawn to the court’s attention and/or permitting the client to deceive the court. A solicitor must also refrain from knowingly causing a witness to give incorrect evidence, or allowing a witness to give evidence which he knows to be false, or knowingly permitting the client to attempt to deceive the court. If these duties conflict with the solicitor’s duty of confidentiality to the client, the solicitor’s duty to the court is paramount.[85]

85.  Mr Sakhrani referred to The Hong Kong Solicitors’ Guide to Professional Conduct Vol 1 which provides as follows:

“10.03 Duty to the Court

A solicitor must never knowingly attempt to deceive or participate in the deception of a court.

Commentary

……

3.  When it has come to the knowledge of a solicitor that a client intends to mislead the court by making false statements or producing false evidence, the solicitor has a duty to advise the client not to do so and explain the legal consequences of misleading the court, which may amount to a grave criminal offence such as perjury or perverting the course of justice. If the client refuses to accept the advice, the solicitor must cease to act (see also Principle 10.05).

……

5.  Where the client admits to the solicitor in the course of litigation that he has committed perjury or misled the court in any material matter in those proceedings, it is the duty of the solicitor to decline to act further in the proceedings unless the client agrees fully to disclose the conduct to the court.”

86.  An illustrative example is Vernon v Bosley (No 2).[86] In that case, 2 of the plaintiff’s children (who were passengers in the car driven by the defendant)  were killed when the car went off the road and plunged into a river. The plaintiff sued the defendant for damages for personal injuries suffered as secondary victim. The defendant admitted liability and the plaintiff was awarded substantial damages. The award for damages was reduced on appeal. But before the final order was drawn up, the defendant’s counsel received anonymous information that the expert medical evidence adduced by the plaintiff in the county court family proceedings between him and his wife (from the same experts called in the personal injuries action)  suggested the plaintiff had improved dramatically and had a more optimistic prognosis. The plaintiff’s legal advisers had known of the improved prognosis before judgment was given in the personal injuries action, but advised the plaintiff not to disclose that fact to the judge, the defendant’s advisers or the English Court of Appeal. Stuart-Smith LJ held that “…… where the case has been conducted on the basis of certain material facts which are an essential part of the party’s case, in this case the plaintiff’s condition at trial and the prognosis, which were discovered before judgment to be significantly different, the court is not being misled by the failure of the defendant to put before it material of which she could or should have been aware, but by the failure of the plaintiff and his advisers to correct an incorrect appreciation which the court will otherwise have as a result of their conduct of this case hitherto” (page 699).[87]

87.  Vernon was different from the present case in that, notwithstanding Lam’s and Mr Sakhrani’s complaints that the Discrepancies were not alluded to and/or explained in the Mother WStmt / RSoD, (a)  the SWD / HKHA Forms and the Deceased SWD Forms were adduced as evidence before this court at the assessment hearing, and (b)  this court was not misled by any total non-disclosure of inconsistent evidence.

88.  This brings me to 3 further points in relation to the duty not to mislead the court in the context of the adversarial legal system. First, solicitors must not connive at the client’s falsity, assist in the client’s improper/dishonourable conduct and/or help to substantiate a fraud (eg in circumstances when the solicitors learn that the client intends to give deliberately false evidence at the trial). As explained above, where there is conflict between the solicitor’s duty to the court not to corrupt the proper administration of justice and the duty to the client to advance his best case, the former prevails and is paramount. But if the solicitor only has a suspicion but no proof of falsity, it is for the court and not for the solicitor to determine the reliability of the client’s or the witness’ testimony.[88]

89.  Secondly, the fact that a solicitor must not mislead the court or misstate the facts to the court does not mean that he or she must, in all the circumstances, disclose all the facts to the court, eg (a)  solicitors for the defendant have no duty to bring to the court’s attention facts favourable to but not proved by the plaintiff, or (b)  where in a civil case there may be several witnesses who can speak to a certain matter of fact with some supporting one side and the others the opposite case, neither the litigant nor his legal representatives are bound to call those witnesses who do not support their case.[89] There is a distinction between falsifying/ fabricating evidence or knowingly presenting false evidence whether by act or omission (which is not allowed)  and not disclosing evidence (which is allowed).[90] Commentary 6 under Principle 10.03 in The Hong Kong Solicitors’ Guide to Professional Conduct Vol 1 provides as follows:

“6.  A solicitor knowing facts which, or of a witness who, would assist his adversary is not under any duty to inform his adversary or the court of this to the prejudice of his own client …… he must not, however, himself knowingly put forward or let his client put forward false information with intent to mislead the court. ……”

90.  Thirdly, as noted in The Hong Kong Solicitors’ Guide to Professional Conduct, “[in] general, there is no duty upon a solicitor to enquire in every case where he is instructed as to whether his client is telling the truth and it will be for the court, and not the solicitor, to assess the truth or otherwise of the client’s statement”,[91] and “[if], either before or during the course of the proceedings, a client makes statements to his solicitor which are inconsistent, this is not of itself a ground for the solicitor to refuse to act further on behalf of the client”.[92] In short, no general obligation is imposed on the litigation solicitor to conduct pre-trial screen of his client’s case claim or defence. To require a litigation solicitor to conduct a pre-trial screen will put him in a position of conflict by making him a preliminary assessor or judge of the issue in dispute.

91.  This was aptly summarised in the headnote in Orchard v South Eastern Electricity Board “…… that the jurisdiction to order a solicitor to pay the costs of the opposing party under R.S.C., Ord. 62, r. 8 could be exercised only where it was clear that he was guilty of a serious dereliction of duty or serious misconduct, and should be exercised with care and discretion; that, although a solicitor should not assist a litigant where prosecution of a claim amounted to an abuse of process it was not his duty to attempt to assess the result of a conflict of evidence or to impose a pre-trial screen on a litigant’s claim or defence; that such a charge of misconduct against a solicitor ought not to depend on inference without direct evidence ……” (my emphasis).[93]

92.  In that case, the legally aided plaintiff sued the electricity board claiming damages for negligence and breach of statutory duty. He alleged that due to defects in electricity supply, electricity was escaping in the vicinity of his house and heating water in the earth so it turned to steam or changed into its constituent gases, giving rise to penetration of the concrete floors by water, appearance of water from electricity sockets, and other physical phenomena eg movement of objects in the house. Surprisingly, these allegations were supported by the evidence of an independent expert. The action was dismissed after trial, and the judge held that the events complained of were caused by the plaintiff’s son, and that the plaintiff / his wife must have realised that from an early stage. The board asked after judgment for an order against the plaintiff’s solicitors to pay their costs.

93.  Sir John Donaldson MR explained the solicitors’ duty in relation to the veracity of their client’s case as follows (page 572):

“…… In the context of a complaint that litigation was initiated or continued in circumstances in which to do so constituted serious misconduct, it must never be forgotten that it is not for solicitors or counsel to impose a pre-trial screen through which a litigant must pass before he can put his complaint or defence before the court. On the other hand, no solicitor or counsel should lend his assistance to a litigant if he is satisfied that the litigation or further prosecution of a claim is mala fide or for an ulterior purpose or, to put it more broadly, if the proceedings would be, or have become, an abuse of the process of the court or unjustifiably oppressive.” (my emphasis)

94.  Sir John Donaldson MR’s views were cited with approval by the Court of Appeal in Ho Lee Man (No 2). In that case, Litton JA (as he then was)  said as follows (page 196):

“…… In litigation, there is almost invariably a winner and a loser. The losing party often feels disgruntled - sometimes against his own solicitors. In the course of civil litigation, there are usually many interlocutory steps - sometimes too many. The outcome cannot be always predicted with accuracy. If a solicitor should run the risk of being personally liable for the costs every time his client takes a wrong step, this would have a profoundly harmful effect upon the normal conduct of civil litigation. A solicitor, instead of doing his best in the circumstances for his client, would tremulously be looking to his own pocket, fearful of the consequences if he loses. Such an attitude would also have a harmful effect upon the organisation of the profession. Often, litigation is put in the charge of an employed solicitor. It would be a most unfortunate development if firms, in employing young solicitors, should adopt a practice of requiring an indemnity from the young solicitor to cover the situation where the firm might incur liability for costs as a result of some erroneous step taken in litigation. It is probably for reasons such as these that Sir John Donaldson MR in Orchard v South Eastern Electricity Board (supra)  at p 572 cautioned against an overzealous use of the jurisdiction under O 62 r 8(1)  of the Rules of the Supreme Court. In that passage, the Master of the Rolls referred to the judgment of Sachs J in Edwards v Edwards [1958] P 235 and said:

Sachs J examined the authorities and stated that it was axiomatic that the mere fact that the litigation failed was no reason for invoking the jurisdiction, nor was an error of judgment, nor even the mere fact that an error was of an order which constituted or was equivalent to negligence. There had to be something which amounted to a serious dereliction of duty (see p 248). The decision of this court in Davy-Chiesman v Davy-Chiesman [1984] Fam 48 was to the like effect. The jurisdiction could only be invoked in the case of serious misconduct and the initiation or continuance of an action when it had no or substantially no chance of success might constitute such misconduct (per Dillon LJ at p 67).

Sir John Donaldson MR went on at p 572-E to emphasise that the jurisdiction had to be exercised with care and discretion, and only in clear cases:

… it must never be forgotten that it is not for solicitors or counsel to impose a pre-trial screen through which a litigant must pass before he can put his complaint or defence to the court.

……”

95.  Turning back to Orchard, the English Court of Appeal emphasised the importance of not viewing the matter through the prism of hindsight wisdom (which echoed the observations by DHCJ To in Pine Enterprises Limited v Cyber Strategy Ltd & anor[94] in paragraph 214 below). In that case, the fact that a trial witness was rejected as wholly unbelievable did not serve to impugn the conduct of the plaintiff’s legal representatives as they brought the action on the basis of independent observations of the phenomena and the supporting expert report. It was found that legal aid was properly granted, and that the plaintiff’s solicitors/counsel had acted properly.

96.  Whilst I am on Orchard, I should also refer to Dillon LJ’s observations on the impact of legal professional privilege. He noted the board had difficulty in discharging the onus of establishing on balance of probabilities that the plaintiff’s solicitors were guilty of requisite dereliction of duty or serious misconduct (page 579)  as they did not know what passed between the plaintiff’s solicitors and the plaintiff since such matters were privileged, which privilege belonged to the plaintiff and not to his solicitors or the board. So the board had to rely on the fact that the plaintiff’s case was quite bizarre (page 578), and to “…… ask the court to draw inferences from the weaknesses of the plaintiff’s case, as formulated from time to time, to which the defendants’ solicitor repeatedly drew the plaintiff’s solicitors’ attention from the outset of the proceedings” (page 579). But Dillon LJ said at page 580 as follows:

“In a case such as the present, the charge against a solicitor of misconduct or dereliction of duty, which would have to be made out before the court could impose personal liability for the costs of the action on the solicitor, is a serious charge, with very serious consequences. Such a charge ought not to rest solely on inference without evidence. I appreciate that as already mentioned, defendants who wish to make such a charge against solicitors for the plaintiff have a difficulty in getting evidence because of the rules of legal professional privilege. Those rules of privilege also, however, hamper the solicitor in seeking to justify his own conduct of the case. The justification of privilege lies in the field of public policy; that a defendant may thereby be precluded from making out a claim that his costs should be paid by the plaintiff’s solicitor personally is part of the price which has to be accepted from rules designed to ensure that a litigant has freedom to consult with his lawyers before his case comes before the court.” (my emphasis)

97.  The absence of obligation to conduct pre-trial screen in respect of the client’s claim or defence is also reiterated in Wee Soon Kin Anthony v Law Society of Singapore[95] which concerns disciplinary procedures of the legal profession. In that case, the plaintiff complained that a solicitor GSH as well as GSH’s solicitors made reckless allegations against him, and that GSH’s solicitors failed to take reasonable steps to verify the truth of GSH’s statements before preparing or filing GSH’s affidavit. The Council of the Law Society found inter alia that GSH’s solicitors were merely acting on instructions, and were under no duty to verify the truth of GSH’s statements. On appeal, it was held that the complaint against GSH’s solicitors were wholly without merit as they were under no duty to verify the truth of GSH’s statements. Chan Sek Keong JC said as follows at page 462:

“21.  In respect of the 2^nd part of the complaint, the Inquiry Committee was of the view that [GSH’s solicitors] was under no duty: (a)  specifically, to take statements from the clients named in GSH’s affidavit; and (b)  generally, to verify the source of information of GSH. Counsel for the plaintiff was unable to cite any authority to support his contention that an advocate and his solicitor has such a duty generally or in the circumstances of this case. Nor was he able to persuade me, in principle, that such duty existed. In my view, no such duty existed generally or in the circumstances of this case. It is not for the advocate and solicitor, whether in his capacity as counsel or solicitor, to believe or disbelieve his client’s instructions, unless he himself has personal knowledge of the matter or unless his client’s statements are inherently incredible or logically impossible. His duty to his client does not go beyond advising him of the folly of making incredible or illogical statements.

22.  Here, I would refer to an ex curia opinion of Lord Halsbury on this subject. His Lordship said (as quoted in “The Ethics of Advocacy” (1899)  15 LQR 259 at 264-265):

A thesis has been propounded on the other side more extravagant, and certainly more impossible of fulfilment; that is, that an advocate is bound to convince himself, by something like an original investigation, that his client is in the right before he undertakes the duty of acting for him. I think such a contention ridiculous, impossible of performance, and calculated to lead to great injustice. If an advocate were to reject a story because it seemed improbable to him, he would be usurping the office of the judge, by which I mean the judicial function, whether that function is performed by a single man, or by the composite arrangement of judge and jury which finds favour with us. Very little experience of courts of justice would convince any one that improbable stories are very often true notwithstanding their improbability.” (my emphasis)

98.  Hopeless cases Solicitors owe a duty not to abuse the court’s process by the “improper” initiation/continuance of legal proceedings,[96] but solicitors are not liable for pursuing an action which proved wrong but not manifestly inappropriate.[97] I reiterate the observations by Sachs J in Edwards v Edwards,[98] which Sir John Donaldson MR referred to in Orchard and which Litton JA (as he then was)  cited in Ho Lee Man (No 2) in paragraphs 93-94 above.

99.  A solicitor may be placed in a difficult position when his client wishes to pursue what the solicitor may consider to be a hopeless case. In such circumstance, the solicitor is obliged to advise the client that his case is hopeless and urge him not to bring his case. Principle 10.18 of The Hong Kong Solicitors’ Guide to Professional Conduct Vol 1 states that “[a] solicitor must inform his client if a proposed or continuing action has no prospect of success as a matter of law”.

100.  But as a matter of well-established principle, the fact legal representatives act for a party who advances a hopeless case is not itself a ground for making a wasted costs order.[99] In Ridehalgh, Sir Thomas Bingham MR (as he then was)  said as follows:[100]

“A legal representative is not to be held to have acted improperly, unreasonably …… simply because he acts for a party who pursues a claim or a defence which is plainly doomed to fail ……

……

As is also well known, solicitors are not subject to an equivalent cab-rank rule, but many solicitors would and do respect the public policy underlying it by affording representation to the unpopular and the unmeritorious. Legal representatives will, of course, whether barristers or solicitors, advise client of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insist that cases be litigated. It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved. They are there to present the case; it is (as Samuel Johnson unforgettably pointed out)  for the judge and not the lawyers to judge it.

It is, however, one thing for a legal representative to present, on instructions a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of process of the court ……” (my emphasis)

101.  Likewise, Lord Hobhouse said at page 143 in Medcalf as follows:

“56.  …… Fourthly, it is the duty of the advocate to present his client’s case even though he may think it is hopeless and even though he may have advised his client that it is: Ridehalgh v Horsefield …… So it is not enough that the court considers that the advocate has been arguing a hopeless case. The litigant is entitled to be heard; to penalize the advocate for presenting his client’s case to the court would be contrary to the constitutional principles to which I have referred ……”

102.  The above principles are neatly summarised by Jackson J in Lady Archer v Williams[101] as follows: “[the] mere fact that lawyers have pursued a hopeless case or hopeless defence does not mean that their conduct was improper, unreasonable …… It is often the duty of lawyers to put forward a hopeless claim or hopeless defence, if the client has rejected wise advise and insists upon that course of action”.[102]

103.  As for the “constitutional principles” referred to by Lord Hobhouse in paragraph 101 above, Sir Thomas Bingham MR (as he then was)  at page 226 in Ridehalgh recognised that the competing policy interests, ie overriding duty of frankness to the court and duty of loyalty to the client, are exacerbated in handling hopeless cases:

“The argument we have heard discloses a tension between two important public interests. One is that lawyers should not be deterred from pursuing their client’s interests by fear of incurring a personal liability to their clients’ opponents; that they should not be penalised by orders to pay costs without fair opportunity to defend themselves; that wasted costs orders should not become a back-door means of recovering costs not otherwise recoverable against a legally-aided or impoverished litigant; and that the remedy should not grow unchecked to become more damaging than the disease. The other public interest …… is that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponents’ lawyers. The reconciliation of these public interests is our task in these appeals. Full weight must be given to the first of these public interests, but the wasted costs jurisdiction must not be emasculated.” (my emphasis)

104.  Indeed, in the earlier case of Rondel v Worsley,[103] Lord Pearce in the House of Lords explained as follows:

“It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter. And that would be the inevitable result of allowing barristers to pick and choose their clients. It not infrequently happens that the unpleasant, the unreasonable, the disreputable and those who have apparently hopeless cases turn out after a full and fair hearing to be in the right. And it is the judge’s (or jury’s)  solemn duty to find that out by a careful and unbiased investigation. This they simply cannot do if counsel do not (as at present)  take on the less attractive task of advising and representing such persons however small their apparent merits. Is one, then to compel counsel to advise or to defend or conduct an action for such a person who, as anybody can see, is wholly unreasonable, has a very poor case, will assuredly blame some one other than himself for his defeat and who will, if it be open to him, sue his counsel in order to ventilate his grievance by a second hearing, either issuing a writ immediately after his defeat or brooding over his wrongs until they grow greater with the passing years and then issuing the writ nearly six years later (as in the present case)?  …… [Counsel for the client suggested] that the solicitor (who is allowed to pick and choose his clients)  may act as a screen or filter to protect counsel and that the Legal Aid Fund may do likewise. But with all respect to that argument it does not meet the case. First, it is not fair to solicitors or the Legal Aid Fund that they should have any such responsibilities to counsel. They have their own difficulties (which are great)  in trying to decide which are the honest cases and should be brought (or defended)  and it is they who should be entitled to help from counsel in this. Secondly, and far more important, it is contrary to the whole tenor of our law that there should be such a screening and that any prisoner or litigant should be unable (though he can pay for it)  to obtain the services of counsel. It would greatly increase the number of litigants in person, who already create not inconsiderable difficulties. And it is to the great advantage of the courts that the unreasonable should be advised and represented by counsel, who can generally, to some extent, by firm suasion, mitigate their unreason and find some via media by which their case can be presented intelligibly and reasonably.”

While Rondel dealt with the cab-rank rule and its relationship with barristerial immunity from suit for negligence by lay clients rather than with the advocate’s liability for costs for misconduct, it usefully held that the public policy principles discussed therein also apply to solicitors, which has been affirmed by the observations of Sir Thomas Bingham MR (as he then was)  in Ridehalgh.[104]

105.  To impose a duty on the litigation solicitor not to bring an argument, claim or defence that is without merit before the court (a)  will require him to conduct pre-trial screen of doomed cases, which, as explained in paragraphs 90-97 above, will bring considerable conflict with his duty to the client and will make him a preliminary assessor or judge of the issue in dispute, (b)  cause him to wait for retainers with better merits/prospects, which consequence has to be reconciled with the cab-rank rule that even though not strictly applicable to solicitors many solicitors do respect the public policy underlying the same,[105] and (c)  will lead to skepticism of the client’s claim and also wariness in presenting legal arguments on the client’s behalf, which may be detrimental to general legal development. To allow a litigant to go further and to apply for a wasted costs order against his opponent’s solicitors may cause solicitors to conduct their client’s case not just in the client’s interest, but also to see no injustice is done to the client’s opponent in order to minimise risk of a claim by such opponent against them for wasted costs. In my view, these are pertinent public policy reasons against granting a wasted costs order against solicitors for bringing a hopeless claim/defence even though their client’s opponent may well find it frustrating to have spent time and costs to meet a claim/defence that never has any prospect of success.

106.  These public policy considerations have been endorsed by the local courts. DHCJ To in Pine Enterprises Limited citing Harley[106] explained as follows:

“13.  …… one must not forget that while it is the duty of the solicitor to advise his client of the strength or weakness of the client’s case, it is up to the client to accept or reject that advice. The client may insist and is free to instruct his solicitor to proceed on a case which the solicitor thinks is doomed to fail. It is the client’s choice and not his solicitor’s. Even under such circumstances, there are strong public policy reasons for the solicitor to continue representing his client than to leave him unrepresented. It is wrong to assume that because a hopeless case was pursued, the solicitor displayed such a level of incompetence as to be grossly negligent or in serious dereliction of duty. He would be liable if he had indeed been grossly negligent in advising his client to pursue a hopeless case or knowingly lends his assistance in proceedings which are an abuse of the process of the court. In this regard, the following dicta of Lord Hope in Harley v McDonald at 705F-H are apposite:

“… a duty rests on officers of the court to achieve and maintain appropriate levels of competence and care and that, if he is in serious dereliction of such duty, the officer is properly amenable to the costs jurisdiction of the court.  But care must be taken not to assume that just because it appears to the court that the case was hopeless there was a failure by the barrister or solicitor to achieve the appropriate level of competence and care.”

……” (my emphasis)

107.  Indeed, DHCJ To at paragraph 13 in Pine Enterprises Limited went on to refer to the observations of the Judicial Committee of the Privy Council in Harley at pages 708-709 that “it will almost always be unwise for the court, in the exercise of this jurisdiction, to treat the pursuit of hopeless cases as a demonstration of incompetence. As a general rule litigants have a right to have their case presented to the court and to instruct legal practitioners to present them on their behalf …… the public interest requires that the doors of the court remain open. And on the whole it is in the public interest that litigants who insist on bringing their cases to court should be represented by legal practitioners, however hopeless their cases may appear. For these reasons something more than the mere fact that the case is hopeless is required”.

108.  In Ridehalgh, the English Court of Appeal took the view that bringing a hopeless claim is not per se improper or unreasonable, and Sir Thomas Bingham MR (as he then was)  said at page 234 as follows:

“It is, however, one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of the process of the court. Whether instructed or not, a legal representative is not entitled to use litigious procedures for purposes for which they were not intended, as by issuing or pursuing proceedings for reasons unconnected with success in the litigation or pursuing a case known to be dishonest, nor is he entitled to evade rules intended to safeguard the interests of justice, as by knowingly failing to make full disclosure on an ex parte application or knowingly conniving at incomplete disclosure of documents. It is not entirely easy to distinguish by definition between the hopeless case and the case which amounts to an abuse of process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it.” (my emphasis)

Sir Thomas Bingham MR (as he then was)  acknowledged it is not entirely easy to distinguish between (a)  a hopeless case and (b)  a case that amounts to an abuse of process, the latter of which comes within the wasted costs jurisdiction, but he made clear that if there is doubt, the legal representative is entitled to the benefit of it. In my view, this is readily understandable since the court’s power to grant a wasted costs order for assisting in the issuance/pursuit of a hopeless case in (b)  above presumes such case should not be brought before the court. But other than that, it is in the public interest for litigants to have ready access to the courts. Excluding a claim from the courts is a serious matter, which jurisdiction the courts will exercise with caution in face of such public interest. This also explains why in case of doubt the legal representative should have the benefit of it, ie the case is presumed to be not hopeless.

109.  Likewise, Au-Yeung J in Qiyang Limited & ors v Mei Li New Energy Ltd & ors[107] discussed the wasted costs jurisdiction and explained as follows:

“22.  There is a distinction between solicitors presenting a hopeless case and lending assistance to proceedings which are an abuse of process of the court.  It is not entirely easy to distinguish the two by definition, but in practice it is not hard to say which is which. If there is doubt the solicitor is entitled to the benefit of it.  See Ridehalgh 234D-F.

……

24.  The rationale for this high threshold is that solicitors should be allowed to do his best for his client without fear of being visited with a wasted costs order.  Accordingly, section 52A(5)  HCO requires the court to, “in addition to all other relevant circumstances, take into account the interest that there be fearless advocacy under the adversarial system of justice.”  See also Ho Lee Man at 196A-C.” (my emphasis)

110.  Having reviewed the judicial guidance falling from Ridehalgh that refers to “constitutional principles” for a solicitor to present his client’s case, albeit weak or even hopeless, to the court to that from Pine Enterprises Limited that refers to the “public interest” of litigants who insist on bringing their cases to the court, albeit hopeless, being represented by legal practitioners, I agree with Mr Kwan there are sound public policy reasons for not regarding the merits of the losing party’s case because to do so will disincentivise solicitors from representing litigants with apparently “hopeless” cases, thereby depriving them of their day in court. As explained in Harley in paragraph 107 above, and as noted in Ridehalgh,[108]Pine Enterprises Limited[109] and Qiyang Limited & ors,[110] something more than the fact that the argument, claim or defence presented by the litigation solicitor on behalf of the client is hopeless is necessary for establishing “improper” or “unreasonable” conduct or “other misconduct or default” on the part of such solicitor.

111.  The authorities show that Mr Sakhrani and Mr Kwan were correct to submit that mistake, error of judgment or even negligence is not sufficient.[111] But if an action that is inappropriately brought/pursued or an unreal defence is put forward with the assistance of legal representatives, it should be open for the wronged opponent to apply for a wasted costs order against such legal representatives as compensation for the expense incurred in dealing with and eventually dismissing the proceedings that are an abuse of process. Thus, running a hopeless case is not enough, but running a hopeless case that amounts to an abuse of process may attract the wasted costs jurisdiction.

112.  The court has always assumed power over those who appear before it, especially over legal representatives who are officers of the court, to protect its own procedures against abuse and to supervise the conduct of its officers who exercise the privilege of appearing in court. As His Honour Judge Birss QC neatly summarised in Media CAT Limited v Malcolm Adams & ors,[112]

“13.  An important point is that pursuing a hopeless case is not itself enough to bring on a wasted costs order (see Ridehalgh at 233F to 234F). The Court of Appeal drew a distinction between pursuing a hopeless case and a legal representative lending his assistance to proceedings which are an abuse of the process of the court. Only the latter attracts the possibility of wasted costs.”

113.  In light of the aforesaid broad principles, I now turn to discuss the English and local authorities. I start with Tolstoy-Miloslavsky and adopt the useful summary in Jackson & Powell on Professional Liability as follows:[113]

“…… In Tolstoy-Miloslavsky v Aldington, the plaintiff, a bankrupt, sought to set aside a libel judgment, obtained by the defendant, on the grounds of fraud. The original libel was that the defendant was a major war criminal who had arranged the massacre of 70,000 people. The plaintiff relied on new evidence which purported to show that the defendant had lied at trial about the date he left Austria in May 1945. The new action was struck out as an abuse of process, as the new evidence could not show that the defendant had committed perjury, the date of departure had never been a crucial issue, the new evidence was not decisive even on that issue, and it had been available at the date of trial. The Court of Appeal made a wasted costs order against the solicitors as they held that it was unreasonable to commence an “utterly hopeless” case on the facts, which was also an abuse of process as being a collateral attack on the previous decision, when they were acting without fee, given the other aggravating circumstances of that case which included the fact that the plaintiff has never paid any of the damages or costs in the original action ……”

As seen above, the plaintiff’s case that was eventually struck out was not merely hopeless (which Ward LJ at page 752 said “that by itself may not have been enough”)  as the court was firmly of the view that (a)  the new action brought to collaterally attack a previous final decision (ie Rose LJ said “this was the second if not the third occasion on which [the plaintiff] had sought by litigation to defeat [the defendant] in relation to the same matters ……” – page 747)  was an abuse of process, and “was clearly vexatious” as “[it] heaped fraud and perjury upon the vicious calumny of the allegation of being a war criminal” on the defendant, and (b)  “[the] action was instituted to harass [the defendant]” (page 752). This is distinguishable from other cases where the claims though weak (or “weird” or “bizarre” as described by Sir John Donaldson MR and Dillon LJ respectively at pages 572 and 578 in Orchard – see paragraphs 91-96 above)  or inconsistent (eg Commentary 4 under Principle 10.03 in The Hong Kong Solicitors’ Guide to Professional Conduct Vol 1 in paragraph 90 above)  were not known to the solicitors to have been brought in bad faith.

114.  The need to establish abuse of process is again emphasised by Lord Hobhouse in Medcalf at pages 143-144: “…… [the] position is different if the court concludes that there was improper time-wasting by the advocate or the advocate has knowingly lent himself to an abuse of process.[114] However, it is relevant to bear in mind that, if a party is raising issues or is taking steps which have no reasonable prospect of success or are scandalous or an abuse of process, both the aggrieved party and the court have powers to remedy the situation by invoking summary remedies – striking out – summary judgment – peremptory orders etc. The making of a wasted costs order should not be the primary remedy; by definition it only arises once the damage has been done. It is a last resort” (my emphasis).

115.  In Persuad, 2 sons (who were legally aided)  sued the father and the father’s company, and the 3^rd son was made a defendant because he held a share in the company. The sons claimed they worked for the company’s business without salary for 5 years upon accepting the father’s offer and assurance that their work was regarded as an investment, that they would be entitled to 10% shareholding and that a dwelling house would be purchased for each of them, but after the business prospered, the father announced he would dispose of the assets of the business and emigrate overseas, so they sued the father for breach of his promises/ assurances (page 2). In the proceedings, the claimants secured a mareva injunction (page 3). The father denied the alleged promises/assurances, and also denied the claimants’ entitlements to relief (page 3). The trial judge disbelieved the sons and held their account to be not true, found they failed in law even if (contrary to his view)  a contract had been made (page 3), and awarded indemnity costs against them (page 1). The father and the company applied for a wasted costs order against the barrister who conducted the case for the claimant sons and appeared for them at the trial (pages 1-2). The barrister’s 3 advices (upon waiver of privilege)  were put before the judge, but privilege was not waived in respect of the instructions to counsel and the materials underlying the advices (page 5). The trial judge dismissed the application for wasted costs order at the 1^st stage (page 2).

116.  Peter Gibson LJ said “…… the 2 cases of Ridehalgh and Medcalf must now be taken to state what the law is in this area ……” (page 9), so “…… there must be something more than negligence for the wasted costs jurisdiction to arise; there must be something akin to an abuse of process if the conduct of the legal representative is to make him liable to a wasted costs order” (my emphasis)  (page 11). The English Court of Appeal held that the case of the claimant sons was neither hopeless on facts nor hopeless in law:

(a)

The issue to be decided in the litigation was mainly one of fact, and it was impossible to foresee the sons’ account was bound to fail as (i)  the father’s pleadings were somewhat coy, and (ii)  some points taken by the judge against the sons might have been given less weight by another tribunal of fact (pages 11-12). The fact the trial judge decided against the sons did not mean it was improper for counsel to advise the case should go ahead and it had a good prospect of success. In relation to the facts, there was nothing to suggest the barrister was guilty of abuse of process. “It is not, for example, suggested that he encouraged or procured false evidence. All that had been shown is that he was wrong in his assessment of how the facts would appear to the judge. There is no breach of duty to the court there” (page 12).

(b)

Whilst the barrister did not appear to have properly taken into account the legal aid guidelines published by the Bar Council, he was not in breach of duty to the court in pursuing the claims under the law points he relied on (pages 12-14).

In the exercise of discretion to dismiss the application for a wasted costs order, the court in that case took into account (1)  the father took out but did not pursue a striking out application (bearing in mind that a wasted costs order is a remedy of last resort – see observations by Lord Hobhouse in Medcalf in paragraph 114 above), and (2)  there was only limited waiver of privilege with possibility that relevant matters which might have explained the barrister’s conduct were unknown to the court, so any doubt had to be resolved in his favour (pages 15-16).

117.  Maurice Dempsey, which discusses the issue of wasted costs under the “negligence” limb of the English statutory wasted costs regime in the context of pursuit of a hopeless case, was carefully summarised by Jacobs J in Anthony Douglas King & ors v Barry Stiefel & ors referred to footnote 43 above as follows:

“75.  Issues of wasted costs in the context of hopeless cases were addressed by the Court of Appeal in Dempsey v Johnstone[2003] EWCA Civ 1134. The judge had made a wasted costs order in favour of a defendant. He had applied the approach in Ridehalgh and had asked whether the appellant had been negligent in the sense that they had been prepared to continue to act after receipt of a particular letter, when no reasonably competent solicitor could have considered that there were any prospects of success. The appellants argued that this was no longer the correct test, following Medcalf: mere negligence was not sufficient for a wasted costs order, which would only be appropriate if the lawyers had acted in a way which amounted to an abuse of process. Whilst rejecting that argument, but nevertheless allowing the appeal, the Court of Appeal referred to the need to have particular regard to the conflicting interests that are involved when there is an allegation that a hopeless case was pursued when no reasonably competent solicitors would have appreciated that it was bound to fail.

76.  The main judgment was given by Latham LJ, who said at [28]:

“In cases where the allegation is that the legal representative pursued a hopeless case, the question was correctly identified by the judge as whether no reasonably competent legal representative would have continued with the action. It is difficult to see how that question can be answered affirmatively unless it can also be said that the legal representative acted unreasonably, which is akin to establishing an abuse of process. That is the concept which seems to me to be the appropriate concept when assessing the exercise of judgment, which is essentially what the legal representative is doing in balancing the various interests which have to be balanced in such a situation. I can see, however, that negligence could be the appropriate word to describe a situation in which it is abundantly plain that the legal representative has failed to appreciate that there is a binding authority fatal to the client's case. That may, of itself, justify making a wasted costs order, although in practice it is difficult to envisage a case in which that situation would have persisted to trial without the other party having drawn the case to the other side's attention.”

77.  At paragraph [30], Latham LJ identified the question, in the particular case, as being whether or not no reasonably competent legal advisor would have evaluated the chance of success in the proposed argument as being such as to justify continuing with the proceedings. He said that on the facts of that case the judge could only come to a conclusion adverse to the appellants if he had the opportunity of seeing privileged material.

78.  Mance LJ agreed with the reasoning and conclusions of Latham LJ, but added some further words on the subject of pursuit of a hopeless case and negligence.

“[34]  … The authorities identify pursuit of a hopeless case as a head requiring separate attention. Once unsuccessful litigation has been brought to an end, hindsight is likely to encourage suggestions that the legal advisers to those who pursued or defended it should not have lent it their assistance, or should not have done so for as long as they did. In Ridehalgh v Horsefield[1994] Ch 205,233F–234F Sir Thomas Bingham MR as he was, giving the judgment of the court, emphasised that a legal representative “is not to be held to have acted improperly, unreasonably or negligently simply because he acts for a party who pursues a claim or a defence which is plainly doomed to fail”. The client may, for example, be insisting on giving evidence in support of a view of the facts which the legal representative himself considers and may well have advised has no chance of being accepted. But the legal representative is not the judge, and the client is entitled to have his case on the facts determined by a court.

[35]  The Master of the Rolls went on to distinguish cases where a representative lent his assistance to proceedings which were an abuse of the process of the court. The examples he gave were of clear cases, e.g. the pursuit of litigation for reasons unconnected with its success, or the pursuit of dishonest litigation; but he added that: “it is not always easy to distinguish between the hopeless case and the case which amounts to an abuse of the process, but in practice it is not hard to say which is which and if there is doubt the legal representative is entitled to the benefit of it” (p. 234E–F).

[36]  In the passages referred to in the previous paragraphs, the court was not directly addressing the problem of negligence in the conduct of litigation. An example of negligence leading to the pursuit of litigation having no prospect of success might, however, be a legal representative pursuing a claim or a defence in ignorance of an authority at the highest level from which no-one aware of it could sensibly have thought that any future court would depart. One would not, I think, speak of the solicitor having abused the process in this context, but his or her negligence could, in my view, be relevant to an application for a wasted costs order.

[41]  Where, as in Persaud v Persaud, the gist of the complaint is the pursuit of a hopeless case, the approach to an application for a wasted costs order is, in the absence of any specific indication of negligence, likely to be to consider whether the conduct of the litigation amounted to an abuse of process. But, even that question may, as Latham LJ has said, resolve itself into a general enquiry into whether or not the legal representative pursued a claim or defence which no reasonably competent practitioner could have done. That invokes a test also familiar in cases where negligent conduct is alleged. I note in parenthesis that, when the court in Persaud v Persaud came to the facts, it addressed submissions put in such terms: see e.g. paragraphs 29 and 30.”” (my emphasis)

118.  I have referred to Maurice Dempsey (even though it is a case on English “negligence” limb)  for 2 reasons:

(a)	In that case, the claimant (who was legally aided)  sued the defendant on 2 causes, ie a claim based on intellectual property rights and another one based on breach of a joint venture agreement (paragraph 3). Shortly before the trial, the claimant was advised by counsel there were insufficient prospects of success in the former claim to justify continuation of legal aid, and the defendant was informed that such claim was withdrawn (paragraph 5). The defendant’s solicitors then wrote to the claimant’s solicitors to explain why, in their view, withdrawal of such claim meant the claimant had no prospects of success in the other claim. Application was then made to strike out the other claim, and in the meantime the claimant’s solicitors replied to say they did not believe the claimant’s case was hopeless (paragraph 6). At the hearing of the striking out application, the defendant’s counsel cited authority which was said to demonstrate the claimant’s case was unsustainable (paragraph 8). After considering such authority, the claimant’s counsel obtained the claimant’s instructions to withdraw the claim, but the defendant pressed for and obtained judgment against the claimant (paragraph 8). The defendant applied for and obtained a wasted costs order (paragraph 9). In relation to the application for a wasted costs order, the issue before the judge was whether the claimant’s solicitors “had been negligent, in the sense that they had been prepared to continue to act after receipt of the letter of the 22nd February 2002 [from the defendant’s solicitors] when no reasonably competent solicitor could have considered that there were any prospects of success” (my emphasis)  (paragraph 26). The judge concluded that the claimant’s solicitors had been negligent, and that he should exercise the jurisdiction to make a wasted costs order (paragraphs 16-18). Thus, the wasted costs order granted in Maurice Dempsey was premised on the “negligence” limb of the English statutory provision for wasted costs, which limb is absent in Hong Kong (see Harris J’s observations in Dolphin Advertising Ltd in paragraph 44 above). In dealing with this “negligence” limb, Latham LJ at paragraph 21 in Maurice Dempsey adopted the meaning of “negligence” given by Sir Thomas Bingham MR (as he then was)  at page 233 in Ridehalgh as follows: “In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenanace any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have had to prove in an action for negligence: “advice, acts or omissions in the course of professional work which no member of the profession who was reasonably well informed and competent would have given or done or omitted to do;” an error “such as no reasonably well informed and competent member of that profession could have made:” ……” The claimant’s solicitors in Maurice Demspey argued that in hopeless cases mere negeliegnce was not sufficient basis for a wasted costs order, which order “would only have been appropriate had the judge found that the [claimant’s solicitors] had acted in a way which amounted to an abuse of process [as explained in Ridehalgh and Medcalf]” (paragraph 19 in Maurice Dempsey and paragraph 75 in Anthony Douglas King & ors). But Latham LJ rejected such argument, and said the approaches in Ridehalgh and Medcalf would not “modify in any way the meaning to be given to the word “negligent” in the section as interpreted in Ridehalgh v Horsefield …… I think that the court should be cautious about concluding, as submitted by the [claimant’s solicitors], that the meaning to be given the word “negligent” has been modified by the approval given to the opinion by Lord Bingham [in Medcalf] and, it is said, by inference from their agreement with Lord Bingham’s speech, by the remainder of their Lordships’ House” (paragraph 24). This harked back to discussion in paragraph 75 of Jacobs J’s judgment in Anthony Douglas King & ors in paragraph 117 above. In my view, there are 2 takeaways from the above. First, the meaning of “improper” and “unreasonable” in section 52A of the HCO are those given by Sir Thomas Bingham MR (as he then was)  in Ridehalgh as set out in paragraph 42 above, and the meaning of “negligence” as given by the Master of the Rolls, ie an error such that no reasonably well informed and competent member of the legal profession could have made, is insufficient premise for invoking the wasted costs jurisdiction in the Hong Kong. Secondly, in the context of hopeless cases, judicial observations in Ridehalgh and in Medcalf that something “akin to establishing an abuse of process” on the part of the respondent solicitors is usually required for a wasted costs order,[115] and such requirement remains pertinent for the “improper” and “unreasonable” limbs in section 52A of the HCO for the exercise of the wasted costs jurisdiction.
(b)	Latham LJ in Maurice Dempsey drew a distinction between cases that are hopeless on facts and those hopeless in law. The learned judge recognised that in the context of a case hopeless on facts (and he cited Persuad as an example – paragraphs 25-28), even under the “negligence” limb (ie “when reasonably competent solicitors should have appreciated that it is bound to fail and taken appropriate action”), the correct question is “whether no reasonably competent legal representative would have continued with the action”, but such question can hardly “be answered affirmatively unless it can be said that the legal representative acted unreasonably, which is akin to establishing an abuse of process. That is the concept which seems to me to be the appropriate concept when assessing the exercise of judgment, which is essentially what the legal representative is doing in balancing the various interests which have to be balance in such a situation ……” (my emphasis)  (paragraph 29). On the other hand, in the context of a case hopeless in law, under the “negligence” limb, Latham LJ said “…… negligence could be the appropriate word to describe a situation in which it is abundantly plain that the legal representative has failed to appreciate that there is a binding authority fatal to the client’s case. That may, of itself, justify making a wasted costs order ……” (paragraph 30). Mance LJ explained that ignorance of “an authority at the highest level from which no-one aware of it could sensibly have thought that any future court would depart” is a prime example of the “negligence” limb for a solicitor would not have abused the process in such context (paragraph 36). Consequently, Jacobs J in Anthony Douglas King & ors said Dempsey showed that even under the “negligence” limb, “…… in the context of hopeless cases, something “akin to establishing an abuse of process” by the legal advisors will usually be required, albeit that there may be cases (such as where there is a binding authority fatal to the client’s case)  which fall short of that ……” (paragraph 79). To put it in another way, a litigation solicitor will be liable to a wasted costs order under the “negligence” limb if, exercising objective professional judgment of a reasonably competent solicitor, he ought reasonably to have appreciated that the argument, claim or defence in the legal proceedings in which he was acting, constituted an abuse of process.
(c)	Given (i)  the irrelevance of the “negligence” limb in Hong Kong, and (ii)  the complaint by D2-D5 here concerned alleged hopelessness of P’s case on facts rather than in law, D2-D5 had to establish strong prima facie case of “something “akin to establishing an abuse of process” by the legal advisors”, ie P’s solicitors, at the 1st stage.

119.  In Ratcliffe Duce & Gammer v Binns,[116] Elias J applied a test of abuse of process without Maurice Dempsey having been cited to him, and held that it would be a very exceptional case indeed where a court could infer abuse of process in pursuing a hopeless case where privilege had not been waived (which echoed Dillon LJ’s observations in Orchard – see paragraph 96 above). Jacobs J in Anthony Douglas King & ors summarised this case as follows (paragraph 80):

“80.  …… [Elias J] held that a wasted costs order was not appropriate in a case where it was “not suggested that the case was being pursued for any improper purpose or anything of that nature”. He went on to say, consistent with prior authority, that:

“[22]  Furthermore, a particular problem arises in circumstances where the privilege of the client is not waived. In those circumstances it will be a very exceptional case indeed where a court will be entitled to infer that a party is abusing the process of the court by pursuing a hopeless case. The reasons are again explained by the Master of the Rolls in Ridehalgh …”

120.  Locally, in Dolphin Advertising Ltd, Harris J at page 141 said “…… even if the solicitors did think that the plaintiff’s case was hopeless unless there is evidence, which there is not, that they were assisting in the continued prosecution of the action for some ulterior motive this would not be a ground for making a wasted cost order” (my emphasis). As seen in paragraphs 75-82 above, lending assistance to litigation commenced or continued for some ulterior purpose is plainly an abuse of process.

121.  Further, as seen in Re Estate of Lau Heung in paragraphs 77-80 above, the plaintiff’s solicitors were guilty of breach of duty to the court and liable for bearing wasted costs when they lent assistance to the issuance/pursuit of the useless and hopeless joinder summons in order to generate costs for themselves, ie an ulterior purpose that amounted to an abuse of process.

122.  Mr Sakhrani’s list of authorities included Shahid Muhammad v The Kowloon Motor Bus Co (1933)  Ltd,[117] which was strangely not referred to in his written submissions, so D2-D5’s views on the significance or relevance of such case to the Para 5 Application were not given/explained. I note, however, Shahid Muhammad is different from the present case in that it was the court that invoked the wasted costs jurisdiction on its own motion.

123.  As seen in the Reasons for Decision in Shahid Muhammad, the plaintiff did not turn up at the trial to prove his claim for damages for personal injuries suffered as a result of an accident on a bus, so HHJ Andrew Li dismissed the plaintiff’s claim and ordered him to pay costs of the action including costs of the aborted trial (paragraph 2). The learned judge required the plaintiff’s solicitors to show cause why they should not be made personally liable to bear costs of the action on indemnity basis to be paid forthwith.

124.  At the trial hearing, (a)  the Urdu interpreter arranged by the plaintiff’s solicitors did not turn up in court because the plaintiff’s solicitor (who thought the court would likely adjourn the trial as the plaintiff was “sick”)  told him he need not do so, and (b)  the copy medical certificate issued to the plaintiff did not support his counsel’s submission that he had fever. Time was allowed for the plaintiff’s legal team to ascertain why the plaintiff failed to attend the trial, and they subsequently reported that the plaintiff claimed to be unwell (but without saying he had any fever or was COVID-positive). The plaintiff’s legal team later produced the original medical certificate and another medical certificate granted to the plaintiff, but neither certificate mentioned any fever. According to paragraph 9 of the Decision on Costs, HHJ Andrew Li took the view that the plaintiff’s solicitors were one of the players, if not the main player, who led to the plaintiff’s abandonment of the action on the 1^st day of the trial.

125.  On further review of the case, HHJ Andrew Li found the plaintiff and his solicitors dragged their feet in bringing on the case for trial in the running list after leave was granted to set the case down for trial, and the learned judge was unimpressed by the efforts of the plaintiff’s solicitors to blame the delay on a COVID-19 situation at their offices. He went on to note (a)  the CCTV recording of the alleged accident on the bus clearly refuted the plaintiff’s pleaded case as to how the accident happened, (b)  the plaintiff’s solicitors knew there was no criminal conviction against the bus driver for careless driving, and (c)  the plaintiff’s solicitors had copy police statement of the bus company’s staff that referred to the aforesaid CCTV recording submitted to the police (which meant the footage was retrievable from the police), and to find that the plaintiff’s solicitors should have realised the clear and objective CCTV recording so completely refuted the plaintiff’s pleaded case that the plaintiff’s claim had no reasonable prospect of success, which claim should have been arrested at an early stage of the proceedings. Although the plaintiff’s solicitors tried to suggest it was the plaintiff who insisted on progressing the action to trial, they would have realised from a review of the CCTV recording that there was no longer any reasonable evidential basis to act on the plaintiff’s instructions, so at that point they should have ceased to act for the plaintiff.

126.  HH Judge Andrew Li found the plaintiff’s solicitors had (a)  breached their duty to the court when they ought to have known the plaintiff’s case was a completely hopeless one to begin with, and (b)  acted unreasonably, if not improperly, in the conduct of the action, so a wasted costs order was warranted, especially as the court found they ought to have been aware the plaintiff would not be able to pay the defendant’s costs of the action if he failed to prove his case at trial. I will return below to discuss the learned judge’s approach to liability for wasted costs in the context of a hopeless claim commenced/continued by an impecunious claimant that was eventually unsuccessful, but, in my view, it suffices to say here that on the learned judge’s findings there was abuse in the sense that the plaintiff’s solicitors lent assistance to the pursuit of the plaintiff’s claim which they knew from incontrovertible, objective and independent evidence (ie the contemporaneous CCTV recording)  that such claim was false.

127.  Lastly, in the recent case of Anthony Douglas King & ors, Cockerill J struck out the claims in the underlying action, which she held to be “totally without merit”, even before defences were served (paragraph 1). The defendants obtained a costs order against the claimants, and later applied for wasted costs orders against the claimants’ barrister and solicitors (paragraph 3). They relied on Cockerill J’s finding that the claims lacked substance and should never have been brought, and argued that the claimant’s legal representatives who advanced the claims should be liable for their costs (paragraph 56). Jacobs J declined to allow the wasted costs applications to proceed to the 2^nd stage, and dismissed them in their entirety (paragraph 186). The learned judge emphasised that the mere pursuit of a hopeless case is not normally a sufficient basis to make a wasted costs order against a solicitor, and something akin to an abuse of process will normally be required (paragraphs 75-80). Further, the fact that the underlying claim itself has been struck out as an abuse of process does not ipso facto mean it is improper, unreasonable or (in the English context)  negligent for the legal representatives to have brought the claim.

128.  Jacobs J emphasised that the wasted costs regime is intended to be a simple and summary process with short hearings for plain cases (and rejected an argument that such rule does not apply in some cases), and found it was not suitable for the case before him where the allegations amounted, in effect, to a substantial professional negligence action that would require extensive findings of fact and careful determination at trial (paragraphs 109-134).

129.  Further, the learned judge applied the principles in Ridehalgh and Medcalf that, if the client does not waive privilege, then a court should be very slow to conclude that his legal representatives who have advanced a “hopeless case” are necessarily acting improperly, unreasonably or (in the English context)  negligently. If privilege has not been waived, then the court will be unable to reach conclusions as to the advice given and the materials available to the legal representatives for preparing the pleadings (paragraphs 123-125). Jacobs J found the available evidence did not suggest the proceedings or the conduct of the respondent legal representatives in that case were akin to an abuse of process (paragraph 139). Further, even if the procedure was suitable, Jacobs J considered it unlikely that a wasted costs order would have been made, so he did not allow the applications to proceed further (paragraphs 135-184). In any event, even if the defendants’ application for wasted costs order was allowed to proceed against the barrister, they would not be allowed to proceed against the solicitors since the barrister carried the prime responsibility for drafting the Particulars of Claim (paragraphs 142 and 185).

130.  In my view, there may be many reasons why a litigant may want to commence, raise or pursue an apparently hopeless argument, claim or defence, and why a litigation solicitor will assist in such proceedings. The courts have sought to achieve a balance between competing public interests (a)  to protect litigation solicitors who conduct proceedings or appear before the courts from fear of personal liability to their clients’ opponents and (b)  to compensate innocent victims of the litigation solicitors’ wrongdoing or abuse. Although the wasted costs regime in (b)  above is not to be emasculated, full weight has to be given to the public interest in (a)  above, which explains why the threshold for wasted costs orders even in the context of hopeless claims is a high one of being akin to an abuse of process (and in the case of doubt or lack of evidence due to non-waiver of privilege or otherwise, the court will err in favour of the respondent legal representatives who will enjoy benefit of such doubt).

131.  Hopeless case and litigant impecuniosity  One can readily understand the grievance of a litigant who successfully defended a claim against him but is denied compensation for costs incurred due to the plaintiff’s impecuniosity. But the fact the unsuccessful plaintiff is impecunious does not mean that responsibility for the successful defendant’s costs should lie with the plaintiff’s legal representatives. As seen below, the general view is that a litigant’s impecuniousity is not to be held against his solicitors because any suggestion otherwise will impose risk on those solicitors who choose to act for litigants without funds, which consequence runs counter to the public interest of having legal assistance available to litigants without means. The courts are jealous to ensure impecuniosity does not pose a hurdle to a plaintiff complaining of a wrong done to him from seeking legal redress. After all, as pointed out by Mr Kwan, the defendant is not without redress if the plaintiff is impecunious for he can, in an appropriate case, seek security for costs, especially where the plaintiff’s case is doubtful or hopeless, in which case the defendant can also seek peremptory remedies as explained in paragraph 114 above.

132.  Such rationale is reflected in the principle that there is no jurisdiction to make a wasted costs order against solicitors solely on the ground that they have acted without fee (eg when the client is without funds)  even in a hopeless claim. As explained by Rose LJ in Tolstoy- Miloslavsky,

“There is, in my judgment, no jurisdiction to make an order for costs against a solicitor solely on the ground he acted without fee. It is in the public interest, and it has always been recognised that it is proper, for counsel and solicitors to act without fee. The access to justice which this can provide, for example in cases outwith the scope of legal aid, confers a benefit on the public …… Whether a solicitor is acting for remuneration or not does not alter the existence or nature of his duty to his client and the court, or affect the absence of any duty to protect the opposing party in the litigation from exposure to the expenses of a hopeless claim. In neither case does he have to “impose a pre-trial screen through which a litigant must pass:” see per Sir John Donaldson MR in Orchard v South Eastern Electricity Board [1987] QB 565, 572-574.” (my emphasis)  (page 746)

“…… I emphasise that acting without fee, and doing so in a hopeless case, or even in a case struck out for abuse of process under Ord. 18 r. 19, is not conduct which itself would justify the making of a wasted costs order ……” (my emphasis)  (page 747)

From the above, it is evident that Tolstoy-Miloslavky separated (a)  the fact that the legal representatives acted without fee for the impecunious plaintiff from (b)  the fact that the case was a hopeless one that amounted to an abuse of process. For (a)  above, the courts encouraged pro bono work, so solicitors are not required to conduct pre-trial screen of their clients’ case when they choose to act without fee for, say, impecunious litigants with hopeless claims/defences, and so acting will not of itself justify making wasted costs orders. For (b)  above, solicitors lending assistance to the pursuit of a claim/defence that they know is an abuse of process, eg for a purpose unrelated to the success of the claim/defence,[118] may attract a wasted costs order.

133.  In considering whether a litigation solicitor has acted in proceedings that constitute an abuse of process, although the fact such solicitor knows his client cannot bear the costs consequences of the proceedings of itself is insufficient to justify a wasted costs order, in an appropriate case this fact may well be part of the overall factual matrix/ background that goes to show something akin to abuse of process that may in turn form a justifying reason for making a wasted costs order. For example, in Tolstoy-Miloslavsky, Rose and Ward LJJ at pages 747 and 752 said the plaintiff’s case being hopeless “may not have been enough”, but they found there was abuse of process in that case upon reviewing “all the other circumstances” and “the background of the previous history”, particularly in light of factors such as (a)  the plaintiff’s claim was vexatious as it was the 2^nd if not the 3^rd occasion in which the plaintiff sought by litigation to defeat the defendant in relation to the same matters, (b)  the proceedings were a collateral attack on the previous judgment of a court of competent jurisdiction, (c)  the English Court of Appeal had already been highly critical of the plaintiff’s “new” evidence, (d)  allegations of perjury and fraud were made on manifestly insubstantial basis and (e)  the purpose of the litigation was to harass the defendant, and in such context the plaintiff’s known impecunioisity, his failure to satisfy (and his efforts to avoid satisfying)  the existing judgment against him and his purchase of the cause of action from his trustee-in-bankruptcy to take out the new action against the defendant were part of the facts and matters that demonstrated his new round of litigation was an abuse of process to vex and harass the defendant (pages 747 and 752).

134.  Interestingly, Mr Sakhrani included HHJ Andrew Li’s decisions in So Kam v Guildford Ltd[119] and Shahid Muhammad in his list of authorities, but did not refer to them in his written submissions. But putting aside allegations of misleading the court for the moment, there was some suggestion in the Lam 2^nd/3^rd Affs and Mr Sakhrani’s written submissions that P’s solicitors were liable for a wasted costs order because they enabled P’s pursuit of her hopeless claim when (a)  “no reasonably competent legal representative would have continued with the action” against Ds, and (b)  it was apparent P was not on legal aid and had “very modest means and would not be able to pay [D2-D5’s] costs, if so ordered”. Mr Sakhrani’s written submissions did not facilitate understanding as to the relevance of So Kam and Shahid Muhammad to the above proposition. This court can only surmise that Mr Sakhrani might have wished to rely on the following observations by HHJ Andrew Li at page 339 in So Kam:

“108.   I am of the view that there must be a case to make solicitors who decide to pursue a hopeless case on behalf of a litigant to pay for the costs of the successful defendant when it is apparent that the plaintiff is not in a position to pay those costs as [the plaintiff] in this case: See Re Labour Buildings Ltd (勞工大廈股份有限公司) (the Company)  (CACV 37/2010, [2010] HKEC 624, 26 April 2010), per Rogers V-P., [7]-[8].”

and also in the Decision on Costs in Shahid Muhammad in which the learned judge noted there was a question mark as to whether the plaintiff himself would be able to pay the defendant’s costs arising from those proceedings (as the plaintiff’s solicitor had not deposed as to who or how the costs of the litigation were provided for)  when:

“37.  ……

(a)  [the respondent solicitor] ought to have been aware that whether a solicitor paid for the costs of his client, as well as the plaintiff’s financial ability to bear litigation costs, would be a factor to consider in deciding whether a wasted costs order would be granted against the solicitors personally (see: So Kam, supra); ……”

It appeared from the above observations that the learned judge considered as a matter of principle that the litigant’s impecuniosity when pursuing a hopeless claim or defence is a relevant factor for the court to take into account when deciding whether or not to make a wasted costs order against his solicitors.

135.  That being the case, it is necessary to look more closely into the facts and the findings in So Kam. In paragraph 180 of Liu Hui Hong, the personal representative appointed to represent the estate of Li Shiyou, deceased (by carry on order dated 30 September 2015)  & anor, I have summarised the facts and findings in So Kam as follows:

“180.   Mr Sakhrani referred me to So Kam v Guildford Ltd in which a motorcycle ridden by P came into collision with a taxi owned by the 1^st defendant and driven by the 2^nd defendant who had hired the taxi from the 1^st defendant. HHJ Andrew Li dismissed the action with costs in favour of the defendants and directed the plaintiff’s solicitors to show cause why a wasted cost order should not be made against them. In that case, the plaintiff was not legally aided, and the evidence at the trial showed there was insufficient evidence to commence the present action. He only paid a negligible amount to his solicitors for disbursements, and went through the whole trial with the financial assistance of his solicitors, so it was obvious the defendants “will never be able to recover their costs of the proceedings, including the costs of the trial,” from the plaintiff (page 334). It was said that in such context it was incumbent on the solicitors to make careful enquiry and satisfy themselves that an honest case existed or that there was at least an arguable cause of action or defence, and the solicitors could not blindly pursue a hopeless case on behalf of his client when the primary evidence does not even support the case he has pleaded on behalf of his client, “otherwise, at the end of the day, it is the general public who will end up paying for the successful party’s legal costs by paying higher premiums” (page 338)  …….”

Consequently, HHJ Andrew Li made the observations set out in the above paragraph. I did not deal with So Kam in any detail in Liu Hui Hong, the personal representative appointed to represent the estate of Li Shiyou, deceased (by carry on order dated 30 September 2015)  & anor as it was unnecessary for me to do so in that case (paragraph 184).

136.  I make no observation on the fact-specific finding in So Kam that there was no reasonable cause of action to establish liability on the basis that there was insufficient evidence in the plaintiff’s police/witness statements for commencement and/or continuance of his claim, or on the learned judge’s view that the plaintiff’s case was a hopeless one from the beginning. I simply reiterate the following in the context of the local wasted costs regime:

(a)

the general legal principles discussed above on how far, if at all, (i)  a solicitor’s representation of his client with a hopeless case can ground a wasted costs order in the absence of abuse of process,[120] and/or (ii)  a solicitor will need to investigate, conduct pre-trial screen of and/or verify his client’s case (irrespective whether it is wise litigation practice to make such enquiries and to be satisfied throughout the proceedings that the client’s claim/defence has reasonable cause)  in contra-distinction to a need to advise the client, in order to avoid being visited by a wasted costs order[121];

(b)

the sage reminder by Lord Hobhouse at pages 143-144 in Medcalf that “…… it is relevant to bear in mind that, if a party is raising issues or is taking steps which have no reasonable prospect of success or are scandalous or an abuse of process, both the aggrieved party and the court have powers to remedy the situation by invoking summary remedies – striking out – summary judgment – peremptory orders etc. The making of a wasted costs order should not be the primary remedy; by definition it only arises once the damage has been done. It is a last resort”.[122]

137.  In light of the aforesaid principles, why then did the learned judge in So Kam conclude at the 1^st stage that the plaintiff’s solicitors should be called upon to show cause at the 2^nd stage?

138.  In So Kam, the plaintiff was previously granted legal aid to cover his common law action but the legal aid certificate was later discharged, and when he later re-applied for legal aid, his application was refused (page 334). HHJ Andrew Li surmised that such discharge/refusal was likely due to the plaintiff’s case having no merits because the plaintiff admitted during the trial he had no money and was in debt (page 334):

“93.  Be that as it may, as was disclosed by P during the trial, P did not have to pay any money upfront to fund this piece of litigation. All he had to pay for was for the negligible costs of providing photocopies of several documents and printing a few colour photographs. With the financial assistance of his solicitors, he went through the whole trial. It was his solicitors who had paid for his medical expert and counsel’s fees. In other words, he has no stake in this piece of litigation at all. All he had to do was to turn up to Court and state his case, no matter how far-fetched and how hopeless his case was. He told the Court that if he were to lose the case, he would repay his solicitors and Ds by instalments with his few part-time food delivery jobs. As to how he could do so with his very modest income and heavy family responsibilities, I find it difficult to fathom. It is obvious to me that Ds will never able to recover their costs of the proceedings, including the costs of the trial, from P.”

139.  HHJ Andrew Li then referred to Winnie Lo v HKSAR,[123] which dealt with the common law offences of maintenance and champerty. Whilst the learned judge noted the Court of Final Appeal held it is not maintenance or champerty for a solicitor to agree to act in litigation without charge, for less than his ordinary charges, or on terms that he will merely be reimbursed his disbursements (pages 334-335), the Court of Final Appeal, upon citing Ladd v London Road Car Co[124] and Clyne v New South Wales Bar Association,[125] observed that if the solicitor is not to cross the line into maintenance or champerty, there are 2 conditions, ie “he has considered the case and believes that his client has a reasonable cause of action or defence as the case may be”,[126] and “he must not in any case bargain with his client for an interest in the subject matter of the litigation, or (what is in substance the same thing)  for remuneration proportionate to the amount which may be recovered by his client in a proceeding” (page 335).

140.  On the basis of such authorities, HHJ Andrew Li elicited the general principles stated in the above paragraph, and went on to make the following observations in the context of a personal injuries action (pages 336-337):

“(1)  Such duty to make enquiry and satisfy himself that his client has a reasonable cause of action or defence must be a continuing one. It is incumbent upon the solicitor in charge to review the case from time to time, in particular at different important stages of the proceedings, like at the issue of the writ/serving of the statement of claim; close of pleadings; at the end of discovery; and after the exchange of witness statements, to ensure the cause of action pleaded is supported by objective and credible evidence and that it can still be maintained with a reasonable prospect of success;

(2)  It is against both the letters and the spirit of the Civil Justice Reform to allow unmeritorious claims, no matter whether they are funded by a solicitor on behalf of his client or litigant who is acting in person, to proliferate;

(3)  It is also against public policy to permit a solicitor to pursue a hopeless case on behalf of his client where he either does not believe that there is any reasonable cause of action or defence or reckless as to whether there is such reasonable cause of action or defence;

(4)  To allow a solicitor or litigant to do so will often lead to the defendant or his insurer not able to recover any costs against the impecunious litigant at all as often the solicitor who funded the litigation will cease to act for his client after the trial and before the judgment is handed down, leaving the plaintiff to face the bills of the successful defendant;

(5)  The defendant or his insurers often will not be able to recover any costs against the impecunious plaintiff as in most cases he simply does not have the means to pay the successful party’s costs;

(6)  At the end of the day, the successful party’s costs will likely be borne by the general public in the form of increased premiums for employers (in industrial accident cases)  and for motorists (in traffic accident cases); and

(7)  It will also lead to the wasting of the limited judicial resources when a court will have to hear a case that contains no or very little merits at all.”

141.  HHJ Andrew Li then elided the general principles drawn from the case authorities on maintenance and champerty and his own observations developed from such general principles in paragraphs 139-140 above into the wasted costs regime under Order 62 rules 8, 8A and 8B of the Rules of the District Court (similar to the corresponding provisions in the RHC)  and came to the view set out in paragraph 134 above (pages 338-339). On the premise that (a)  the plaintiff’s claim was hopeless and should never have been brought, (b)  the plaintiff was not qualified for and had been rejected legal aid, and (c)  the plaintiff was not in a position to pay the successful defendant’s costs (pages 337-338), ie the plaintiff’s solicitors knew the claim by the impecunious plaintiff was hopeless, the learned judge concluded at the 1^st stage that the plaintiff’s solicitors were required to show cause at the 2^nd stage why they should not personally bear the defendant’s costs on indemnity basis with certificate for counsel (pages 338-339).

142.  In my view, the key question is whether it is appropriate to elide the general principles in respect of maintenance and champerty (as well as HHJ Andrew Li’s observations developed therefrom)  into the wasted costs regime under section 53(1)  and (3)-(6)  of the District Court Ordinance Cap 336 (“DCO”)[127] (which the learned judge invoked on his own motion in So Kam), which jurisdiction is in contra-distinction to the non-party costs regime under section 53(1)-(2)  of the DCO[128] (that was not referred to let alone invoked in So Kam).

143.  In dealing with this question, one has to start with the legal concepts of maintenance and champerty as explained by the Court of Final Appeal in Unruh v Seeberger[129] and Winnie Lo. I rely on but do not repeat here the summary in Part V / paragraphs 51-82 of my judgment in Re A.[130] In short, (a)  maintenance of litigation by an unconnected third party by, say, financial support is directed at “officious intermeddling” in someone else’s litigation, and (b)  champerty is a form of maintenance that involves a third party paying all or part of the litigation costs in return for a share of the subject matter or a division of the spoils if the action succeeds.[131] However, in recent years, their scope has shrunk as a result of a “carving out” process by which the courts have formed a patchwork of exceptions/qualifications that exclude certain categories of conduct that otherwise constitute maintenance and champerty.[132]

144.  On the matter of champerty vis-à-vis solicitors/barristers, Lord Neuberger in Sibthorpe v Southwark London Borough Council (Law Society intervening)[133] explained that “[a] type of contract which has relatively often given rise to an allegation of champerty or maintenance is one between a claimant in a piece of litigation and the person conducting the litigation (almost always a solicitor or barrister)  on the claimant’s behalf”, and the law did not sanction an agreement by which a lawyer is remunerated on the basis of a contingency fee, ie he gets paid the fee if he wins, but not if he loses, which Lord Denning MR in Wallesteiner v Moir (No 2) described as champerty.[134]

145.  On the matter of maintenance vis-à-vis solicitor/barristers, Ribeiro PJ in Winnie Lo explained that “the starting point must nevertheless be the well-established proposition that a solicitor acting in his or her ordinary professional role in conducting litigation which amounted to good faith does not “officiously intermeddle” in the action and does not commit maintenance” (page 51). Indeed, as Lord Neuberger explained at page 2126 in Sibthorpe, it is not mere maintainence even if a solicitor charges a contingency fee:

“53.  …… maintenance of others is based on “wanton and officious intermeddling with the disputes of others” assisting one of the parties “without justification or excuse” ……, and it is unrealistic to contend that a solicitor acting for a party to litigation can fall within that expression. This …… appears to me to be supported by what Lord Phillips MR said in the Factortame (No 8) case [2003] QB 381, 411, para 76, namely that “a solicitor who charges a contingency fee [not sanctioned by English statute] can hardly be said to be guilty of ‘wanton and officious intermeddling with the disputes of others … where the assistance he renders to the one or other party is without justification or excuse’”. In other words, a solicitor in such a case is not involved in maintenance ……”

146.  Ribeiro PJ in Winnie Lo went on to explain that “[a] solicitor who has conduct of a piece of litigation therefore may attract liability [for maintenance and champerty] only when he transgresses his proper professional role”, eg “when an action brought in a client’s name was in reality a suit conducted for the solicitor’s own purpose and not bona fide litigation on the client’s behalf”.[135] To put it in another way, a solicitor commits champerty (which is by far the most common instance of a solicitor incurring liability in respect of litigation which he is conducting)  by departing “from his professional role and is held liable for that “particularly obnoxious form” of maintenance “when the maintainer seeks to make a profit out of another man’s action – by taking the proceeds of it, or part of them, for himself”” (page 52).

147.  As HHJ Andrew Li recognised in paragraph 139 above, Ribeiro PJ said “[it] has been held, for instance, that it is not maintenance or champerty for a solicitor to agree to act in litigation without charge. Nor is it unlawful for the solicitor to agree to act for less than his ordinary charges or on terms that he will merely be reimbursed his disbursements …… This is so whether the solicitor agrees to charge nothing or a reduced amount in any event or whether the solicitor agrees to look to a hoped-for favourable costs order against the other side to recover his ordinary costs and disbursements ……” (page 53). Likewise, Lord Neuberger said at pages 2124 and 2125 in Sibthorpe that “[no] case has been cited in which it has been held to be champertous for a person to agree to run the risk of loss if the action in question fails, without enjoying any gain if the action succeeds ……”, and that “…… it is by no means unknown, and perfectly proper, for solicitors to conduct litigation for a client knowing that, unless the client wins, the solicitors may find it impossible, or will find it hard, to recover their fees ……” even though this means “the solicitor has an interest in the outcome of the litigation”.

148.  From the above, it was clear that Ribeiro PJ in Winnie Lo was at pains to emphasise that solicitors may attract liability for champerty if they cross the line by transgressing outside their proper professional role as legal representatives. If a solicitor so crosses the line, he may attract civil consequences (eg the champertous agreement between him and his client is illegal and hence unenforceable)  and/or criminal liability (eg champerty is still a criminal offence in Hong Kong). But it is clear that “…… illegal maintenance is not a defence to the action or a ground for stay of the proceedings (provided the action/proceedings do not constitute an abuse of process of the court). Also, the champertous support of the fundee claimant in an action is probably not a defence to the action and probably affords no ground for a stay of the proceedings. The mere fact that the claimant is being funded under a champertous agreement is of no concern to the court trying the cause of action, or to the defendant, or to any other party”.[136]

149.  In such circumstances, it is not easy to see how the principles that guide determination as to whether an arrangement between a solicitor and his client is or is not champertous can be elided into the principles that guide determination as to whether a wasted costs order should be granted. After all, under the wasted costs regime, the court grants wasted costs orders against solicitors qua legal representatives, ie “…… the Court of First Instance may …… order the legal representatives concerned to meet …… wasted costs” (my emphasis).[137] As Ribeiro PJ said, a solicitor may attract liability for champerty by transgressing outside his proper professional role as legal representatives, eg when an action brought in the client’s name is in fact primarily aimed for the solicitor’s own interest/purpose, or when the solicitor seeks to make a profit out of his client’s action by taking all or part of the proceeds of the action for himself. The liability of such solicitor as a non-party for the costs of his client’s opponent (if any)  is not a matter of wasted costs. Such liability (if any)  does not stem from the solicitor’s professional role acting as legal representative in the proceedings. Rather, the overall rationale for such liability (if any)  is that it is wrong to allow someone who is a non-party (ie a solicitor)  to fund the litigation in the hope of gaining a benefit (ie pursuing the litigation for his own purpose or seeking to make a profit from the litigation)  without a corresponding risk that such person will share in the costs of the proceedings if he fails in those proceedings, which is outwith the wasted costs regime qua legal representatives.

150.  Thus, where a non-party (eg a solicitor)  is substantially likely to benefit from the proceedings, one has to turn to the non-party costs jurisdiction under section 52A(2)  of the HCO:[138]

“(2)  Without prejudice to the generality of subsection (1), …… the Court of First Instance may, in accordance with rules of court, make an order awarding costs against a person who is not a party to the relevant proceedings, if …… the Court of First Instance, as the case may be, is satisfied that it is in the interests of justice to do so”,

and Order 62 rule 6A of the RHC:

“(1)  Where the Court is considering whether to exercise its power under section 52A of [HCO] to make a costs order in favour of or against a person who is not a party to the relevant proceedings –

(a)  that person must be joined as a party to the proceedings for the purposes of costs only; and

(b)  that person must be given a reasonable opportunity to attend a hearing at which the Court shall consider the matter further.

(2)  This rule does not apply where the Court is considering whether to make –

(a)  a wasted costs order; ……”

Order 62 rule 6A(2)  of the RHC clearly shows that wasted costs order and non-party costs order have distinctly separate jurisdictional basis,[139] so it is inappropriate to channel the factors that justify a wasted costs order into the non-party costs regime. As HHJ Stephen Davies said in Tinseltime Ltd v Roberts & ors,[140]

“61.  So far as control and conduct are concerned, I agree … that in the normal course of events it will be impermissible to seek to justify a claim for a non-party costs order by reference to complaints that the solicitor has acted improperly, unreasonably or [in the English statutory provision for wasted costs] negligently in his capacity as solicitor; that is the province of wasted costs and the courts should be astute to keep the two applications separate.”

151.  The jurisdiction to make costs orders against non-parties is explained in Hong Kong Civil Procedure 2023,[141] and by the Court of Appeal in Leung Chung Ching Edwin v Estate of Leung On Mei Amy:[142]

“73.  In Metalloy Supplies Ltd v MA (UK)  Ltd [1997] 1 WLR 1613, 1620B-E, Millett LJ referred to two situations where it would be appropriate to make a non-party costs order. The first is where the third party is considered to be the real party interested in the outcome of the suit. The second is where the third party has been responsible for bringing the proceedings and they have been brought in bad faith or for an ulterior purpose or there is some other conduct on his part which makes it just and reasonable to make the order against him.

……

74.  In Dymocks Franchise Systems (NSW)  Pty Ltd v Todd [2004] 1 WLR 2807 at [25] and [29], the Privy Council considered the principles by which the discretion to order non-party costs is to be exercised and summarised the position as follows:

(1)  Non-party costs orders are exceptional in the sense that they are outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question is whether in all the circumstances it is just to make the order, and it must be recognised that this is inevitably to some extent a fact-specific jurisdiction and there will often be a number of different considerations in play.

(2)  Generally speaking, the discretion will not be exercised against pure funders, meaning those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business and in no way seek to control its course.

(3)  Where the non-party not only funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party’s costs.

(4)  Generally speaking, where a non-party promotes and funds proceedings by an insolvent company solely or substantially for his own financial benefit, he should be liable for the costs if his claim or defence or appeal fails. This is not to say that orders will invariably be made in such cases, particularly where the non-party is himself a director or liquidator who can realistically be regarded as acting rather in the interests of the company (and more especially its shareholders and creditors) than in his own interests.”

152.  On the basis of the aforesaid broad principles, I turn to the case authorities.

153.  The distinction between the wasted costs regime and the non-party costs regime drawn in paragraphs 149-151 above came up in Tolstoy-Milosklavsky. In that case, both counsel and solicitors provided their services to the plaintiff without fee, and no application was made for legal aid. The defendant applied for a non-party costs order against the plaintiff’s solicitors on the basis that they maintained the action by putting themselves in the position of third party funders and by making their services available for free when they knew the plaintiff would not be able to pay costs if he lost (pages 740 and 743), but the plaintiff’s solicitors argued that (a)  the court only had jurisdiction to make costs orders against them under the wasted costs jurisdiction or under the court’s inherent jurisdiction for breach of duty to the court, (b)  it was wrong to equate solicitors acting without fee as a third party funder, and (c)  it was only when solicitors were acting without fee in a case both without merit and constituting abuse of process that would give rise to impropriety (page 742). The legal professional bodies that intervened in Tolstoy-Miloslavsky supported the proposition that the wasted costs jurisdiction comprised the whole jurisdiction to award costs against legal representatives, and alternatively even if there was jurisdiction it would be wrong to exercise it against a legal representative against whom a wasted costs order could not be made (page 743).

154.  Rose LJ held that section 51(1)  and (3)  of the Senior Courts Act 1981 (as substituted by the Courts and Legal Services Act 1990)  (ie the English equivalent of section 52A(1)-(2)  of the HCO)  “do not confer jurisdiction to make an order for costs against legal representatives when acting as legal representatives” (page 743). He explained that Parliament would not have introduced the statutory wasted costs regime against legal representatives if the statutory non-party costs regime is sufficiently wide to enable the court to make costs orders against solicitors qua legal representatives (page 744). Rose LJ said there are only 3 categories of conduct which can give rise to an order for costs against a solicitor: (a)  the wasted costs jurisdiction, (b)  where the solicitor acts in breach of his duty to the court, and (c)  “if he acts outside the role of solicitor, eg in a private capacity or as a true third-party funder for someone else””. Rose LJ then went on to make the observations set out in paragraph 132 above. But as seen in paragraphs 113 and 132-133 above, Rose LJ accepted the wasted costs jurisdiction was engaged in that case and dismissed the appeal against the wasted costs order made by the judge below. Ward LJ in his concurring judgment agreed with the reasons given by Rose LJ (pages 750-751).

155.  Roch LJ also came to the same view and held that a non-party costs order could not be made against the plaintiff’s solicitors in that case. At page 750, he said that “[the] legal representative who acts as a legal representative does not make himself a quasi-party and no jurisdiction to make an order for costs against him under section 51(1)  and (3)  arises. However, a legal representative who goes beyond conducting proceedings as a legal representative and behaves as a quasi-party will not be immune from a costs order under section 51(1)  and (3)  merely because he is a barrister or a solicitor”.

156.  Such distinction between solicitors qua legal representatives and qua third party funder was followed in Floods of Queensferry Ltd & anor v Shand Construction & ors.[143] Buxton LJ accepted the distinction was a matter of delicate judgment (paragraph 36), but disagreed the respondent solicitors in that case was a third party funder (paragraph 35). Hale LJ also drew a distinction between funders (ie those who provide money to pay for legal services)  and legal representatives (ie those who provide those legal services):

“80.  There are two good reasons for the distinction. First, such services are of enormous benefit to the proper administration of justice, including securing equality of arms in access to the courts. That was a particular feature in this case. Secondly, there are strict professional rules as to the way in which and the terms on which such services can be provided. Thus if solicitors offer normal legal services on terms which are not contrary to the rules governing the profession and do not act in ways that fall within the wasted costs jurisdiction under Section 51, one would not, as a general rule, expect them to be vulnerable to an order that they pay the other side’s costs.

81.  The services supplied by the solicitors in this case were not, as far as anything of which we have been made aware is concerned, anything other than those of an ordinary solicitor acting for, if I may say so, a challenging client in complicated litigation …… They simply took a risk and extended credit to their client. It would be a sad day if solicitors could not extend credit, even to their litigation clients, without fear of vulnerability to a Section 51 order. These solicitors were just like a builder who rebuilds a fire damaged house expecting that the home owner will pay him out of the proceeds of his home insurance policy. That is why the application under Section 51 against them fails ……”

157.  Hale LJ in her judgment referred to Hamilton v Al Fayed (No 2)[144] handed down shortly before Floods of Queensferry Ltd. Hamilton concerns “pure funders” (who contributed to a fighting fund on the understanding that if the action was successful the money would be returned but not otherwise)  rather than solicitors, and the trial judge refused to make a non-party costs order against the funders of the unsuccessful plaintiff. On appeal, Simon Brown LJ considered the countervailing public policy interests, ie the unsuccessful funded litigant’s access to justice and the successful unfunded party’s recovery of costs, and concluded that “on balance …… the unfunded party’s ability to recover his costs must yield to the funded party’s right of access to the courts to litigate the dispute in the first place. That seems to me to be the essential policy underlying the cases ……” (page 145). Chadwick LJ at page 151 also came out in favour of the principle that a claimant should not be denied access to the courts on the grounds of impecuniosity:

“66.  It is important, therefore, that a court which is invited to make an order for costs against persons who have, in one way or another, assisted a claimant to obtain the legal representation which will put him on an equal footing with the defendant should recognise that, if such orders become commonplace, the form of assistance which has led to the making of the order is unlikely to be forthcoming in future cases. It is one thing to make a finite monetary contribution to the claimant’s fighting fund or to contribute time and skill pro bono or under a no-win/no-fee arrangement; it is quite another thing to accept an unlimited liability to contribute to the defendant’s costs if the claim fails.”

Hale LJ was “reluctantly persuaded to agree. This is a situation in which the greater good of the community must prevail over considerations of justice to the individuals concerned ……” (page 153). The system of adversarial justice depends heavily upon the use of lawyers to conduct litigation, and litigants in person are often at a considerable disadvantage. It is also difficult to predict in advance whether the funded party had a reasonable prospect of success in the litigation, and “[lawyers] give advice on the basis of what their client tells them is honest and accurate (although they should draw attention to the difficulties which a court may have in accepting the evidence). It is unreasonable to expect funders to be any more skeptical. In practice, there has to be a general approach, whether for or against making such orders, even if there may sometimes be exceptions …… On balance, the arguments in favour of a general approach that “pure” funders should not be expected also to fund the opposing party’s costs outweigh the arguments in favour of a general approach that they should ……” (my emphasis)  (pages 155-156).

