Chan Yuk Ping v. Liew Shuk Fui

DCCJ 1811/2022

[2024] HKDC 999

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1811 OF 2022

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ASSESSMENT OF DAMAGES

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A. INTRODUCTION

1.This is the assessment of damages conducted upon the interlocutory judgment entered against the Defendant on 16 August 2022 (the “Judgment on Liability”).

2.At all material times, the Plaintiff and the Defendant were neighbours whose flats were immediately adjacent to each other at, respectively, Flat B8 (the “Plaintiff’s Flat”) and Flat B7 (the “Defendant’s Flat”) on 14/F, Block B, Tak Bo Garden, No 3 Ngau Tau Kok Road, Kowloon.

3.On 20 May 2022, the Plaintiff commenced these proceedings for torts of harassment and intimidation committed by the Defendant. On 16 August 2022, the Judgment on Liability was entered against the Defendant in default. The Defendant did not appear in any of the Court hearings prior to the assessment hearing. In the assessment hearing, the Plaintiff and the Defendant were both represented by Counsel.

B. THE PLAINTIFF’S PLEADED CASE

4.According to the Plaintiff’s pleaded case, since late 2010, the Defendant started to create various harassing and/or intimidated behaviours aiming at the Plaintiff, including:-

(1)  Displaying on the gate of the Defendant’s Flat a number of disturbing messages from 2010 to April 2021, various offensive objects including the photographs of the Plaintiff, scissors, fruit knives from 2013 as well as masks since early 2020 to April 2021, and various disgusting objects including dirty plastic bags, broken eyeglasses and used face masks from June 2019 to April 2021, as a result of which the Plaintiff saw and were affected by such messages and objects whenever she went out of the Plaintiff’s Flat, significantly affecting her lives and health;

(2)  Playing loud music or creating loud noise during the days, at nights and at mid-nights from 22 November 2011 onwards, causing the Plaintiff to develop and to have more serious insomnia over the time;

(3)  Pouring liquids outside the Defendant’s Flat regularly, which were Pak Fah Yeow for 3 to 4 times a week from June 2012 to December 2019, and highly concentrated disinfection water for over 5 times a week from early 2020 onwards, causing the Plaintiff’s shoes to attract the strong smell of Pak Fah Yeow or the vile smell of the disinfection water (as the case may be) whenever she entered the Plaintiff’s Flat;

(4)  Pouring Talcum powder in front of the gate of the Defendant’s Flat and to the gate of the Plaintiff’s Flat for 2 to 3 times a week from January 2014 onwards, causing the Plaintiff’s clothes and shoes to attract Talcum powder whenever she entered the Plaintiff’s Flat; and

(5)  Placing various junk items including large plastic bottles, electric fan and scissors outside the Plaintiff’s Flat occasionally from June 2019 onwards, aiming to disrupt the right of way of the Plaintiff when leaving and/or entering the Plaintiff’s Flat.

5.It is not disputed that in a previous set of proceedings under DCCJ 2342 of 2013, the Plaintiff obtained against the Defendant injunctions and damages assessed at HK$100,000.00 in respect of the Defendant’s behaviours from 2010 to 2014 based on private nuisance. Due to the Defendant’s breach of the injunctions, the Plaintiff also initiated contempt proceedings under DCMP 720 of 2020, as a result of which the Defendant was brought before the Court in March 2021, and was eventually sentenced to 2 weeks’ imprisonment, suspended for 2 years. Given the relief already obtained in DCCJ 2342 of 2013, the Plaintiff has pleaded to confine her present claims for her sufferings from 2014 onwards.

6.According to the Plaintiff’s pleaded case, as a result of the Defendant’s acts, she developed insomnia since 2010 and anxiety disorder since 2013, which affected her performance at work as an accounting clerk and hence, caused her loss of promotion opportunities and discretionary yearly bonuses. She also has not invited her relatives and friends to visit the Plaintiff’s Flat since 2018. The Plaintiff has pleaded to claim against the Defendant for:-

(1)  Aggravated damages in the sum of HK$800,000.00;

(2)  Exemplary damages in the sum of HK$300,000.00; and

(3)  Special damages comprising:-

(i)  Medical expenses for the Plaintiff’s psychological and emotional distress suffered over the years at HK$2,000.00.

(ii)  Legal costs of advice and consultation caused by the Defendant’s behaviours (excluding the costs for DCCJ 2342 of 2013, DCMP 720 of 2020 and these proceedings) at HK$180,000.00;

(iii)  A licence fee for living in her brother’s place from January 2014 to December 2015 at HK$8,000.00 per month, ie, at a total sum of HK$192,000.00, as she had to move out of the Plaintiff’s Flat due to the Defendant’s behaviours; and

(iv)  Loss of salaries to becoming a senior accounting officer had the Defendant’s behaviours not taken place at HK$240,000.00.

C. EVIDENCE AND FINDINGS

7.The Plaintiff filed her witness statement on quantum on 8 March 2023, and a psychiatric report prepared by Dr Hon King Him, Simon (“Dr Hon”) as expert evidence on quantum on 5 July 2023 (“Dr Hon’s Report”).

