Secretary for Justice v. Wong Chun Cheong

DCCJ 1726/2010

[2023] HKDC 1467

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1726 OF 2010

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.In this action, the plaintiff claims against the 1^st and 2^nd defendants for the damage of a crash cushion (“the Crash Cushion”), which is owned by the Government, near chainage 31.6 on the Yuen Long Highway Tuen Mun Bound, New Territories as a result of an accident that happened on 22 May 2004 (“the Accident”) involving a vehicle bearing registration number KK2239 (“the Vehicle”).

2.At all material times, the 1^st defendant was the owner of the Vehicle.

3.At the time of the Accident, the 2^nd defendant was the driver of the Vehicle. By his own guilty plea, he was convicted of careless driving for the Accident on 1 November 2004.

4.The plaintiff eventually commenced the present action on 18 May 2010.

5.Interlocutory Judgment was entered against both the defendants on 14 April 2011 in default of Notice of Intention to Defend. The defendants were ordered to pay the plaintiff damages, which was to be assessed, and costs.

6.By a Notice of Discontinuance dated 13 September 2023, the plaintiff discontinued the action against the 1^st defendant.

7.At the hearing, the plaintiff was represented by Mr Thomas Li, Government Counsel. The 1^st defendant was not legally represented and did not attend the hearing. Upon perusal of the 2^nd Affidavit of Yip Hiu Fung dated 11 September 2023, a sealed copy of the order made by Madam Registrar M Soong dated 18 May 2023 (whereby the hearing was fixed) had been duly sent to the 2^nd defendant at his usual and last known address by ordinary post.

8.In such circumstances, I was satisfied that the 2^nd defendant was duly notified of, and elected not to attend, the hearing. Accordingly, I proceeded with the assessment of damages in his absence.

THE PLAINTIFF’S CASE AND EVIDENCE

9.The plaintiff claims damages in relation to the Crash Cushion as follows: (1) $65,943.20 as repair and related costs and (2) $879.47 as supervision and administration costs for a total sum of $66,822.67.

10.The plaintiff called Mr Mak Yiu Wah of the Highways Department to give evidence. He joined the Highways Department in 2002 and has been working as a Chief Technical Officer (Construction) of the High Speed Road West team of the Highways Department since 2022.

11.Mr Mak acknowledged he was not personally involved with following-up on the repair works of the Crash Cushion at the material time, however, he was able to retrieve documentary evidence in support of the plaintiff’s case. During the hearing, Mr Mak answered questions in a straightforward and forthcoming manner. His evidence is also consistent with contemporaneous documents. For the aforesaid reasons, I accept his evidence.

Repair and related costs

12.According to Mr Mak’s evidence, the Highways Department had engaged a contractor known as Chiu Hing Construction & Transportation Co Ltd (“the Contractor”) to carry out management and maintenance works at the Yuen Long Highway. One of the Contractor’s obligations was to repair damaged crash cushions arising from traffic accidents.

13.There is documentary evidence showing the breakdown of how the sum of $65,943.20 was arrived at. While there was no documentary evidence showing actual payment of $65,943.20 to the Contractor for the repairing of the Crash Cushion, Mr Mak confirmed he had seen internal records from his department that confirmed payment of the said sum to the Contractor.

14.According to Mr Mak’s evidence, the repair works for the Crash Cushion had been completed long ago (ie in or around June 2004). I find it inherently more likely that the plaintiff had long since paid the Contractor and now seeks to recover the same.

15.I shall allow the full amount claimed by the plaintiff in the sum of $65,943.20 for repair and related costs.

Supervision and Administration Cost

16.There is also documentary evidence showing the breakdown of the supervision and administration costs relating to overseeing the repair works of the Crash Cushion.

17.Considering the amount claimed is relatively low and reasonable, I shall allow the full amount claimed in the sum of $879.47.

PRE-JUDGMENT INTEREST AND COSTS

18.This action was commenced on 18 May 2010, which was almost 6 years from the date of the Accident.

19.While Interlocutory Judgment was obtained on 14 April 2011, the action then sat idle in subsequent years as evidenced by the plaintiff filing its first notice of intention to proceed on 22 July 2014 and a further notice of intention to proceed on 11 October 2022.

20.When all is said and done, it has taken over 13 years from the commencement of the action to finally reaching the present hearing. I inquired with Mr Li for an explanation as to why the action was conducted in such a protracted manner. With no disrespect to Mr Li, he was unable to provide a satisfactory response, though I was quick to acknowledge it was likely through no fault of his own.

21.As a result, I exercise my discretion in only awarding pre-judgment interest starting from 18 May 2020 until the date of this decision to reflect the inexcusable length of time in which this action has finally been brought to a conclusion.

22.As for costs, it should follow the event in the present case.

DISPOSITION AND ORDERS

23.I enter final judgment in favour of the plaintiff against the 2^nd defendant and order as follows:-

(1)  The 2^nd defendant do pay to the plaintiff damages in the sum of $66,822.67 (being the aggregate sum of $65,943.20 and $879.47) together with interests accrued thereon at 1% above the prime rate of HSBC from 18 May 2020 to the date of this decision, and thereafter at judgment rate until full payment.

(2)  The 2^nd defendant shall pay the plaintiff’s costs of the action (including costs of the Assessment of Damages, and all reserved costs, if any) on party and party basis, to be taxed if not agreed.

24.I thank Mr Li for his assistance.

Mr Thomas Li, Government Counsel of the Department of Justice, for the plaintiff

The 2^nd defendant was not represented and did not appear