158.  In Myatt v National Coal Board & anor (No 2),[145] the claimants, who were former coal miners, sued the defendant for damages for noise-induced hearing loss. The claimants were represented by the same solicitors with whom they entered into similar conditional fee agreements (“CFAs”). The claims were settled, and a detailed assessment of costs was ordered. On the detailed assessment, the costs judge found as a preliminary issue that the CFAs were unenforceable, which meant the claimants would have to pay certain of their costs out of their damages, but their solicitors might not be able to recover their profit costs from them. Since the solicitors entered into similar CFAs in approximately 60 other cases, a substantial sum was at stake for the solicitors. The claimants appealed, but the English Court of Appeal dismissed the appeal. The defendant sought a non-party costs order against the claimant’s solicitors in relation to its appeal costs.

159.  According to Dyson LJ, “[the] question that arises for our decision is whether, despite the claimants’ financial interest in the appeal, there was jurisdiction to order that [their solicitors] should pay some or all of the defendant’s costs and if so how that jurisdiction should be exercised” (page 1561). He referred to Tolstoy-Miloslavsky and Dymocks Franchise Systems (NSW)  Pty Ltd, and held that the 3^rd category in which a non-party costs order may be made against solicitors as described by Rose LJ[146] includes a solicitor who is “a real party …… in very important and critical respects” and who “not merely funds the proceedings but substantially also controls or at any rate is to benefit from them” (as explained by Lord Brown in Dymocks Franchise Systems (NSW)  Pty Ltd)  even when they are solicitors on the record for the unsuccessful party in the litigation (page 1563). If the claimants had no financial interest in the outcome of the proceedings because their solicitors “had assumed liability for all the disbursements with no right of recourse against the clients”, the solicitors being the only party with interest the proceedings “would undoubtedly be acting outside the role of solicitor, to use the language of Rose LJ” (page 1563). But if the solicitors had major financial interest in the proceedings, the claimants’ modest financial interest in the proceedings was not fatal to an application for non-party costs against the solicitors, and bearing in mind Lord Brown said in Dymocks Franchise Systems (NSW)  Pty Ltd that the non-party need not be the only real party to the litigation provided that he is a real party in very important and critical respects, so it was held there is jurisdiction to make a non-party costs order “against a solicitor where litigation is pursued by the client for the benefit or to a substantial degree for the benefit of the solicitor” (page 1563). In that case, the main reason why the expensive appeal was lodged was to protect the substantial profit costs of the claimants’ solicitors, so there was jurisdiction to make a non-party costs order against such solicitors, but in view of the claimants’ real but modest financial interest in the success of the appeals (and also the defendant’s failure to warn the claimants’ solicitors of its intention to apply for costs against them), a fair and just order in all the circumstances was that the solicitors should pay 50% of the defendant’s costs of the appeal (page 1564).

160.  Lloyd LJ concurred with Dyson LJ’s judgment (and Sir Henry Brooke agreed with both judgments), and went on to say as follows (pages 1564-1565):

“19.  Those observations [by Ward and Rose LJJ in Tolstoy- Miloslavsky] do not, and did not purport to, set out in definitive terms exactly what is the borderline between the case where a solicitor acts purely as such in the ordinary way on behalf of the client and is therefore immune from the jurisdiction of the court under sections 51(1)  and (3), and on the other hand a case where the solicitor’s acts are such that he is within the scope of that jurisdiction ……” (page 1565).

“22.  …… There may be cases of litigation funded on a conventional private basis where it may be said to be in the interests of the appellant’s solicitors that an appeal be brought on the question of costs, for example if the opponent is clearly able to pay, whereas the client would have greater difficulty in paying. Such a case would however be fundamentally different from this one as regards the profit cost element because here the claimants were and are not at risk at all for the profit costs” (page 1565).

Lloyd LJ concluded that in relation to the conduct of the appeals in that case, the claimants’ solicitors acted “…… in part for the sake of their own benefit in a respect of which was of no interest or concern to their clients, and as having acted as a matter of business to seek to establish their right to be paid, not by their own clients in practice, the profit costs on these four cases and all the others of which these were representative”, so it was proper to regard the solicitors as having acted in respect of the appeal in a dual capacity, ie acting for their clients with a real interest of those clients to protect but primarily acting for their own sake (page 1566).

161.  Tinseltime Ltd concerned the defendant’s application for costs against the claimant’s solicitors either as a non-party “funder” or for a wasted costs order. The court considered the issue of whether or not a solicitor, who takes on a case for an impecunious claimant under a CFA with no after the event (“ATE”)  insurance in place and who agrees to fund the disbursements necessary to enable the case to proceed, thereby constitutes himself a non-party funder and renders himself liable to a non-party costs order.

162.  In that case, the claimant’s solicitor was aware from the outset that the claimant was impecunious and practically insolvent, and that it would not be able to meet any liability for costs if it lost the claim (pages 1101 and 1103). He agreed to take the case under a CFA (but the claimant was unwilling to spend money to procure an ATE insurance policy unless forced to do so in the context of a security for costs application), so he would pay on the claimant’s behalf the disbursements for the proceedings on the basis that he would be indemnified for any expenditure only in the event of the claim succeeding (pages 1101 and 1103). The defendant complained that the claimant’s solicitor “controlled or had material control over the litigation”, and failed to investigate various issues at an early stage of the proceedings as any competent solicitor should in view of the available information (page 1103).

163.  HHJ Stephen Davies warned against the temptation of judging the claimant’s solicitor with the benefit of hindsight and accepted “some solicitors might have adopted a more robust approach to their client, testing the instructions they were receiving more forcefully against the documentation reasonably available to them”, but he considered (a)  these criticisms were not relevant to the non-party cost application, and even if they were, he was not satisfied on the evidence before him they were clearly established (pages 1103-1104), and (b)  the evidence did not clearly establish the claimant’s solicitor acted improperly, unreasonably or negligently. Even though the claimant’s solicitor overly trusted the client and was over-optimistic about the claim, it was far from saying that his conduct was unreasonable let alone self-interested, or that he deliberately or recklessly closed his eyes to the deficiencies of the claimant’s case. Further, other than the above criticisms which the learned judge rejected, there was no other basis advanced for suggesting the plaintiff’s solicitors “controlled” the litigation any differently from any other solicitor conducting litigation on behalf of the client, especially when he obtained his client’s instructions on an offer for settlement and explained the implications about his own recovery of costs (pages 1104-1106).

164.  The learned judge referred to the general principles on non-party costs orders against solicitors in inter alia Tolstoy-Miloslavsky, Dymocks Franchice Systems (NSW)  Pty, Myatt and the first instance judgment by Eady J in Flatman v Germany & ors,[147] opined that the authorities showed “[the] starting point when considering the position of a solicitor is that it must be shown that he has in some way acted beyond or outside his role as a solicitor conducting litigation for his client to make him liable for a non-party costs order” (pages 1119-1120), and then went on to say as follows at pages 1120-1121:

“57.  …… Whilst it is unrealistic to seek to identify what will or will not be sufficient in any individual case, I do consider that in the majority of cases there will be present either some financial benefit to the solicitor over and above the benefit which he can expect to receive from the CFA, or some exercise of control of the litigation over and above that which would be expected from a solicitor acting on behalf of a client, or some combination of both. These are the factors which were referred to as key by Lord Brown in Dymocks, and endorsed by Dyson LJ in Myatt. In Myatt it is clear that the reason why the solicitor was held liable was that he had a different financial benefit in the success of the appeal over and above any prospect of recovery of the costs of the appeal (and indeed it is not even apparent that the solicitors had entered into a CFA in relation to the appeal itself). It is also likely that the solicitor was in real terms controlling the appeal, in circumstances where the economic reality was that it was primarily in the solicitor’s interests rather than the client’s interests to pursue the appeal.”

165.  As far as control and conduct are concerned, HHJ Stephen Davies was not aware of any reported case in which a solicitor acting under a CFA has had a non-party costs order made against him on the basis of control (paragraph 58), and the learned judge made the observation set out in paragraph 150 above.

166.  As far as “some financial benefit to the solicitor over and above the benefit which he can expect to receive from the CFA” is concerned, HHJ Stephen Davies gave the example of “…… the solicitor …… taking a conscious business decision to fund the disbursements in order to kick start the litigation with a view to making a substantial financial recovery which may, in such a case, be out of all proportion to the recovery which the client stands to make”, and which may “support a conclusion that this is a case which is really being controlled by the solicitor and/or being run primarily for his own benefit” (paragraph 58). But it was held that something more than a solicitor acting on a CFA without an ATE policy in place was required to justify a non-party costs order against the solicitor (paragraph 60).

167.  In that case, the application for a non-party costs order was dismissed as there was nothing on the evidence to show the claimant’s solicitor was taking on the case in any capacity other than as a solicitor willing to work under a CFA and willing to fund disbursements thereunder (paragraph 63-65), or he was controlling the litigation in any way (paragraphs 66-67), but with hindsight, there was room for criticism for his failure to delve into some issues (paragraph 68). And the learned judge reminded that “…… the availability of such an order [for security for costs] is a potent weapon against injustice to a defendant in a case as the present where the claim is being mounted by an impecunious limited company” (paragraph 70).

168.  On the application for a wasted costs order, having acquitted the claimant’s solicitor of having acted improperly, unreasonably or negligently on the information before him, HHJ Stephen Davies held that the applicant failed to establish the causative link between the conduct complained of and the costs incurred by the defendant, ie any different approach by the claimant’s solicitor would have made any difference to the way in which the case would have been presented on the claimant’s instructions (paragraphs 72-76).

169.  In Heron v TNT (UK)  Ltd & anor,[148] the employer’s insurers sought a non-party costs order against the solicitors who acted for the unsuccessful employee under a CFA in personal injury proceedings. Protracted negotiations failed, and the employee’s solicitors withdrew from representing the employee on the eve of the trial. The damages eventually awarded were less than any of the Part 36 offers. The employer’s insurers alleged the employee’s solicitors did not obtain ATE insurance for the employee even though they knew the employee would not be able to meet adverse costs order against him without ATE insurance, or did not disclose that fact to employee. It was said that they pursued the litigation with direct financial interest in concealing their negligence (so as to secure their own costs and to cause the employer’s insurers to incur irrecoverable costs). The 1^st instance judge refused the application, and the English Court of Appeal dismissed the appeal.

170.  Leveson LJ (with whom Beatson and Gloster LJJ agreed)  confirmed that (a)  a non-party costs order is exceptional, (b)  an act of negligence by a solicitor in the conduct of litigation which means that an opposing party has incurred costs that may not otherwise have been incurred is not in itself sufficient to justify making of such an order, and (c)  it is normally necessary to show the solicitor has in consequence become a “real party” to the litigation with the principal interest in its outcome and is acting primarily for his own sake. Furthermore, a solicitor is entitled to act on a CFA for an impecunious client whom they know or suspect will not be able to pay his own or the other side’s costs if unsuccessful, and whether the solicitor has negligently failed to obtain ATE insurance to protect his client (as opposed to not being able to obtain such insurance)  does not impact on the costs which the other side would have incurred unless it is demonstrably provable that the costs will not otherwise have been incurred (page 1287). In the circumstances, failure of the employee’s solicitors to obtain ATE insurance or to disclose that failure to the employee in that case was not sufficient to demonstrate the firm had become a “real party” to the litigation, and it was not demonstrably provable that costs would not otherwise have been incurred by the employer.

171.  Flatman v Germany (Law Society intervening)[149] concerned 2 conjoined appeals in which (a)  the claimants commenced personal injury actions by the same firm of solicitors with the benefit of CFAs, (b)  the actions were dismissed with costs to the defendants who had the same insurer, and (c)  the insurer was unable to recover its costs because the claimants were impecunious and did not have ATE insurance. Suspecting the claimants’ solicitors had effectively funded the actions by defraying the claimants’ disbursements, the defendants sought orders for disclosure of how the actions had been funded, and the defendant in 1 of the actions sought a non-party costs order.

172.  Leveson LJ reviewed the relevant authorities including Tolstoy-Miloslavsky, Dymocks Franchise Systems (NSW)  Pty Ltd and Myatt. The Law Society submitted as follows (page 2688):

“31.  …… a solicitor who funds disbursements on behalf of a client on the basis that the costs will be recovered from the other side in the event of success but will not be recovered from the client if the claim fails (at least in cases, such as these, of moderate complexity in which the disbursements are modest)  is not acting in circumstances which are outside the ordinary run of cases. Neither can it be said, it is submitted, that the solicitor is either “the real party” to the litigation, the person “with the principal interest” in its outcome, or is acting “primarily for his own sake”. Thus, without more, the solicitor should not be made liable to a third party costs order.”

173.  Leveson LJ gave approval (a)  to disbursements being funded generally (ie solicitors paying disbursements as the case progresses with the client repaying at the end)  and (b)  to disbursements being contingent (ie the solicitor paying them and only recovering them if the case is won). In respect of (a)  above, Leveson LJ described as follows (pages 2688-2690):

“38.  …… On the face of it, once it is conceded (as seems to me is inevitable)  that the solicitor does not have to be in funds before incurring costs (such as the obtaining of a medical report), that cost has been borne by the solicitor (at least for the time being)  and becomes an expense of providing advocacy or litigation services. To put it another way (which may be more relevant to the precise question which has to be answered), the cost may have to be the subject of an account to the client as a disbursement but the credit afforded to the client in respect of that cost is part of the service provided by the solicitor to his client.

……

45.  In my judgment, therefore, the legislation [on CFAs] does visualise the possibility that a solicitor might fund disbursements and, in that event, it would not be right to conclude that such a solicitor was “the real party” or even “a real party” to the litigation ……. after the event insurance is not a prerequisite of bringing a claim on a CFA …… The fact that a litigant can (or cannot)  afford an expert report or the court fee says nothing about his or her ability to fund the costs incurred by opponents in an unsuccessful claim and, indeed, Eady J (at para 25 of his judgment)  recognised that the solicitor could advance disbursements with a technical (albeit improbable)  obligation for repayment.

46.  That much is also clear from the fact that solicitors are entitled to act on a normal fee or conditional fee for an impecunious client whom they know or suspect will not be able to pay own (or other side’s costs)  if unsuccessful: see Sibthorpe v Southwark London Borough Council (Law Society intervening) [2011] 1 WLR 2111, para 50; Awwad v Geraghty & Co [2001] QB 570, 588 and Dolphin Quays Developments Ltd v Mills [2008] 1 WLR 1829, para 75.

47   In those circumstances, …… I agree with the issue of principle advanced by the Law Society (and Mr Carpenter [for the claimants])  that payment of disbursements, without more, does not incur any potential liability to an adverse costs order ……” (my emphasis)

In the circumstances, the basis for ordering disclosure was not justified in law. But information had since emerged regarding the claimant’s solicitors in the 2^nd case which suggested they might have been seeking to control the course of the litigation and so justified disclosure in both cases.

174.  In Harcus Sinclair (a firm)  v Buttonwood Legal Capital Limited & ors,[150] solicitors brought interpleader proceedings in respect of money entrusted to them as a stakeholder for funding substantial litigation brought in the Commercial Court. BLC as fundee won the interpleader proceedings, and they then sought their costs from the solicitors for the unsuccessful defendants AREF in both the interpleader and the underlying proceedings on the basis that had AREF succeeded, the success would have brought a benefit to AREF’s solicitors in that they would have been paid sums which they had earned/disbursed on AREF’s behalf in the underlying proceedings.

175.  DHCJ David Donaldson QC noted there are many cases in which a solicitor provides at least some element of financing for his client, but held that this together with possible benefits if successful enables the client to pay the solicitor is not a factor which can properly justify a non-party costs order against the solicitors:

“14.  It is probably only in a (perhaps small)  minority of cases that a solicitor does not provide at least some element of financing, even if it is only by not requiring to be placed and kept in funds in excess of all potential expenditure or fees. Not infrequently such credit may be provided until judgment at earliest, and either formally - as by a CFA - or informally the solicitor may accept the risk or even the quasi-certainty that he will be neither reimbursed for expenditure nor paid his fees in the absence of success by his client against, and recovery from, his opponent. But these are - certainly in modern times - regarded as acceptable ways of facilitating access to justice. The existence of funding by a solicitor cannot therefore in itself be a sufficient basis for concluding that the solicitor is either the - or a - real party to the litigation or vulnerable to a non-party order for costs (see e.g. Floods of Queensferry Ltd v Shand Construction Ltd, [2002] EWCA Civ 918; [2003] Lloyd’s Rep. I.R. 181 at paras 79 to 83 per Hale L.J. and Gavin Flatman v Gill Germany [2013] EWCA Civ 278 at paras 45 ff. per Leveson LJ). It must equally be the case that the potential benefit if victory enables the client to pay the solicitor is not a factor which can properly open the door to an order against the solicitor.

15.  What the court must seek is therefore some element which indicates that - as it is sometimes put in the case-law - the solicitor has, at least to some extent, acted outside his role as a solicitor for his client, or, as I would add, for a purpose outside that role. While this may be problematic where the applicant cannot identify any act which is not explicable or called for by the proper discharge of the solicitor’s professional obligations to his client in the conduct of the litigation, that is not always fatal. In such a case, it will in my view be of great, and possibly decisive, importance whether the interests - and hence the motivations - of the solicitor and the client or in any significant respect incongruent. That was so in Myatt v National Coal Board[2007] 1 WLR 1559 where the solicitor had a substantial and apparently much greater additional interest in a successful appeal in that it would create a binding judicial precedent enabling him to recover his profit costs in 60 other similar cases. Myatt was however unusual in both its facts and results. Typically, the solicitor’s interest is no more than a direct linear consequence of his client’s potential success: he will be paid if his client is paid and not if not. Moreover, even if there were a significant lack of congruence, the degree of the discrepancy - possibly combined with other factors in a discretionary evaluation - may still make it inappropriate to make any order for costs, or lead the court to limit the order to only part of the costs.” (my emphasis)

176.  In Peter Williers v Elena Joyce and John Nugent (in substitution for and in their capacity as Executors of the Will of Albert GuBay, deceased),[151] the defendants joined the solicitors and counsel who previously represented the claimant in a failed malicious prosecution claim in the proceedings to seek non-party costs orders against them. The claimant alleged the defendant executors of the estate of the deceased had maliciously prosecuted an earlier action against him, which was subsequently discontinued. When the claimant’s malicious prosecution claim was dismissed, he was ordered to pay costs of that claim and to pay interim payment on account of those costs which he failed to pay (paragraphs 3-4). The defendants’ costs for the malicious prosecution claim were about £1.9 million, and “unless the Executors can obtain an order for costs against the Costs Respondents, they will recover nothing from [the claimant] in respect of the costs of their successful defence of the Malicious Prosecution Claim” (paragraph 4). The defendants claimed the costs respondents (ie the claimants’ solicitors and counsel)  were the “real parties” to the claim because the principal purpose of the claim was to recover damages for the tort of malicious prosecution in an amount equal to the unpaid fees owed by the claimant to the costs respondents for the legal services they provided to him in the earlier action, which unpaid fees were disallowed upon detailed assessment of the claimant’s costs in the earlier action. On such basis, it was said the costs respondents had “direct, personal financial interest” in the malicious prosecution claim (because they were effectively “extending credit” to the claimant and would be repaid only if he came into money)  such that they (and the claimant)  should pay the defendants’ costs when that claim failed (paragraph 5).

177.  Rose LJ discussed the law in relation to non-party costs orders, including most of the authorities referred to above, and said as follows:

“54.  In my judgment the principle that emerges clearly from the decisions of this Court in Tolstoy, Floods and Hamilton v Al Fayed is that there is a strong public interest in ensuring that impecunious claimants can have access to justice even if that means that successful defendants are left substantially out of pocket. Because of this, legal representatives should not be at risk of a third party costs order unless they are acting in some way outside the role of legal representative. The nature of the role of the legal representative means that the indicators useful in considering the liability of, for example, a pure funder, such as whether he has been closely involved in making decisions about the conduct of litigation or whether he has a substantial financial interest in the success of the litigation do not work. The legal representative will always be closely involved in taking decisions about the conduct of the litigation and will always have a financial interest in the outcome, particularly where he is working under a conditional fee agreement or because although he is invoicing the client regularly for work done, he knows that in practice he will never be paid unless the client wins the case.”

178.  In that case, the key question was whether the fact that the damages claimed in the malicious prosecution claim included a substantial amount of money still owed to the costs respondents from the earlier action made a difference (paragraph 55). Although Rose LJ conceded hers was a “difficult” decision, she acknowledged the public interest referred to in the above paragraph, and concluded it was not a case in which the claimant’s solicitors and counsel acted outside the role of legal representatives to such an extent as to bring themselves within the non-party costs jurisdiction (paragraph 56).

179.  Among other factors that led to such conclusion, Rose LJ said “…… it is important that legal representatives know when they first take on a client whether they are exposing themselves to the potential claim for costs from the opposing party at the end of the day ……” In that case, everyone knew by the time the malicious prosecution claim was lodged that the claimant had no funds to pay either his own ongoing legal expenses or the costs shortfall in the earlier proceedings. “But there may be cases in which the facts are not so clear cut. I agree with the comment of Hale LJ in Hamilton v Al Fayed that it is better to have a general approach to these cases rather than for liability to turn on nuances of fact in particular cases - even though in a particular case it may lead to a hard result” (paragraph 59). Further, Rose LJ said she “…… must not fall into the trap of assuming that the Costs Respondents were encouraging [the claimant] to bring and pursue the Malicious Prosecution Claim. It is clear from cases such as Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 that a solicitor or barrister who enters into a CFA still owes to the client exactly the same duties that he would owe to the client and to the court if he were being paid on a conventional basis ……” (paragraph 62). Still further, the claimant was entitled to instruct the same lawyers for the malicious prosecution claim as they best understood the case (paragraph 58). Also, Rose LJ said the defendants had not proved that if the claimant had wearied of the proceedings and decided to settle for a modest nominal payment, the costs respondents would have refused to allow him to abandon his claim if that meant the costs shortfall in the earlier action would never be met (paragraph 73). Rose LJ therefore dismissed the application for a non-party costs order against the costs respondents, and held the interest they had “in the success of the Malicious Prosecution Claim was not so different from the direct financial interests that lawyers commonly have in litigation as to make them a real party in substantial and critical respects” (paragraph 76).

180.  In the recent case of PME v The Scout Association,[152] the claimant in a personal injury claim accepted, without proceedings being issued, a Part 36 offer from the defendant to which the Qualified One-Way Costs Shifting (“QOCS”)  applied with costs to be be paid by the defendant to be assessed if not agreed (paragraphs 8-10). The claimant’s costs were provisionally assessed (to be below the offer of costs made by the defendant), and orally reviewed only on matters of hourly rates and document time (which failed, so the 1^st cost order was made against the claimant)  (paragraphs 9-14). The claimant appealed to the costs judge and raised new argument late in the day. The costs judge rejected the claimant’s contentions on the preliminary issue (paragraphs 15-19). The claimant then appealed against the decision on the preliminary issue, but the appeal was dismissed and a 2^nd costs order was granted for the claimant to pay the defendant’s costs of such appeal (paragraphs 20-22). As a result of settlement of the underlying claim by way of acceptance of a Part 36 offer by the defendant, the defendant was, as a matter of law, unable to recover its costs by way of set-off against the damages or costs payable by the claimant (paragraphs 23-25), and applied for a non-party costs order against the claimant’s solicitors on the ground that following the rejection of the defendant’s offer of costs (which if accepted would have resulted in a better outcome for the claimant)  the defendant had been forced to incur costs at a level that substantially exceeded both the damages payable to the claimant and the claimant’s recoverable costs of the claim itself, so it was said the claimant’s solicitors were the only party with an interest in the outcome of the detailed assessment and in particular in recovering more by way of costs than the defendant had offered, which offer was nominally rejected by the claimant but in reality, according to the defendant, by the claimant’s solicitors (paragraphs 28-29). In that case, the retainer agreement between the claimant and the claimant’s solicitors was close to a “CFA lite”,[153] so it was said that “the only party with a tangible financial interest in the outcome of these detailed assessment proceedings has been [the claimant solicitors] itself” (paragraphs 30-35).[154]

181.  Costs Judge Leonard said the application for a non-party costs order had to be viewed in the context of the underlying proceedings, which were an assessment of the claimant’s costs recoverable under a court order following settlement of his claim for damages for personal injury (paragraph 129). Although Myatt dealt with the making of a non-party costs order where the issue is the enforceability of a CFA, “Lloyd LJ did not exclude the possibility of such an order being made where the enforceability of the CFA is not an issue, only that it would be “most unusual” …… [the] point is …… that [a non-party costs order] is itself exceptional, in that occasion for making such an order will only arise outside the ordinary run of cases” (paragraph 131). Costs Judge Leonard went on to say that “…… [it] is in my view clear from Flatman v Germany first that a solicitor cannot be said to be acting outside the role of a solicitor if the solicitor is doing no more than the legislation pertaining to CFAs renders lawful, and second that in such circumstances it would not be right to conclude that the solicitor is “the real party” or even “a real party” to the litigation. It seems to me that those principles, in particular, preclude the making of [a non-party costs order] in this case” (paragraph 133). There was no suggestion the capped CFA in any way failed to comply with the legislative requirements (paragraph 134), and if the claimant’s solicitors were properly open to a non-party costs order because of the way they managed the cost assessment proceedings, so would any solicitor who acts under a “CFA lite” where costs orders are made against his clients in the course of the assessment of his clients’ costs, which (irrespective whether QOCS applies or not)  will be contrary to the principles in Flatman, Tinseltime Ltd and Hodgson (paragraphs 134-136). Also on the matter of causation, there was no good reason in that case to suppose the claimant’s solicitors had acted differently than they would have done had the claimant had direct financial interest in the outcome of either the detailed assessment or the appeal (paragraph 137), which showed the claimant’s solicitors had, “in attempting unsuccessfully to maximise the Claimant’s cost recovery and to beat the Defendant’s offer, been doing no more than any solicitor might do who is acting under any CFA lite or capped CFA” (paragraph 139). The costs judge also accepted there was a point with regard to access to justice (paragraphs 143-144), and if a non-party costs order can be justified whenever a costs order is made against a solicitor pursuing costs under a “CFA lite” or capped CFA merely because the client has no significant stake in the recovery of costs, then non-party costs orders will not be exceptional but will become routine (paragraph 145). Thus, it was held not to be just or convenient or consistent with established authority to make a non-party costs order against the claimant’s solicitors in that case (paragraph 148).

182.  In my view, the above authorities and discussions show that if a litigant claims costs against the solicitors acting for his unsuccessful opponent qua legal representatives, then he should invoke the wasted cost jurisdiction under the principles as explained in paragraphs 36-133 above by establishing, say,something more than just presenting a hopeless case on behalf of an impecunious client, ie that the legal representatives have lent their assistance to proceedings which are akin to an abuse of process.

183.  But if a litigant claims costs against the solicitors for his unsuccessful opponent on the basis that they have transgressed outside their proper professional role as legal representatives, then the case law mandates a close look at the questions of funding, control and benefit, and how overall in light of these factors the discretion under the non-party costs regime should be applied. Although CFA, ATE insurance and QOCS rules have no relevance in Hong Kong, the above authorities clearly reflect the broad approach of the courts towards the non-party costs regime in contra-distinction to the wasted costs jurisdiction.

184.  The starting point is that legal representatives should not be at risk of being visited by non-party costs orders unless they are in some way outside the professional role of legal representatives.[155] The distinction between the wasted costs regime qua legal representatives and the non-party costs regime qua third party funder explained in paragraphs 148-150, 154-156, 160, 164, 175 and 177 above means the successful litigant cannot seek to justify a claim for a non-party costs order against the solicitors for his unsuccessful opponent who have allegedly transgressed outside their professional role as legal representatives by reference to complaints that such solicitors have acted improperly or unreasonably in their conduct and carriage of the proceedings as legal representatives for the unsuccessful party, ie by eliding the principles for the wasted costs regime against solicitors qua legal representatives into the non-party costs regime against solicitors qua, say, third party funders (and vice versa).[156]

185.  Nevertheless, a non-party costs order (like a wasted costs order)  is exceptional, and solicitors often informally fund proceedings in the sense of taking a risk by extending credit to the client in the manner as explained in paragraphs 145-147 above (eg by deploying fee-earners’ time and paying disbursements when the client is impecunious). Although such solicitors are unlikely to be “pure funders”,[157] a non-party costs order requires something more than the mere fact that they have extended credit to a client (who has a weak or hopeless claim/defence but without funds)  by informally funding the litigation in the manner explained above, which of itself is insufficient to demonstrate that such solicitors have been acting in some way outside their proper professional role as legal representatives.

186.  There is, of course, a duty on the part of such solicitors qua legal representatives to properly advise the client on the merits (or demerits)  of the case if perceived to be weak or hopeless,[158] but they are not required to assess the result of conflict of evidence or to conduct pre-trial screen of the client’s claim/defence,[159] and it is up to the client to decide whether to heed such advice.[160] Further, unless there is abuse of process or breach of duty not to mislead the court, it is neither unreasonable nor improper for the solicitors to continue to act qua legal representatives,[161] and whether the client is or is not impecunious such that his solicitors may or may not act for remuneration and/or may or may not extend credit by deploying fee earners’ time and/or paying disbursement expenses do not alter the existence or the nature of their duty to the client and to the court.[162] As Sir Thomas Bingham MR (as he then was)  in Ridehalgh said, “…… wasted costs orders should not become a back-door means of recovering costs not otherwise recoverable against a legally-aided or improverished litigant ……”[163] Indeed, the fact that the solicitors stand to benefit financially from the success of the litigation in the sense that otherwise they will not be able to recover their profit costs and disbursements (eg when they have extended credit for, say, an impecunious client)  does not of itself mean they have acted in some way beyond or outside their role as legal representatives conducting litigation for their client, and one should not fall into the trap of assuming that the solicitors therefore encouraged the client to raise or pursue the claim or defence.[164] So merely establishing that the solicitor has funded the litigation in the sense as explained in paragraphs 145-147 above and/or the claim is weak or hopeless and/or the client is impecunious will not be sufficient to demonstrate that the solicitor is the or a real party to litigation in important and critical respects with self-interest in the outcome of the suit for his own sake, and/or that he substantially controls the litigation and/or that he stands to financially benefit from the proceedings over and above the benefit he can expect to receive as a solicitor acting on behalf a client[165] (as in Myatt where the claimant’s solicitors had a greater interest in a successful appeal as the appeal would become a binding precedent to enable them to recover costs in 60 other similar cases[166]).

187.  For all of the above reasons, I am not persuaded that (a)  the the criteria for granting non-party costs orders, which normally require evidence to indicate the respondent solicitor has become the or a real party to the litigation with principal interest in its outcome and is acting primarily for his own sake,[167] (b)  the principles elicted from maintenance/champerty law that concern the solicitor who has crossed the line to transgress outside his proper professional role as legal representative for his client[168] and (c)  the observations developed therefrom as bolstered by CJR objectives[169] can elide into the different and “exceptional” wasted costs statutory regime qua legal representatives as discussed in paragraphs 36-133 above and as particularly summarised in paragraph 186 above.

188.  However, in So Kam HHJ Andrew Li invoked the wasted costs jurisdiction but did not invoke the non-party costs jurisdiction. In any event, no attempt was made in that case to join the plaintiff’s solicitors as a party to the proceedings for the purpose of costs only as required under Order 62 rule 6A of the RHC. There was also no indication in So Kam that the defendant had given warning at an early stage of the proceedings that should the plaintiff’s claim fail at the end of the day, the defendant would or might apply for costs against the plaintiff’s solicitors. But, as explained above, the principles and observations referred to in paragraph 187(a)-(c)  above cannot be elided into the wasted costs jurisdictions.

189.  2 further matters arise from So Kam (and Shahid Muhammad that in turn relied on So Kam). First, HHJ Andrew Li cited Rogers VP’s observations in paragraphs 7-8 of Re Labour Buildings Limited to support his proposition in relation to the wasted costs regime that “there must be a case to make solicitors who decide to pursue a hopeless case on behalf of a litigant to pay for the costs of the successful defendant when it is apparent that the plaintiff is not in a position to pay those costs as [the plaintiff] in that case”.

190.  I have summarised the facts and background of Re Labour Buildings Ltd at the first instance and at the Court of Appeal in Liu Hui Hong, the personal representative appointed to represent the estate of Li Shiyou, deceased (by carry on order dated 30 September 2015)  & anor as follows:

“181.   Next, Re Labour Buildings Ltd first came before Harris J,[170] and the headnote of his judgment summarised the facts as follows:

“In July 2009, C, a company, agreed to buy a property (the Property). On 17 December 2009, Rs, the mortgagee, executed an assignment of the Property (the Assignment)  as the court-appointed receivers of the Property and C’s appointed attorney pursuant to a debenture and authorisation of the Court. On the same day, P presented a petition to wind up C on the grounds of insolvency. C then sought an order that the Assignment was void. Rs applied for an order to validate the Assignment under s.182 of the Companies Ordinance.”

Harris J granted a validation order, but held it would not prevent a subsequent challenge to a transaction for a reason unconnected with the presentation of the petition or the granting of a winding up order against C.

182.  A notice of appeal was filed on behalf of C, but there was every reason to believe that C had no funds at all. In the appeal case, Rogers VP said there was no call upon the solicitors to file that notice of appeal as (a)  an appeal was a separate matter from the proceedings in the court below, and (b)  it was the solicitors’ responsibility to see where the costs were coming from, not only for his own costs but also costs of the other party should the appeal fail (paragraph 2). When the appeal was set down with date of hearing fixed and later notified, C’s solicitors asked for an adjournment, but the 2^nd request for adjournment was refused. When the appeal was heard, no counsel appeared because C’s solicitors informed the counsel they approached that “they may not get paid because [C] was in the process of being wound up” (paragraph 5). Further, C’s solicitors confessed they “had no idea where any funds for the appeal would come from. It was purely speculative that funds might be available from some source or another which, of course, it would be impossible to identify” (paragraph 4). Rogers VP held it was a hopeless appeal from the start, and the perfunctory notice of appeal that raised no real ground at all kept up the façade (right until the hearing)  that it was an appeal that would go ahead when C’s solicitors “well knew it was not going ahead and costs could clearly have been saved, even if the appeal were abandoned towards the end”. In those circumstances, C’s solicitors acted improperly in the conduct of the appeal and should bear the costs of it because C was not in a position to pay those costs, which costs were summarily assessed.”

191.  It is clear from the judgment of Rogers VP that there was undue delay and/or misconduct that supported the wasted costs order. On the point of undue delay, what happened was that C’s solicitors “strained every nerve to avoid the sale of the property which was the subject of the proceedings before Harris J” (paragraph 2), and when the notice of appeal was set down and the hearing date was fixed, C’s solicitors “asked for an adjournment on 19 March and again on 22 March and that was refused”. As for unreasonable/improper conduct or other misconduct, since C’s solicitors “had no idea where any funds for the appeal would come from” and “there is every reason to believe that the Company has no funds at all” as it was in the process of being wound up (paragraphs 3-5), so there was no call upon C’s solicitors to file the notice of appeal and, more importantly, to progress the appeal to hearing without counsel. Thus, the misconduct and abuse by C’s solicitors were (a)  their improper attempt to instruct counsel by “informing the counsel that they may not get paid because the Company was in the process of being wound up” (paragraph 5)  when it was obvious that “…… [they] cannot ask counsel to appear on a speculative basis that may or may not get paid. What is worse is to instruct counsel that they may be get paid if they are successful and obtain an order for costs and, if they do not and are unsuccessful, no costs will be forthcoming and they will not get paid ……” (paragraph 6), and (b)  their efforts to keep up the façade right until the hearing commenced that it was an appeal that would go ahead when they “…… well knew it was not going ahead ……” (paragraph 7). The impecuniosity of C was not of itself a factor for granting the wasted costs order, but was part of the background that went to explain C’s solicitors’ breach of duty to the court by their own misconduct or their lending of assistance to the abuse of process in (i)  knowing attempt to instruct counsel on an improper basis, and (ii)  knowing effort to mask the reality that the appeal actually would not go ahead in any event. In my view, Rogers VP did not regard C’s impecuniosity or inability to pay costs itself was a factor that sufficiently went to the “something more” to ground a wasted costs order. A similar situation arose in Tolstoy-Miloslavsky in which the client’s impecuniosity was part of the overall factual matrix that bolstered the “something more” (ie the abuse of process)  to justify a wasted costs order.[171]

192.  Secondly, in respect of the wasted costs jurisdiction invoked in So Kam on the premise that the defendant incurred wasted costs as a result of “an improper or unreasonable act or omission” or “any undue delay or other misconduct or default” on the part of the plaintiff’s solicitors qua legal representatives, the meaning of “improper” and “unreasonable” in paragraphs 42-44 above sets a high threshold of serious impropriety (involving inter alia breach of duty to the court, inexcusable conduct, serious dereliction of duty, conduct that merits reproof, conduct that is vexatious and is intended to harass the other side and/or conduct that is akin to abuse of process)  that makes a wasted costs order exceptional. But the “negligence” limb under the English statutory wasted costs regime, which covers conduct that no reasonably well-informed and competent solicitor would have done or omitted to do, is locally not applicable or sufficient.[172] Thus, to invoke the local wasted costs regime against solicitors handling weak/hopeless claims for clients without funds (in contra-distinction to prudent post-CJR litigation practice by reasonably well-informed and competent litigation solicitors vis-à-vis their clients), it is doubtful whether, absent mala fides, ulterior purpose, assistance to abuse of process and/or the court being knowingly misled, it is sufficient to simply show the respondent solicitors have been overly optimistic by overlooking relevant facts/law and not investigating material issues and thus continuing to act for an impecunious unsuccessful party when no reasonably well-informed and competent solicitor can have considered the claim to have any prospects of success.[173] As evident from Maurice Dempsey, this may go to show the solicitors have been negligent, but (a)  there is no “negligence” limb in the local wasted costs regime, and (b)  even under the English “negligence” limb, there is need to show that the respondent solicitors in continuing to act in a case hopeless on facts have acted unreasonably akin to an abuse of process.[174] Further, as explained in paragraphs 131-132 above, and again absent mala fides, ulterior purpose, assistance to abuse of process and/or the court being knowingly misled, the client’s impecuniosity of itself does not alter the existence or nature of the solicitors’ duty to the client or to the court, and it is also doubtful whether the solicitors have (a)  any duty or continuing duty to conduct pre-trial screen of their client’s case, to see that the client is telling the truth and/or to verify the client’s inconsistent statements,[175] and/or (b)  any duty to cease to act (in contra-distinction to a duty to advise on the perceived weaknesses of the client’s case and/or the risks/consequences upon any failure of the claim or defence)  if his client still wishes to pursue his claim or defence which is weak/hopeless and has no reasonable cause.[176]

193.  In light of the above discussions and Mr Sakhrani’s non-explanation as to how So Kam and Shahid Muhammad would feature in D2-D5’s contentions for the wasted costs order they sought, I have reservations whether a wasted costs order (which is a remedy of last resort)  can be made against solicitors acting for an impecunious litigant with a hopeless claim/defence when it has not been shown they have lent themselves to proceedings that are akin to an abuse of process (especially in the absence of any application for peremptory remedies such as for striking out order or summary judgment,[177] or application for security for costs).[178]

(f)  D2-D5’s case

194.  Mr Sakhrani argued that (a)  since P’s solicitors knew P/Mother was a woman of modest means but was not on legal aid such that she would not have been able to pay D2-D5’s costs if so ordered by the court (see her non-repayment of the excess Interim Payment to date), and (b)  given the chronology of specific discovery of the SWD / HKHA Forms set out in the Lam 3^rd Aff,[179] P’s solicitors must have (i)  taken the Mother’s instructions on the HKHA Forms (which information therein she confirmed to be true and accurate when she gave oral evidence at the assessment hearing)  to prepare the Mother WStmt / RSoD that were verified by the Mother’s SoTs, (ii)  realised the information in the HKHA Forms contradicted the SoD as to the dependencies upon the Deceased (and yet they prepared the Mother WStmt / RSoD that were silent on the HKHA Forms and the Discrepancies), and (iii)  realised the SWD Forms and the Deceased SWD Forms reinforced the contradictions between the HKHA Forms on the one hand and the Mother WStmt / RSoD on the other hand (and yet no supplemental witness statement was filed/served thereafter).

195.  Given this court’s findings in the Written Judgment that (a)  the Mother had better understanding about the information in the SWD / HKHA Forms, which she confirmed was truthful/accurate and which therefore suggested she was not telling the truth when she also adopted the contradictory/discrepant 4/16/18 Parts in the Mother WStmt as her evidence,[180] (b)  the Mother did not give credible explanation for the obvious and material Discrepancies between the SWD / HKHA Forms and the 4/16/18 Parts, which contradictions were not addressed in the Mother WStmt,[181] and (c)  the material Discrepancies undermined the Mother’s evidence and P’s case so that the Mother must have withheld information to bolster P’s case and that her alleged dependency on the Deceased was inherently improbable,[182] Mr Sakhrani submitted that no reasonably competent solicitor could have failed to conclude in light of the “admission of truth” in the SWD / HKHA Forms and the absence of any explanation for the Discrepancies that “there were serious credibility issues and no realistic prospect of success” (my emphasis), or could have thought the absence of explanation for the Discrepancies between the SWD / HKHA Forms (which were said to contain the “truth”)  and the Mother WStmt / RSoD (which were said to be “false”)  was a mere “matter of credibility of witness whether Court will accept the evidence of [P], thus this action could not be considered to be a hopeless case”[183] (irrespective whether P’s solicitors genuinely believed this or not). Mr Sakhrani submitted that P’s solicitors must have known that without any or any credible explanation the claimed dependency was “inherently improbable”.

196.  On such basis, it was said that P’s solicitors as officers of the court boldly ignored their duty to the court by enabling the Mother’s “half-truths, untruths or even lies for her own purpose” as found by this court in the Written Judgment in their (a)  preparation of the Mother WStmt / RSoD “that contained false information, contradicting the HKHA / SWD Forms, which contained the truth”, (b)  continuation to act for P in the present action, and (c)  demand for “astronomical sums to settle this case, as the correspondence shows”, eg by 18 October 2019 the Sanctioned Payments of $4,270,038 were rejected, and even though by 2 September 2020 the Sanctioned Payments were increased to $4,570,038,[184] “[P’s solicitors] wanted $6.9m” (but it was unclear how this “extortionate” figure was arrived at).

197.  Mr Sakhrani suggested P’s Solicitors “should have advised a course correction, failing which they should have withdrawn” or ceased to act instead of (a)  drafting/filing the Mother WStmt and making huge unwarranted demand on D2-D5, failing which they “knowingly played a part in [P’s] dishonest misconduct” and/or (b)  taking the present action up to the assessment of damages which took days of hearing and was hard fought to the end by P’s legal team. Mr Sakhrani submitted that P’s solicitors as officers of the court were duty bound not to enable/present a case they knew or ought to have known contained “half-truths, untruths or even lies for the Mother’s own purpose”, as found by this court in the Written Judgment, and the fact they did so revealed “gross negligence, incompetence, misconduct or errors of such a nature which is an affront to the conscience of a solicitor”, which was said to amount to breach of their duty to the court and thus warranted reproof. It was said the legal system should not be so manipulated.

198.  Mr Sakhrani submitted that (a)  refusal to waive privilege would not have precluded a finding of abuse when the particular conduct admitted of no reasonable explanation, (b)  disclosure of the SP Written Instructions in the Pang Aff was disingenuous as such standard-form instructions said nothing about why P rejected the Sanctioned Payments, and (c)  P’s solicitors did not explain why they did not cease to act as they were obliged to. It was said the failure by P’s solicitors to either advise P of the inherent improbability of her claim as to the dependencies or to cease to act if P insisted on maintaining such claim contributed to D2-D5’s wasted costs.

(g)  Discussion

199.  Wasted costs jurisdiction only  The starting point was that D2-D5 only invoked the wasted costs jurisdiction and did not invoke the non-party costs jurisdiction. Thus, D2-D5’s complaints were against P’s solicitors qua legal representatives of P, and not qua non-party who had transgressed outside their proper professional role as legal representatives, say, as a third party funder controlling the litigation in the hope of gaining benefit/profit therefrom. Indeed, no application was made to join P’s solicitors as a party to the present action for costs only, and the Lam 2^nd/3^rd Affs as well as Mr Sakhrani’s written submissions did not allude to any prior warning to P’s solicitors of any intention to invoke the non-party costs jurisdiction, ie warning that should have been issued at an early stage of the proceedings to the effect that, if P’s claim would fail, D2-D5 would or might apply for costs against P’s solicitors (see Myatt at page 1564).

200.  D2-D5’s complaints  The essence of D2-D5’s complaints was that given (a)  the Discrepancies as to the dependencies between the SWD / HKHA Forms on the one hand and the 4/16/18 Parts in the Mother WStmt / RSoD on the other hand, (b)  the absence of explanation as to the Discrepancies in the Mother WStmt or by way of supplemental witness statement, and (c)  the findings by this court set out in paragraph 195(a)-(c)  above, no reasonably competent solicitor would have failed to conclude P’s case had “serious credibility issues”, had “no prospect of success” to beat the Sanctioned Payments and was “inherently improbable” (ie P’s claim was hopeless), consequently P’s solicitors were in breach of their duty to the court by (i)  knowingly preparing the Mother WStmt / RSoD without explanation for the Discrepancies, and “causing” the Mother to verify the same by her SoTs, (ii)  progressing the case to the assessment hearing by disregarding the declarations in the SWD / HKHA Forms (which if true would have meant the 4/16/18 Parts of the Mother WStmt would have been false)  and not adducing statement evidence to explain the Discrepancies, (iii)  failing to advise or properly advise P (1)  to accept the Sanctioned Payments and (2)  to not further prosecute her claim in the present action (especially when P, who was not on legal aid, was impecunious thus giving rise to concern that she would be unable to satisfy any costs orders in favour of D2-D5 against her), and/or (iv)  if they did so advise P but P insisted on proceeding with her claim, failing to refrain from enabling P’s “false case” and “dishonest conduct” (ie preparing the Mother WStmt and the RSoD that contained “false information” in contra-distinction to “the truth” in the SWD / HKHA Forms, putting forward “extortionate” sum for proposed offer of settlement, and bringing P’s claim for “astronomical” sum up to and including to the assessment hearing despite availability of the Sanctioned Payments)  and to cease acting for P.

201.  Court’s approach The trial judge is recognised to be well-placed to evaluate the evidence in support of an application for a wasted costs order as he/she is entitled to rely on his/her own impression/ opinion, but such evaluation should not descend into investigation of the minute details. After all, if such detailed exercise is required, then more likely than not the case for a wasted costs order will not be plain and obvious. In Burkhard Hedrich & anor, Ward LJ said as follows:

“44.  In my judgment it is necessary for the Bank [ie the applicant for a wasted costs order] to show a reasonably obvious case and no clear picture can emerge if the wasted costs application is required to investigate the minutiae of conduct in a complex action.  We are to look at the big picture, not the detailed brush-work ……”

202.  1^st stage  At the 1^st stage, D2-D5 had to show on the evidence before the court a strong prima facie case[185] on the 3 questions identified in Ma So So,[186] which if unanswered would likely lead to the grant of a wasted costs order.

203.  Alleged impecuniosity or inability to pay D2-D5’s costs  Mr Sakhrani submitted that P’s solicitors knew P was “a woman of very modest means” who did not have legal aid. In my view, P’s alleged impecuniosity featured in D2-D5’s contentions in 2 respects: (a)  D2-D5 alleged that the significant amount of costs they incurred could not be recovered from P,[187] and (b)  D2-D5 also alleged that P’s impecuniosity or modest means combined with the hopeless nature of her claim justified the grant of a wasted costs order against her solicitors who acted for her in the present action.

204.  Whilst I readily accept P was previously on CSSA and had not complied with the Repayment Order to repay the excess Interim Payment that had been overpaid by D2-D5 within the prescribed time or to date, I find the only useful and relevant inference that could be drawn from the known factual matrix was that P failed or was not willing to comply with the Repayment Order to repay D2-D5, but in all the circumstances I am unable to say there was strong prima facie case for inferring that she was impecunious.

205.  First, the Mother had use of the EC Sum in the sum of $1,070,038.[188] Secondly, the Mother had the benefit of the 1^st/2^nd NCB Loans in the sums of $100,000 and $50,000[189] (which were eventually repaid with interest).[190] Thirdly, the Mother as administratrix of the estate of the Deceased received from CLI the insurance pay-outs in the sum of $232,403.01 under the CLI Policy.[191] Fourthly, the Mother probably received the insurance pay-outs under the HSI Policy, the amount of which was unknown.[192] Fifthly, the Mother probably received (a)  CSSA since January 2019 (that ranged from $2,525/month to $5,050/month and later reduced to $2,130/month as evident from deposits into her HSBC Account)  after her successful application for CSSA in December 2018,[193] and/or (b)  earnings as a post-natal care worker probably in the range of $5,250 to $5,950 per month (as seen in the transactions in her HSBC Account).[194] Sixthly, the Mother had pocket money in the sum of $1,500/month given to her by the Brother.[195] Seventhly, the Mother had modest pocket money given to her by the Sister after the Sister started working upon graduation in May 2020.[196] Eighthly, the transactions in the Mother’s HSBC Account showed that quite possibly she might have made investments (eg on foreign exchange)  with her money.[197] Ninthly, the Mother received the Interim Payment in the sum of $550,000.

206.  In light of the above, I am unable to say P only had modest means let alone she was impecunious, bearing in mind that the Mother alleged her household expenses were just under $11,000/month [198] (with free rent for the Flat)  when the Sister still lived with her, which expenses would have been reduced after the Sister moved out. Simply the 3 sums of the EC Sum (save for a modest portion for the Sister), half of the CLI Policy pay-outs and the Interim Payment amounted to over $1,500,000. Plainly, the Mother should have spare money, but, as I have found, she was reticent about their whereabouts. But then, neither Mr Chong (and Mr Ho with him), then counsel for P at the trial, nor Mr Sakhrani delve into the Mother’s NCB and BOC Accounts in any depth (if at all)  at the assessment hearing.[199]

207.  Against the aforesaid findings at the assessment hearing, I am unable (a)  to say there was strong prima facie case for drawing the inference that P was impecunious or unable to pay D2-D5’s costs pursuant to the 4/1/23 Order simply from the fact (i)  P had private legal representation without legal aid and (ii)  she had not repaid the excess Interim Payment overpaid by D2-D5 to date, and/or (b)  to conclude that D2-D5 had a strong prima facie case for a wasted costs order in all the circumstances, especially when the Lam 2^nd/3^rd Affs gave no idea at all as to the approximate level/amount of D2-D5’s costs under the 4/1/23 Order or as claimed under the Para 5 Application. It was not for this court to speculate why P did not comply with the Repayment Order, and it was for D2-D5 to take appropriate action to enforce payment.

208.  I note HHJ Andrew Li in paragraph 27 of the Decision on Costs in Shahid Muhammad (a)  cited the case of Pang Yiu Hung Robert v Commissioner of Police,[200] and (b)  held in the case before him that the plaintiff’s solicitors were “in a position to depose as to whether the plaintiff has paid any of the legal fees and disbursements for these proceedings but he chose not to do so”. For the present purpose, I am prepared to assume without expressly finding that Pang Yiu Hung Robert supports the learned judge’s proposition that the client’s payment or non-payment of his solicitor’s costs and disbursements for the conduct of legal proceedings is not information subject to legal professional privilege and can be openly disclosed.

209.  But here, I have 3 observations. First, for the Para 5 Application, D2-D5 did not by the Lam 2^nd/3^rd Affs and/or in Mr Sakhrani’s written submissions complain that (a)  P was unable to pay her own solicitors’ costs and disbursements in acting for her in the present action, and/or (b)  P’s solicitors had to extend credit to P for funding her claim in the present action by deploying the value of fee earners’ time and/or paying for disbursement expenses on her behalf. Secondly, I am presently dealing with the 1^st stage and not the 2^nd stage of the wasted costs application, so P’s solicitors might but were not as yet obliged to place evidence before the court. Thirdly, whether or not P paid her own solicitors’ costs and disbursements, and if so, the source of those payments were matters that were plainly intertwined with the state of the Mother’s finances, but the state of the Mother’s finances and/or her disclosure (or non-disclosure)  thereof (as supported by her own declarations)  would impact on her application for and use of CSSA provided by SWD and housing support provided by HKHA, which were the very subject of (i)  warnings in relation to privilege against self-incrimination at the assessment hearing[201] and (ii)  referral via the Registrar of the High Court to the Secretary for Justice for his consideration.[202] In my view, even if (as HHJ Andrew Li suggested)  there was no legal professional privilege over whether P had or had not paid P’s solicitors their profit costs and disbursements in representing her in the present action and/or how she funded the present claim, it was not for P’s solicitors to waive P’s privilege against self-incrimination without her informed consent.

210.  In my view, there was no strong prima facie mileage in D2-D5’s suggestion that D was impecunious or unable to pay D2-D5’s costs. That being the case, there is no need for me to deal with the further contention in paragraph 203(b)  above. I reiterate the discussion in paragraphs 131-187 above, and in particular the observations by Rose LJ in Tolstoy-Miloslavsky that whether a solicitor is acting for remuneration or not (eg where the client is impecunious)  does not alter the existence or nature of his duty to his client and the court[203] (see also Hodgson cited by Rose LJ in Peter Williers in paragraph 179 above).

211.  Ulterior purpose There was no suggestion in the Lam 2^nd/3^rd Affs and/or in Mr Sakhrani’s written submissions that P’s solicitors in issuing/pursuing the present action on P’s behalf did so for any ulterior motive unconnected with the success of the litigation (eg that P’s solicitors (a)  enabled P to commence/continue the present action to harass Ds as in Tolstoy-Miloslavsky – see paragraphs 76 and 113 above, (b)  created work to generate costs for themselves at the expense of P and/or her opponents Ds as in Re Estate of Lau Heung – see paragraphs 77-80 above, or (c)  facilitated issuance/pursuit of the present action which she would not have brought to full assessment hearing as in Re Labour Buildings Ltd – see paragraphs 81 and 189-191 below).

212.  Hopeless claim: issues  Next, D2-D5 and Mr Sakhrani submitted that no reasonably competent solicitors would have failed to conclude P’s case had no prospect of success, and hence it was a hopeless case and not merely one that turned on witness credibility. This raised 2 matters: (a)  whether P’s claim was one that had no prospect of success and/or was hopeless, and/or (b)  whether it was sufficient for the 1^st stage to demonstrate a strong prima facie case that no reasonably competent solicitors would have failed to conclude that P’s case had no prospect of success.

213.  Hopeless claim: hindsight  Before I deal with the above 2 matters, it is important to highlight that the alleged improper or unreasonable acts/omissions or the alleged default/misconduct of P’s solicitors should be considered in their relevant context at the material time rather than through the prism of hindsight wisdom at the end-point of the assessment hearing when this court upon holistic consideration of all evidence made findings with the benefit of (a)  the parties’ factual witness evidence (both statement and oral evidence)  having been tested under cross-examination, (b)  the documentary evidence having been assessed against the factual witness evidence in (a)  above, and (c)  the totality of the evidence in (a)-(b)  above having been weighed with the help of counsel’s written/oral submissions. One must not forget that P’s solicitors were not on trial at the assessment hearing and had no opportunity to address the court on their own position, so one should not jump too hastily from the court’s eventual findings at the end-point of the assessment hearing that P’s credibility/case were less than satisfactory to a conclusion that no reasonable solicitor would have acted on P’s instructions and/or would have recognised the Mother’s/P’s assertions in the Mother WStmt / RSoD amounted to a “false” claim or “dishonest” conduct.

214.  This was echoed by the following observations by DHCJ To in Pine Enterprises Limited to which I agree:[204]

“14.  An application for wasted costs order is often heard by the judge who had the conduct of the proceedings in which the misconduct of the solicitor allegedly arose. The relevant finding of fact, the demeanour of the client in the witness box and the way the proceedings was conducted by the solicitor whose conduct is complained of were matters which occurred before the court which the judge is entitled to take notice of. Very often, the conduct of the proceedings by the solicitor and the judge’s own finding of fact made in his judgment form an important part of the factual matrix against which the applicant’s case is to be considered and the solicitor’s defence is to be tested. The judge’s view of the credibility and honesty of the solicitor’s client is often an important factor to be considered when assessing the conduct of the solicitor. For example, the judge may form the view that the client was so incredible that no reasonable lawyer in that solicitor and client relationship would have accepted and acted on the client’s instructions on its face value. At the other extreme, the judge may find that the client was such a persuasive though dishonest witness that even his solicitor was misled or deceived. What view the judge forms depends on the totality of the circumstances.

15.  However, the judge must remember there is a limit to which his own findings in the proceedings may be put. It is important to bear in mind that the majority of the judge’s finding of fact and finding of credibility are against the parties to the proceedings and their witnesses, but not their solicitors. The solicitor, whose conduct is complained of, was not on trial and the judge had no opportunity of hearing the solicitor’s account. While the judge may take notice of what happened in the proceedings before him, he has no idea of what transpired between the solicitor and his client outside the courtroom. Thus, when acting on his own finding of fact in the earlier proceedings before him, the judge must be careful not to assume adverse finding against the client as if it were adverse finding against his solicitor or to draw adverse inference from such finding against the solicitor unless it is in all the circumstances reasonable to do so. Even if the court comes to the view that the proceedings were an abuse of the process of the court, it cannot jump to the conclusion that the solicitor knowingly assisted in abusing the legal process. Fairness requires that the solicitor should be given the chance to be heard by filing affidavits or giving oral testimony, if the solicitor so desires.

16.  Furthermore, when relying on finding of fact in the earlier proceedings, the judge must be wary and not to allow himself to be carried away by the benefit of hindsight. Such danger has been pointed out by Neuberger J, as he then was, in Brown v Bennett (No 2) [2002] 1 WLR 713 at 747B-F. The conduct of the solicitor complained of has accrued over a long period. It is inherently unsatisfactory to consider that conduct over that period retrospectively from the end point of the trial. Apart from looking at the matters with the wisdom of hindsight, one is also looking at the matters in a completely different perspective from the solicitor whose conduct is complained of and with the benefit of other evidence not available to the solicitor at the material time. In particular, the solicitor did not have the benefit of seeing his client’s evidence being tested under cross-examination by the opponent’s counsel and did not have a full appreciation of the opponent’s evidence as it was being presented and tested in court.” (my emphasis)

Though the above reminder was directed at the judge hearing the application for a wasted costs order, it also usefully serves as careful admonition to the applicant for a wasted costs order to be on the alert for the above matters when trying to harnass the court’s findings of fact/ credibility at the end-point of the underlying substantive proceedings for the wasted costs jurisdiction.

215.  Here, Mr Sakhrani particularly relied on paragraphs 78, 108 and 209 of the Written Judgment[205] to suggest P’s case was “false” and/or “dishonest”, had “no prospect of success”, and was “inherently improbable”, and therefore hopeless.

216.  But the overall finding as to the Mother’s poor credibility as witness in relation to the SWD / HKHA Forms in paragraph 78 of the Written Judgment was the result of this court’s overall assessment of witness credibility/reliability pursuant to the approach/manner set out in paragraph 76 therein, and this court’s conclusion that the Mother “must have told half-truths, untruths and even lies for her own purpose” was not the narrow result of a blinkered comparison between the SWD / HKHA Forms on the one hand and the Mother WStmt / RSoD on the other hand, but was in fact premised on a holistic consideration/analysis of all the evidence. As regards paragraph 108 of the Written Judgment, the discussions/conclusions therein were part of the deliberations set out in the Written Judgment as to why this court preferred the SWD / HKHA Forms except for the parts I have rejected (see paragraph 109 of the Written Judgment wherein I came to this view “[on] balance, for reasons set out above (and taking into account the further discussions and findings below)  ……”). And it was on the basis of my overall assessment of the totality of the evidence that I concluded in paragraph 209 of the Written Judgment that the Discrepancies severely undermined the Mother’s evidence and P’s case that (a)  the Mother must have withheld information to bolster P’s allegations, and (b)  her alleged dependency on the Deceased was improbable.

217.  I should also mention that I did not make any adverse finding against P’s solicitors in the Written Judgment and/or the Corrigendum. Thus, the question became whether one could infer from the above findings in relation to the Mother’s poor credibility as witness (made on holistic consideration of all the evidence that unraveled at the assessment hearing)  that, according to D2-D5 and Mr Sakhrani, (a)  no reasonable solicitor would have accepted and acted on P’s instructions at the material time (and not at the end-point of the assessment hearing), and/or (b)  P’s solicitors knowingly assisted/enabled P’s “false” claim or “dishonest” conduct, or knowingly enabled proceedings that were akin to an abuse of process.

218.  Hopeless claim: breach of duty to act competently  In my view, it is not enough to demonstrate at the 1^st stage strong prima facie case that no reasonably competent solicitors would have failed to conclude that P’s case had no prospect of success (ie the issue in paragraph 212(b)  above).

219.  Mr Sakhrani referred to The Hong Kong Solicitors’ Guide to Professional Conduct Vol 1 which provides as follows:

“6.01   Duty to act competently

(a)  A solicitor owed his client a duty to be competent to perform any legal services undertaken on the client’s behalf.

(b)  A solicitor must serve his client in a conscientious, diligent, prompt and efficient manner.

Commentary

……

3.  A solicitor must not undertake a matter without being either competent to handle it, or be able to become competent without undue delay, risk or expense to the client. This is a professioinal consideration and is to be distinguished from the standard of care that a court would apply for the purposes of determining negligence.

……”

I accept that as officers of the court, all legal practitioners must act competently, diligently and with candour when dealing with the court.

220.  But even if P’s solicitors were in breach of their duty to act competently to recognise P’s case was hopeless (but it is not necessary for me to so find), Mr Sakhrani did not explain how this would ground D2-D5’s Para 5 Application when it should be premised on “improper” or “unreasonable” conduct and/or “other misconduct” of P’s solicitors, and not on the English “negligence” limb that is not applicable in Hong Kong. I reiterate (a)  the meaning of “improper” and “unreasonable” in paragraphs 42-45 above in contra-distinction to the meaning of “negligence” in paragraph 118(a)  above (and it is the latter rather than the former that covers conduct that no reasonably well-informed and competent solicitor would have done or omitted to do), and (b)  the discussions/ analysis in paragraphs 44 and 190 above to the effect that the latter is insufficient to trigger the local wasted costs jurisdiction.

221.  Further, for reasons discussed in paragraphs 98-133 above, I do not agree with any general proposition that a solicitor who presents a hopeless case on behalf of a client should be visited with a wasted costs order to pay wasted costs of the successful defendant, irrespective whether the solicitor’s client is or is not in a position to pay those costs. There has to be “something more” in the manner explained above to demonstrate improper/unreasonable conduct or other misconduct/default in order to invoke the wasted costs jurisdiction. As explained above, for the 1^st stage, the applicant for a wasted costs order has to show a strong prima facie case that the respondent solicitors, say, (a)  have knowingly lent assistance to or enabled proceedings that are an abuse of process, (b)  have acted on behalf of the client for an ulterior purpose unconnected with the success of the argument, claim or defence, (c)  have knowingly misled the court, and/or (d)  have committed other serious misconduct or dereliction of duty to the court.

222.  Hopeless claim: P’s claim hopeless, dishonest or false? The thrust of various contentions advanced by D2-D5 and Mr Sakhrani was that P’s claim in the present action was hopeless and therefore should not have further advanced to the assessment hearing. On the other hand, Mr Kwan submitted there was no express suggestion in the Lam 2^nd/3^rd Affs and/or Mr Sakhrani’s written submissions that P’s claim in the present action was an abuse of process even though it was said (a)  there were unexplained Discrepancies between the SWD / HKHA Forms and P’s instructions (evident from the Mother WStmt / RSoD)  that should have excited P’s solicitors to advise P to accept the Sanctioned Payments and/or to not further prosecute her claim, and (b)  this court eventually rejected the claimed dependencies and disbelieved the Mother’s evidence in relation thereto, which, D2-D5 claimed, showed her case was false/ dishonest.

223.  I have referred to the authorities on this aspect in relation to the wasted costs jurisdiction, including Ridehalgh, Medcalf and the subsequent English/local authorities, which set out the interplay of public policy reasons that does not favour making wasted costs orders against legal representatives of unsuccessful parties in apparently hopeless cases, and which in turn indicates that the court will usually be looking for something akin to abuse of process.[206] For reasons discussed herein, I am not persuaded there was sufficient proving material in the existing evidence placed before the court that would raise a strong prima facie case that the carriage and conduct of the present action by P’s solicitors was akin to abuse of process in the sense described in the authorities.

224.  In my view, the nature of civil litigation is that if a party’s claim or defence succeeds, then in all likelihood the court has rejected the opponent’s case/evidence (including factual/documentary witness evidence). But it does not follow that bringing the failed claim/defence to trial for determination by the court is necessarily an abuse of process. There is a distinction between a hopeless case and one that is an abuse of process, and it is from the latter rather than the former that one may in appropriate circumstances conclude there has been knowing assistance by the legal representatives to proceedings that are akin to abuse of process.

225.  Here, P plainly thought the Deceased had been seriously wronged, and she sought to use the court’s process to obtain a remedy for the perceived serious wrong. Such belief was borne out by the interlocutory judgments entered against Ds in favour of P. As for the matter of quantum, after lengthy argument by P and D2-D5 and detailed analysis in the Written Judgment / Corrigendum, P successfully established her claims (a)  for dependencies on the Deceased and loss of accumulation of wealth but was shown to have overreached her claims in those respects, and (b)  for funeral expenses and bereavement. In my view, it did not necessarily follow from (a)  above that it was abusive in the sense described in Ridehalgh for P’s solicitors to have advanced such claims. Whether it was so was a fact-specific matter.

226.  It is true that at the end-point of the assessment of damages (in contra-distinction to during the process of the litigation), as a result of this court’s concerns/findings upon overall assessment of the totality of the evidence, including (a)  the Discrepancies between the SWD / HKHA Forms on the one hand and the 4/16/18 Parts and the Mother’s oral evidence to similar effect on the other hand as well as (b)  various other factors (eg (i)  the Mother’s finances as revealed in the HSBC, NCB and BOC Accounts, (ii)  the sufficiency of disclosure or otherwise under declaration in various SWD / HKHA Forms, etc), this court directed the Registrar of the High Court to refer the matter to the Secretary for Justice for his consideration.[207] Further, whilst this court’s assessment of the Mother’s credibility put her in poor light, and further investigation by the Secretary for Justice (and/or by SWD / HKHA)  might possibly reveal abuse on the part of P (but not necessarily in the context of the legal proceedings with which the wasted costs jurisdiction is concerned), it was not necessary for this court to find and this court did not expressly find in the Written Judgment that P’s solicitors knowingly connived in or assisted a deliberately “false” claim or “dishonest” conduct.

227.  If D2-D5 wished for a wasted costs order against P’s solicitors, they had to raise at the 1^st stage a strong prima facie case on specified facts and circumstances that the conduct of P’s solicitors in continuing P’s claim was unreasonable or improper in that they (a)  lent themselves to P’s abuse of process by knowingly enable P’s pursuit of the present action that was akin to an abuse of process (in contra-distinction to merely presenting P’s allegedly hopeless case), or (b)  knowingly performed any act or omission in the conduct of the present action which of itself was akin to an abuse of process. On such premise, I turn to D2-D5’s and Mr Sakhrani’s arguments.

228.  The Lam 3^rd Aff claimed that P owed a duty to the court not to pursue an unmeritorious claim on behalf of P when objective, unambiguous and unequivocal evidence in the shape of the SWD / HKHA Forms clearly indicated P’s pleaded claim or “instructions” were untenable, and there was no basis for P’s solicitors to believe P would be able to beat the Sanctioned Payments in view of the SWD / HKHA Forms placed before the court.[208]

229.  I have 3 observations in relation to this contention. First, I am not persuaded the SWD / HKHA Forms (which D2-D5 was the claimed countervailing evidence to P’s case)  could be said to be any incontrovertible or immutable evidence, and it was certainly not “objective” or independent as it was information provided and declared by the Mother herself. In this sense, the present case is quite different from Shahid Muhammad in which the falsity/dishonesty of the plaintiff’s case was obvious as there was clear, objective and independent CCTV recording to show the accident did not happen as the plaintiff in that case claimed. There was no need for any judicial evaluation to ascertain the true facts because the mechanical CCTV footage spoke for itself and incontrovertibly trumped the plaintiff’s pleaded claim, so the plaintiff’s case not only did not have any or substantially any prospect of success, it was obviously unsupportable and false, which the plaintiff’s solicitors should have realised from review of the CCTV footage (retrievable/available from the police)  before trial.[209] I am not persuaded P’s case in the present action fell into such clear and obvious category.

230.  Secondly, the Lam 2^nd/3^rd Affs and Mr Sakhrani’s written submissions drew on this court’s factual findings made at the end-point of the assessment hearing[210] to suggest the unexplained Discrepancies between the SWD / HKHA Forms and the 4/16/18 Parts / RSoD raised “serious credibility issues” such that P’s pleaded claim was untenable.[211] Whilst the 18/12/20 Instructions indicated P’s solicitors did indeed recognise the Discrepancies were major weaknesses in P’s case, this of itself was not enough for raising a strong prima facie case for granting a wasted costs order. As explained in paragraphs 213-217 above, one should not transport too hastily this court’s eventual findings pursuant to evaluation of the totality of the evidence at the end-point of the assessment hearing into a conclusion that during the course of the litigation and before eventual judicial evaluation / finding P’s solicitors knew P’s case was hopeless and then infer P’s solicitors must have knowingly advanced P’s claim that was akin to an abuse of process. I have also explained why a hopeless case, without more, does not invite a wasted costs order against the solicitor who presents such hopeless case for his client,[212] so one cannot elide a solicitor’s presentation of his client’s weak/hopeless case (which is permissible)  into a conclusion that he is lending assistance to or enabling proceedings that are akin to an abuse of process (which is not permissible).

231.  Thirdly, P’s own SWD / HKHA Forms as supported by her own declarations and the Mother WStmt / RSoD as verified by her own SoTs were in the nature of inconsistent statements. As explained in Commentaries 2 and 4 of Principle 10.03 in The Hong Kong Solicitors Guide to Professional Conduct,[213] (a)  it is for the court and not the solicitor to enquire whether the client is telling the truth or to assess the truth or otherwise of his statement evidence, and (b)  it is not a ground for the solicitor to cease to act further for the client if the latter makes inconsistent statements to former.

232.  As explained in paragraphs 86-93 of the Written Judgment, the proper approach towards prior inconsistent forms/declarations is not to regard them as so immutable that subsequent discrepant averments in the pleadings and in the statement evidence must ipso facto be rejected as false or dishonest. There is no evidential/legal rule that precluded “going behind” the SWD / HKHA Forms (ie pre-existing forms and declarations that the Mother gave to the government authorities). In paragraphs 87-88 of the Written Judgment, I took the view that Seagroatt J’s observations in Yim Fat Fong v Wong Kim Hung & anor[214] do not preclude looking beyond the documents submitted to the IRD although the learned judge did not need to do so in that case. I followed (as did Bharwaney J in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased v Liu Chun Pong & anor[215])  the approach explained by Reyes J in Christopher Gordon Young v Lee Chu,[216] ie (a)  it is a matter of evidence, (b)  the court is bound to investigate the actual facts, and (c)  the past picture painted by the forms/declarations submitted to the government authorities cannot bind the judge, who may at the end of the day find the true state of affairs is as stated in such forms/declarations or something other than that depicted therein. Thus it was necessary to consider, as put by Reyes J, “the totality of the proving material before [the judge]”[217] or to investigate, as put by this court, “what the real facts were upon considering the totality of the evidence”[218] in deciding on the evidence whether this court should not accept as true the information the Mother gave and verified by her declarations in the SWD / HKHA Forms.

233.  This court then proceeded to consider the totality of the evidence as set out and discussed in the Written Judgment, and concluded from such analysis that the true position was stated in the SWD / HKHA Forms (save for the parts I have rejected). As Mr Kwan pointed out in his written submissions, I did not simply consider the Discrepanies, and in fact I had also reflected on inter alia (a)  whether P understood the significance of the prior declarations,[219] (b)  whether P appreciated the precise matter that was required to be disclosed in the prior declarations,[220] (c)  how the prior declarations ought to be understood in light of the Deceased SWD Forms,[221] and (d)  how the prior declarations should be read in light of P’s conduct in voluntarily cancelling CSSA.[222] I have also taken into account the overall credibility/reliability of the Mother as witness on other aspects of her case, including eg the Mother’s/Sister’s expenses, the Mother’s reason(s)  for giving up CSSA, the Mother’s post-natal care work, the Mother’s allegations as to lack of financial support by the Brother, etc.

234.  Whilst I did recognise[223] the SWD / HKHA Forms were different from the IRD documents in respect of which other courts were prepared to “go behind” in the authorities cited by counsel at the assessment hearing in that (a)  the claimants in those authorities gave “cogent and credible oral/documentary evidence that convincingly explained how [the IRD documents] came about and how/why they were incorrect” so as to give persuasive evidential basis for the courts to “go behind” them “to find on the facts what the true position was”,[224] but (b)  here, although the Mother WStmt (which the Mother adopted in her evidence-in-chief)  claimed the Deceased took the initiative to give her monthly household family provision that was not documented due to their mother-son relationship, the Mother was constrained under cross- examination at the assessment hearing to accept the contents of the SWD / HKHA Forms were true and correct, which enhanced rather than resolved the Discrepancies in the absence of credible/reliable explanation, these matters (together with other factors/considerations as well as overall witness credibility)  were part of the totality of the evidence that were subjected to this court’s evaluative analysis and eventual judgment at the end-point of the assessment hearing, which led to the conclusion that the information given by the Mother in the SWD / HKHA Forms (save for the parts I have rejected)  should be accepted.

235.  During the course of the litigation before the end-point of the assessment hearing, one might perceive P might have a uphill task and might likely not have prevailed, especially when P did not present statement evidence to explain the Discrepancies. The Lam 2^nd/3^rd Affs complained that such lack of explanation for the Discrepancies showed P had withheld evidence in relation to the SWD / HKHA Forms so there was no or substantially no prospect of success to uphold P’s claim as to the dependencies and to beat the Sanctioned Payments.[225] But in my view, there is a distinction between knowing presentation of false evidence by act or omission (eg keeping the primary SWD / HKHA Forms under wraps)  and not disclosing evidence (eg placing the primary SWD / HKHA Forms before the court but not going further to give explanation)[226] in the then context during the course of the litigation and not with hindsight wisdom learned at the assessment hearing, and it was not for P’s solicitors to believe or disbelieve their client’s instructions or to cease to act even if P made inconsistent statements.[227] Indeed, P’s solicitors, without misleading the court, had no duty to conduct pre-trial screen of P’s case.[228]

236.  I also bear in mind that notwithstanding the Discrepancies, the Mother verified the Mother WStmt / RSoD by SoTs and went on to stand by and adopt the contents of the Mother WStmt at the assessment hearing even though she chose not to offer explanation for the Discrepancies in her examination-in-chief despite further opportunity given to Mr Chong on the 1^st day of the assessment hearing to advise her on the same.[229] P was obviously keen for her claim to proceed and to be determined by the court notwithstanding having received advice by P’s legal team and explanation by this court.[230] Even though P was constrained under cross-examination to acknowledge the accuracy of the contents of the SWD / HKHA Forms, the Mother in her oral evidence still stood by the claimed dependencies as asserted in the Mother WStmt, so ultimately, it was my evaluative judgment of the proving material before the court that led to the factual findings of the actual facts. As explained in Christopher Gordon Young, it was for the court to analyse/weigh the totality of the evidence for determining whether or not to “go behind” the SWD / HKHA Forms. In my view, it was not for P’s solicitors to usurp such function of the court[231], and it was inappropriate to view the conduct of P’s solicitors from the end-point of the assessment hearing through the prism of this court’s findings against the Mother in the underlying proceedings between P and Ds (and not in the context of between P and P’s solicitors)[232].

237.  As discussed in paragraphs 244-250 below, in the absence of waiver of legal professional privilege, I cannot say there was strong prima facie case that P’s solicitors had not advised P on (a)  the impact of the Discrepancies and/or (b)  the evidential effect of not providing an explanation therefor by way of statement evidence. Since D2-D5 advanced their case for a wasted costs order on the premise of unreasonable or improper conduct or other misconduct (and that was how I have addressed it), it seemed right to take into account the fact that the SWD / HKHA Forms, the Deceased SWD Forms and the transaction statements for the HSBC, NCB and BOC Accounts were placed before this court at the assessment hearing without attempt to mislead the court by keeping such documents/evidence under wraps.[233] And as seen from the Written Judgment, this court had considered those documents in detail in coming to the relevant findings. In my view, the present case was quite different from Vernon where the plaintiff’s legal team knowingly decided not to let the trial court know of inconsistent expert opinion by the same expert.[234]

238.  Mr Kwan noted Lam seemed to suggest P’s solicitors were the primary driver of the present action (eg paragraph 5 of the Lam 3^rd Aff claimed P’s solicitors must have reviewed the HKHA Forms, and “…… in breach of its duty to the court, [P’s solicitors] knowingly prepared a witness statement and [RSoD] offering no explanation for the contradictory evidence. They caused [P] to swear an oath on the contents therein ……” (my emphasis)), but submitted this was a mischaracterisation of their role. In my view, there was scanty evidence to show or to infer (in the absence of waiver of privilege)  P’s solicitors advised and/or caused P to refrain from giving any explanation for the contradictions in the Mother WStmt / RSoD in contra-distinction to this being P’s/Mother’s position/stance notwithstanding any advice by P’s solicitors on the merits of the claim and/or on the consequences of the Discrepancies / Sanctioned Payments. It was also difficult to reconcile Lam’s suggestion with (a)  the SP Written Instructions that showed P’s insistence on pursuing her claim notwithstanding advice given to her by P’s solicitors, and (b)  P’s insistence on continuing her claim to formal assessment of damages notwithstanding opportunity given to Mr Chong to advise her on the legal/other consequences of the Discrepancies and this court’s explanation to her in punti language on the 1^st day of the hearing. Thus, I am unable to infer any strong prima facie case that P’s solicitors knowingly “enabled” P to present a “false” or “dishonest” case by way of the Mother WStmt / RSoD, and even less basis to suggest P’s solicitors knowingly “caused” P to verify her “false” or “dishonest” case by SoTs.

239.  Mr Sakhrani next suggested P’s claim was false, dishonest and had no or substantially no prospect of success because it was “inherently incredible”, inherently improbable and/or logically impossible. But such contention was again nothing more than an attempt to rely on the awareness by P’s solicitors of the Discrepancies at the material time and to marry such awareness to this court’s eventual evaluative assessment/findings at the end-point of the assessment hearing (as set out in the Written Judgment)  that rejected P’s claim and the Mother’s statement/oral evidence as to the claimed dependencies, and then to go on and suggest therefore that P’s solicitors must have known the Mother WStmt / RSoD contained “false” information since the SWD / HKHA Forms contained the “truth”.[235] Likewise, paragraph 8 of the Lam 2^nd Aff seized upon the findings in the Written Judgment made at the end-point of the assessment hearing to transform (a)  a possibility (ie that “if” the declarations in the SWD / HKHA Forms were true, then the contents of the Mother WStmt must be false)  into (b)  “the only inference be drawn” (ie that P’s solicitors turned a blind eye to “this reality”).[236] But it was not for P’s solicitors to investigate, evaluate and/or verify P’s case to assess/resolve the conflict in evidence and/or to impose pre-trial screen of P’s claim when the vitality of her claim that required “going behind” the SWD / HKKA Forms depended upon the court’s consideration/assessment of the totality of the evidence that included the factors D2-5 relied upon (eg the existence of and lack of credible explanation for the Discrepancies), but such factors were not exclusive or exhaustive. Whilst it might have been difficult (or, as Mr Sakhrani suggested, even hopeless)  for P to persuade the court of the vitality of her claim as regards the dependencies, it did not mean P’s solicitors, without usurping the judicial function of assessing the evidence and making the findings at the assessment hearing and without the benefit of hindsight wisdom of such findings, must have known that P’s case in the Mother WStmt / RSoD was necessarily “false” (even when the SWD / HKHA Forms were available)  and would have failed.