8.The Defendant did not file any factual or expert evidence on quantum.

9.Both the Plaintiff and Dr Hon gave oral evidence in the assessment hearing.

C1. The Plaintiff’s evidence

10.The Plaintiff adopted the contents of her witness statement whilst testifying in Court. The descriptions of the Defendant’s behaviours as set out in her witness statement are basically the same as her pleaded case as summarised above. By way of her witness statement, the Plaintiff also produced 16 and 10 photographs to show respectively some messages and objects displayed on the gate of the Defendant’s Flat. She produced a video clip to show an occasion on which noise was created, and 7 photographs and 5 video clips to show a few occasions on which liquids were poured by the Defendant.

11.According to the Plaintiff, despite the injunctions granted in DCCJ 2342 of 2013, the Defendant continued the behaviours as complained by her. After the commencement of DCMP 720 of 2020, the Defendant had removed the messages and objects on the gate of the Defendant’s Flat in April 2021 but started to display them again from 5 October 2022 onwards.

12.The Plaintiff’s evidence is that due to the Defendant’s behaviours from 28 April 2014 onwards (i.e., the date of the assessment hearing in DCCJ 2342 of 2013), her insomnia and anxiety disorder persisted or worsened; she has not invited her friends and relatives to her flat since 2018; and her parents had no chance to visit her at her flat prior to them passing away. She further mentioned that she had to close all windows and turn off ventilation fan(s) to avoid the smell of the liquids from getting into her flat and thus, her flat had poor air circulation and she could not cook. She was diagnosed to have moderate depression on 30 December 2022.

13.The Plaintiff claimed that her worsening insomnia and anxiety disorder had affected her performance at work, as a result of which she lost her chance of promotion and yearly bonuses. From January 2014 to December 2015, she also moved out of the Plaintiff’s Flat to live at her brother’s place, for which she paid a fee of HK$8,000.00 a month to him, due to the increasing severity of the Defendant’s behaviours. In essence, the Plaintiff’s evidence on the various sums of special damages suffered by her is the same as those set out in her pleaded case as summarised above. As supporting evidence, the Plaintiff produced a salary slip, and said that she did not keep most of other receipts as she is not a professional, had no legal knowledge, and did not have a habit of keeping documents.

14.Counsel for the Defendant, Mr Oscar Tam appearing together with Ms Teresa Yu, cross-examined and challenged the Plaintiff’s evidence in various aspects.

15.First, Mr Tam raised four general points against the Plaintiff’s evidence:-

(1)  Mr Tam submitted that the Plaintiff’s pleaded case is on matters allegedly occurring since 28 April 2014 and hence, any evidence given by the Plaintiff prior to that date should be disregarded.

(2)  Mr Tam also relied on the Plaintiff’s evidence on her knowledge and duty as the plaintiff and the need of evidence, thereby submitting that for any evidence that the Plaintiff did not put before the Court, the Court should deem that such evidence did not exist. Mr Tam stressed the Plaintiff’s knowledge of the importance of documentary evidence and her burden of proof, her experience in litigation, and her records of the Defendant’s conduct, including that she had installed CCTV cameras since 2012, operating 24 hours a day to capture what happened in the corridor concerned, which ceased to operate only since about 2021.

(3)  Mr Tam submitted that the dates of photographs and videos should be considered, and that undated photographs should be disregarded as the Plaintiff could not be sure of when such were taken and hence, the Court could not ascertain whether those acts were done before 28 April 2014.

(4)  Mr Tam submitted that certain pages of the hearing bundle having been confirmed by the Plaintiff to be identical with some other pages should be disregarded in preventing duplication of consideration.

16.Second, on each kind of the Defendant’s behaviours as complained, Mr Tam’s submissions ran as follows and he invited the Court to dismiss the heads of claim under each and every of them:-

(1)  For display of messages, Mr Tam’s main objection is that the Plaintiff was not scared of the same, and her mere inability to comprehend or understand the Defendant’s behaviour should not attract civil liability. There was no “worry, emotional distress or annoyance” nor “unlawful threat intending to cause harm”.

(2)  For display of objects, Mr Tam’s main objection is that the photographs produced were all taken in 2022 and did not show the objects as alleged, save and except for one or two of them showing respectively a plastic bottle, an unopened face mask, a broken chain of bells that the Plaintiff did not find to be scaring or disgusting, and a piece of white paper that she did not understand why it was there. Mr Tam submitted that the objects as alleged were nowhere to be seen apart from the Plaintiff’s bare allegations, and that there was no “worry, emotional distress or annoyance” nor “unlawful threat intending to cause harm”.

(3)  For creation of noise, Mr Tam’s main objection is that the only evidence are the Plaintiff’s subjective complaints and a video clip. He submitted that objective evidence such as the records of complaints to the Management Office was reasonably called for but not produced. Mr Tam urged the Court to draw an adverse inference against the Plaintiff. He submitted that even assuming that there was one or two isolated noise complaint, the repetitiveness requirement for the tort of harassment must fail, and that there was no “worry, emotional distress or annoyance” nor “unlawful threat intending to cause harm”.

