Ting Yuk and Others v. Ting Yee Wa and Others

HCA 422/2012

[2023] HKCFI 2052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.422 OF 2012

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REASONS FOR JUDGMENT

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INTRODUCTION

1.This is the assessment of damages of the claim by the 1^st and 2^nd Plaintiffs (together, the “Plaintiffs”) against the 4^th Defendant in respect of damages suffered by reason of the 1^st – 5^th Defendants’ fraudulent misrepresentations made to the Plaintiffs. The 3^rd Plaintiff had since 20 June 2014 ceased to participate in the action.

HISTORY

2.Upon the 1^st – 5^th Defendants’ failure to give notice of intention to defend, interlocutory judgment was previously entered against the 1^st – 5^th Defendants in favour of the Plaintiffs on 13 May 2014 for damages, with interest to be assessed and costs to be taxed, (the “1^st Interlocutory Judgment”).

3.The previous assessment of damages hearing took place before me on 6, 7 and 8 March 2018 and Judgment was handed down on 26 April 2018 (more than 5 years ago) against the 1^st – 5^th Defendants (the “1^st Assessment of Damages Judgment”). The 1^st – 5^th Defendants were ordered to pay jointly and severally HK$5,506,586.06 and A$1,384,303.96 as damages, with interest and costs.

4.The 4^th Defendant subsequently applied to set aside the 1^st Interlocutory Judgment on the ground that service of the Concurrent Writ of Summons and other legal documents were irregular. Pursuant to an Order dated 19 October 2020, the 1^st Interlocutory Judgment and the 1^st Assessment of Damages Judgment were set aside as against the 4^th Defendant.

5.The Plaintiffs subsequently re-amended the Statement of Claim and the 4^th Defendant had filed an Amended Defence on 1 June 2021.

6.After that, solicitors originally acting for the 4^th Defendant obtained an order to cease acting for her on 10 January 2022. Since then, no further steps had been taken by the 4^th Defendant in defending the Plaintiff’s claims.

7.As the 4^th Defendant had failed to comply with an unless order dated 28 June 2022 (in failing to file and serve her list of documents and her witness statement), the 4^th Defendant’s Amended Defence was struck out and she was debarred from calling oral evidence and factual witnesses at trial.

8.A subsequent interlocutory judgment was obtained by the Plaintiffs on 25 October 2022 as against the 4^th Defendant, with damages to be assessed.

9.The 4^th Defendant was absent at the present assessment of damages hearing. I am satisfied that notice of hearing had been served on the 4^th Defendant. Further, the 4^th Defendant well knew what would be the consequence of non-appearance, having had the 1^st Interlocutory Judgment entered and the 1^st Assessment of Damages awarded against her. Despite that, she has chosen not to appear. The present Assessment of Damages hearing proceeded without her on that basis.

The Plaintiffs’ case

10.I adopt the background of the case as set out in paragraphs 8-18 of the 1^st Assessment of Damages Judgment. In summary, the Plaintiffs and the Defendants are family members. The Defendants had over the years managed to persuade the Plaintiffs to transfer over large sums of money on multiple occasions using different fabricated excuses, with the ultimate and overall purported aim of assisting the alleged immigration application for the Plaintiffs. All the fabricated excuses were subsequently discovered to be lies and the Plaintiffs had suffered losses and damages.

The Claims

11.As the 4^th Defendant was not represented nor present at the hearing, the Court needs to be satisfied that each of the various claims were properly pleaded, particularised and supported by documentary and/ or oral evidence, and that the Plaintiffs had proven their case on damages.

12.Despite the fact that the Statement of Claim had since the handing down of the 1^st Assessment of Damages Judgment been re-amended in May 2021 to add further particulars to the Plaintiffs’ claims, the Plaintiffs’ Counsel, Mr Ho invited the Court to only adopt the items of claim which had been assessed and allowed in the 1^st Assessment of Damages Judgment. In other words, the Plaintiffs simply wish to re-instate the Orders made in the 1^st Assessment of Damages Judgment as against the 4^th Defendant (on a joint and several basis with the 1^st, 2^nd, 3^rd and 5^th Defendants).