240.  In my view, the present case was different from (a)  Tolstoy-Miloslavky in which the plaintiff’s solicitors must have known the new action was the 2^nd or 3^rd set of proceedings by the client that sought to collaterally attack a previous decision and to vex the defendant,[237] (b)  Re Estate of Lau Heung in which the plaintiff’s solicitors issued a useless joinder summons that was unnecessary and hopeless by turning a blind eye to the cashier order actually in his their hands and/or the objective reality known to them that Deng was already in Hong Kong,[238] and (c)  Shahid Muhammad where the objective and independent mechanical CCTV recording clearly demonstrated that the plaintiff’s account of the accident was false and his solicitors should have been aware of such falsity from review of the available CCTV footage.[239] As explained in Wee Soon Kin Anthony, it was not for P’s solicitors to disbelieve or reject P’s story because it appeared improbable; rather their duty would not go beyond “advising [the client] of the folly of making incredible or illogical statements”.[240]

241.  Without viewing the matter with the benefit of hindsight through the prism of this court’s findings at the end-point of the assessment hearing, I am not persuaded there was strong prima facie basis to say, as Mr Sakhrani would have me say, no reasonable solicitor would have concluded otherwise than P’s claim was false/dishonest (eg falsifying or frabricating evidence)  and had no or substantially no prospect of success, and in any event it was not for P’s solicitors to pre-screen P’s claim as a result of inconsistent statements.

242.  Failure to advise?  In any event, I am not persuaded there was sufficient prima facie evidence before the court to infer that P’s solicitors failed to advise P to accept the Sanctioned Payments and to not further prosecute her claim in the present action. The Lam 3^rd Aff claimed (a)  the Pang Aff did not demonstrate P’s solicitors had at any time properly advised P on the Discrepancies and potential criminal/other consequences,[241] and (b)  even though the Pang Aff seemed to suggest P appeared to have confirmed with P’s solicitors by the 18/12/20 Instructions that she understood the weaknesses of her case,[242] it was still unclear whether P’s solicitors properly consulted/advised P at the time when they prepared the reply letter dated 17 May 2019 to D2-5’s solicitors.[243]

243.  In my view, Lam’s stance was not understood. After all, at the 1^st stage under the wasted costs jurisdiction, the burden was on D2-D5 as applicants to raise strong prima facie evidence of unreasonable or improper conduct on the part of P’s solicitors, and not for P’s solicitors as respondent to show cause, explain and/or justify their conduct.[244]

244.  Further, it was plain that any advice given by P’s solicitors to P on the merits or demerits of accepting or rejecting the Sanctioned Payments was subject to legal advice privilege, which privilege belonged to P and hence not for P’s solicitors to waive, so in the absence of waiver of privilege by P, P’s solicitors would be unable to disclose what advice/ warnings they had given to P.[245] Here, P’s solicitors were apparently authorised to waive privilege over instructions received from P pursuant to advice given by P’s solicitors, so the Pang Aff disclosed the SP Written Instructions that rejected the Sanctioned Payments, but in the absence of waiver of privilege beyond this,[246] P’s solicitors could only point to the SP Written Instructions that confirmed “…… 律師已向 [P] 解釋是否合理接受上述款項以最終和解上述的申索 ……”,[247] so they were greatly disadvantaged in answering the allegations in paragraph 242 above, and the court would not have access to privileged materials and would not know the full extent of the materials available to P’s solicitors or the nature of the advice (which was shown to have been given)  as to the strength of P’s case or the merits of accepting or rejecting the Sanctioned Payments. In such circumstances, P’s solicitors would be entitled to the benefit of doubt, which makes it inherently improbable that an adverse conclusion would be reached against them on these issues.

245.  As explained in Ma So So and Medcalf, where there is room for doubt, the respondent solicitor is entitled to the benefit of it, and it is rare for the court to be able to make full allowance or to conclude there is no room for doubt.[248] This was reiterated by DHCJ To in paragraph 9 in Pine Enterprises Limited citing Medcalf:[249]

“10.  The burden is on the applicant to prove the improper conduct of the opponent’s solicitor. The applicant has to prove what the opponent’s instructions were and that based on those instructions the solicitor’s advice or conduct was not justified. Where a solicitor is precluded from disclosing the instructions, I think the fairest way to approach such a situation is to assume, unless proven otherwise, that on those instructions it was not improper for the solicitor to advise his client and to adopt the course he took. The applicant has to prove that the solicitor’s conduct was improper by reference to such instructions which could reasonably be inferred from the solicitor’s conduct and all the evidence available before and during the proceedings. If in doubt, the solicitor shall be given the benefit of it. Sometimes, the non-waiver may present an even greater hurdle for the applicant in proving his case than for the solicitor in establishing his defence.”

246.  Here, not only did P confirm in the SP Written Instructions that in the course of the present action prior to the assessment hearing P’s solicitors had advised her “…… 是否合理接受上述款項以最終和解上述的申索 ……”, on the 1^st day of the assessment hearing (a)  this court stood down the case for Mr Chong to advise the Mother/P on the legal/ other consequences of the Discrepancies between the 4/16/18 Parts in the Mother WStmt and the SWD / HKHA Forms and “to take instructions” from P/Mother, and (b)  this court also took the liberty to explain the above matters in punti language directly to the Mother (who was in court), but P decided to proceed with her claim and with the assessment hearing notwithstanding Mr Chong’s advice and this court’s explanation.[250]

247.  In my view, there was little if any basis for the assertion that P’s solicitors failed to advise P in paragraph 28 above. I also do not ascribe to Mr Sakhrani’s suggestion that the SP Written Instructions were disingenuous in the sense that they were in standard form and said nothing about why P rejected the Sanctioned Payments. It was not for P’s solicitors to waive privilege to disclose either their advice to P and/or P’s reasons for not accepting the Sanctioned Payments[251]. As for the claim that refusal to waive privilege does not preclude a finding of abuse when the particular conduct admits of no reasonable explanation,[252] the true question was whether there was strong prima facie basis for the court to conclude there was nothing P’s solicitors could have said by way of privileged material which could counter that suggestion.[253] As explained above, I am unable to say so. In my view, without sight of such privileged materials and advice, I am not persuaded there would be sound basis for concluding that P’s solicitors had failed to properly advise P on her claim as well as the Sanctioned Payments or that inferentially P’s solicitors failed to render any advice at all or were asserting that there were good or reasonable prospects of success. Medcalf made clear that the court should only come to such conclusion if it is satisfied that there was nothing that the legal representatives could have said by reference to the privileged material which could counter that inference.

248.  Given the confirmations in the SP Written Instructions that advice had been given to P on the merits or otherwise as to whether or not to accept each and every Sanctioned Payment made, there was little (if any)  basis for this court to infer that P was only advised on the weakness of her case by the time of the 18/12/20 Instructions. I reiterate Dillon LJ’s observations in Orchard that even though the successful defendant may have difficulty in showing the plaintiff’s solicitors were guilty of requisite dereliction of duty or serious misconduct as they have no access to privileged material, one must also not forget that the charge against the plaintiff’s solicitors is a serious one with serious consequences which “ought not to rest solely on inference”, and the justification for privilege lies in public policy[254] (see also Persuad in which the court declined to exercise discretion to grant a wasted costs order by taking into account inter alia limited waiver of privilege so that possible relevant matters that might have explained the conduct of the barrister in that case were unknown to the court,[255] and Ratcliffe Duce & Gammer in which the court held that it will be a very exceptional case for the court to infer that a party is abusing the process of the court by pursuing a hopeless case[256]).

249.  Here, in light of the above discussion, the obvious doubts must be resolved in favour of P’s solicitors, and I am not persuaded this case is a “very exceptional case” with strong prima facie evidence to infer abuse of process in pursuing an allegedly hopeless case in the sense described in Ridehalgh when privilege over legal advice rendered had not been waived.[257] In my view, all the court could infer was that P declined to accept the Sanctioned Payments and proceeded to the assessment hearing despite having received advice by P’s solicitors. Jacobs J in Anthony Douglas King & ors warned that if the client does not waive privilege, then a court should be very slow to conclude his legal representatives who allegedly advanced a “hopeless case” were necessarily acting improperly or unreasonably as the court will be unable to reach conclusions as to the advice given.[258] To allow the Para 5 Application to go further would require the court to consider D2-D5’s substantive case with much of the relevant evidence obscured from the court’s view. Whilst legal professional privilege is not a trump card, it is relatively rare for the court to come to a safe or satisfactory conclusion in the absence of waiver of privilege. Here, I am unable to safely assume that the privileged material could not assist P’s solicitors, and I find it unlikely that a wasted costs order would be made on the premise that P’s solicitors failed to timely and properly advise P without seeing privileged material. In my view, this is a factor for not allowing the Para 5 Application to proceed beyond the 1^st stage

250.  To summarise, I am unable to infer that P’s solicitors failed to advise P when (a)  the SP Written Instructions expressly stated P’s solicitors had advised P on the merits/demerits of accepting/rejecting the Sanctioned Payments,[259] (b)  the 18/12/20 Instructions expressly highlighted the Discrepancies as the weakness in P’s case and recorded P’s/Mother’s insistence on proceeding with her case to the assessment hearing for the court’s determination,[260] (c)  the 17/10/19 Letter highlighted the risk of having to return overpaid Interim Payment,[261] (d)  P’s/Mother’s insistence on proceeding with the assessment hearing notwithstanding opportunity given for Mr Chong to advise her of the legal/other consequences of the Discrepancies and explanation given by this court to P in punti language on the 1^st day of the assessment hearing.[262] Further, in the absence of waiver of privilege over the advice that P’s solicitors gave to P, the benefit of doubt must be given to P’s solicitors.[263]

251.  Cease to act?  In light of the above discussions, I agree with Mr Kwan that there was also little basis to say P’s solicitors ought to have ceased to act for P. As explained above, irrespective whether P’s case was weak or even hopeless, without the benefit of hindsight wisdom through the evaluative judicial function of assessing the totality of the evidence, it was not so plain and obvious that presenting P’s case that required “going behind” the SWD / HKHA Forms (despite the unexplained Discrepancies)  was conduct akin to abuse of process. After all, as I have explained above, (a)  while it was the duty to the solicitor to advise his client of the strength or weakness of his case, it is up to the client to accept or reject that advice, and if he sees fit to instruct his solicitor to proceed with a case which the solicitor thinks is weak or doomed to fail,[264] and (b)  I cannot assume P’s solicitors did not properly advise P,[265] and after all it was up to P to decline to follow the advice.

252.  I am not persuaded there was sufficient prima facie evidence that showed P’s solicitors were aware or reckless about any obvious falsity of P’s case to show they had enabled a dishonest or misleading claim so to fall within Commentary 3 of Principle 10.03 in The Hong Kong Solicitors’ Guide to Professional Conduct.[266] This was in contrast to the CCTV recording (ie objective, independent and mechanical evidence that the plaintiff could not “go behind”)  that incontrovertibly refuted the plaintiff’s claim as to how the accident happened in Shahid Muhammad,[267] or to the plaintiff’s solicitors in Re Estate of Lau Heung who turned a blind eye to the cashier order already in their own hands, which incontrovertibly showed Deng was already in Hong Kong to have authorised issuance of the cashier order and to complete the account by 20 December 2020, in order to issue the useless joinder summons to generate costs for themselves.[268] As explained in Pine Enterprises Limited, even in hopeless cases there are strong public policy reasons for the solicitor to continue representing his client than to leave him unrepresented.[269] Indeed, Commentary 1 of Principle 10.05 of The Hong Kong Solicitors’ Guide to Professional Conduct[270] Vol 1 provides that “[a] solicitor should never terminate a retainer without good cause and without reasonable notice”.

253.  Causation  In light of my views that D2-D5 failed to establish unreasonable or improper conduct on prima facie basis, it is unnecessary to deal with the matter of causation, but I proceed to briefly deal with Mr Kwan’s submissions for completeness. I do not think Mr Sakhrani disputed it was for D2-D5 to show a strong prima facie case for establishing a causal link between the solicitor’s conduct and the extent of costs incurred or wasted.[271] I reiterate the principles on the matter of causation in Jackson & Powell on Professional Liability[272] in paragraph 46 above, and “[the] court must ask whether the costs in question would have been incurred on the balance of probabilities but for the lawyers’ conduct, not whether there was a substantial possibility that they would not have been incurred, see Brown v Bennett (No. 2) ……”

254.  Here, the Lam 3^rd Aff claimed P’s solicitors ought to personally pay D2-5’s costs from the date of the Mother WStmt (ie from 25 October 2018)  onwards, but did not expressly particularise or depose the evidence for establishing the requisite causal link. It was plain that P all along insisted on progressing her claim to the assessment hearing for determination by the court (see her confirmation of such instructions in the SP Written Instructions, and her insistence on proceeding with the assessment hearing even after opportunity was given to Mr Chong to advise her on the legal/other consequences of the Discrepancies and this court’s explanation to her in punti language on the 1^st day of the hearing). P was a determined litigant, and I consider it inherently unlikely that the action would have taken any course other than it did based on the parties’ conduct before and at the assessment hearing, and on the evidence that was before the court. It was not D2-D5’s case that P’s solicitors wrongly enabled proceedings to be brought from the start. Their complaint was that costs were wasted upon and after the filing of the Mother/Sister WStmts. D2-D5’s contention was that the proceedings should have been arrested and discontinued at that point at the latest or by timely acceptance of the Sanctioned Payments. But the evidence showed that once having started, P could and would have continued with her claim. The litigation was hard-fought on both sides, and it was always going to turn on the veracity of the Mother’s evidence (which in any event would have required detailed cross-examination preceded by trial preparation). The assessment hearing did proceed, and whilst the Mother was constrained under cross-examination to accept the accuracy of the contents of SWD / HKHA Forms, she also stood by the Mother WStmt and even gave evidence to similar effect. In my view, the likelihood was that the assessment of damages would have proceeded as it did.[273] In my view, it was the assessment hearing itself with consequent findings of fact and credibility by the court that led to resolution of the issues. Although in the Written Judgment / Corrigendum I have criticised the Mother’s evidence including the Discrepancies, I did not expressly find these failings amounted to unreasonable or improper conduct, or misconduct/ default, on the part of P’s solicitors. The evidence suggested that ultimate fault likely lied with P/Mother for the Discrepancies.

255.  Further, D2-D5 did not attempt to carve out D2-D5’s costs that did not turn on P’s claimed dependencies (eg D2-D5’s answer by way of pleadings/evidence in relation to P’s claim for funeral expenses and bereavement, and D2-D5’s evidence on the Deceased’s future notional earnings such as Chak’s/Tang’s statement/oral evidence), and did not explain why these costs were caused or incurred as a result of the alleged unreasonable or improper conduct of P’s solicitors in relation to the Discrepancies. If it were said that P ought to have accepted the Sanctioned Payments in such circumstances instead of progressing her claim to the assessment hearing, then her refusal despite advice could not equate to unreasonable or improper conduct on the part of P’s solicitors. In any event, there was no prima facie basis to show wasted costs extended to D2-D5’s costs of the whole or 80% of the present action (whether after 25 October 2018 or otherwise).

256.  On the facts before me, I do not consider there was need for P’s solicitors to come off the record. In any event, there was no affidavit evidence that provided answer to Mr Kwan’s submissions that even if P’s solicitors ceased to act, P, given her persistence with her claim, would have continued to prosecute her action in any event. Also it was not suggested that D2-D5 would have incurred less costs had P’s solicitors ceased to act and P pursued her claim for damages as a litigant in person (given that she persisted with her claim despite advice by Mr Chong and explanation by the court on the 1^st day of the assessment hearing and that she also stood by the Mother’s WStmt and gave similar evidence notwithstanding the Discrepancies). I do not think such suggestion (if made)  could be supported as detailed cross-examination and closing submissions would have been inevitable. In any event, it would have been difficult to quantify what extra costs (if any)  were incurred if P’s solicitors had ceased to act to justify the summary wasted costs jurisdiction. In my view, these causation arguments are unsuitable for determination in a summary process.

257.  I am satisfied that D2-D5’s claim for a wasted costs order would likely have failed as a matter of causation, and it was probable that they would not have been able to establish the necessary causal link.

258.  Summary process, discretion and proportionality  As explained in Ma So So, D2-D5 had to establish strong prima facie case that the court is likely to exercise its discretion to make the wasted costs order sought. A wasted cost order is primarily concerned with unnecessary costs incurred by the client’s opponent in the litigation, and proportionality has to be kept in mind at all times. The summary procedure envisaged for the wasted costs jurisdiction is narrowly confined, and the court should concern itself with the matter of costs wasted by specified improper or unreasonable conduct or other misconduct/default in the context of the litigation.[274] There was no dispute that the onus is on the applicant to satisfy the court at the 1^st stage hearing that the costs likely to be incurred in litigating the application for the wasted costs order are not likely to be out of proportion to the amount of the costs that are at stake.[275]

259.  But here, on the matter of proportionality that would justify the Para 5 Application to go ahead to the 2^nd stage, there was no indication of the level/amount of the costs claimed and/or the anticipated costs for bringing the Para 5 Application up to fruition at the 2^nd stage so that a prima facie view could be formed as to whether or not the alleged unnecessary costs that were said to have been incurred/caused by reason of the conduct of P’s solicitors would be disproportionate to the costs involved and to be involved in the 1^st and 2^nd stages of the Para 5 Application. Even though the taxation process of D2-D5’s costs under the 4/1/23 Order probably had not commenced or completed, D2-D5 should have been able to identify in advance the approximate level of wasted costs claimed. Further, D2-D5 could have identified/estimated the costs incurred and to be incurred for dealing with the application for wasted costs order as a whole. In this respect, I refer to the observations in Ma So So in relation to the 1^st stage, ie that the court will assess inter alia the proportionality of the evidence, comparing the amount of costs at stake with the likely costs of the application.[276]

260.  Further, the court’s task at the 1^st stage is to consider whether the application as presented is suitable for summary determination as a whole. For the reasons discussed above and the matters canvassed below, I conclude that the Para 5 Application is not suitable for summary determination, and in the circumstances considered as a whole, the court’s discretion should be exercised against the Para 5 Application proceeding to stage 2.

261.  I also bear in mind that the English Court of Appeal in Ridehalgh (as endorsed by Ma So So)  was at pains to emphasise proportionality and to warn that applications for wasted costs orders should not be turned into substantive satellite litigation. As explained above, the relevant facts and materials for D2-D5’s present application for a wasted costs order would turn not on what happened at the assessment hearing but what transpired between P’s solicitors and P in the course of the litigation prior to the end-point of the assessment hearing (eg the causation point itself would need detailed evidence, inference and findings as to what passed between P and P’s solicitors), and there might be complexity as a result of argument over (a)  legal advice and litigation privilege, and (b)  privilege against self-incrimination.

262.  Apart from any dispute over the scope of privilege that would bind P’s solicitors, if there is no waiver of privilege, the enquiry under the Para 5 Application would concern circumstantial evidence as to whether P’s solicitors should or should not have continued/advanced P’s claim, which will be a complex inquiry since it is likely that P and D2-D5 would take different views and the court would have to carry out a balancing exercise. It might require significant aspects of the Written Judgment (which ran to 313 pages)  to be revisited through the prism of this question, which question vis-à-vis P’s solicitors would be different from the issues as between P and Ds that this court addressed in the Written Judgment.

263.  Further, D2-D5 had various themes in support of the Para 5 Application, and their arguments included (a)  P’s solicitors improperly pursued a hopeless case, (b)  the court should infer that no advice had been given to P in respect of her claim and its prospects of success, (c)  otherwise P’s solicitors should have ceased to act, (d)  P’s solicitors knowingly prepared the Mother WStmt / RSoD without explanation and caused the Mother / P to verify the same by her SoTs, and (e)  P’s solicitor knowingly advanced P’s claim by pleading damages and making settlement offer in “extortionate” sums. As Mr Kwan submitted, in considering whether or not to allow the Para 5 Application to go forward to the 2^nd stage in the context of such allegations, a number of factual matters not covered by the Written Judgment / Corrigendum had to be canvassed, especially when P’s solicitors had not had the opportunity to respond to a number of D2-D5’s allegations in the Lam 3^rd Aff, eg (a)  whether P’s solicitors had consulted P when formulating the 17/10/19 Letter,[277] (b)  whether P’s solicitors advised P on the potential criminal consequences of the Discrepancies,[278] and (c)  whether P’s solicitors had ulterior or improper motives,[279] so further evidence (although P’s solicitors could not reveal privileged matters)  would be needed. In my view, it was not unreasonable for P’s solicitors to wish to do so given the seriousness of the allegations against them, and it is also not difficult to envisage that D2-D5 might wish to challenge that evidence in due course. This would add to the view that the exercise would be disproportionate, and I am not persuaded this would be a straightforward and simple case for a wasted costs order that would be amenable to a summary process or determination.

264.  There would also be argument as to the scope of costs to be caught under any wasted costs order that were allegedly caused by the impugned conduct, which might require delving into costs spent/ incurred by D2-D5.[280] In my view, the Para 5 Application was not fit for summary determination, and it was likely that the costs to be incurred in such exercise would be disproportionate.

(h)  Summary

265.  Quentin Loh J said in Goh Eileen née Chia & anor v Goh Mei Ling Yvonne & anor[281] in relation to the Singaporean wasted costs jurisdiction as follows:

“37.  The rationale for O 59 r 8(1), as the Court of Appeal explained, is based essentially on the consideration that the “litigant should not be financially prejudiced by the unjustifiable conduct of litigation by his opponent or his opponent’s solicitor”: Tan King Hiang v United Engineers (Singapore)  Pte Ltd [2005] 3 SLR(R)  529 at [15]. A similar point is made in Singapore Court Practice 2009 (Jeffery Pinsler gen ed)  (LexisNexis, 2009)  at para 59/8/7. However, the court should bear in mind the potential chilling effect of making solicitors personally liable to bear costs. In Tang Liang Hong v Lee Kuan Yew [1997] 3 SLR 576 (at [78]), the Court of Appeal noted that:

… it must be borne in mind that, in making a show cause order of this nature, the court has to balance two important public interests. In Ridehalgh’s case ([71] supra), Sir Thomas Bingham MR phrased it in this manner at 226: [as quoted in paragraph 103 above]”

266.  For all of the above reasons, I am not convinced D2-D5 has satisfied the requirements under the 1^st stage for this court to allow the Para 5 Application to move to the 2^nd stage. I am not persuaded it is fair and/or appropriate to make the show cause order. In the premises, the Para 5 Application fails.

VI.  PARA 3 APPLICATION

267.  The Para 3 Application sought an order that in case of P’s default under the Repayment Order, P’s solicitors be required to (a)  inform the court the reason therefor, and (b)  affirm to the court whether they had duly advised P there was a chance that the Interim Payment should be repaid to the paying party in case of overpayment. The basis for requiring P’s solicitors to comply with (a)-(b)  above was not addressed in the Lam 2^nd Aff and/or Mr Sakhrani’s written submissions save to say P had failed to return the excess Interim Payment. The Lam 3^rd Aff reiterated P’s failure to return the excess Interim Payment,[282] and suggested P’s solicitors erred in stating in the 17/10/19 Letter that the overpaid Interim Payment “may have to” (可能要)  be repaid to D2-D5 when in fact it must be so repaid.[283]

268.  Order 29 rule 17 of the RHC provides that where a defendant inter alia has been ordered to make an interim payment or has in fact made an interim payment, whether voluntarily or pursuant to an order, the court may inter alia in giving or making a final judgment or order, make such order with respect to the interim payment as may be just, and in particular inter alia (a)  an order for the repayment of the plaintiff of all or part of the interim payment, or (b)  an order for the payment to be varied or discharged. Should the amount of interim payment exceed the amount of the final award for damages, the court would usually order the plaintiff to repay the difference to the defendant who made the interim payment.[284]

269.  As regards the 1^st part of the Para 3 Application that sought an order requiring P’s solicitors to inform the court the reason for P’s default under the Repayment Order, there was simply insufficient basis to assume that P had told or would have told P’s solicitors the reason for default under the Repayment Order. Even if P did tell P’s solicitors as part of her instructions to them in relation to the conduct of the present action (eg seeking legal advice on possible execution or bankruptcy proceedings by D2-D5 against her), such information would be subject to legal professional privilege (whether legal advice privilege or legal litigation privilege). Since such privilege was P’s privilege, it was not for P’s solicitors to waive the same. D2-D5 had not explained how non- compliance by P of the Repayment Order would justify or allow this court to override such privilege and to order P’s solicitors to disclose the reason for P’s default (if known to them).

270.  As regards the 2^nd part of the Para 3 Application that sought an order requiring P’s solicitors to affirm to the court whether they had duly advised P there was a chance that the Interim Payment should be repaid to the paying party in case of overpayment upon her default under the Repayment Order, this was plainly a matter of legal advice by solicitors to their client that would attract legal advice privilege. Again, D2-D5 had not explained how non-compliance by P of the Repayment Order would justify or allow this court to override such privilege (which privilege was that of P and not that of P’s solicitors)  and to order P’s solicitors to disclose their legal advice to P with respect to the consequences of overpayment of the Interim Payment.

271.  Nevertheless, the Pang Aff made limited waiver of P’s legal advice privilege by the 17/10/19 Letter from P’s solicitors to P that stated “…… 若上述案件結案時所判定閣下應得之賠償額少於上述金額, [P] 可能要支付 [P] 多收了 [D2-D5] 的中期付款額給予 [D2-5]”, which detailed the advice by P’s solicitors to P. Such disclosure by way of the Pang Aff rendered it unnecessary to order P’s solicitors to affirm to the court whether they had duly advised P there was a chance that the Interim Payment should be repaid to the paying party in case of overpayment. Lam complained that the advice P’s solicitors gave to P that any overpaid Interim Payment “may have to” (可能要)  be repaid to D2-D5 was not proper advice or was in fact misleading to P.[285] But I am unable to see this complaint as any justifiable basis for the Para 3 Application when P’s solicitor do not owe any duty to D2-D5.[286]

272.  In the circumstances, the Para 3 Application fails.

VII.  CONCLUSION

273.  I therefore dismiss the Dispute Applications being the Para 3 and Para 5 Applications. There is no reason why costs should not follow event. I therefore grant a costs order nisi that costs of and occasioned by the Para 3 and Para 5 Applications (including all costs reserved if any)  be paid by D2-D5 to P on High Court scale to be taxed if not agreed.

Mr Kwan Ping Kan, instructed by Michael Pang & Co, solicitors for the plaintiff

Mr Ashok Sakhrani, instructed by Munros, solicitors for the 2^nd to 5^th defendants

HCPI 939/2017

[2022] HKCFI 3642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 939 OF 2017

________________________

________________________

________________________

RULING ON INTEREST

________________________

I. BACKGROUND

1.  On 11 November 2022, I handed down written judgment in the assessment of damages in the present action (“Written Judgment”), and granted judgment in the sum of $216,265.03 in favour of the plaintiff (“P”)  against the 1^st to 5^th defendants (collectively, “Ds”)  jointly and severally (“Judgment”)  together with a costs order nisi (see paragraph 418 of the Written Judgment”). For convenience, I shall adopt the abbreviations in the Written Judgment.

2.  On the same day as handing down this Ruling, this court also issued a Corrigendum to the Written Judgment (“Corrigendum”). Paragraphs 3-9 and 14 of the Corrigendum concerned clerical or arithmetical errors. The balance of the Corrigendum arose from the date of the Assessment Hearing in March/April 2021 which was erroneously stated in the Written Judgment to be in October 2021 (“Date Error”). P and D2-D5 brought the Date Error to the attention of the court by way of the Joint Submission referred to in paragraphs 5-6 below. Such inadvertent error had implications on the calculations for pre-trial loss of dependency, loss of accumulation of wealth and interest on pre-trial loss of dependency even when the rationale, basis and metholodology of such awards were undisturbed. Hence, this court issued the Corrigendum.

3.  The awards for heads of damages and interest assessed by this court in the Written Judgment as amended by the Corrigendum were as follows (“Awards”):

Description	HK$
Pre-trial loss of dependency	153,000
Post-trial loss of dependency	519,840.00
Loss of accumulation of wealth	265,000.00
Funeral expenses	66,463.70
Bereavement	150,000.00
Interest:
(a)  on pre-trial loss of dependency	6,548.40
(b)  on funeral expenses	31,461.53
(c)  on bereavement	98,040.00
	1,290,353.63
Less EC Sum received	(1,070,038.00)
Total:	220,315.63

4.  At the Assessment Hearing, Mr Sakhrani, counsel for D2-D5, submitted that (i)  funeral expenses in the sum of $18,402 under Form 25 was paid to P on 23 September 2014, and (ii)  the EC Sum was paid on 6 October 2015. Mr Chong (and Mr Ho with him), counsel for P, did not make submissions on (i)-(ii)  above, so the amounts of interest awarded in the Awards (see above paragraph)  premised on (i)-(ii)  above with breakdown in (a)-(c)  below were made on nisi basis (see paragraphs 414-415 of the Written Judgment and paragraphs 28-29 of the Corrigendum)  (“Interest Nisi Awards”):

(a)	Interest on the award for bereavement is awarded at 8%pa from the date of death (12 September 2014)  to the date of judgment herein (11 November 2022)[1] being 8 years and 61 days or 8.17 years, ie $150,000 x 8%pa x 8.17 years = $98,040.
(b)	Interest on funeral expenses is awarded on the partially paid sum of $18,402 at 8%pa from date of death (12 September 2014)  to such payment on 23 September 2014 (12 days)  and on balance sum of $66,463.70 - $18,402 = $48,061.70 from date of death (12 September 2014)  to the date of judgment herein (11 November 2022)  being 8.17 years (see (a)  above)  totalling $31,461.53:
	(i)	$18,402 x 8%pa x 12 days ÷ 365 days = $48.40;
	(ii)	$48,061.70 x 8% x 8.17 years = $31,413.13.
(c)	Interest on pre-trial loss of dependency is awarded at 4%pa from date of death (12 September 2014)  to date of payment (6 October 2015)[2] being 1 year and 25 days or 1.07 years, ie $153,000 x 4%pa x 1.07 years = $6,548.40.

5.  In paragraph 416 of the Written Judgment, I directed the solicitors for P and the solicitors for D2-D5 to jointly write to this court within 14 days from the date of the Written Judgment with copy to D1 (“Joint Submission”)  on the following:

(a)	confirm whether the facts in paragraph 4(i)-(ii)  above were correct, and if not, what were the correct facts as to the dates and amounts of payments made by D2;
(b)	confirm whether the arithmetical calculations of interest in paragraph 4(a)-(c)  above were correct, and if not, submit revised marked-up arithmetical calculations that reflected the Interest Nisi Awards;
(c)	confirm in light of (a)-(b)  above whether the arithmetical calculations of the overall award in paragraph 3 above (then not yet amended by the Corrigendum)  were correct, and if not, submit revised marked-up arithmetical calculations that reflected my overall award;
(d)	confirm when and how the Joint Submission was served on D1.

6.  On 25 November 2022, the solicitors for P and the solicitors for D2-D5 jointly lodged the Joint Submission, and confirmed the Joint Submission upon being lodged with the court would also be served on D1 by ordinary post to his last known address.

II.  JOINT SUBMISSION

7.  There was substantial agreement and common ground between P and D2-D5 both on (a)  factual backround matters that pertained to the Interest Nisi Awards, and (b)  their calculation of the interest awards, so essentially there was 1 outstanding matter.

8.  P and D2-D5 agreed and confirmed the following:

(a)	D2 paid a sum of $70,000 as funeral expenses advance payment to the Mother on 23 September 2014 (ie 12 days from the date of death);[3]
(b)	the EC award for the Mother was paid on 6 October 2015 (ie 1 year and 25 days from the date of death)  and the EC award for the Sister was paid on 7 October 2016 (ie 2 years 36 days from the date of death);
(c)	the pre-trial period was 79 months, so the pre-trial loss of dependency would be $1,500/month x 79 months = $118,500 for the Mother[4] and $500/month x 69 months = $34,500 for the Sister, totalling $153,000;
(d)	pursuant to the order of Master Roy Yu dated 12 September 2019, D2 and D5 had paid a total sum of $550,000 as interim payment to P on 12 September 2019 (ie 5 years from the date of death).

9.  P and D2-D5 had no disagreement on the calculation of interest on the awards for pre-trial loss of dependency and funeral expenses, so the following agreed calculations of interest shall replace the Interest Nisi Awards in paragraph 415(b)-(c)  of the Written Judgment (as amended by paragraph 10 of the Corrigendum):

(a)

Interest on pre-trial loss of dependency: (i)  For the Mother: $118,500 x 4%pa x 1 year and 25 days = $5,064.66; (ii)  For the Sister: $34,500 x 4%pa x 2 years and 36 days = $2,896.11;

(b)

Interest on funeral expenses: (i)  Interest on part of the award for funeral expenses in the sum of $18,402 calculated at 8%pa from the date of death to date of advance payment, ie $18,402 x 8%pa x 12 days = $48.40; (ii)  Interest on the balance of the award for funeral expenses in the sum of $48,061.70 calculated at 8%pa from the date of death to the date of advance payment, ie $48,061.70 x 8%pa x 12 days = $126.41.

10.  The only uncertainty that required ruling from this court concerned the Interest Nisi Award on beareavement. It was agreed that interest on bereavement should be calculated at 8%pa and from the date of death. The debate was whether such interest should be calculated up to the date of the EC award or alternatively the date of interim payment.

11.  The Interest Order Nisi on bereavement was calculated up to the date of judgment (11 November 2022)  since this court was unaware of any interim payment at the time. Since both P and D2-D5 accepted interest on bereavement would at most be calculated up to the date of intereim payment and not to the date of the Written Judgment, the true question was whether interest should be calculated up to the date of the EC award because otherwise interest would be calculated up to the date of interim payment. On this latter point, P and D2-D5 drew my attention to Bristow v Judd.[5]

12.  In Bristow, the plaintiff suffered very serious personal injuries. Liability was not contested and the judge awarded damages in favour of the plaintiff. There were 2 interim payments. The English Court of Appeal declined to give general guidance on the calculation of interest when interim payments on account of damages had been made as the award of interest was discretionary and the facts of each case were likely to differ widely. The calculation of interest in that case was on conventional rates, ie interest on general damages at 2%pa from the date of service of the writ of summons and interest on special damages at half judgment rate from the date of the accident to trial. Beldam LJ (with whom Sir Christopher Slade and Nourse LJ agreed)  held at page Q130 as follows:

“…… I would accept in principle that the payment of an interim award should be taken to be compensation first of all for loss and expense incurred until the date of payment of the interim award. Until an interim payment reduces the amount due for special damage, a plaintiff is entitled to interest at one half of the special account rate on the full amount due, and thereafter to interest at that rate on the amount outstanding. Where an interim is made which exceeds the amount of special damage due on the date it is paid, I see no reason why the balance should not be taken to have been paid in diminution of the compensation payable as general damages. Thereeafter the plaintiff would be entitled to interest at one-half the special account rate on special damages accruing between the date of the interim payment and the date of trial and 2 per cent. on the outstanding amount of special damages ……” (my emphasis)

13.  In my view, in the present case, interest on bereavement should not be calculated up to the date of the EC award. At the Assessment Hearing, it was never D2-D5’s stance that interest on bereavement should be calculated up to the date of the EC award. In paragraph 61(b)  of Mr Sakhrani’s written closing submissions, D2-D5 asked for interest on bereavement to be calculated at 8%pa for 78.5 months (ie from the date of death up to the date of the Assessment Hearing[6] (which period would now be truncated by the interim payment that was necessarily revealed post-judgment to the court in the Joint Submission)  without any suggestion or alternative that interest was to calculated up to the date of the EC award only. D2-D5 was well aware of the EC award as evident from the fact that at the Assessment Hearing Mr Sakhrani asked for interest on the award for pre-trial loss of dependency to be calculated up to the date of the EC Award (see paragraph 61(f)  and footnote 7 of Mr Sakhrani’s written closing submissions). I have not granted leave for the parties to re-argue the rationale, basis or methodology for the awards of interest (see paragraph 417 of the Written Judgment). In my view, this is sufficient to dispose of the matter, and I conclude that interest on bereavement was to be calculated at 8%pa from the date of death to the date of interim payment, ie $150,000 x 8%pa x 5 years = $60,000.

14.  It should be left to another day to deal with the interesting debate (on which I have not received any submissions)  over (a)  whether an EC award under the ECO is by nature different from an award for bereavement (in contra-distinction to an interim payment which necessarily encompasses and is therefore of like nature to an award for bereavement in the same common law action), and (b)  if the EC award and the award on bereavement are different in nature, whether interest on bereavement should be calculated up to the date of judgment or interim payment in the absence of attempt to attribute or “claw back” the EC award for bereavement and/or interest thereon, or calculated up to the date of the EC award in light of section 26(1)  of the Employees’ Compensation Ordinance Cap 282 that provided for reduction of damages awarded in the common law action by the EC award.

III.  CONCLUSION

15.  In the circumstances, the Interest Nisi Awards are varied and made absolute and the awards in paragraph 414 of the Written Judgment (as amended by paragraph 28 of the Corrigendum)  are revised and replaced as follows:

Description	HK$
Pre-trial loss of dependency	153,000.00
Post-trial loss of dependency	519,840.00
Loss of accumulation of wealth	265,000.00
Funeral expenses	66,463.70
Bereavement	150,000.00
Interest:
(a)  on pre-trial loss of dependency	7,960.77
(b)  on funeral expenses	174.81
(c)  on bereavement	60,000.00
	1,222,439.28
Less EC Sum received	(1,070,038.00)
Total:	152,401.28

16.  I therefore grant final judgment in the sum of $152,401.28 in favour of P aganst Ds jointly and severally. The costs order nisi in paragraph 418 of the Written Judgment is maintained.

Michael Pang & Co, solicitors for the plaintiff

1^st defendant, acting in person

Munros, solicitors for the 2^nd to 5^th defendant

HCPI 939/2017

[2022] HKCFI 3429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 939 OF 2017

________________________

________________________

________________________

J U D G M E N T

________________________

I. INTRODUCTION

1.  The plaintiff (“P” or “Mother”)  was the mother and the administratrix of the estate of her son Leung Ho Tin, deceased (“Deceased”), who died in the course of his employment with the 2^nd defendant (“D2”)  as a consequence of the negligence and breaches of statutory duty of the 1^st defendant (“D1”), D2 and the 3^rd to 5^th defendants (“D3”, “D4” and “D5”)  (collectively, “Ds”), their servant(s)  or agent(s)  at 1/F Canopy of Lockhart House, No 441 Lockhart Road, Hong Kong on/about 12 September 2014 (“Accident”). The Deceased was unconscious immediately after the Accident, and was dead before arrival at the hospital. The cause of death was electrocution.

2.  The Deceased left behind the Mother, his elder brother Leung Ho Yin (“Brother”)  and his younger sister Leung Man Yi (“Sister”). His father Leung Kwok Kei (“Father”)  passed away due to disease in 2018.

3.  On 7 September 2017, P commenced the present action against Ds to claim for damages under the Fatal Accidents Ordinance Cap 22 (“FAO”)  and the Law Amendment and Reform (Consolidation)  Ordinance Cap 23 (“LARCO”), interest and costs. P was not legally aided.

4.  D1 was not legally presented. D2’s solicitors were Munros (“Munros”), and D5’s solicitors were Cheung Fung Hui (“CFH”). On 26 March 2019, Munros filed Notice to Act for D3 and D4. On 2 May 2019, Munros filed Notice of Change of Solicitors to act for D5 in place of CFH. Thus, D2-D5 were eventually represented by Munros, and D1 remained self-represented. D1 did not appear and/or participate in the present action.

5.  On 31 May 2018, P entered interlocutory judgment against D1 for damages to be assessed. By a Consent Order dated 29 May 2019, interlocutory judgment on liability was entered in favour of P against D2-5 leaving damages to be assessed. In the circumstances, liability was no longer in issue.

6.  On 21 January 2019, P filed the Revised Statement of Damages (“RSoD”)  as verified by her own statement of truth (“SoT”). On 9 December 2019, D2 and D5 filed their joint Amended Answer to the RSoD (“Amended Answer”). D1, D3 and D4 did not file/serve any Answer to the RSoD. The hearing of the assessment of damages commenced on 24 March 2021 before this court (“Assessment Hearing”). D1 did not attend the Assessment Hearing. Counsel for P were Mr Chong (and Mr Ho with him), and counsel for D2-D5 was Mr Sakhrani.

7.  On 28 March 2021 being the last day of the Assessment Hearing, I granted judgment in favour of D2 for indemnity and/or contribution against D1 in respect of (a)  P’s claim herein and (b)  P’s employees’ compensation (“EC”)  claim in DCEC1944/2015, including costs of both P and D2 together with expenses incurred thereto, with relevant cost orders.

8.  In the RSoD, the pleaded value of P’s claim (excluding interest)  was $9,125,819.07. In his written closing submissions, Mr Chong revised the value of P’s claim (excluding interest)  down to $7,415,629.02. In the Amended Answer, the pleaded value of P’s claim (excluding interest)  was (-$601,636)  after taking into account the EC payments in the sum of $1,070,038 (“EC Sum”). In his written closing submissions, Mr Sakhrani revised the value of P’s claim (excluding interest)  up to (-$174,924)  after taking into account the EC Sum. In short, D2-D5 claimed P was not entitled to any damages, and her claim should be dismissed.

9.  The court was required to assess P’s claims for (a)  pre-trial loss of dependency (if any)  for the Mother and the Sister (collectively, “Dependants”)  and post-trial loss of dependency (if any)  for the Mother under section 6 of the FAO, (b)  loss of accumulation of wealth (if any), and (c)  funeral expenses under section 20 of LARCO. P’s claim for bereavement under section 4 of the FAO in the sum of $150,000 was not disputed. Mr Chong confirmed P would give credit for the EC Sum received.

II.  WITNESSES

10.  Witnesses  The Mother and the Sister gave evidence for P, and D2/D5 called Chak Wai Man (D2’s clerk, “Chak”)[1] and Tang Yau Choi (D2’s foreman and a Master Grade bamboo scaffolder, “Tang”)[2] as their witnesses. Chak did not take part in and could not give details of scaffolding works, but Tang had over 27 years’ experience in scaffolding works by the time of the Assessment Hearing, and was holder of a Construction Workers’ Registration Card, a Construction Industry Safety Training Certificate, and a Master Grade Trade Test Certificate (bamboo scaffolding). Tang left D2’s employ sometime after the death of the Deceased, and D2 ceased operations in 2016.

11.  Witness statements  The Sister adopted her witness statement dated 25 October 2018 (“Sister WStmt”)  as her evidence- in-chief. Chak and Tang adopted their partially redacted witness statements dated 24 and 23 October 2018 respectively (“Chak WStmt” and “Tang WStmt”)  as their evidence-in-chief.

12.  The Mother made her witness statement on 25 October 2018 (“Mother WStmt”), and verified its contents by her own SoT. The Mother WStmt stated inter alia that (a)  after the Mother’s divorce from the Father, the Mother, the Deceased and the Sister continued to live at Room 214 Toa Yuen House, Chuk Yuen (N)  Estate, Wong Tai Sin, Kowloon, Hong Kong (“Flat”)  (paragraph 4), (b)  in the year before the death of the Deceased, he gave the Mother monthly household financial provision (家用)  for her household/living expenses after each salary payment (and he had 2 salary payments each month)  (paragraphs 16 and 18), and (c)  the Deceased gave the Sister pocket money (零用錢)  for her personal expenses (paragraph 17)  (see paragraph 16 below).

13.  P disclosed and adduced in evidence the following documents made, declared, signed and submitted by the Mother (and for convenience I adopt in this Judgment the abbreviations in footnotes 3-4 below):

(a)

in 2012-2018, the Mother gave, declared and signed registration, application, review and/or declaration forms (which were in official standard form)  and submitted them to the Social Welfare Department (“SWD”)[3] to provide required information in respect of her application for and/or continuation of comprehensive social security assistance (“CSSA”), eg the 2013 SWD 2nd Review Form dated 3 September 2013 (C/125-130)  stated inter alia that “…… 此外兒子 [Deceased] …… 搬走, 並拒絕透露其居住地址。[Mother] 家庭沒有收到任何人經濟資助。因為經濟困難, 仍需申請全租津貼 ……”;

(b)

in 2010-2018, the Mother (and sometimes with others)  gave, declared and signed declaration forms (which were in official standard form)  and submitted them to the Hong Kong Housing Authority (“HKHA”)[4] to provide required information about household members of the public housing Flat she rented and their principal income and other income, eg for the 2012 HKHA Declaration dated 10 May 2012 (C/243-250), (i)  in the box for “其他收入 (註九)”[5] “綜援金” (CSSA payment)  was circled with amount of $5,954.32 stated and “親友資助” (financial support from relatives and friends)  was not circled, and (ii)  in the box for “家庭成員” (household member(s))  only the Sister (and not the Brother or the Deceased)  was named.

14.  The Mother explained under cross-examination that (a)  she had to complete and submit standard form income declaration forms to HKHA every 2 years to provide financial information about herself and her family members living at the Flat, and (b)  she knew she had to tell the truth and to sign a declaration to such effect, eg she signed to give the declaration in paragraph 17(f)  below in “Part III: Declaration of the Tenant/Licensee and Household Member(s)  Aged 18 or Above” of the 2012 HKHA Declaration (C/243-250). As evident from footnote 3 above, the Mother had to complete and submit standard form review forms to SWD every year to provide her financial and other information verified by the declaration in paragraph 17(a)  and/or (b)  below.

15.  The Deceased also declared, signed and submitted to SWD 2 declaration forms respectively dated 20 March and 8 September 2013 (“Deceased 2013 SWD 1^st Declaration” and “Deceased 2013 SWD 2^nd Declaration”, collectively “Deceased SWD Forms”),[6] eg the Deceased 2013 SWD 1^st Declaration stated inter alia that “(1)  [Deceased] 並未向 [Mother] (姓名)  給予任何經濟援助”.

16.  The contents of the SWD Forms and the HKHA Forms referred to in footnotes 3-4 above and the Deceased SWD Forms, which essentially asserted inter alia (i)  the Deceased had moved out from the Flat, and (ii)  the Mother did not receive any financial support/ contribution from him, appeared on their face to differ from the following parts in paragraphs 4, 16 and 18 of the Mother WStmt (collectively, “4/16/18 Parts”)  (see paragraph 12 (a)-(c)  above):

(a)	paragraph 4: “…… 離婚後 …… [Mother], [Brother], [Deceased] 及 [Sister] 仍舊住在 [Flat]”;
(b)	paragraph 16 preamble: “…… 其後, [Deceased] 在 …… [D2] 工作時，亦有逐漸增加給 [Mother] 的家用。直至2014年, [Deceased] 平均每月會給予 [Mother] 港幣四千多五千元家用 ……”;
(c)	paragraph 16(1): “[Mother] 並沒有硬性規定 [Deceased] 給予家用，亦沒有規定家用的數目。不過, [Deceased] 工作後一直有增加給予 [Mother] 的家用。[Mother] 相信 [Deceased] 知道 [Brother] 離家後沒有給予 [Mother] 任何家用, 內心希望完成自己及 [Brother] 的責任”;
(d)	paragraph 16(2): “雖然 [Mother] 沒有硬性規定 [Deceased] 給予家用的數目, 不過以 [Accident] 前1年計, [Deceased] 每次收到人工後 (他每月發薪兩次), 均會給予 [Mother] 大概港幣兩千至三千元現金。此外, 有時 [Deceased] 在發薪後亦會帶 [Mother] 和 [Sister] 出外吃飯或買額外的食物及日用品, 由 [Deceased] 付錢。因此, [Mother] 計算 [Deceased] 在 [Accident] 前平均每月給予 [Mother] 港幣五千元家用”;
(e)	paragraph 16(3): “因為 [Mother] 和 [Deceased] 是母子, 而家用是 [Deceased] 主動給予的, 所以 [Mother] 在 [Deceased] 生前沒有以文字記錄 [Deceased] 每月給予家用的數目。不過, 從 [Deceased] 的銀行月結單可見, [Deceased] 收到人工後, 會在一兩天後從銀行戶口提取大部分的薪金, [Mother] 相信他提取薪金後應該將家用交給 [Mother] ……”;
(f)	paragraph 16(4): “[Mother] 收到 [Deceased] 的家用及綜援款項後, 會支付 ……”;
(g)	paragraph 16(5): “據 [Mother] 所見, [Deceased] 下班後一般只在家玩電腦或上網 ……”;
(h)	paragraph 18: “[Deceased] 過身後 …… 家庭失去收入來源 ……”

17.  On the face of the SWD / HKHA Forms, it appeared the Mother as declarant signed to give the following declarations to confirm the truth, accuracy and completeness of the information given in those forms/declarations, and such forms/declarations reminded the declarant of potential criminal and other consequences for falsities and/or omissions:

(a)	in the 2012 SWD, 2013 SWD 1st, 2013 SWD 2nd and 2014 SWD 1st Review Forms, the Mother signed to give the following declarations: “16. 聲明及保證 Declaration & undertaking 本人 (即下方簽署人)  現聲明據本人所知, 本表格以上所列各項有關本人*及本人的其他家庭成員的家庭狀況 (已向本人宣讀, 本人亦完全明白)  是正確無訛。I, the undersigned, DECLARE that to the best of my knowledge and belief, the information and statement given in the above sections (which has been read over to me and well understood by me)  is true and is a complete and accurate statement of my circumstances *and those of the other members of my household. 如以上表內所列的資料有任何改變 (不論屬永久性或暫時性)  ……, 本人將從速向 [SWD] 申報。I undertake to report immediately to [SWD] any changes (being permanent or temporary)  in the particulars contained herein …… …… 本人明白如本人蓄意或存心提供不正確資料或隱瞞任何事項, 或錯誤引導 [SWD], 以圖獲得現金援助, 將有被檢控的可能。I understand that I knowingly or wilfully make any false statement or withhold any information, or otherwise mislead [SWD] for the purpose of obtaining payments, it will render me liable to prosecution. 以上聲明, 已向本人宣讀, 本人亦完全明白。The above statement has been read over to me and well understood by me. …… 17. 鄭重聲明 Solemn declaration 本人 [Mother] 鄭重聲明, 本份覆核表格上的資科完全正確。本人明白凡蓄意提供虛假資料或漏報資料以騙取 [CSSA] 乃屬刑事行為, 除了導致本人喪失領取綜援的資格外, 本人因可能觸犯盜竊罪條例 (香港法例第210章)  而被起訴。任何觸犯盜竊罪的人士, 一經定罪, 最高可被判入獄十四年。I [Mother], solemnly and sincerely declare that all the information in this review form is correct. I understand that the deliberate provision of false information or omission of information in order to obtain [CSSA] by deception is a criminal offence. In addition to the consequence of being ineligible for CSSA, I am liable on conviction to imprisonment for a maximum of 14 years under the Theft Ordinance, Chapter 210.”
(b)	in the 2014 SWD 2nd and 2014 SWD 3rd Review Forms, the Mother signed to give the declarations in (a)  above save that the 1st paragraph in paragraph 16 of such declarations was replaced by the following: “本人 (即下方簽署人)  現聲明自 [2014年03月10日 / 2014年09月04日] 到目前為止, 本人*及本人的其他家庭成員的資料, 除下列外, 並無改變。I, the undersigned, DECLARE that to the best of my knowledge and belief, my circumstances *and those of the other members of my household have not changed since 10th March, 2014 / 04th September, 2014, the date of last declaration, with the following exceptions: ……”
(c)	in the 2017 SWD Declaration, the Mother signed to give the following declaration: “本人 [Mother] …… 為 [CSSA] 個案 (編號 ……)  的 …… 前妻, 現居於 [Flat] …… 謹此聲明: …… 據本人所知和所信, 以上第 *(1)/(2)/(3)/(4)  項資料 (已向本人宣讀, 本人亦完全明白)  均屬真實、完整及準確。本人明白如本人明知或故意作出虛假陳述或隱瞞任何資料, 或誤導 [SWD], 以獲得或協助和教唆他人獲得援助金, 可被檢控。”
(d)	in the 2018 SWD Application Form, the Mother signed to give the following declaration: “申請人的聲明 i. 本人 (即下方簽署人)  現聲明據本人所知, 本表格以上所列各部有關本人的狀況是正確無訛。 ii. 如以上表內所到的資料有任何改變 (不論屬永久性或暫時性)  ……, 本人將從速向 [SWD] 申報。 …… x. 本人明白如本人蓄意或存心提供不正確資料或隱瞞任何事項, 或錯誤引導 [SWD], 以圖獲得現金援助, 將有被檢控的可能。 xi. 本人鄭重聲明, 本份申請表格上資料全屬正確。本人明白凡蓄意提供虛假資料或漏報資料以騙取 [CSSA] 乃屬刑事行為, 除了導致本人喪失領取綜援的資格外, 本人因可能觸犯《盜竊罪條例》(香港法例第210章)  而被起訴。任何觸犯盜竊罪的人士, 一經定罪, 最高可被判入獄十四年。”
(e)	in the 2018 SWD Declaration, the Mother signed to give the following declaration: “本人 [Mother] …… 為 [CSSA] 個案 (編號 ……)  的申請人, 現居於 [Flat] …… 謹此聲明: …… 據本人所知和所信, 以上資料 (已向本人宣讀, 本人亦完全明白)  均屬真實、完整及準確。本人明白如本人明知或故意作出虛假陳述或隱瞞任何資料, 或誤導 [SWD], 以獲得或協助和教唆他人獲得援助金, 可被檢控。”
(f)	in the 2010, 2012, 2014 and 2016 HKHA Declarations, the Mother signed to give the following declaration (and there was a similar declaration by the Mother in the 2018 HKHA Declaration): “第三部份 : 戶主 …… 及18歲以上家庭成員聲明 我/我們同意並聲明: 1. 本申報表內所填報的事項, 全部屬實, 正確無訛。我/我們明白, 根據《房屋條例》 (第283章)  第26(1)(a)  條的規定, 任何人士若就本申報表所需的任何資料明知而向 [HKHA] 作出虛假陳述即屬違法, 一經定罪, 可判《刑事訴訟程序條例》(第221章)  附表8所訂明第5級罰款及監禁6個月 (在修訂本申報表當日, 第5級的最高罰款為法幣50,000元)  。此外, 根據 [HKHA] 的政策, 無論有關人士是否被起訴或定罪, [HKHA] 均可按現行政策引用《房屋條例》(第283章)  第19(1)(b)  條終止有關租約 ……; 2. 我/我們明白, 倘任何時間被發現本申報表上所提供的資料有任何不正確之處 (不論原因為何及不論該等不確資料是否在我/我們明知或蓄意的情況下提供), 在不影響 [HKHA] 任何其他權利或執法行動, 以及在不影響我/我們對所提供資料須負上的任何法律責任的原則下, 我/我們同意在 [HKHA] 書面通知下, 繳付根據正確資料計算出的租金 …… 及差餉, 並補交過往因資料不正確而引致少付的租金 ……; …… 4. 我/我們完全明白本申報表第三及第四部份所載各項條文內容, 並為所申報的資料負上法律責任。我/我們知道, 若未能充份理解上述條款, 可先向所屬屋邨辦事處職員查詢並要求闡釋有關條款, 才簽署作實。 注意: (i)  戶主 …… 及名列第一部分年滿18歲或以上家庭成員須在下方簽署。 (ii)  戶主 …… 須為未滿18歲家庭成員所申報的資料負上法律責任。”

18.  The Mother WStmt did not explain the apparent differences between the 4/16/18 Parts and the SWD / HKHA Forms. At the outset of the Assessment Hearing, this court urged Mr Chong to advise the Mother on the relevant legal and/or other consequences, and stood down the hearing for him to do so and to take instructions. This court also took the liberty to explain the above matters to the Mother (who was in court)  directly in the punti language. After having advised P and taken her instructions, Mr Chong confirmed the Mother intended to adopt the entirety of the Mother WStmt as her evidence-in-chief, but P would not seek leave to lead further oral evidence from the Mother to clarify the apparent differences between the 4/16/18 Parts and the SWD / HKHA / Deceased SWD Forms.

19.  After the Mother as witness took her affirmation in the witness box, her attention was drawn to the 4/16/18 Parts. She was told that were she to adopt the 4/16/18 Parts as part of her evidence-in-chief, she would be confirming the truth/accuracy of their contents under affirmation. The Mother’s attention was also drawn to her declarations in the SWD / HKHA Forms that appeared to confirm the correctness of the information given in such forms, which declarations on their face warned of potential criminal and/or other consequences (eg risk of termination of the tenancy of the Flat and/or risk of ineligibility for CSSA)  for falsities and/or omissions (see paragraph 17 above). Given the potential criminal consequences, this court also informed the Mother of her privilege against self-incrimination. The Mother elected to and did adopt the entirety of the contents of the Mother WStmt as her evidence-in-chief, and confirmed on affirmation the truth and accuracy of its contents (including the 4/16/18 Parts).

20.  Throughout Mr Sakhrani’s cross-examination and Mr Chong’s re-examination, this court time and again reminded the Mother of her privilege against self-incrimination to decline answering questions that touched on the aforesaid apparent differences between the 4/16/18 Parts and the SWD / HKHA Forms that might give rise to potential criminal consequences, but the Mother chose to answer the questions put to her under cross-examination and in re-examination.

III.  EVIDENCE

(a)  Early family history

21.  The Mother was born on 10 July 1962 (and was therefore 59 years old at the time of the Assessment Hearing). She was educated up to Primary 6 level. She married the Father in 1985. They had 2 sons (ie the Brother and the Deceased)  and 1 daughter (ie the Sister)  (collectively, “Siblings”).

22.  The Brother was born on 14 September 1989. The Deceased was born on 20 September 1990 (and was 23 years old when he died). Since late 1990, the Mother, the Father, the Brother and the Deceased resided at the Flat. After the Sister was born on 4 February 1999, she also lived there. The Mother and the Father divorced in 2004. The Father moved out of the Flat after the divorce, and the Mother and the Siblings continued to live there.

(b)  Mother

23.  In the Mother WStmt, the Mother claimed she was a housewife, and she had not worked since her marriage except occasionally helping her sister out as a post-natal care worker. The Mother WStmt went on to say that after her divorce, the Father was responsible for part of the Sister’s living expenses, but not those of the Mother, the Brother and the Deceased.[7] The Mother successfully applied for CSSA, and since 19 May 2003 (see the 2018 SWD Declaration dated 6 December 2018 (C/144))  she received monthly CSSA payments to support daily expenses.

(c)  Brother

24.  The Mother claimed the Brother started working after he completed Form 3. The Mother WStmt stated the Brother first worked as a takeaway worker, and gave the Mother several hundred dollars a month as household financial provision (家用). The Mother clarified under cross-examination that the Brother actually gave her about $200- $300/month at the time.

25.  The Mother WStmt stated the Mother suggested to the Brother to obtain an electrical worker licence, and he followed her suggestion. The Mother said under cross-examination that (a)  the Brother obtained his electrical worker licence when he was about 18 years old and, as far as she could remember, it was about 3 years after he joined his employer’s company, and (b)  after obtaining his electrical worker licence the Brother worked as an electrical technician, but she had no idea about his earnings.

26.  In the Mother WStmt, the Mother claimed (a)  the relationship between herself and the Brother was not harmonious and they often argued at home, (b)  he ceased to give her household financial provision (家用)  after he obtained his electrical worker licence, and (c)  he moved out from the Flat in/about 2012.

27.  The assertion in the Mother Stmt that the Brother moved out from the Flat in/about 2012 did not sit with (a)  “Part I: Household Income (HK$)” of the undated 2010 HKHA Declaration (C/235-242)  given by the Mother to HKHA in which the Mother described herself as tenant of the Flat and named only the Sister (and not the Brother or the Deceased)  as “Household Member” (家庭成員), and (b)  the 2018 SWD Declaration dated 6 December 2018 (C/144)  given by the Mother to SWD in which the Mother declared that “…… [Father / Brother] 2005年9月尾搬走, 沒有聯絡電話, 沒有給家用 ……”

28.  The Mother testified under cross-examination that by 2009 (ie the year before the Deceased committed criminal offence(s)  – see paragraph 34 below)  the Brother had already moved out from the Flat to stay at his friend’s place on on-and-off basis, and returned to the Flat only for occasional stays. Still later, the Mother gave evidence under cross-examination that at the time when the Brother obtained his electrical worker licence, (a)  he was already staying at his friend’s place and would only occasionally return to stay at the Flat, and (b)  he ceased to give the Mother any household financial provision (家用)  even for his meals and occasional stays at the Flat. The Sister agreed under cross-examination that after the Brother moved out (but she did not say when), he occasionally returned to the Flat for dinner.[8]

29.  The Mother said under cross-examination that the Brother was very caring of the Deceased as well as the Sister when she was young. She said (a)  the Brother and the Deceased had a very close relationship, (b)  when the Brother worked as an electrical technician he took the Deceased out for meals, but (c)  she had no idea whether the Brother (when he worked as an electrical technician)  gave the Deceased any money when he returned to the Flat, and (d)  the Deceased did not tell her whether the Brother (when he worked as an electrical technician)  gave him money every month. The Mother also testified that (i)  as far as she could see, the relationship between the Brother and the Sister between 2009 and 2014 was good too, but (ii)  she had no idea whether the Brother (when he worked as an electrical technician)  left any money for the Sister when he returned to the Flat, and (iii)  the Sister did not tell her whether the Brother (when he worked as an electrical technician)  gave her money every month.

30.  But the Sister said under cross-examination that when the Siblings were younger (ie before the Deceased went to prison for committing criminal offence(s)  in 2010), she had better relationship with the Deceased than with the Brother who seldom took care of her. She claimed that rather it was the Deceased took greater care of her, and disagreed that the Brother was a caring older brother who kept an eye out for her.

(d)  Sister

31.  The Sister was a student at PHC Wing Kwong College until she completed Form 5 in June 2017, so she was still a student when the Deceased passed away in 2014.

(e)  Deceased’s work/residence

32.  The Mother WStmt claimed the Deceased was educated up to Form 3, and quitted school in the 1^st term of Form 4. After quitting school, he worked as an attendant at an internet bar. The Mother claimed her relationship with the Deceased was relatively better than that with the Brother. When the Deceased worked at the internet bar, he gave several hundred dollars a month to the Mother as household financial provision (家用). In/about 2008-2009, the Mother thought the Deceased should acquire a specialised skill to equip himself for the future as his income from the internet bar was limited. Since the Brother followed her suggestion to obtain an electrical worker licence, the Mother made the same suggestion to the Deceased, but he was unwilling. Later, the Mother suggested to the Deceased to obtain a plumber licence, but he was again unwilling. He finally agreed when at last the Mother suggested to him to obtain a scaffolding worker licence. The Mother said under cross- examination the Deceased then completed a scaffolding course ran by the Vocational Training Council (“VTC”).

33.  By 2009,[9] the Deceased obtained his Construction Industry Safety Training Certificate, his Intermediate Grade Trade Test Certificate (bamboo scaffolding)  and his Intermediate Grade Trade Test Certificate (metal scaffolding)  (and he had his Construction Workers Registration Card). The Mother WStmt claimed that according to the Mother’s recollection, after the Deceased obtained his Intermediate Grade Trade Test Certificates (bamboo / metal scaffolding), he worked at a scaffolding factory arranged by the VTC.

34.  In/about 2010, the Deceased committed criminal offence(s)  and was imprisoned, so he could not continue with scaffolding work. The Mother said under cross-examination that when the Deceased was imprisoned, she received monthly CSSA payment of/about $5,900/month for herself and the Sister, and the government settled the rent for the Flat. This was consistent with “Part I: Household Income (HK$)” of the undated 2010 HKHA Declaration (C/235-242)  that stated the Mother (tenant of the Flat)  was a housewife with no income other than CSSA payment of $5,982.12/month. Under cross-examination, the Mother confirmed (a)  she did not tell the Brother there was financial hardship due to the Deceased’s imprisonment, (b)  she did not ask the Brother whether he could financially support her, and (c)  the Brother did not pay her any money/contribution to supplement her household/living expenses and/or to help with the Sister’s expenses. When asked whether/how she was able to manage, the Mother said that “[starting] from 2013 and also lasted until 2014, the inflation was high [百物騰貴] and …… things were not as expensive in 2012”. As regards the comparative situations in 2012 and 2013/2014, the Mother under re-examination explained “百物騰貴” meant “…… [she] just know that there were two markups for cigarette purchase and as well as there was markup of electricity charge …… Even the prices for food went up a lot ……”

35.  According to the Mother WStmt, after his release from prison, the Deceased lived at a halfway house arranged by the Correctional Services Department called Phoenix House. The restricted work/rest times at Phoenix House were unsuitable for the Deceased to take up scaffolding work, so in 2011-2012 the Deceased worked as a kitchen staff at Hong Kong Ajisen Co Ltd (“Ajisen”). According to the employer’s return dated 9 April 2013 that Ajisen submitted to the Inland Revenue Department (“IRD”)  for employment of the Deceased as a kitchen staff (C/326), the Deceased earned about $11,094 for 3 weeks in 1-22 April 2012, but the Mother confessed under cross-examination she had no idea how much he was paid. In both the Mother WStmt and under cross-examination, the Mother claimed that when the Deceased worked at Ajisen, he gave her $1,000-$2,000/month as household financial provision (家用). The Mother further testified under cross-examination that the Deceased made such provision for her to buy cigarettes (for her)  and to buy food for evening meals (for her, the Sister and the Deceased), which provision was also spent on “telephone fees” and female sanitary products for herself and the Sister.

36.  When the Deceased left Phoenix House and was a free man in 2012, he quitted his job at Ajisen. According to the employer’s return dated 9 April 2013 submitted by Ajisen to the IRD (C/326), the Deceased’s last date of employment with Ajisen was 22 April 2012. Under cross-examination, the Mother at one stage agreed it was sometime at/about the end of April 2012 that the Deceased was released from Phoenix House, but she later said she was not sure whether he had been released from Phoenix House and was a free man by 10 May 2012 (ie the date when she gave the 2012 HKHA Declaration (C/243-250)), but by then the only persons who lived at the Flat were herself and the Sister.

37.  In “Part I: Household Income (HK$)” of the 2012 HKHA Declaration dated 10 May 2012 (C/243-250), the Mother (named as tenant of the Flat)  stated she was a housewife with no principal income, which information she confirmed under cross-examination to be correct. Then, in the options within the box for “Other income” (ie pension, CSSA payment, maintenance fee, financial support from relatives and friends (親友資助), and others), only “CSSA payment” was circled with the amount of $5,954.32 stated. The Mother confirmed under cross- examination that such sum was exclusive of housing allowance,[10] but inclusive of education/travel allowances for the Sister. So the Mother also confirmed under cross-examination that throughout 2012 she received about slightly over $7,000/month (CSSA payment of $5,954.32 and housing allowance of $1,167 – see footnote 10 above)  from the government for herself and the Sister.

38.  Although the Mother could not remember the exact amount she received from the government in 2013, she believed it would have been similar to about slightly over $7,000/month (inclusive of public housing allowance for settling her rent for the Flat). Similarly, in the box for “Other Income” under “Part I: Household Income (HK$)” of the 2014 HKHA Declaration dated 30 September 2014 (C/251-258), ie about 2 weeks after the Deceased passed away, again only “CSSA payment” (out of various printed options including “financial support from relatives and friends” (親友資助)  and “others”)  was circled with the amount of $5,219 stated, which sum (according to the Mother)  was the monthly CSSA payment (exclusive of rent for the Flat that was settled directly by public housing allowance)  she received. The Mother further confirmed it was she who provided the information in the 2014 HKHA Declaration. I also note that in the 2012/2014 HKHA Declarations, the only person named as “Household Member” (家庭成員)  in “Part I: Household Income (HK$)” therein was the Sister (and not the Brother and/or the Deceased), but as a student she had no income to declare.

39.  Under cross-examination, the Mother confirmed (i)  she as applicant for CSSA gave SWD information about her household as set out in the 2012 SWD Review Form dated 13 September 2012 (C/138-142), (ii)  she signed at the bottom of each page of such form, (iii)  she gave the following information in such form through conversation with 2 SWD officers who were respectively witness and investigating officer (see (g)  below), and (iv)  the SWD officer(s)  helped to put down onto such form the information she gave them:

(a)	paragraph 2 (family members’ personal data): The form gave information about the Sister in this paragraph. Under cross-examination, the Mother confirmed the Sister was her family member (家庭成員)  living at the Flat.
(b)	paragraph 5 (capital assets (including those in Hong Kong, Macao, Mainland China or overseas)): This paragraph in the form set out the Mother’s capital assets, including (i)  her cash sum of $1,000, (ii)  her bank savings of $1,293.48, and (iii)  nil in respect of (1)  cash value of insurance policy, investments in stocks and shares and readily realisable assets, (2)  valuable possessions, (3)  land / owner occupied property / non-owner occupied property, and (4)  other assets. Under cross-examination, the Mother confirmed the above information given by her was truthful and accurate.
(c)	paragraph 7 (education / child care centre expenses): This paragraph in the form set out information concerning the Sister’s “general expenses” and “[meal] allowances (for full-day student)”, and also named her school. Under cross-examination, the Mother confirmed the above information given by her was truthful and accurate, but she pointed out that the Sister attended half-day school.
(d)	paragraph 8 (travel expenses): This paragraph in the form set out the Sister’s travel expenses, including the purpose, period, route, trips per month, fare per trip and total amount per month. Under cross-examination, the Mother confirmed the above information given by her was truthful.
(e)	paragraph 10 (income of applicant and household members from all sources (申請人及家庭成員從所有來源的收入)): The form stated inter alia in paragraph 10(c)  that “[contributions] from relatives and friends” (親友的津助)  was “Nil” (沒有), and in paragraph 10(e)  that “[other] sources” were “Divorce Payment (Maintenance)” from “13/07/2004 – now” by the Father at “$0.08 (Monthly每月)”. For paragraph 10(c), under cross-examination the Mother initially appeared to query who were her “relatives and friends” but eventually confirmed the above information in the form given by her was accurate, and in re-examination she reiterated there were no contributions from relatives/friends and she knew the meaning of “親友”, ie friends and relatives. For paragraph 10(e), the Mother claimed under cross-examination that she never received maintenance payment from the Father.
(f)	paragraph 15 (other information): This paragraph in the form gave the following information: “[Mother] 現仍只與 [Sister] 同住上址。[Mother] 仍全職在家照顧 [Sister], 沒有任何工作或收入。 [Sister] 升讀五旬節聖潔會永光書院中2班, 申請午膳及就學車費津貼。[Sister] 沒有向學生資助辦事處申請任何津貼。 [Mother] 家庭沒有收到任何人經濟援助。 [Mother] 已多年沒與 [Father] 聯絡。 兒子 [Deceased] 和 [Brother] 搬走, 並拒經透露其居住地址。 因經濟困難, 仍須申請全租津貼。 [Mother] 家庭除已申報之銀行戶口外並無其他銀行戶口或任何可變換現金值之財物及資產。[Mother’s signature] 明白需要即時通知社署有關家庭轉變情況。 要求繼續申請援助金。” (my emphasis) The Mother confirmed under cross-examination that the above information (particularly the italicised parts)  was accurate and correct. She added that she had asked her sons for their addresses but they refused to tell her, so she only knew they were not living together, but did not know their addresses. Under cross-examination, the Mother initially said the Deceased stayed with his friend, but she later clarified that in 2012 he occasionally stayed with his girlfriend and occasionally stayed with another friend. In re-examination, the Mother could not remember precisely when the Deceased started to live at his girlfriend’s place but it was roughly about 2011. After he moved to his girlfriend’s place, he would come back to the Flat after work, have a shower and stay for dinner, and then he would go to his girlfriend’s place. The Mother claimed the Deceased came back to the Flat for dinner every evening after work, which continued until he passed away. The Sister recalled under cross-examination that the Deceased stayed at his girlfriend’s place and also stayed at the Flat on on-and-off basis, but there came a time when he spent every night either with his girlfriend or another friend, and he would just return to the Flat for dinner. But the Sister could not remember (1)  when this happened (eg whether before or after he went to prison), and (2)  how long the Deceased had his girlfriend (but she recalled having met his girlfriend when she was still in secondary school).
(g)	paragraph 16 (declaration and undertaking): This paragraph in the form set out the “declaration & undertaking” in paragraph 17(a)  above. Under cross-examination, the Mother confirmed she signed underneath such paragraph to give such declaration and undertaking in the presence of a SWD officer as witness (with rank/position of “SSSA”), and a SWD investigating officer who counter-signed at the same time when she signed. Although the Mother could not remember, it appeared the SWD investigating officer with rank/position “Acting SSSA” was a different officer from the SWD officer who acted as witness.
(h)	Paragraph 17 (solemn declaration): This paragraph in the form set out the solemn declaration in paragraph 17(a)  above. Under cross-examination, the Mother confirmed she signed underneath such paragraph to give such declaration.

40.  In the 2013 SWD 1^st and 2^nd Review Forms dated 18 March and 3 September 2013 respectively (C/132-136 and C/125-130)  given, declared and signed by the Mother, she gave the same information as in paragraph 39(a)-(h)  above save that the cash sum and savings amount in paragraph 39(b)(i)  and (ii)  above were updated to $500 and $2,030.88 (2013 SWD 1^st Review Form)  and $1,500 and $3,084.38 (2013 SWD 2^nd Review Form)  respectively. She also signed at the bottom of each page and under the declarations in paragraph 17(a)  above in such forms.

41.  In the Mother WStmt, the Mother claimed that after the Deceased left Ajisen, he joined Tai Luen Scaffolding Factory Limited (“Tai Luen”)  as a scaffolder on/about 9 July 2012. As seen from the employer’s return dated 30 April 2014 filed by Tai Luen (C/328), the Deceased worked for Tai Luen till 15 August 2013. According to his employment contract with D2, the Deceased commenced employment with D2 as an Intermediate Grade scaffolder on 16 August 2013, and he worked for D2 until the date of Accident. Under cross-examination, the Mother said she was not clear about Tai Luen / D2, and all she knew was that the Deceased went to work at the same place/address.[11] The Mother WStmt claimed the Deceased worked from Monday to Saturday, and on each work day he started work at/about 8:30am and went off work at 6:00pm with occasional overtime work. The Deceased was not required to work on Sundays and public holidays.

42.  According to the employer’s return by Tai Luen dated 30 April 2013 (C/327), the Deceased was employed as a scaffolding worker, and earned $93,920 during the period from 9 July 2012 to 31 March 2013, ie about $10,800/month. According to the employer’s return by Tai Luen dated 30 April 2014 (C/328), the Deceased was employed as a scaffolding worker, and earned $56,500 during the period from 1 April 2013 to 15 August 2013, ie about $12,550/month. According to the undated employer’s return by D2 (C/329), the Deceased was employed as a scaffolding worker, and earned $81,090 during the period from 1 August 2013 to 31 March 2014 (C/329), ie about $10,812/month. According to the Deceased’s employment contract with D2, his daily wage was $530. It was P’s case that the Deceased’s food subsidy was $50/day, but the Chak WStmt stated his food subsidy was capped at $50/day. In any event, it was common ground between P and D2-D5 that in the 12 months prior to his death the Deceased earned about $12,518.33/month (inclusive of food subsidy). The Mother said under cross-examination she had no idea about the Deceased’s earnings.

(f)  Household financial provision (家用)

43.  According to the Mother WStmt, when the Deceased worked at the internet bar, he gave several hundred dollars a month to the Mother as household financial provision (家用)  (see paragraph 32 above). There was no evidence whether the Deceased gave any household financial provision (家用)  to the Mother when he worked at the scaffolding factory introduced by the VTC in/about 2008/2009 (see paragraph 32 above). Obviously, the Deceased had no income and could not give household financial provision (家用)  to the Mother when he was imprisoned in 2010/2011 (see paragraph 34 above). There was no evidence that the Deceased separately gave any pocket money (零用錢)  to the Sister during the above periods. In both the Mother WStmt and under cross- examination, the Mother claimed that when the Deceased worked at Ajisen (from 2011 to 22 April 2012)  and earned $11,094 during 3 weeks in April 2012, he gave her $1,000-$2,000/month as household financial provision (家用)  (see paragraph 35 above).

44.  Mr Chong in his written closing submissions suggested there were gradual increases in the Deceased’s household financial provision (家用)  when he worked at Ajisen, but in fact the preamble in paragraph 16 of the Mother WStmt stated there were gradual increases when the Deceased worked at Tai Luen (from 9 July 2012 to 15 August 2013 earning about $10,800/month – see paragraph 42 above)  and D2 (16 August 2013 to 12 September 2014 earning on average $12,518.33/ month inclusive of food subsidy – see paragraph 42 above)  rather than when he worked at Ajisen (see paragraph 35 above). Consequently, when the Mother in paragraph 16(1)  of the Mother WStmt said the Deceased had increased the amount of household financial provision (家用)  he gave her since he started working (see paragraph below), in my view she was referring to alleged increments made when he changed jobs (see paragraph 43 above).

45.  In the Mother WStmt, the Mother claimed she did not impose any hard and fast rule that the Deceased must give her household financial provision (家用)  and/or she did not impose the amount thereof, but since the Deceased started working he had increased the amount of the household financial provision (家用)  that he gave her (see paragraphs 43-44 above). The Mother claimed the Deceased knew the Brother did not provide any household financial provision (家用)  to her after he left home, so the Deceased wished to take up his own responsibilities and those of the Brother.

46.  The Mother in the Mother WStmt further claimed that even though there was no hard and fast rule as to the amount of household financial provision (家用)  for the Mother, (a)  in the year before the Accident (ie 2013-2014)  the Deceased gave her about $2,000-$3,000 when he received salary (and he received salary twice a month), and sometimes he would take the Mother and the Sister out for meals and/or he would buy extra food and household goods when he received his salary, (b)  in 2014 he would give the Mother on average $4,000-$5,000/month as household financial provision (家用)  (ie “…… 直至2014年, [Deceased] 平均每月會給予 [Mother] 港幣四千多五千元家用 ……”), and (c)  just before the Accident he would give the Mother on average $5,000/month as household financial provision (家用)  (ie “…… 因此, [Mother] 計算 [Deceased] 在 [Accident] 前平均每月給予 [Mother] 港幣五千元家用 ……”).

47.  The Mother WStmt also claimed that given the voluntary nature of the Deceased’s household financial provision (家用)  for the Mother and the mother-and-son relationship, the Mother did not record in writing the amount of household financial provision (家用)  the Deceased gave her each month. But the Mother claimed the monthly bank statements of the Deceased’s bank account (“Deceased’s Account”)  with Hang Seng Bank Limited (“HSB”)  showed he withdrew most of his salary within 1-2 days after receiving it, so the Mother believed he gave her household financial provision (家用)  after withdrawing his salary from the Deceased’s Account. But the Mother confessed under cross-examination that she did not have documentary proof to support her assertion that the Deceased gave her $4,000-$5,000/month or $5,000/month as household financial provision (家用)  (see paragraph 46(a)-(c)  above).

48.  The Mother WStmt stated that after the Mother received the monthly CSSA payment and the Deceased’s monthly household financial provision (家用), she would defray the Flat’s water, electricity and gas expenses, the family’s food expenses, and the Sister’s pocket money and daily expenses, etc.

49.  The Mother also said in the Mother WStmt that she knew the Deceased gave pocket money (零用錢)  to the Sister before his death. The Sister WStmt confirmed this, and added that (a)  when the Deceased worked as a scaffolder in 2012 (ie when he worked for Tai Luen)  he gave her about $200-$300/month as pocket money, and (b)  in 2014 (ie when the Sister was in Form 2 / Form 3 and when the Deceased work for D2)  the Deceased gave her $500/month in cash as pocket money (once each month on the first few days even though he received salary twice in a month).

50.  During cross-examination, Mr Sakhrani pointed out to the Mother that the effect of her evidence was that whilst the Deceased worked at Ajisen earning $11,094 during 3 weeks in April 2012 from which he gave her $1,000-$2,000/month, at/about the time of his death he was earning an extra $1,500/month (ie his average income was about $12,518.33/month)  but his contribution to the Mother and the Sister jumped from $1,000-$2,000/month to $5,500/month. The Mother explained the Deceased “realised that [her] household expenditure was big. [She had] to pay for the utility bills, [her] three meals, breakfast, lunch and dinner, and telephone bills for [herself] and [Sister] and also the spending on the sanitary items for [herself] and [Sister] and also [Mother had] the habit of smoking ……” When pressed, the Mother said the Deceased did not contribute as much as $5,000/month for her and $500/month for the Sister at the time of his death, but the Deceased would pay when he went to the supermarket. When pressed on how much cash the Deceased would give them just before he died, the Mother said the Deceased gave $3,000-$4,000/month for her and $500/month for the Sister. Under re-examination, the Mother reiterated that after the Deceased got his pay cheque, “…… then he came back and then he would leave the money behind ……”, and this continued until the day before he passed away.

51.  The Mother agreed under cross-examination that the long and short of it was that just before the Deceased died, he was making about $12,500/month, and he gave about $5,500/month (according to the Mother WStmt)  to the Mother and the Sister, which together with CSSA payment of $5,219/month (see Part I of the 2014 HKHA Declaration dated 30 September 2014 (C/251-258))  meant the Mother and the Sister had just under $11,000/month between them (and free rent for the Flat), leaving the Deceased with about $7,000/month.

52.  However, in the 2012 SWD Review Form dated 13 September 2012 (C/138-142)  that was given and signed by the Mother, verified by the Mother’s declaration in paragraph 17(a)  above, and submitted by the Mother to SWD, it was stated in paragraph 10(c)  therein that “[contributions] from relatives and friends” (親友的津助)  were “Nil” (沒有)  (see paragraph 39(e)  above), and in paragraph 15 therein that “…… [Mother] 家庭沒有收到任何人經濟援助…… 兒子 [Deceased] 和 [Brother] 搬走, 並拒經透露其居住地址 ……” (see paragraph 39(f)  above). In the 2013 SWD 1^st and 2^nd Review Forms dated 18 March and 3 September 2013 respectively (C/132-136 and C/125-130)  given, declared and signed by the Mother, she gave the same information as in paragraph 39(e)  above, and she also signed under the declaration in paragraph 17(a)  above in such forms (see paragraph 40 above).

53.  Further, in 2013, the Deceased as declarant and the Mother as witness signed the Deceased 2013 SWD 1^st Declaration dated 20 March 2013 (C/137)  and the Deceased 2013 SWD 2^nd Declaration dated 8 September 2013 (C/131), and such forms/declarations were submitted to SWD. Such forms/declarations stated the Deceased as declarant “謹此聲明 : (1)  [Deceased] 並未向 [Mother] (姓名)  給予任何經濟援助”. The Mother confirmed under cross-examination that the purpose of the Deceased 2013 1^st Declaration was to support her application to SWD for CSSA, and that she had asked the Deceased to sign such declaration. She further said the Deceased asked the Brother to sign such declaration for her but the Brother refused, so the Deceased signed the same. When pressed under cross-examination as to whether the declaration that “[Deceased] 並未向 [Mother] (姓名)  給予任何經濟援助”[12] was true, the Mother sidestepped to say that in 2013 the Deceased paid her money to buy food as he wanted her to live better, and she added that “…… he took [Mother] out to the restaurant and he bought cigarettes for [Mother] ……” But when she was reminded that the Mother WStmt stated the Deceased paid her household financial provision (家用)  in cash twice a month after he received his pay, that until 2014 such household financial provision (家用)  was on average about $4,000-$5,000/month, and that shortly before the Accident it was $5,000/month with extra $500/month as pocket money (零用錢)  for the Sister, the Mother, when pressed under cross-examination, said the Deceased’s declaration that “[Deceased] 並未向 [Mother] (姓名)  給予任何經濟援助” was not correct. Upon re-examination, the Mother claimed (a)  the Deceased 2013 SWD 1^st Declaration was filled in by the Deceased, and (b)  she did not know she had to report the contributions made by the Deceased to SWD / HKHA.

54.  In the 2014 SWD 1^st Review Form dated 10 March 2014 (C/120-124)  given, declared and signed by the Mother, she gave the same information as in paragraph 39(e)  above, and signed at the bottom of each page of such form and under the declaration in paragraph 17(a)  above therein. Paragraph 1 of the 2014 SWD 2^nd Review Form dated 4 September 2014 (C/117-118)  declared that the circumstances of the Mother and those of other members of her household had not changed since 10 March 2014 (ie the date of the last declaration)  with certain exceptions about post-natal care work discussed in paragraph 59 below.

(g)  Deceased’s expenses

55.  In the Mother WStmt, the Mother claimed the Deceased usually played computer games or browsed the internet after he was off work, and he did not have any expensive leisure or hobby. Further, it was said that although the Deceased had a girlfriend before his death, he told the Mother his girlfriend had stable job and income, so he was not required to make financial provision for his girlfriend.

(h)  Deceased’s loans

56.  P disclosed the monthly bank statements of the Deceased’s Account with HSB for the period from 29 August 2012 to 29 September 2014 that were sent to the Flat. There was no dispute such bank statements revealed the Deceased from time to time took out 9 loans (with different loan numbers)  from HSB, ie instalment loan no 024342668787184,[13] loan no 344100250184 (drawn down in sum of $10,000),[14] instalment loan no 024344141940184,[15] loan no 344356399184 (drawn down in the sum of $6,000),[16] instalment loan no 024344550579184,[17] loan no 344606207184,[18] loan advance no CA362814-03 (drawn down in the sum of $35,315.26),[19] loan no 760089482184 (drawn down in the sum of $5,000),[20]and instalment loan no 024760124719184.[21] In fact, there was another loan no 74DB0813-11 drawn down in the sum of $5,524.60 on 8 August 2013 (C/362).

57.  Such bank statements also revealed the Deceased made the following total loan repayments in the following months:

Month	Total amount of loan repayment (HK$)
August 2013	1,995.90 (on pre-existing loans)
September 2013	1,918.70
October 2013	2,430.30
November 2013	2,430.30
December 2013	2,430.30
January 2014	2,430.30
February 2014	2,035.40
March 2014	2,825.20
April 2014	2,430.30
May 2014	1,822.30
June 2014	3,081.90
July 2014	3,081.90
August 2014	3,081.90

58.  The Mother said under cross-examination she would not open letters addressed to the Deceased at the Flat, and she had no idea about his bank account/statements and/or his loans. The Mother did not know why the Deceased had to take out the above bank loans in the 2-year period between September 2012 and September 2014, but she believed (although she agreed she had no personal knowledge)  that the Deceased owed others lots of money for her maintenance and for the Sister’s maintenance.

(i)  Mother’s work

59.  The Mother said under cross-examination that in 2013-2014 she read a post-natal care re-training course that was paid for by government subsidy. In the 2014 SWD 1^st Review Form dated 10 March 2014 (C/120-124)  given, declared and signed by the Mother, she gave the same information as in paragraph 39(a)-(h)  above save that the cash sum and savings amount in paragraph 39(b)(i)  and (ii)  above were updated to $1,500 and $2,421.28 respectively, and she also signed at the bottom of each page of such form and under the declaration in paragraph 17(a)  above therein. Further, paragraphs 10(f)  and 15 of the 2014 SWD 1^st Review Form stated (a)  the Mother received “Retraining Allowance (Income)” on “30/01/2014” in the sum of “$83.20”, and (b)  “…… [Mother] 於30.1.2014存入戶口2153.2元為 [Mother] 參加陪月員的再培訓津貼 ……” Still further, paragraph 1 of the 2014 SWD 2^nd Review Form dated 4 September 2014 (C/117-118)  declared the circumstances of the Mother and those of other members of her household had not changed since 10 March 2014 (ie the date of the last declaration)  with the exception that “[Mother] 曾於4.8.2014至2.9.2014做陪月員, 薪金10000元, 僱主於14.4.2014 先給 [Mother] 5000元薪金作定金, 餘額薪金5000元於3.9.2014存入 [Mother’s] 戶口。之後 [Mother] 沒有工作和收入。[Mother] 要求豁免首月薪金。另外, [Mother] 於28.8.2014自已存入1500元作交費用途。如有多領款項, [Mother] 同意償還”. The Mother confirmed under cross-examination that she did earn $10,000 as post-natal care worker. Apart from such post-natal care job in August 2014, the Mother WStmt also stated “[Mother] 由結婚開始至現今, 除了三幾次幫姐姐暫時擔任陪月員外, 一直是家庭主婦 ……”

60.  The Sister said under cross-examination she knew the Mother had been a post-natal care worker, but she did not know when the Mother took the post-natal care re-training course. The Sister said (a)  she only knew the Mother helped her own sister out by taking care of other people’s babies, and (b)  she came to know this because the Mother once said “…… my auntie was not well -- feeling well, and that’s why she had to help out”. But the Sister had no idea whether the Mother spent the whole of August 2014 working as a post-natal care worker. The Mother did not tell the Sister whether she got paid for assisting her own sister, and the Sister was not sure or had no idea whether the Mother took up post-natal care work to earn money from time to time.

61.  Paragraph 1 of the 2014 SWD 3^rd Review Form dated 16 September 2014 (C/114-115)  declared that the circumstances of the Mother and those of other members of her household had not changed since 4 September 2014 (ie the date of the last declaration)  with the exception that “[Mother] 家庭決定自力更生, [Mother] 決定由1.9.2014取消 [Mother] 家庭的綜援。[Mother] 明白有多領款項, 同意從 [Mother] 戶口扣回償還”.[22]

62.  When the Mother was asked under cross-examination for her reason for cancelling CSSA (which she had had for some years)  at a time that coincided with when she worked as a post-natal care worker, the Mother sidestepped to say “…… because [she has] taken post-natal care course, thinking that it will be helpful to the children. That’s why [she] took it ……”, and went on to clarify that by “the children” she meant “…… the kids of [her] children. So when they have babies [she] could help them out”. When asked by the court on what “自力更生” in the phrase “[Mother] 家庭決定自力更生” (my emphasis)  in the 2014 SWD 3^rd Review Form dated 16 September 2014 (C/114-115)  meant, the Mother gave evidence that “[the] name of the post-natal care course was called 自力更生”. When pressed on the relevance of this to her voluntary decision in/about September 2014 (when the Deceased had just passed away)  to cancel CSSA as from 1 September 2014, the Mother explained that the Deceased died on 12 September 2014, so she went to the SWD office to return CSSA payment and housing allowance received for September 2014 as she felt she should no longer receive government subsidy/allowance when she had her own “income”, and when pressed, she claimed such “income” was not from her work as post-natal care worker but from cheques from charitable organisations.

(j)  Funeral expenses

63.  The Mother WStmt claimed she spent about $60,000 in funeral expenses for the Deceased. As the funeral took place 3 years before the Mother WStmt, some receipts could not be located and therefore could not be produced. Besides, it took time to wait for a public columbarium niche to store the Deceased’s bone ashes, so the Mother placed his ashes in a private columbarium which charged $3,000/year. The Mother foresaw such situation would last 10 years or more before it could be resolved.

(k)  Post-Accident

64.  The Mother WStmt explained that after the death of the Deceased, although the family lost source of income (收入來源)  from the Deceased, D2 paid compensation (presumably EC)  to the Mother and the Sister. The Mother also received insurance pay-outs for the Deceased’s fatal accident on behalf of his estate, so the Mother and the Sister could still cope with their living for the time being.

65.  Under cross-examination, the Mother disagreed she cancelled CSSA because the Brother decided to support her. She claimed that all along the Brother never said he would support her. She gave evidence that “…… [they] had personality clash. So whenever money was mentioned, it was like Mars hitting Earth”. Although the Brother came to the Deceased’s funeral, and (according to the Mother)  inflation was stronger in 2014 than in 2012 such that her expenses in 2014 were much higher (百物騰貴), still the Brother did not give her money after the funeral as household financial provision (家用)  for her and the Sister.

66.  The Mother WStmt stated that after the death of the Deceased, only the Mother and the Sister were the usual residents at the Flat, but the Brother would occasionally return to the Flat for short stays. The Mother said under cross-examination that the Brother never moved back to the Flat, and only spent an odd night there for work reason, ie he only came back to the Flat to stay the night when he had to go to work very early the following morning, and it was on 1 such occasion when he came to stay the night at the Flat that she asked him for financial assistance, but still he did not pay her. According to the Mother’s understanding, at the time when she made the Mother WStmt (ie in 2018), the Brother had a job in Mainland China, but she had no details thereof.

67.  The Sister also said under cross-examination that in the 1-2 years before she studied at City University (see paragraph 70 below), the Brother went to work in Mainland China, and after he started working in Mainland China, he would stay at the Flat whenever he returned to Hong Kong. The Sister also claimed under cross-examination that the Brother did not give her money for daily maintenance when he returned from Mainland China to stay at the Flat.

68.  In “Part I: Household Income (HK$)” of the 2016 HKHA Declaration dated 5 October 2016 (C/259-266), the Mother was named the tenant of the Flat, but she was stated as not having principal income or other income (eg she no longer received monthly CSSA payments). But both the Sister and the Brother were named as “Household Members” (家庭成員). [23] Under cross-examination, the Mother explained that (a)  the Sister was a student in 2016, so the household income of $18,000/month given in such declaration form was the Brother’s earnings, and (b)  she named the Brother as a household member who resided at the Flat in such declaration form because the household card for the Flat bore his name and “[she] didn’t work in 2016. While [Sister] was still student, [Mother had] to submit the monthly payslip of [Brother] to the [HKHA] …… to show that [she] had the means to pay the rent”. When pressed on why the Brother’s name was added as a household member of the Flat in the 2016 HKHA Declaration whereas he was not so named in the 2012 and 2014 HKHA Declarations, the Mother said she did not commit any crime and “[the Brother] came back to stay the night”, but nevertheless she insisted he did not financially support her and the Sister from his declared monthly income of $18,000 even though she did not have CSSA at the time.

69.  Likewise, in “Part I: Household Income (HK$)” of the 2018 HKHA Declaration dated 24 July 2018 (C/267-282), the Mother named both the Sister and the Brother as “Household Members” (家庭成員). Again, as the Mother was declared to have no principal income or other income and the Sister was a student, the Mother claimed the declared monthly household income of $20,557/month was the Brother’s earnings. But the Mother insisted under cross-examination that the Brother did not support the Sister’s and her living expenses in whole or in part from his declared income of $20,557/month in 2018.

70.  After the Sister completed Form 5 in June 2017 at PHC Wing Kwong College, she studied at Hong Kong Institute of Vocational Education for a year from September 2017 to June 2018, and since September 2018 she studied Korean language at the Community College of City University of Hong Kong. She graduated in May 2020.

71.  Under cross-examination, the Mother said the Sister moved out from but returned occasionally to sleepover at the Flat, and sometimes the Brother also came back to stay the night and left the following morning, so the situation was “…… they came back occasionally …… but [she was] still living alone”. Under cross-examination, the Sister could not remember exactly when she moved out from the Flat, or whether she had already moved out when she started her Korean language studies in September 2018. The Sister explained that at that time she had to go to work (see paragraph below)  and go to school, so she moved out from the Flat to cut short the time spent on travelling to and from work, but there was no need for her to pay or contribute to the rent for the place where she was staying.

72.  As to how the Sister supported herself living outside, the Mother said under cross-examination that “[as] far as [she could] remember in 2018, [the Sister] was working at the time as waitress at Pizza Hut”. The Sister WStmt stated that since the Mother had no outside work, the Sister worked as a part-time salesperson to support the household expenses. But available time for taking up part-time work was limited due to heavy workload of her studies.

73.  Paragraph 16 of the 2018 SWD Application Form dated 6 December 2018 (C/103-110), ie a few months after the Sister started her full-time course in Korean language at the Community College of City University, stated that the Mother lived alone at the Flat at the time. In the 2018 SWD Declaration dated 6 December 2018 (C/144), the Mother gave and signed the following declaration:

“[Mother] …… 為 [CSSA] 個案 (編號 ……)  的申請人, 現居於 [Flat] (電話: ……), 謹此聲明:

[Father] 3/1/2018去世, [Deceased] 12/9/2014 因工業意外去世。

[Father / Brother] 2005年9月尾搬走, 沒有聯絡電話, 沒有給家用。[Sister] 8/2018搬走。

19/5/2003 起申領綜援, 8/2014 讀陪月員課程, 有收入, 領取綜援至31/8/2014。

12/9/2014 [Deceased] 去世, [Mother] 知道會有賠償, 所以取消綜援。

2014年尾收到約港幣三十萬賠償, 與 [Sister] 依靠賠償金過活。一直沒有工作及收入。

[Sister] 讀大學, 沒有錢給 [Mother], 沒有交租, 要求全額租金津貼。 [Mother’s signature]

儲蓄差不多用完, 朋友存錢入戶口xxx-xxx-xxxxxxx [Mother’s HSBC Account as referred to in paragraph 119 below] 借錢給 [Mother]:

4/1/2018 $10,000 辦理 [Deceased] 殮葬費用[24]

9/8/2018 $3,000、19/9/2018 $3,500、19/11/2018 $2,000 生活費

[Mother] 有能力時必須償還。

其餘存入的款項是自己手頭的現金。

19/10/2018 存入支票$23,279.86是銀行發還 [Deceased] 強積金存款。

[Mother] 與 [Father] 聯名戶口xxx-xxx-xxxxxxxx [Father] 己取消很久, 他沒有保存舊有存摺。

明白如日後面收到 [Deceased] 賠償, 必須盡快通知社會保障辦事處。

據 [Mother] 所知和所信, 以上資料 (已向 [Mother] 宣讀, [Mother] 亦完全明白)  均屬真實、完整及準確。[Mother] 明白如 [Mother] 明知或故意作出虛假陳述或隱瞞任何資料, 或誤導 [SWD], 以獲得或協助和教唆他人獲得援助金, 可被檢控。”

74.  The Mother said under cross-examination that after the Sister completed her education in May 2020, she found a part-time job as a salesperson, and thereafter the Sister gave the Mother a few hundred dollars a month.

(1)  Claim

75.  In the Mother WStmt, the Mother said she believed that had the Accident not occurred, the Deceased would have continued to give a substantial part of his salary to her as household financial provision (家用). The Mother further claimed that besides the Deceased knew (a)  the Brother and the Father did not provide her with any household financial provision (家用), (b)  she was just a housewife, and (c)  the Sister would be married in the future, so if the Deceased were still alive, he would have continued to provide her with household financial provision (家用)  until her death. The Sister WStmt stated the Sister believed that had the Deceased been alive, he would have provided for the Mother’s and her living expenses until she became financially independent, and he would have continued to maintain the Mother.

IV.  FINDINGS

(a)  Witnesses’ credibility

76.  This case fell to be decided essentially on the facts, so questions of credibility/reliability loomed large. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the pleadings, chronology of events, documentary evidence and inferences based on inherent probabilities and/or undisputed facts.[25]

77.  The Mother was undoubtedly a key witness for the Assessment Hearing, so it was necessary to look at her evidence more closely as against inter alia the contemporaneous documents and inherent probabilities.

78.  I am unimpressed by the Mother as witness. I accept she grieved over the loss of her son the Deceased, and she displayed emotion in the course of cross-examination that reflected such grief. But such pain and grief did not make her a satisfactory witness in relation to P’s claim. Despite the Mother’s education up to Primary 6 level, I find on balance that, having regard to the contemporary documents, her motives and the overall probabilities, she was more knowledgeable and astute (particularly on money matters and on how to deal with SWD / HKHA)  than she would have this court believe and/or Mr Chong would have this court accept. More importantly, I did not feel the Mother was prepared to face up to and deal with the inconsistencies between her statement/oral evidence and the contemporary documents on the core matters, eg the SWD / HKHA Forms and the Deceased SWD Forms. Indeed, the silence in the Mother WStmt over such declarations/forms was loud and deafening, and even after being alerted to the inconsistencies between the SWD / HKHA Forms and the 4/16/18 Parts and after P informed the court the Mother would adopt the entirety of the Mother WStmt as her evidence-in-chief, P/Mother did not seek leave to explain such discrepancies in her evidence-in-chief, leaving D2-D5 and the court to consider her evidence on such matters for the 1^st time under cross-examination. Given (a)  my view that the Mother had better understanding of the information required by the SWD / HKHA Forms than she would let this court believe, (b)  her confirmation under affirmation that the information she gave in the SWD / HKHA Forms was truthful and accurate and (c)  her adoption of the Mother WStmt (with the contradictory/discrepant 4/16/18 Parts)  together with her oral evidence to similar effect under affirmation, she must have told half-truths, untruths or even lies for her own purpose.

79.  Likewise, the Mother’s voluntary decision to cancel CSSA on the heels of (a)  her month-long job as a post-natal care worker in August 2014 and (b)  the death of the Deceased in September 2014 cried out for explanation given P’s claim for substantial loss of dependency, and yet the Mother WStmt was silent on these matters, leaving D2-D5 and the court to hear her clarifications for the first time under cross- examination.

80.  The Mother tended to evade/sidestep straightforward cross-examination with unfocused digression or vague answers (even though the issues she had to deal with were simple), and to embroider or embellish her testimony when faced with difficult questions. She made strenuous attempts to downplay or trivialise the independent life the Deceased established for himself after he moved out from the Flat. She also drifted off into surmise under cross-examination when it became apparent she knew very little about the Deceased’s work, earnings, expenses, finances, loans and outside life (after he moved out from the Flat), and on balance I find myself unable to place much weight in her surmises/beliefs. Indeed, a different story emerged under cross- examination and from the documents, but more of this below. In my view, the Mother’s evidence must be approached with caution. Whilst I accept she gave some candid responses (and I will make findings accordingly below), much of her evidence sought to put a positive but unrealistic spin on the situation, which evidence was essentially arguing P’s case, and in certain core respects was contradictory and self-serving. I am unable to place much weight on the evidence given by the Mother unless it is supported by other evidence which I find reliable.

81.  The Sister was called to corroborate the Mother’s evidence. The Sister’s evidence fell into the category of loyal support for the Mother whose lead she was prepared to follow. But her evidence was less than robust. Certain aspects of her evidence were vague, and there were quite a number of matters which she claimed she failed to remember. The cogency of her evidence must be assessed in light of the factual circumstances and the available documents.

82.  I have taken my assessment of the Mother and the Sister into account in making my findings/inferences below, but the principal and most reliable evidence was contained in the contemporary documents except the parts I do not accept for reasons explained below, eg parts of the 2018 HKHA Declaration dated 6 December 2018 (C/144)  that was given, declared and submitted by the Mother to SWD well after P filed her Statement of Damages on 22 March 2018 (“SoD”)  and the Mother made the Mother WStmt on 25 October 2018.

83.  I will deal with Chak’s and Tang’s evidence in a later part of this Judgment. But it may be useful to briefly set out here my impression of them as witnesses. The redacted Chak WStmt and the Tang WStmt were brief, and their oral evidence was also sparse as Mr Chong limited himself to light cross-examination without going into a number of issues which they were likely to have factual knowledge and/or experience. For example, Chak had experience with recruitment and employment of scaffolders having worked for various scaffolding companies since 1998, and was expected to have some understanding from her own experience as to the employment, attrition rate and earnings of scaffolders, but she was not cross-examined on these matters. Tang was himself a Master Grade scaffolder who worked as a bamboo scaffolder for over 27 years by the time of the Assessment Hearing, and he worked as team leader with both Master Grade and Intermediate Grade scaffolders, so he was expected to have understanding from his own experience as to the technical/other requirements to be met and the scaffolding skills and aptitude needed for a scaffolder to upgrade from Intermediate Grade to Master Grade. He was not cross-examined on these matters and/or on his workdays and remuneration as a Master Grade scaffolder. I do not see any weaknesses in such “gaps” in Chak’s and Tang’s evidence as a result of Mr Chong’s choice in cross-examination.

84.  On balance, I find both Chak and Tang to be helpful and relaxed witnesses, who were generally doing their best to assist. I do not discern their evidence as being affected in any material degree by their previous employment relationship with D2, and I do not think they were influenced by D2-D5’s present dispute with P. I detect no defensiveness or partiality. Mr Chong suggested Tang was biased against the Deceased, but I find he gave evidence in a fair and reliable manner. His evidence gave a strong impression of genuine effort to tell the court the facts he knew, but in a measured way that reflected due respect to the dead.

85.  I turn first to the SWD / HKHA Forms and the Deceased SWD Forms due to their importance in the present litigation despite silence on the topic in the Mother WStmt and in her evidence-in-chief.

(b)  SWD / HKHA Forms

86.  Mr Sahkrani submitted P could not go behind the Mother’s declarations in the SWD / HKHA Forms that verified the accuracy of the information given therein upon dire warning of criminal and other consequences for falsities and/or omissions, especially when the Mother confirmed by such declarations and by her oral testimony under affirmation that the information she gave in such forms/declarations were truthful and accurate. On such basis, it was said the fundamental and serious discrepancies on the core matters between the 4/16/18 Parts (adopted under affirmation by the Mother in her evidence-in-chief)  and the Mother’s oral evidence to similar effect (given under affirmation during cross-examination and re-examination)  on the one hand and the information in the SWD / HKHA Forms (confirmed under affirmation by the Mother during cross-examination as true and correct)  on the other hand, which Mr Sakhrani submitted were directly relevant to inter alia P’s claim for loss of dependency, necessarily spelt ruin for the Mother’s veracity/reliability as witness. In the course of his oral closing submissions, Mr Sakhrani clarified he would not say the information given by the Mother as verified by her declarations in the SWD / HKHA Forms was immutable and binding on her, but he suggested they would inexorably drive this court to the conclusion that the Mother’s evidence which flied against the SWD / HKHA Forms was not credible, and that P’s claim for substantial loss of dependency was untenable.

87.  Mr Sakhrani drew my attention to Seagroatt J’s observations in Yim Fat Fong v Wong Kim Hung & anor.[26] In that case, the business records produced by the plaintiff were unreliable, and proper preparation and disclosure for the claim on damages were deficient. Seagroatt J observed as follows:

“56. The annual net profit returned for [IRD] requirements for 1991/92 was $40,923. In 1992/3 it was $35,136. This is in stark contrast to the claim for loss of profit on a monthly basis of between $12,000 (now)  and $40,000 originally. It may well be that banking documents show substantial sums being paid in and withdrawn, which are far in excess of the figures disclosed to the [IRD]. However the claim must be based on the proving material. It would be wholly wrong to go behind the figures disclosed to the [IRD]. The Plaintiff’s income and/or net profit may have been significantly more than stated on forms requiring honesty and truth. I am not prepared to say that the [IRD] has not seen the full picture (whatever that is)  but those declarations are my yardstick. I do not need to look beyond them. The annual pre-accident loss of profit is therefore, allowing for ups and downs, $40,000.” (my emphasis)

88.  In my view, Seagroatt J’s observations did not support any proposition that neither party nor court could ever go behind pre-existing forms/declarations given to government authorities. In that case, there were no banking documents produced at trial, and the business records adduced by the plaintiff were found to be unreliable. Thus, the available “proving material” that the learned judge could rely upon was just the documents submitted to the IRD, so he concluded (on case-specific basis)  that he did not “need to look beyond them”.

89.  Seagroatt J’s approach was echoed by that of Reyes J in Christopher Gordon Young v Lee Chu.[27] The appeal concerned certain deductions made by the first instance judge to arrive at the plaintiff’s net income before tax (paragraph 123). Question arose as to whether items deductible from gross profits in assessing tax liability were distinguishable from items deductible for calculating lost income in personal injury claim (paragraph 126). The plaintiff claimed he was guided by his accountant’s advice in reporting “inflated” expenses to the IRD who accepted such “inflated” expenses as tax deductibles, but the plaintiff argued there was no reason why the defendant should obtain a “windfall” as a result of “inflated” tax deductibles by paying him an amount which was significantly less than his actual damages (paragraph 127).

90.  But Reyes J found there was no substantive difference between tax deductibles and litigation deductibles, so the real question was the extent to which the court could go behind the matters stated in the plaintiff’s tax return (paragraph 128). After referring to Seagroatt J’s observations in Yim Fat Fong, Reyes J said as follows:

“130. I do not read Seagroatt J as saying that the Court will never look behind a claimant’s tax returns when assessing lost income. Instead, Seagroatt J treats the question (in my view rightly)  as a matter of evidence. On the material before him, the judge was not prepared to hold that the returns gave a false picture of the plaintiff's actual income. Understandably, the judge was sceptical of the profits orally alleged at trial, especially where the profits asserted were suddenly whittled down from $40,000 to $12,000 per month. Although the plaintiff’s income might conceivably have been more than what was stated in his returns, on the balance of probability Seagroatt J felt that the returns were likely to be more trustworthy and the $12,000 per month belatedly advanced at trial to be suspect.” (my emphasis)

91.  Then, after citing his own decision in McGuire v AGW Holdings Limited & anor,[28]Reyes J further observed as follows:

“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 may not have been accurate in its characterisation 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 penalised in some way. But that is a decision for the Commissioner. It does not affect the Court’s investigation of fact.

133.  …… Both McGuire and Yim accept that tax returns are admissible evidence. In Yim Seagroatt J felt that it would be wrong in light of the totality of the proving material before him to go behind the returns. In light of all the evidence adduced in McGuire, I thought that it was appropriate to ignore the characterisation of the relationship between the plaintiff employee and the 1^st defendant contained in G’s tax returns.

134.  That leaves the issue whether the trial judge was entitled here to attach significant weight on the Plaintiff's tax returns in assessing expenses at $800,000 ……” (my emphasis)

Reyes J (a)  noted the first instance judge had carefully considered the plaintiff’s oral evidence and, like Seagroatt J, rejected such evidence as “fanciful” (especially given the significant discrepancy between the tax deductibles and litigation deductibles in that case even though the principles underlying the calculation of both sets of deductibles were similar), and (b)  found such approach impeccable (paragraph 135).

92.  Mr Chong also cited Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased v Liu Chun Pong & anor,[29] in which the plaintiff tried to argue the income of the deceased, who was a sole proprietor of a fruit and vegetable wholesale business (paragraph 2), was higher than that reflected in the tax return forms submitted to the IRD. In that case, Bharwaney J (a)  accepted the widow’s evidence was truthful, (b)  found the primary financial documents,[30] the monthly turnover reports and the bank statements of the savings bank account of the deceased’s business (which showed the revenue side)  compelling (paragraphs 12-14), and (c)  agreed the expenses analysed/recorded by the plaintiff’s accountant firm were correct despite criticisms from the accountant firm engaged by the defendant’s solicitors (paragraphs 16-19). The learned judge concluded that the deceased understated his income when he filed his tax returns and his profit and loss accounts with the IRD, and the deceased’s business enjoyed better gross receipts than shown in the IRD documents (paragraphs 15 and 20). Bharwaney J referred to Reyes J’s observations in Christopher Gordon Young, and agreed that:

“15. …… 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 ……” (my emphasis)

93.  I therefore need to investigate what the real facts were upon considering the totality of the evidence, ie deciding on the evidence whether I should not accept as true the information given by the Mother as verified by her declarations in the SWD / HKHA Forms. In my view, the SWD / HKHA Forms here were materially different from the IRD documents that the courts were prepared to “go behind” in the authorities cited by counsel. For those IRD documents, there was cogent and credible oral/documentary evidence that convincingly explained how they came about and why/how they were incorrect so as to give persuasive evidential basis for the courts to “go behind” them to find on the facts what the true position was (see observations by Reyes J and findings by Bharwaney J in paragraphs 90-92 above). But here the Mother accepted under cross-examination the contents of the SWD / HKHA Forms were true and correct, which stance baldly contradicted the 4/16/18 Parts (adopted by the Mother as part of her evidence-in-chief)  and the Mother’s oral evidence given under affirmation to similar effect. As seen in the discussions below, such perplexing contradictions had not been credibly and/or reliably explained, and on balance I do not find sufficient cogent and/or compelling evidence for overturning the information given by the Mother in the SWD / HKHA Forms.

94.  Mr Chong made 2 general observations on the Mother’s evidence in relation to the SWD / HKHA Forms. First, he submitted the Mother had poor education background, having only studied up to Primary 6 level (see paragraph 21 above), so her oral evidence and her understanding of the SWD / HKHA Forms in the course of filling them should be considered in such context. Secondly, he referred to the court’s reminders to the Mother on potential criminal and other consequences that she might face given the apparent differences between the 4/16/18 Parts and the SWD / HKHA Forms as explained in paragraphs 12-17 above (see paragraphs 18-20 above), and suggested it was to the Mother’s credit that she elected to answer cross-examination questions on those matters to the best of her ability, which showed she never had any intention to cheat the government. But having considered the totality of the evidence (including discussions below on other topics that went to demonstrate the overall unreliability of the Mother’s evidence on the core matters), I find myself unable to accept either argument.

95.  Although the Mother was educated up to Primary 6 level, it did not mean she had no or limited understanding of (a)  what information the SWD / HKHA Forms required, (b)  her obligations in providing information for completing such forms and in giving/signing the declarations in such forms, and (c)  the information she gave for completing such forms. Also, the Mother must have a reasonable command of the Chinese language. After all, the Mother WStmt was verified by her own Chinese SoT, which did not adopt the requisite format for use when the statement maker cannot understand or read the Chinese language and when it is necessary to read over the document to him/her.[31] Her ability to understand or read the Mother WStmt that canvassed a variety of matters as set out in Part III above, especially those matters that concerned the Deceased’s alleged household financial provision (家用)  for her and pocket money (零用錢)  for the Sister, and/or her willingness to adopt and confirm the contents of the Mother WStmt under affirmation, went a long way to demonstrate her ability to understand and/or read the SWD / HKHA Forms, especially information required by such forms and declarations concerning “contributions from relatives and friends” (親友的津助)  and “financial support from relatives and friends” (親友資助).

96.  For filling out the SWD Forms, the Mother also had the benefit of conversations with the SWD officers who (a)  told her what information was required in the SWD Forms, (b)  received the required information from her, and (c)  helped her fill out such forms with the information she gave them (see paragraph 39 above). As Mr Sakhrani submitted, it was not the case of the Mother, having to mull over the SWD forms herself, misinterpreted what was required. More importantly, the Mother agreed the contents of the SWD Forms were true and correct (see paragraphs 39-40, 52 and 54 above), which clearly confirmed (and there was no suggestion otherwise)  the SWD officers elicited correct information as required by such forms from her, and did not mislead her in any way. In any event, the declarations given by the Mother in the SWD Forms confirmed the contents therein (which information was provided by her and confirmed by her to be true and accurate)  had been read over to her and were well understood by her (see paragraphs 17(a)-(b)  above).

97.  I find on balance the Mother knew from her conversations with the SWD officers over the years (a)  what information the SWD Forms required on pain of potential criminal and other consequences if there were falsities and/or omissions (see paragraph 17(a)-(b)  above), and (b)  that she had to make full disclosure of all her financial resources, including the need to disclose “contributions from relatives and friends” (親友的津助)  (see paragraph 39(e)-(f), 40, 52 and 54 above).

98.  But Mr Chong suggested that (a)  under cross-examination the Mother apparently demonstrated difficulty with the precise meaning of “contributions from relatives and friends” (親友的津助)  in the 2012 SWD Review Form dated 13 September 2012 (C/138-142)  and did not appreciate she had to report contributions from the Deceased in the SWD Forms, and (b)  under re-examination the Mother claimed she did not know it was necessary for her to report the “pocket-money” given to her by the Deceased (see paragraph 39(e)  above).

99.  I start with the last point above about alleged “pocket- money” given by the Deceased for the Mother. It was the Mother’s evidence that the Deceased gave her monthly household financial provision (家用)  that gradually increased over the years to $4,000- $5,000/month in 2014 and $5,000/month just before the Accident (see paragraph 46(a)-(c)  above), and in the Mother WStmt she carefully distinguished such household financial provision (家用)  for her (see paragraphs 43-48 above)  from the Deceased’s provision of $500/month to the Sister as her pocket money (零用錢)  (see paragraph 49 above). Although Mr Chong suggested it did not matter whether the Deceased’s contribution to the Mother was labelled as pocket money (零用錢)  or household financial provision (家用), I find it significant that the Mother herself perceived it to be the latter. Thus, she could not have been mistaken about the nature of the Deceased’s alleged cash/money provision to her (which, according to her own evidence, was made shortly after each of his bi-monthly paydays when his salary was deposited into the Deceased’s Account – see paragraph 46(a)  above)  from which she allegedly defrayed household/living expenses in the same way as she spent the monthly CSSA payment (see paragraph 48 above).

100.  Returning to Mr Chong’s arguments in paragraph 98 above, I find on the balance the Mother’s evidence under cross-examination that purported to query who were her relatives and friends and her assertion under re-examination that she did not appreciate she had to report the Deceased’s regular monthly household financial provision (家用)  to her were nothing more than unreliable attempts to dissemble. I reiterate the discussions and findings in paragraphs 95-97 and 99 above. Here, the Mother was not concerned with some distant relative who might have given rise to some legitimate doubt as to whether he/she could properly be counted as a “relative”. In my view, it was basic common sense (which the Mother must have irrespective of any education level)  that the Deceased, who was her son within her immediate family, was her “relative”. Indeed, the Mother confirmed under cross-examination and re-examination that she knew “親友” to mean friends and relatives. Further, it was again basic common sense (which the Mother must have)  that regular monthly household financial provision (家用)  provided to her for defraying household/living expenses (see paragraph above)  was by nature necessarily “contributions” (津助)  and/or “financial support” (資助), especially when, on her own evidence, she knew (a)  the amount of such monthly provision (with significant cash component)  that she received from the Deceased was quite substantial, ie just slightly more/ less (depending on the relevant year)  than her monthly CSSA payment, and (b)  she spent such monthly cash provision from the Deceased (which she did not declare in the SWD / HKHA Forms)  in the same way as she spent her monthly CSSA payment (which she did declare in such forms)  on her household/living expenses (see paragraph 48 above).

101.  Further, if, as Mr Chong submitted, the Mother had difficulty with the precise meaning of “contributions from relatives and friends” (親友的津助), which I do not accept, it would have been straightforward for her (and indeed one would have expected her)  to ask the SWD officers with whom she had conversations when filling out the SWD Forms (see paragraphs 39 and 96 above)  rather than to simply give the bald answer “Nil” in the SWD Forms (as she did). But in fact there was no evidence she had such difficulty in understanding that she had to ask the SWD officers, who were then unable to dispel her uncertainty, which then led to her confused answer that “contributions from relatives and friends” (親友的津助)  were “Nil”. This leads nicely to the point in the paragraph below.

102.  More importantly, it was not simply a matter of alleged confusion over or alleged misunderstanding of the precise meaning of “contributions from relatives and friends” (親友的津助)  because the Mother in paragraph 15 of the 2012 SWD Review Form dated 13 September 2012 (C/138-142)  proactively volunteered the information that “[Mother] 家庭沒有收到任何人經濟援助 …… 兒子 [Deceased] 和 [Brother] 搬走, 並拒經透露其居住地址” (my emphasis)  (see paragraph 39(f)  above), which, in my view, gave the impression to any reasonable reader that she had lost contact with inter alia the Deceased, which impression would, in turn, serve to bolster her assertion of nil financial support from “任何人” (ie anyone be it the Brother, the Deceased or anyone else). But, according to the Mother WStmt (including the 4/16/18 Parts)  and the Mother’s oral evidence, the Deceased returned to the Flat for dinner every day after work (see paragraph 39(f)  above), and gave her $1,000-$2,000/month in 2011-2012 (see paragraph 43 above), $4,000-$5,000/month in 2014 (see paragraph 46(a)-(b)  above)  or $5,000/month just before the Accident (see paragraph 46(c)  above)  as household financial provision (家用)  with extra pocket money (零用錢)  for the Sister. In my view (and as seen in the discussions and the findings below), the Mother’s such statement/oral evidence that came about after commencement of the present action on 7 September 2017 and after her SoD was filed on 22 March 2018 to claim inter alia substantial loss of dependency was plainly unreliable. The Mother’s statement/oral evidence in this respect was diametrically contradicted by her own information in the contemporaneous 2012 SWD Review Form dated 13 September 2012 (C/138-142)  to the effect that her household did not receive financial support from anyone, which information was (a)  untainted by the Deceased’s untimely death and/or consequent claims for EC/damages, (b)  confirmed by the Mother under cross-examination to be accurate and correct, and (c)  reiterated by her in similar SWD Forms in subsequent years (see paragraphs 52-54 above).

103.  On balance, I find it improbable for the Mother to have made the bald assertion of “Nil” for “contributions from relatives and friends” (親友的津助)  if she regularly received from the Deceased monthly “contributions” or “financial support” (that included cash payments to her in amounts that were not insubstantial in the context of her alleged overall household income)  that she perceived to be household financial provision (家用)  for her. Further, the Mother could not have been mistaken because the heading in paragraph 10 of the 2012 SWD Review Form dated 13 September 2012 (C/138-142)  made clear the required information was “income of the applicant and household members from all sources (申請人及家庭成員從所有來源的收入)” (my emphasis)  (see paragraph 39(e)  above). There could not have been any confusion or misunderstanding from such clear description, especially when the Mother in paragraph 18 of the Mother WStmt described the Deceased’s contribution / financial support as her family’s “收入來源” (source of income)  (see paragraph 64 above).

104.  Further, I find on balance that the Mother knew she would not be entitled to CSSA or at least the SWD would review her entitlement to CSSA if she had or was discovered to have regular financial assistance for her household/living expenses from any source (including those from her relatives and friends). After all, the Mother carefully declared in the SWD Forms even negligible divorce maintenance (ie $0.80/month)  which she claimed she did not actually receive, re-training allowance of $83.20 and post-natal care re-training course subsidy of $2,153.20 (see paragraphs 39(e)  and 59 above), which sums when aggregated were less than half of the alleged monthly household financial provision (家用)  for the Mother from the Deceased (ie about $5,000/month by the time just before he died). The Mother also gave evidence that she carefully declared anticipated donations from charitable organisations (see paragraph 62 above), and/or anticipated compensation (see paragraph 73 above), and that she cancelled CSSA allegedly on such basis (see paragraphs 62 and 73 above). Plainly, the Mother knew that if she had regular financial assistance for her household/living expenses, especially those that were expressly required to be disclosed in the SWD Forms (eg contributions from relatives and friends), she had to make truthful and accurate disclosure to the SWD on yearly basis.

105.  As regards the HKHA Forms, the Mother knew she had to (a)  complete and submit income declaration to the HKHA every 2 years to provide not only her own income information (including any income from work and any financial support received)  but also income information of household members at the Flat (see paragraphs 14 and 37-38 above), and (b)  give true/accurate information and sign declaration to verify such information (see paragraph 17(f)  above). Given the overall unreliability of the Mother’s evidence, and my discussions and findings as to her understanding of the SWD Forms (see paragraphs 95-104 above)  which were applicable mutatis mutandis to her understanding of the HKHA Forms, I find on balance the Mother knew from experience over the years that she had to (i)  give full account of financial support she received for her household/living expenses from all sources, including CSSA payment and “financial support from relatives and friends” (親友資助), and (ii)  report in the HKHA Forms the alleged monthly household financial provision (家用)  the Deceased (ie “relatives and friends” (親友))  regularly gave her shortly after his paydays (ie “financial support” (資助)). But the Mother not only did not make any such disclosure (despite her understanding as I have found), she went further to confirm under cross-examination the truthfulness and accuracy of the contents of the HKHA Forms, which by their silence on any household financial provision (家用)  from the Deceased directly contradicted and thereby undermined the veracity of the Mother’s statement/oral evidence that alleged the Deceased gave her regular monthly household financial provision (家用)  with substantial cash component.

106.  In my view, the Mother’s poor attempt under cross- examination to portray difficulty in understanding “contributions from relatives and friends” by questioning who were her relatives and friends had a ring of untruth given the factual context as I have found, which could not amount to any straightforward and/or bona fide explanation for the patent contradictions between her oral/statement evidence and the SWD / HKHA Forms in relation to “contributions” and/or “financial support” from the Deceased. The Mother’s assertion under re-examination that she did not know she had to report such “contributions” or “financial support” from the Deceased was plainly an unreliable afterthought to paper over the glaring discrepancies between her statement/oral evidence and the SWD / HKHA Forms.

107.  Having considered the totality of the evidence (including the further discussions and findings below), I am not persuaded the Mother’s oral/statement evidence on the alleged household financial provision (家用)  from the Deceased was credible or reliable in face of the corresponding contents of the contemporaneous SWD / HKHA Forms (especially those made in/before 2014 and thus untainted by claims for compensation/damages consequent upon the death of the Deceased)  that she knowingly made over the years for securing CSSA payments and government housing allowance on pain of potential criminal and other consequences should there be falsities and/or omissions.

108.  Mr Chong’s next contention in paragraph 94 above essentially argued that because the Mother chose to give evidence to support P’s case premised on the 4/16/18 Parts despite awareness of the risk of potential criminal and other consequences arising from the apparent discrepancies between such oral/statement evidence and the SWD / HKHA Forms, so the 4/16/18 Parts and the Mother’s oral evidence to similar effect were likely to be credible. In my view, such argument failed to address the anterior question of why, notwithstanding the declarations in the SWD / HKHA Forms that similarly warned of potential criminal and other consequences if there were falsities and/or omissions, the Mother did not give information in the SWD / HKHA Forms (especially those forms made prior to the death of the Deceased and therefore uninfluenced by claim-related considerations)  in line with the 4/16/18 Parts and her oral evidence to similar effect. Curiously, the Mother did not even mention the SWD / HKHA Forms in the Mother WStmt, and she did not even seek to explain the obvious contradictions between the 4/16/18 Parts and the SWD / HKHA Forms in her evidence-in-chief even when she waived privilege against self-incrimination to adopt the entirety of the Mother WStmt (including the 4/16/18 Parts)  as her evidence. The Mother was reduced to the unhappy position of having affirmed the contents of both the SWD / HKHA Forms and the 4/16/18 Parts to be true and accurate without credible explanation for their obvious and material differences, especially as I have found she knew she had to report “contributions” and/or “financial support” (ie alleged regular monthly household financial provision (家用)  with substantial cash component for defraying her household/living expenses)  from “relatives” (ie the Deceased). I am not persuaded by Mr Chong’s simplistic contention that the fact the Mother chose to adopt the 4/16/18 Parts and/or to give oral evidence to similar effect would render her evidence on alleged household financial provision (家用)  from the Deceased credible.

109.  On balance, for reasons set out above (and taking into account the further discussions and findings below), I prefer the SWD / HKHA Forms (especially those made, declared and submitted in/before 2014 and hence untainted by any whiff of EC / fatal accident claims consequent upon the death of the Deceased)  except for parts that I reject in the discussions below (eg parts of the 2018 SWD Declaration dated 6 December 2018 (C/144)  that was given, declared and submitted to SWD by the Mother well after P filed her SoD on 22 March 2018 and after the Mother made the Mother WStmt on 25 October 2018). P’s pleadings and the Mother’s statement/oral evidence that averred/stated inter alia that the Mother’s household was reliant on household financial provision (家用)  for the Mother and pocket money (零用錢)  for the Sister from the Deceased did not amount to sufficient credible plea/ evidence to undermine the veracity of the contemporaneous SWD / HKHA Forms in this respect.

(c)  Deceased SWD Forms

110.  The SWD / HKHA Forms were also bolstered by the Deceased SWD Forms that declared “[Deceased] 並未向 [Mother] (姓名)  給予任何經濟援助” (see paragraph 15 above). These were the only contemporaneous documents by the Deceased, but his declarations therein, which were made on pain of possible prosecution if there was deliberate misrepresentation and/or omission (see footnote 6 above), bluntly contradicted the Mother’s alleged dependency on him. There was no suggestion that the Deceased (having been educated up to Form 3)  did not understand the information required of him in the Deceased SWD Forms or the effect of the declarations therein. The Mother WStmt did not even mention the Deceased SWD Forms, and neither the Mother WStmt nor the Mother’s evidence-in-chief offered any explanation for such obvious contradiction even though (a)  it was the Mother who requested the Deceased to sign such declarations, (b)  the Mother witnessed the Deceased’s signature to his straightforward declarations that he did not give her any financial assistance, and (c)  the Mother well knew the purpose of submitting the Deceased 2013 SWD 1^st Declaration dated 20 March 2013 (C/137)  (and a fortiori the Deceased 2013 SWD 2^nd Declaration dated 8 September 2013 (C/131))  to SWD was to support her application for CSSA (see paragraph 53 above).

111.  In my view, the Mother could not have been unaware that the Deceased declared that “[Deceased] 並未向 [Mother] (姓名)  給予任何經濟援助” in the Deceased SWD Forms, which declaration she now claimed under cross-examination to be incorrect as being contrary to her statement/oral evidence that the Deceased regularly gave her monthly household financial provision (家用), but quite inexplicably she allowed the Deceased SWD Forms to be submitted to the SWD in support of her application for or continuation of CSSA.

112.  I also find on balance the Mother could not have had any difficulty in understanding that “financial assistance” (經濟援助)  in paragraph 1 of the Deceased SWD Forms covered the alleged regular monthly household financial provision (家用)  for her from the Deceased, especially when she was able to say under cross-examination without difficulty in understanding that the Deceased’s declaration of “[Deceased] 並未向 [Mother] (姓名)  給予任何經濟援助” was incorrect on the basis that (a)  he allegedly paid her household financial provision (家用)  in cash on bi-monthly basis after his paydays, and (b)  the value of his household financial provision (家用)  for her in 2014 was about $4,000-$5,000/month and shortly before the Accident was about $5,000/month (with extra $500/month for the Sister). On balance, given such understanding, I reject the Mother’s belated attempt in re-examination to distance herself from the Deceased SWD Forms by asserting that the Deceased 2013 SWD 1^st Declaration (and a fortiori the Deceased 2013 SWD 2^nd Declaration)  were filled in by the Deceased, and that she did not know she had to report the contributions made by the Deceased to SWD / HKHA.

113.  Also, I do not accept Mr Chong’s contention that the Deceased SWD Forms should not be taken at face value because “the Mother explained that [the Deceased] signed it because he wanted her to live better”. This was not her evidence. In fact, on the 2^nd day of the Assessment Hearing, cross-examination of the Mother went as follows:

“Q. Now, you don’t have to answer my next question if you don’t want to. But you signed this document and therefore are a party to it. Is it true that Leung Ho-tin did not provide financial assistance to you in March 2013?

A. Well, in 2013 he paid me money to buy food.

Q. That doesn’t answer my question. And I warn you again you’re not obliged to answer. But if you wish to answer, my question is, is it true that he did not provide any financial assistance to you in March 2013?

COURT: I think perhaps it’s easier when Mr Sakhrani asks the question is using the words in item 1.

MR SAKHRANI: I can’t hear you, I’m very sorry.

COURT: I think it’s easier to use the words in item 1. That’s what you want to ask is that is the words in item 1 of the declaration.

MR SAKHRANI: Yes, yes.

COURT: She can decide not to answer if she wants to.

A. Ho Tin wanted me to live better.

COURT: No, this not asking about what Ho Tin’s intention is. The question is whether this is true and correct, this statement there. You may choose not to answer.

A. Well, he took me out to the restaurant and he bought cigarettes for me. Would you also count those as financial assistance?

Q. You allege -- it’s your case in your witness statement that he gave you cash every month and that he would give it to you twice a month after he received his pay and that till 2014 it averaged about 4 or 5,000 a month and that shortly before his accident it was 5,000 a month, plus 500 he gave to Man Yi. That is called financial assistance.

COURT: That is what she said in her witness statement.

A. Yes.

Q. So if we take 生活費 to include these sums of money you refer to in your witness statement, I ask you again, madam -- and you don’t have to answer if you don’t want to -- is that entry there true or false, “I have not provided any financial assistance to Chiu Sui-ching”?

A.  No.”

114.  It was quite clear from the above that the question directed to the Mother was whether it was true that in March 2013 the Deceased did not provide her any financial assistance, and she replied that in 2013 the Deceased did pay her money to buy food, and before Mr Sakhrani framed his next question, she added that “[the Deceased] wanted her to live better”. Plainly that supplement referred to her previous answer that the Deceased paid her money to buy food, and set out her perception of his intention in paying her money to buy food rather than the reason why the Deceased signed the Deceased 2013 SWD 1^st Declaration. Although the Mother queried whether the Deceased taking her out to restaurants and buying her cigarettes would be regarded as financial assistance, this was overtaken by Mr Shakrani’s reminder it was her own evidence that the Deceased gave her household financial provision (家用)  in cash twice a month, so she was constrained by P’s/her case to acknowledge the Deceased’s declaration of “[Deceased] 並未向 [Mother] (姓名)  給予任何經濟援助” was not correct.

115.  In my view, the Mother did not offer any credible explanation as to why the Deceased signed the Deceased 2013 SWD 1^st Declaration. But the following was elicited under cross-examination of the Mother:

Q:  Did you ask him to sign this declaration?  And also, if you don’t wish to answer, you’re not obliged to.  I’ll start again, Mr Interpreter.  If you don’t wish to answer my question, you’re not obliged to.  But my question is, did you ask him to sign this declaration together with you?

A.  Yes, but the situation was that he asked his elder brother to do so, but his elder brother refused to do it, so he signed it.

Q.  But you were going to -- what was the purpose of this document?  And if you don’t wish to answer, you don’t have to.

A.  This is the document of the social welfare department. 

Q.  Because you were applying for CSSA, right?

A.  Yes.

Q.  So this document was for the purpose of your application for CSSA.

A.  Yes.”

116.  In short, as I have explained in paragraphs 53 and 110 above, it was the Mother who asked the Deceased to sign the Deceased 2013 SWD 1^st Declaration to support her application for CSSA, and the Deceased signed because the Brother declined to do so, which showed the Mother must have known the contents of the Deceased’s declaration in the Deceased 2013 SWD 1^st Declaration that she submitted to SWD as part of her application for or continuation of CSSA (see paragraphs 111-112 above). I see no reason (and the Mother offered no credible reason)  why the Deceased would lie to SWD on pain of potential prosecution for such blatant falsity if he were regularly paying the Mother monthly household financial provision (家用)  with substantial cash component to support her household/living expenses, bearing in mind (a)  the Deceased’s own unfortunate experience not so long ago in 2010/2011 of being imprisoned for having committed criminal offence(s), and (b)  the real jeopardy such potential prosecution would pose to the new life outside the home/Flat that he built up after his release from prison and from Pheonix House with stable job and steady girlfriend.

117.  Importantly, the Deceased’s declaration was consistent with the Mother’s own answer in paragraph 10(c)  in the 2012 SWD Review Form dated 13 September 2012 (C/138-142)  that stated “[contributions] from relatives and friends” (親友的津助)  was “Nil” (see paragraph 39(e)  above), which the Mother confirmed under cross-examination to be true and correct, and which was reiterated and confirmed in the 2013 1^st and 2^nd Review Forms dated 18 March and 3 September 2013 (C/132-136 and C/125-130)  (see paragraphs 40 and 52 above). The Mother’s own declarations in the SWD Forms before/in 2014 mirrored those of the Deceased in the Deceased SWD Forms, and they bolstered one another’s credibility/reliability, especially as they were contemporaneous documents untainted by any premonition of the Deceased’s untimely death and consequent EC / fatal accident claims arising therefrom. On balance (and taking into account the discussions and findings below), I reject the Mother’s contention that the Deceased’s declarations in the Deceased SWD Forms were incorrect, which contention was no more than poor and belated effort to downplay adverse objective evidence against P’s claim of substantial dependency on the Deceased.

(d)  Mother’s alleged reasons for cancelling CSSA

118.  Mr Chong next submitted that the SWD / HKHA Forms should be read in light of the Mother’s conduct in voluntarily cancelling CSSA, which showed she never had the intention to cheat the government. But if the Mother never had the intention to and did not cheat the government when she gave the information/declarations in the SWD / HKHA Forms, then given my finding as to her knowledge and understanding of the information required by those forms, the truth and correctness of the information she gave in the SWD / HKHA Forms (which she confirmed to be true and accurate under cross-examination)  must on balance lead to the conclusion that her contradictory statement/ oral evidence (including the 4/16/18 Parts)  was implausible and unreliable.

119.  Nevertheless, Mr Chong went on to argue that a few days after the death of the Deceased, the Mother had duly and truthfully reported to SWD to stop CSSA as she was going to receive substantial sums from charities and compensation from D2. Mr Chong’s written closing submissions claimed that “the Mother terminated CSSA payments on 16 September 2014 because she was receiving and expecting donations from charitable organizations immediately after [the Deceased’s] death, pay-outs from [the Deceased’s] insurance policy that he bought ……, and compensation from [D2] ……” (my emphasis). Mr Chong suggested the aforesaid 3 reasons for cancelling CSSA were borne out by (a)  the Mother’s evidence under cross-examination that after the Deceased passed away she received cheques from charitable organisations, (b)  the Mother’s 2018 SWD Declaration dated 6 December 2018 (C/144)  that stated “…… 12/9/2014 [Deceased] 去世, [Mother] 知道會有賠償, 所以取消綜援 ……” (my emphasis), and (c)  the disclosed bank statements of the Mother’s bank account with The Hongkong and Shanghai Banking Corporation Ltd (“Mother’s HSBC Account”). Mr Chong further submitted that (i)  to the Mother’s mind she did not think the “pocket-moneys” given to her by the Deceased during his lifetime would have to be reported to SWD and/or HKHA, so the SWD / HKHA Forms should be read accordingly, and (ii)  the above evidence in respect of her cancellation of CSSA showed the Mother never intended to cheat the government.

120.  To put Mr Chong’s submissions in context, I make 2 preliminary observations:

(a)

Neither the fact of the Mother’s voluntary termination of CSSA nor the 3 reasons therefor as outlined in Mr Chong’s above submissions were canvassed in the Mother WStmt and/or the Mother’s evidence-in-chief. They only came to light in the course of Mr Sakhrani’s cross-examination even though the availability or otherwise of the monthly CSSA payments would, on the Mother’s evidence, have effect on her alleged loss of dependency on the Deceased and/or on her ability to defray household/living expenses that allegedly required financial support of about $11,000/month (ie monthly CSSA payment and monthly household financial provision (家用)  from the Deceased – see paragraph 51 above). There was no suggestion that the Mother was able to save any part of the alleged total household income of about $11,000/month or to have kept any part of it in her drawers at home.

(b)

I have already explained that even on the Mother’s own evidence, she perceived the alleged contributions or financial support from the Deceased for her household/living expenses as household financial provision (家用)  and not as pocket money (零用錢)  (see paragraph 99 above). On balance, I do not accept Mr Chong’s attempt to downplay the importance the Mother tried to attach to such alleged contributions or financial support.

121.  I note the Mother submitted the 2014 SWD 3^rd Review Form dated 16 September 2014 (C/114-115), a mere 4 days after the death of the Deceased, to inform SWD she would cancel CSSA. Whilst it was true the Mother WStmt stated that after the death of the Deceased the Mother and the Sister could still cope with their living for the time being (even though the family allegedly lost “收入來源” (source of income)  from the Deceased)  as they received EC from D2 and the Mother on behalf of the Deceased’s estate received insurance pay-outs (see paragraph 64 above), the Mother did not say under cross-examination that these were her reasons for cancelling CSSA (see paragraph 62 above). Rather she testified that she felt she should no longer receive government welfare subsidy as she had her own “income”. It was only upon being pressed by Mr Sakhrani that the Mother claimed “income” meant cheques receivable from charitable organisations and not income from her post-natal care work (see paragraph 62 above). Mr Sakhrani suggested it was improbable for the Mother to describe cheque donations as “income”, but Mr Chong urged this court to view the Mother’s evidence with some latitude given her limited education as she might not precisely distinguish “income” from donations when both were simply money coming to her. Given the Mother’s overall unreliability. I find force in Mr Sakhrani’s suggestion that it was a revealing slip of the tongue by the Mother when pressed under cross-examination, ie that she anticipated work income (see paragraph 176(c)  below), which she tried to dissemble by correlating “income” to cheques from charitable donations, but which differed from the explanation she gave in the 2018 SWD Declaration dated 6 December 2018 (C/144)  (see paragraphs 73 and 119(b)  above)  that stated “…… 12/9/2014 [Deceased] 去世, [Mother] 知道會有賠償, 所以取消綜援 ……” (my emphasis)  (ie CSSA was cancelled because of anticipated compensation which was presumably EC from D2), and which was not expressly stated in the 2014 SWD 3^rd Review Form dated 16 September 2014 (C/114-115)  as the reason for cancelling CSSA (see paragraph 62 above). This was especially so when the voluntary termination of CSSA came abruptly on the heels of (a)  the Mother’s post-natal care job in August 2014, and (b)  the revelation of such job and earnings to SWD by the 2014 SWD 2^nd Review Form dated 4 September 2014 (C/117-118)  (see paragraph 59 above). Indeed, Mr Sakhrani made a further forceful point by submitting that if the Mother considered third party donations that she would use to defray her household/living expenses as “income” that not only had to be declared to SWD but would preclude her from receiving CSSA, then surely she would have known the regular monthly household financial provision (家用)  with substantial cash component that the Deceased allegedly gave her for her household/ living expenses would also have been “income” from “relatives and friends” that would have been liable to be declared to SWD / HKHA, and in view of such awareness, her silence on such “income” in the SWD / HKHA Forms was loud and deafening.

122.  The Mother also did not give evidence that she received cheques from charitable organisations “immediately” upon the Deceased’s death. There was no evidence that she received such donation cheques before 16 September 2014 (ie the date of the 2014 SWD 3^rd Review Form (C/114-115)), how much she received by such date, and how much she expected she would receive thereafter. According to the transactions record of the Mother’s HSBC Account, after the Deceased died on 12 September 2014, there was an “IDM” deposit (instant/cash deposit)  of $2,000 (which was not any “cheque” from charitable organisations)  on 16 September 2014, 7 cheque deposits on/after 26 September 2014 until 11 December 2014 totalling $79,370,[32] and 2 “ATM” (automatic teller machine)  transfers with code “NTD” (ie transfer or salary deposit)  in October 2014 (which were certainly not “cheque” deposits by charitable organisations).[33] Even assuming the aforesaid 7 cheque deposits were donations from charitable organisations, they were well after the 2014 SWD 3^rd Review Form dated 16 September 2014 (C/114-115).

123.  As explained in paragraph 121 above, the Mother’s declaration in the 2018 SWD Declaration dated 6 December 2018 (C/144)  did not say (as the Mother claimed under cross-examination)  she cancelled CSSA because of “income” being cheques from charitable organisations. Indeed, the 2014 SWD 3^rd Review Form (C/114-115)  also did not mention donation cheques/monies at all. The suggestion that immediately upon (ie within 4 days of)  the sudden and untimely death of the Deceased, in her fresh grief over loss of her son, and (on P’s own case)  in her inevitable worry over loss of alleged regular household financial provision (家用)  of $5,000/month for her and pocket money (零用錢)  of $500/month for the Sister from the Deceased when she all along maintained her household by enjoying rent-free public housing and overall household income of about $11,000/month comprising CSSA payment from SWD and household financial provision (家用)  from the Deceased (see paragraphs 51 and 120(a)  above), the Mother would have taken the initiative to voluntarily cancel CSSA not just for September 2014 but also thereafter because of donation cheques yet to be received or encashed (which donations were necessarily expected to be one-off expressions of sympathy and benevolence of uncertain amounts consequent upon but not caused by the death of the deceased)  flied against common sense and was inherently implausible. On P’s own case, even if the Mother were aware of the amount of the donations (and even if one were to assume all cheques in the Mother’s HSBC Account from the date the Deceased passed away up to end of December 2014 totalling about $80,000 were donation cheques – see footnote 32 above), which I disagree, she would have realised they would only have covered her alleged household/living expenses of about $11,000/month (on the basis that none of such cheques would be utilised for paying urgent post-death expenses and/or settling the Deceased’s debts)  for about 7 months. In such circumstances, the sensible and logical course of action for the Mother to take would have been to make enquiries with the SWD officers about the proper reporting requirements for the anticipated donations, and how such anticipated donations would affect her CSSA payments pending their exhaustion in due course, but there was no such enquiry and instead the Mother made an abrupt and bold decision to terminate CSSA. I agree with Mr Sakhrani and find on balance that the Mother did not take the initiative to cancel CSSA on 16 September 2014 because she was about to receive some donation monies (the amount of which was uncertain)  by way of cheques from charitable organisations.

124.  Apart from the initial “NTD” deposits received well after 16 September 2014 and (see paragraph 122 and footnote 33 above), and advance payment of the EC Sum in the sum of about $300,000 received at the end of 2014 (“2014年尾收到約港幣三十萬賠償” – see 2018 SWD Declaration dated 6 December 2018 (C/144)  and paragraph 73 above), the balance of the EC Sum was received much later after issuance of Form 25 (Certificate for Funeral and Medical Attendance Expenses)  and Form 21 (Certificate of Compensation Assessment for Fatal Case)  on 9 July 2015 and 21 August 2015 respectively (“Form 21” and “Form 25”). So it was hardly surprising that the Mother’s 2018 SWD Declaration dated 6 December 2018 (ie made more than 4 years after the Deceased passed away)  (C/144)  asserted that at the time when the Mother cancelled CSSA on 16 September 2014 she merely anticipated there would be (but had not yet received)  compensation (“…… [she] 知道會有賠償 ……” (my emphasis)). But it was plain that as at 16 September 2014 (which was long before Forms 21 and 25 were available)  the Mother had no idea as yet when she would receive EC and how much she would have expected to receive. Even if the “NTD” transfers in the Mother’s HSBC Account, which were not yet received by 16 September 2014, were some initial payments by D2, they would have been used for defraying immediate post-death expenses rather than being preserved for future household/ living expenses. In any event, even though the 2018 SWD Declaration dated 6 December 2018 (C/144)  asserted “…… 12/9/2014 [Deceased] 去世, [Mother] 知道會有賠償, 所以取消綜援 ……” (my emphasis), anticipated compensation (“會有賠償”)  was not the reason the Mother gave under cross-examination (see paragraphs 62 and 121 above), nor was it expressly stated as the reason in the 2014 SWD 3^rd Review Form dated 16 September 2014 (C/114-115)  (see paragraphs 62 and 121 above).

125.  I find on balance that anticipated compensation (“會有賠償”)  would not have exercised the Mother’s mind when she cancelled CSSA a few short days after the death of the Deceased, and that the assertion in the 2018 SWD Declaration that “…… 12/9/2014 [Deceased] 去世, [Mother] 知道會有賠償, 所以取消綜援 ……” made well after P filed her SoD on 22 March 2018 and the Mother WStmt on 25 October 2018 that averred/asserted she would have continued to rely on the Deceased’s household financial provision (家用)  but for the Accident was nothing more than a poor and unreliable attempt to distract from her true reason for voluntary cancellation of CSSA on 16 September 2014 discussed/inferred in Part IV(i)  below. In short, the Mother had not been forthcoming with the court in her oral evidence on this subject, which subject was not even mentioned in the Mother WStmt. This was also borne out by the evidence concerning her bank accounts discussed in paragraphs 154-170 below, which did not inspire confidence in her veracity as to her alleged reasons for cancelling CSSA.

126.  Further, there was no evidence that as at 16 September 2014 (i)  the Mother was even aware of the existence of Deceased’s life insurance policy(ies)  eg the CLI and/or the HSI Policies referred to in (b)-(c)  below (bearing in mind she confessed to know nothing about his scaffolding work, his earnings, his finances, his loans and/or even his outside address[34]), and/or (ii)  she had already received the insurance pay-outs from such policies. In fact, the Mother’s stance found little support in the evidence:

(a)	In the Mother WStmt, it was said “…… [Mother] 代表 [Deceased] 的遺產收下了 [Deceased] 因工傷亡所得的保險金 ……” (see paragraph 64 above), so the insurance pay-outs were presumably under life insurance policy(ies). Obviously the Deceased did not name any beneficiary (eg the Mother)  under such policy(ies)  because the death benefits were paid out to Mother in her capacity as administrator of the estate of the Deceased whose life was insured.
(b)	The transaction records of the Mother’s bank account with Nanyang Commercial Bank, Limited (“NCB”)  (“Mother’s NCB Account”)  (C/459-460)  showed insurance pay-outs of $232,403.01 were deposited into such bank account by China Life Insurance (“CLI”)  on 28 February 2018 by way of “自動轉賬”. I shall refer to the insurance policy in respect of which the aforesaid pay-outs were made as the “CLI Policy”. The Mother did not deal with the Mother’s NCB Account and/or the CLI Policy in her statement/oral evidence at all, which led to some uncertainty as to (i)  whether this was a life insurance policy or other type of insurance policy, and/or (ii)  whether it was the Mother’s or the Deceased’s insurance policy. In respect of (i)  above, given the name of CLI, I accept the CLI Policy was a life insurance policy. In respect of (ii)  above, I will further consider such matter in paragraphs 160-164 below, but suffice to state here I find it more likely than not that the CLI Policy was the Deceased’s life insurance policy, and the insurance pay-outs of $232,403.01 referred to above were the death benefits paid by CLI to the Mother as administrator on behalf of the Deceased’s estate. But it was unknown when the CLI Policy was bought, the amount of insurance premium paid/payable thereunder, and how the Deceased paid the premium (eg from income/loan monies withdrawn from the Deceased’s Account or otherwise). If the CLI Policy was the Deceased’s life insurance policy, I find the insurance pay-outs received in February 2018 would not have exercised the Mother’s mind in terminating CSSA in September 2014. Further, the Mother was necessarily a major beneficiary of the Deceased’s intestate estate which would have included the insurance pay-outs received in February 2018, but there was no disclosure of the same in the 2018 HKHA Declaration dated 24 July 2018 (C/267-282)  in the boxes for “Income from the average monthly interest, bonus and dividends etc from fixed deposits, insurance and investments” (my emphasis)  and/or “other income”, and such money asset was not mentioned as part of her individual/household net asset value (see Parts III and IV of the 2018 HKHA Declaration that required declaration of individual or household net asset value). No explanation was given by the Mother for her silence. If the CLI Policy was not the Deceased’s life insurance policy (which I find to be unlikely)  but was the Mother’s life insurance policy, she also had not disclosed the insurance pay-outs (whether as a result of surrender of policy or cash-out of savings element or otherwise)  as her own asset/income in the 2018 HKHA Declaration as aforesaid.
(c)	The Deceased’s Account showed debit payment of insurance premium from such bank account on 15 August 2014 and 15 September 2014 (3 days after the Accident)  each in the sum of $396 in favour of “HANG SENG INS CO LTD” (“HSI”)  (C/337-339). I accept this insurance policy with HSI was the Deceased’s insurance policy newly purchased in August 2014 (“HSI Policy”). There was no direct evidence whether the HSI Policy was a life insurance policy, but since the Mother did not refer to any other type of insurance, I shall assume it was a life insurance policy. There was no evidence of any named beneficiary under the HSI Policy, but in any event a named beneficiary was unlikely as explained in (a)  above. Details of the HSI Policy were sparse, and importantly, there was no evidence as to (i)  whether there were any insurance pay-outs under such policy since it was bought just a month before the Deceased died, (ii)  if so, what was the amount of such pay-outs, (iii)  if so, when did the Mother on behalf of the Deceased’s estate received such pay-outs, and (iv)  in which bank account or elsewhere the Mother received and/or kept such pay-outs. Nevertheless, the Mother WStmt confirmed she did receive insurance pay-outs from the Deceased’s insurance policy(ies)  notwithstanding the lack of details. In light of the sparsity of information about the HSI Policy, but bearing in mind (1)  the Mother confirmed under cross-examination that she knew little if at all about the Deceased’s bank accounts and finances and she would not open/read the Deceased’s bank statements sent to the Flat, (2)  apart from the donation cheques in 2014 (see paragraph 122 above), the MPF contribution pay-outs on 19 October 2018 (C/395 and paragraph 73 above)  and money exchange deposits (see paragraph 179 below), there was no significant deposit in the Mother’s HSBC Account that was more than $20,000 until a sum of $200,000 was deposited and withdrawn on the same day on 30 January 2019 (but more of this in paragraph 168(b)  below), (3)  the Mother’s NCB Account and the Mother’s BOC Account referred to in paragraph 153(c)  below were opened in June 2016 and January 2019 respectively (see paragraph 153(b)-(c)  below)  and (4)  the letters of administration that appointed the Mother as the administrator of the Deceased’s estate were dated 24 March 2017 (see item 20 of Schedule 1 Part 1 of P’s List of Documents filed on 10 May 2018, “Letters of Administration”)  such that it was unlikely for the Mother to have been able to establish her capacity to receive any insurance pay-outs on behalf of the Deceased’s estate before 2017, I am not persuaded that any insurance pay-outs under the HSI Policy would have exercised the Mother’s mind in terminating CSSA in September 2014. In any event, as explained in (b)  above, there was no disclosure of insurance pay-outs under the HSI Policy in the 2016 and/or 2018 HKHA Declarations.

127.  Still further, there was also no credible explanation why the Mother did not wait until the moneys were received (be they donations, EC Sum and/or insurance pay-outs)  before proceeding to inform SWD / HKHA of such receipts and to ask whether there was need to cancel CSSA. Indeed, the Mother only reported the re-training allowance and the subsidy for her post-natal care re-training course (received on 30 January 2014)  after the fact in the 2014 SWD 1^st Review Form dated 10 March 2014 (C/120-124)  (see paragraph 59 above), and reported her income from her post-natal care job in August 2014 (received on 14 April 2014 and 3 September 2014)  after the fact in the 2014 SWD 2^nd Review Form dated 4 September 2014 (C/117-118)  (see paragraph 59 above). I find the idea that the Mother would take the initiative to volunteer cancellation of CSSA when (on P’s case)  she would no longer receive future household financial provision (家用)  from the Deceased and before the donations, the EC Sum and the insurance pay-outs were to hand (or at least before she had some firm idea of the remaining funds from these sums after defraying funeral and other urgent post-death expenses)  quite inherently improbable.

128.  On balance I do not accept the Mother cancelled CSSA on 16 September 2014 because of anticipated charitable donations which were not actually received as yet and/or anticipated compensation also yet to be received. I also do not accept her voluntary termination of CSSA was due to anticipated insurance pay-outs. I will deal with the Mother’s reason for cancelling CSSA on 16 September 2014 in Part IV(i)  below, which discussions, inferences and findings served to further undermine the overall veracity of the Mother’s evidence and claim for loss of dependency.

(e)  P’s other contentions

129.  Mr Chong went further to submit that the Deceased must have financially supported the Mother and the Sister (who was getting older and likely to require greater expenditure)  by giving the former household financial provision (家用)  and the latter pocket money (零用錢)  because (a)  it was difficult or even insufficient for 2 adults to survive on the meagre amount of CSSA in the sum of $5,219/month at the time when the Deceased passed away, (b)  the Deceased’s personal expenses were limited, and (c)  there were no other sources of income, whether from the Father, the Brother or the Mother. I will discuss the above matters below, but find it useful to start with Mr Chong’s reliance on the rule in Browne v Dunn.[35]

(f)  Rule in Browne v Dunn

130.  Mr Chong complained that Mr Sakrani failed to put to the Mother during cross-examination she was not telling the truth in her oral evidence and/or the SWD / HKHA Forms reflected the true state of affairs. I have explained the principles of the rule in Browne v Dunn in DBS Bank (Hong Kong)  Limited v Sit Pan Jit[36] as follows:

“240. However, the rule in Browne v Dunn is not an inflexible one, and there is no requirement in law that the tribunal of fact must accept that evidence. As Lam VP in Pacific Electric Wire & Cable Company Limited v Gold Global Limited & ors explained:

“124. The rule in Browne v Dunn …… is not an inflexible one. It is not broken even if a material matter is not put to a witness, if the witness can fairly and objectively be said to be on notice of it or where the point is so apparent …… It is pertinent to have regard to the full written opening of PEWC so Willi must be on notice of the allegations that would be made against him.

125.  Nor does the principle in Browne v Dunn inflexibly require every point which might be used against a witness to be put to him.  In essence, the principle is breached if in all the circumstances an omission to cross-examine on a specific point is unfair to a witness ……”

Recently in LWYA v KYW and LLP (intervenor), the father relied on the failure by the husband’s counsel to suggest in cross-examination that the father or the wife was not telling the truth, but the first instance judge did not think it was necessary to put to the father or the wife they were lying because everybody knew where they stood in this regard and the issue was well and truly joined.  Kwan JA said at paragraph 91 as follows:

“I agree with the judge. I am satisfied there was no procedural unfairness. The parties knew their respective positions regarding the issue plainly in contest. The father and the wife knew the imputation intended to be made against them and had the opportunity to make any explanation open to them. There was no need to put to them what was obvious.””

131.  Mr Chong submitted that (a)  Mr Sakhrani in cross- examining the Mother simply went through the paragraphs/contents of the SWD / HKHA Forms to verify with her that she was telling the truth when she filled out such forms, but at that time the Mother believed she was telling the truth as she did not recognise that contributions or financial support from the Deceased were required to be declared, and (b)  Mr Sakhrani did not go further to put to her the Deceased in fact did not provide (i)  any “pocket-money” to the Mother and Sister, and (ii)  the level of monthly contribution as she claimed in the Mother WStmt.

132.  These points can be dealt with very shortly, and the matters below showed there was no merit in the Browne v Dunne point:

(a)	The Mother confirmed under cross-examination that the information she provided in the SWD / HKHA Forms were true and correct, so there was really nothing for Mr Sakhrani to put to the Mother. I have also found the Mother knowingly stated in the SWD / HKHA Forms there were no “contributions” and/or “financial support” from “relatives and friends” (including the Deceased), and there was no belief or misunderstanding on the part of the Mother as alleged in paragraph 131(a)  above (see paragraphs 95-109 above).
(b)	As pointed out in paragraph 99 above, the Mother perceived the alleged contributions and/or financial support from the Deceased as household financial provision (家用)  and not as pocket money (零用錢), which lent weight to the view that it was inherently improbable for the Mother to have the belief or misunderstanding as alleged in paragraph 131(a)  above.
(c)	D2-D5 had no knowledge of (and hence had no positive case to put to the Mother on)  whether she received household financial provision (家用)  from the Deceased, but it must be open for them to persuade the court on the evidence as to whether or not her assertions were credible/reliable and/or whether or not any weight should be given to her evidence.
(d)	In any event, there was no procedural unfairness. The Mother well knew D2-D5’s position and the imputation they intended to make against her. The obvious contradictions between the contents of the SWD / HKHA Forms (which were disclosed/discovered by P/Mother)  and the 4/16/18 Parts in the Mother WStmt (which were made by the Mother)  were clearly highlighted at the outset of the Assessment Hearing, and opportunity was given for P/Mother to receive legal advice on the same (see paragraph 18 above). Nevertheless, P/Mother elected not to seek leave to explain such apparent discrepancies in her evidence-in-chief, which discrepancies were underlined by multiple warnings against self-incrimination throughout her oral evidence (see paragraphs 19-20 above). In my view, there was no need for Mr Sakhrani to put to the Mother what was obvious.

(g)  Other sources: Father

133.  Mr Chong submitted the SWD Forms showed the divorce maintenance from the Father was negligible, and the Mother confirmed it was never received. I accept on balance the Mother herself did not receive any contributions or financial support from the Father. However, the Mother WStmt stated that after the Mother’s divorce in 2004, the Father was responsible for part of the Sister’s living expenses. The Mother did not disclose the amount of the Father’s contributions or financial support for the Sister, which necessarily drew criticism as such information must be materially relevant to P’s claim for loss of the Dependants’ substantial dependency of $5,500/month on the Deceased that even exceeded the monthly CSSA payment ($5,219)  at the time of the Accident. More importantly, the Mother did not in her statement/oral evidence say the Father ceased his contributions or financial support for the Sister during her minority (ie before February 2017)  or before she completed her education. Further, P did not seek to clear the air by removing the obliterations in the HKHA Forms in respect of the Sister’s principal and other incomes even though it would have been within her power to obtain un-redacted copies from HKHA.[37] But I bear in mind the Father passed away from illness in 2018 (see paragraph 2 above)  and the Mother made the 2017 SWD Declaration dated 17 November 2017 (C/113)  to act as authorised person to handle the Father’s application for CSSA[38] (see paragraph 17(c)  above), which reasonably suggested that by late 2017 the Father was unlikely to be financially able to make further contributions or to give further financial support to the Sister even though she had yet to commence her tertiary studies. I therefore find and infer on balance that up to 2016 (including up to the death of the Deceased in September 2014), the Father still contributed to and/or still gave financial support for part of the Sister’s living expenses, and the veracity of the Mother’s/Sister’s evidence as to their then needs/expenses and the then alleged household financial provision (家用)  from the Deceased must be viewed through the prism of such financial assistance from the Father for the Sister.

(h)  Other sources: Brother

134.  P’s contentions Mr Chong submitted it was the Mother’s evidence that (a)  her relationship with the Brother was never harmonious, (b)  he moved out from the Flat to stay at his friend’s place when he obtained his electrical worker licence (which was before the Deceased obtained his Intermediate Grade Trade Test Certificates (bamboo / metal scaffolding)  in 2008/2009, and (c)  by 2016 the Brother was based in Mainland China and would return occasionally to stay at the Flat. Mr Chong further submitted the Brother ceased all financial contributions to the Mother, and despite Mr Sakhrani’s attempts to suggest to the Mother in the course of cross-examination that the Brother paid some contributions to her and some pocket money to the Sister, the Mother clearly/firmly disagreed (due to their personality clash and poor relationship)  and the Sister also confirmed the Brother did not give her any money for daily maintenance. Mr Chong argued the Brother did not get along well with the Mother and the Sister, and he never provided any “pocket money” to them. Mr Chong reminded there was no suggestion that any of the deposits into the Mother’s HSBC Account came from the Brother, and the Sister added it was the Deceased who took care of her more whilst the Brother “did not take care of her financially”. Mr Chong submitted that D2-D5 merely theorised (without factual basis)  that the Brother financially supported the Mother and the Sister after the death of the Deceased, but such proposition ignored the fact that after the Accident the Mother received the EC Sum ($1,070,038)  and the insurance pay-outs, which enabled the Mother and the Sister to live without contributions from the Brother.

135.  Early mother-son relationship  It is useful to start with the Mother’s evidence that (a)  all along her relationship with the Brother was not harmonious, (b)  they had personality clash, and (c)  whenever money was mentioned it was like Mars hitting Earth (see paragraphs 26(a)  and 65 above). But even on the Mother’s testimony, it was not always the case. The Brother was her eldest son, and he was the first to start working. In his first job after quitting school as a takeaway worker presumably earning a modest income, he still gave her $200-$300/month as household financial provision (家用)  (see paragraph 24 above). He was also amenable to her suggestion to obtain an electrical worker licence (see paragraph 25 above). Plainly, their relationship was quite well up to that time.