13.I have studied the re-amendments to the Statement of Claim. Since:

a)  the re-amendments mostly serve to add further particulars to the background facts,

b)  the Court has already gone through the evidence and reached various factual findings in the 1^st Assessment of Damages Judgment,

c)  the re-amendments have not altered the amount of the claim nor the basis for such factual findings.

d)  the 4^th Defendant should be well aware of the consequence of non-appearance but she has chosen not to appear to defend the Plaintiffs’ claims, her defence having been struck out and no witness statement was filed on her behalf;

e)  there is no new evidence suggesting that the amount of damages as assessed in the 1^st Assessment of Damages Judgment is erroneous;

I am of the view that it is appropriate, and not prejudicial to the 4^th Defendant to adopt the factual findings, legal bases, calculations and assessments as set out from paragraphs 24 – 110 of the 1^st Assessment of Damages Judgment, with the exception of the calculation errors in:

a)  paragraph 62 – the total loss should be HK$1,692,800 instead of HK$1,692,100, and

b)  paragraph 91 b. – the total amount of damages in Hong Kong currency should be HK$5,507,286.06 instead of HK$5,506,586.06.

Calculation of total damages

14.Thus the total amount of damages awarded to the Plaintiffs as against the 4^th Defendant (jointly and severally with the 1^st, 2^nd, 3^rd and 5^th Defendants) are:

a.  In Australian currency: and

b.  In Hong Kong currency: HK$1,275,039.11 + HK$3,324,900 + HK$442,444.45 + HK$2,502.5 + HK$62,400 + HK$200,000 + HK$200,000 =

15.Based on the reasoning as set out in paragraphs 100 – 108 of the 1^st Assessment of Damages Judgment, I award interests as follows:

a)  For damages in relation to the remittances - HK$1,275,039.11 and A$1,384,303.96, pre-judgment interest at the commercial rate plus 1% from the respective dates of payment until date of judgment (25 October 2022) and thereafter at judgment rate until payment.

b)  For all other damages (amounting to HK$4,232,246.95), pre-judgment interest at the commercial rate plus 1% from the date of the service of the Writ until date of judgment (25 October 2022) and thereafter at judgment rate until payment.

Costs

16.There will be a costs order nisi that the Plaintiffs should have the costs of the Assessment of Damages as against the 4^th Defendant, including all costs reserved.

17.For the avoidance of doubt, the costs of this Assessment of Damages should be borne by the 4^th Defendant solely, as they were incurred solely by reason of the 4^th Defendants’ application to set aside the 1^st Interlocutory Judgment.

18.The costs awarded will be on a party and party basis, with the Plaintiffs’ own costs to be taxed in accordance with the Legal Aid Regulations.

19.The costs order nisi will become absolute 14 days after the handing down of the Judgment if no application to vary is received.

Order

20.I thus make the following Order:

(i)  The 4^th Defendant do pay the 1^st and 2^nd Plaintiffs, jointly and severally with the 1^st, 2^nd, 3^rd and 5^th Defendants, the sum of HK$5,507,286.06 and A$1,384,303.96 for damages arising out of the fraud practised upon the 1^st and 2^nd Plaintiffs.

(ii)  For damages in relation to the remittances, namely HK$1,275,039.11 and A$1,384,303.96, the 4^th Defendant do pay the 1^st and 2^nd Plaintiffs, jointly and severally with the 1^st, 2^nd, 3^rd and 5^th Defendants pre-judgment interest at the commercial rate plus 1% from the respective dates of payment until date of judgment (25 October 2022) and thereafter at judgment rate until payment.

(iii)  For all other damages amounting to HK$ 4,232,246.95, the 4^th Defendant do pay the 1^st and 2^nd Plaintiffs, jointly and severally with the 1^st, 2^nd, 3^rd and 5^th Defendants pre-judgment interest at the commercial rate plus 1% from the date of the service of the Writ until date of judgment (25 October 2022) and thereafter at judgment rate until payment.

(iv)  Order nisi that costs of this Assessment of Damages be paid by the 4^th Defendant to the 1^st and 2^nd Plaintiffs, including all costs reserved, on a party and party basis.

(v)  The 1^st and 2^nd Plaintiffs’ own costs be taxed in accordance with the Legal Aid Regulations.

Mr B. K. Ho instructed by Lau & Chan, assigned by Director of Legal Aid, for the 1^st and 2^nd Plaintiffs

The 4^th Defendant was unrepresented and absent