136.  Alleged disharmony  But P claimed (as evident from the Mother WStmt and the Mother’s testimony under cross-examination)  that when the Brother obtained his electrical worker licence (and presumably starting to earn better income as a skilled electrical technician although the Mother had no idea about his earnings – see paragraph 25 above), he ceased to give her any household financial provision (家用)  (see paragraph 26(b)  above). The Mother put it down to their poor relationship, but the assertions in paragraphs 26, 65 and 135(a)-(c)  above were bare assertions unsupported by factual evidence of concrete clashes, differences, disputes and/or incidents that demonstrated or illustrated causation as well as continuation of alleged deterioration of their relationship, particularly over money matters, when the Brother was quite willing to give the Mother $200-$300/month even when he earned modest income as a takeaway worker and when he filially acceded to her wish that he should become an electrical licence worker. Moreover, it was P’s case that the Mother’s disharmony with Brother never abated, but as discussed and found in paragraph 149 below, even the Mother’s evidence showed a caring side to the Brother who was helpful to her for her continued rental of the public housing Flat after the death of the Deceased. In my view, the above matters served to undermine the Mother’s claim of poor relationship with the Brother, which assertion I find to be an ineffectual attempt to downplay the Mother’s connection with the Brother in order to bolster her alleged financial reliance on the Deceased.

137.  Moving out from the Flat  In my view, the unreliability of the Mother’s testimony in relation to the Brother was illustrated by her uncertain stance as to when he moved out from the Flat. As Mr Sakhrani submitted, the Mother’s evidence in this respect was not clear and/or consistent. To put her assertions in this respect in proper context, I note her evidence that (i)  the Brother was born on 14 September 1989 (see paragraph 22 above), (ii)  the Mother and the Father divorced in 2004 (see paragraph 22 above), (iii)  the Father moved out from the Flat after the divorce (see paragraphs 22 and 73 above), (iv)  after completing Form 3 the Brother worked as a takeaway worker (see paragraph 24 above), and (v)  he obtained his electrical worker licence when he was about 18 years old (ie in/about 2007)  and about 3 years after he joined the employer’s company (ie in/about 2004)  (see paragraph 25 above). Against such background, the Mother’s wavering stance/evidence as to when the Brother left the Flat teetered uncertainly among the following:

(a)	In the 2018 SWD Declaration dated 6 December 2018 (C/144)  (see paragraph 73 above), the Mother declared that “[Father / Brother] 2005年9月尾搬走, 沒有聯絡電話, 沒有給家用”[39] (my emphasis). This declaration by the Mother suggested the Brother moved out from the Flat (as did the Father)  after the parents’ divorce and/or about the time he joined his employer’s company in 2004 but years before he became an electrical licence worker in/about 2007. In my view, the implicit undertone of such declaration by the Mother was that she had no further contact with the Brother as there were no means to communicate with him, and she harnassed such implication to bolster her suggestion that the Brother did not give her any household financial provision (家用). The above scenario as stated in the 2018 SWD Declaration did not sit well with the scenario stated in the Mother WStmt that asserted that the Brother moved out of the Flat 7 years later in 2012 (see paragraphs 26-27 above and (d)  below). There was no express assertion in the 2018 SWD Declaration that after moving out, the Brother occasionally returned to stay at the Flat, which was unsurprising as such assertion would have flied against the obvious implication of the 2018 SWD Declaration as explained above. But this meant the 2018 SWD Declaration did not sit well with the scenarios in (b)-(c)  below.
(b)	The Mother claimed under cross-examination that when the Brother obtained his electrical worker licence he stayed at his friend’s place and only occasionally returned to stay at the Flat (see paragraph 28(a)  above). This suggested that the Brother had moved out from the Flat by about 2007, but it was not yet a total cut-off from home as the Mother said he occasionally returned to stay at the Flat. But this did not sit well with the scenarios in (a)  above and (d)  below.
(c)	Earlier on under cross-examination, the Mother claimed the Brother had already moved out from the Flat by 2009 to stay at his friend’s place on on-and-off basis, returning occasionally to stay at the Flat (see paragraph 28 above). This suggested that even by about 2009 (ie about 2 years after he obtained his electrical worker licence), the Brother had moved out from the Flat only on on-and-off basis, and he would occasionally return to stay at the Flat. But again this assertion did not sit well with the scenarios in (a)  above and (d)  below.
(d)	The Mother WStmt claimed that after the divorce between the Father and the Mother in 2004, the Father moved out from the Flat, but the Brother continued to live there with the Mother, the Deceased and the Sister until the Brother moved out in 2012, and after the death of the Deceased he occasionally returned to the Flat for short stays (see paragraphs 22, 26(c)  and 66 above). There was no suggestion in the Mother WStmt that the Brother returned to the Flat for occasional short stays prior to the death of the Deceased, thus the Mother WStmt did not sit well with (b)-(c)  above. The Mother WStmt suggested the Brother moved out from the Flat about 5 years after he became an electrical licence worker, which again did not sit well with (b)-(c)  above. The Mother WStmt also contradicted the 2018 SWD Declaration in (a)  above by asserting that the Brother moved out from the Flat about 7 years after the time he moved out as asserted in the 2018 SWD Declaration. Further, as explained in paragraph 27(a)  above, the above scenario in the Mother WStmt also did not sit with the Mother’s declaration in the undated 2010 HKHA Declaration (C/235-242), which stated that apart from the Mother (as tenant)  the only other household member at the Flat was the Sister (and neither the Brother nor the Deceased was so named).

The Sister’s evidence did not bring any enlightenment on this issue because she did not say when the Brother moved out from the Flat, putting it down to failed recollection (see paragraph 28 and footnote 8 above).

138.  Household financial provision (家用)  The unreliability of the Mother’s evidence as to when the Brother moved out from the Flat spilled over to her evidence that the Brother failed to give her any household financial provision (家用). In the 2018 SWD Declaration dated 6 December 2018 (C/144)  (see paragraph 73 above), the Mother declared that after the Father and the Brother moved out from the Flat by end of September 2005 (ie about 2 years before the Brother became an electrical licence worker), neither of them gave her any household financial provision (家用)  (see paragraph 137(a)  above). But the Mother WStmt and the Mother’s evidence under cross-examination claimed the Brother gave the Mother $200-$300/month as household financial provision (家用)  when he worked as a takeaway worker prior to becoming an electrical licence worker (see paragraph 24 above). In any event, the Mother’s allegation in the 2018 SWD Declaration did not sit well with her statement/oral evidence that the Brother ceased to give her any household financial provision (家用)  after he obtained his electrical worker licence, ie since about 2007 (see paragraphs 26(b), 28(b)  and 137(v)  above).

139.  Moreover, the scenario alleged in the Mother WStmt in paragraph 137(d)  above (ie the Brother continued to reside at the Flat until 2012), which flied against the scenarios in paragraph 137(a)-(c)  above, necessarily suggested that the Brother failed to give the Mother any financial contribution/support to cover even his own share of common household expenses for living at and having meals at the Flat from about 2005 or 2007 (see paragraph 137 (a)-(b)  above)  until 2012. Notwithstanding the Mother’s allegation of mother-and-son disharmony, I find it quite implausible on the Mother’s evidence that the Brother, who began earning income as a skilled electrical technician in/after 2007, would refuse to give any financial contribution/support and yet would live off the Mother who was on CSSA payments for herself and the Sister for 5 more years until 2012, especially as (according to the Mother)  (a)  there was no evidence whether the Deceased gave her any household financial provision (家用)  when he worked at the scaffolding factory in 2008/2009 (see paragraph 43 above), and (b)  the Deceased was unable to support her when he was imprisoned in 2010-2011 (see paragraph 43 above). It was in face of such evidential difficulty that the Mother under cross-examination testified to the scenarios in paragraph 137(b)-(c)  above, ie that the Brother moved out from the Flat not in 2012 but on on-and-off basis by 2007 or 2009 (see paragraphs 26-28 above), which gave rise to concern that they might well be belated afterthoughts put forward to paper over weakness or implausibility in the Mother WStmt.

140.  As alluded to in paragraph 137(d)  above, the Mother WStmt stated the Brother moved out from the Flat in 2012 without express mention that he would return for occasional stays. Likewise, the Mother’s assertions in paragraph 15 of the 2012 SWD Review Form dated 13 September 2012 (C/138-142)  that “兒子 [Deceased] 和 [Brother] 搬走, 並拒絕透露其居住地址 ……” (see paragraph 39(f)  above)  and in the 2018 SWD Declaration dated 6 December 2018 (C/144)  that “[Father / Brother] 2005年9月尾搬走, 沒有聯絡電話 ……” (see paragraph 137(a)  above)  (both submitted to SWD for her continuation of and application for CSSA)  also did not refer to the Brother’s occasional returns to the Flat for short stays (see the Mother’s evidence under cross-examination in paragraphs 28 and 137(b)-(c)  above)  or for dinner (see the Sister’s evidence under cross-examination in paragraph 28 above). But given the Mother’s insistence under cross-examination that the Brother returned to the Flat for occasional stays even before the death of the Deceased, and the Sister’s testimony that he occasionally returned to the Flat for dinner, there must be inevitable concern whether the Mother’s reticence over such matters in the Mother WStmt was a conscious attempt to emphasise alleged lack of further contact with the Brother to bolster her case that he did not give her any household financial provision (家用)  after he obtained his electrical worker licence. In my view, the Mother’s reticence about the Brother that began in the 2012 SWD Review Form had the hallmarks of calculated readiness to say what was perceived to favour her application for and/or continuation of CSSA and for her claim for loss of dependency on the Deceased, which effort was maintained in the Mother WStmt and the 2018 SWD Declaration until the Mother found it difficult to support such stance under vigorous cross-examination (see paragraph above).

141.  Pre-death  On balance, I find the Mother’s evidence in this respect wholly unreliable, and I am not convinced any weight could be safely placed on her allegations that the Brother moved out of the Flat (a)  as early as in 2005, (b)  in 2007 or 2009, or (c)  as late as in 2012. The available objective evidence (ie the undated 2010 HKHA Declaration (C/235-242))  showed the Brother was no longer a household member at the Flat in 2010. I find on balance he moved out from the Flat by 2010 to stay at his friend’s place but, as the Sister testified under cross- examination, he occasionally returned to the Flat for dinner. Given the Brother was prepared to (and did return to)  the Mother’s home (ie the Flat)  to “break bread” with the family even after he had moved out (with the Mother going further to say he occasionally returned to the Flat for short stays), I am not persuaded the relationship between the Brother and the Mother was as estranged as the latter would have let this court believe. Indeed, even on the Mother’s and Sister’s own evidence, their relationship was not as poor nor as distant as alleged in the Mother WStmt and/or in the 2018 SWD Declaration, which did not refer to any subsequent contact with the Brother after he moved out from the Flat (see paragraph 137(a)  and (d)  above).

142.  That being the case, I find it quite implausible (as the Mother claimed)  that the Brother would not have given any contribution or pocket money to the Mother after he obtained his electrical worker licence (ie in/about 2007)  until he moved out of the Flat in 2010. This was especially so when (as I have found in the paragraph above)  the relationship between the Mother and the Brother was better than the Mother sought to portray in her evidence, and when the Brother would have earned better income as a skilled electrical technician than as a takeaway worker, so the Brother must have given the Mother some financial contribution/support to cover or contribute to his own share of the household expenses including his meals at the Flat.

143.  I also find on balance that the Brother continued to give some pocket money to the Mother after he moved out from the Flat. In coming to this finding, I have carefully considered the relevant factual context at the material time. On the revenue side, as explained in paragraphs 23 and 133 above, the Sister’s living expenses were partially supported by the Father (although the Mother was shy in letting the court know the amount of such partial financial support for the Sister). As for the Deceased, he gave few hundred dollars a month to the Mother when he worked as an attendant at an internet bar after he quitted school (see paragraphs 32 and 43 above). Even if the Deceased continued such support to the Mother when he worked at the scaffolding factory in 2008/2009 (see paragraphs 32 and 43 above)  (although there was no such evidence), such financial support from the Deceased of a few hundred dollars a month was lost to her in 2010/2011 when the Deceased committed criminal offences and was imprisoned (see paragraphs 34 and 43 above). According to the undated 2010 HKHA Declaration (C/235/242), the Mother was then receiving CSSA in the sum of $5,982.12/month for herself and the Sister, and they did not have to pay rent for the Flat (see paragraph 34 above). On the expenditure side, by 2010 there were 2 less mouths to feed and to incur general household/living expenses at the Flat. The Deceased was imprisoned, and I have found the Brother moved out from the Flat in 2010. On the Mother’s and the Sister’s testimony under cross- examination, after moving out of the Flat the Brother only returned occasionally for short stays and/or for dinners.

144.  I find on balance that the Mother and the Sister were able to manage and live modestly on a budget comprising the monthly CSSA payment and the Father’s financial support for part of the Sister’s living expenses. Given (a)  my finding that the relationship between the Mother and the Brother was better than portrayed by the Mother (see paragraph 141 above), (b)  the Mother’s and the Sister’s evidence that the Brother still occasionally returned to the Flat for short stays and/or meals (see paragraph 141 above)  which meant the household monies would be partly utilised (albeit to a minor degree)  for the Brother’s benefit, and (c)  my finding on balance that the Brother must have known the Deceased was imprisoned given his very close relationship with the Deceased (see paragraph 29(a)-(b)  above)  and his occasional returns to the Flat (see paragraphs 28 , 137(b)-(c)  and 141 above)  and hence must have realised the Mother could not look towards the Deceased, I find on balance the Brother would have continued to give the Mother some pocket money each month, but the amount would have been modest because he was aware of the safety net of monthly CSSA payments available for the Mother and the Sister (the latter of whom also had the benefit of the Father’s support for part of her living expenses), and he just moved out from the Flat in 2010 and necessarily had to incur (i)  personal expenses as a young adult wage-earner newly living away from home, and (ii)  his portion of communal household expenses in sharing household at his friend’s place. In my view, neither the Mother nor the Brother perceived the latter’s provision to the former of such pocket money in a modest amount as regular household financial provision (家用), and hence the Mother did not report the same in the 2010 HKHA Declaration.

145.  On balance and in light of the above discussions, I do not accept the Mother’s evidence that (a)  she did not tell the Brother there was financial hardship due to the Deceased’s imprisonment, (b)  she did not ask the Brother whether he could financially support her, and (c)  the Brother did not pay her any money/contribution to supplement her household expenses and/or to help with the Sister’s expenses (see paragraph 34 above). I find on balance the Brother knew and/or the Mother did inform the Brother about the Deceased’s imprisonment, but there was no need for the Mother to request support from the Brother who was already giving her pocket money in a modest sum each month (see paragraph above).

146.  After the Deceased was released from prison and until his death, there were no material changes in the circumstances of the Brother. He continued to work as an electrical technician, and (according to the Mother and the Sister)  continued to live outside with occasional short stays and/or occasional dinners at the Flat. There was real possibility of increase in income as he gained more experience in his skilled work as an electrical technician, but then as a young adult wage-earner he might also have spent more on himself. It would not be beyond imagination if he were to share a more comfortable household with his friend, or even to rent his own abode or to share his life with a girlfriend. But there no evidence of the Brother’s income and expenses during such period. Doing the best on the evidence, I find/infer on balance that the Brother would have continued to pay pocket money in a modest sum to the Mother up to the time the Deceased passed away.

147.  Sister  Mr Chong tried to paint a picture of the Brother not getting along with the Mother and uncaring of the Sister to support the suggestion that he would not have made any contribution or financial support. I have found the relationship between the Mother and the Brother was not as strained as portrayed. As for the Sister, even though she was on better terms with the Deceased than with the Brother, I disagree the Brother and the Sister did not get along as Mr Chong suggested. In fact, the Mother gave evidence that as far as she could see the relationship between the Brother and the Sister between 2009 and 2014 was good (see paragraph 29(i)  above), and although the Sister spoke more highly of the Deceased and claimed the Brother seldom took care of her (see paragraph 30 above), it was a far cry from saying she and the Brother did not get along. Moreover, I agree with Mr Sakhrani that it was not the Sister’s evidence that all along (ie in the period before the Deceased passed away)  the Brother did not take care of her financially. Her evidence was that since the Brother started to work in Mainland China 1-2 years before she studied at City University (ie 2016-2017), he did not give her money for her maintenance when he returned home from Mainland China (see paragraph 67 above). However, with (a)  the Mother receiving monthly CSSA payments that was inclusive of the Sister’s education/travel allowance, (b)  the Father supporting part of the Sister’s living expenses, and (c)  the Brother’s relationship with the Sister being cordial rather than effusive, I agree the Brother did not separately give the Sister pocket money apart from the pocket money he gave to the Mother for general use.

148.  Post-death  As for the situation after the Deceased passed away, the Mother claimed the usual household residents at the Flat were herself and the Sister (see paragraph 66 above). But (according to the Mother’s evidence under cross-examination)  the Brother occasionally “came back to stay the night” and (see paragraph 66 above)  and (according to the Sister’s evidence under cross-examination)  after he went to work in Mainland China the Brother would stay at the Flat whenever he returned to Hong Kong (see paragraph 67 above), which meant he would be using part of the Mother’s household income (albeit to a minor degree)  for his own benefit. At that time the Mother was no longer receiving CSSA or any support from the Deceased. And yet it was the Mother’s evidence that despite the aforesaid and despite her claim that inflation was different in that her expenses in 2014 were much higher (百物騰貴), still the Brother did not give any financial contribution/ support for her and the Sister after the funeral (which the Brother attended)  (see paragraph 65 above). Mr Sakhrani submitted it was unusual and inherently improbable in a local family, particularly when (according to the Mother)  the Mother and the Sister had lost the Deceased’s household financial provision (家用), and he suggested the Mother did not offer any credible explanation.

149.  I note with interest there was no evidence from the Mother as to why after the Deceased passed away, given the alleged antagonism between her and the Brother (which she did not claim to have abated), the Brother was willing (a)  to allow himself to be named as a household member on the household card of the Flat and in the 2016 and 2018 HKHA Declarations dated 5 October 2016 and 24 July 2018 respectively (C/259-266 and C/267-282)  (see paragraphs 68-69 above), (b)  to disclose in the 2016 and 2018 HKHA Declarations his own financial information as to his principal income and other income if any (including his monthly earnings of $18,000/month and $20,557/month in 2016 and 2018 respectively)  (see paragraphs 68-69 above), (c)  to provide his monthly salary payslips to the Mother for submission to HKHA (see paragraph 68 above), and (d)  to sign a declaration similar to the one in paragraph 17(f)  above to verify his income declaration in the 2018 HKHA Declaration on pain of potential prosecution for falsities and/or omissions, all of which concerned money matters but did not result in “Mars hitting Earth”. On the contrary, the Brother’s above conduct demonstrated a caring attitude to the Mother and Sister by involving himself in family affairs to the extent of revealing and verifying by declaration his income in order to support continued public housing for the Mother and the Sister.

150.  Further, the Mother’s and the Sister’s evidence as to when the Brother started working in Mainland China was not very clear. According to the Mother’s understanding, at the time when she made the Mother WStmt (ie 2018), the Brother had a job in Mainland China, but she had no details thereof (see paragraph 66 above). But the Sister’s evidence under cross-examination was that in the 1-2 years before she studied at City University (ie about 2016-2017), the Brother went to work in Mainland China, and after he started working in Mainland China, he would stay at the Flat whenever he returned to Hong Kong (see paragraph 67 above).

151.  On balance, I find it more likely than not that the Brother worked in Mainland China since 2016-2017. The Sister’s evidence in this respect was more credible as she was able to identify the relevant time by reference to her tertiary studies. In any event, such finding would not contradict the Mother’s evidence that merely asserted the Brother was working in Mainland China in 2018. I also find on balance that the Brother would return to Hong Kong now and then, eg during Chinese New Year break, long public holidays and/or annual leave. Given that the Brother spent most of his time in Mainland China, it would have been impractical and cost-ineffective for him to keep an abode or household in Hong Kong (whether solely or on shared basis). I find it likely that he would have stayed and would have meals at the Flat whenever he returned to Hong Kong. I find on balance that since 2016 the Brother was a household member of the Mother’s household at the Flat even though most of the time his work in Mainland China took him away from the Flat.

152.  In my view, this bolstered the view that the mother-son relationship between the Mother and the Brother was not as strained as the Mother sought to portray, and the Mother’s assertion otherwise was nothing more than a poor effort to downplay the Brother’s contribution. Further, this also explained why the Brother as household member of the Mother’s household at the Flat was prepared to involve himself in family affairs by declaring his income in the 2016 and 2018 HKHA Declarations (see paragraph 149 above)  to support the Mother’s continued rental of the public housing Flat, which income declaration, according to the Mother, was for demonstrating to HKHA her ability as tenant of the Flat to pay rent from her overall household income (as she did not have a job, she had no income, she was not receiving CSSA and the Sister was a mere student)  (see paragraph 68-69 above). The silence in the Mother WStmt made on 25 October 2018, ie about 3 months after the 2018 HKHA Declaration, about (a)  the Brother’s declaration of his income of $20,557/month as the Mother’s “household income” (家庭入息), and (b)  the Brother’s stay at the Flat whenever he returned from work in Mainland China and when he had to work early the following morning, spoke of unreliable reticence to downplay (i)  the Brother’s involvement (financial or otherwise)  in the Mother’s household after the death of the Deceased, and (ii)  the Brother’s caring and supportive attitude that belied the Mother’s allegation of hostility/dissension between them.

153.  But Mr Chong countered to say that by that time the Mother and the Sister had use of the EC Sum and the insurance pay-outs, so they could not have been reliant on the Brother. To give proper consideration to Mr Chong’s contention, it is necessary to turn to the Mother’s following bank accounts:[40]

(a)	Mother’s HSBC Account: P disclosed/discovered the transactions record for the period from 1 December 2013 to 14 December 2020;
(b)	Mother’s NCB Account: such bank account was opened on 30 June 2016 and closed on 12 November 2018, and P disclosed/discovered the bank statements during such period;
(c)	the Mother’s bank account with Bank of China (Hong Kong)  Ltd (“Mother’s BOC Account”): P disclosed/discovered the transactions record for the period from 31 January 2019 to 14 December 2020.[41]

154.  These bank account documents were disclosed/discovered by P, but there was no evidence from the Mother to explain the oddities in the bank transactions, which regrettably painted a different picture and suggested the Mother was not above financial strategy in relation to the EC Sum and possibly the insurance pay-outs.

155.  Whilst the Mother and the Sister received some advance payment of the EC Sum at the end of December 2014 (see paragraph 16 of the 2018 SWD Declaration dated 6 December 2018 (C/144)  that stated “2014年尾收到約港幣三十萬賠償” - see paragraph 73 above), such sum was not deposited in the Mother’s HSBC Account. In the period from December 2014 to May 2015, there were only 3 deposits of $2,520 (11 December 2014), $300 (27 February 2015)  and $500 (26 March 2015). But there were multiple withdrawals from the Mother’s HSBC Account in those months (and thereafter), which I assume in favour of the Mother to be for defraying her household/living expenses. But the whereabouts of the advance payment of the EC Sum (of about $300,000)  was unknown, and if it were deposited in some other bank account, the Mother had not explained why the bank passbook, the bank statements and/or the transactions record of such other bank account were not disclosed.

156.  As for the balance of the EC Sum of about $800,000, ie EC Sum of $1,070,038 (see paragraph 8 above)  less the EC advance payment of about $300,000 (see paragraph above), it would have been paid after Form 21 and Form 25 were issued in July/August 2015 (see paragraph 124 above). However, no such sum or similar sum was deposited in the Mother’s HSBC and NCB Accounts in 2015/2016. There was a cheque deposit (無存摺交換票交易)  of $800,020.84 on 27 April 2017 in the Mother’s NCB Account (C/433-434). Given (a)  the similarity to the estimated amount of the balance of the EC Sum, (b)  the absence of explanation by the Mother about such significant cheque deposit, and (c)  the Mother’s failure to identify other financial resource available to her for about $800,000 other than the balance of the EC Sum, I find on balance that the deposit of $800,020.84 on 27April 2017 in the Mother’s NCB Account was the balance of the EC Sum. What was unclear though was whether this cheque deposit was direct payment by the EC insurer or whether the balance of the EC Sum had been paid on 6 October 2015 (as Mr Sakhrani submitted)  but the Mother had kept such monies somewhere unknown to D2-D5 and the court before depositing the same in the Mother’s NCB Account in April 2017. Such monies certainly did not come from the Mother’s HSBC Account, which had an account balance of $91.12 on 27 April 2017. The mystery as to the whereabouts/disposal of the balance of the EC Sum lent weight to the view that the Mother was keeping it away from the spotlight vis-à-vis SWD and/or HKHA.

157.  But irrespective whether the balance of the EC Sum was received in 2015 or 2017, the 2016 and 2018 HKHA Declarations dated 5 October 2016 and 24 July 2018 (C/259-266 and C/267-282)  did not mention the EC Sum in the boxes for the Mother in respect of “Income from the average monthly interest, bonus and dividends, etc from fixed deposits, insurance and investments” and/or “other income”, especially when the 2018 HKHA Declaration required declaration of individual or household net asset value (see Parts III and IV of the 2018 HKHA Declaration). The Mother did not explain why she did not account for the EC Sum (both advance payment at the end of 2014 and balance payment in late 2015 or early 2017)  in the 2016 and/or 2018 HKHA Declarations. I bear in mind that on P’s case the Mother’s and the Sister’s household/ living expenses were allegedly about $11,000/month (see paragraphs 51 and 120(a)  above)  At such alleged rate of household/living expenses (even though the Mother would not have to incur cost of the Deceased’s dinners after he passed away), the EC Sum of $1,070,038 would have lasted about 8 years, so as at 2016 and/or 2018 there should still be substantial remaining balance of the EC Sum in the Mother’s hands even though she did not disclose where she kept such monies. There was no or no credible reason why she did not make proper declaration of individual or household net asset value that included the EC Sum or balance thereof (especially in the 2018 HKHA Declaration). Plainly, the Mother kept the advance payment of the EC Sum of about $300,000 away from HKHA’s scrutiny until the 2018 SWD Declaration that claimed such funds had been exhausted (see paragraph 73 above). Further, as seen in the paragraph below, how the Mother dealt with the balance of the EC Sum ($800,020.84)  deposited in the Mother’s NCB Account on 27 April 2017 also demonstrated that she was keeping it under wraps.

158.  After the balance of the EC Sum in the sum of $800,020.84 was deposited in the Mother’s NCB Account on 27 April 2017, the account balance in such bank account increased from $600.44 to $800,621.28 (C/433-434). The subsequent transactions in such bank account did not show the Mother used those funds to live modestly by defraying household/living expenses as she alleged. Rather, the Mother immediately withdrew $200,000 on the following day (28 April 2017)  (C/433-434), but the purpose and destination of such withdrawal were again unknown. Then followed a pattern of frequent, multiple and substantial withdrawals each month for the following 8 months that almost depleted the balance of the EC Sum. There were 13 withdrawals (each ranging from $3,000 to $50,000)  in May 2017,[42] 23 withdrawals (each ranging from $1,000 to $6,000)  in June 2017,[43] 16 withdrawals (each ranging from $2,000 to $6,000)  in July 2017,[44] 10 withdrawals (each ranging from $2,000 to $6,000)  in August 2017,[45] 9 withdrawals (each ranging from $1,500 to $6,000)  in September 2017,[46] 12 withdrawals (each ranging from $3,000 to $6,000)  in October 2017,[47] and 7 withdrawals (each ranging from $800 to $6,000)[48] in November 2017 that reduced the account balance in the Mother’s NCB Account to $455,928.06 (C/435-437), $343,589.77 (C/438-440), $167,285.55 (C/441-443)  (inclusive of a loan repayment in the sum of $100,000 in respect of the 1^st NCB Loan referred to in paragraph 160(a)  below – see also paragraph 161 below), $118,160.39 (C/444-446), $75,554.23 (C/447-448), $68,796.96 (C/449-451)  and $40,090.80 (C/452-453)  respectively.

159.  A number of matters were of note, and they did not put the Mother in good light in relation to her finances and dealings with SWD / HKHA, which must detract from her overall veracity on money matters:

(a)	The withdrawals of, say, $200,000, $145,015, $111,400, $76,000, $49,015, $42,500, $44,715 and $28,600 from April to November 2017 (see the paragraph above)  far exceeded the Mother’s and the Sister’s monthly need to pay for alleged household/living expenses of about $11,000/month (on the Mother’s evidence), and the withdrawals could not have been made for such purpose.
(b)	The destination(s)  of such withdrawals were unknown, and corresponding deposits could not be found in the Mother’s HSBC Account, which appeared to be the bank account from which the Mother made withdrawals for household/living expenses and for making auto-payments for utility expenses. Given the level of the Mother’s and the Sister’s claimed household/living expenses and the lack of corresponding deposits in the disclosed bank accounts, such frequent, multiple and substantial withdrawals suggested the withdrawn monies were kept elsewhere away from scrutiny.
(c)	There were quite a number of double and triple withdrawals within the same day which was quite inexplicable on the evidence except that the Mother appeared anxious to withdraw a large amount on those days by “ATM” (automatic teller machine)  to quickly reduce the balance of the EC Sum in the Mother’s NCB Account.[49]
(d)	As explained in paragraph 170 below, the Mother’s NCB Account was to facilitate inter alia processing of the cheque deposit for the balance of the EC Sum (which thereafter was substantially withdrawn from such bank account over a period of about 8 months for destination(s)  unknown – see paragraphs 158 and 159(a)  above)  in time for such bank account to be timeously closed on 12 November 2018, a day before the Mother submitted to SWD her 2018 SWD Registration Form dated 13 November 2018 (C/111-112)  to again apply for CSSA on 6 December 2018 by the 2018 SWD Application Form (C/103-110)  and the 2018 SWD Declaration (C/144), all of which forms made no reference to the Mother’s NCB Account that was conveniently closed or to the balance of the EC Sum that was withdrawn and kept elsewhere unknown. This was borne out by the 2018 SWD Registration Form in which the Mother stated in paragraph 5 therein under the heading “Assets held by the applicant and other family member(s)  (including those in Hong Kong, Macao, the Mainland or overseas)” that her “Cash and savings in bank (including savings, fixed deposit, foreign currency, etc)” were “$2200”, which in light of paragraphs 158 and 159(a)-(c)  above could not have been correct.
(e)	As explained in paragraph 157 above, the Mother did not in the 2018 HKHA Declaration dated 24 July 2018 (C/267-282)  state/declare individual or household net asset value that comprised either the balance of the EC Sum or such sum as withdrawn from the Mother’s NCB Account by frequent and multiple withdrawals in 2017 for destination(s)  unknown.

160.  Turning now to the matter of insurance pay-outs, as referred to in paragraph 126 above, the relevant bank statement of the Mother’s NCB Account showed the insurance pay-outs from CLI were not received until 28 February 2018 by “自動轉賬”. If the CLI Policy was the Deceased’s life insurance policy, one might wonder why in an undisputed death case, the insurance pay-outs thereunder were deferred for more than 3 years after death. However, a study of the bank statements of the Mother’s NCB Account showed the Mother had use of such insurance policy much earlier because she borrowed 2 loans from NCB on the strength the policy as security/collateral:

(a)

The Mother opened the Mother’s NCB Account on 30 June 2016 (C/412-413)  for the purpose of borrowing a loan of $100,000 which was drawn down on 12 July 2016 (C/414-415). It was a secured instalment loan (抵押分期貸款)  repayable in a year’s time on 12 July 2017 with interest at 2.5%pa (C/414-415)  and with insurance policy (保險單)  pledged as security (“1st NCB Loan”). The monthly instalment repayment of interest was $212.33 (C/416-417).

(b)

The Mother borrowed a further loan of $50,000 which was drawn down on 3 January 2017 (C/426-428). It was a secured instalment loan (抵押分期貸款)  repayable in a year’s time on 3 January 2018 with interest at 2.5%pa (C/414-415)  and with insurance policy (保險單)  pledged as security (“2nd NCB Loan”). The monthly instalment repayment of interest was $106.16 (C/429-430).

161.  The reason for the 1^st NCB Loan was unknown because by July 2016 the Mother already had access to donation cheques of about $80,000 (see paragraph 122 above)  and advance payment of the EC Sum of about $300,000 (see paragraph 155 above). Further, the Mother made (a)  7 withdrawals in July 2016[50] such that 70% of the loan monies ($70,000)  were withdrawn leaving a balance of $30,000 in the bank account (C/414-417), and (b)  6 withdrawals in August 2017 each ranging from $100 to $10,000 that reduced the account balance to $6,587.67 at 31 August 2017 (C/416-417). There were minor deposits and withdrawals in October to December 2016 such that the account balance was further reduced to $752 as at 31 December 2016 (C/420/427). The above transactions plainly showed neither the 1^st NCB Loan nor the Mother’s withdrawals therefrom were for the Mother’s and the Sister’s household/ living expenses, which even according to the Mother was about $11,000/month (see paragraphs 51 and 120(a)  above). Significantly, the destination(s)  of the withdrawn loan monies was/were unknown, and it did not appear there were matching deposits in the Mother’s HSBC Account. Eg, although the Mother withdrew most of the loan monies (ie over $90,000)  in July/August 2016, there were only deposits of $5,950 (by “D I BOX”), $20,000 (for “MONEY EX”), $4,516.08, $10,000, $2,270 and $4,300 in the Mother’s HSBC Account from July to September 2016. The transactions for “D I BOX” and “MONEY EX” in the Mother’s HSBC Account raised separate concerns that are discussed in paragraphs 178-179 below. The 1^st NCB Loan was due on 12 July 2017, but there was no problem in repayment because by then the balance of the EC Sum deposited into the Mother’s NCB Account on 27 April 2017 was available for such payment.

162.  Having withdrawn almost the entirety of the loan monies of the 1^st NCB 1^st Loan by December 2016, the Mother borrowed the 2^nd NCB Loan of $50,000 on 3 January 2017. The Mother made 15 withdrawals in January 2017 alone to withdraw the bulk of the loan monies thereby reducing the account balance to $1,225.09 on 27 January 2017 (C/426-428). There were minor deposits and withdrawals in February to April 2017 that reduced the account balance to $600.44 as at 16 April 2017 (C/431-435). Clearly, the withdrawal of over $45,000 in loan monies could not have been for the Mother’s and the Sister’s household/living expenses for January 2017. The destination(s)  of these withdrawn sums were unknown, and did not match the deposits of $6,000, $6,950 (by “D I BOX”), $100 and $5,950 (by “D I BOX”)  in January/ February 2017 in the Mother’s HSBC Account. As alluded to in the above paragraph, the transactions for “D I BOX” deposits raised separate concerns and are discussed in paragraph 178 below. The 2^nd NCB Loan was due on 3 January 2018, but the Mother made so many withdrawals from such loan monies and from the account balance of the EC Sum that the account balance of the Mother’s NCB Account was reduced to merely $34,988.06 as at 6 December 2017, which was quite insufficient for repayment of the 2^nd NCB Loan (C/454-456). The Mother deposited $10,000, $6,000 and $5,000 into the Mother’s NCB Account respectively on 8, 16 and 30 December 2017 but also withdrew $300 and $5,000 respectively on 11 and 25 December 2017, leaving a sum of $50,693.38 in the Mother’s NCB Account as at 30 December 2017 (C/454-456)  that was just barely sufficient to repay the 2^nd NCB Loan on 3 January 2018 leaving an account balance of $587.22 (C/457-458).

163.  Then, almost on the heels of the repayment of the 2^nd NCB Loan which released the insurance policy that had been pledged as security/collateral, the Mother received the insurance pay-outs of $232,403.01 from CLI on 28 February 2018 (C/459-460). Instead of using such monies for monthly household/living expenses as the Mother suggested, she again made frequent and multiple withdrawals from such insurance pay-outs from February to July 2018, ie she made 14 withdrawals (each ranging from $5,015 to $6,000)  in March 2018,[51] 8 withdrawals (each ranging from $2,000 to $20,000)  in April 2018,[52] 11 withdrawals (each ranging from $2,000 to $5,015)  in May 2018,[53] 9 withdrawals (each ranging from $3,000 to $6,000)  in June 2018,[54] and 2 withdrawals ($2,400 and $3,000)  in July 2018,[55] thus reducing the account balance respectively to $143,975.23 (C/461-465), $94,475 (C/464-465), $47,460.23 (C/466-467), $6,463.70 (C/468-469)  and $1,063.70 (C/470-471). There were minor deposits and withdrawals from August to November 2018 that eventually depleted the account balance, and the Mother’s NCB Account was closed on 12 November 2018.

164.  In my view, issue arose over the CLI Policy as to whether it was the Mother’s or the Deceased’s life insurance policy, but irrespective of this issue, a number of matters in relation to the insurance pay-outs under the CLI Policy put the Mother in poor light in relation to her finances and dealings with SWD, which detracted from her overall veracity on money matters:

(a)	Query arose over whether the CLI Policy was the Mother’s and not the Deceased’s life insurance policy. First, the insurance pay-outs were deposited into the Mother’s NCB Account (which was the Mother’s bank account). But I find this to be a neutral factor because any insurance pay-outs under the Deceased’s life policy without named beneficiary would be paid out to the Mother too in her capacity as administrator of the Deceased’s estate. Secondly, in a case of undisputed accidental death (as in the case of the Deceased), one would have expected the death benefits to have been paid out fairly soon after death and the policy would not have been used as collateral/security for loans with pay-outs deferred for several years. This would have been the case if the Deceased had nominated a beneficiary for receipt of the insurance pay-outs, but apparently he did not so nominate as the insurance pay-outs were, according to the Mother, paid to his estate. That being the case, the insurance pay-outs would only be made after the Letters of Administration were available in March 2017 to establish the Mother’s capacity as the administrator of the Deceased’s estate. It was unclear but possible that NCB was prepared to grant the 1st NCB and 2nd NCB Loans to the Mother on the strength of her entitlement to the eventual insurance pay-outs as intended administrator and substantial beneficiary of the Deceased’s estate. The Letters of Administration were obtained in March 2017 (which was after the 2nd NCB Loan was drawndown in January 2017), so quite shortly after repayment of such loan in January 2018, the Mother received the insurance pay-outs under the released the CLI Policy, which pay-outs were deposited in the Mother’s NCB Account in February 2018. Thus, the fact the insurance pay-outs were made in early 2018 was not an absolute indicator that the CLI Policy was the Mother’s and not the Deceased’s life insurance policy.
(b)	A number of other factors pointed to the probability that the CLI Policy was the Deceased’s life insurance policy:
	(i)	the Mother did not say she herself had any insurance policy and/or she had to pay insurance premium out of her household/living expenses;
	(ii)	as the Mother is still alive, the insurance pay-outs under the CLI Policy could not be death benefits on her life insured;
	(iii)	the Mother did not say she ever had the financial resource of insurance pay-outs from surrender of her own life insurance policy or from cash-out of any savings element in such policy, and indeed, were she able to do so under her own life insurance policy, there would not have been any need for the 1st and 2nd NCB Loans;
	(iv)	instead, the Mother’s evidence was that the insurance pay-outs to her on behalf of the Deceased’s estate were from the Deceased’s insurance policy;
	(v)	the Mother did not declare her own life insurance policy with surrender value and/or savings accumulation in the SWD / HKHA Forms.
(c)	By reason of the matters in (a)-(b)  above, it was more likely than not that the CLI Policy was the Deceased’s life insurance policy. But irrespective whether it was the Deceased’s or the Mother’s policy, the circumstances in relation to such policy and consequent insurance pay-outs gave rise to the following concerns.
(d)	The monthly withdrawals from the insurance pay-outs from March to July 2018 far exceeded the Mother’s and the Sister’s alleged need for household/living expenses of about $11,000/month on the Mother’s evidence (see paragraphs 51 and 120(a)  above), and the withdrawals could not have been made for such purpose.
(e)	The destination(s)  of such withdrawals were unknown, and corresponding deposits could not be found in the Mother’s HSBC Account, and I reiterate my observations in paragraph 159(b)  above mutatis mutandis.
(f)	There were quite a number of double and triple withdrawals within the same day which was quite inexplicable except that the Mother appeared anxious to withdraw a large amount on those days by “ATM” (automatic teller machine)[56] to quickly reduce the insurance pay-outs in the Mother’s NCB Account.
(g)	As explained in paragraph 170 below, the opening of the Mother’s NCB Account was for inter alia borrowing 2 loans using the life policy as security/collateral and eventually for processing the insurance pay-outs (which were then substantially withdrawn from such bank account over a period of about 5 months for destination(s)  unknown – see paragraph above)  in time for such bank account to be timeously closed on 12 November 2018, a day before the Mother submitted to SWD her 2018 SWD Registration Form dated 13 November 2018 (C/111-112)  and again applied for CSSA on 6 December 2018 by the 2018 SWD Application Form (C/103-110)  and the 2018 SWD Declaration (C/144), all of which forms made no reference to the Mother’s NCB Account that was conveniently closed or to the insurance pay-outs that were withdrawn and kept elsewhere unknown. I reiterate my observations in paragraph 159(d)  above in relation to paragraph 5 of the 2018 SWD Registration Form, which disclosure therein could not be correct in light of paragraphs 163-164 above and herein).
(h)	The Mother did not in the 2018 HKHA Declaration dated 24 July 2018 (C/267-282)  state/declare her insurance income and/or individual or household net asset value that comprised either the insurance pay-outs or such sum as withdrawn from the Mother’s NCB Account by multiple withdrawals in 2018 for destination(s)  unknown.

165.  It appeared that it was only when the Mother made fresh application to SWD for CSSA by way of the 2018 SWD Application Form dated 6 December 2018 (C/103-110)  as supported by the 2018 SWD Declaration of the same date (C/144)  that she revealed receipt of compensation in the sum of $300,000 (ie advance payment of the EC Sum)  at the end of 2014, but she did not reveal (a)  she actually received the balance of the EC Sum and/or the insurance pay-outs under the CLI Policy (but whether and if so when there were insurance pay-outs under the HSI Policy were unclear even though the Mother WStmt claimed insurance pay-outs under the Deceased’s insurance policy(ies)  were received), or (b)  the whereabouts of such sums which were withdrawn from the Mother’s NCB Account for destination(s)  unknown.

166.  I reiterate the contents of paragraph 5 of the 2018 SWD Registration Form dated 13 November 2018 (C/111-112)  set out in paragraphs 159(d)  and 164(g)  above. Likewise in the 2018 SWD Application Form dated 6 December 2018 (C/103-110), under Part 2 thereof under the heading “Capital assets (including those in Hong Kong, Macao, the Mainland or overseas)  (you must disclose and provide documentary proof ……”, the Mother was required under paragraph 19 to list “the total value of all capital assets currently owned by you” (你現時所擁有的資產總值), and she disclosed/stated she had “Cash in hand” (現金)  in the sum of $200 and “Bank savings” (銀行儲蓄)  in the Mother’s HSBC Account in the sum of $2,085 both as at 18 November 2018 (C/104). But such disclosure, as verified by the Mother’s declaration similar to the one in paragraph 17(f)  above, did not account for the balance of the EC Sum and/or the insurance pay-outs under the CLI Policy (irrespective whether it was the Mother’s or the Deceased’s policy)  or perhaps even the insurance pay-outs, if any, under the HSI Policy, which in December 2018 could not have been exhausted by monthly household/living expenses. More importantly, the Mother was required under paragraph 20 therein to answer the question “Did the total value of capital assets owned by you within 1 year prior to the date of the application ever exceed the prescribed limit stipulated under 2(9)  of Section II “Eligibility Criteria” of the Guidelines for Application?” (你在申請綜援的日期前一年內所擁有的資產總值是否曾超出申請指引第II章申請資格第2(a)  項訂明的資產限額?), and the Mother ticked the box to give the answer “No” (否)  (C/104). But even ignoring for the moment the multiple withdrawals from the balance of the EC Sum deposited in the Mother’s NCB Account, such bank account had an account balance of $232,990.23 at 28 February 2018 (ie well “within one year prior to the date of application” for CSSA by the Mother on 6 December 2018)  (C/459-461), which by virtue of its substantial amount must have exceeded the eligibility criteria of able-bodied applicant for CSSA, which assistance was by nature a public welfare safety net for those who could not support themselves to meet basic living expenses. Plainly, the Mother’s reticence did not put her in any good light in relation to financial matters and/or her claim for loss of dependency.

167.  Turning next to the 2018 SWD Declaration dated 6 December 2018 (C/144), the Mother referred to the Mother’s HSBC Account, but was silent on the Mother’s NCB Account (which was conveniently closed in November 2018 just the day before her registration to apply for CSSA – see paragraphs 159(d)  and 164(g)  above)  and the Mother’s BOC Account (which was conveniently opened in January 2019 just after submission of her application for CSSA). Interestingly, the Mother in the 2018 SWD Declaration mentioned her joint account with the Father that was obsolete and closed long ago, but strangely did not mention the Mother’s NCB Account (which was only recently closed)  that processed her loans, the balance of the EC Sum and the insurance pay-outs. Even more strangely, the Mother went on to claim in the 2018 SWD Declaration that “儲蓄差不多用完”, that she even had to borrow money from friends in 2018 for funeral expenses (presumably for the Father)  and her own living expenses, and that “其餘存入的款項 [in the Mother’s HSBC Account] 是自己手頭的現金” (see paragraph 73 above)  without revealing the whereabouts of the 1^st/2^nd NCB Loans, the balance of the EC Sum and the insurance pay-outs that were deposited into and withdrawn entirely from the Mother’s NCB Account for destination(s)  unknown. Further, the suggestion in the 2018 SWD Declaration that “[Mother] 有能力時必須償還” the minor loans she borrowed from friends, ie $10,000, $3,000, $3,500 and $2,000 respectively on 4 January, 9 August, 19 September and 19 November 2018 (all reflected in the transactions record of the Mother’s HSBC Account)  was not understood. With the EC Sum (equivalent to almost 8 years of the Mother’s and the Sister’s household/living expenses at the rate of, say, about $11,000/month as claimed by the Mother – see paragraphs 51 and 120(a)  above)  and the insurance pay-outs (equivalent to over 21 months of the Mother’s and the Sister’s household/living expenses at the aforesaid alleged rate)  to hand, the Mother should have no problem in repaying these minor loans, and it was quite inexplicable for the Mother to say in the 2018 SWD Declaration that “儲蓄差不多用完” and “…… 有能力時必須償還”. Further, her “自已手頭的現金” should be more than as seen in the Mother’s HSBC Account.

168.  The Mother’s bank accounts after her application for CSSA in December 2018 also told a revealing story:

(a)	Starting from January 2019 (ie shortly after the Mother’s application for CSSA in December 2018), there were monthly “AUTO CR” (automatic credit)  deposits initially at $2,525/month until April 2019 (C/395-396), but increased to $5,050/month from May to October 2019 (C/395-397)  and reduced to $2,130/month from July to December 2020 (end of transactions record of the Mother’s HSBC Account – see paragraph 153(a)  above)  (C/398-299). In my view, these deposits were likely to be monthly CSSA payments initially for the Mother and the Sister (by automatic credit deposits like before – see paragraph 178 below)  upon the Mother’s successful application for CSSA, and later at reduced rate for the Mother alone when the Sister became financially independent in May 2020 following her graduation from City University of Hong Kong (see paragraph 70 above).
(b)	On 30 January 2019 (ie less than 2 months after the Mother’s application for CSSA), a sum of $200,000 was deposited into and then withdrawn from the Mother’s HSBC Account all on the same day (C/395). It was unknown whether it came from the balance of the EC Sum and/or the insurance pay-outs under the CLI Policy (in which case it would have meant the Mother made frequent and multiple withdrawals from the Mother’s NCB Account to park such monies away before transferring such monies to the Mother’s HSBC Account after she had made her application for CSSA)  or whether it was from another source (which would raise even greater concerns in relation to the Mother’s alleged loss of dependency), and it was curious why such large sum was deposited and withdrawn all on the same day.
(c)	It was possible that part of the withdrawn sum of $200,000 became the opening deposit of $50,000 on 31 January 2019 for the Mother’s BOC Account (C/400), but even if this were true, it still did not explain the ultimate source of the sum of $200,000 or the whereabouts of the balance of $150,000 not deposited in the Mother’s BOC Account.
(d)	There were further “ATM” deposit of $30,000 on 5 June 2019 (C/402), “CDM DEP” deposit of $550 on 18 October 2019 (C/404), “CDM CHQ DEP” cheque deposit of $550,000 on 18 October 2019 (C/404), “CDM DEP” deposit of $100,000 on 10 June 2020 (C/408), “DROP BOX DEP” deposit of $20,000 on 2 November 2020 (C/409)  and “CDM DEP” deposit of $200,000 on 21 December 2020 with multiple withdrawals in 2019-2020 leaving an account balance of $105,103.85 in the Mother’s BOC Account as at 28 December 2020 (C/411). But there was no explanation as to the ultimate sources of these deposits, especially for the larger sums of $550,000, $100,000 and $200,000, eg whether they were (i)  sourced from the EC Sum and/or from the insurance pay-outs under the CLI Policy both of which were withdrawn from the Mother’s NCB Account by frequent and multiple withdrawals before the Mother submitted her application for CSSA to SWD, (ii)  kept them at some unknown destination(s), and (iii)  subsequently deposited in the Mother’s BOC Account after she submitted her application for CSSA, or whether they were from some other source(s), both of which put the Mother in poor light in relation to her finances.

169.  In my view, the Mother’s reticence in her statement/oral evidence about the whereabouts of the EC Sum and the insurance pay-outs and about their proper disclosure to SWD / HKHA when she knew there was need for frank disclosure for continuation of housing allowance and for application for CSSA spoke ill of her overall reliability and credibility. Mr Sakhrani did not cross-examine on the Mother’s NCB and BOC Accounts, but since the Mother herself seized upon the EC Sum and the insurance pay-outs as alleged reasons for her voluntary cessation of CSSA in September 2014, this court in assessing her credibility and veracity on these matters cannot ignore objective documentary evidence (disclosed/discovered by P/Mother herself and adduced at the Assessment Hearing)  which raised more questions than answers and which spoke more loudly than her allegations.

170.  The overall picture spoke of the Mother being astute and shrewd in organising her bank accounts and finances such that inter alia (a)  she had the enjoyment of loan monies on the strength of the insurance policy (even when she had donation monies and part/all of the EC Sum to hand), (b)  she processed the balance of the EC Sum and the insurance pay-outs under the CLI Policy by cheques and transfer deposits into the Mother’s NCB Account only to have the same withdrawn by frequent and multiple transactions in substantial amounts to destination(s)  unknown and to have such bank account conveniently closed just before her application for CSSA so that it was not disclosed, (c)  she kept the EC Sum and the insurance pay-outs under the CLI Policy out of the Mother’s HSBC Account which was the bank account that was previously disclosed to SWD and also disclosed to SWD in the 2018 SWD Application Form and in the 2018 SWD Declaration for her application for CSSA in 2018, and (d)  she opened the Mother’s BOC Account right after her application for CSSA (so that such account could not be disclosed to SWD)  and deposited significant sums into such bank account from which she again made multiple and frequent withdrawals. The frequency and amount of the withdrawals made by the Mother were astounding given P’s case that the Mother’s household/living expenses should have been reduced due to (i)  the death of the Deceased who would no longer have dinners at the Flat, (ii)  the Brother’s work in Mainland China that only allowed occasional returns to the Flat for short stays or just to “stay the night”, and (iii)  the Sister having moved out from the Flat to pursue tertiary education with part-time job. But even on the alleged basis of the Mother’s and the Sister’s household/living expenses of about $11,000/month (see paragraphs 51 and 120(a)  above), the frequency and quantum of the aforesaid withdrawals were still astounding. They had no realistic correlation at all to the monthly household/living expenses that the Mother outlined. And in the absence of any or any credible explanation for all these matters by P/Mother as claimant in respect of her own documents, the objective documentary evidence did not put her in good light in respect of her application for CSSA in late 2018 absent disclosure of the significant funds she had received and on the basis (as seen in the 2018 SWD Application Form and the 2018 SWD Declaration)  that by 2018 the advance payment of the EC Sum in the sum of $300,000 had been largely used up such that she had to borrow money for her living expenses (which she could not yet afford to repay).

171.  Likewise, the Mother continued to rent the public housing Flat after the death of the Deceased, and had to make income declarations to HKHA every 2 years. However, the picture she painted to HKHA by her 2016 and 2018 HKHA Declarations was a simple one of no longer having CSSA but the Brother as household member had sufficient income (as evident from his income declaration and his payslips submitted to HKHA)  to pay rent for the Flat. Yet the Mother would have this court believe the Brother never made any contribution out of his income to give some pocket money to her. The Mother did not explain why, upon her case that the Brother did not give her any contribution, she did not set out the EC Sum and/or the insurance pay-outs as her “other income” or as individual/household asset value in the 2016/2018 HKHA Declarations as her means to pay rent for the Flat. The silence in this respect was loud and deafening, and it undermined her overall credibility.

172.  In view of the overall unreliability of the Mother’s evidence, I am not persuaded that her receipts of the EC Sum and the insurance pay-outs raised any complete answer to the question whether the Brother gave financial support to the Mother in the period after the death of the Deceased. On balance, I reject the Mother’s evidence that on 1 occasion when the Brother came home to stay the night at the Flat she asked him for financial assistance, but still he did not pay (see paragraph 66 above). The Mother had access to substantial funds as evident from the transactions in her bank accounts as discussed above, and I have found the Brother all along paid her pocket money in a modest sum. If (as the Mother alleged)  the Mother and the Sister lived on the EC Sum and the insurance pay-outs, she would not have any need to look towards the Brother for financial assistance for quite a number of years (and by 2020 the Sister would have become financially independent). One would ask rhetorically why, on her evidence, the Mother would even bother to ask the Brother if she could comfortably get by on the EC Sum and the insurance pay-outs and when she and the Brother (who allegedly never made any contribution to her after he became an electrical technician)  did not get along, and when raising money matters with the Brother was like “Mars hitting Earth”.

173.  Bearing in mind (a)  my finding that the Brother’s relationship with the Mother was not as antagonistic/strained as she portrayed, (b)  my finding that the Brother had all along contributed pocket money in a modest sum for the Mother, (c)  the Brother’s awareness that the Deceased had passed away and there could not be any financial support from that quarter, (d)  the Brother had to pay for his own living expenses (eg meals, accommodation, travel/transport, utilities etc)  in Mainland China, and (e)  the Brother would occasionally have meals and stay over at the Flat, but noting at that time the Mother had (or perhaps even the Brother knew she had)  the financial comfort of the EC Sum (whether the advance payment and/or the remaining balance)  as well as the 1^st/2^nd NCB Loans and/or the insurance pay-outs, I find on balance that the Brother would have continued to give pocket money in a modest sum to the Mother, and was supportive of the Mother’s continued rental of the Flat by providing information about his income.

(i)  Other sources: post-natal care work

174.  Mr Chong submitted that in late 2013 / early 2014 the Mother participated in the government “Support for Self-Reliance Scheme” as a post-natal care worker from which she received a subsidy of $2,153.20 on 30 January 2014, and she attended odd jobs as a substitute post-natal care worker for her own sister when her sister was not well. Mr Chong claimed the Mother only earned income as a post-natal care worker for 1 month in August 2014 for which she received $10,000 with no subsequent employment or income. On such basis, Mr Chong contended that income from the Mother’s post-natal care re-training and from her work as substitute post-natal care worker for her own sister was limited to 2 instances in 2014, which would be insufficient to displace the Deceased’s monthly household financial provision (家用).

175.  In considering Mr Chong’s above submissions, 2 matters were of note. First, I have found the donations from charitable organisations, the EC Sum and the insurance pay-outs were not the true reasons for the Mother’s decision to cancel CSSA (see Part IV(d)  above). Secondly, it was important to bear in mind the timeline and the information given by the Mother in the contemporaneous documents to assess the veracity of her oral evidence.

176.  In 2014, the Mother submitted 3 SWD Forms to SWD:

(a)	In the 2014 SWD 1st Review Form dated 10 March 2014 (C/120-124), ie shortly after she attended the post-natal care re-training course in early 2014, the Mother revealed (i)  she had “Retraining Allowance (Income)” on “30/01/14” in the sum of “$83.20”, (ii)  post-natal care re-training course subsidy in the sum of $2,153.20 was deposited into the Mother’s HSBC Account on 30 January 2014 (see paragraph 59 above).
(b)	In the 2014 SWD 2nd Review Form dated 4 September 2014 (C/117-118), ie shortly after the Mother completed her post-natal care job in August 2014 and a day after she received the balance payment from her employer on 3 September 2014, the Mother revealed she had worked as a post-natal care worker in August 2014 and earned total income of $10,000 (half of which was received on 14 April 2014 and half of which was received on 3 September 2014)  (see paragraph 59 above). In the Mother WStmt, the Mother stated that since her marriage she was all along a housewife and did not work save for being a post-natal care worker several times (三幾次)  to help out her elder sister (see paragraph 23 above), but she was silent in the Mother WStmt about the post-natal care job in August 2014 and also about the 2014 SWD 2nd Review Form. For the several occasions (三幾次)  the Mother helped out her own elder sister by acting as substitute post-natal care worker, it was the Sister who gave evidence that she came to know this because the Mother once told her “that my auntie was not well – feeling well, and that’s why she had to help out” (see paragraph 60 above). But the Mother was strangely silent about such explanation in her evidence. On balance, I am not convinced the Mother’s post-natal care job in August 2014 was any substitute post-natal care work for her own sister. Indeed, the Sister did not even know the Mother worked as a post-natal care worker in August 2014 and did not know about the Mother’s post-natal care re-training course when she explained that the Mother acted as substitute post-natal care worker for her own sister when the latter was unwell (see paragraph 60 above). I also note the advance payment of $5,000 and the balance payment of $5,000 in respect of the Mother’s fees for the post-natal care job in August 2014 were deposited in the Mother’s HSBC Account on 15 April and 3 September 2014 respectively. Plainly, such job was secured by the Mother in April 2014 shortly after the post-natal care course (see 2014 1st Review Form dated 10 March 2014 which referred to such course)  as part of her participation in the “Support for Self-Reliance Scheme” (自力更生支援計劃). No doubt, the advance payment was made to book her services in August 2014 to accommodate the estimated time of delivery of the baby for which she was paid the balance of her fee in early September 2014. Even on the Mother’s and the Sister’s evidence, I do not agree the Mother’s work/income were, as Mr Chong suggested, “limited to 2 instances in 2014.” Apart from the Mother’s own job as post-natal care worker in August 2014, the Mother WStmt stated she acted as substitute post-natal care worker for the Sister for several occasions (三幾次), and the Sister said the Mother did so when her own sister felt unwell. From the above, it was obvious that the Mother as a post-natal care worker would be looking after other people’s babies. In my view, she made a poor attempt to dissemble by sidestepping cross- examination over her reason for cancelling CSSA shortly after she worked as a post-natal care worker in August 2014 by claiming she took the post-natal care re-training course thinking it would be useful for helping out her children when they would have their own babies (see paragraph 62 above). There was no explanation as to why (i)  the Mother would choose to take a post-natal care course in 2014 when there was no suggestion that any of her children would be having their own babies any time soon, and/or (ii)  why she would secure a post-natal care job shortly after the re-training course if reading such course was for a private purpose, which private purpose did not sit well with her subsequent suggestion (when pressed again for the reason for cancelling CSSA)  that reading the post-natal care re-training course and securing a post-natal care job was her participation in the “Support for Self Reliance Scheme” (自力更生支援計劃).
(c)	In the SWD 3rd Review Form dated 16 September 2014 (C/114-115), ie 12 days after the last SWD Form in (b)  above and 4 days after the Deceased passed away, the Mother notified SWD that “[Mother] 家庭決定自力更生, [Mother] 決定由1.9.2014取消 [Mother] 家庭的綜援。[Mother] 明白有多領款項, 同意從 [Mother] 戶口扣回償還” (ie Mother’s family decided to rely on themselves, so the Mother decided to cancel CSSA as from 1 September 2014). It would be useful to reiterate here the Mother’s evidence under cross-examination in paragraph 62 above: “…… When asked by the court on what “自力更生” in the phrase “[Mother] 家庭決定自力更生” (my emphasis)  in the 2014 SWD 3rd Review Form dated 16 September 2014 (C/114-115)  meant, the Mother gave evidence that “[the] name of the post-natal care course was called 自力更生”. When pressed on the relevance of this to her voluntary decision in/about September 2014 (when the Deceased had just passed away)  to cancel CSSA as from 1 September 2014, the Mother explained the Deceased died on 12 September 2014, so she went to the SWD office to return the CSSA payment as well as housing allowance received for September 2014 as she felt she should no longer receive government subsidy/allowance when she had her own “income”, and when pressed she claimed such “income” was not from her work as post-natal care worker but from cheques from charitable organisations.” Although the Mother claimed that “[the] name of the post-natal care course was called 自力更生” (which I take it to mean that the post-natal care re-training course she read was a course under the “Support for Self-Reliance Scheme” (自力更生支援計劃)), it did not address this court’s question as to what “自力更生” in her phrase “[Mother] 家庭決定自力更生” (my emphasis)  in the 2014 SWD 3rdReview Form meant. It was meaningless to say the Mother’s family “decided” (決定)  the “Support for Self-Reliance Scheme” (自力更生支援計劃). In my view “自力更生” in the phrase “[Mother] 家庭決定自力更生” in the SWD 3rdReview Form was not a proper noun to describe the scheme, but on plain reading of the phrase in the relevant factual context, it was simply a statement that the Mother’s family decided to rely on themselves. This sat well with the following question asked of the Mother as to what had the “Support for Self-Reliance Scheme” got to do with her decision to cancel CSSA, and with the Mother’s answer that she cancelled CSSA payment and housing allowance as she felt she should not receive them when she had her own “income” (ie which would reasonably be understood to mean she and her family would become self-reliant by earning their own income). I find on balance that the Mother’s revealing slip of the tongue was reference to income from taking up work as post-natal care worker, and it was only when pressed on this that she again dissembled to distance herself from work income and to say “income” was from cheque donations by charitable organisations. This conclusion was bolstered by my findings in Part IV(d)  above that the donations from charitable organisations, the EC Sum and the insurance pay-outs were not the reasons that drove the Mother to cancel CSSA. I do not doubt the Mother’s claim that the post-natal care re-training course was part of the “Support for Self-Reliance Scheme” (自力更生支援計劃). Plainly, by reading the post-natal care re-training course, she participated in the “Support for Self-Reliance Scheme” (自力更生支援計劃). P did not disclose any evidence in relation to such scheme, but Mr Chong drew my attention to Kong Yun Ming v Director of Social Welfare[57]in which A Cheung J (as he then was)  stated as follows: “17. Self-reliant, able-bodied adults between 15 and 59 in normal health are required to provide acceptable reasons for not being available for work or to be earning not less than a pre-determined monthly salary and working not less than a fixed number of hours permonth, or alternatively, to be actively seeking full-time jobs and participating in the Support for Self-Reliance, in order to qualify for assistance.” The very name of the “Support for Self-Reliance Scheme” and the above passage suggested that the scheme was to assist able-bodied CSSA recipients to secure paid employment so as to move towards or achieve self-reliance. This is simply logical common sense since public funds should only be used to provide a temporary measure safety net for those who could not support themselves, but able-bodied adults would have to find and keep jobs/employment to support themselves and their family to reduce their reliance on CSSA and to become self-reliant through, say, participation in the “Support for Self-Reliance Scheme” (自力更生支援計劃). Since the goal obviously was to become self-reliant, the above passage showed that criteria was imposed and had to be met in order to qualify for assistance. The CSSA recipient would have to justify why he/she was unable to work up to certain work hours or certain pay permonth, or why he/she was not participating in vocational courses and looking for work. As a corollary to this, if the CSSA recipient was able to secure employment that would surpass the threshold requirements for work pay and/or work hours, he/she being self-reliant necessarily would not be entitled to CSSA. In my view, this was the situation the Mother faced under the “Support for Self-Reliance Scheme” (自力更生支援計劃)  as explained in Kong Yun Mingwhen she had her post-natal care job in August 2014 for which she was able to and did earn $10,000 in a month, which was why in the 2014 SWD 2ndReview Form dated 4 September 2014 (C/117-118)  “[Mother] 要求豁免首月薪金”, ie to disregard her 1stmonth’s earnings in assessing whether she satisfied the threshold requirements for continued CSSA payments. The Mother chose not to adduce evidence in relation to those threshold requirements, but given my findings that she terminated CSSA not because of the donation cheques, the EC Sum and/or the insurance pay-outs, on balance I find and/or infer from her abrupt termination of CSSA 12 days later (in the relevant factual matrix as I have found)  that upon conversation with the SWD officers in filling out and submitting the 2014 SWD 2ndReview Form dated 4 September 2014 (C/117-118)  the Mother realised her ability and capacity to secure work as a post-natal care worker would make it difficult to provide acceptable reasons for continuation of CSSA payments, which echoed her revealing slip of the tongue under cross-examination that her decision to terminate CSSA was due to “income”. Mr Chong submitted the Mother had very limited education, and had no real work experience prior to the Accident apart from being a post-natal care worker in August 2014. It was said the only jobs she had ever attended very rarely were as substitute post-natal care worker for her own sister when her sister was not well, and as post-natal care worker for the single month of August 2014. On such basis, he argued there were good reasons to believe that the Mother she would not be able to work as a post-natal care worker as a regular job in the future. I disagree. Even before the Accident, the Mother had read and passed the vocational re-training course for post-natal care work. It was plainly a job that required practical knowledge and experience rather than academic achievement. The Mother herself was a mother of 3 children. She successfully secured a post-natal care job shortly after the course, and earned $10,000 in a month (which was no mean sum when the Deceased as a semi-skilled Intermediate Grade bamboo scaffolder that required strenuous physical labour on average earned only slightly more at $12,518.33/month at the time of his death)  as post-natal care worker (ie slightly less than double the CSSA monthly payment of $5,219/month). She had also acted as substitute post-natal care worker for her own sister on several occasions (三幾次), which meant she had more experience than just a one-off job. Clearly, the Mother’s elder sister was herself a post-natal care worker, and there might have been sisterly referrals to take on post-natal care jobs (or even to take over her sister’s work if her sister was frequently unwell). In my view and on balance, I agree with Mr Sakhrani that it appeared from the tenor of the evidence that the Mother would be able to rely on her course-acquired skills and also referrals from her sister to start earning income, and against the background of the CSSA scheme as I have explained, it was reasonable, understandable and almost inevitable that she would have to cancel CSSA. I believe the death of the Deceased also precipitated the Mother’s decision to inform SWD of her reasonable plan to earn income and to follow the footsteps of her elder sister as a post-natal care worker. The Mother must have realised that with the death of the Deceased she could not look for support from that quarter.

177.  In summary, I find on balance that at the time of the death of the Deceased, the Mother just started to work/earn and she intended to continue in her work as post-natal care worker. Given her demonstrated capacity/ability to earn, it was hardly likely that she would have been able to provide adequate reasons for not being available for work at the threshold levels. I also find the death of the Deceased gave impetus to such decision as she realised there would no longer be any future pocket money from him (see paragraph 223 below).

178.  Mr Sakhrani went on to suggest the Mother probably earned income as a post-natal care worker after the death of the Deceased. There was, of course, no direct evidence on this given the Mother’s denial. But there were a number of transaction entries in the Mother’s HSBC Account that gave rise to concern over the veracity of the Mother’s denial. In the transactions record for the Mother’s HSBC Account in the period before the Deceased passed away, monthly CSSA payments were paid to the Mother by “AUTO CR” (automatic credit), eg a sum of $5,219 was credited on each of 28 February, 2 April, 30 May and 2 September 2014 (C/384-386). These automatic credit deposits ceased after 16 September 2014 upon the Mother’s voluntary termination of CSSA. I have found the re-emergence of “AUTO CR” transactions in the Mother’s HSBC Account since January 2019 were likely to be monthly CSSA payments upon the Mother’s successful application for CSSA in December 2018 (see paragraph 168(a)  above). However, starting from 4 June 2015, there were “D I BOX” (drop in box)  deposits of $5,250 each on regular monthly basis from June 2015 to 31 March 2016 (end of tax year)[58] with a higher deposit of $6,250 on 28 January 2016 (Chinese New Year fell on 8 February 2016)  (C/389), and then there was general increase to $5,950 for each monthly deposit from April 2016 (commencement of tax year)  to July 2016.[59] Plainly, these deposits not being automatic credit deposits were not monthly CSSA payments. The Mother did not offer any explanation for the regular “D I BOX” deposits in the same amount each month, but they had the unmistakable signs of regular monthly work remuneration or salary payment with a year-end bonus at Chinese New Year and a pay rise in the following tax year. In July 2016, the “D I BOX” deposits ceased, which was quite understandable because it was about the time when the Mother opened the Mother’s NCB Account on 30 June 2016 and borrowed the 1^st NCB Loan of $100,000 on 12 July 2016, so she had access to the life policy and the loan monies for her use. Whilst I need not make any positive finding as to whether the “D I BOX” deposits were the Mother’s work income, the absence of any or any cogent explanation by the Mother as to her own transactions in her own bank account which should have been forthcoming from her as claimant for substantial loss of dependency in the first place cast suspicion on her allegation that she never worked at all, which in turn adversely affected her overall credibility.

179.  It is perhaps also useful to mention here other curious transactions in the Mother’s HSBC Account. There were “MONEY EX” deposits of $13,897.74 and $4,516.08 respectively on 29 December 2015 and 30 August 2016 (C/389 and C/391), and “MONEY EX” withdrawals of $19,977.80 and $19,994.40 respectively on 4 March and 30 August 2016 (following “DEP” transactions (ie cash deposits)  of $20,000 each respectively on 3 March and 30 August 2016)  (C/390). The Mother did not explain why there were these money exchange transactions in not insubstantial sums, some of which were more than the Mother’s and the Sister’s alleged household/living expenses of $11,000/month (see paragraphs 51 and 120(a)  above). If they were foreign currency investments, the Mother had not explained the ultimate source of such investment monies. Such mystery arising from her own documents (when the Mother had no apparent need for money exchange transactions as she claimed to have lived modestly but somehow exhausted her resources and had to again apply for CSSA support)  also cast suspicion on the overall veracity of the Mother who carried the burden to prove loss of dependency.

(j)  Deceased’s expenses and his outside household(s)

180.  I now turn to Mr Chong’s submissions in paragraph 129(b)  above, ie that the Deceased’s personal expenses were limited. In this respect, Mr Chong relied on the Mother’s statement evidence in paragraph 55 above. It was said that insofar as expenses were concerned, the Deceased was still part of the “joint household” (ie the Deceased shared a joint household with the Mother and the Sister)  in that (a)  ever since the Deceased’s departure from Phoenix House (or some time afterwards), he occasionally slept at home/Flat but he would mostly spend the nights at his girlfriend’s place or his friend’s place, (b)  at least in 2013 and up until his death the Deceased came home every evening after work to shower and have dinner with the Mother and the Sister before going to sleep at his girlfriend’s or his friend’s place, and (c)  he told the Mother he did not have to pay for his girlfriend’s expenses. The Mother also claimed the Deceased would play computer games at home after work, and he would take the Mother and Sister out for meals and buy household items. Mr Chong submitted it was the Mother’s consistent evidence that the Deceased “did not have any additional or personal expenses because he would shower, play computer games and eat dinner at home, then sleep at his friend’s or girlfriend’s place rent-free”, and that it was “understandable that [the Deceased], as a single adult, would have lower expenditure than that of 2 persons”.

181.  I note the Deceased was released from Pheonix House and became a free man in 2012 (see paragraph 36 above). By 2012, the Mother declared in the 2012 HKHA Declaration dated 10 May 2012 (C/243-250)  and in the 2012 SWD Review Form dated 13 September 2012 (C/138-142)  that only she and the Sister were family/household members living at the Flat (see paragraphs 37 and 39(a)  above), so the Deceased must have moved out from the Flat in 2012. Indeed, the Mother confirmed this in paragraph 15 of the 2012 SWD Review Form that “兒子 [Deceased] 和 [Brother] 搬走, 並拒經透露其居住地址”. But in re-examination she said it was roughly in 2011 that the Deceased started to live at his girlfriend’s place (see paragraph 39(f)  above). This could not have been the case because the Deceased was still in prison or was at Pheonix House in 2011. In my view, it was telling that the Mother was unable to say when the Deceased moved out to live with his girlfriend and/or another friend and she did not even know his outside address (see paragraph 39(f)  above), which suggested she had very little idea about the Deceased’s life outside the Flat. This was consistent with the Mother’s admission that she had little idea about his employer, his scaffolding work, his earnings, his finances and his loans. All the Mother could say under cross-examination initially was that the Deceased stayed with his friend, but she later said that he sometimes stayed with his girlfriend and sometimes he stayed with his friend. Further, apart from the existence of the Deceased’s girlfriend, no further information was put forward about such girlfriend except the Deceased told her his girlfriend had steady job and income (but no particulars were given).

182.  Likewise, the Sister claimed she had no idea when the Deceased moved out of the Flat although she accepted that at first the Deceased occasionally stayed at the Flat and occasionally stayed at his girlfriend’s place, but later he spent every night at his girlfriend’s place or his friend’s place and simply returned to the Flat for dinner (see paragraph 39(f)  above). In my view, this gradated approach to the Deceased’s departure from the home/Flat clearly demonstrated he had truly flown the nest, established outside communal households with his girlfriend and/or his friend, and regarded the Flat as the Mother’s rather than his own household/home.

183.  But Mr Chong laid emphasis on the Mother’s evidence that the Deceased would come back to the Flat after work for shower and dinner, and then go to his girlfriend’s place, and that this continued until he passed away (see paragraph 39(f)  above). Even if such evidence was to be accepted on its face value, the Deceased would have dinner after work at the Flat for about 21 days a month as he worked on average 21.6 days/month in the 12 months before he passed away. Thus, for about 8-9 days a month (including Sundays, public holidays and off-duty days when he would not be at work – see paragraph 41 above)  the Deceased would be on his own, with his girlfriend and/or with other friends, which meant he would have to incur personal expenses for meals, travel, social activities, entertainment etc. The Mother did not give any evidence as to the Deceased’s life-style and habits outside her home. I see nothing to detract from what one would usually expect in a young adult wage-earner with a steady cohabitee girlfriend with whom he had established a communal household and/or a friend with whom he had established shared abode, ie that apart from his own personal expenses for clothes, grooming, transport, meals, entertainment, etc, he would have to bear communal/shared expenses for his outside household(s), and (as Mr Sakhrani submitted)  he would on occasions expend money on outings with his girlfriend and/or on gifts.

184.  Mr Chong submitted that “[based] on the evidence before the Court, the [Deceased’s] girlfriend was totally self-sufficient and did not depend on [the Deceased] financially at all. To the contrary, the girlfriend and other members of her household appeared to pay for all the household expenditure when he stayed with her”, and that the Deceased would “sleep at his friend’s or girlfriend’s place rent-free” (my emphasis). I agree with Mr Sakhrani that such submissions did not reflect the evidence before the court. The Mother WStmt merely stated the Deceased told the Mother his girlfriend had steady job and income, so he did not have to financially provide for his girlfriend. But this was a far cry from saying (and neither the Mother nor the Sister claimed to have any such knowledge)  that the Deceased’s girlfriend or other members of her family/household appeared to pay for all the household expenditure when he stayed at his girlfriend’s place or that he would stay his girlfriend’s or friend’s place rent-free. In the context of the Mother not having any knowledge about even the Deceased’s outside address (see paragraph 73 above), such assertion was, in my view, unconvincingly unrealistic. Even if the Deceased’s girlfriend had a job and was not financially dependent on the Deceased, it did not mean the Deceased would live off his girlfriend and/or her family, and even if he did not directly pay rent to the landlord, it was not unreasonable or unnatural to expect the Deceased (an able-bodied young adult wage-earner)  to contribute to his share of the communal expenses including occupation rent. This was also evident from the monthly autopay of $58 to “TVB NETWORK VISION L” presumably for pay-television recorded in the transactions record of the Deceased’s Account. Since the Mother claimed the Deceased only gave her household financial provision (家用)  and would separately pay for meals or would buy groceries, and she defrayed her household/living expenses (including utility expenses by debits from the Mother’s HSBC Account)  from such household financial provision (家用)  and the CSSA monthly payment (without any suggestion that the Deceased paid for pay-television service at the Flat), the Deceased plainly paid for pay-television services for his outside household(s)  either with his girlfriend or his friend. This clearly demonstrated he would bear at least part of the communal household expenditure in respect of his outside household(s). Further, the fact that he had more than 1 outside household, occasionally staying with his girlfriend and occasionally staying with his friend, meant he would have more expenses, such as double need for some personal belongings (eg toiletries, slippers, change of clothes and other items of unalienable personal expenditure), which would only increase rather than decrease his personal expenses.

185.  In my view, the above amply demonstrated the Deceased had established separate household(s)  outside the Mother’s home. Even on the Mother’s evidence, he was only back to the Flat for shower and dinner after work, and then leave for his girlfriend’s place. Since he would go off-duty at 6:00pm on a workday (see paragraph 41 above), he would have returned to the Flat with time just for shower and dinner before leaving for his girlfriend’s or friend’s place for the night. This meant that even on the Mother’s evidence he would have spent much longer time at his outside home(s)  than at the Flat. In all the circumstances and on balance, I disagree that the Mother, the Deceased and the Sister formed a joint household. I find on balance that the Deceased had established separate household(s)  with his girlfriend and/or his friend, but as a young adult wage-earner with a cohabitee girlfriend he would now and then return to the Mother’s home for the convenience of showers and meals.

186.  Mr Chong suggested the Deceased would have lower expenditure than that of the Mother (housewife who was CSSA-dependent and who claimed to live frugally except for her smoking habit)  and the Sister (student who had limited expenses that were partially supported by the Father until (as I have found)  at least 2016 – paragraphs 23 and 133 above). But I cannot ignore the fact that the Deceased was a young adult wage-earner with established earning capacity and settled pattern of life (at least for this stage in his life)  with girlfriend, peers/friends and outside communal household(s). I take into account the Deceased’s necessary living expenses to keep himself fed and clothed and to maintain communal household(s)  with his girlfriend and/or his friend (but which, I accept, by their on-and-off nature might well be somewhat more spartan than a more permanent outside home), and have to add to that expenses for a reasonably satisfying and enjoyable life, including entertainment and social activity with his girlfriend and friends. In my view, it was unlikely that such entertainment and social activity indulged by the Deceased could be called modest (as the Mother would have this court believe). After all, he continued to draw out from the Deceased’s Account all he could, not just his salary but also his loan monies, and there was history of increase in the value of the loans he borrowed with hike also in instalment repayments. Plainly, the Deceased was a young man who was used to spending more than he earned. Indeed, he would exhaust his bi-monthly salary payments, and use loan monies to tide over matters until the next payday. He regularly paid his loan instalments (although on some occasions they were overdue – see footnote 13 above), so in short, for practical purpose, the Deceased paid his way but spent all the money he earned.

187.  There was no direct evidence that the Deceased and his girlfriend planned to marry any time soon, but Mr Chong in his written closing submissions accepted the Deceased had a “stable girlfriend”. I am rather surprised that the Mother and/or the Sister could not tell me more about her when it was suggested the Deceased was close to them, but it was not unreasonable to assume the Deceased frequently see and/or cohabit with his girlfriend for whom he had a strong attachment. In such circumstances and as explained in the above paragraph, the Deceased would have spent money upon pleasurable existence with his girlfriend, eg going out in the evenings and during the weekend, and upon social occasions with his girlfriend and friend(s), enjoying life as a fit and healthy young man of that age usually did in the comfort of knowing the Mother and the Sister enjoyed the protection of the CSSA safety net and the Sister’s living expenses were partially supported by the Father. As for the Deceased’s living expenses, having regard to his age, the financial facts, his outside household(s)  as well as his station in life, I find it improbable (as Mr Chong submitted)  that the Deceased returned to the Flat on daily basis (bearing in mind that the Deceased worked on average 21.6 days/month)  and contributed substantial part of his salary for the Mother’s and the Sister’s expenses when he had a steady girlfriend, separate household(s)  and outside life. In my view, it was also perhaps not unreasonable to think that the Deceased would have continued to live in much the same way until, say, he contemplated marriage or more permanent cohabitation with his girlfriend.

188.  There was a further factor that clearly demonstrated that the Mother’s assertions in this respect were not credible and/or reliable. I turn first to the Mother WStmt that did not even say the Deceased ever moved out from the Flat at all. In paragraph 4 of the Mother WStmt, the Mother explained that (a)  after the divorce she and the Siblings continued to live at the Flat until the Brother moved out in 2012, and (b)  after the Deceased passed away she and the Sister continued to live at the Flat and the Brother would occasionally return for short stays. The necessary implication in respect of (a)-(b)  above in the absence of any mention that the Deceased had moved out from the Flat (when the Mother expressly mentioned the Brother having moved out from the Flat and when she referred to the Deceased’s girlfriend in paragraphs 4 and 16(5)  of the Mother WStmt)  must be that the Deceased continued to live at the Flat until he passed away. This was borne out by paragraphs 6-7 of the RSoD that averred without qualification that the Mother and the Sister resided with the Deceased at the time of the Accident. It was on such premise (which was quite erroneous even on the Mother’s and the Sister’s oral evidence)  that the Mother claimed in paragraph 16(5)  of the Mother WStmt that “據 [Mother] 所見, [Deceased] 下班後一般只在家玩電腦或上網, 並沒有任何高消費的消遣或嗜好 ……” (my emphasis)  (see paragraph 55 above). I find myself unable to place weight on such assertion, especially when, on the Mother’s oral evidence, the Deceased merely showered and had dinner at the Flat after he got off work at 6:00pm on his workdays, and then left after dinner for his outside home(s). In my view, the Deceased spent much more time outside than at the Mother’s home, and the Mother (who did not even know the Deceased’s outside address)  did not know how he spent his time in the evenings or what were his entertainment and/or social activities. Bearing in mind also the concerns discussed in this Judgment as to the Mother’s overall veracity, I find on balance (a)  the Mother had little idea about the Deceased’s lifestyle and spending habits prior to his death, particularly outside her home, and (b)  the Deceased could not have spent so little on himself and/or on his outside household(s)  as Mr Chong suggested.

189.  In coming to the above view, I also take into account the discussions and findings in relation to the loans borrowed by the Deceased, his loan repayments, and the state of his savings, if any.

(k)  Deceased’s loans

190.  It was not disputed that the bank statements of the Deceased’s Account showed he took out 9 loans from HSB from time to time, and indeed a 10^th loan was gleaned from bank statements (see paragraph 56 above). Although there was no evidence of the amounts drawn down for all 10 loans, it was evident from the bank statements of the Deceased’s Account that loans in the sum of $6,000 (loan no 344356399184), $5,524 (loan no 74DB0813-11), $10,000 (loan no 344606207184), $5,000 (loan no 760089482184)  and $35,315.25 (loan no CA362814-03)  were drawn down in April 2013, August 2013, September 2013, May 2014 and May 2014.

191.  It was the Mother’s alleged belief that the Deceased gave her household financial provision (家用)  by way of withdrawals from his salary that was deposited into the Deceased’s Account (see paragraphs 47 and 50 above). There was no suggestion that her household financial provision (家用)  came from the Deceased’s loans. On this, it would be useful to look at the last loan of $35,315.25 in a bit more detail. Following drawdown of such loan of $35,315.25 on 28 May 2014, the Deceased withdrew by “ATM” (automatic teller machine)  $12,000 on the same day, $4,200 on the following day and $3,000 on 1 June 2014 totalling $19,200. Thus, a sizeable portion of such loan was withdrawn from the Deceased’s Account within 5 days of such drawdown and before the next payday on 4 June 2014. The Deceased’s paydays before and after drawdown of such loan of $35,315.25 on 28 May 2014 fell on 19 May and 4 June 2014. It was the Mother’s evidence that the Deceased allegedly paid her $2,000-$3,000 after each payday (see paragraph 46(a)  above)  as household financial provision (家用), and I note there were 3 “ATM” (automatic teller machine)  withdrawals after 19 May 2014[60] and before such loan drawdown (which in total exceeded $3,000), and 3 “ATM” (automatic teller machine)  withdrawals after 4 June 2014[61] (which in total exceeded $3,000). Thus, even on the Mother’s evidence that the Deceased allegedly gave her household financial provision (家用), the Deceased’s 3 withdrawals by “ATM” (automatic teller machine)  on 28-29 May and 1 June 2014 totalling $19,200 after drawdown of the loan of $35,315.25 were unlikely to be for the Mother’s household financial provision (家用), which suggested these withdrawals were for the Deceased’s personal expenses or his communal household expenses for his outside household(s). Further, the precise amount of the sum of $35,315.25 down to 25 cents suggested that quite possibly it was for a dedicated purpose or at least partly for a dedicated purpose (see paragraph 195 below)  rather than cash for the Mother’s household financial provision (家用). Even if the Deceased had to borrow loans to support paying household financial provision (家用)  to the Mother (which I disagree), there was little reason for him to borrow total loans that exceeded over $40,000 in May 2014 (see paragraph 190 above)  and then expended it all by end of August 2014. I find on balance that the loans went to the Deceased’s personal expenses and/or his own share of the outside household expenses.

192.  But Mr Chong submitted that even on the Deceased’s “low” salary, he continued to pay for the Mother and the Sister, and had even personally incurred loan debts to “support their lifestyle”, and he reminded that the Mother became distraught under cross-examination when she realised the Deceased borrowed loans from the bank statements of the Deceased’s Account, and she claimed to believe the Deceased’s debt burden was to support the Sister’s and her expenses. Mr Sakhrani complained that such submissions created evidence as there was no reliable evidence that the Deceased took the loans to “support their lifestyle”. In my view, the Mother’s aforesaid belief was nothing more than retrospective surmise under cross-examination, and when pressed by Mr Sakhrani under cross-examination, the Mother confessed she had no personal knowledge whether the Deceased borrowed loans and incurred debts to pay household financial provision (家用)  to her (see paragraph 58 above). In my view, the Mother failed to give any credible reason as to why the Deceased took out such loans, which was unsurprising as the Mother had no idea about his finances, his bank account and/or his loans, or indeed, about his outside life (including his work and pay)  and his outside expenditures.

193.  On balance, I do not agree with Mr Chong’s submissions that looking at the broad picture of the loans, they were not extravagant or excessive for a young man like the Deceased, and that they were “small, manageable, and he was able to service the repayments”, which showed he was a responsible young man.

194.  The starting point was that the Deceased borrowed and/or serviced 10 loans from time to time as evident from the disclosed bank statements of the Deceased’s Account for the period from 29 August 2012 to 29 September 2014. Plainly, as evident from such bank statements, not all of the known 10 loans had been fully repaid at the time of the death of the Deceased. I bear in mind the Deceased had drawn down over $40,000 by way of 2 loans in May 2014, ie about 4 months before he passed away. The Mother as administratrix of the estate of the Deceased should have been aware of the assets and liabilities of his estate, and/or should have investigated the aforesaid loan debts when she had access to the bank statements of the Deceased’s Account (which were disclosed by P in this litigation), and yet she strongly claimed to have no idea about such loans. It was also unknown whether the Deceased had any further loans/debts apart from what was apparent from the disclosed bank statements.

195.  As referred to in the paragraphs 190-191 and 194 above, the Deceased newly borrowed $40,000 in May 2014 alone. Such total loan amount was equivalent to more than 3 months of his average monthly income ($12,518.33/month)  or, to put it in another way, over a quarter of his average annual income. In my view, it was no small sum. Looking at the summary table of monthly repayments during the period from August 2013 to August 2014 in paragraph 57 above, the total monthly repayments seen therein also reflected a rising trend from August 2013 to September 2014, increasing from under $2,000/month in mid-2013, to about $2,400/month from October 2013 to April 2014, then dipping to $1,822.30/month in May 2014, and rising to over $3,000 thereafter until the death of the Deceased (ie about $2,500/month in the 13 months prior to his death). It was unclear whether the dip in May 2014 was due to partial retirement of some old loan(s)  and outstanding interest from proceeds of the new loans drawn down in May 2014.

196.  3 matters were of note from this:

(a)	The Deceased’s repayment obligations had increased by about $1,000/month in about a year’s time, which was no small increment as it accounted for almost 8% of his average monthly income ($1,000 ÷ $12,518.33). This suggested he had borrowed more monies during the year which led to increased monthly loan repayments.
(b)	The Deceased had several loans which he had to service at any one time. 3-4 loan repayments within a month were not uncommon (eg loan repayments in October to December 2013 and February, April, May and August 2014), and the Deceased had to make 5 loan repayments in January, March and July 2014. In my view, the increase in amount of the loans that were borrowed and the increase in corresponding monthly loan repayments, and the need for multiple loans did not speak well of the Deceased’s financial health.
(c)	The Deceased had practically no savings to speak of. The closing balance of the Deceased’s Account as at 29 September 2014 was $131.46, and he still owed unpaid balance of some outstanding loans. The loan monies were spent by the Deceased, and hence the need for more loans. There was no suggestion that he kept part of the loan monies in his drawers at home. Mr Chong submitted that because the Deceased did not have a credit card and did not owe credit card debts, there was no evidence he would overspend or had bad spending habits. I see no practical difference between overspending by credit card and borrowing money to overspend by cash. Plainly, the Deceased was living on his income but also on debt before he died, and he was only able to make ends meet with personal bank loans.
(d)	According to the Mother Wtmt, the Deceased’s household financial provision (家用)  for the Mother would be about $4,000-$5,000/ month in 2014 and $5,000/month at the time of the Accident, which, according to the Mother, was drawn from his salary shortly after paydays. Mr Chong submitted that the remaining balance of the Deceased’s monthly salary (ie about $7,000/month)  after paying household financial provision (家用)  and extra pocket money (零用錢)  for the Sister (ie about $5,500/month)  would be sufficient for the Deceased who as a single adult would have less expenditure than the Mother and the Sister. But if that were so, there would have been no reason for the Deceased’s 10 loans that were on an escalating trend, including borrowing about $40,000 in May 2014 alone.

197.  Following on the last point, Mr Sakhrani submitted the available bank statements of the Deceased’s Account showed that the Deceased borrowed 9 loans in the 2 years odd preceding his death (ie after his release from Phoenix House at the end of April 2012 until the Accident), and that he had monthly total loan repayments that ranged from $1,822.30 to $3,081.90 (or about $2,500/month)  in the 13 months prior to his death (with higher repayment amounts in the last 3 months of his life). On such basis, Mr Sakhrani submitted the Deceased would only have about $4,500/month[62] rather than $7,000/month[63] for his own monthly expenses, which Mr Sakhrani found implausible.

198.  But Mr Chong submitted Mr Sakhrani erred in his low assessment of $4,500/month as the free balance for the Deceased’s personal expenses because it wrongly assumed the loan repayments were an expense without considering the Deceased would also spend the loans on the Mother and the Sister. Mr Chong submitted the correct way to look at the Mother’s household expenses was that the Mother, the Deceased and the Sister had a total monthly income of about $18,000 (ie the Deceased’s average monthly income of $12,518.33 and the Mother’s monthly CSSA payment of $5,219/month at the time when the Deceased passed away)  plus rent-free housing, and as the Deceased provided about $5,500/month to the Mother and the Sister, the Mother and the Sister together spent around ⅔ of the total available household income per month (ie about $11,000/month drawn from the monthly CSSA payment of $5,219/month and the Deceased’s household financial provision (家用)  for the Mother and pocket money (零用錢)  for the Sister of $5,500/month), leaving the remaining ⅓ ($7,000/month)  to the Deceased.

199.  Mr Sakrani disagreed, saying there was no credible evidence that (a)  the loan monies were being spent in the way Mr Chong suggested (ie as joint household income of the Mother, the Deceased and the Sister), (b)  the loan monies sat in the Deceased’s Account, (c)  the Deceased paid any lump sum to the Mother other than (according to the Mother)  household financial provision (家用)  paid twice each month in cash after paydays, and/or (d)  any payment to the Mother could be correlated to the timing of the loan drawdowns. In my view, there was force in Mr Sakhrani’s submissions.

200.  On balance, I reject such Mr Chong’s contention in paragraph 198 above:

(a)	For reasons explained in Part IV(j)  above and paragraphs 312-326 below, I disagree that the Mother, the Deceased and the Sister had a joint household. Such suggestion also flied against the contents of the SWD and HKHA Forms (which the Mother confirmed to be true and correct)  that made clear the Deceased was not a household member of the Mother’s household, and I have rejected the Mother’s statement/oral evidence otherwise.
(b)	I have found the Deceased had more personal expenses and communal household expenses with his girlfriend and/or his friend than the Mother would have let this court believe. As a young adult wage-earner with established earning capacity living away from home with his girlfriend and/or his friend, his spending habits would not have been as frugal as suggested by Mr Chong, especially in light of the loans as known. As explained in paragraph 191 above, it was unlikely that the loan of $35,315.25 was for the Mother’s alleged household financial provision (家用), and a sizeable portion of it was spent by the Deceased in the following few days. It was subsequently totally spent before the Deceased passed away since the account balance of the Deceased’s Account as at 1 September 2014 was $188.45 (just prior to payday on 4 September 2014). There was simply no credible or reliable evidence that the Deceased’s spending habits were as austere as suggested. As Mr Sakhrani submitted, if it were true that the Mother (as she claimed in the 2012 SWD Review Form dated 13 September 2012 (C/138-143)  and as confirmed in her subsequent SWD Forms in 2013/2014)  did not even know the address of the Deceased after he moved out, “…… this does not indicate [the Deceased] told her much about [his life] outside of home and, a fortiori, [his work]. If she was not truthful in this answer, then what else was she not truthful about?”
(c)	Mr Chong submitted that ⅔ of the “joint” household income ($11,000/month)  was spent on the Mother and the Sister, leaving ⅓ of the “joint” household income ($7,000/month)  for the Deceased (see paragraph 198 above). Such contention proceeded on the wrong foot as I have found (i)  it was inappropriate to regard the Mother, the Deceased and the Sister as having a joint household, and (ii)  the Deceased had more expenses than the Mother would let this court believe. It also ignored the fact that the Father provided financial support for part of the Sister’s expenses (see paragraphs 23 and 133 above). I also find it quite implausible that with the Mother and the Sister enjoying the safety net of monthly CSSA payments (assessed and paid to the Mother on the basis that the Mother and the Sister were totally reliant on public welfare on the basis of her disclosures to SWD – see paragraph 210 below)  together with support by the Father for part of the Sister’s expenses and pocket money from the Brother (not disclosed to SWD), the Deceased would not only pay household financial provision (家用)  to the Mother and extra pocket money (零用錢)  for the Sister, but would also take out loans to support their lifestyle, and then made false declaration to SWD in the Deceased SWD Forms that he did not give the Mother any financial support.
(d)	Even if Mr Chong were correct to say that ⅔ pf the “joint” household income ($11,000/month)  was spent on the Mother and the Sister leaving ⅓ of the “joint” household income ($7,000/month)  for the Deceased (which I disagree), it was no different from the Mother’s stance on her evidence that the Deceased contributed household financial provision (家用)  for the Mother and pocket money (零用錢)  for the Sister in the total sum of $5,500/month out of his income of $12,518.33/month, leaving a free balance of about $7,000/month for his personal use. This meant that (i)  the Deceased would have use of all the loan monies, which were spent by him and not saved, and (ii)  he had to make loan repayments (at/about $2,500/month)  out of the free balance of his monthly income ($7,000/month), thus reducing his disposable monies to $4,500/month from his work income and the drawn down amounts of his loans. It was not suggested that the loan repayments were made from the monthly CSSA payments and/or the Deceased’s household financial provision (家用)  for the Mother.

201.  In my view, the Deceased’s loans clearly showed (a)  he had practically no savings during his lifetime, (b)  he was living on his income and on debt to make ends meet, (c)  he had more personal expenses than the Mother claimed and also incurred communal household expenses for his outside household(s), and (d)  it was unlikely for him to have supported the Mother and the Sister to the extent the Mother claimed in view of the unfavourable state of his personal financial situation, and given the availability of monthly CSSA payments and rent-free housing for the Mother and the Sister, the support by the Father for part of the Sister’s living expenses, and the pocket money from the Brother.

(l)  Mother’s/Sister’s expenses

202.  Mr Chong submitted the Mother was wholly dependent on the Deceased and the CSSA payments (apart from the single month when she worked as a post-natal care worker). Mr Chong pointed out the account balance of the Mother’s HSBC Account was consistently very low, and he argued the Deceased must have financially supported the Mother by giving her monthly household financial provision (家用)  because it was difficult or even insufficient for 2 adults (ie the Mother and the Sister who was getting older and likely to require greater expenditure at the time)  to survive on the meagre amount of CSSA in the sum of $5,219/month at that time.

203.  The essence of Mr Chong’s arguments was that the Deceased must have given monthly household financial provision (家用)  for the Mother and pocket money (零用錢)  for the Sister because otherwise they would have insufficient money to cover their expenses. This was a bold argument to make when P/Mother did not adduce any statement or documentary evidence about the items and amounts of household expenses of the Mother’s household (except for utilities expenses – see paragraph 207 below)  nor the personal expenses of the Mother and the Sister even though the Mother and Sister were the ones who must have known what those household/personal expenses actually were.

204.  Mr Sakhrani submitted it was unusual in a fatal accident claim that the plaintiff would fail to disclose his/her household expenses at the time of death of the deceased and as at the date of trial. Household expenses would have been a useful indicator of the possible level of contributions (especially in light of the admitted paucity of documentary evidence of the alleged contributions in the present action), but quite inexplicably they were not provided.

205.  Mr Chong submitted that the absence of information as to the household and/or personal expenses of the Mother and the Sister was insignificant because the approach for assessing loss of dependency advocated in Harris v Empress Motors Ltd[64] focused on the contributions by the Deceased based on his intentions (eg the Deceased being a filial son)  and habits (eg his contribution in light of his earnings)  and not on the nitty-gritty details of the household expenses. As seen in Part V(c)  below, I find the “Harris approach” (see paragraph 282 below)  inappropriate in the present context. But for the present purpose, irrespective of the applicability of the “Harris” methodology in assessing P’s claim for loss of dependency, Mr Chong went further to positively bolster P’s claim for loss of dependency with the argument in paragraph 202 above. I agree with Mr Sakhrani that in such circumstances, it behoved P to adduce cogent evidence to support such contention, especially when P averred in the RSoD that the Deceased’s monthly contribution would have amounted to ⅔ of his average monthly income (for the Dependants)  and ⅓ of his average monthly income (for the Mother)  in the pre-trial period, and eventually ½ of his alleged notional income (for the Mother)  in the post-trial years. Given the discussions and findings above and the Mother’s poor overall credibility, I am unable to accept Mr Chong’s suggestion that pragmatically speaking it would have been improbable for the Mother and the Sister to survive on basic living with CSSA payment of $5,000 odd per month when they also enjoyed the benefit of the Father’s support for part of the Sister’s living expenses up to 2016, the Brother’s pocket money for the Mother, and as seen in paragraph 223 below, the Deceased’s pocket money for the Mother and the Sister.

206.  Following on the last point, Mr Chong also argued that the Deceased’s contribution was not tied to the Mother’s household/living expenses because as a filial son he could have given more than was necessary. The short answer to this was that even on the Mother’s evidence there was no evidence (a)  the Deceased gave more than was necessary for the Mother and the Sister and/or (b)  the Mother did not have to spend all of the Deceased’s monthly household financial provision (家用)  for her.

207.  So it was left to counsel’s diligence to scour through the bank statements of the Mother’s HSBC Account to work out her utility bills (as evidenced by entries for “C Gas”, “Water AC” and “CLP”)  amounted to a total sum of $13,099.10 in the year 2014 or an average of $1,091.60/month. But even with such information available to P/Mother being the party who produced such bank statements, the subject of household expenses was not even touched upon in the Mother WStmt. Thus, Mr Chong was left to fashion his arguments essentially on the Mother’s broad assertions (unsupported by particulars and specific facts)  that her expenses were large, and that 2013-2014 prices were more expensive than those in 2012.

208.  Regrettably, such arguments suffered from inherent weaknesses because my findings above (and also in my discussions and findings below)  showed that the overall veracity and credibility of the Mother’s evidence were severely undermined, and I am unable to place safe reliance on her assertions. It was also not helped by the fact that the allegations concerning household financial provision (家用)  for the Mother in the Mother’s statement/oral evidence flied against the contents of the SWD / HKHA Forms (which were entirely ignored in the Mother WStmt despite their relevance to the Mother’s and the Sister’s alleged dependency on the Deceased and despite the apparent discrepancies between the contents of the 4/16/18 Parts and the information in the SWD / HKHA Forms in relation to the Mother’s and the Sister’s alleged dependency on the Deceased), and I have found on balance that the SWD / HKHA Forms (except for the parts that I reject)  were credible and reliable. Indeed, P did not seek leave to elicit evidence from the Mother to explain the obvious discrepancies. Whilst I remind myself of the Mother’s privilege against self-incrimination, the Mother was plainly willing to forego such privilege from answering questions on the subject, and it was not suggested the reticence in the Mother WStmt and/or her decision not to give clarification in her evidence-in-chief were due to any insistence on her privilege against self-incrimination.

209.  On balance, I agree with Mr Sakhrani that the material discrepancies between the 4/16/18 Parts and the Mother’s oral evidence to similar effect on the one hand and the contents of the SWD / HKHA Forms on the other hand severely undermined the Mother’s evidence and P’s case. Regrettably, one cannot help but conclude that the Mother withheld information in a poor attempt to bolster P’s case, and the dependency on the Deceased as alleged was inherently improbable.

210.  Having dealt with the matter of the Mother’s credibility, the starting point must be the fact that the Mother was the recipient of (a)  CSSA monthly payments for herself and the Sister since 2003 (see paragraph 23 above)  and (b)  government housing allowance for her and her household member(s)  to live rent-free at the Flat. Since the Mother never declared any income or financial contribution/support from relatives and friends (eg the Deceased’s alleged financial support for her by way of household financial provision (家用)  and the Father’s support for part of the Sister’s living expenses)  in the SWD / HKHA Forms apart from (i)  her post-natal care work and income in 2014 (see the 2014 SWD 1^st Review Form dated 10 March 2014 (C/120-124)  and paragraph 54 above), and (ii)  the Brother’s income in 2016 and 2018 (see the 2016 and 2018 HKHA Declarations dated 5 October 2016 and 24 July 2018 (C/259-282)  and paragraphs 68-69 above)  despite dire warning that she must disclose all income and financial resources otherwise there might be potential criminal and/or other consequences for falsities and/or omissions, it was plain that prior to the death of the Deceased, the Mother’s monthly CSSA payments ($5,982.12 in 2010, $5,954.32 in 2012 and $5,219 in 2014)  were assessed and granted on the basis that she and the Sister required full public welfare support to meet all the Mother’s, the Sister’s and their household needs (exclusive of rent for the Flat). The Mother did not explain why in the period from 2010-2014 SWD (who was in ignorance of the Deceased’s alleged financial support for the Mother and the Sister, and the Father’s support for part of the Sister’s living expenses)  only allowed monthly CSSA payments for (according to the Mother)  less than half of the actual needs of the Mother and the Sister and leave them in so-called “destitution” (eg at risk of going without food and/or utilities).

211.  Further, on the Mother’s case, the Mother and Sister did survive and make ends meet on monthly CSSA payments of about $5,900/month in 2010-2011 when the Deceased was in prison and when (on the Mother’s evidence)  the Brother did not provide her with any financial support. It was only when the Mother was pressed on this point under cross-examination that she came up with the explanation that “[starting] from 2013 and also lasted until 2014, the inflation was high [百物騰貴] and …… things were not as expensive in 2012”. In my view, this was nothing more than a poor and unreliable afterthought to deal with difficult cross-examination, especially as I have found they had pocket money (albeit in modest sums)  from the Brother and the Deceased (see paragraph 223 below)  and the Father’s support for part of the Sister’s living expenses.

212.  Indeed, save for broad assertions in re-examination that “…… [the Deceased] just know that there were two markups for cigarette purchase and as well as there was markup of electricity charge …… Even the prices for food went up a lot ……” to explain why “百物騰貴” in 2013-2014 as compared with 2012, P did not adduce any concrete evidence of consumer price increase on household goods/services for the Mother’s household from 2010-2011 to 2014 or any general evidence by way of, say, government consumer price indices. I note the Mother’s monthly CSSA payment was reduced to $5,219 in 2014 when her family circumstances were unchanged, ie SWD assessed her entitlements on the basis that there was no income or no other financial support for her and the Sister, which cast suspicion on the Mother’s allegations under cross-examination that inflation had increased in 2013-2014 with “百物騰貴”, especially as the undisputed purpose of CSSA payments was to provide safety net for those who are unable to support themselves. There was also no suggestion by the Mother that she had approached the SWD to explain that the monthly CSSA payments were insufficient, and that she could not make ends meet on the monthly CSSA payments given to her.

213.  Mr Chong suggested that by the time of the Accident, if the Deceased did not give household financial provision (家用)  to the Mother, she would have about $4,000/month (CSSA payment of $5,219/month less utility charges of $1,091.60/month)  to pay for the meals, telephone bills, sanitary items, the Sister’s pocket money, cigarettes etc on top of other necessary expenses such as travel expenses and expenses for clothing, household necessities and general entertainment, which the Mother would understandably spend on and which would not be sufficient.

214.  But Mr Chong’s submissions did not take into account 2 further sources of revenue for the Mother and the Sister: (a)  the Sister’s living expenses was partially supported by the Father (although the Mother did not disclose the amount thereof)  as stated in the Mother WStmt, and (b)  some pocket money for the Mother by the Brother as I have found (see Part IV(h)  above). I also find in paragraph 223 below that like the Brother, the Deceased (who had also moved out and who had a girlfriend and his own friends with whom he shared his life outside home)  gave some pocket money in a modest sum (rather than household financial provision (家用))  to the Mother. Mr Chong referred to the Mother’s evidence that the Deceased would take the Mother and the Sister out for meals, and that he would shop and pay for extra household items apart from the household financial provision (家用)  for the Mother and the pocket money (零用錢)  for the Sister in cash. On balance, given the Mother’s poor overall credibility and reliability, and the Deceased’s outside life and consequent expenses (which if ignored would reflect lack of realism), whilst I accept the Mother’s finances would have been tight, she might not be able to indulge in her smoking habit as pleasurably as she would have wished, and there might be little by way of entertainment, I do not accept she and the Sister would have been unable to get by on the monthly CSSA payments and the aforesaid other supports whilst living rent-free at the Flat. Further, although I accept the Deceased might now and then take the Mother and the Sister out for an odd meal or so, I am unconvinced he was as generous in his support with outside meals and extra groceries and/or household goods as suggested by the Mother.

215.  But Mr Chong next suggested the Mother gave evidence that the Deceased gave her a few hundred dollars a month as household financial provision (家用)  when he worked as an attendant at the internet bar, and increased it to $1,000-$2,000/month when he worked at Ajisen. Bearing in mind (a)  the Deceased moved into a semi-skilled job as an Intermediate Grade scaffolder with Tai Luen / D2 with increase in monthly income, (b)  the Mother WStmt asserted the Mother had to defray the Flat’s water, electricity and gas expenses, the family’s food expenses, and the Sister’s pocket money and daily expenses etc, (c)  the Mother gave evidence under cross-examination that the Deceased made provision for her to buy cigarettes (for her)  and food for evening meals (for her, the Sister and the Deceased), which provision was also spent on “telephone fees” and female sanitary products for herself and the Sister, and (d)  inflation was high (百物騰貴)  whilst things were not so expensive in 2012, it was reasonable that starting from 2013-2014 the Deceased increased his household financial provision (家用)  for the Mother and pocket money (零用錢)  for the Sister, which was up to $5,500/month by the time he passed away.

216.  I see no problem with the Deceased giving the Mother (a)  a few hundred dollars a month as household financial provision (家用)  when he worked at the internet bar as he was younger and living at home, and (b)  $1,000-$2,000/month when he worked at Ajisen as he had little opportunity for expenditure whilst he lived at Pheonix House with regulated work/rest times. The situation was different after he started to work at Tai Luen / D2 because by that time he had a girlfriend, had moved out of the Flat and had increased personal expenditure (expenses which he did not have when he lived at home and when he stayed at Phoenix House), and on balance I am unconvinced by the Mother’s assertions as to the Deceased’s household financial provision (家用)  for her in the manner as explained in paragraph 46 above. On balance, I find it quite improbable that the Deceased would have given the Mother $1,000-$2,000/month when he made $11,094 during 3 weeks in April 2014 when he worked for Ajisen (and had little personal expenditure as he lived at the Phoenix House), but would contribute $5,500/month (ie an increase of $3,500-$4,500/month)  to the Mother and the Sister as household financial provision (家用)  for the Mother and pocket money (零用錢)  for the Sister when he earned on average $12,518.33/month (ie salary increase of about $1,500/month)  in the 12 months before the Accident when he had increased personal expenditure with his girlfriend, his outside household(s)  and his reasonable social activity and entertainment. The Mother tried to explain this away by saying that she and the Sister had large household expenditures, but for reasons explained above (not least of which was the lack of particulars/evidence of itemised household expenses), I am unable to accept her explanation.

217.  Mr Chong submitted that the increase in contribution “could also be that, being a filial son, [the Deceased] thought he should provide more for his mother after he had a long term and secured job. His employment with Ajisen was only temporary. He had grown from a boy to become a responsible man, as evidenced by the fact that he had bought life insurance for the benefit of his mother just 2 months before the accident” (presumably the HSI Policy). In my view, although the Mother asserted the Deceased was a frugal and filial son who would contribute a significant portion of his income to financially support her and the Sister, the Mother had been shown to be unreliable in her evidence, especially over money matters, and the weight of the evidence as analysed above was against her contention. Dealing with the matter on a practical basis, notwithstanding any cordial filial relationship between the Deceased and the Mother, the reality was that the Deceased lived on salary and on debt, and had more expenses than P/Mother would have this court believe, so filial piety could not overcome the reality of his debt-affected financial state.

218.  Mr Chong asked me to consider the life insurance policy the Deceased bought with the Mother as beneficiary (presumably the HSI Policy). But as I have pointed out in paragraphs 126 and 164(a)  above, the Mother was not named as beneficiary because the Mother WStmt made clear that the insurance pay-outs were made to the Deceased’s estate and not to any named beneficiary. But I agree the Deceased’s life insurance policy(ies)  reflected some financial planning, but more likely than not the purchase of such life policy were triggered by realisation of the inherent dangers of his profession when a scaffolder died working for Tai Luen, which then had to transfer operations to D2 who then re-employed Tai Luen’s scaffolders (including the Deceased)  (see footbote 11 above and footnote 65 below). Indeed, the Mother said she did not realise scaffolding work was so dangerous otherwise the Deceased should not have taken up such work. But in my view, still this would not have overcome the reality that the Deceased lived beyond his means, and generally had to rely on loans to tide him over between paydays.

219.  Indeed, the Mother, when pressed, agreed that the Deceased did not contribute as much as $5,000/month for her at the time of his death, and testified he only paid $3,000-$4,000/month for her but would pay when he went to the supermarket (see paragraph 50 above). Mr Chong tried to justify this testimony by the Mother by pointing out that (a)  in August 2014, ie the month before the death of the Deceased, he withdrew $3,600 on 5 August 2014, ie the day following payday, and $1,000 on 23 August 2014 after payday on 19 August 2014, so there was nothing untruthful about the Mother saying the Deceased gave her and the Sister $3,500-$4,500/month, and (b)  not all contributions were in the form of cash payment as the Deceased would from time to time bring the Mother and the Sister for meals and would purchase groceries, so the value of cash payments, food and groceries would add up to an average of $5,000/month for the Mother and $500/month as pocket money for the Sister. It was said that “[given] the changing pattern of the monthly contribution, it is unfair for [Mr Sakhrani] to make a mountain out of a molehill”. But, as Mr Sakhrani submitted, this was not the Mother’s evidence. The RSoD expressly averred that “[prior] to the death of the Deceased, the Deceased did give money in the sum of around HK$5,000.00 to the [Mother] to support the living of the entire family including [the Sister], [the Mother] and himself ……” (my emphasis), and the Mother WStmt stated that the Deceased gave the Mother $2,000-$3,000 when he received his salary which he did twice a month, and “besides” (此外)  the Deceased would bring the Mother and the Sister for meals and he would purchase extra food and household goods. The tenor of P’s pleadings and the Mother’s statement evidence was that she would receive $4,000-$5,000/month in cash from the Deceased, and by the time of the Accident she received $5,000/month in cash from the Deceased. The Mother did not give any or any satisfactory explanation for the “retraction”, which served to undermine her evidence in relation to her alleged dependency on the Deceased.

220.  There was also another small point that the Mother WStmt suggested the Deceased must have given her household financial provision (家用)  after each payday because there were withdrawals shortly after his salary was deposited into the Deceased’s Account twice a month. In the discussions above, I have sometimes proceeded on this assumed premise to test the viability of the Mother’s assertions, but frankly I am unable to follow the logic of this contention. Since the Deceased’s salary was paid by cheque deposit into the Deceased’s Account, he would have to make withdrawals for any expenditure, be it his personal expenses, his share of or contribution to communal household expenses for staying at his girlfriend’s place or his friend’s place, or his pocket money for the Mother.

221.  Mr Chong next made the following submissions:

(a)	Mr Chong argued that the Deceased “was a filial son, who tried his best to provide for and support his Mother. He witnessed his Father and [Brother] leave the family in financial destitution”. But even on the Mother’s own statement evidence the Father supported part of the Sister’s living expenses, and I have found the Brother did give pocket money to the Mother albeit in a modest amount. Indeed, Mr Sakhrani was correct to say that the Mother admittedly took CSSA payments and government housing assistance to live modestly with the Sister, but there was no evidence and no basis to infer they lived in destitution.
(b)	Mr Chong submitted that “[the Deceased] showed a clear sense of family responsibility and filial duty, having come out of jail, and apparently turned his life around, being committed to take care of his aging Mother and [the Sister] as the sole breadwinner of the household. This evinces a projection of [the Deceased] developing a sense of maturity”. On the other hand, Mr Sakhrani submitted this created evidence because whilst there was disputed evidence that the Deceased gave the Mother money every month and this increased in time, there was no evidence that “[the Deceased] showed a clear sense of family responsibility and filial duty, having come out of jail, apparently turned his life around, being committed to take care of his aging Mother and [the Sister] as the sole breadwinner of the household ……” On the above analysis of the Deceased’s finances/loans and expenditures after he was released from prison and left Pheonix House in the context of his moving out from the Flat to live with his girlfriend and/or his friend, I find the practical reality was that he would not have made substantial contribution or financial support for the Mother and the Sister, who enjoyed CSSA payments, and the Brother’s pocket money, and support by the Father for part of the Sister’s living expenses.
(c)	The Mother WStmt claimed the Deceased knew the Brother did not provide household financial provision (家用)  to her after he left home, so the Deceased wished to take up his own responsibilities and those of the Brother (see paragraph 45 above). I have rejected such contention, and found that the Brother did give pocket money to the Mother albeit in a modest amount.

222.  It was said that even on the Deceased’s low salary he continued to pay for the Mother and the Sister and even “procured declarations” to SWD to ensure the Mother would be able to support her expenses. Such submissions flied against the Deceased’s own declarations in the Deceased SWD Declarations. Mr Sakhrani rightly complained there was no evidence from the Mother or otherwise that the Deceased consciously made false declarations to SWD even though the Mother claimed to disagree with his declarations.

223.  I find on balance the contention (in the context and circumstances of the Deceased as I have found)  that the Deceased gave household financial provision (家用)  to the Mother in the sum of $5,000/month (which was practically more than ⅓ of his average monthly salary)  when she and the Sister had monthly CSSA payment of $5,219/month, pocket money from the Brother and support from the Father for part of the Sister’s living expenses was to overreach for an improbable level of financial support. In my view, given that the Sister had a closer relationship with the Deceased than with the Brother, I accept the Sister’s evidence that in 2012 the Deceased gave her about $200-$300/month as pocket money (零用錢), and in 2014 the Deceased gave her $500/month in cash as pocket money (零用錢). It was something he could afford on his salary and loans. I also find on balance that he could also afford and did pay pocket money albeit in a modest amount to the Mother as well notwithstanding the CSSA payments and rent-free public housing for the Mother and the Sister, the Father’s support for part of the Sister’s living expenses, and the Brother’s pocket money for the Mother.

V.  LOSS OF DEPENDENCY

(a)  Deceased’s notional earnings – Master Grade scaffolder?

224.  In the RSoD, it was averred that at the time of the Accident the Deceased had been working as an Intermediate Grade bamboo scaffolder (竹棚中工)  for over a year, and but for the Accident he would have qualified as a Master Grade bamboo scaffolder (竹棚大工)  in/about a year after the Accident, say, by 21 September 2015. On the other hand, D2/D5 by their Amended Answer put P to strict proof, and averred that (a)  the Deceased had not attended to work diligently when employed by D2, and (b)  whether an Intermediate Grade scaffolder could be promoted to a Master Grade scaffolder would depend on the worker’s own skills, talent and initiative.

225.  Mr Chong contended that since (a)  the Deceased obtained his Intermediate Grade Trade Test Certificates (metal / bamboo scaffolding)  in 2008/2009 and worked continuously as a scaffolder for over 2 years before the Accident, and (b)  the court was required to assess the likelihood of promotion in determining the notional income of the Deceased, and further since (c)  D2-D5 did not dispute the Deceased would remain in the scaffolding industry as long as he was of working age, (d)  Chak/Tang (being colleagues of the Deceased)  did not say he was not interested in scaffolding work, and (e)  Tang only said he could not be sure whether the Deceased could be promoted to become a Master Grade scaffolder without asserting the Deceased could never become a Master Grade scaffolder, the Deceased’s promotion to Master Grade would have been a foregone conclusion but for the Accident, leaving only the question of when he would have been so promoted.

226.  I disagree. The starting point was that the burden fell on P to prove there was a real chance the Deceased would have been promoted to become a Master Grade scaffolder but for the Accident. The only evidence P adduced (apart from the Deceased’s training and employment history)  was the Mother’s belief (rather than knowledge)  as set out in paragraph 11 of the Mother WStmt that “…… [Mother] 相信如 [Accident] 沒有發生, [Deceased] 將會繼續任職搭棚工人而他最遲亦會在大的[Accident] 後一年內 [ie by September 2015] 考取竹棚及金屬棚架大工牌照 ……” The Mother’s aforesaid belief rested on her alleged conversation with the Deceased a few months before the Accident with the Deceased allegedly telling her “[Deceased] 已有相當的搭棚經驗, 而 [Deceased] 從師傅學到較困難的搭棚技巧。所以, [Deceased] 當時打算在2015年考取搭棚大工牌” (as stated by the Mother in the Mother WStmt)  to which the Mother responded “Good boy, you have ambition” and asked him whether (if so by how much)  he would earn more as a Master Grade scaffolder, but the Deceased did not tell her anything more than he would make more money (as stated by the Mother under cross-examination). The Mother also revealed under cross- examination (but not mentioned in the Mother WStmt or in her evidence-in-chief)  that the Master Grade scaffolder “sifu” who taught him skills such that he thought he could apply for Master Grade Trade Test Certificates was “the “sifu” at the [VTC]” (ie where he trained to obtain his Intermediate Grade Trade Test Certificates)  who had taught him to erect metal scaffolding, but she did not know his name.

227.  As Mr Sakhrani submitted, given the Mother’s poor overall credibility/veracity, it was highly doubtful whether the Mother had the conversation with the Deceased in the above paragraph, especially as the overall tenor of the evidence showed she had little idea about his work as a scaffolder. Under cross-examination, the Mother was not clear about Tai Luen / D2, and all she knew was the Deceased went to the same place/address for work whether he worked for Tai Luen or for D2,[65] a place located at the Phoenix Estate (probably Fung Wong New Village)  on a street nicknamed “Coffin Street” (but she did not know the proper/ official name of that street). The Mother did not even know the Deceased worked for which company when they allegedly had the conversation in the above paragraph. In short, the Mother had very little knowledge of the Deceased’s employment, earnings and finances, and about his life outside her home, which meant the Deceased did not share such information with her. In such circumstances, I find it quite implausible that he would have shared his work-related aspirations with her as she alleged. In my view, the Mother’s allegations as to the alleged dialogue with the Deceased about the earnings of Master Grade scaffolders and the “sifu” at VTC who taught him further skills, which came to light for the 1^st time under cross-examination, were merely belated afterthoughts and/or evidential embellishments for bolstering her alleged belief that the Deceased would have become a Master Grade scaffolder in a year’s time but for the Accident. I find myself unable to place weight on the Mother’s allegations in this respect.

228.  But even if I were wrong and the Deceased did have the conversation in paragraph 226 above with the Mother, it would not have aided P for I am not persuaded there was sufficiently sound basis supported by reliable evidence for the Deceased’s belief that his intended upgrading to Master Grade level was achievable. All Mr Chong could say was that the Deceased should have known what he was talking about as he was in the scaffolding trade, but I find myself unable to accept such contention. At all material times the Deceased was an Intermediate Grade scaffolder, and as seen in the paragraph below, there was no evidence before this court as to the requirements/criteria for undergoing/passing the tests for Master Grade Trade Test Certificates (metal / bamboo scaffolding)  and, more importantly, as to the Deceased’s knowledge about such requirements/criteria and how they would be met. Further, the Mother said under cross-examination that the “sifu” who taught the Deceased more complex skills was the “sifu” at VTC who previously taught him how to erect metal scaffolding. It was unclear how the teachings by such “sifu” would assist the Deceased to pass the relevant test and to achieve Master Grade level for bamboo scaffolding, especially when the Deceased’s work was in bamboo scaffolding and, according to his employment contract with D2, he was employed as an Intermediate Grade bamboo scaffolder. I am not persuaded there was sound/reliable basis for (as the Mother alleged)  the Deceased thinking that he had acquired skills to become a Master Grade bamboo scaffolder.

229.  As alluded to in the above paragraph, there was simply no evidence before the court as to the requirements and/or criteria for passing the test for and achieving Master Grade Trade Test Certificates (metal / bamboo scaffolding), eg

(a)	the number of years of necessary practical scaffolding experience;
(b)	the need (if any)  for formal training eg attending training at VTC as the Deceased did for obtaining Intermediate Grade Trade Test Certificates (metal / bamboo scaffolding);[66]
(c)	the nature/form of the relevant tests for Master Grade Trade Test Certificates (metal / bamboo scaffolding), the assessment process, the success/failure rate, and the possibility of retaking the tests upon failure;
(d)	the scope and level of skills and aptitude required to pass the relevant tests and to successfully qualify as a Master Grade metal/bamboo scaffolder.

230.  In my view, the absence of such evidence posed a serious hurdle for P in establishing any real chance of upgrading to Master Grade level. Faced with such evidential lacuna, Mr Chong ingeniously argued I should look at the matter from the perspective that there was no evidence before the court to show that being promoted to Master Grade level in a year’s time was not achievable, and he made the following complaints against D2-D5:

(a)	Mr Chong submitted that (i)  although D2-D5 well knew P by the RSoD pleaded the Deceased would have become a Master Grade scaffolder in a year’s time (ie by September 2015), they failed to adduce evidence (even though they were well-positioned to do so, eg by eliciting such evidence from Tang)  to challenge P’s case and to rule out P’s aforesaid plea, (ii)  Mr Sakhrani failed to suggest to the Mother during cross-examination that it was impossible/improbable for the Deceased to have become a Master Grade scaffolder, and (iii)  Tang’s evidence that “…… [Tang] 不能夠肯定 [Deceased] 能否及如能的話何時晉升為搭棚大工。原因是能否晉升為搭棚大工需視乎技能及自發性 ……”[67] was quite inadequate.
(b)	Mr Chong argued that the evidence showed the Deceased (i)  had several years’ experience as an Intermediate Grade scaffolder having obtained the relevant licences or test certificates in 2008/2009, (ii)  had worked in a scaffolding factory arranged by VTC up to 2010, and (iii)  had worked in bamboo scaffolding for 2 years and 2 months (from 9 July 2012 to 12 September 2014),[68] and D2-D5 did not suggest such experience was not good enough or not sufficient for advancing to Master Grade level.
(c)	Mr Chong submitted all Chak/Tang could say was they were not sure whether (and if so when)  the Deceased would have become a Master Grade scaffolder (see (a)(iii)  above), but they failed to refute P’s case by suggesting the Deceased could not have been promoted as a Master Grade scaffolder or could only have been so promoted after many years of further training.
(d)	Mr Chong argued Tang failed to rule out the Deceased could have become a Master Grade scaffolder “after one full year” of training.
(e)	Mr Chong contended D2 was in far better position than P “to adduce rebuttal evidence”, eg (i)  the number of Intermediate Grade scaffolders employed by D2, and (ii)  the experience which an Intermediate Grade scaffolder would need to accumulate (whether in terms of time or specific skills)  to become a Master Grade scaffolder. He complained that Tang merely said whether one could become a Master Grade scaffolder depended on skills and self-initiative (see (a)(iii)  above), but failed to give concrete examples or evidence as to why the Deceased would not have been able to qualify as such within a year, and if not, the additional years of experience he would have to accumulate before becoming one.

231.  On balance, I do not accept such arguments, which I find perplexing in view of the gross evidential lacuna in P’s overall evidence as to the Deceased’s prospects of becoming a Master Grade metal/ bamboo scaffolder explained in paragraph 229 above. In my view, Mr Sakhrani was right in saying such arguments were tantamount to reversal of the burden of proof. Just because D2 was in the scaffolding business and had Master/Intermediate Grade scaffolders in its employ would not alter the legal burden of proof that rested squarely on P to demonstrate the Deceased had a real chance of achieving Master Grade level in a year’s time, and Ds only had to meet the evidential burden of countering not bare averments but evidence adduced in this regard by P in support of her pleaded case. It would be nothing more than pulling P’s case up by its bootstraps if P could simply plead her case without adducing cogent, sufficient and/or probative factual evidence to lay the factual basis for a real chance of being promoted to become a Master Grade scaffolder, and then succeed on such pleaded case by grumbling against Ds’ failure to adduce detailed evidence to prove their objections. After all, D2/D5 by their Amended Answer did put P to strict proof.

232.  Further, given P’s lack of evidence on the matters in, say, paragraph 230(e)(i)-(ii)  above, it was difficult to understand Mr Chong’s complaints when P did not serve interrogatories or seek discovery of those matters prior to the Assessment Hearing, and did not cross-examine Chak (who had worked in the scaffolding industry since 1998 and was responsible for staff recruitment and salary payment)  on the employment of scaffolders and their grades, and Tang (who (i)  had over 27 years’ experience as a Master Grade bamboo scaffolder by the time of the Assessment Hearing, (ii)  worked as team head of a 3-men scaffolding gang/team that comprised 2 Master Grade and 1 Intermediate Grade scaffolders, and (iii)  was one of the team heads who worked with the Deceased on his scaffolding team for 12 workdays/month)  on the process/prospects of promotion. On balance, I find the evidence D2-D5 adduced, ie Tang’s evidence and Chak’s evidence (which I will turn to below and which on balance I accept), sufficiently answered P’s case.

233.  Turning first to Tang’s evidence, D2-D5 called as witness Tang who made clear in the Tang WStmt that “…… [Tang] 不能夠肯定 [Deceased] 能否及如能的話何時晉升為搭棚大工。原因是能否晉升為搭棚大工需視乎技能及自發性 ……” and that “[Tang] 認為 [Deceased] 的工作態度及技術一般”,[69]and who firmly disagreed under cross-examination and re-examination that the Deceased was hardworking. When Mr Chong told Tang the Deceased worked 21.6 days/month, Tang baldly testified under cross-examination that being hardworking in the sense of work attendance did not mean hardworking in the sense of work performance, and further explained under re-examination that the Deceased was unable to perform his assigned duties as expected of him. Mr Chong did not attempt to elicit any of the information in paragraph 229 above from Tang by way of cross-examination.

234.  On balance, I accept Tang’s evidence. I do not agree with Mr Chong’s suggestion that Tang’s evidence under cross-examination had “an undeniable tone of bias and incredibility”. He struck me as a straightforward and reliable witness, who was doing his best to assist, and who answered questions in a frank and direct manner without volunteering embellishments. He expressed understandable shock over the Accident, but his evidence was clear and emotionally detached.

235.  Several matters were of note. First, Tang’s evidence (which on balance I accept)  that the Deceased was not hardworking in respect of his work and that he was unable to perform his assigned duties as expected of him bode ill for the Deceased’s prospects of advancing to Master Grade level since such evidence directly concerned the Deceased’s work performance. After all, Tang explained that whether a scaffolder could upgrade to Master Grade level depended on his work performance, ie his skills and his self-initiative, but Mr Chong did not cross-examine Tang on these matters. In his oral closing submissions, Mr Chong claimed there was no need to cross-examine because a scaffolder’s skills and self-initiative involved “inevitable guesswork”. I disagree. The range and quality of professional skills as well as the work attitude and aptitude of a scaffolder must be matters of fact, eg factual observations and factual opinion of his colleagues/supervisors.

236.  Secondly, Mr Chong reminded me that Tang acknowledged the Deceased was hardworking in the sense of work attendance. But I am unable to see the relevance of diligence in work attendance as an Intermediate Grade bamboo scaffolder to his satisfying requirements/ criteria for passing the tests for Master Grade Trade Test Certificates (metal / bamboo scaffolding), especially when P did not lead any evidence on such requirements/criteria. In any event, Tang gave evidence that whether a scaffolder would upgrade to Master Grade level depended on work performance considerations of skills and self-initiative, and he did not say work attendance was a necessary criterion.

237.  Thirdly, Mr Chong complained that if the Deceased was not hardworking “after one full year of training”, Tang should have but did not rule out the Deceased’s ability to qualify as a Master Grade scaffolder. In my view, it was not for Tang as factual witness to give such opinion (but for the court to find)  as to what would have been the case but for the Accident, but Tang fairly gave factual evidence as to (a)  the Deceased’s work performance (as he knew from his experience in working with the Deceased)  and (b)  the requirements/criteria for promotion to Master Grade scaffolder (as he must have known from his own experience)  to assist the court. In any event, Mr Chong’s reference “one full year of training” was not understood. If Mr Chong referred to the course taken by the Deceased at VTC, it was for acquiring his Intermediate Trade Test Certificates and there was no evidence he attended any formal Master Grade training course at VTC (see paragraph 229(b)  above). If Mr Chong referred to the Deceased’s scaffolding work at the scaffolding factory, Tai Luen and D2, it was scaffolding work as an Intermediate Grade scaffolder without evidence that it amounted to relevant and/or sufficient practical experience for taking and/or passing the tests for Master Grade Trade Test Certificates (metal / bamboo scaffolding). If Mr Chong referred to learning scaffolding skills allegedly from the “sifu” at VTC who previously taught him how to erect metal scaffolding, there was no evidence it was or would be “one full year” up to the time of the tests to be taken in 2015 and/or such teachings were sufficient for the Deceased to qualify as Master Grade bamboo scaffolder. There was no evidence as to the frequency or intensity of such teachings. But whatever the Deceased learned from the “sifu” at VTC did not impress Tang in his daily work even as an Intermediate Grade bamboo scaffolder (see paragraph 233 above).

238.  Fourthly, Tang testified under cross-examination that whilst under D2’s employ the Deceased as an Intermediate Grade scaffolder worked for 12 days in a month with him as team head and another Master Grade bamboo scaffolder. Mr Chong suggested “it is understandable that [Tang] would expect similar level of skills from [the Deceased] as was expected from a Master Grade Scaffolder, and his evidence should be seen under such context”. Such contention was unfair as there was simply no evidential basis to assume Tang as a team head and a Master Grade scaffolder with 27 years’ experience in bamboo scaffolding would mix up Master Grade scaffolders and Intermediate Grade scaffolders by expecting the latter to perform like the former. It was never so put to Tang under cross-examination, and in any event there was no evidence to support such unreasonable surmise.

239.  Even though Mr Shakrani did not take issue over the factual background of the Deceased’s work/licence history, there was still no evidence before the court whether they constituted sufficient practical experience for undergoing and/or passing the tests for Master Grade Trade Test Certificates (metal / bamboo scaffolding), which scope, nature and requirements were unknown. In my view, Tang’s evidence was quite sufficient to address the quality and extent of the evidence on promotion prospects adduced by P.

240.  Given the paucity of evidence from P to support the Mother’s allegation that the Deceased expressed a wish to obtain Master Grade Trade Test Certificates (metal / bamboo scaffolding)  which would have enabled him earn more money, Mr Chong turned to legal authorities and (a)  prayed in aid the case of Wan Dan Nei & anor v Dragages et Travaux Publics and Penta-Ocean Construction Co Ltd[70] to underline the matters in paragraph 230(b)  above, and (b)  criticised D2-D5 for not adducing evidence to challenge P’s pleaded claim in the RSoD that the Deceased would have been promoted (see paragraph 230(c)-(e)  above). For reasons explained in paragraphs 231-238 above, I have rejected the contention in paragraph 230(b)  above.

241.  It was suggested that Wan Dan Nei & anor supported the proposition that “[career] ambitions and having a responsible attitude have been a sufficient basis for the Court to find a likelihood of promotion, even where there is no specific evidence that the promotion would necessarily have resulted”. In my view, Mr Chong’s brief description of Wan Dan Nei & anor in his written closing submissions, ie that the court in that case held the deceased would have been promoted to a civil engineer and later even a chartered engineer “despite only having worked at a consultancy firm for 3 months prior to his death”, failed to recognise the wealth of evidence on promotion prospects adduced by the plaintiff in that case.

242.  In Wan Dan Nei & anor, the deceased, who died in an accident in 1996, was a project engineer with the defendant’s sub-contractor VSL. The plaintiff submitted that by 2005 at the latest the deceased would have been promoted to a higher rank earning a salary comparable with a civil engineer with the government at no less than $65,000/month (pages 120-121), and adduced the following evidence in support of the deceased’s promotion prospects (pages 121-122):

(a)	evidence demonstrating it was not necessary to be chartered for promotion to construction/project manager in the private sector;
(b)	evidence as to the qualifying requirements for a civil engineer, ie a degree in civil/structural engineering with at least 3 years’ experience in the field and/or an equivalent professional qualification, eg Corporate Membership of the Hong Kong Institute of Engineers (Civil Discipline);
(c)	a letter from Gammon to Ove Arup that enclosed the deceased’s application for the post of design engineer, and a letter of recommendation stating (i)  the deceased decided to further his career with a consulting engineer and (ii)  Gammon had no hesitation to recommend the deceased to any future employer;
(d)	a letter by MAA Engineering Consultants (HK)  Ltd that confirmed employment of the deceased as a geotechnical engineer for just 3 months in 1990 as he was about to emigrate to Canada, and his work performance during the period was satisfactory;
(e)	evidence by 4 chartered engineers as to the deceased’s capability and competency for becoming a civil engineer and attaining the post of construction or project manager at the latest by 2005;
(f)	evidence to show the deceased was a conscientious worker in his 2½ years with VSL;
(g)	report by the construction manager at VSL that the deceased was well regarded by the company, and could be promoted (without being chartered)  provided he could improve his English.

It was on the basis of such rich material that Master Cannon was satisfied “on the evidence” that the deceased would have been promoted “at VSL, without being chartered” (page 122).

243.  In adopting the approach in Corbett v Barking Health Authority[71] that cited Davies v Taylor[72] (page 123), the learned master evaluated the chance of the deceased being chartered, and came to the view there was every likelihood that he would have become a chartered engineer. Such conclusion was based not merely on career ambitions and responsible attitude, but on evidence adduced by the plaintiff (page 122):

(a)	the deceased’s achievements in the past demonstrated he was a responsible and able man (see paragraph 242(c)-(d)  above);
(b)	although the deceased’s engineering career suffered a hiatus whilst he was in Canada during 1990-1993, he was able to re-establish himself in the engineering field on his return to Hong Kong, and he was well established and well regarded by his employer VSL (see paragraph 242(e)-(g)  above);
(c)	having settled himself at work, the deceased also established his family with the birth of a child in Canada and another one to be born at the time of his death;
(d)	the deceased was at a comparatively young age of 40 or 41 years, and having settled himself both in work and family (see (b)-(c)  above), he would be able to turn his energy to his wish to becoming chartered.

244.  The significant takeaway from Wan Dan Nei & anor is that even though the balance of probability test is not applicable, evaluation of the chance still requires evidence to support a real and substantial chance, and it behoves the plaintiff who carries the burden of proof to adduce cogent evidence to such effect. This was also borne out by judicial observations in 2 other cases.

245.  In Wei Cuidan v Ming Fung Engineering Corp Ltd & ors,[73] Bharwaney J in dealing with disputed notional earnings of the deceased (had the accident not occurred)  had to grapple with the question whether the deceased would have passed the general welder’s certifying examinations which he was scheduled to take on 16 December 2011 (but he died on 4 November 2011), and if so, whether he would have gone on to become a general welder on construction sites instead of pursuing his pre-accident work as a metal worker (page 356). In that case, not only was the deceased already scheduled to take the relevant certifying examinations, the plaintiff called 2 witnesses (the deceased’s nephew who often worked with the deceased as a metal worker, and a sub-contractor who often engaged the deceased and his nephew to work on his projects)  to give evidence, which evidence the court accepted to find that the deceased would have passed the welding test that he was scheduled to take, and would have gone on to change his employment to become a general welder on construction sites (page 356).

246.  Chung Sui Cheong the administrator of the estate of Chung Wai Man Joseph deceased v Tsang Wai Hung[74] was a fatal accident case in which the plaintiff sought to highlight the probability that the deceased would have been further promoted to higher ranking positions with higher pay or be transferred to Shanghai but for the accident. But Wilson Chan J observed as follows:

“118. However, the court will require cogent evidence before accepting that there would be prospect of promotions. In fact, cogent evidence is required for any substantial increase in income.”

In that case, the deceased was employed as a “construction manager – field operations”, and would have started on his role as senior construction manager but for the accident (paragraphs 80 and 98), but the letter from his employer showed there was no definite career path for senior construction manager (paragraph 119)  and there was no guarantee that a senior construction manager would be transferred to Shanghai as it would be subject to available vacancy and selection result (paragraph 120 above). It was held that the evidence did not support any prospect of promotion. “There is no evidence for the court to even consider when the promotion would likely occur, or how much the higher position would pay” (paragraph 121).

247.  Given the fact-sensitive nature of the court’s approach to the issue of promotion prospects, I am not persuaded citing of legal authorities would take the matter much further. After all, each case must be decided on its own facts and evidence.

248.  Mr Chong then raised a number of miscellaneous contentions, which could be dealt with quite shortly. First, Mr Chong noted Tang gave evidence that he worked in a team of 3 scaffolders, ie 2 Master Grade scaffolders (including himself)  and 1 Intermediate Grade scaffolder (sometimes the Deceased), and submitted that since Master Grade scaffolders comprised 66% (or ⅔)  of the overall scaffolder population, it was only a matter of time (even if it were not a year’s time)  for the Deceased to achieve Master Grade level. Such argument was not easy to follow:

(a)	There was no evidence before the court that throughout the scaffolding industry, scaffolders necessarily worked in scaffolding teams and in teams of 3 comprising 2 Master Grade scaffolders and 1 Intermediate Grade scaffolder. In the absence of such evidence, D2’s own practice did not support Mr Chong’s ambitious extrapolation that Master Grade scaffolders comprised 66% (or ⅔)  of the entire industry-wide scaffolder population, especially when skills, talent, experience and self-initiative necessary for becoming a Master Grade scaffolder all required time, effort and aptitude by the individual scaffolder.
(b)	Quite simply, P did not adduce evidence as to the passing rate for taking and/or re-taking the examinations/tests for Master Grade Trade Test Certificates (metal / bamboo scaffolding). The factors Tang alluded to in the Tang WStmt (see paragraph 233 above)  were fact-specific work performance considerations for each individual scaffolder who wished to become a Master Grade scaffolder, which had to be addressed by factual evidence (but the Deceased’s work performance was not well-regarded by Tang).
(c)	Even if Mr Chong were allowed his suggested extrapolation, his submissions did not identify the pre-disposing factors that would encourage belief that the Deceased would eventually fall within ⅔ of the scaffolder population to become a Master Grade scaffolder rather than remain within the other ⅓ of the scaffolder population who would simply be Intermediate Grade scaffolders.
(d)	In my view, this was a poor argument that tried to skirt Tang’s evidence (which I accept)  that work performance required for becoming a Master Grade scaffolder were skills and self-initiative of the individual scaffolder (but the Deceased could not perform assigned tasks as expected of him and his work attitude and skills were just fair – see paragraph 233 above), and I reject the same.

249.  Secondly, Mr Chong urged this court to note the Deceased’s drive/desire to be a better and more responsible person, and suggested he became more mature and responsible by (a)  making regular donations to United Nations High Commission (UNHC)  for Refugees in the sum of $150/month (since September 2012 if not earlier)  and to Aids Concern Foundation in the sum of $150/month (between September 2012 and January 2013), and (b)  buying insurance protection for the Mother (ie the HSI Policy evident from the bank statements of the Deceased’s Account). It was said (b)  above was significant in that it showed financial planning and care for the Mother, “and but for the Accident, he would have improved as a person, as a scaffolder, and his finances”.

250.  The Deceased must be commended for his donations to various support organisations, and as explained in paragraphs 126 and 218 above, his purchase of insurance protection (probably the CLI Policy and also the HSI Policy)  was reflective of his recognition that bamboo scaffolding work was inherently dangerous. The Mother was not named as beneficiary of such policy(ies)  even though she was a major beneficiary of his intestate estate. But notwithstanding such donations and insurance life policy, there were other factors that weighed against the suggestion of prudent/effective financial planning on the part of the Deceased, eg that he all along lived on income and debt beyond his means (having borrowed 10 loans from time to time, having had to make 2-5 loan repayments each month with increase in the total monthly loan repayments from $1,918.70 in 2013 to $3,081.90 in 2014)  with practically no savings (the account balance in the Deceased’s Account as at date of his death was $1,491.96)  (see paragraphs 56-57 and Part IV(k)  above). More importantly, I am unable to see how charitable inclination and caution over risky job would overcome Tang’s less than positive observations of the Deceased’s work performance as an Intermediate Grade scaffolder that did not auger well for his advancement to the Master Grade level. It was quite different from the situation of the deceased in Wan Dan Nei & anor who was mature and well settled in his family and his work, but more importantly, whose extensive experience and positive work reports (that were well documented and supported by witness evidence)  demonstrated he had real and substantial chance of being chartered.

251.  In the circumstances, upon evaluation of the chance for the Deceased to obtain Master Grade Trade Test Certificates (bamboo / metal scaffolding)  and to become a Master Grade scaffolder, I come to conclusion that the evidence before the court did not sufficiently support prospect of advancement to Master Grade level, let alone when such advancement would likely occur. I do not accept that but for the Accident the Deceased would have become a Master Grade metal/bamboo scaffolder whether in about a year’s time or otherwise. That being the case, it is unnecessary for me to consider how much the position of Master Grade scaffolder would pay, and I proceed to consider the Deceased’s notional earnings on the basis of an Intermediate Grade bamboo scaffolder.

252.  In light of the above conclusion, it is unnecessary for me to consider Mr Sakhrani’s invitation to this court to draw adverse inference against P (ie inference that the evidence of material witnesses whom P failed to call would not have supported her case)  for failing to call the “sifu” from VTC to address the Deceased’s prospects of passing the examinations/tests for Master Grade Trade Test Certificates (metal / bamboo scaffolding), or to call a representative of the construction workers’ union to explain the general process, requirements and prospects of achieving Master Grade level, or at least explain why such witness(es)  was/were not called.

(b)  Deceased’s notional earnings – daily wage and workdays/month

253.  Deceased’s past earnings  It was common ground that when the Deceased passed away (and indeed for the year before he died)  he was an Intermediate Grade scaffolder earning on average $12,518.33/ month (inclusive of food subsidy)  (see paragraph 42 above), and that his daily wage rate was $530. There was slight disagreement over whether his daily food subsidy was $50 (according to P)  or capped at $50 (according to D2-D5). But for the present purpose of assessing the Deceased’s notional earnings below, I am prepared to accept P’s stance, and shall adopt $530 + $50 = $580 as the Deceased’s baseline average daily rate (inclusive of food subsidy)  in September 2014.

254.  Notional average daily wage  Mr Chong submitted the court had to take into account the Deceased’s projected earnings and adjust the loss of dependency accordingly. He referred to Tsang Mei Ying & anor (administratrices of the etate of To Shing Chiu, the deceased)  v Lam Pak Chui & anor[75] in which the deceased worked as a painter. Seagroatt J said “[year] on year since [the date of death of the deceased] his wage would have increased” (page 812). The plaintiff in that case claimed the annual wage increase would have been 8%, but the defendant contended it should be an average of 6%. Seagroatt J held that taking into account the local economic factors over the last year or so 6%pa was more probable (page 812).

255.  P adduced evidence of the average daily wage of “bamboo scaffolder” engaged in public sector construction projects reported by main contractors from January 2014 to October 2020, which information was made available on the webpage of the Hong Kong Development Bureau (“Statistics Rate”). I make 2 points in respect of such average daily wage data.

256.  First, Mr Chong in his written closing submissions described such average daily wage as the “market rate”. But was it? The webpage information on the Statistics Rate covered a wide range of occupations in public sector construction projects and not just “bamboo scaffolder”, and it also gave the following “Notes”:

“(1)  Figures in the above table are compiled based on the information obtained from the self-administered monthly returns on “Site Labour Deployment and Wage Rates for Construction Work” completed by main contractors in the public sector construction projects (ie construction projects under the purview of Architectural Services Department, Civil Engineering and Development Department, Drainage Services Department, Electrical and Mechanical Services Department, Environmental Protection Department, Highways Department, Housing Department and Water Supplies Department). Hence, they are not meant to represent the overall situation of the construction industry and are used for deriving the changes in labour costs in public sector construction projects only.

(2)  In view of some common practices adopted by the construction industry, the wage cost data may have included such elements as services charges, administrative overheads, etc. Hence, the wage rate may not reflect the wage received by the workers in the construction industry.

……” (my emphasis)

In light of such annotations, I am not persuaded that the Statistics Rate would necessarily be a better reflection of notional earnings than the earnings of various comparable scaffolders provided by D2-D5 (“Comparable Rate”)  when the Comparable Rate was drawn from actual earnings of scaffolders who were in the same occupation post as the Deceased and in the same work environment/industry as the Deceased. Further, there was no evidence that the projects the Deceased worked on at Tai Luen and/or D2 were public sector construction projects as Mr Chong did not see fit to cross-examine Tang on such subject. Mr Chong also argued that the Comparable Rate was inherently unreliable since the comparables were meaningless (see paragraph 263 below), but I will deal this point in paragraph 264-267 below.

257.  Secondly, as the Mother recognised in the Mother WStmt, the Statistics Rate showed the average daily wage of “Master Grade bamboo scaffolder” in public sector construction projects, so the Statistics Rate would only be relevant if the Deceased’s notional earnings (but for the Accident)  were to be determined on the basis that he would have obtained the Master Grade Trade Test Certificates and would have become a Master Grade scaffolder. This must be correct because the Statistics Rate of $1,514.10 for September 2014 (the month when the Deceased passed away)  was significantly higher than the Deceased’s average daily rate of $580 and/or the then Comparable Rate for Intermediate Grade scaffolders, ie the daily rates of $750 and $850 respectively for comparables A and B for September 2014. Since I did not accept that but for the Accident the Deceased would have become a Master Grade metal/bamboo scaffolder whether in about a year’s time or otherwise, the Statistics Rate was, quite simply, irrelevant.

258.  In the circumstances, it was unnecessary to consider the authorities cited by Mr Chong that, he claimed, showed the courts’ acceptance of the Statistics Rate for computing notional earnings for loss of dependancy.[76] It is true that the courts in the authorities cited in footnote 76 above made reference to the “Government wage statistics for bamboo workers and scaffolders”, the “wages of general welders as shown by the Census and Statistics documents”, and the “income statistics from the Census and Statistics Department” showing “the average daily wage of a bamboo scaffolder”, and then adjusted such average daily wage by rounding up the figure, adding some overtime pay and/or reducing the amount according to the particular facts and circumstances of each case. But in 2 of the 3 authorities cited the defendant did not appear at the hearing of the assessment of damages, and in none of the 3 authorities was any evidence on notional earnings available except for the government statistical data.

259.  The approach of the courts in such forward-looking situation was usefully explained in McGregor on Damages as follows:[77]

“…… Where it is clear that some substantial loss has been incurred, the fact that an assessment is difficult because of the state of the nature of the damage is no reason for awarding no damages or merely nominal damages. As Vaughan Williams LJ put it in Chaplin v Hicks, the leading case on the issue of certainty, “The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.” Indeed if absolute certainty were required as to the precise amount of loss that the claimant had suffered, no damages would be recovered at all in the great number of cases. This is particularly true since so much of damages claimed are in respect of prospective, and therefore necessarily contingent loss. Of course, as Devlin J said in Biggin v Permanite:

“Where precise evidence is obtainable, the court naturally expects to have it, [but] where it is not, the court must do the best it can.”

Generally, therefore, although it remains true to say that “difficulty of proof does not dispense with the necessity of proof”, the standard demanded can seldom be that of certainty. Even when it is said that the damage must be proved with reasonable certainty, the word “reasonable” is really the controlling one, and the standard of proof demands evidence from which the existence of damage can be reasonably inferred and which provides adequate data for calculating its amount. The clearest statement of the position is that of Bowen LJ in Ratcliffe v Evans, where he said:

“In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.””

260.  In light of the above guidance, the tribunal cannot adopt a blinkered view of the evidence by accepting the equivalent of the Statistics Rate and ignoring the equivalent of the Comparable Rate (if evidence on both were adduced), and instead should assess and weigh such evidence against the totality of the background of the relevant trade/ industry and the facts of the deceased’s employment to assess the notional average daily wage that the deceased would have earned but for the fatal accident.

261.  Indeed, the courts had relied on rates of comparable workers as relevant evidence to guide their assessment on notional earnings. In the case of Sin Kin, the administratrix of the estate of Wong Kam Wor, deceased v Dragages et Travaux Publics and Penta-Ocean Construction Co Ltd trading as Dravages-Penta Joint Venture (a firm),[78] which was cited by Mr Chong, Master Cannon in assessing the notional income of the deceased rigger in that case referred to (a)  evidence of the defendant’s witness on increase in income for 1997 (7-9%), 1998 (6-7.5%)  and thereafter (0% - also evidenced by 0% increase for 2 riggers employed by the defendant)  that gave a median increase of 14.75%, (b)  letter from the Census and Statistics Department that confirmed there were no statistics for a rigger, but there was data for a heavy load coolie in June 1996 ($641.30)  and November 1999 ($740.90)  that gave a median increase of 19%, (c)  government bulletins covering employment and vacancy statistics, wage statistics, the consumer price indices and the latest labour market situation paper produced by the Task Force on Employment dated March 2000, and (d)  the 1999 Wages Report prepared by Wilson Wyatt (but there was only limited number of participants and no explanation of the method of analysis). Master Cannon did not place great weight of (c)-(d)  above, and found as follows:

“On this issue, I find that the notional income at the date of assessment should be arrived at on the basis of the salary increases awarded by the defendant to its riggers, and I find this to be 14.75%. I am satisfied that I should give weight to the evidence of the defendant on increases granted to riggers rather than the more general government statistics relating to heavy load coolies.

On that finding, the notional income at the date of assessment is $30,523.50, which I round up to $30,524, which after tax would be $29,865.

These figures produce a median of $28,562 and $27,444.” (my emphasis)

262.  Likewise, for the present purpose, in the absence of any Statistics Rate for Intermediate Grade bamboo scaffolder and bearing in mind the above guidance, I turn to the available evidence, ie the Comparable Rate. I also note Mr Chong did not cross-examine Chak (who was responsible for staff recruitment and salary payment at D2)  (and Tang as well)  about the earnings of the comparables.

263.  For the present purpose, I shall focus on the Comparable Rate of comparables A, B, E and F who were identified as Intermediate Grade scaffolders. Mr Chong submitted the Comparable Rate was meaningless, did not make sense, and was unreliable as a predictive tool, and there was serious doubt as to its probative value as it was “provided in a vacuum and one simply cannot judge whether those daily wages can be taken to be reliable indicators of [the Deceased’s] salary”.

264.  Although Mr Chong complained against D2-D5 for not producing earnings of such comparables in the pre-Accident period to allow for meaningful comparison or provision, I note the Comparable Rate of comparables A and B for September 2014 (ie the month the Deceased passed away)  was $750 and $850 respectively, which was higher than the Deceased’s daily rate of $580 (inclusive of daily food subsidy). I also note the Comparable Rate of comparables E and F for January 2020 was $1,400 and $900 respectively, and for September 2020 was $1,400 and $1,000 respectively. In my view, this clearly showed that for Intermediate Grade bamboo scaffolders, there was a range of average daily wage that an individual scaffolder could command, which logically would turn on personal work performance and general market forces. It would not be appropriate, as Mr Chong submitted, to simply adopt the average daily wage of comparables A and B as the baseline for the Deceased’s notional average daily wage in 2014-2016.

265.  It also appeared from the Comparable Rate of comparables A and B that there was increment for their average daily rate in April or March each year. The increment for comparable A in 2014-2015 was ($800 - $750)  ÷ $750 = 6.7%, and those for comparable B in 2014-2015, 2015-2016 were ($950 - $850)  ÷ $850 = 11.8% and ($980 - $950)  ÷ $950 = 3.2% giving an annual average of (11.8% + 3.2%)  ÷ 2 = 7.5%. The increment for comparable F within 2020 was ($1,000 - $900)  ÷ $900 = 11.1%. I adopt an average increment rate of (6.7% + 7.5% + 11.1%)  ÷ 3 = 8.4% per year.

266.  As Mr Chong rightly pointed out, there was no available Comparable Rate for the period between 2016 and 2019. By adopting similar increment rate for the years 2016-2017, 2017-2018, 2018-2019 and 2019-2020, the notional average daily wage for comparables A and B would have been as follows:

Year	Comparable A	Comparable B
2016-2017	$800[79] x 108.4% x 108.4% = $940	$980[80] x 108.4% = $1,062
2017-2018	$940 x 108.4% = $1,019	$1,062 x 108.4% = $1,151
2018-2019	$1,019 x 108.4% = $1,105	$1,151 x 108.4% = $1,248
2019-2020	$1,105 x 108.4% = $1,198	$1,248 x 108.4% = $1,353

267.  This showed the likely notional average daily wage of comparables A and B in 2020 to be within the range bracketed by that of comparable E ($1,400)  and that of comparable G ($1,000). Since the Deceased’s average daily rate of $580 in September 2014 was less than the baseline rate of comparables A and B, I find it improbable that he would have notionally earned $1,400/day in 2020 but for the Accident. Using the average increment rate of 8.4%pa (see paragraph 265 above), the Deceased’s average daily rate in 2020 would have been $580 x 108.4% x 108.4% x 108.4% x 108.4% x 108.4% = $868, which was lower than the adjusted Comparable Rates of comparables A and B for 2020, let alone the Comparable Rates of $1,400 and $1,000 for comparable E and F for 2020. By working out the Deceased’s notional daily rate for 2021 using the average increment of 8.4%, he would have notionally earned $868/day x 108.4% = $941/day. As explained in paragraph 264 above, what was clear from the Comparable Rates for comparables A, B, E and F was that each individual scaffolder would command a daily rate unique to himself depending on his skills, experience, trade connections and market forces, and it was not simply a matter of, as Mr Chong submitted, the Deceased seeking employment elsewhere if D2 or any other main employer did not offer the Deceased wages, food subsidy or other employment benefits at the level it would offer other Intermediate Grade bamboo scaffolders. In my view, these factors would come into play when the Deceased (but for the Accident)  would have to find work in the market after 2016 when D2 ceased operations. Taking all of the above into consideration (and being slightly more generous as there was no absolute certainty in the exercise), I find that the Deceased’s notional daily wage at the time of the Assessment Hearing would have been $1,000/day.

268.  Notional workdays/month There was no dispute that at the time when the Deceased passed away, he worked on average 21.6 days per month. For the purpose of the Assessment Hearing, P was prepared to adopt 21.6 workdays/month as the Deceased notional monthly workdays had the Accident not occurred. But Mr Sakhrani insisted that at most the Deceased would have notionally worked for 20 days per month. The difference to the Deceased’s notional monthly earnings as at 2020 would have been $1,200 x 1.6 days = $1,920 per month.

269.  Notwithstanding the parties’ agreement on the Deceased’s past average workdays/month (ie 21.6 days), the Chak WStmt claimed that “依 [Chak] 所記, 有時 [Deceased] 會在沒有事先通知公司的情況下缺勤, 不回來開工”.[81] Under cross-examination, Chak at first said there was record of the days when the Deceased did not come to work without first informing D2, but it transpired upon further probing by Mr Chong that Chak was referring to a duty roster (出勤紀錄)  concerning work assigned to the Deceased, and in fact there was no particular record as to when he did not come to work suddenly without first informing D2. Chak testified under cross-examination that as far as she could remember (“[because] we would take the attendance at work”), the Deceased absented himself without prior notice to D2 about 2-3 days per month, and she explained in re-examination that on such occasions D2 usually let the team head notify the Deceased that he was supposed to come to work.

270.  Mr Chong did not cross-examine Tang about Chak’s above evidence even though Tang was the Deceased’s team head for about 12 days/month prior to his death and therefore should have known whether the Deceased was punctual on the days he was expected to come to work for his scaffolding team. But Tang did not work with the Deceased on every project, and there were workdays when the Deceased worked for other scaffolding teams, so Tang would not have known how many days the Deceased actually worked in a month. But when he was told by Mr Chong that the Deceased on average worked 21.6 days per month in the year prior to his death, he accepted the Deceased was hardworking in the sense of his work attendance.

271.  Mr Chong was critical of Chak’s evidence in paragraph 269 above:

(a)	D2-D5 did not produce the Deceased’s duty roster and attendance record for comparison to show whether and when in a given month he allegedly absented himself from work. D2-D5 also did not produce the attendance records of the comparables over the same period (ie from September 2013 to August 2014)  to show the Deceased consistently worked less days than his Intermediate Grade scaffolder colleagues.
(b)	Mr Chong suggested the Deceased would not have consistently absented himself from work without prior notice to D2 for 2-3 days a month when he actually worked 24 days, 26 days, 23 days, 25 days and 24 days respectively in October, November and December 2013 and March and May 2014, especially when one bears in mind he was not required to work on Sundays and public holidays.
(c)	It seemed D2 laid much store on its workers’ punctuality in attending work (see clauses 2 and 6 of the Deceased’s employment contract),[82] so Mr Chong submitted it begged the question why D2 was willing to continue to employ the Deceased if he regularly absented himself from work without prior notice.

272.  I see the force of Mr Chong’s above contentions. But I find Chak’s evidence not very material to the question of the Deceased’s average workdays per month given the parties were in agreement that in the year prior to his death the Deceased on average worked 21.6 days/ month, which average figure had already taken into account the days the Deceased was absent from work, whether with or without prior notice to D2. Further, even in the eyes of Tang as a Master Grade scaffolder and a team leader, working 21.6 days/month was hardworking in the sense of work attendance. Indeed, except for September 2013 (which was the first month the Deceased joined D2)  and February 2014 (which coincided with the Chinese New Year long holidays), the Deceased worked almost 23 days/month (which, as explained above, would already have taken into account occasional absences without prior notice as Chak alleged). On the basis of such work history, I turn to P’s and D2-D5’s respective contentions in relation to the Deceased’s notional workdays/month in the post-death period.

273.  I start with the legal authorities Mr Chong cited to say that the number of notional workdays/month by bamboo scaffolders[83] and general welder on construction sites[84] was broadly similar to P’s contention that notionally the Deceased would have continued to work 21.6 days/month had the Accident not occurred. I am unable to see how average workdays of bamboo scaffolders based on personal circumstances and market forces in 1999 and 2009 would have been relevant to the notional situation of the Deceased looking forward into the market beyond September 2014 and beyond the present. Further, I cannot see how average workdays/month of a skilled worker in a different trade (eg general welder)  would have been relevant to the average monthly workdays of Intermediate Grade bamboo scaffolders.

274.  Turning to Mr Chong’s core arguments, he submitted that the number of days the Deceased would have notionally worked per month was best predicated by his own previous work pattern, so he would have continued to notionally work on average 21.6 days per month. He complained that D2-D5 did not sufficiently explain why the workdays/ month of comparables A, B, E and F were better indicators than the Deceased’s own employment history for the year before he passed away that showed he worked on average 21.6 days/month, especially when D2-D5 did not adduce (a)  the Deceased's duty roster and/or attendance record to support Chak’s assertion that he missed work about 2-3 days/month without notice, and/or (b)  similar records of the comparables (who might have worked more or worked less according to their own work habit and personal circumstances)  for comparison. Although there was no overlapping month in respect of data on the Deceased’s earnings and the comparables’ earnings, the Deceased’s average 21.6 workdays/month up to August 2014 was within the range bracketed by the average number of workdays/month for the period from September to December 2014 for comparable A at (17 days + 11 days + 13 days + 12 days)  ÷ 4 = 13.25 days and that for comparable B at (24 days + 22 days + 23 days + 23 days)  ÷ 4 = 23 days, and was therefore not unreasonable.

275.  On the other hand, Mr Sakhrani reminded that Mr Chong did not cross-examine Chak/Tang on (a)  the disclosed records of the comparables, (b)  the average number of workdays available to an Intermediate Grade bamboo scaffolder (at least in the companies that employed such comparables)  from 2014 to 2021, (c)  the impact of Covid-19 on the earnings and available workdays each month in 2020 and presently, and (d)  the attrition rate amongst scaffolders. He further submitted that the following average workdays/month of comparables A, B, E and F (ie forward-looking beyond September 2014), which were less than those that of the Deceased prior to the Accident (ie backward- looking to before September 2014), were better indicators of the Deceased’s workdays/month had he lived:

Comparable	Workdays/month	Period
A	13.3 days	September 2014 to June 2015
B	15.5 days	September 2014 to August 2016
E	15.6 days	January 2020 to December 2020
F	14.6 days	January 2020 to December 2020

Mr Sakhrani argued that in light of the workdays/month of comparables A, B, E and F in the post-Accident years, even if the Deceased (had he lived)  attempted to find work on days when D2 (or any other main employer)  could not provide him work, there was no reason to suppose he would have more than 20 workdays per month.

276.  On balance, I do not accept there was sufficient evidence to support Mr Sakhrani’s suggestion that the workdays/month of bamboo scaffolders in 2020 were affected by Covid-19:

(a)	D2-D5 did not elicit/adduce evidence (whether from Chak, Tang or otherwise)  to support such contention. In the absence of city-wide or industry-wide lockdowns, it behoved D2-D5 to adduce evidence to demonstrate whether, and if so how, the livelihood of bamboo scaffolders was affected by Covid-19, but D2-D5 did not adduce such evidence.
(b)	As Mr Chong submitted, there was no evidence that Covid-19 would be a permanent adverse feature in respect of the entirety of the Deceased’s notional career up to retirement.
(c)	Since Mr Sakhrani was prepared to adopt 20 workdays for the Deceased’s notional workdays/month (as compared to 21.6 workdays/month adopted by Mr Chong), any impact by Covid-19 on assessment of the difference would have been minimal.

277.  Upon careful consideration of P’s and D2-D5’s respective stance, I find Mr Chong’s contentions in paragraph 274 above more convincing. With only 1 overlapping month in the earnings data between the Deceased and comparables A and B, there was insufficient overlapping period to properly consider the baseline difference in workdays/month between the Deceased and comparables A, B, E and F, and it was unclear whether their difference in workdays/month in the Deceased’s pre-death year and the comparables’ post-death years were due to personal circumstances (eg personal choice in days worked, serving 1 or more than 1 employers, marketability due to individual skill-set and experience, etc)  and/or market forces (eg availability of scaffolding work in the market). Mr Sakhrani alluded to the attrition rate amongst scaffolders, but there was simply no evidence on such attrition rate. But what was clear was that the Deceased was able to and did consistently work on average 21.6 workdays/month in the year before he died (inclusive of some overtime work). He was able to achieve that with 1 employer (ie D2), but should his notional main employer be unable to offer him such level of workdays, it was probable that he would seek other casual scaffolding work to maintain 21.6 workdays/month. In my view, he had to as (a)  he had to service the various loans he borrowed from time to time, especially when the bank statements of the Deceased’s Account showed his loans and his loan repayments were on an increasing trend, and (b)  he would have greater financial responsibilities in his 30s and 40s (had he lived)  as he might marry and start a family, or even if he did not, he might share/rent a more permanent and/or comfortable abode for himself (and his girlfriend). In all the circumstances, I find the Deceased’s notional workdays/month would remain at 21.6 workdays/ month.

(c)  Approach to assessing loss of dependency

278.  The statutory basis for a dependency claim is section 3 of the FAO:

“If death is caused to any person (the deceased)  by any wrongful act, neglect or default which is such as would (if death had not ensued)  have entitled the deceased to maintain an action and recover damages in respect thereof, then subject to section 4(2)  an action for damages may be brought for the benefit of the dependants of the deceased who would then have been liable in damages to the deceased in respect of that wrongful act, neglect or default.”

Section 6(1)  of the FAO goes on to provide that in every action brought under section 3, “such damages, other than damages for bereavement, may be awarded to the dependants in such proportions as reflect their respective injuries as a result of the death”.

279.  Loss of dependency seeks to assess the notional loss suffered by persons dependent on the deceased for financial support, and is normally assessed by the multiplier and multiplicand method. The monthly/annual value of the dependency (ie the multiplicand)  is aggregated over the number of years that the dependency may reasonably be expected to last but discounted in recognition of the fact that an upfront lump sum is given instead of by way of periodical payments over the years (ie the multiplier).

280.  The assessment of the multiplicand is done either by the traditional method or the percentage deduction method. The traditional method requires the plaintiff to prove the value of the benefit received by the dependants from the deceased. Seagroatt J in Tsang Mei Ying & anor (administratrices of the estate of To Shing Chiu, deceased) explained the traditional method as follows (pages 810-811):

“The starting point is to calculate the value of the dependency as at the date of death, usually as a percentage of the income of the deceased. It is then revised in the light of the income which he would have received at the date of trial had he survived. The best means of calculating the dependency is to set out item by item where possible, the value annually (or monthly)  of the payments made for the benefit of the family as a whole subject to any deduction to represent the benefit to the deceased. It is a check on the reasonableness of such figures to compare the total with the net annual or monthly income of the deceased at the date of his death. The calculations are easier to make where the evidence clearly shows the deceased making a regular payment to his wife for running the family and the home, and also paying for certain fixed items e.g. rent. The reasonableness and the accuracy of such calculations often depend upon hard evidence, in the form of records, and oral evidence, eg from the widow. Sometimes the picture can be more complex such as where the wife earns and contributes to the household, unless there is clear evidence which allows that to be treated in isolation so as to determine real dependency. Many items of dependency are common to the family whether there are children or not, and, if there are, when they leave home and the picture of dependency in other respects, changes. The common items remain part of the dependency picture. Examples of these are, rent, utilities (though these may vary according to exceptional use)  and other fixed payments. Moreover as some dependents cease to be such, the dependency of those remaining in the household often increases ……” (my emphasis)

281.  This traditional method was further explained by Bharwaney J in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased as follows:

“41. The traditional way would be to assess the financial value of the dependency by taking the sum of the monthly contribution …… to the plaintiff, which was utilized for her benefit and for the benefit of his son and daughter, and to take out from that sum the amount …… which was expended on the deceased, being his share of household expenses …… If this approach is taken, the savings element of the loss of dependency claim would have to be assessed separately, by assessing the notional savings that the deceased would have made and calculating the portion thereof which would enure to the benefit of the dependants, just as the trial judge had done in Taylor v O’Connor when he estimated that two-thirds of the net spendable income, including both the maintenance element, and the savings element, would have enured to the benefit of the widow and the daughter.”

282.  But Mr Chong urged the court to adopt the percentage deduction method or what he described as the “Harris approach” for calculating the value of the dependency by deducting a percentage from the deceased’s annual/monthly income representing personal expenditure exclusive to himself or herself, leaving the rest as being for the benefit of the family. Such approach was explained and supported by O’Conner LJ in Harris. In that case, the appeal to the English Court of Appeal involved 2 cases, one in which the deceased left behind his widow and 2 minor children, and the other in which the deceased (who never married)  left behind 2 teenage children. O’Connor LJ said at page 565 as follows:

“In the course of time the courts have worked out a simple solution to the similar problem of calculating the net dependency under the Fatal Accidents Acts in cases where the dependents are wife and children. In times past the calculation called for a tedious enquiry into how much housekeeping money was paid to the widow, who paid how much for the children’s shoes etc. This has all been swept away and the modern practice is to deduct a percentage from the net income figure to represent what the deceased would have spent exclusively on himself. The percentages have become conventional in the sense that they are used unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided upon its own facts. Where the family unit was husband-and-wife the conventional figure is 33% and the rationale for this is that broadly speaking the net income was spent as to one-third for the benefit of each and one-third for their joint benefit. Clothing is an example of a several benefit, rent an example of joint benefit. No deduction is made in respect of the joint portion because one cannot buy or drive half a motor car. Part of the net income may be spent for the benefit of neither husband nor wife. If the facts be, for example, that out of a net income of £8,000 per annum the deceased was paying £2,000 to a charity the percentage would be applied to £6,000 and not £8,000. Where there are children the deduction falls to 25%, as was the agreed figure in the Harris case.” (my emphasis)

In short, the English Court of Appeal held that where the family was wholly dependent on the deceased, the conventional figure for deduction for personal expenses where the family/household unit consisted of a husband and wife would be 33.33% (on the assumption that the husband and the wife would each spend ⅓ of the income and the remaining ⅓ was for their joint benefit), but where there were children, the conventional deduction was 25% (on the assumption that ¼ of the income was for the deceased, ¼ was for the spouse, ¼ was for the children, and remaining ¼ was for joint use).

283.  Mr Chong drew attention to my judgment in Ting Kam Yuen, the lawful attorney for and on behalf of the Dependants of Tong Kwok Fong deceased and as the Personal Representative of the estate of Tong Kwok Fong, deceased v Cheung Wing Kin (the Representative of the estate of Cheung Tak Ming, deceased and to carry on proceedings pursuant to Order of Madam Registrar Queeny Au Yeung dated 15^th April 2008)  & anor.[85] In that case, the deceased was 39 years old at the time of death (paragraph 18). He was a Mainland Chinese fisherman employed to work as a seaman on board a fishing vessel (paragraph 1). The deceased’s family was in Mainland China and comprised his grandmother (no work and no income), his father (some handicrafts and no income), his widow (casual work in the village and small earnings put aside for “emergency” use), elder son (just shy of 18 years and a newcomer fisherman)  and younger son (15 years old and a student), and his married elder daughter (left the household)  (paragraphs 21-27). There was no direct evidence as to the deceased’s monthly contribution to the pre-accident household expenses of the deceased’s household in Mainland China, and no evidence of such expenses (paragraph 29).

284.  In the judgment, I referred to the Harris approach as follows:

“31. In Harris at pp.216-217, O’Connor LJ advocated the modern practice of deducting a percentage from the net income figure to represent what the deceased would have spent exclusively on himself, and held that where there were children the deduction should be 25% unless there was striking evidence to make the conventional figure inappropriate. In Ho Pang Lin and Wong Hop Hing, co-administrators of the estate of Wong Hup Yim, deceased, DHCJ Jones acknowledged the reasoning behind the Harris approach, ie that a family should be regarded as a dependent unit and its dependency should therefore be assessed as a whole, and adopted the conventional deduction of 25% where the deceased’s household in that case comprised his widow, 4 children and his mother.” (my emphasis)

285.  In that case, the widow and elder son were working and earning income at the time of the Accident. The former’s earnings went into savings for “emergency” use and for contribution to the cost of a new family home, and the latter was new to the fishing trade and had unstable income, so the deceased’s family was dependent on his contribution (paragraph 33). I also found on the facts that the deceased was thrifty and caring so as to support his large family, and he would have continued to contribute the bulk of his income for household expenses (paragraph 34). On such basis, I concluded that overall there was no striking evidence to render inappropriate adoption of the conventional 75% of the deceased’s monthly income as reasonable reflection of his average contribution to the expenses of his household in Mainland China (paragraph 34).

286.  In Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased, Bharwaney J said that in cases where the most important factor in the calculation of the award was the earnings of the deceased as opposed to income from other sources, a practice had developed of expressing the annual dependency as a percentage of the annual earnings of the deceased, ie the “Harris approach” as explained and supported by O’Connor J in Harris, and percentages had become conventional in cases where the surviving widow had been wholly dependent on her husband and had not used her own income, if any, to support the common household expenditure (paragraph 42). The learned judge went on to explain that the reason for the smaller deduction of 25% for the situation where there were children was that “earnings are presumed to be split four ways in the latter case, rather than three ways, namely, one-quarter for the deceased, one-quarter for the wife, one-quarter for the children, and one-quarter for joint use. Thus, the conventional figures adopted 66.6% of earnings, to assess the dependency of a widow alone, and 75% of earnings, to assess the dependency of a widow and children”.

287.  Bharwaney J gave further explanation in Wei Cuidan. In that case, the widow brought the claim under inter alia FAO on behalf of the dependants of her deceased husband (ie the widow and children). The parties agreed to adopt the “Harris approach” to assess loss of dependancy, ie at 75% of the deceased notional earnings up to the time of the children ceasing to be dependants, and thereafter at 66.6% of the deceased’s notional earnings (page 350). Nevertheless, the learned judge took the opportunity to explain the circumstances that would properly trigger the applicability of the “Harris approach”:

“5. The Harris v Empress Motors approach is commonly applied when the deceased was the sole bread winner of the family and the widow (or widower)  did not earn any wages or salary and did not have any other source of income to contribute to the family. However, the situation is different in cases where the widow was also in employment prior to the death of her husband and, this is critical, she also contributed to the joint family pool. As succinctly summarized by the learned editors of Kemp & Kemp, The Quantum of Damages, Vol 1, Release 144: July 2017 at §29-041:

‘The simple method set out above needs to be adjusted where the claimant, the widow or widower, worked both before and after the deceased’s death. In this case, there would have been joint pooled income and after the death there will be a sole income.

In such cases, the courts adopt the following approach which arose from the decision of the Court of Appeal in Coward v Comex [1988], (unreported), EWCA Civ 18.’ [My emphasis]

The court must determine, as a question of fact, whether or not there was a joint pooled income. There is no presumption that “there would have been a joint pooled income”.

6. In Butterworths Personal Injury Litigation Service Vol 1, Div II, Issue 149, the learned editors summarised the principle as follows:

Ԥ167 Where the surviving spouse also worked, and the family earnings were pooled, it is now conventional to use the joint family income as the starting point for this calculation, as described by Ralph Gibson LJ in Coward v Comex Houlder Diving Ltd:

“Where both are earning and pooling their net earnings, application of the same principle requires that one-third of the joint earnings be treated as spent for the benefit of each, and one-third for their joint benefit; and the justification for that is that a couple living together as a stable family are likely to divide their common resources fairly and equally.”

This presumption can be displaced by the evidence in any particular case, particularly with incomes outside the average range or families with particular characteristics …’ [My emphasis]

7. Similarly, the editors of McGregor on Damages (19^th Ed)  have stated[86]:

‘§39-045 What does remain clear is that, where the wife has been working before as well as after the death so that her earnings were already contributing to the family pool, the earnings after the death do fall to be taken into account. …

§39-046 The manner in which the wife’s working before and after the death affects the calculation of dependency was usefully dealt with in … Coward v Comex Houlder Diving. It had there been submitted by counsel for the wife that, in the absence of evidence of a different dependency, both husband and wife should be able to claim to be dependent to the extent of two-thirds of the other’s net earnings. Ralph Gibson L.J. was quite unable to accept such a contention; it was unrealistic not to bring into the equation the whole of the wife’s continuing net earnings against the two-thirds of the joint net earnings. “Expressed in terms of a formula”, he said, “the claimant’s dependency … is two-thirds of [the deceased’s] net earnings less one-third of her own net earnings; or it is two-thirds of the joint earnings less her own earnings.” Mathematically, the conventional 66.6 per cent of the husband’s net earnings is on this basis modified to produce for the widow just 50 per cent of those earnings should her own earnings in the joint pool equal half of her deceased husband’s; the percentage would drop to 33.3 should she be earning as much as her husband. …

§39-048 Two other conclusions may be drawn from this development in the law. The first is that the same result should follow where the contribution from the wife to the joint pool comes not from her earnings but from her private means. To the extent that she is relying on her own income for her support she is not relying on that of her husband and this will be true whether the income of her own is earned or unearned.  The second conclusion is that the conventional 75 per cent, used where there are dependent children in addition to the wife and mother, will also be modified so as to produce a lower percentage figure of dependency. The children will be dependent on both their parents in respect of the joint pool income while the wife’s dependency will be unaltered.’  [My emphasis]

8. Assuming that the Harris v Empress Motors approach was appropriate, it was not disputed that, in a case of a husband and wife without children, where both husband and wife were earning and pooling their net earnings, the dependency was to be assessed by taking two-thirds of their joint pooled income and deducting, from that figure, the amount of the survivor’s income. There was some controversy as to whether in a case of a husband and wife with children, where both husband and wife were earning and pooling their net earnings, the dependency was to be assessed by taking 75% of their joint pooled income and deducting from that figure the amount of the survivor’s income. Having considered the judgment of Glidewell LJ in Crabtree v Wilson and having carefully gone over the calculations in his judgment[87], I am satisfied that this is the correct formula to apply. Indeed, the editors of Kemp & Kemp, The Quantum of Damages, Vol 1, Release 144: July 2017 expressly state as much at §29-041:

‘So the loss is 2/3 of the pooled income less the survivor’s own income if there are no dependent children and 75% of the pooled income less the survivor’s income if there are dependent children.’

At first blush, this formula appears to reduce the children’s dependency. However, as the editors of McGregor on Damages (19^th ed.)  have explained in the passage cited above:

‘The second conclusion is that the conventional 75 per cent, used where there are dependent children in addition to the wife and mother, will also be modified so as to produce a lower percentage figure of dependency. The children will be dependent on both their parents in respect of the joint pool income while the wife’s dependency will be unaltered. [My emphasis]’

There is no reduction of the children’s dependency on the deceased parent. The formula assesses the children’s dependency on the deceased parent and removes from the calculation the children’s dependency on the surviving parent.” (my emphasis)

288.  Whilst the percentage deduction method / “Harris approach” had the advantage of avoiding tedious enquiry into the items of expenditure spent on the dependants, and might form a good guide when a stable pattern had been established in a marriage and virtually all net income was spent on living expenses, such method or approach might be inappropriate in other circumstances. For example, in Hanson Ingrid Christina & ors v Tan Puey Tze & anor Appeal,[88] Judith Prakash J of the High Court of Singapore said in paragraph 28 of her judgment as follows:

“26. …… While it is a good guide when a stable pattern has been established in a marriage and virtually all net earnings are spent on living expenses, it would not be appropriate where, for example, the dependant is a young childless widow, or the husband is a high earner who may well spend a higher proportion on himself: Owen v Martin [1992] PIQR Q151. On the facts of this case, the percentage deduction method would be inappropriate in view of [the deceased’s] fluctuating earnings coupled with the fact that he was purposely underutilising his established income-earning skills. This leaves the court to assess dependency on the traditional method.”

289.  In Kan Wai Ling & anor v Kan Chi Fai,[89] the deceased, the sole proprietor of a transportation business with substantial turnover, understated such turnover in the IRD documents. It was agreed that the deceased’s ex-wife, their adult daughter (who was working), their adult son (who was a student), and the deceased’s mother were dependants on the deceased, but the extent of their dependency and the dependency of the deceased’s mother were disputed. In that case, the ex-wife divorced the deceased, and they each married people who sponsored their residency in the United States. They then divorced quickly, which gave the impression that such marriages were marriages of convenience. The ex-wife secured permanent residency in the United States and moved there with the 2 children. But the ex-wife claimed that before and after the divorce, she and the deceased lived like a married couple. Later, the ex-wife and the son returned to live in Hong Kong, and still later the deceased moved in to live in a different portion of the flat. Then the ex-wife spent more time in the United States, and a property was bought in the United States. It was claimed that the deceased would have (a)  paid for household expenses in both Hong Kong and the United States and for family trips until he retired, (b)  financially supported the son until he completed his education, and (c)  paid pocket money to his mother until she passed away or he retired.

290.  In that case, Bharwaney J at pages 335-337 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. The learned judge declined to adopt the percentages in the “Harris approach” to assess loss of dependency given the fact there were 2 households, one in Hong Kong and one in the United State:

“20. This is not a case where there was joint expenditure on rent and meals at home. Yes, the deceased would pay when they went out for ‘yum cha’ or for a meal together but, apart from isolated and occasional joint expenditure of that nature, there was an insufficient joint element in the patterns of expenditure of the deceased, on the one part, and [the ex-wife] and the children in the United States, on the other part, to enable the application of the formula set out in Harris v Empress Motors.” (my emphasis)

Thus, the learned judge had to look for evidence of actual contributions made to the family.

291.  In coming to the above view, Bharwaney J referred to his earlier judgment in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased. In that case, the deceased was a sole proprietor of a fruit and vegetable wholesale business (paragraph 1). He passed away in 2004 (paragraph 1). He left as his dependants his widow (housewife)  and 2 adult children (paragraph 2). It was common ground that the widow was dependent on the deceased (paragraph 29), and the learned judge found (a)  the daughter was partially dependent on the deceased prior to his death and would have remained partially dependent on him until she married in 2007, (b)  her financial needs were partially satisfied from the monthly payment that the deceased made to his wife, and (c)  she was also partially dependent on her mother (ie the deceased’s wife)  at the time of the death of the deceased (paragraph 29). The learned judge also found that the son (who was engaged in full-time investment activities)  was dependent on the deceased to the sum of $6,000/month out of the household expenses (paragraph 30). Bharwaney J at paragraphs 43-44 held that it was “appropriate to adopt [the Harris] percentages in the present case to reflect, not only the financial contribution made by the deceased to his wife, but also the value of the dependency represented by the savings he would have accumulated for the benefit of his dependants”, and after considering calculations employing the traditional method of assessing separate elements of the loss of dependency claim, he did not see anything striking in such calculations to make him conclude that the conventional figures were inappropriate in the case before him.

292.  Mr Sakhrani drew my attention to the following 3 cases, and suggested they showed it would be appropriate to quantify the dependency on the Deceased by his actual contributions to the Mother and the Sister and the probable contributions thereafter in the post-Accident period having regard to the likely evolving circumstances but for the Accident (ie the traditional method):

(a)	In Lo Kam Mui, the Administratrix of the estate of Mo Wai Fung, the deceased v O Pui Yiu,[90] the deceased, who was 18 years old, came from a low income family, and the family relied on social welfare assistance after the father fell ill (and died a few months after the deceased passed away). The deceased lived with his father, his mother (who was in ill health and had no work)  and younger brother (who was a student)  (paragraphs 1 and 4). The deceased worked as a kitchen apprentice, and died on the 1st day at work (paragraph 1). HHJ Lok (as he then was)  adopted the traditional approach in assessing loss of dependency without mention of the “Harris approach”.
(b)	In Au Wai Mui, the Personal Representative of Mau Chi Ho, deceased v Fan Wu Kee & anor,[91] the deceased was 14 years old and a Form 3 student. He was survived by his father (unemployed), his mother (sole breadwinner of the family)  and a younger sister. HHJ H C Wong adopted the traditional approach in assessing the loss of dependency claim without mention of the “Harris approach”.
(c)	In Lee Wah, administratrix of the estate of Yick Hong Kwai, deceased, and in her personal capacity v Lok Wai Wa,[92] the deceased was a 12 year old student. The mother made a claim for loss of dependency on the basis that the deceased would have made a monthly contribution of $3,000 for her support (paragraph 9). Having considered the factual context, the familial circumstances and the uncertainties due to the youth of the deceased, DHCJ Leung considered the mother’s high hopes for the deceased’s achievement were not substantiated by evidence and awarded a nominal amount as his contribution to his mother. This was essentially the traditional approach, and the learned judge made no mention of the “Harris approach”.

293.  In my view, Mr Chong did seem to have a point when he reminded that the deceased persons in the above 3 cases had not yet entered into the job market (except for the deceased person in Lo Kam Mui, the Administratrix of the estate of Mo Wai Fung, the deceased who died on the first day of work), so it was easy to understand why the “Harris approach” was not applied in these cases.

294.  But as Bharwaney J explained in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased and Wei Cuidan (see paragraphs 286-287 and 291 above), the “Harris approach” favoured factual scenarios where the earnings of the deceased as opposed to income from other sources was the most important factor (eg the surviving spouse was wholly dependent on the deceased being the sole breadwinner and did not have any other source of income to contribute to family)  or where the deceased and the spouse were also in employment (or had private means)  and they pooled their net earned or unearned income into the joint family pool, and the court must determine, as a question of fact and without any presumption, whether or not the case before it fell within the above scenarios. In my view, the 3 cases referred to in paragraph 292 above were of no particular assistance in the present context except to serve as reminder of the need to properly consider the factual circumstances of each case to see whether adoption of the “Harris approach” was suitable or otherwise and/or whether or not its application will give rise to any injustice.

295.  This is also borne out by the care Master Levy took in debating the applicability of the “Harris approach” notwithstanding the parties’ agreement to adopt such methodology in Li Lai Fun and Choi Chi Ming Administrators of the estate of Chai (or Choi)  Kai Chuen, Deceased v Leung Yiu Cheung & ors.[93] In that case, the deceased was 42 years old at the time of his death (paragraph 3)  and left behind his widow, 2 sons, a daughter and the mother (who lived separately from widow and children)  (paragraph 4). The parties agreed to adopt the “Harris approach”, but despite such consensus Master Levy considered she should “only adopt this practice if [she is] satisfied that the simplicity of the approach will not give rise to any injustice. Hence, [she] should consider the characteristics of the dependency in this claim before [she decides] whether the modern practice should be adopted in this assessment” (paragraph 53). The learned master went on to consider the characteristics of the dependency, ie general evidence as to the deceased’s household, his family’s lifestyle (including the widow’s earnings), his contribution for household expenses, the items of household expenditures and their amounts, the education/employment of the sons, and any changes after the date of death (paragraphs 54-59). Master Levy concluded that the “Harris approach” was appropriate because even though the sons’ dependency would cease (thus leaving the widow, the daughter and the mother as dependants), the number of persons whom the widow would regard as dependants was not substantially reduced because she had to take care of the daughter of the 2^nd son and such financial burden would likely last for some time in view of the 2^nd son’s poor employability (paragraphs 60-61).

296.  2 further points were of note in relation to assessing the award for loss of dependency. First, Mr Sakhrani submitted that in quantifying the dependency on the deceased, regard must be had to the probable notional contributions to the family and the notional savings to be made in the post-accident period, which would go to both questions of loss of dependency and accumulation of wealth, and he drew my attention to 2 English cases which acknowledged that when children grew up and started to build their own lives, they would have to take care of their own futures, which would impact on whether and to what extent the dependants would have benefited from the deceased’s notional contributions.

297.  In Wathen v Vernon,[94] the father of the 17-year old deceased sued for damages under the English equivalents of FAO and LARCO. He was a craft apprentice earning a weekly wage of £6 10s out of which he paid his parents £2. Had he lived, his weekly wage would have increased to £19 plus bonuses at age 21 years and to over £25 at age 25 years. The father had a stroke before the deceased died but he returned to work. He claimed that had the deceased lived, the deceased would have contributed to his parents’ maintenance should the father became incapacitated. The first instance judge made no award for loss of dependency, deciding that if the son had lived he would no doubt have married within 5 years, and not being satisfied on the medical evidence that there was reasonable likelihood that the father would become incapacitated. It was held by the English Court of Appeal that the court was entitled, and in proper cases bound, to give damages for loss of potential support even in cases where at the time of the death no support had ever been given and the possibility of support being necessary in the future and being provided was remote (page 473). But Davies LJ said “…… one would have to contemplate that in all probability [the deceased] would very likely have been getting married during that period. Marriage would not necessarily, of course, terminate any subscription that he might make to help his parents; possibly a wife would earn, but then when these young marriages take place there is a likelihood of children, and it might be that even though his wages were increasing he would not be in any real position to afford assistance to his parents ……”, so the first instance judge correctly decided that assistance, if needed, would have been afforded by the son for no more than 5 years (page 474). Whilst the father would not need assistance if his health remained good, the court must cater for the possibility of disablement or death of the father during the 5-year period in which case the mother would need assistance (pages 474-476). The deceased was a conscientious young man who pursued his trade assiduously with prospect of increase in earnings, and he was a good son who would “if his father and mother had fallen on evil days and he was able, having regard to his own commitments, to help them he would have helped them” (page 475-477). There was sufficient evidence to justify a nominal award of £500 under the English equivalent of the FAO which should be paid to the mother, credit for half of which should be given for the sum awarded under the English equivalent of LARCO (pages 474-475).

298.  In Kenneth James Doleman and Mrs Mayvoureen Doleman (Suing on their own behalf and as Administrators of the Estate of Paul Craig Doleman deceased)  v Simon Peter Deakin,[95] the parents sought damages for loss of dependency on the deceased (who was just under 18 years old when he died). The father, after a bout of unemployment, was in work with a building firm at the time of trial, which employment was reasonably secure. The first instance judge found that (a)  the deceased would have found work as a semi-skilled worker but for the accident and earned income as such at the level explained in the evidence of an employment consultant, (b)  the deceased would have made some contribution to the household as and when the need arose, and (c)  the deceased would have seen the parents through any financial vicissitudes when his parents were in their 60s (but at that time the father’s retirement was a long way away and “[the] uncertainties of life are very great”). The first instance judge noted that “[furthermore], the Court is dealing with a young man of eighteen. I cannot overlook the fact that had he been working and progressed, within a very short time of this accident he would be likely to be contemplating matrimony, and certainly by the time that he had entered his early twenties such a course would be very much on the cards”. He considered it was not a case for the multiplier and multiplicand approach, and awarded a lump sum of £1,500 for loss of dependency. Ralph Gibson LJ (with whom Stuart Smith and Dillon LLJ agreed)  saw no error in the approach of the judge.

299.  Secondly, apart from the methodology in assessing loss of dependency discussed above (ie the traditional method versus the percentage deduction method), even if the court were to adopt the “Harris approach”, the conventional percentages in Harris are merely a rule of thumb and should not be applied in a mechanistic manner. Rather, they should be departed from or adjusted where the facts of the case (eg general evidence on the lifestyles of the deceased and his family)  warrant it. Notably, O’Conner LJ in Harris explained that the percentages became conventional in the sense that they were used unless there was striking evidence to make them inappropriate. After all, each case must be decided on its own facts, and the plaintiff must prove actual loss.

300.  In Li Lai Fun and Choi Chi Ming Administrators of the estate of Chai (or Choi)  Kai Chuen, Deceased, Master Levy, after deciding it was appropriate to adopt the “Harris approach” for assessing loss of dependency, went on to consider whether the conventional percentages should be applied, and found on the evidence that the widow budgeted the household purse sometimes at the expense of her own needs for the benefit of the children, but she was unconvinced the daughter would achieve high educational level. Nevertheless, the daughter was relatively young, so her dependency would still last for quite some time and would increase as she grew older. The dependencies of the daughter and the 2^nd son’s daughter were insufficient to show the deceased would likely have spent a larger percentage of his income exclusively for his own enjoyment upon the repayment of the mortgage loan. In the circumstances, it was held there was no justification for departure from the conventional deduction of 25% (paragraphs 62-65).

301.  In Ting Kam Yuen, the lawful attorney for and on behalf of the Dependants of Tong Kwok Fong deceased and as the Personal Representative of the estate of Tong Kwok Fong, deceased, I referred to Seagroatt J’s observations in Tsang Mei Ying & anor (administratrices of the estate of To Shing Chiu, the deceased) that underlined the flexibility of the Harris approach and the need to have regard to the facts and evidence adduced in relation to the dependency (paragraph 32).

302.  In Tsang Mei Ying & anor (administratrices of the estate of To Shing Chiu, the deceased), the widow inter alia brought claims on behalf of herself, a son aged 10 years, a daughter aged 19 years and the parents of the deceased husband (a painter aged 42 years at the time of death)  as dependants under the FAO. In that case, the deceased gave the widow $8,000 out of his monthly income of $16,708, paid the rent and utilities of about $1,632/month, gave his parents $2,000/month, and retained about $5,000/month for his own use (of which he spent $1,000/month on his family for miscellaneous items). The deceased spent little money on himself and had not accumulated savings, but his earnings enabled the widow to accumulate savings of her own ($30,000 at the time of his death). Further, within 2 months of the death of the deceased, the daughter began employment and contributed $1,000/month to household expenses, which later increased to $3,000/month.

303.  Seagroatt J observed at page 811 as follows:

“…… The modern practice is to deduct a percentage from the net income of the deceased to represent what he would have spent on himself. These percentages tend to be used “unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts” (per O’Connor LJ in Harris v Empress Motors [1984] 1 WLR 212 at pp. 216-217).

The flexibility of the approach and the need to have regard to the facts of the case and the evidence adduced in relation to dependency was illustrated by Beldam, LJ in Owen v Martin and Others [1992] PIQR Q151:

No doubt there will be many claims under the Fatal Accidents Acts where parties agree that a conventional proportion is appropriate. I do not, of course, suggest that in arriving at the extent of the financial provision made by the deceased the court is bound to base its assessment precisely on the percentage of net earnings disclosed by sums spent for the benefit of dependents but the court is not entitled to cast aside altogether evidence which shows the proportion of the deceased's income actually spent for the dependents’ benefit during his lifetime and to substitute a figure however conventional or appropriate in other cases.

It is not appropriate to calculate dependency on a simple equal mathematical division amongst all dependants of the sum given by a husband to his wife for the upkeep of the family home, its outgoings, and the general necessities of life. This is a wholly artificial approach and is a practice to be deprecated. It is not conducive to a calculation which is fair to either party.” (my emphasis)

304.  In that case, it was clear the son had a greater share of the available money spent on him, which was his true dependency, so the only realistic approach was to calculate the actual sum of dependancy out of the deceased’s earnings which represented the total dependency, and then make adjustments for sums reflecting his own benefit, “the whole exercise is essentially an estimate based on common sense or conventional wisdom”. There must then be adjustments or a cut-off as the picture of the family dependency changed. Seagroatt J decided to adopt such approach “because it more accurately reflects a true household economy and the way parents view and treat their children rather than the mathematical division” (page 814).

305.  In Coward v Comex Houlder Diving Ltd,[96] the deceased was 35 years old and a self-employed diver when he passed away. His wife was working throughout as a midwife. At the time of the deceased’s death, (a)  he was better placed in his work after a bad spell of low earnings, (b)  the couple had purchased a house on mortgage, and (c)  they were contemplating about starting a family. Under the percentage deduction method or the “Harris approach”, out of the joint family purse, the wife enjoyed ⅓ spent for joint benefit and ⅓ spent for her sole benefit (ie ⅔ of the joint earnings)  less her own earnings (as there was no suggestion she was not intending to go on working)  (page 10). But Ralph Gibson LJ (with whom Butler-Sloss LJ and Sir Edward Eveleigh agreed)  in the English Court of Appeal allowed the appeal to the extent of adjusting the widow’s dependency to 60% of deceased’s net earnings (instead of the conventional ⅔ under the principle of equal division on which the formula was based, which came to 55% being “…… a rough average of the percentages produced by application of the formula”)  on the facts of the case (page 11). On the facts of the case as found by the first instance judge, the deceased was a devoted husband who would not spend an unusually high proportion of his earnings on himself, and as his work took him out at sea much of the time he would not be able to indulge in pleasures and pastimes during the year as a man who lived ashore would be able to do, thus he would not have retained for his sole benefit proportion of his net earnings as high as indicated under the formula, and it was likely that he would have increased expenditure for joint benefits (eg saving for, purchasing and paying outgoings on a large house)  (page 11).

306.  In Dall v Choy Ying Wai,[97] a widow brought claims inter alia on behalf of herself and her daughter under the FAO. The deceased was aged 33 years at the time of his death, and worked with an international company as principal engineer in Hong Kong under a fixed term contract for 2 years (which could be continued on indefinite basis thereafter). He was entitled to various benefits including education allowance for the daughter by the time she turned 4 years. DHCJ Lugar-Mawson (as he then was)  applied the conventional multiplicand of 75% of earnings, stock options and benefits (which would have ceased on the deceased’s return to the United Kingdom)  as there was no evidence of the deceased’s and his wife’s actual personal expenditure when they were in Hong Kong for just a few months prior to the accident, and the evidence indicated the widow had no plans to work at the time of the accident (pages 711 and 719-721). But on the facts of the case, the learned judge found the education allowance should be treated separately from the conventional formula because of its exceptional nature as a prospective part of the deceased’s remuneration benefits (ie he was not yet entitled to such benefit at the time of his death as the daughter was below compulsory school age, and whether he would be entitled depended on the deceased’s career path and future earnings/benefits)  (page 712).

307.  In Cheung Kai Chi, Administrator of the estate of Cheung Kin Keung, deceased v Chun Wo Contractors Limited & anor,[98] the deceased welder ganger left behind his widow, 2 sons, 1 daughter and the mother. The elder son and daughter were at work. The deceased’s earnings after deducting MPF contribution would be about $23,000/ month. The bank statements showed he transferred $15,000 to his wife every month subject to some very occasional fluctuations, and he paid insurance premium for a life policy for himself and medical policies for the family every month. There was a regular payment of $780 every month presumably for the family as he was a frugal man (paragraph 32). There was also a long history of savings by this frugal family (paragraph 38). 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. The learned judge found they were no longer dependent on the deceased (paragraphs 34-35). He also found the deceased would spend $4,650/month as pocket money, and would give his mother $500/month (and $1,000 for the widow’s mother who did not make any claim for dependency)  (paragraph 37). He also concluded that the upkeep of the family of 5 was $17,940/month (which sum was close to the total transfer of $15,000/month to the wife and $2,660/month for insurance premium)  from which he deducted the deceased’s share of $3,000/month and family savings of $2,000/month (paragraph 38), but he rejected the widow’s oral evidence that out of the deceased’s pocket money of $4,650/month he would spend a significant part of it on the family (since the total expenditure and savings recounted by her would exceed the deceased’s income)  (paragraph 33).

308.  The plaintiff appealed on inter alia quantum regarding the loss of dependency[99] on the ground that L Chan J’s findings (ie the deceased’s share of his income amounted $7,560/month ($3,000/month being his share of household expenses and $4,560/month being his pocket money)  or 33% of his net income (paragraph 46))  was wrong and the percentage deduction should have been 25% of his net income (under the “Harris approach”)  or even 22% in view of the widow’s evidence as to the deceased’s frugality and the contention that insurance premium should be savings and/or provision for the future rather than family expense (pages 116-117). Yeung JA (as he then was)  said as follows at page 121:

“74. …… We note that Harris v Empress Motors Ltd concerned a family of four and 25% of the deceased’s income might well be a reasonable figure to adopt as his share of the family expense.

75.Whether the Judge’s estimate is a fair one depends on the facts of each case. The extent to which the conventional figure of 25% adopted in Harris v Empress Motors Ltd [1984] 1 WLR 212 is helpful is doubtful.

76. The Judge, having heard all the evidence, concluded that the widow’s evidence on the deceased’s expenses would not be accepted, as his income could not have met those expenses.

77. The Judge rejected the widow’s evidence that the deceased’s monthly personal expenses was only about $3,000. The Judge also rejected the suggestion that the deceased’s share of the family expenses was only $2,000.

78. [The plaintiff’s counsel] sought to raise the same issues and argued that the payments mentioned by the widow might not be regular payment. As pointed by [the defendants’ counsel], it was never the widow’s evidence that those were irregular payments.

79. [The plaintiff’s counsel] submitted that the dependency of the younger son and the widow should be about $5,000 and $10,000 a month respectively and that the deceased’s share of his income should also be about $5,000.

80. The fallacy of [the plaintiff’s counsel’s] submission was that on her calculation, the younger son (a student)  required as much to support himself as the deceased (a building worker)  and the widow (a housewife), required twice as much.

81. We are not persuaded that [the plaintiff’s counsel] was right.

……” (my emphasis)

309.  Mr Chong submitted the “Harris approach” should not be rejected simply because the Deceased and the Dependants did not live under the same roof on daily basis, and he argued the “Harris approach” was relevant and applicable here because (a)  “the Deceased had been paying money to the Mother and the money effectively was used for household items”, ie the Deceased’s payment was his contribution to the joint household comprising the Mother, the Deceased and the Sister even if the Deceased did not stay the night at the Flat, and (b)  “the deceased actually would go back to the Mother’s place to have dinner every night and then he will leave – stay at girlfriend’s place afterward”. Further, as seen in paragraph 328 below, P modified the conventional percentage dependency of 75% (for the Mother and the Sister before May 2020 when the Sister became financially independent)  and 66% (for the Mother alone since May 2020)  to the more restrictive percentages of 66.6% (for the period up to August 2020)  and 50% (for the period as from September 2020). Given the reduction of such percentage dependency to 50%, Mr Chong argued the “Harris approach” remained relevant and applicable because (a)  “the Deceased and the girlfriend were already together, they were very close, and it’s like as if they got married, nonetheless the Deceased still took care of the Mother”, and (b)  even if the Deceased and his girlfriend subsequently got married and lived in a separate household, “the Deceased will earn more and therefore the contributions will be more to the Mother”. Mr Chong submitted it must be a matter of common sense that, if the breadwinner would earn more income in the future, the dependants could accordingly expect more financial provision.

310.  On the other hand, Mr Sakhrani submitted the “Harris approach” was relevant to the situation of a single household where the husband was the sole breadwinner of the family supporting his wife or his wife and children, in which case the conventional value of the dependency was 66.6% of earnings for a widow alone or 75% of earnings for a widow and children. But here, the rationale behind the conventional percentages in the “Harris approach”, ie that a family (whether husband and wife or husband and wife with children)  was to be regarded as a dependent unit and its dependency should therefore be assessed as a whole, was absent. Mr Sakhrani submitted the present situation was dissimilar to the one in Wei Cuidan and/or Ting Kam Yuen, the lawful attorney for and on behalf of the Dependants of Tong Kwok Fong deceased and as the Personal Representative of the estate of Tong Kwok Fong, deceased.

311.  Mr Sakhrani also urged me to quantify the dependency on the Deceased on actual contributions to the Mother and the Sister (if any)  and the probable contributions thereafter in the post-Accident period (ie the traditional method), having regard to the likely evolving circumstances but for the Accident, including but not limited to the likelihood that the Deceased eventually would have married and would have children (and there was evidence that he had a steady girlfriend at the time of his death with whom he stayed), and his having dinner at home would not have altered the fact that he lived in a different household. Mr Sakhrani suggested that but for the Accident, P in all probability would likely have been just one of his several dependants, including his wife, children and possibly his in-laws.

312.  I start with the relevant methodology for assessing loss of dependency in the present context, and I have no doubt that the factual findings here (see Part IV above)  did not support the application of the “Harris approach”. The underlying rationale for using conventional percentage dependency under the “Harris approach” was the existence of a single household where the most important factor in calculating loss of dependency was the earnings of the deceased or the joint pooled income of the deceased and the spouse. The conventional ⅔ dependency was applicable in cases where the surviving dependant (eg spouse)  had been wholly dependent on the deceased and did not use any other earned or unearned income to support his/her personal expenses and/or the common household expenditure for joint use. Where the spouse contributed her earned or unearned income to the joint family pool, then the spouse’s dependency would be ⅔ of the joint earnings less her own income (see paragraphs 282-287 and 305 above).

313.  Mr Chong tried to suggest there was a joint household of the Deceased, the Mother and the Sister on the basis that after leaving Phoenix House and quitting Ajisen, the Deceased took up scaffolding jobs and “return to the household (except for sleeping)” up until the time of his death and made the following contributions whilst the Brother did not give the Mother and Sister any contribution: (a)  for the Mother and her household about $2000-$3000 in cash twice a month (and he would bring the Mother and the Sister out for meals and would purchase groceries), such that the cash and the value of food and groceries added up to an average of $5,000/month, and (b)  for the Sister $500/month as pocket money.

314.  But as Mr Sakhrani submitted, the familial dependent unit (eg husband and wife or husband and wife with children)  to be assessed as a whole was absent the present situation with respect to the Deceased, the Mother and the Sister.

315.  I have found the Deceased and the Dependants did not have a joint or common household, so it was not the case that the Deceased returned “to the household (except for sleeping)”. Rather, since 2012 the Deceased had flown the nest and had actually moved out from the Flat to establish communal household(s)  with his girlfriend or his friend, and even on the Mother’s evidence, all he did was to return to the Flat for shower and dinner on workdays. Thus, on the Mother’s evidence, apart from partaking some meals at the Flat, the Deceased did not benefit from the household financial provision (家用)  that he allegedly gave to the Mother twice a month and/or from the monthly CSSA payment (being the Mother’s unearned income for household/living expenses). Indeed, as evident from the SWD Forms, the monthly CSSA payments were not meant to be enjoyed by the Deceased. Of course, the Deceased did not enjoy any benefit from the pocket money (零用錢)  he gave the Sister each month, from the pocket money the Brother gave to the Mother (as I have found), and from the Father’s contribution up to 2016 to support part of the Sister’s living expenses (which were part of the household/ living expenses of the Mother’s household at the Flat). In my view, there was no joint or common household, and no joint pooled income. Rather, the Deceased had an established living pattern with outside communal household(s)  with his girlfriend and/or his friend separate from the Flat, and he incurred expenses in relation to his outside life which were defrayed from his work income and his loans, which expenditures were not shared with the Mother and/or the Sister. Plainly, the Deceased had his own life with consequent expenses outside the Mother’s home/Flat.

316.  More importantly, I have found against P that the Deceased contributed household financial provision (家用)  of about $5,000/month for the Mother’s and the Sister’s household/living expenses as the Mother alleged. Rather, I have found that the Deceased would give some pocket money to the Mother each month (albeit in a modest amount)  in light of his income, finances/debts, personal expenses, outside household(s), and personal circumstances. This also showed the “Harris approach” was inapplicable. It must be remembered that there was no presumption of a joint household and no presumption that income would be for joint or pooled use. The court must determine this as a question of fact, and I have made my findings accordingly.

317.  Further, I have also found that but for the Accident (which made available the charitable donations, the EC Sum and the insurance pay-outs to the Mother’s use), the Mother (who cancelled CSSA in September 2014)  was likely to found some work and earned some income as a post-natal care worker. Whilst such finding went against P’s claim as to the Mother’s alleged loss of substantial dependency on the Deceased, it would not have affected my finding that the Deceased would have continued to give her some pocket money (albeit in a modest amount)  for her use.

318.  As for the post-trial period, Mr Sakhrani urged this court to have regard to the likely evolving circumstances, including the possibility that the Deceased would eventually have married and would have children, with the result that the Mother would become 1 of several dependants (who would include, say, his wife and children). Mr Chong submitted that even if the Deceased got married and had their own household, the Deceased would have pay rises and would nevertheless be able to make more contribution to the Mother. In his oral closing submissions, Mr Chong also urged me to consider the possibility that the Deceased and his wife might not wish to have children after marriage, which he said was not unheard of in respect of the “younger generation” “in this day and age”.

319.  In respect of the future, I find it likely that before the Deceased contemplated matrimony (or a more permanent form of cohabitation that was akin to marriage), he would have continued in his established living pattern, drawing out all he could from the Deceased’s Account (whether salary and/or loans). When a young man was used to spending a large proportion (if not all)  of his monies (income and debt), it was not unnatural that one expense was apt to follow another, especially as he had outside household(s)  and a steady girlfriend. Even though there was no evidence the Deceased and his girlfriend planned to marry in the near future, there was no reason to doubt they were strongly attached to each other, having been together for some time with the Deceased regularly staying at his girlfriend’s place since 2012. I would not assume they would necessarily have married, for life shows that young unmarried men do not always marry the girl with whom they appeared to be closest. But bearing in mind the Deceased did have a girlfriend for whom he had strong attachment and with whom he regularly lived together (and indeed Mr Chong accepted “they were very close, and it’s like as if they got married ……” – see paragraph 309 above), I have no doubt that he would probably have married (or moved on to more permanent cohabitation with marriage in due course, perhaps when they would want to have children). Indeed, the Mother expected her children to marry (eg the Mother in the Mother WStmt contemplated that the Sister would get married even though she was still studying at the City University at the time – see paragraph 75 above). I think that eventual contemplation of such cohabitation/marital state and the responsibilities such state would bring to a family man would likely have propelled the Deceased to more financial prudence, to attempt balancing income and expenditure, and to wean off loans/debts that used to tide him over from one payday to the next. Further, the possibility of children was not remote because the Mother herself claimed she took up the post-natal re-training course in anticipation of the day when she had to look after her own grandchildren. It would be speculative to contemplate whether the Deceased’s wife would have earning capacity, and if so, whether she would have used it full-time or part-time and for how long (eg before or after there were children). But given the Deceased’s income as an Intermediate Grade (and not Master Grade)  scaffolder, it was likely he would have to make substantial contribution from his income to support his own family after marriage, especially if and when there were children, and although he might make an effort to help the Mother if she fell on evil days, he would not have been in any real position to afford regular assistance to the Mother at the level she suggested. Even if the Deceased had no children, he might have wished to spend more on himself and his wife for better accommodation and lifestyle knowing that the Sister would be financially independent and the Mother would either have capacity to work/earn or would have access to the CSSA safety net (as she had had for many years)  and free public housing (as she continued to have). In my view, given the Deceased’s projected financial commitments as mature adult, husband and/or father, he would not have left very much for the Mother.

320.  Thus, I consider the “Harris approach” was not applicable, and I should assess dependency under the traditional method whereby I would take into account the Dependants’ needs and consider whether the Deceased was able to meet those needs.

321.  I make a further observation although it would not have influenced the above findings. Even if the “Harris approach” were relevant and applicable (which I disagree), I note Mr Chong started with the conventional dependency percentage of 75% of the Deceased’s income (for the period before May 2020 when the Mother and the Sister would have been dependent on the Deceased)  and 66.66% (for the period since May 2020 when only the Mother would have been dependent on the Deceased), and then reduced them down to 66.66% and 50% (see paragraph 328 below). The question was whether it would be appropriate to start with the conventional percentage deduction initially at 25% (on the basis of a joint household of husband and wife with child/children)  and later at 33.33% (on the basis of a joint household of husband and wife without children)  (as explained in Harris – see paragraphs 282 above)  before adjustment on the facts.

322.  As Bharwaney J explained in Wei Cuidan, these conventional percentages were commonly applied where the deceased provided sole financial support for the family and the spouse did not contribute any earned income (ie wages or salary)  or unearned income (ie any other source of income such as savings or inheritance)  to the family (see paragraph 287 above). Where the dependent spouse contributed earned or unearned income to the joint family pool prior to the death of the deceased, adjustments would have to be made to the conventional percentage deduction following the guidance in Coward and McGregor on Damages cited by Bharwaney J in Wei Cuidan (see paragraphs 287 and 305 above). Thus, in the case of husband and wife with no children, ⅓ of the joint pooled income would be treated as spent for each and ⅓ for their joint benefit, so the spouse’s dependency was ⅔ of the deceased’s income less his/her own earned or unearned income (see paragraph 305 above). “Mathematically, the conventional 66.6 per cent of the husband’s net earnings is on this basis modified to produce for the widow just 50 per cent of those earnings should her own earnings in the joint pool equal half of her deceased husband’s; the percentage would drop to 33.3 should she be earning as much as her husband ……”[100] Likewise, the conventional dependency percentage of 75% where there were dependent children in addition to the dependent spouse would also have to be modified so as to produce a lower dependency percentage (ie the dependency was to be assessed by taking 75% of the joint pooled income and deducting from that figure the amount of the spouse’s earned or unearned income), and there was no unfairness as the dependent children would be dependent on both parents (see paragraph 287 above).

323.  Given P’s own case that (a)  prior to the death of the Deceased the Mother and the Sister all along relied on (i)  the Mother’s monthly CSSA payment (which was about $5,219/month at the time of the Accident and which exceeded the Deceased’s then alleged monthly household financial provision (家用)  of $5,000/month for the Mother’s household)  being the Mother’s unearned contribution to the joint pooled income of the Mother’s household and (ii)  the Deceased’s then alleged monthly household financial provision (家用)  of $5,000/month for the Mother being the Deceased’s earned contribution to the joint pooled income of the Mother’s household, and (b)  but for the Accident the Mother would have continued to benefit from the monthly CSSA payments (which, according to the Mother, were terminated not because of her earning capacity but because of the availability of the charitable donations, the EC Sum and the insurance pay-outs for her use but which would not have been available but for the Accident, and in any event she was not shy to re-apply for CSSA payments upon alleged exhaustion of such funds (perhaps with success – see paragraphs 168(a)  and 178 above))  and contributed such CSSA payments to the joint pooled income, it was not understood why the modified approach as explained in Coward and Wei Cuidan was not adopted as a starting point and instead the conventional Harris dependency percentages were followed.

324.  Just for a quick reference, in the period after the Sister became financially independent, Mr Chong adopted as a starting point the conventional dependency of 66.66% of the Deceased’s income for the Mother (see paragraph 321 above). But under the adjusted approach as explained in Coward and Wei Cuidan, and bearing in mind that on P’s own case the Mother’s contribution of unearned income by way of monthly CSSA payment (about $5,219/month)  and the Deceased’s contribution of household financial provision (家用)  (about $5,000/month)  to the joint pooled income were roughly similar, the starting point for considering dependency percentage would not be 66.66% but 33.33% (see paragraph 322 above). To rely on the former and not the latter percentage would have given an inflated and distorted view of the Mother’s true dependency. Thus, Mr Chong’s “reduction” of the percentage dependency from 66.66% and 50% (see paragraph 321 above)  were premised on incorrect footing, and the above analysis showed that even on her own case P overreached in her loss of dependency claim.

325.  In coming to the above conclusion, I have borne in mind the cases of Tang Kwong-chiu v Lee Fuk-yue[101] and Wong Kou-shee & anor v Chu Che-ping and Chu Sheung-chun, administrators of the estate of Yiu Pui-sheung, deceased.[102] The former case concerned a claim for damages for personal injuries. During the period between the accident and the date of trial, the plaintiff received payments from SWD (page 591), and the Court of Appeal held that social welfare benefits were of a benevolent nature and should not be deducted in calculating loss of wages over the same period for which benefits were received (pages 591-592). In the latter case, the Court of Appeal revisited this issue in the context of a fatal accident claim. In that case, moneys were paid by SWD to the deceased’s dependants by SWD over a period of 31 months after the Accident during which the widower stayed at home to look after the children (page 250). It was held that the SWD payments did not result from the deceased death but from the impecuniosity of the dependants and from the benevolence of the government, and thus should not be deducted from damages for loss of dependency under FAO (pages 250-251).

326.  Likewise, in the present case, there should be no deduction for the cheque donations from charitable organisations being charitable gifts that the Mother received after the death of the Deceased. But the monthly CSSA payments pre-dated the death of the Deceased and on P’s case were an important part of the joint pooled household income (see Mr Chong’s submissions in paragraph 198 above), and thus necessarily had to be taken into account to give a complete picture of the alleged actual dependency on the Deceased. In any event, these cases were decided long before the courts adopted the “Harris approach” that rested on percentage dependency based on earned and unearned income that went to the joint pooled family income.

(d)  Pre-trial loss of dependency

327.  In the RSoD, P claimed the Mother and the Sister were dependent on the Deceased on the basis that the Deceased gave about $5,000/month as household financial provision (家用)  to the Mother to support the living expenses of the entire family that included the Mother, Sister and himself, and about $500/month as pocket money to support the Sister. P went on to aver that but for the Accident the Deceased would have qualified as a Master Grade bamboo scaffolder in/about a year after the Accident, say, 21 September 2015, so (a)  during the interim one-year the Deceased would have continued to give the Mother about $5,000/month for the household/living expenses and to give the Sister $500/month for her support, and (b)  the Deceased being the sole breadwinner of “the household” with expected salary increase after he qualified as a Master Grade bamboo scaffolder would have provided no less than ⅔of his income to support “the household, to be equally distributed to [the Mother] and the Sister”. On the 1^st day of the Assessment Hearing, Mr Chong confirmed the Sister’s pre-trial loss of dependency would be calculated up to May 2020 (ie her graduation from her tertiary studies).

328.  As alluded to in paragraph 321 above, Mr Chong in his written closing submissions adjusted the conventional percentage of 75% (for the Mother and the Sister before the Sister became financially independent in May 2020)  and 66.66% (for the Mother alone after May 2020)  to the more restrictive figures of 66.66% (up to August 2020)  and 50% (as from September 2020), and claimed the total loss of pre-trial dependency based on the Deceased’s notional earnings as a Master Grade scaffolder as from September 2015 would be as follows:

Period	Dependency of the Mother	Dependency of the Sister
9/2014 – 8/2015	$5,000 x 12 months = $60,000	$500 x 12 months = $6,000
9/2015 – 8/2016	$5,000 x 12 months = $60,000	$500 x 12 months = $6,000
9/2016 – 8/2017	$41,164.08 x 1/3 x 12 months = $164,656.32	$164,656.32
9/2017 – 8/2018	$41,708.40 x 1/3 x 12 months = $166,833.60	$166,833.60
9/2018 – 8/2019	$40,690.86 x 1/3 x 12 months = $162,763.44	$162,763.44
9/2019 – 8/2020	$41,150.58 x 1/3 x 12 months = $164,602.32	$41,150.58 x 1/3 x 8 months = $109,734.88
9/2020 – 8/2021	$41,000 x 1/2 x 12 months = $246,000	0
Sub-total	$1,024,855.68	$615,988.24
Total	$1,640,843.92

329.  In the Amended Answer, D2/D5 put P to strict proof, and pleaded that the Deceased would hardly have made any contribution to the Dependants. The Amended Answer averred that pre-trial loss of dependency should only be allowed to the extent of $50,000.

330.  Although I have already made relevant findings of fact largely against the averments in paragraph 327 above, it is useful, for the sake of completeness, to capture below what Mr Chong described as cogent evidence to the effect that the Deceased would have continued to support the Mother in the same way for the rest of her life and for the Sister until she attained financial independence in May 2020, which evidence/submissions I do not accept:

(a)	It was said the Mother was wholly dependent on the contributions or financial support by the Deceased and her monthly CSSA payment (apart from the single month where she worked as post-natal care worker), and her bank balance was consistently very low, so “…… the Deceased had clear moral obligation to maintain the Mother’s living standards” (see paragraph 202 above). I disagree, and refer to my discussions and findings in Part IV above and in particular Part IV(l)  above.
(b)	It was said that as a filial son who tried his best to provide for and support his Mother, and who “had witnessed his Father and [the Brother] leave the family in financial destitution”, the Deceased would unlikely have abandoned the Mother during her lifetime (see paragraph 221(a)  above). I disagree, and refer to my discussions and findings in Part IV(l)  above and in particular paragraph 221(a)  above. I note here that Mr Chong referred to Pang Tai San, the Personal Representative of the Estate of Pang Tung Ming, deceased. In that case, the scaffolding worker died when he was 23 years old. The defendant was absent at the assessment hearing, and the evidence of the dependent father was not disputed. Master de Souza said that “I also am prepared to accede to [an award for his father’s post-trial loss of dependency] upon the basis of the evidence that the deceased was filial, was not spendthrift, was entirely responsible and, apparently, on the father’s evidence, would likely have continued to look after his father indefinitely but for the sad turn of events” (my emphasis)  (paragraphs 13-14). The evidence which grounded the learned master’s aforesaid view was that (i)  the deceased lived with the father continuously since he was 7 years old when his parents divorced, and (ii)  he took evening meals and slept at home and rarely went out for entertainment (paragraph 8). On such basis, the learned master accepted the father was in a position to comment on the character, personality and spending pattern of the deceased, and he accepted the father’s evidence (see paragraphs 10-11). This was a far cry from the present facts when, according to the Mother, the Deceased only had shower and dinner at the Flat on his workdays, and he stayed at his girlfriend’s place or his friend’s place. I have found the Deceased had moved out from the Flat, and had established outside communal household(s). Further, it was plain that the Mother knew very little of the Deceased’s life, lifestyle, finances, work and expenditures. I am unable to see how fact-specific observations by Master de Souza in the above case were of any relevance to the present context. I agree with Mr Sakhrani that citing authority for what was essentially a fact-sensitive matter was quite unnecessary and, indeed, inappropriate.
(c)	It was said that even on the Deceased’s “then relatively low salary”, he continued to pay for the Mother and the Sister, personally incurred loan debts to “support their lifestyle”, and procured the Deceased SWD Forms to ensure the Mother would be able to support her expenses (see paragraph 192 above). I disagree, and refer to my discussions and findings in Part IV(k)  above and in particular paragraphs 192 and 200(c)  above.
(d)	It was said that even though the Deceased had a “stable girlfriend” whom he occasionally lived with, he regularly returned home and paid for the Mother’s and the Sister’s expenses (see paragraph 187 above). Whilst I agree that the Deceased had a steady girlfriend, and he had moved out from the Flat to stay with her and/or with his friend, and that he would return to the Flat for meals, I disagree he paid for the Mother’s and the Sister’s expenses. I refer to my discussions and findings in Part IV(j)  above and in particular paragraphs 186-187 above.
(e)	It was said that the Deceased’s girlfriend was totally self-sufficient and did not depend on him financially at all, and on the contrary the girlfriend or other members of her household appeared to pay for all the household expenditure when the Deceased stayed with her. In his oral closing submissions, Mr Chong went on to say that even if the Deceased would marry later on, there was no indication this would not have continued following marriage as he would have earned more when he advanced to become a Master Grade metal/bamboo scaffolder (see paragraph 184 above). I disagree, and refer to my discussions and findings in Part IV(j)  above and in particular paragraph 184 above. In my view, such submissions, which essentially suggested the Deceased would have been dependent on his girlfriend and her family for his living expenses for the rest of his life (whether they be married or not)  betrayed a lack of realism. Even if the girlfriend was working and was not dependent on the Deceased, it was unrealistic to think that the Deceased being an able-bodied young adult wage-earner would not have contributed to his share of their joint/communal expenses and/or would not have expended money on social activities, entertainment and gifts etc, and instead would have lived off his girlfriend and her family for the rest of his life. As Mr Sakhrani submitted, such a self-centred and irresponsible person would hardly have given 40% of his income to support the Mother and the Sister as the Mother alleged.
(f)	It was said that when (but for the Accident)  the Deceased would have been promoted to Master Grade level, and when his salary would have increased to a sufficient level, the Mother would have been able to give up CSSA payments and to fully rely on contribution or financial support by the Deceased.[103] I disagree as I have found the Deceased would not have been promoted to become a Master Grade metal/bamboo scaffolder. I refer to my discussions and findings in Part V(a)  above.
(g)	It was said that the Mother would have to rely on the Deceased since she would not be seeking work as post-natal care worker because (i)  she could not take up post-natal care work as a regular job due to her limited education and/or work experience, and (ii)  she terminated CSSA payments on 16 September 2014 when she received and/or expected to receive the charitable donations, the EC Sum and the insurance pay-outs (see paragraphs 119 and 176(c)  above). I disagree and refer to my discussions and findings in Part IV(d)  and (i)  above and in particular paragraph 176(c)  above. I also note the Mother was quite ready to re-apply for CSSA when she perceived there was such need (as she did by way of the 2018 SWD Application Form (C/103-110)  and the 2018 SWD Declaration (C/144)  both dated 6 December 2018).

331.  In the circumstances, I do not accept the Deceased would have contributed 40% of his income (ie $5,000/month out of his average monthly wages of $12,518.33)  to the Mother and/or this rate should be adopted for her dependency. As I have found, both the Brother (a skilled worker)  and the Deceased (a semi-skilled worker)  were holding jobs and/or making or building their lives outside the Mother’s home (with the Deceased’s salary being more modest than the Brother’s as the latter earned $18,000/month by 2016 – see paragraph 68 above, and the Deceased having an outside life with his girlfriend and having to borrow money from time to time for which he had to make repayments on monthly basis, which necessarily did not speak well of his cashflow), and (but for the Accident which resulted in the Mother’s receipt of the donation monies, the EC Sum and the insurance pay-outs which enabled her and the Sister to get by without the Mother having to resort to post-natal care work)  the probability was that the Mother would have been earning some income after she cancelled CSSA in September 2014 with some casual pocket money by the Brother and by the Deceased for the Mother (and some pocket money by the Deceased for the Sister), but with the comfort that the Mother knew she could re-apply for CSSA should the need arise (as she perceived to be the case in 2018). Such pocket money by the Brother and the Deceased was consistent with the SWD / HKHA Forms and the Deceased SWD Forms as they were not perceived by the Mother to be contributions or financial support as household financial provision (家用).

332.  I agree with Mr Sahkrani that in all the circumstances the pocket money for the Mother by each of the Brother and the Deceased would have been around $1,500/month, and not the unrealistic figure of $5,000/month. Such total pocket money of $3,000/month together with (a)  monthly CSSA payment or her own income of, say, about $5,200/month (not $10,000/month as she was shown able to earn in August 2014 but a more relaxed amount consistent with the “D I Box” deposits discussed in paragraph 178 above)  (totalling about $8,200/month), (b)  further support from the Father up until 2016, (c)  some modest pocket money from the Sister on the side after she started to work upon graduation in May 2020, and (d)  rent-free public housing all along were not unreasonable or, as Mr Sakhrani submitted, unkind for meeting the Mother’s and the Sister’s livelihood if they lived modestly as claimed. After the Sister moved out from the Flat when she went to university in September 2018, the Deceased lived alone at the Flat. In my view, irrespective whether the Mother had her own work income or whether she resorted to CSSA support, the Deceased would have continued to give her pocket money in similar modest sum as a filial gesture and not as household financial provision (家用). By that time the deceased would have been thinking about his own future as matrimony (and later children)  was very much on the cards, and he would have to learn financial frugality to trim expenditures and to take up the responsibilities of a family man. I do not think the Deceased would have been in any real position to afford increase in his pocket money for the Mother. But with both the Deceased and the Brother giving pocket money to the Mother (as I have found)  and some further pocket money on the side from the Sister when she started working, which would have come in handy should there be fluctuations in the Mother’s income (if she did not resort to CSSA support), the Mother would have been able to live reasonably as she had always lived, probably more so after the Sister became financially independent.

333.  In my view, the above findings were far more realistic and reasonable as it would have allowed the Deceased to enjoy the fruits of his labour for himself as a young adult wage-earner by building his life outside the Mother’s home with his girlfriend (and/or eventual wife), paying debts and/or learning to wean off debts. It was wholly unrealistic to think that out of the Deceased’s notional earnings (premised on income of a Master Grade scaffolder which I have rejected), he would have given 50% to the Mother as household financial provision (家用)  (from which he would not have any benefit had he not died save for showers and some dinners), leaving 50% for himself out of which he would have saved 20% (or 10%)  (but more of this in Part VI below)  and repaid his outstanding loans.

334.  On balance, I find that (a)  the Mother’s loss of dependency from September 2014 to October 2021 (86 months)  would be $1,500 x 86 months = $129,000, and the Sister’s loss of dependency from September 2014 to May 2020 (69 months)  would be $500 x 69 months = $34,500, totalling $163,500.

(e)  Post-trial loss of dependency

335.  The RSoD averred that the Mother was the sole dependant of the Deceased in the post-trial period. P claimed that but for the Accident the Deceased would have been 30 years old by the notional date of judgment on, say, 20 September 2020 (or 31 years old by the time of the Assessment Hearing). According to Table 15 of the Hong Kong Life Tables 2014-2069 published by the Census and Statistics Department in September 2020 (“Life Tables”), the Mother was 58 years old by 20 September 2020 having been born on 10 July 1962 and would be expected to live for about 32 more years (or 59 years by the time of the Assessment Hearing, and hence her life expectancy was about 30.99 years[104]).

336.  Retirement age The RSoD averred (but the Amended Answer put P to strict proof)  that but for the Accident the Deceased could have worked as a bamboo scaffolder until at least 60 years old (ie up to 2050). Likewise, paragraph 11 of the Mother WStmt gave the Mother’s belief that but for the Accident the Deceased would have continued to work as a scaffolder to at least 60 years.

337.  But in his written closing submissions, Mr Chong suggested that but for the Accident, the Deceased would have retired when he was 65 years old (ie up to 2055). He drew my attention to 2 cases which he claimed supported the proposition that construction workers were expected to retire at 65 years. In Sin Kin, the administratrix of the estate of Wong Kam Wor, deceased, Master Cannon did not accept the deceased construction worker / rigger (then 30 years old)  “would have ceased work as a rigger when he reached 50 or 55. He could quite reasonably be expected to continue to work on construction sites until he was 65. The MPF scheme is based on retirement at age 65” (page 24). In Liu Weiguang v Li Keng Ko & anor,[105] HHJ Phoebe Man found the 52 year old (at the time of the accident)  construction worker plaintiff should have been able to work until retirement age of 65 years (paragraph 74). But Mr Sakhrani reminded this court that Mr Chong did not question Chak/Tang on this matter, and suggested it was not open to P to discharge its burden of proof by resorting to legal authorities, which he said was a misuse of earlier evidence-based decisions.

338.  In my view, it was not easy to see why the retirement ages of general construction workers or riggers would be relevant to the retirement age of scaffolders who possessed different skills and were of a different trade although they all worked at construction sites. The physical requirements and technical skills were different, and the pool of workers in the trade that would shape the relevant market forces was also different. I am unable to draw assistance from the authorities in the above paragraph.

339.  Mr Sakrani complained there was no evidence that the Deceased enjoyed scaffolding work and/or managed the strenuous nature of it, and that he intended to remain in the trade for the long term notwithstanding the obvious hazards. Further, it was said the Mother’s belief had no probative value, and she did not establish any basis for her belief and/or the reliability of it. Mr Sakhrani said there was simply no evidence that the Deceased would/could have worked until 60 years. He reminded that Chak and Tang were not cross-examined about the usual retirement age of scaffolders, their attrition rate, and wastage due to scaffolders leaving the trade etc.

340.  Mr Chong’s only answer was that Mr Sakhrani did not dispute the Deceased would remain in the scaffolding industry as long as he was of working age, and Chak / Tang did not say the Deceased was not interested in working as a scaffolder. As Mr Sakhrani submitted, such contentions sought to reverse the burden of proof when the burden fell on P to prove and not for D2-D5 to disprove P’s pleaded allegation or the Mother’s bare assertion. There was force in Mr Sakhrani’s evidential complaints in the above paragraph.

341.  Mr Chong bravely went on to submit that this court was entitled to determine the Deceased’s notional retirement age without any specific evidence from Tang who did not claim (a)  to have industry-wide information on the retirement age of scaffolders let alone (b)  to know the retirement age of scaffolders 30 years from the Assessment Hearing, and in the absence of any untoward evidence it was likely that the Deceased would have continued with scaffolding work for another 35 years until his retirement.

342.  In my view, the point in (b)  above was a poor one since no one would be expected to be able to give factual evidence on retirement ages 30 years into the future, but it did not mean the court will shy away from such exercise. Indeed, notwithstanding the lacuna in P’s evidence, it was inevitable that the Deceased would retire from scaffolding work at some notional future time, and the court had to do the best it could on the available materials.

343.  In Lee Yam Kan v Ng Pui Kien trading as Wing Sing Scaffolding Engineering & anor,[106] the plaintiff was an experienced scaffolder whose average monthly earnings at the time of the accident as found by the court were $20,000 (paragraph 108). At the time of trial, for a scaffolder like the plaintiff, his daily wages would be $1,000 (as compared with $800 at the time of the accident), which would have been an increase of 25%, and the daily wage of a senior scaffolder would be up to $1,200/day (paragraph 109). DHCJ Paul Lam SC noted there was no fixed retirement age for scaffolders (paragraph 139), but the plaintiff gave evidence that scaffolders could work up to the age of 65 years but might work lesser number of days, and the defendant’s witness admitted there were scaffolders who worked even up to the age of 66-67 years but usually they would retire at around 61 years (paragraph 139). Having weighed the evidence, DHCJ Paul Lam SC accepted the plaintiff would have been able to work until the age of 65 years, but it was likely that he would have reduced the number of working days gradually after he had passed the age of about 61 years. Whilst it was impossible to predict the extent of such reduction, the learned judge adopted a broad brush approach and discounted the award for loss of future earnings by 10% (paragraph 40).

344.  There could not be any dispute that scaffolding work required not just technical skill but also physical strength and stamina. The need to work at height and to carry heavy materials (eg bamboo poles)  spoke for itself. Whilst it is not appropriate simply to adopt a case authority for factual findings, the factors debated in Lee Yam Kam must, as a matter of logic and common sense, be relevant. Those considerations recognised there could not be sweeping generalisation of the retirement age of scaffolders for some would retire at 65 years, some earlier and some later. It was also sensible that as a result of the job demands and the physical condition of scaffolders as they age, there was real likelihood that a scaffolder (no matter how experienced)  might reduce his workdays/ month or might change to lighter or at least less onerous work after 60 years and before actual retirement at, say, 65 years with consequent reduction in income during those intervening years. I find this to be particularly so with semi-skilled Intermediate Grade scaffolders who were more likely to be subject to competition from younger, less experienced and less paid scaffolders than skilled Master Grade scaffolders whose expertise would be harder to replace. To take into account such real possibility of reduced workdays/month or change to lighter work at less pay (and consequent reduction in income), I adopt a broad brush approach and find the Deceased would have retired at 65 years (but with less workdays/month or a lighter job after 60 years).

345.  But in the end, the above finding as to the Deceased’s notional retirement age was not materially relevant to the Mother’s post-trial loss of dependency. In light of my finding that the Deceased would have given pocket money in a modest sum and not household financial provision (家用)  of a substantial amount to the Mother, the Deceased would likely have sustained payment of this pocket money for the Mother whatever work he did even if he left scaffolding at, say, about age 60 years.

346.  Assessment methodology  Future loss of dependency is assessed by reference to (a)  the multiplicand being the recurrent annual amount of loss of dependency, and (b)  the multiplier being the factor for calculating the period for which the loss could be expected to continue.[107]

347.  Multiplicand The RSoD averred that but for the Accident the Deceased would have provided no less than 50% of his income to support the Mother until his retirement, and his expected monthly earnings as a Master Grade scaffolder (including MPF)  would have been $46,728.98 as at September 2020. In his written closing submissions, Mr Chong submitted that the notional monthly income of the Deceased as a Master Grade scaffolder as at August 2021 was $41,000/month, so the multiplicand for the Mother’s post-trial loss of dependency would be $246,000/year (ie $41,000 x ½ x 12 months)  (see paragraph 328 above).

348.  I am unable to accept P’s case whether as pleaded in the RSoD or set out in Mr Chong’s submissions. After all, I have found against P on the Deceased’s alleged expectation of promotion to Master Grade level, and on the Deceased’s alleged substantial household financial provision (家用)  to the Mother in the pre-trial period and in the post-trial period. Rather, I have found that but for the Accident the Deceased would have continued to give the Mother pocket money, but taking into account that his increase in income would be balanced by increase in expenses for himself, his separate household(s)  and later his own family, he would have given the Mother on average $2,000/month. For completeness, I also find the Brother would have continued to pay the Mother pocket money as well, either at $1,500/month or a bit more, which he should be able to afford on his income as shown in the 2016/2018 HKHA Declarations dated 5 October 2016 (C/259-266)  and 24 July 2018 (C/267-282).

349.  Thus, the multiplicand for the Mother’s post-trial loss of earnings would be $2,000/month x 12 months = $24,000/year.

350.  Multiplier  There was no dispute that the correct date to assess the relevant multiplier should be the date of trial. [108] According to Mr Chong, the Deceased would have been 31 years old at the time of the Assessment Hearing and in good health. The appropriate discount rate for exceeding 10 years would be 2.5%.[109] The Mother’s life expectancy was another 30.99 years (see paragraph 335 above), which expectation of life figure already took into account the risk of earlier death.[110] Both Mr Chong and Mr Sakhrani agreed that under Table 28 (multipliers for pecuniary loss for term certain)  in the Personal Injury Tables Hong Kong 2019 (“Chan Tables”)  (page 59), the relevant multiplier for 31 years at 2.5% discount rate was 21.66.

351.  Mother’s future loss of dependency  Thus, the Mother’s post-trial loss of dependency was $24,000/year x 21.66 = $519,840, which was much less than the pleaded claim of $46,728.98 x 50 % x 12 x 20.93 = $5,868,225.31 in the RSoD or Mr Chong’s calculations at $246,000 x 21.66 = $5,328,360, but more than the sum of $250,000 allowed in the Amended Answer.

VI.  LOSS OF ACCUMULATION OF WEALTH

352.  The court may award damages for the benefit of the estate if it is “satisfied that, but for the act or omission that gave rise to the cause of action, the deceased would have achieved an accumulation of wealth by the time that he would otherwise have died” (see section 20(2)(b)(iii)  of LARCO).

(a)  Past savings

353.  The Deceased had no savings to speak of at the time of his death. The balance of the Deceased’s Account as at 10 September 2014 was $1,491.96, and there were likely to be outstanding loan debts at the time of death.

(b)  Savings pattern

354.  Mr Chong submitted this was a tragic case where the Deceased unfortunately died young at the early stage of his career and before he had the opportunity to develop a clear savings pattern, but the lack of a clear pattern of savings would have not precluded an award for loss of accumulation of wealth. He drew my attention to Lam Pak Chiu & anor v Tsang Mei Ying & anor.[111] The background facts had been set out in Seagroatt J’s first instance judgment in Tsang Mei Ying & anor (administratrices of the estate of To Shing Chiu, the deceased) in paragraph 302 above. Briefly, the 42-year old deceased left behind his wife aged 38 years, a daughter who was about to take up employment and a young son (page 41). He earned $16,708/month, gave $8,000/month to his wife, paid $1,132/month for rent, spent about $500/month on utilities, gave $2,000/month to his parents, spent about $1,000 on miscellaneous family matters, and spent the remaining $4,000/month odd on his personal expenses (page 41). His wife, who was employed, contributed $3,000/month out of her salary of $5,300/month to household expenses (page 41). Seagroatt J found the Deceased was a frugal and responsible family man with no expensive habits, and further found he would have accumulated savings of $1,000/month by the date of trial, which would have increased by $2,000/month on his parents’ death, and by a further $3,000/month when his son reached 18, so the judge awarded $320,000 for loss of accumulation of wealth (pages 42-43)  even though the deceased had no established savings pattern at the time of his death.[112]

355.  Bokhary PJ was of the view that a pattern of savings was not an absolute pre-condition for an award for loss of accumulation of wealth (pages 39 and 44-46):

“Where a person is killed by an act or omission giving rise to a cause of action which survives for the benefit of his estate, the damages recoverable for the benefit of his estate may include an award in respect of loss of accumulation of wealth. Such an award is recoverable if and in so far as the court is satisfied that, but for such fatal act or omission, he would have left an accumulation of wealth by the time when he would otherwise have died. Section 20(2)(b)(iii)  of [LARCO] so provides.

……

It may well be that at least in the general run of cases the surest possible foundation for an award for loss of accumulation of wealth would be a pattern of savings by the deceased during his lifetime. But is such a pattern of savings an absolute pre-condition to such an award? The appellants submit that it is while the respondents submit that it is not. In determining this issue, the first thing to note is that the statute itself does not lay down any such pre-condition. All that s.20(2)(b)(ii)  requires is that the court be satisfied that, but for the act or omission which killed him, the deceased would have achieved an accumulation of wealth by the time that he would otherwise have died.

I can see no basis for saying that the absence of a savings pattern by the deceased during his lifetime invariably precludes the court from being able properly to conclude that he would have achieved an accumulation of wealth if he had lived on. Take the example of a relatively young married man or woman with a strong sense of family responsibility. With that sort of person there would be strong prospects of achieving an accumulation of wealth at the end of a life of average span for a person like him or her. Nevertheless the financial responsibilities which such a person had faced may have prevented him or her from accumulating any wealth before an early and untimely death. But that does not mean that an accumulation of wealth would not have been achieved given an average life span.

Assessing damages is seldom easy. And it tends to be especially difficult where future loss is involved. The judicial statements to that effect are legion. And they are readily explainable. Weighing evidence to decide what in all probability had actually happened is difficult enough. It is only natural that the difficulty is far greater where the determination to be made is of what would have happened but for the event giving rise to liability. For then the court is often heavily engaged in pondering the well-nigh imponderable. It is often driven close to crystal-gazing. All of these difficulties are in full attendance where the assessment of an award for loss of accumulation of wealth is concerned. But the mere fact that an assessment is extremely difficult does not relieve the court of its duty, or deprive it of its ability, to make that assessment. The court, in the time-honoured expression, does the best it can with what it has.

……

For the reasons given above, I reject the notion that a pattern of savings by the deceased during his lifetime is an absolute pre-condition to an award for loss of accumulation of wealth. Even in the absence of any savings during the deceased's lifetime, there may in any given case be, on a balanced view, real prospects of an eventual accumulation of wealth such as to justify an award for loss of accumulation of wealth. The court then assesses the award in accordance with those prospects as it sees them.

…… But I consider it legitimate to say, in favour of the award in the present case, that the further one has to look into the future the more difficult it naturally becomes to find real prospects, as opposed to a mere speculative possibility, of a future eventuality of the sort here in question.

Having come on first principles to the conclusion that a pattern of savings is by no means an absolute pre-condition to an award for loss of accumulation of wealth, I should mention that there are in fact many cases in which judges and masters have made such awards even though the deceased had not made any savings during his or her lifetime. ……”

356.  In Li Hoi Suen v Man Ming Engineering Trading Co Ltd,[113] the deceased was a former Mainland China resident, and was 21 years old when he passed away. He migrated to Hong Kong to join his parents, and took up employment as an air-conditioning engineering apprentice. When he completed his apprenticeship, he became an air-conditioning technician and was required to work in Mainland China most of the time, very often all by himself (and he stayed in Jieyang City for 7-8 months a year living in hotel or rented accommodation with cost reimbursed by his employer)  (page 91). By the time of his death, the deceased had worked for the defendant for more than 4 years, the last 2 years as air-conditioning technician. He had a steady girlfriend, but did not manage to save any significant sum of money (having only $8,272 in his bank account and no other property)  (page 125). In that case, DHCJ A To said as follows:

“95. I think Master Jones’ rigid approach [in Wai Kang Kwan v Wong Wing Hong [1989] 2 HKC 585] is particularly inapplicable to people who unfortunately died young. During the initial stage of their career, people do not usually earn much and cannot save much. It is wrong and unjust to jump to the conclusion that they have no saving pattern. While the court should not indulge in speculation and in making wild assumptions, the court must also be realistic. In the usual course of things, it is more likely than not that a person would develop a saving pattern than becoming a spendthrift. Where there is no evidence which suggests that a person would not make any saving, the court should draw the appropriate inference of what would have happened in the normal course of event than to adopt an unduly rigid approach which is contrary to common sense and common experience. I for one would not readily come to the conclusion that a young person has no saving pattern unless there is some evidence which permits me to come to that view.

96. In my view, the Deceased made impressive achievement from his humble background. He was hardworking and devoted to his work. I have no doubt that he had potential for further advancement but for this tragedy. His career did not actually begin until he completed his apprenticeship in 1999. He did not make much saving during those two initial years. He spent a lot of money in China. But that does not mean in course of time when he would have grown older and acquired a more mature sense of responsibility he would not start to develop a saving pattern. I think it is inappropriate to gauge the Deceased purely on the basis of his lack of saving at the early stage of his career. The evidence suggests he had potential to earn more and to develop some saving pattern.” (my emphasis)

357.  At the end of the day, as DHCJ Benjamin Yu SC explained in Mok Merla & Mok Siu Lin, co-administrators of the estate of Mok Tat Fai (deceased)  v Ocean Crown Transportation Limited & anor,[114] although what the court looks for and evaluates is the chance, whether more or less than even, of savings and accumulation of wealth, “…… [this] does not mean, however, that in every fatal accident case the Court must give some award for loss of accumulation [of wealth]. The Court can only do so where there is, adopting a balanced view in any given case, a “real prospect” of eventual accumulation of wealth, see per Bokhary PJ in Lam Pak Chiu at p.203G-H” (paragraph 48). Likewise in Ho Pang-lin and Wong Hop-hing, co-administrators of the estate of Wong Hup-yim, deceased v Ho Shui-on & anor,[115] DHCJ Jones held that a notional or conventional award for accumulation of wealth should not be made, and “[the] court must be “satisfied” that the deceased would have accumulated wealth by the time of his natural death. The court’s conclusion to this effect must be based on something in the facts which persuade it to that conclusion ……” (page 316).

(c)  Quantification methodology

358.  In Lam Pak Chiu & anor, Bokhary PJ considered the question of principle as to whether awards for loss of accumulation of wealth ought to be calculated on a global basis or by the multiplier and multiplicand method (pages 48-49). He noted the first instance judge in that case (ie Seagroatt J)  used the multiplier and multiplicand method or at least elements thereof in calculating the loss of accumulation of wealth award which he made in the case (see paragraph 354 above)  (page 49). But for awards made by judges/masters for loss of accumulation of wealth in previous cases, some were made on global basis (page 49)  and others made by the multiplier and multiplicand method (pages 49-50).

359.  Bokhary PJ went on to explain as follows:

“Neither the global basis nor the multiplier and multiplicand basis was resorted to in Dall v Choy Ying Wai [1999] 1 HKLRD 705. Deputy Judge Lugar-Mawson found that at the notional time of the deceased’s death he would have had an interest worth £110,000 in one property in the United Kingdom and an interest worth £75,000 in another property there. The combined value of these two interests, being £185,000, was then discounted by 30% for early receipt to £129,500. And the equivalent in Hong Kong dollars of this discounted sum at the exchange rate of HK$13 to £1, being $1,683,500, was then awarded for loss of accumulation of wealth.

Finding a multiplier for a loss of accumulation of wealth award would present no greater difficulty than finding a multiplier for a loss of dependency award. But finding a multiplicand for a loss of accumulation of wealth award would be very difficult, to say the least. Except in cases where there is something more to go on than one has in those cases where the court is driven to taking an almost arbitrary percentage of earnings as a multiplicand, judges and masters calculating such awards would be well-advised to make global awards. This is not to say that a conventional figure across the board ought to be adopted. Nor is it to say that a figure should be plucked out of the air. Even where the exercise does not lend itself to the precision of a multiplicand as in loss of dependency claims, some process of ratiocination must underlie the global award made. And it is necessary that the judge or master indicate at least in general terms how the award has been assessed in the light of the relevant factors, including expenditure during the retirement years.”

360.  In the RSoD and Mr Chong’s opening submissions, P adopted elements of the multiplier and multiplicand method (see Parts VI(h)  and VI(j)  below). However, by his written/oral closing submissions, Mr Chong submitted that the better methodology to be adopted for the present case was the global approach due to various imponderables in the “lost years” (eg whether the Deceased would have been married and/or would have had children, whether he could/would set up his own construction company, what would have been his post-retirement expenses etc)  with the multiplier and multiplicand method as fallback methodology (see Part VI(i)  below).

361.  Mr Sakhrani also agreed it was well established that where there were too many imponderables, it might make the conventional computation (ie the multiplier and multiplicand method)  inappropriate, and the court was entitled to adopt a broad brush approach to arrive at a fair figure. He referred to Blamire v South Cumbria Health Authority[116] and Goldborough v Thompson and Crowther[117] in support.

362.  In Blamire, a nurse injured her back when she was 21 years old. She was off work for a period, then returned to lighter duties but was unable to continue, changed to work part-time in a residential home, and then gave up such work to have a 2^nd child. But for the accident she would have pursued a life-long career in nursing, but as a result of the accident she would probably have to work as a secretary with greater difficulty in obtaining such work. It was held that the judge was entitled to reject the conventional multiplier and multiplicand method as inappropriate given the number of imponderables in that case, eg uncertainties as to the amount the nurse would have earned if uninjured, whether she would have had more children and/or whether she would have taken only part-time work. There was also uncertainty as to the likely future pattern of her earnings. The English Court of Appeal held there was no perfect arithmetical way of calculating compensation, so the trial judge was bound to look at the matter globally and assess the present value of the risk of future financial loss.

363.  In Goldborough, the plaintiff roofer was injured as a result from fall from ladder. He claimed damages for pre-trial loss of earnings and loss of future earning capacity. The defendant appealed against both awards. In respect of the award for loss of earnings, it was argued that the plaintiff would have been made redundant in any event and he was fit for lighter work. In respect of the award for loss of earning capacity, the first instance judge was criticised for adopting a broad brush approach without using multiplier and multiplicand that required him to make primary/ secondary findings of fact about the plaintiff’s future ability to obtain work, which he failed to do. The English Court of Appeal held that the judge was justified in (a)  awarding the full figure without discount for loss of earnings as the plaintiff was a good worker who would not have suffered significant wage loss between employments even when made redundant, and (b)  (upon citing Blamire)  adopting the approach for loss of future earning capacity as he did since he did made primary and sufficient secondary findings of fact to enable him to estimate the risk of loss of future earnings and the plaintiff’s vulnerability in the market.

364.  In Cheung Kai Chi v Chun Wo Contractors Ltd,[118] an experienced welder was fatally injured. The Court of Appeal referred to Lam Pak Chiu & anor and held that the relevant factors that the court had to take into consideration for assessing loss of accumulation of wealth were (a)  the savings the deceased could have made at the end of notional working life, (b)  the depletion of his savings while he was in his notional retirement, and (c)  the discount for early receipt. In his first instance judgment,[119] L Chan J found (i)  the deceased and his wife would have saved $24,000/year before September 2004, (ii)  there would have been no savings between September 2004 and September 2008 when the younger son received tertiary education, (iii)  there would have been resumption of savings at $2,000/month after the younger son completed his degree course, and (iv)  such savings would have increased to $8,500/month when the younger son would have found work by April 2009, so the principal of such savings with MPF contributions would have been $216,000. Further, the children would have their own financial commitments when they had their own families, so the learned judge found that but for the accident it was more likely than not that part of the savings would have to be used for the maintenance of the deceased and his wife even though some income would have been generated on the savings. By adopting a rough and ready approach, L Chan J awarded $450,000[120] for loss of accumulation of wealth.

365.  On appeal, Yeung JA (as he then was)  (with whom Tang VP (as he then was)  and Yuen JA agreed)  accepted that the court could only adopt a rough and ready approach as a result of imponderables in relation to the level of savings, and said as follows at pages 121-122:

“82. There is no doubt that the deceased was a dutiful husband and father and that he had done much for the well-being of the family.

83. However, the optimistic suggestion that the two elder children would make substantial contribution towards maintenance of the family is a matter of conjecture.

84. The possibility of the couple having to assist their children at the early stage of their setting up their own families could certainly not be ruled out, in which event, the couple’s savings would be been significantly depleted.

85. There is the possibility that the deceased might want to retire earlier after the three children had all grown up and that the couple would be sensible enough, after his retirement, to be more generous to themselves. It is also likely that the couple might have to spend large sums as medical expenses.

86. All such possibilities perhaps explain why it is difficult to determine the level of savings in a fatal accident case, and the court can only adopt a rough and ready approach.

87. The three cases, (unrep., HCPI 588/1999, [2000] HKEC 1008), (unrep., HCPI 593/1999, [2000] HKEC 1010)  and (unrep., HCPI 598/1999, [2000] HKEC 1012), relied on by Ms Chan to show higher awards of loss of savings of $1.8 million, $0.9 million and $1 million involved persons of much younger ages than the deceased, or persons earning higher incomes, or both.

88.  We have carefully considered the Judge’s approach to the issues. While the Judge’s assessment may not be very generous, there is no indication that he had acted upon some wrong principle of law, or that the amount he awarded was so very small as to make it an entirely erroneous estimate.”

(d)  Rate of return

366.  In Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased, Bharwaney J explained that once the notional savings of the deceased over his notional working life (ie from the time of death to natural retirement)  had been assessed, “the next stage is to determine whether this accumulated wealth would grow, or be depleted, by the time of natural death” (paragraph 58). As the savings were likely to be invested for the benefit of the deceased, “[these] invested savings would grow, during the period he was accumulating his savings, as well as during the period, after his retirement, when he would have stopped saving” (paragraph 59).

367.  The learned judge explained that “[the] current practice is to assess multipliers, and discounts for accelerated receipt, on the assumption that prudent investments made of the damages awarded to victims of torts would yield an annual return of 4.5% per annum (see Cookson v Knowles [1979] AC 556 and Chan Pui Ki (an infant)  v Leung On [1975] 3 HKC 732). Where a court finds that the deceased would, but for the accident, have accumulated wealth from the date of his death to the date of his natural retirement and that he would have invested the wealth he accumulated, then, in order to be consistent with the current practice, it is only right that the court would assume that such investments would yield a similar rate of return of 4.5% ……” (paragraph 60). In my view, such explanation showed very clearly that the 4.5% rate of return that Bharwaney J adopted in that case was the rate of return on prudent investments of damages for future losses, and not, as Mr Chong submitted in his oral closing submissions, reflection of salary increase over the deceased’s notional working life from the date of death to his natural retirement.

368.  About 2 years after Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased was decided, Bharwaney J in Chan Pak Ting v Chan Chi Kuen (No 2)[121] updated the real rate of return with a 3-phased approach dependent upon the number of years for which future provision had to be made for the plaintiff’s needs, which led to discount rates of -0.5% for up to 5 years, 1% for up to 10 years and 2.5% where the period exceeds 10 years. In Kan Wai Ling & anor, Bharwaney J adopted the discount rate of 2.5% for future losses in excess of 10 years in assessing the award for loss of accumulation of wealth (page 396). Mr Chong had not shown any justification for adopting the 4.5% rate of return in his primary formula under the multiplier and multiplicand method for quantifying loss of accumulation wealth that he put forward in his oral closing submissions (see paragraph 402 below)  in contra-distinction to the alternative formula based on the 2.5% rate of return that he also put forward in his oral closing submissions (see paragraphs 401 and 403 below).

(e)  Discount factor

369.  Section 20(2)(b)(iii)  of LARCO provides that damages for loss of accumulation wealth “shall be subject to such deduction as the court considers it just to make in the circumstances of any particular case on account of the accelerated receipt of that wealth and in order to avoid over-compensation”. In Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased, Bharwaney J said “[if] there is a net balance [of accumulated wealth] at the time of natural death, this net balance, which is a future loss sustained by the estate of the deceased, must be discounted for accelerated receipt”, which is a discount for accelerated receipt of a future lump sum loss rather than for loss of a future continuing stream of income (paragraph 58). In that case, “[the] remaining net balance on the notional date of death would then have to be discounted for accelerated receipt of almost 18 years from the date of natural death to the date of judgment. A discount of about 55% would be appropriate for this length of time (see Personal Injuries Tables Hong Kong 2005 Edition at p.66)” (paragraph 62).

370.  Here, on the basis that the Deceased would have been 31 years old at the time of the Assessment Hearing, he would have a life expectancy of 52.2 years pursuant to the Life Tables,[122] which would give a discount factor of 0.276 or 27.6% (see Table 27 of the Chan Tables at page 58). In the course of his oral closing submissions, Mr Chong accepted the 27.6% discount factor should be applied to the assessed net balance of accumulated wealth at the time of natural death.

(f)  Multiplier and multiplicand method

371.  The multiplier and multiplicand method was well illustrated by the assessments of awards for loss of accumulation of wealth in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased (paragraphs 57-64 with re-calculations done in Annexes 1 and 4 in Kan Wai Ling & anor at pages 395, 397, 399-400 and 402)  and Kan Wai Ling & anor (pages 392-397). Such method can be broadly summarised as follows:

(a)	The starting point was to have regard to the likely savings the deceased would have made from the time of death to the time of natural retirement had the fatal accident not occurred. Where the “Harris approach” and the conventional percentages were adopted for assessing loss of dependency, one starts with the conventional percentage deduction of either 33.33% (without children)  or 25% (with children)  for the deceased’s own use during relevant pre-trial and post-trial periods. Under the traditional method, the portion of the deceased’s income for his own use would have to be worked out on the facts. But for the fatal accident, the deceased would have expended some of these monies for personal expenditure, eg transport, meal and other personal expenses, and deduction had to be made to ascertain the pre-trial and post-trial savings having regard to his employment, frugality, responsibility, habits, lifestyle and/or other relevant factors. DHCJ Jones in Ho Pang-lin and Wong Hop-hing, co-administrators of the estate of Wong Hup-yin, deceased considered the adoption of a conventional 10% of net income as savings as spurious and unnecessary (page 317), and Bohkary PJ in Lam Pak Chiu & anor also opined that “[this] is not to say that a conventional figure across the board ought to be adopted” (page 50). But Bharwaney J in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased (paragraph 57)  and Kan Wai Ling & anor (pages 393-394)  adopted a 10% savings rate where there was no established pattern of savings but the evidence clearly showed that the deceased would likely have made some savings from his income. In Kan Wai Ling & anor, the learned judge in citing the “new method of assessing this award” that he adopted in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased,said that “[where] there is no established pattern of savings but the evidence clearly shows that the deceased would likely have made some savings from his income, which is the present case, the courts should adopt a savings rate of 10% of such income to assess this head of claim” (pages 393-394). On the aforesaid basis, the court has to find the deceased’s total notional personal savings covering the pre-trial period and the post-trial period by reference to his notional working life from the time of death to natural retirement.
(b)	The next stage was to determine whether the assessed accumulation would grow or be depleted by the time of natural death. On the “growth” side, the accumulated savings would grow during the period when the deceased was accumulating his savings as well as during the period after his natural retirement when he would have stopped saving. For such purpose, it would be assumed that such investments would yield a 2.5% rate of return (see Part VI(d)  above). On the “depletion” side, the court had to ascertain what would happen to the accumulated savings during the notional retirement years (ie from the date of natural retirement to the date of natural death, the latter to be ascertained from the deceased’s expectancy set out in the Life Tables). As Bharwaney said in Kan Wai Ling & anor, the usual situation would be that “…… no doubt …… a substantial part of the accumulated wealth would have been depleted during this post-retirement period …… on account of [the deceased’s] personal expenditure, which would exceed the assumed rate of return of 2.5% per annum on the accumulated fund” (page 396). To determine the depletion in the notional retirement years, the court would have to ascertain the remaining free balance out of the deceased’s income for his personal expenses net of savings, and then using this as reference to go on and consider whether the deceased’s personal expenses after natural retirement would likely be maintained, or it would be increased (eg being more generous to himself or herself in the golden years)  or reduced (eg curtailing expenditure to preserve savings, or not having to travel to and from work). The accumulated savings at the time of natural retirement would have to be reduced by the yearly post-retirement expenses, and then the balance would have to be increased by the assumed 2.5% rate of return to arrive at the net annual rate of reduction for the accumulated savings, which would be applied to the post-retirement years between natural retirement and natural death.
(c)	If there was a net balance at the time of natural death, this net balance (which was a future loss sustained by the estate of the deceased), must be discounted for accelerated receipt of future lump sum (and here the discount factor would be 0.276 – see Part V(e)  above). As Bharwaney J said in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased, “it is inappropriate to use a multiplier to assess [the deceased’s] notional savings over [his notional working life]. The award under this head of claim is not a lump sum award to represent the loss of a future continuing stream of income, which has to be discounted on account of accelerated receipt of the use by a multiplier. The above assessment has to be made in order to assess the total notional accumulation of wealth from the time of death to the time of notional retirement, including any likely growth of these accumulated savings from investment returns” (paragraph 58)  (see also Kan Wai Ling & anor at pages 393-394).

(g)  Global approach

372.  The authorities showed that the global approach involved 2 issues. The 1^st issue concerned whether the deceased would have accumulated wealth by the time of natural death (“1^st Issue”). After all, no award for loss of accumulation of wealth should be made unless the court finds that the deceased would have accumulated wealth by the time of his natural death. As explained in Ho Pang-lin and Wong Hop-hing, co-administrators of the estate of Wong Hup-yin, deceased, there were 3 situations a court would have to consider on the issue of accumulation of wealth (page 317):

(a)	the deceased had an obvious savings pattern;
(b)	where there was no savings pattern and no indication from the deceased’s lifestyle whether or not accumulation was likely (eg the deceased was a young student);
(c)	the deceased had no identifiable savings pattern but whose habits and lifestyle indicated a probability that he would accumulate wealth, eg if thrift, frugality, responsibility and perhaps good employment prospects emerged from the evidence, then an award should be made even if the contemporary income was fully utilised for, say, maintaining a young family (see also Part VI(b)  above).

373.  The 2^nd issue concerned what would be the amount of the award for loss of accumulation of wealth (“2^nd Issue”). There were different considerations for quantification under the 3 scenarios in the above paragraph:

(a)	In the scenario in (a)  above, the obvious saving pattern should be applied in quantifying the award, perhaps upgraded for a likely increase in disposable income (eg when dependent children became financially independent and departed from the household)  (page 317). This situation was the one in which the court would most likely be able to find on fact-specific considerations a multiplicand for a loss of accumulation of wealth award, and to proceed with assessment on the multipler and multiplicand method. In such circumstances, there would have been little practical need to resort to comparison with previous cases.
(b)	In the scenario in (b)  above, an award would be speculative and the court might decline to make an accumulation of wealth award or award only a nominal sum (page 317).
(c)	In the scenario in (c)  above, the difficulty lied not with the question whether wealth would have been accumulated (ie the 1st Issue), but with the matter of quantifying the award for loss of such wealth (ie the 2nd Issue)  (page 317). In this situation, finding a multiplicand might be difficult, and a global award might be appropriate (page 318)  (see also Bokhary PJ’s similar views in Lam Pak Chiu & anor at page 50 – see paragraph 359 above). However, as seen in paragraph 371(a)  above, there was judicial debate as to whether it would be appropriate, when there was little evidence of the level of savings, to adopt a savings rate of 10% of net income or rather to make a global award on the available evidence.

374.  Importantly, although one might adopt the global approach when there was no specific evidential basis for ascertaining the multiplicand (eg when quantifying the accumulation in the 3^rd scenario in paragraphs 372(c)  and 373(c)  above), Bokhary PJ in Lam Pak Chiu & anor made clear it should not be a figure plucked out of the air, and “some process of ratiocination must underlie the global award made. And it is necessary that the judge or master indicate at least in general terms how the award has been assessed in light of the relevant factors, including expenditure during the retirement years” (my emphasis)  (page 50 – see paragraph 359 above). Thus, one could not come to a quantum figure by blithely resorting to the global approach, thinking that post-retirement expenses (a key factor in assessing accumulated wealth if any)  could be brushed aside as speculative distant future imponderables.

375.  In Lam Pak Chiu & anor, Litton NPJ went on to observe that “[where] a tribunal is sailing into unchartered waters [ie assessing loss of accumulation of wealth], it would be wise to take as many bearings as possible” (page 53), so he recommended that (a)  “[a] good way of testing the award is to compare it with awards in previous cases, where the circumstances of the deceased persons are not wholly dissimilar” (my emphasis)  (page 52)  (“1^st Cross-check”), and (b)  where “[a] judge, after heard all the evidence, may have a tenatative global sum in mind … [and where] it is possible, it may be desirable for him to cross-check this with the multiplicand-multiplier formula, but remembering that this too is, by its nature, an inexact exercise. If the result figures more or less coincide, the judge can be reasonably confident that his global sum is not far off the mark” (my emphasis)  (page 53)  (“2^nd Cross-check”).

376.  Litton NPJ’s observations did not create any new methodology in assessing an award for loss of accumulation of wealth. All Litton NPJ said was that the court, after having come to a “tentative global sum in mind”, presumably by the process of ratiocination as explained by Bokhary PJ in relation to the 2^nd Issue (see paragraph 374 above), could test the vitality of such tentative global sum by the 1^st Cross-check (ie comparing it with the awards in previous cases “where the circumstances of the deceased persons are not wholly dissimilar”)  and/or the 2^nd Cross-check (ie comparing it with the award worked out under the multiplicand and multiplier method), always keeping in mind these were all inexact exercises (see above paragraph). In my view, it would be inappropriate (and it was certainly not Litton NPJ’s guidance)  for the claimant to simply address the 1^st Issue by showing the deceased would have accumulated wealth by the time of natural death, then skipping the 2^nd Issue that required harnassing evidence to facilitate arriving at a tentative view of a global sum for such loss, and going straight to the 1^st Cross-check to draw on previous cases to come up with the amount of accumulated wealth at natural death in the subject case.

377.  As seen below, P’s case on loss of accumulation of wealth evolved from her original stance in the RSoD, to Mr Chong’s position in his opening submissions, and then to his position in his written closing submissions, and adding to it his alternative position in his oral closing submissions. Since none of these positions had been abandoned, I will deal with them but shall focus more on the latest positions. Nevertheless, the metamorphosis of P’s position was quite perplexing as notwithstanding such evolution, P consistently maintained she was entitled to an award of $1,300,000 under this head of claim.

(h)  RSoD

378.  In the RSoD, P averred that after contributing no less than 50% of his income to the Mother and providing for his own personal expenses, the Deceased (but for the Accident)  would have been expected to have been able to (a)  save up no less than 20% of his income at the notional date of judgment, and (b)  invest his savings from time to time with rate of return of no less than the inflation rate. P pleaded that but for the Accident the Deceased would have been expected to live on his personal savings for another 21 years (ie until 2071)  after his notional date of retirement at age 60 years.[123] So taking into account the above factors (and on the basis that the Deceased would have advanced to Master Grade level by September 2015 and would have earned $46,728.98/month (inclusive of MPF)  by September 2020), P averred that a sum of no less than $1,300,000 would have been awarded as loss of accumulation of wealth. On the other hand, D2/D5 by the Amended Answer put P to strict proof, and averred P should not be entitled to damages under this head of claim.

379.  On P’s pleadings, 50% of the Deceased’s notional monthly income would have gone to the Mother’s post-trial dependency, and he would have saved 20% of such notional monthly income, leaving only 30% for himself and eventually his own family in the post-trial “lost years”. Bearing in mind the Deceased’s established living pattern at the time of his death (ie (a)  having a steady girlfriend (such that Mr Chong accepted “they were very close, as it’s like as if they got married ……” – see paragraph 309 above), (b)  having moved out from the Flat, (c)  having established outside communal household(s), and (d)  living on the fullness of income and debt)  as well as his personal unalienable needs (eg transport fees, clothing expenses and breakfast expenses), his expenses for a reasonably satisfying and enjoyable life (eg some social activities and entertainment), his aspirations for his own future life including the probability of matrimony and/or children (see paragraph 319 above  in which I have found matrimony and/or children would have been very much on the cards for the Deceased), and his financial responsibilities (eg the need to trim expenditures for stay off loans/debts, the possible need to support wife and children etc)  in the post-trial “lost years”, I find the suggestion of notional accumulated savings at 20% of the Deceased’s income as an Intermediate Grade scaffolder (and not as a Master Grade scaffolder as I have found in Part V(a)  above)  plainly over-ambitious and unrealistic.

(i)  Global approach – Mr Chong’s closing submissions

380.  In his written/oral closing submissions, Mr Chong advocated the global approach. He submitted (a)  the Deceased would have accumulated wealth by the time of his natural death because his family background and career trajectory were even stronger than those of the deceased in Li Hoi Shuen, and (b)  “in line with the approach suggested by the Court of Final Appeal in Lam Pak Chiu” seen in Litton NPJ’s observations set out in paragraph 375(a)  above, the pleaded loss of accumulation of wealth of $1,300,000 was modest and lower than the previous cases he cited,[124] so this court should assess and award accumulated wealth at $1,300,000.

381.  Mr Chong’s submissions in (a)  above went to the 1^st Issue (see paragraph 372 above), and his submissions in (b)  above went to the 1^st Cross-check (see paragraph 375(a)  above), but he did not squarely address the 2^nd Issue (see paragraph 374 above). However, as explained in paragraph 376 above, P could not just deal with the 1^st Issue and then jump to the 1^st Cross-check without addressing the 2^nd Issue that required formation of a “tentative global sum in mind” for loss of accumulation of wealth through a process of ratiocination on the available evidence, which assessment would have to be explained “in light of the relevant factors, including expenditure during the retirement years” (see paragraph 374 above). It was only after coming to such “tentative global sum in mind” that one could proceed with the comparative exercise, ie the 1^st Cross-check to compare the “tentative global sum in mind” with the awards in previous cases “where the circumstances of the deceased are not wholly dissimilar” in order to test the former’s vitality (see paragraphs 375-376 above).

382.  Turning to Mr Chong’s submissions in paragraph 380(a)  above for the 1^st Issue (see paragraph 372 above)  as to whether, despite absence of saving pattern on the part of the Deceased, there was sufficient evidence of his work, habits and lifestyle that would indicate a probability he would have accumulated wealth, Mr Chong argued that the following factors pointed to the likelihood of accumulated savings/wealth by the Deceased (and I also set out my views below):

(a)	It was said the Deceased showed a clear sense of family responsibility and filial duty, having come out of jail, having apparently turned his life around and being committed to take care of his aging Mother and the Sister as sole breadwinner for the joint household, which therefore evinced a projection of the Deceased developing a sense of maturity. I have dealt with this contention in paragraph 221(b)  above, and reiterate my views therein. Whilst I accept the Deceased had a steady girlfriend, enjoyed a stable job, and established outside communal household(s)  after he was released from prison and Phoenix House, and I have also found he was not uncaring of the Mother and the Sister in that he gave pocket money to both of them, I do not agree he was the “sole breadwinner” of the joint household of the Mother, the Deceased and the Sister. First, I have rejected the contention that the Deceased was a member of such alleged joint household, and I have found he had moved out from the Flat and established separate communal household(s)  outside the Mother’s home (see Part IV(j)  and (l)  above). Secondly, the Deceased could not have been the “sole breadwinner” of the Mother’s household for the Mother and the Sister had other unearned income, ie (i)  monthly CSSA payment, (ii)  government housing allowance for rent-free public housing, (iii)  support from the Father for part of the Sister’s living expenses up to 2016, and (iv)  pocket money that the Brother gave to the Mother. I refer to my discussions and findings in Part IV above.
(b)	It was said that starting 2 months before his death, the Deceased purchased an insurance life policy (ie the HSI Policy). It was further said the HSI Policy sufficiently proved financial planning on the part of the Deceased that demonstrated a propensity to save, which was a relevant factor in determining loss of accumulation of wealth.[125] It was also said but for the Accident the Deceased would have become a Master Grade scaffolder later on in life earning more salary, so but for the Accident he would have bought more insurance, and there would have been larger insurance pay-outs upon his death. I have considered Mr Chong’s contentions about the life insurance policy(ies)  in paragraphs 126, 218 and 249-250 above, and I reiterate my views therein. I have accepted that purchase of the life insurance policy(ies)  reflected some degree of financial planning triggered by realisation of the inherent dangers of scaffolding work, but I have also explained that such financial planning must be considered against the practical reality that the Deceased lived beyond his means, and had to rely on loans/debts to tide him over from payday to payday. Indeed, his average monthly loan repaymets of about $2,500/month were higher than the monthly premium of $396 he paid for the HSI Policy. So unless he could wean off loans/debts and start to live within his means, it would not have been easy to make meaningful savings despite any goodly intent. I also reiterate my views in paragraph 319 above on the likely evolving circumstances in the post-trial period. The Deceased was a young adult wage-earner with a steady girlfriend, his own life outside the Mother’s home and communal/shared outside household(s). It was likely that he would have continued to live as he did until he contemplated entering matrimony (or more permanent cohabitation)  and taking on a family man’s responsibilities for wife (or de facto wife)  and/or children. I have found matrimony and children would have been very much on the cards for the Deceased, but time would be needed for him to wean off loans/debts, to trim expenditures and to make meaningful savings, and by then he might have need to provide for his own family. Even though the Deceased’s income (as an Intermediate Grade and not Master Grade scaffolder)  would have been expected to have increased, there might be other viccisitudes of life (see paragraph below). Further, the Deceased also had to provide pocket money of $2,000/month for the Mother in the post-trial period, which would come to $2,000 ÷ ($1,000/month x 21.6 workdays/month)  = 9.25% of his post-trial monthly income. Further, I have found there was insufficient evidence to show the Deceased would have advanced to Master Grade level (see Part V(a)  above), so he would not have enjoyed the significant hike in income that promotion would have brought. On his more modest income as an Intermediate Grade scaffolder, it would not have been as easy for the Deceased to make significant savings or to purchase more substantial insurance, especially if he ceased or reduced his borrowings and had to maintain his own family. Further, the suggestion of buying more insurance policies and having larger insurance pay-outs was not understood. Had the Deceased lived and bought more insurance but (as usually would have been the case with more substantial life insurance policies and where the insured had wife and/or children)  nominated beneficiaries, the lost opportunity as a result of early death would have been a loss to the probable beneficiaries but not to the Deceased’s estate. But even if there were no named beneficiary in the insurance policies he might have purchased, death benefits under a life insurance policy would have been payable to Deceased’s estate upon his death, whether it be early death or natural death. In either case, the death benefit pay-outs under the CIL Policy (if it were the Deceased’s life insurance policy)  and/or the HSI Policy (it there were pay-outs as P alleged)  (see paragraph 387 below)  were materialisation rather than loss of wealth for the Deceased’s estate, and there was no evidence before this court of any material difference between the death benefits payable upon early death and those upon natural death. As regards other life insurance policy(ies)  that the Deceased might have purchased (but for the Accident)  without naming any beneficiary, there was no evidence that (i)  the probable premium payments regarded as savings would have exceeded the notional total savings of 10% of income which Mr Chong urged me to adopt and/or (ii)  the rate of return on such policy(ies)  would have exceeded 2.5% bearing in mind that such rate of return was premised on prudent and conservative investments.
(c)	It was said the Deceased demonstrated career ambition by “having already taken steps to work towards the Master Grade Scaffolding Certificate”, and “[one] cannot not rule out the possibility that he could go on to own a construction company”, so with such higher income potential he would have had the capacity to clear off his existing debts, start saving and accumulate wealth. I disagree as I have found there were insufficient materials before this court to demonstrate the Deceased would have advanced to Master Grade level (see Part V(a)  above, especially paragraphs 241-247 above).
(d)	It was said the Deceased was a frugal person without any expensive hobbies and without need to support his girlfriend, and “from his low-level of expenditure that appeared to be decreasing, and the potential surge of remuneration in his occupation, the court should find that the Deceased would have accumulated savings”. I have dealt with the Deceased’s hobbies and his expenditures vis-à-vis his girlfriend in paragraph 188 and Part IV(j)  above, and reiterate my discussions and findings therein. In short, I was not convinced that the Mother’s evidence as to the Deceased’s personal expenditures and/or hobbies was reliable, that the Deceased would have spent as little as the Mother suggested, that he would have lived off his girlfriend and/or her family, that he would not have expenses one naturally expected a young adult wage-earner with a steady girlfriend to have (eg reasonable expenses on outings, social activities, entertainment and perhaps small gifts), and that he would not incur shared/communal expenses for his outside household(s). I have rejected any “potential surge of remuneration in [the Deceased’s] occupation” (see (c)  above), and I am unable to see any or any reliable evidence that his expenditure “appeared to be decreasing” (see paragraph 319 and (b)  above).

383.  Mr Sakhrani reminded that the Deceased had practically no savings to speak of when he died, and submitted that P’s claim bore no semblance to reality as it totally eclipsed the Deceased’s personal needs, financial responsibilities, and aspirations for his own future life, and carried the danger of not taking into account life’s viccisitudes. It was said there was little to show (a)  how long the Deceased would have continued to borrow money to sustain himself, (b)  what were his lifestyle and spending habits outside the Mother’s home, (c)  how much he would have expended in his post-retirement years, (d)  whether and for how long his wife (whether his current girlfriend or otherwise)  would have worked after marriage (eg preferring to care for children even if she had earning capacity), (e)  whether he would have remained in the scaffolding trade (being an inherently risky job)  for the rest of his notional working life, and (f)  what were the Brother’s lifestyle and spending/saving habits that might shed light on the Deceased’s savings as the 2 brothers were close and might have shared common values. Mr Sakhrani submitted that given the many imponderables arising from the Deceased’s early death, it would be unrealistic to think he would have made substantial savings during his notional working life.

384.  Nevertheless, I do not think it was Mr Sakhrani’s contention that the Deceased would have no savings at all from his notional working life and/or no accumulated wealth at all upon his natural death. Rather, Mr Sakhrani’s stance was that any savings the Deceased might have made would have been modest, and he would likely have expended most of it (despite any conservative growth)  during his notional retirement years, leaving little behind.

385.  I bear in mind the Deceased was not simply a young adult wage-earner who did not earn much and could not have saved much in his early career. In fact, he was already into loans/debts, and living on both his income and his debt. He would have needed time to come off loans/debts, to adjust and stablilise his spending patterns, to learn to live within his means, and only then to start to save modestly at first before graduating to a more reasonable savings. But I accept the Deceased was unlikely to be a spendthrift for the rest of his life, and having a family in due course might persuade him to exercise more dutiful financial discipline to look after the well-being of his family. In the circumstances, I agree the 1^st Issue, ie whether the Deceased would have accumulated wealth by the time of his natural death, should be answered in the affirmative. The more vexed matter would be the 2^nd Issue.

386.  But Mr Chong’s submissions in paragraph 380 above did not squarely address the the 2^nd Issue (see paragraph 381 above), and in suggesting $1,300,000 should be awarded for loss of accumulation of wealth under the global approach, he resorted to elements of the multiplier and multiplicand method, eg notional earnings of the Deceased as a Master Grade scaffolder, notional retirement at 65 years as a Master Grade scaffolder, 10% savings rate over the Deceased’s entire notional working life, etc. But Mr Chong did not address the Deceased’s expenditures in his notional retirement years whether under the global approach or under the multiplier and multiplicand method, brushing it aside as a distant imponderable and thus to be ignored.

387.  In relation to the 2^nd Issue of forming a tentative global sum under the global approach that required a process of ratiocination and an explanation of the assessment (see paragraph 374 above), for reasons explained in paragraphs 382-385 above, I find it unlikely that the Deceased would have been able to have any savings in the pre-trial years because had he lived then more likely than not he would have continued in his established living pattern, drawing out all he could from the Deceased’s Account and servicing his outstanding loans until the beckoning call of matrimony (which in my view would be very much on the cards)  would have urged him to greater frugality by reducing borrowings, adjusting expenditures and weaning off loans/debts (whilst continuing to give pocket money of $1,500/month or $2,000/month to the Mother respectively in the pre-trial period or post-trial period)  with a view to eventually live within his means (ie on his income as an Intermediate Grade scaffolder)  and to start saving. I find this would have been sensible trajectory of the Deceased’s financial path in anticipation of the probable responsibilities that matrimony and/or children would bring. Although the Deceased paid insurance premium for the HSI Policy (and also the insurance premium for the CLI Policy too if such policy was his and not the Mother’s life insurance policy which I find likely to be the case)  and would have continued to do so had he lived, there had been materialisation rather than loss of accumulation of wealth as a result of the insurance pay-outs that the Mother confirmed she had received (see paragraph 382(b)  above). This was certainly the case with insurance pay-outs from CLI if the CLI Policy was the Deceased’s life policy (which I find likely to be the case). Although the Mother did not identify the insurance pay-outs for the HSI Policy, the Mother WStmt confirmed she did receive insurance pay-outs from the Deceased’s insurance policy(ies). There was no evidence before me of any material difference between the insurance pay-outs received by the Mother and the notional death benefits payable upon natural death. Indeed, the Deceased’s life insurance policy(ies)  and its/their material terms were not adduced as evidence at the Assessment Hearing.

388.  Turning to the post-trial period, whilst the Deceased (had he not died)  would not have been able to save much in early stage of marriage (probably with dependent children), the stability, maturity and responsibility needed for a family (especially with children)  might have encouraged him towards thrift, reserving expenditures largely for the family, and making some (but not significant)  savings. It would only be in the later stage of his notional working life (eg after the children finished education and became financially independent)  that he would have been able to save more, but it might be counter-balanced by an inclination to be more generous to himself (and/or his wife)  with the children all grown up. Further, he would have reduced income in the last 5 years of his notional working life due to reduced workdays/month or change to lighter work with less pay. Still further, whilst the Deceased might grow his savings with, say, interest from bank deposits and/or gains from modest stock or other conservative investments, it would have been unlikely for him with his notional income as an Intermediate Grade scaffolder to earn significant capital gains from, say, property investments. And in the Deceased’s notional retirement years, he would no longer be able to enjoy further continuing income stream, and would have to expend a substantial portion of his savings for personal expenses (or even to support the wife).

389.  The Deceased’s post-trial working life from October 2021 to his notional retirement at 65 years in September 2055 covered 34 years (see paragraphs 336-345 above), and his notional monthly income as an Intermediate Grade scaffolder would have been $1,000/month x 21.6 days = $21,600/month (see Part V(b)  above). Although I find it likely that the Deceased would have married and would have children had he lived (see paragraphs 319, 382(b), 385 and 387-388 above), and it was likely that in the last 3 years of his working life he would not have to pay pocket money to the Mother who had a life expectancy of 30.99 years in the post-trial period (see paragraph 350 above), there were imponderables as to when he might marry, when children would come along and/or when the children would become financially independent, which matters would have affected his level of savings at different stages of his notional working life (see paragraphs 383 and 388 above). Eg, savings might be reduced or there might not even be any savings if and when the wife ceased working to look after the children and there were education expenses to pay for, but there might be savings when the wife resumed working upon the children not requiring full-time attention or ceasing to be dependent. Such considerations suggested a real likelihood of fluctuation in savings pattern (if any)  at uncertain times during the Deceased’s notional working life, so I consider it appropriate to take a broad brush approach (as Bharwaney J did (see paragraph 371(a)  above)  and as Mr Chong urged me to follow (see paragraph 386 above and paragraph 401 below))  by adopting 10% savings rate for the Deceased, which would translate to notional savings for the post-trial period up to age 60 years of $21,600/month x 10% x 12 months x (34 years – 5 years)  = $751,680. In the last 5 years of the Deceased’s notional working life up to 65 years, he would have reduced income due to less workdays/month or change to lighter work with less pay, so I adopt, say, $18,000/month (ie about 16.7% reduction from his notional income as a full-time Intermediate Grade scaffolder)  as his notional income during such 5-year period, but he would not have to pay pocket money to the Mother in the last 3 years (see paragraph 389 above and paragraph 394 below), so he would have saved [$18,000/month x 10% x 12 months x 2 years] + [($18,000/month + $2,000/month)  x 10% x 12 months x 3 years] = $115,200. The above would have produced notional personal savings of $751,680 + $115,200 = $866,880.

390.  To that sum, one would have to add the MPF contributions. Neither Mr Chong nor Mr Sakhrani referred to the MPF contributions, but they necessarily represented accumulation of wealth that the Deceased (had he lived)  would have access to when he turned 65 years or (if not spent in the post-retirement years)  his estate would have been able to collect when he passed away.[126] Indeed, the Mother in the 2018 SWD Declaration dated 6 December 2018 (C/144)  stated that “19/10/2018 存入支票$23,279.86是銀行發還 [Deceased] 強積金存款”. The “Schedule of Past Monthly Earnings of the Deceased” (D/673)  (“Earnings Schedule”)  is reproduced hereinbelow:

	Wages (HK$)	Food subsidy (HK$)
September 2013	7,420 (530 x 14 days)	700 (50 x 14 days)
October 2013	12,720 (530 x 24 days)	1,200 (50 x 24 days)
November 2013	13,780 (530 x 26 days)	1,300 (50 x 26 days)
December 2013	12,190 (530 x 23 days)	1,150 (50 x 23 days)
January 2014	10,600 (530 x 20 days)	1,000 (50 x 20 days)
February 2014	8,480 (530 x 16 days)	800 (50 x 16 days)
March 2014	13,250 (530 x 25 days)	1,250 (50 x 25 days)
April 2014	11,660 (530 x 22 days)	1,100 (50 x 22 days)
May 2014	12,720 (530 x 24 days)	1,200 (50 x 24 days)
June 2014	11,660 (530 x 22 days)	1,100 (50 x 22 days)
July 2014	11,660 (530 x 22 days)	1,100 (50 x 22 days)
August 2014	11,130 (530 x 21 days)	1,050 (50 x 21 days)
	137,270	12,950
Total	137,270 + 12,950 = 150,220
Average	150,220 ÷ 12 months = 12,518.33

An extract of the “Schedule of MPF (Deceased)” (D/675-676)  (“MPF Schedule”)  is as follows:

Months	Relevant income (HK$)	Employer’s contribution (HK$)	Employee’s contribution (HK$)
01.09.2013 – 15.09.2013	4,240	212	212
16.09.2013 – 30.09.2013	3,180	159	159
……

In my view, the relevant income for calculating MPF was limited to wages exclusive of food subsidy in the Earnings Schedule (“Relevant Income”). The monthly Relevant Income (paid twice each month)  in the MPF Schedule (eg $4,240 and $3,180 for September 2013)  was the total monthly wages (exclusive of food subsidy)  seen in the Earnings Schedule (eg $7,420 for September 2013). Such monthly wages were gross income (eg daily wage rate of $530/day for 14 workdays in September 2013)  before any deduction, so they necessarily included employee’s 5% MPF contribution (eg $4,240 x 5% = $212 and $3,180 x 5% = $159 for September 2013)  and excluded employer’s MPF contribution. Further, out of the Deceased’s total income (wages and food subsidy)  of $150,220 for the 12 months prior to his death, the Relevant Income was wages of $137,270 but not food subsidy of $12,950, so the average portion of Relevant Income out of total income for the 12-month period prior to the death of the Deceased was $137,270 ÷ $150,220 = 91.4%.

391.  For ascertaining the MPF contributions in the pre-trial period, I adopt the Deceased’s median notional monthly income of ($12,518.33/month + $21,600/month)  ÷ 2 = $17,059.17, and out of that the Relevant Income was $17,059.17 x 91.4% = $15,592.08. The notional employee’s and employer’s MPF contributions for the pre-trial period of 86 months (see paragraph 334 above)  were $15,592.08/month x 5% x 2 x 86 months = $134,091.89. The notional employee’s and employer’s MPF contributions for the post-trial period of 34 years (see paragraph 389 above)  would have been [$21,600/month x 91.4% x 5% x 12 months x (34 years – 5 years)  x 2] + [$18,000/month x 91.4% x 5% x 12 months x 5 years x 2] = $785,747.52. Thus, the total notional accumulated wealth as at natural retirement (and not accumulated wealth at natural death)  would have been $866,880 + $785,747.52 = $1,652,627.52. Neither Mr Chong nor Mr Sakhrani referred to the matter of salary tax, and I shall assume none was payable on the Deceased’s notional income.

392.  Whilst there would have been some growth for the notional savings as a result of prudent investments during the Deceased’s notional working life and even in the post-retirement years, his savings would inevitably be reduced during notional retirement by expenditures for his maintenance (and/or perhaps for maintenance for the wife too)  (see paragraph 371(b)  above).

393.  Assuming that in the post-trial period both the Deceased and his wife would have worked, would have earned the same level of income, and would have contributed equally to the joint pooled household income (ie similar to the self-supporting cohabitee girlfriend alluded to in Mr Chong’s submissions), (a)  when the children were still dependent but the wife was earning as much as the Deceased, the dependency of the wife and children on the Deceased under the modified “Harris approach” as discussed in Coward and Wei Cuidan would not have been the conventional 75% but would have been reduced to 50%,[127] thus leaving the remaining 50% of the Deceased’s income as free balance available for his own personal expenses and/or personal financial responsibilities (see paragraphs 321-326 above), and (b)  when the children ceased to be dependent but the wife was earning as much as the Deceased, then under the modified “Harris approach” as explained in McGregor on Damages, the wife’s dependency on the Deceased would have dropped from the conventional 66.66% to 33.33%[128] (see paragraph 322 above), leaving the remaining 66.66% of the Deceased’s income as free balance available for his own personal expenses and/or personal financial responsibilities.

394.  Out of the free balance of 50% (or 66.66%)  of the Deceased’s notional monthly income of $21,600/month, he would have saved 10% and would have contributed 9.25% (see paragraph 382(b)  above)  as pocket money to the Mother, leaving a balance of 50% (or 66.66%)  - 10% - 9.25% = 30.75% (or 47.41%), or to put in another way, $21,600/month x 30.75% (or 47.41%)  = $6,642/month (or $10,240.56/ month). Out of the free balance of 66.66% of the Deceased’s notional monthly income of $18,000/month for the last 5 years of his notional working life, he would have saved 10% and would have contributed pocket money to the Mother for 2 more years (see paragraph 389 above), leaving a balance of 66.66% - 10% - 9.25% = 47.41% for the 1^st 2 years and 66.66% - 10% = 56.66% for the last 3 years, or to put it in another way, $18,000/month x 47.41% = $8,533.80/month for the 1^st 2 years and ($18,000/month + $2,000/month)  x 56.66% = $11,332/month for the last 3 years. In short, on the basis that the wife would have earned as much as the Deceased and they both would have contributed their income to the joint family pool (ie $21,600/month x 2 = $43,200/month), then on a rough and ready basis the Deceased would have for himself (a)  a net sum of about $6,600/month to pay his personal expenses (eg travel, clothing, grooming, outside meals, modest entertainment, etc)  when he still would have dependent children, (b)  a net sum of about $8,700/month when the children would have ceased their dependency, and (c)  about $11,000/month when he would no longer have to give pocket money for the Mother (but it would have been at that level for just 3 years). These figures were not unrealistic because by the last stage the Deceased would have been in a real position to enjoy the fruits of his labour after shedding responsibility for the children and the Mother, and it was assumed he would not have to maintain his wife who earned as much as he did.

395.  In my view, it was likely that the Deceased would have downsized the notional retirement expenses to $8,500/month given the redundancy of certain expenses (eg travel expenses for going to and from work)  and the need to conserve savings with cessation of continuing income stream, but it would have been balanced by yearning for reasonable comfort and well-being in the golden years. This view was premised on the assumed fortuity of the wife earning as much as the Deceased did and would have her own retirement expenses at the same level ($8,500/month). But to take into account the chance that the Deceased might have to maintain his wife after retirement,[129] it would be reasonable for the Deceased to further economise his personal expenses to conserve savings, so I reduce the Deceased’s post-retirement personal expenses to $8,000/month to cater for such possibility. This would have given the Deceased’s post-retirement expenses at $8,000/month or $8,000/month x 12 months = $96,000/year, or annual reduction of $96,000 ÷ $1,652,627.52 = 5.8%pa. Subject to some growth in savings for which I adopt the assumed 2.5% rate of return (see Part VI(d)  above), the Deceased’s savings would have a net reduction of 5.8% - 2.5% = 3.3%pa, or $1,652,627.52 x 3.3% = $54,536.71/year for the initial post-retirement year. Given that the Deceased’s notional retirement age would be 65 years and natural death would be 83.2 years (31 years (at date of death)  + 52.2 years (life expectancy)  – see paragraph 370 above), his post-retirement years would have spanned 83.2 years – 65 years = 18.2 years.

396.  It was plain that the Deceased’s savings would have been substantially reduced by the time of natural death (see paragraph 371(b)  below). This can be demonstrated by a quick reference to Annex 4 of Kan Wai Ling & anor (page 402)  which showed re-calculation of the reduction in accumulated savings from natural retirement to natural death in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased. There (a)  the accumulated savings were $1,514,617 (slightly less than the accumulated savings of $1,652,627.52 in the present case), (b)  the net percentage reduction was 3.5% (slightly more than 3.3% in the present case), and (c)  the retirement years were 12.5 years (less than 18.2 years in the present case). In that case, accumulated savings at natural retirement were reduced from $1,514,617 to $970,274 at natural death (ie a decrease of ($1,514,617 - $970,274)  ÷ $1,514,617 = 35.9%). Simply on this quick reference guide, P’s claim of accumulated wealth of $1,300,000 was plainly ambitious over-reaching. A rough reduction of 45% (bearing in mind the comparative differences with the situation in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased in (b)-(c)  above)  of the Deceased’s notional savings of $1,652,627.52 would have given accumulated wealth at $1,652,627.52 x (100% - 45%)  = $908,945.14. A more refined calculation is set out in paragraph 405 below and in the Schedule to this Judgment (“Schedule”)  under the multiplier and multiplicand method.

397.  Then after taking into account the discount factor (premised on the agreed rate of 27.6% and further discussed in paragraph 405 below under the multiplier and multiplicand approach), the accelerated receipt of the Deceased’s accumulated wealth at natural death would have been under $300,000 (using as as a rough and ready guide $908,945.14 x 27.6% = $250,868.86), which was more than Mr Sahkrani’s conservative suggestion of $100,000, but certainly significantly less than the sum of $1,300,000 that P claimed.

398.  With this “tentative global sum in mind”, I turn to the 1^st Cross-check. Mr Chong claimed useful assistance could be drawn from the following decisions in which the courts had made awards for loss of accumulation of wealth for young deceased persons who worked as scaffolders with no savings (see footnote 124 above), but Mr Sakhrani urged caution on the cases cited by Mr Chong as they omitted to take into account the discount factor for accelerated receipt of the assessed accumulated savings at natural death:

(a)	In Tsang Mei Ying v anor (administratrices of the estate of To Shing Chiu, the deceased), Seagroatt J used elements of the multiplier and multiplicand approach as his ratiocination to assess $336,000 as the deceased’s notional savings, and he then discounted it to $320,000 “to allow for a little over one year without savings in view of the current economic state” (page 814)  (see paragraph 354 and footnote 112 above). In my view, the award of $320,000 as loss of accumulation of wealth was tantamount to equating accumulated savings at natural retirement with accumulated wealth at natural death without taking into account expenditures in the post-retirement years and the discount factor for early receipt, but subsequent authorities have confirmed they were necessary elements in assessing loss of accumulation of wealth. The matter of the discount factor was not raised in the Court of Appeal and/or Court of Final Appeal. Seagroatt J’s assessment was left undisturbed by the Court of Final Appeal on the basis of (i)  the concurrent findings of fact by Seagroatt J and the Court of Appeal, and (ii)  the traditional appellate approach of being slow to disturb assessment of damages in such circumstances (page 51). In Tsang Mei Ying v anor (administratrices of the estate of To Shing Chiu, the deceased), the deceased was 42 years old when he died in September 1995. The assessment hearing took place in March/April 1999 when the deceased would have been 45 years old. Using the Hong Kong Life Tables published by the Census and Statistics Department 1986-2011 as quick and broad brush reference, the deceased would have a life expectancy of about 31.82 years,[130] which would have given a discount factor of, say, about 0.2500 or 25%[131] at 4.5% rate of return, then following Cookson v Knowles[132] and Chan Pui Ki (an infant)  v Leung On. [133] By applying the 25% discount factor to the accumulated savings of $320,000 at natural retirement, the accumulated wealth at natural death would have been $320,000 x 25% = $80,000. Further, Seagroatt J found that the deceased was a responsible family man who was frugal with no expensive habits. Here the position was different with the Deceased living on the fullness of income and debt, and had the Accident not happened, I have found it would be some years before he could have started to make meaningful savings, depending on whether or not he could wean off debts/loans and take up the responsibilities of a family man, which responsibilities were expected to encourage thrift. Unlike the deceased in the case before Seagroatt J, the Deceased’s lifestyle at the time of death did not give confidence that he would necessarily have lived frugally had he not died, but there was probability that he might if time/effort were spent to learn and exercise frugality and spending discipline, but for the present purpose I have adopted the 10% savings rate for the post-trial years on generous basis as Mr Chong urged.
(b)	In Pang Tai San, the Personal Representative of the Estate of Pang Tung Ming, deceased, the deceased scaffolding worker passed away at 23 years (paragraph 1). There were no meaningful bank statements supplied to prove a definitive pattern of savings (paragraph 20). He lived continuously with his father since his parents’ divorce when he was 7 years old, so the father was “therefore in a position to comment on the character, personality and spending pattern of the deceased” (paragraph 10), which evidence the court accepted. The deceased took evening meals and slept at home, rarely went out for entertainment even though she had a girlfriend. He was a filial son, and a frugal individual (paragraph 8). Master de Souza held that “[being] a frugal individual, it is likely that the deceased would have, over the rest of his natural working life, made further savings” (paragraph 20). Out of his monthly earnings of $17,600, $4,000 would go to the deceased’s father, $6,000 would be expended on the deceased himself (paragraph 19), and the balance of $7,600 would be saved, so the loss of accumulation of wealth should be $1,200,800 (in May 2009)  (paragraph 21). Mr Chong in his closing submissions claimed that accumulated wealth in 2009 when the judgment was handed down would have been about $1,680,000 (ie increase of almost 40%)  in 2021. The starting point must be Litton NPJ’s guidance that in testing the tentative global award in mind, comparison was to be made with previous cases “where the circumstances of the deceased persons are not wholly dissimilar”. In my view, there were material differences. First, the deceased in Pang Tai San, the Personal Representative of the Estate of Pang Tung Ming, deceased was found to be a frugal individual on the evidence of the father which evidence Master de Souza accepted on the basis that the father lived with the deceased and was therefore in a position to comment on the character, personality and spending pattern of the Deceased. Here, the Mother and little idea of the Deceased’s life outside the Flat, including his work, finances, income, debts and expenses, and I have found her evidence on the Deceased’s hobbies and expenses unreliable (see paragraphs 188 and 382(d)  and Part IV(j)  above). In fact, the reality was that the Deceased lived on income and debt with practically no savings. The circumstances of the 2 cases were quite dissimilar, and I refer to my observations in paragraph 330(b)  above. Secondly, Master de Souza found the deceased in the case before him saved $7,600/month or $7,600/month ÷ $17,600/month = 43% of his notional monthly earnings, but here I have found the Deceased only saved 10% of his notional monthly earnings at $21,600/month x 10% = $2,160/month in the post-trial years up to 60 years, $18,000/month x 10% = $1,800/month up to 62 years, and ($18,000 + $2,000)  x 10% = $2,000/month up to 65 years (see paragraph 389 above). The Deceased in the present case must have saved materially less than the deceased in the case before Master de Souza, which would necessarily result in lower accumulated savings. Thirdly, although the deceased in Pang Tai San, the Personal Representative of the Estate of Pang Tung Ming, deceased had a girlfriend, there was no discussion of matrimony/children by Master de Souza. After all, the deceased in that case still lived at home with the father with little time spent with his girlfriend (as he rarely went out for entertainment). But here, the Deceased had a steady girlfriend, and he stayed at her place or at his friend’s place, thereby establishing shared/communal household(s)  outside the Mother’s home, and he had many expenditures that used up his income and for which he had to draw on loan monies too. Further, I have found that matrimony and children were very much on the cards for the Deceased, with consequent financial responsibilities and expenditures that would impact on savings. In my view, the situations in the 2 cases were very different. Fourthly, Master de Souza in assessing the award for loss of accumulation of wealth did not take into account reduction of the accumulated savings as a result of expenditures in the retirement years nor the discount factor for accelerated payment, both of which would have contributed to significant reduction of the accumulated savings to reflect the present value of accumulated wealth at natural death. Indeed, in paragraph 21 of his judgment, Master de Souza said “[taking] the monthly residue of $7,600 as I have found earlier, and adopting a multiplier of 17 years’ purchase, less the 46 month pre-trial period, that should produce a figure of $1,200,800”, which was his assessed award. But as we now know and as Bharwaney J made clear, it was inappropriate to use multiplier to assess loss of notional savings (see paragraph 371(c)  above), which might well give a distorted picture. For all of the above reasons, I am not persuaded that Pang Tai San, the Personal Representative of the Estate of Pang Tung Ming, deceased could be said to be a previous case “where the circumstances of the deceased persons are not wholly dissimilar” to give useful comparison. If anything, the assessed award of $1,200,800 showed that it would have been substantially reduced if relevant matters such as post-retirement expenses were taken into consideration. I bear in mind that the defendant was absent in that case, and hence did not raise the above factors for consideration by the learned master.
(c)	In Lee Hang Kuen the administratrix of the estate of Yim Ngo Ho, deceased v Chan Hong trade as Chan Hong Kee & anor,[134] the deceased was a construction site worker who passed away aged 21 years (paragraph 1). It was found in that case that the deceased had put his name down for an electrician course and had not started to read the course yet. But had he finished the course successfully, he would probably have found work as an electrician (paragraph 64). But if he had not obtained an electrician’s licence, he would have continued as a metalwork construction site worker (paragraph 65). But the postulation that he would have gone into management was too conjectural, and it was unlikely that he would have found a management post (paragraph 66). Whether the deceased worked as an electrician or gone on working as a metalworker, he would have earned about $800/day (paragraph 67). The deceased earned $18,000/month at the time of his death, and the court found his earnings would have been $24,000/month at the time of trial (paragraph 69). The learned judge also found the deceased was not heavily in debt (paragraph 79). The deceased contributed ⅔ of his income for family expenses (paragraph 80). He ate and lived quietly at home so part of the household expenses was for his benefit (paragraph 83). He had no particular outside interests, ie he used to go home and watch video recordings with his family (paragraph 78). The court found he was not in debt (paragraph 90). On such basis, DHCJ Muttrie found it was likely that the deceased could have saved some of what remained to him after contributing to the family (paragraph 90). The learned judge allowed $2,500 for savings in the 1st year when he earned $18,000/month, contributed $12,000/month for household expenses, kept $6,000 for himself (paragraph 91). When the deceased’s income increased to the median amount of $21,000/month in the pre-trial years, he would have been able to save $2,500/month as well as pay his MPF contribution of $1,000/month, and he would have to be credited with his and his employer’s MPF contributions at $2,000/month (paragraph 92). The deceased would have notionally earned $24,000/month in the post-trial period, so his savings should have increased to $3,300/month, and he would have to be credited with his and his employer’s MPF contributions at $2,000/month (paragraph 93). On such basis, DHCJ Muttrie awarded $1,605,000 for loss of accumulation of wealth (paragraphs 94-96)  (based on February 2006 price level). Mr Chong submitted that it would have been about $2,430,000 at the time of the Assessment Hearing. Again, the starting point must be Litton NPJ’s guidance that in testing the tentative global award in mind, comparison was made with previous cases “where the circumstances of the deceased persons are not wholly dissimilar”. In my view, there were also material differences. First, it was found that the deceased in Lee Hang Kuen the administratrix of the estate of Yim Ngo Ho, deceased was not in debt and had minimal expenses because he lived quietly at home with no particular outside interest. Whilst this was similar to the personality of the deceased in Pang Tai San, the Personal Representative of the Estate of Pang Tung Ming, deceased, this was quite different from the Deceased in the present case (see (b)  above). Secondly, the deceased in the case before DHCJ Muttrie earned more than the Deceased with the former notionally earning $24,000/month and the latter notionally earning $21,600/month in the post-trial period. More importantly, the deceased in the case before DHCJ Muttrie was found to be not in debt and was able to save $2,500/month in the pre-trial period and $3,300/month (ie $3,300/month ÷ $24,000/month = 13.75% of his notional monthly income)  in the post-trial period. But here, the Deceased was in debt and lived on his income and his loan monies for which he had to make not insubstantial monthly repayments. Further, he would not have made any savings in the pre-trial period, and in the post-trial period he would only have saved 10% of his notional monthly income (as Mr Chong would have me find). These differences must have impact on and would serve to reduce the accumulated savings as compared to that in the case before DHCJ Muttrie. Thirdly, there was no mention of possible matrimony/children for the deceased in Lee Hang Kuen the administratrix of the estate of Yim Ngo Ho, deceased, so there was no need to consider the financial obligations and responsibilities that matrimony and children would impose on a family man. However, I have found that matrimony/children were very much on the cards for the Deceased, and I reiterate my observations in (b)  above in this repsect as to the differences with the present case. Fourthly, DHCJ Muttrie recognised the need to take into account “diminution of savings by their being spent in retirement” and “acceleration of receipt”, but with respect, these matters had not been properly taken into consideration. The learned judge said as follows: “95. In calculating the award the court is concerned with what would have passed to the deceased’s estate at the end of his notional full life.  The calculation has to take into account the possibility of diminution of savings by their being spent in retirement and so on.  See Lam Pak Chiu, above.  This deceased was only 21.  He probably had a life expectancy in excess of fifty more years, and a working life expectancy of 45 years if 65 continues to be regarded as the normal retirement age.  The multiplier already takes into account the normal risks and uncertainties of life, and acceleration of receipt.  I do not see that any further discount is appropriate here”. I have explained in (b)  above and paragraph 371(c)  above why it is inappropriate to use multiplier to assess loss of notional savings. More importantly, it is incorrect to say that the multiplier takes into account “normal risks and uncertainties of life”, “acceleration of receipt” and/or retirement expenses. As Bharwaney J in Chan Pak Ting v Chan Chi Kuen (No 1)[135]and Yeung Lai Ping v Secretary for Justice[136]made clear, the multiplier tables in the Chan Tables do not take into account other risks and vicissitudes of life other than mortality, such as the possibility that the plaintiff would have ceased to earn for periods of time due to ill-health, or loss of employment, or may cease work for periods of time to care for children or other dependants. Had retirement expenses and the discount factor been properly taken into account, the figure of $1,605,000 for loss of accumulation of wealth as assessed by DHCJ Muttrie would have been substantially reduced. For all of the above reasons, I am not persuaded that Lee Hang Kuen the administratrix of the estate of Yim Ngo Ho, deceased v Chan Hong trade as Chan Hong Kee & anor could be said to be a previous case “where the circumstances of the deceased persons are not wholly dissimilar” to give useful comparison.

399.  In my view, I find $1,300,000 to be in excess of any reasonable global sum for award for accumulation of wealth at the Deceased’s natural death, and a more realistic sum would have been in the region of $250,000 (see paragraphs 396-397 above), which was more than Mr Sakhrani’s suggestioin of $100,000, but substantially less than P’s claim of $1,300,000.

400.  Having come to this tentative view and undertaken the 1^st Cross-check, I turn to the 2^nd Cross-check by the multipier and multiplicand approach.

(j)  Multiplier and multiplicand approach - Mr Chong’s opening submissions and oral closing submissions

401.  Mr Chong in his written opening submissions departed from the RSoD by adopting a 10% savings rate following the guidance by Bharwaney J (see paragraph 371(a)  above)  on the premise that the Deceased would have been able to make savings when he became a Master Grade scaffolder and when the Sister became financially independent. On such basis, it was argued that the Deceased should have been able to save about $41,000/month x 10% x 12 months x 35 years = $1,722,000, and was expected to have invested his savings throughout this period, so P’s claim for loss of accumulation of wealth at $1,300,000 was justified. Although the above approach appeared to adopt elements of the multiplier and multiplicand method, Mr Chong did not apply the following to the alleged accumulated savings of $1,722,000: (a)  investment growth of accumulated savings over notional working life and post-retirement years at 2.5% rate of return, (b)  reduction or depletion of the alleged accumulated savings for the Deceased’s notional expenditures during the post-retirement years, and (c)  discount factor of 0.276 for accelerated receipt, but somehow it was claimed that $1,300,000 would be the present value of accumulated wealth.

402.  Although Mr Chong in his written/oral closing submissions advocated adoption of the global approach to assess the award for loss of accumulation of wealth, he put forward an alterative fall-back position in his oral closing submissions based on the multiplier and multiplicand method. Such fall-back position itself had 2 alternatives, one based on 4.5% rate of return and the other based on 2.5% rate of return. I reject the former alternative for reasons explained in Part VI(d)  above, but note that even on 4.5% rate of return, Mr Chong’s own calculations (which were still premised on the notional earnings of a Master Grade scaffolder, notional retirement at 65 years and monthly savings of $41,000/month x 10% = $4,100/month throughout notional working life)  resulted in accumulated wealth at natural death of $1,106,658.88 (not $1,300,000).

403.  Turning to Mr Chong’s fall-back position based on multiplier and multiplicand method that adopted 2.5% rate of return but still on the premise that the Deceased (a)  would have advanced to Master Grade level by September 2015 and would have earned $41,000/month by the time of the Assessment Hearing and thereafter, (b)  would have saved 10% of his notional income throughout his notional working life until natural retirement, and (c)  would have retired at 65 years, it was plain that his formula for quantification of accumulated wealth, ie ($41,000/month x 10% x 12 months)  x [(1.025^35 - 1)  ÷ (1.025 – 1)][137] x 0.276 = $745,881.11 (“Chong Formula”)  took into the factors in paragraph 401(a)  and (c)  above but not expenditures in the notional retirement years in paragraph 402(b)  above. Even so, the accumulated wealth under the Chong Formula was significantly less than P’s claim of $1,300,000, and would be even less if (i)  the Deceased’s earnings were at Intermediate Grade level rather than at Master Grade level (as I have found – see Part IV(a)  above), and (ii)  the accumulated savings would have to be adjusted by taking into account reduction as a result of the Deceased’s notional expenditures in the post-retirement years. Although Mr Chong submitted the Chong Formula was merely a fallback and he placed greater reliance on the global approach discussed in Part VI(i)  above, the Chong Formula based as it were on P’s undiluted contentions must serve as a useful cross-check as to the vitality of the global award that P proposed. In my view, P plainly overreached by claiming of $1,300,000 for loss of accumulation of wealth.

404.  The Chong Formula came late in the course of Mr Chong’s oral closing submissions. Mr Sakhrani’s written/oral closing submissions preceded the Chong Formula, so he spent much time in criticising P’s stance in the RSoD (see Part VI(h)  above)  and Mr Chong’s stance in his written opening submissions (see paragraph 401 above)  to convince this court why a claim of $1,300,000 was incorrect. With no disrespect, I do not intend to deal with all of Mr Sakrani’s arguments as much of P’s earlier stances in relation to the multiplier and multiplicand method or elements thereof had been overtaken by the Chong Formula. Although I would apply my findings of fact (eg my finding that the Deceased failed to show he would have been able to upgrade to Master Grade level, and my finding that he would have earned less after 60 years until his retirement at 65 years)  and take into account the factors in paragraph 401(a)-(c)  above, I shall adopt in favour of P some aspects of the Chong Formula (eg 10% savings rate and notional retirement at 65 years).

405.  I have found in paragraph 391 above that the Deceased’s notional personal savings plus MPF contributions at the time of natural retirement would have been $1,652,627.52. I also explained in paragraphs 392-396 above that whilst this sum would be invested, a substantial part of it would have been depleted in the notional post-retirement period of 18.2 years on account of his personal expenditure at $8,000/month which would have exceeded 2.5% rate of return. This would have translated into annual reduction of 5.8% of the accumulated personal savings, and a net annual reduction of 3.3% after taking into account the 2.5% rate of return (see paragraph 395 above). I set out in the Schedule my calculations to show the value of the accumulated fund at natural death to be $897,378.50. Then this notional remaining balance on natural death would have to be discounted for accelerated receipt at the agreed discount rate of 27.6%. Applying such discount factor to the notional accumulated fund at the time of natural death would produce the sum of $897,378.50 x 27.6% = $247,676.47 as shown in the Schedule.

406.  This echoed Bharwaney J’s wise words of “experience and common sense”[138] in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased and Kan Wai Ling & anor that “[in] many cases where the deceased falls into the low earning bracket and the family leads a hand to mouth existence, there will not have been any savings made by the deceased prior to his death and the prospects of future savings, had the accident not occurred, will be nil or neglible” (paragraph 56).

407.  To further cross-check P’s claim, Mr Sakhrani submitted that if P were entitled to loss of accumulation of wealth at present value in the sum of $1,300,000, by reverse application of the discount factor for accelerated receipt, it would have meant the Deceased would have died possessed of savings at natural death of about $1,300,000 ÷ 27.6% = $4,710,144.93. But assuming that (a)  the Deceased were able to save at 10% savings rate throughout the pre-trial period (86 months from September 2014 to October 2021 – see paragraph 334 above)  and the post-trial period (34 years – see paragraph 389 above)  and (b)  the Deceased’s notional monthly income would have been $21,600/month throughout the post-trial period, then (i)  the Deceased’s median income and median Relevant Income in the pre-trial period would have been $17,059.17/month and $15,592.08/month respectively (see paragraph 391 above), (ii)  his accumulated savings and employer’s/employee’s MPF contributions for the pre-trial period would have been ($17,059.17/month x 10% x 86 months)  + $134,091.89 (see paragraph 391 above)  = $280,800.75, (iii)  his accumulated savings and employer’s/employee’s MPF contributions for the post-trial period would have been ($21,600/month x 10% x 12 months x 34 years)  + $785,747.52 (see paragraph 391 above)  = $1,667,027.52, and (iv)  his total notional savings at natural retirement would have been $280,800.75 + $1,667,027.52 = $1,947,828.27, which sum, based as it were on exceedingly generous assumptions, was still a far cry from $4,710,144.93, and which sum had yet to take into account reduction as a result of notional retirement expenses exceeding growth from 2.5% return on investments (see Bharwaney J’s observations in Kan Wai Ling & anor in paragraph 371(b)  above). This added weight to the view that the Deceased was unlikely to have accumulated significant wealth to leave behind on natural death.

408.  But Mr Chong suggested that one could not assume a claim for loss of accumulation of wealth of $1,300,000 would equate to notional savings of $4,710,144.93 because there would have been other factors such as salary increase and/or inflation such that $4,710,144.93 might not be a lot by the time of the Deceased’s natural death. Such argument was not easy to understand:

(a)	In deriving notional savings of $4,710,144.93 from the present value of $1,300,000, nothing more was taken into account other than application of the discount factor, which did not concern other considerations.
(b)	The relevant question was whether $4,710,144.93 was achievable, not whether such savings would or would not have meant a lot in future. As explained in Fung Suen Sim for herself, the Personal Representative and the Intended Administratrix of the Estate of Lung Kai Hon, deceased, under the multiplier and multiplicand approach, the court should first assess the notional savings of the deceased in the pre-trial and post-trial periods, and then determine whether such notional savings would have grown or would have been depleted by the time of natural death. Since the calculations for the cross-check in the above paragraph followed Mr Chong’s suggestion that but for the Accident the Deceased would have saved 10% of his notional income throughout his working life, the remaining issue would be whether such notional savings would have grown or would have depleted prior to natural death. Bearing in mind that retirement expenses would usually exceed the 2.5% rate of return (see observations by Bharwaney J in Kan Wai Ling & anor in paragraph 371(b)  above), and putting aside future inflationary increase of retirement expenditures in favour of P, notional savings at natural retirement of $4.7 million was plainly not achievable.
(c)	Mr Chong submitted that the Deceased might have salary increase in future. That, of course, would have been possible. But likewise it would also have been possible that the Deceased would suffer other vicissitudes of life, eg the possibility that he would have ceased to earn and therefore unable to make savings for period(s)  of time due to illness or injury, loss of employment or need to care for children and other dependants, or there might have been period(s)  of recession or poor market conditions with salary reduction. As Bokhary PJ explained in Lam Pak Chiu & anor, the court in assessing loss of accumulation of wealth was in the realm of pondering well-nigh imponderables, and was often close of crystal-gazing (see paragraph 355 above). In my view, in taking the latest notional salary at the Assessment Hearing and allowing for calculations of notional savings based on uninterrupted earnings and uninterrupted employment at consistent pay throughout notional working life, such usual and time-honoured approach of the courts in dealing with such difficult task could not be said to be unrealistic and/or unfair.

409.  I am not convinced that loss of accumulation of wealth of $1,300,000 could be supported. Taking a broad brush approach, I am prepared to award $250,000 under this head having regard to the state of the evidence before the court, my findings, the modest level of the Deceased’s income as Intermediate Grade scaffolder, and the likelihood of spending a substantial part of notional savings in the retirement years.

VII.  FUNERAL EXPENSES

410.  Section 6(5)  of the FAO provides that “[in] assessing damages in any action brought under [FAO] the funeral expenses of the deceased person, if such expenses have been incurred by the parties for whose benefit the action is brought, shall be taken into account”.

411.  P claimed that the funeral expenses included (a)  the expenses incurred shortly after the death of the Deceased amounting to $36,463.70 (A/213-234)  and (b)  a sum of $3,000/year as temporary storage fee for the Deceased’s ashes (A/208-211, 215 and 223)  for an estimate of 10 years totalling $30,000. Mr Chong referred me to Sin Kin, the administratrix of the estate of Wong Kam Wor, deceased in which Master Cannon cited Hung Oi Mui the intended personal representative of the estate of Hung Tin Kai, deceased v Lam Kwok Leung & anor[139]which held that the cost of a resting place for the urn holding the deceased’s ashes was allowed (page 35).

412.  Although the RSoD pleaded a claim for $75,000, P now limited her claim to $66,463.70. Mr Sakhrani complained that the Mother WStmt was discrepant in that she claimed to have spent about $60,000 for the funeral expenses. However, I do not take it against the Mother that she could not remember the precise amount, and in any event her recollection was not far away from the presently claimed sum. Even though the Mother claimed she had misplaced some documents relating to the funeral expenses, I find she had adduced relevant documents that gave a sufficiently clear picture of the funeral rites and ceremonies, and I find the claimed sum of $66,463.70 not unreasonable.

413.  Mr Sakhrani reminded that funeral expenses assessed by the Labour Department under Form 25 were only for $18,402, and no objection or appeal was lodged by P against it. I do not think there is anything in such contention for the court’s approach in assessing funeral expenses was not necessarily the same as that of the Commissioner of Labour, and P was not bound by Form 25 in making a claim under FAO. In any event, on the materials placed before this court, I accept that $66,463.70 was appropriate and reasonable.

VIII. CONCLUSION

414.  In the premises, I make the following award in favour of P:

Description	HK$
Pre-trial loss of dependency	163,500.00
Post-trial loss of dependency	519,840.00
Loss of accumulation of wealth	250,000.00
Funeral expenses	66,463.70
Bereavement	150,000.00
Interest (subject to paragraphs 416-417 below):
(a)  on pre-trial loss of dependency	6,997.80
(b)  on funeral expenses	31,461.53
(c)  on bereavement	98,040.00
	1,286,303.03
Less EC Sum received	(1,070,038.00)
Total:	216,265.03

415.  Mr Sakhrani submitted that (i)  funeral expenses in the sum of $18,402 under Form 25 was paid to P on 23 September 2014, and (ii)  the EC Sum was paid on 6 October 2015. Mr Chong did not make submissions on (i)-(ii)  above, so the calculations on interest below premised on (i)-(ii)  above are made on nisi basis (as explained in paragraph 417 below):

(a)	Interest on the award for bereavement is awarded at 8%pa from the date of death (12 September 2014)  to the date of judgment herein (11 November 2022)[140] being 8 years and 61 days or 8.17 years, ie $150,000 x 8%pa x 8.17 years = $98,040.
(b)	Interest on funeral expenses is awarded on the partially paid sum of $18,402 at 8%pa from the date of death (12 September 2014)  to the date of payment on 23 September 2014 (12 days)  and on balance sum of $66,463.70 - $18,402 = $48,061.70 from date of death (12 September 2014)  to the date of judgment herein (11 November 2022)  being 8.17 years (see (a)  above)  totalling $31,461.53:
	(i)	$18,402 x 8%pa x 12 days ÷ 365 days = $48.40;
	(ii)	$48,061.70 x 8% x 8.17 years = $31,413.13.
(c)	Interest on pre-trial loss of dependency is awarded at 4%pa from date of death (12 September 2014)  to date of payment (6 October 2015)[141] being 1 year and 25 days or 1.07 years, ie $163,500 x 4%pa x 1.07 years = $6,997.80.

416.  I direct the solicitors for P and the solicitors for D2-D5 to jointly write to this court within 14 days from the date hereof with copy to D1 (“Joint Submission”)  limited to 2 pages (all footnotes and appendices included)  legibly printed in 13 font size with 1.5 spacing on single-sided A4 paper on the following:

(a)	confirm whether the facts in paragraph 415(i)-(ii)  above were correct, and if not, what were the correct facts as to the dates and amounts of payments made by D2 to P;
(b)	confirm whether the arithmetical calculations of interest in paragraph 415(a)-(c)  above were correct, and if not, submit revised marked-up arithmetical calculations that reflected my awards of interest;
(c)	confirm in light of (a)-(b)  above whether the arithmetical calculations of the overall award in paragraph 414 above were correct, and if not, submit revised marked-up arithmetical calculations that reflected my overall award;
(d)	confirm when and how the Joint Submission was served on D1.

417.  P and D2-D5 should note that the nisi award on interest and hence the scope of the Joint Submission are strictly limited to identifying the correct dates of payment, confirming the amounts of payment made and checking arithmetical calculations, and in particular no further addresses or submissions on the rationale, basis and/or methodology for the awards of interest (which had been set out in paragraph 415 above)  should be made (unless any alternative basis has the full agreement of both P and D2-D5). This nisi award is meant to facilitate correct calculation and is not intended as invitation for parties (even if they so wish)  to re-argue the matter of the interest awards.

418.  Subject to paragraphs 414-416 above, I grant judgment in the sum of $216,265.03 in favour of P against Ds jointly and severally. I grant a cost order nisi that Ds shall jointly and severally pay P’s costs of and occasioned by the assessment of damages (including all costs reserved, if any)  to be taxed on District Court scale if not agreed. Whilst I have no doubt Mr Ho had been of assistance to Mr Chong, I see no justification for two counsel in this matter. There shall be no certificate for two counsel.

IX.  POSTSCRIPT

419.  I have expressed concern over the contradictions between the SWD / HKHA Forms (which the Mother confirmed by declaration and under affirmation to be true and correct)  on the one hand, and the 4/16/18 Parts (which the Mother under affirmation adopted as her evidence-in-chief)  and the Mother’s oral evidence to similar effect (also given under affirmation)  on the other hand. These matters may give rise to potential criminal and/or other consequences vis-à-vis the SWD / HKHA Forms, the Mother’s evidence under affirmation at trial, the Mother’s public housing Flat and her CSSA payments. There were further concerns over (a)  the Mother’s finances as revealed in the Mother’s HSBC, NCB and BOC Accounts and (b)  the sufficiency or otherwise of her disclosure under declaration (i)  to SWD in respect of her application for CSSA in 2018 by way of the 2018 SWD Registration Form, the 2018 SWD Application Form and the 2018 SWD Declaration, and (ii)  to HKHA in respect of the 2016/2018 HKHA Declarations.

420.  I hereby direct the Registrar of the High Court to forward a copy of this Judgment to the Secretary for Justice for his consideration, and he is at liberty, if he sees fit, to refer this Judgment to the Social Welfare Department and the Hong Kong Housing Authority for their further consideration.

Mr Patrick Chong and Mr Leon Ho, instructed by Michael Pang & Co, solicitors for the plaintiff

1^st defendant, acting in person and absent

Mr Ashok Sakhrani, instructed by Munros, solicitors for the 2^nd to 5^th defendants

Schedule