(4)  For pouring of liquids and Talcum powder, Mr Tam’s main objection is that despite the allegedly high frequencies of each of such behaviours, the Plaintiff produced only 7 photographs and 5 video clips showing the pouring of liquids, and nothing at all in relation to the Talcum powder. Further, half of the photographs produced were taken in 2018 whilst the other half were undated, with only one photo taken in 2022. There was only one video clip per year in 2018 and 2020 to 2023. Mr Tam submitted that the Plaintiff could objectively prove that the Defendant poured something once a year only, and that such were not harassing or intimidating, sufficiently repetitive, or intentionally done to cause harm. Mr Tam also submitted that the Plaintiff was not affected by the liquids apart from not liking the smell, and that the Plaintiff upon re-examination revealed that the Defendant had not poured Talcum powder anymore upon being hospitalised in 2017 or 2018, contradicting her pleaded case and earlier evidence that the pouring of Talcum powder continued to date.

(5)  For placement of junk items, Mr Tam’s main objection is the lack of any photograph or video evidence on the same, let alone on the repetitive or intentional acts of the Defendant to cause harm.

17.Third, Mr Tam invited the Court to assess the internal inconsistency of the Plaintiff’s oral evidence and her witness statement and, with references to the following matters, Mr Tam submitted that the Plaintiff’s evidence shall be rejected insofar as there is no objective supporting evidence:-

(1)  The Plaintiff did not give justifiable explanations as to why she could move back to the Plaintiff’s Flat if the Defendant’s behaviours were so harassing or intimidating, or why she would allege psychiatric impact since 2014 when she first sought medical assistance only at the end of 2022, thereby reporting “no past psychiatric history”.

(2)  The Plaintiff has no knowledge or honest belief of her alleged suffering from “anxiety disorder”, because (1) she confirmed that she had not been diagnosed with “anxiety disorder”; (2) the diagnosis made by Dr Hon was “moderate depressive disorder”, with nothing said about “anxiety disorder”; and (3) she knew the differences between anxiety and depressive disorders.

(3)  As mentioned above, she changed her pleaded case and earlier evidence on the timing when the pouring of Talcum powder stopped upon re-examination.

(4)  On the alleged licence fees paid to her brother, she amended her case under cross-examination to claim that the sum of HK$192,000.00 was in fact given as household contributions (“家用”) to her mother, whilst she understood rent (“租金”) and household contribution (“家用”) to mean different things, that is, rent is the money paid for having a place to sleep whilst household contribution is the contribution made for household expenses such as water, gas, food etc.

18.Lastly, on special damages, Mr Tam submitted that:-

(1)  On medical expenses, the Plaintiff’s evidence failed to prove the causation between her moderate depressive episode and the Defendant’s acts.

(2)  On legal costs, the Plaintiff’s evidence failed to prove any part of the sum claimed.

(3)  On licence fees, the Plaintiff changed her case to one of household contributions paid to her mother, which are not recoverable in nature. The lack of evidence and witness also led to an adverse inference that there were no such household contributions or licence fees paid.

(4)  On loss of salaries, the Plaintiff admitted under cross-examination that yearly bonuses were paid at her boss’ discretion, which were not paid when the business was poor. There was no evidence that the Plaintiff’s work ability or performance changed due to the Defendant’s behaviours. There was no warning letter, and no one of the company gave evidence on her “substantial chance of promotion” but for the Defendant’s conduct either.

19.My views and findings on the Plaintiff’s evidence are as follows.

20.First, despite Mr Tam’s forceful submissions, I am unable to accept any part of his submissions that went so far to submit that the Plaintiff’s evidence could not establish any tort of harassment or intimidation at all. One must bear in mind that this is the assessment of damages conducted upon the Judgment on Liability. Although the Judgment on Liability was entered in default, it still stands for the points necessarily decided thereby for liability to be established. The present assessment must therefore be conducted upon the basis that the Defendant is liable for damages for some tort(s) of harassment and/or intimidation, even though not necessarily to the full extent as pleaded by the Plaintiff.

21.Second, I do not find it accurate to say that the Plaintiff’s pleaded case is on matters allegedly occurring since 28 April 2014 only. The Plaintiff pleaded on the Defendant’s behaviours since late 2010. I cannot see why the Court should disregard the Plaintiff’s evidence on matters prior to 28 April 2014 insofar as background or the consistency between the Plaintiff’s evidence and her pleaded case is concerned. I do, however, accept that insofar as the assessment of damages is concerned, the Court should not take into account any alleged sufferings on or before 28 April 2014, for the same would have already been dealt with in DCCJ 2342 of 2013. I do not see the Plaintiff arguing otherwise either.

22.Third, I have accepted and borne in mind Mr Tam’s submissions on the duplication of evidence. Apart from the photographs referred to by Mr Tam, I am also aware of duplication of video clips and the fact that some photographs were taken over the same objects from different angles and/or distances. In reaching my views and findings, I have not given any undue or “double” weight to such duplicated evidence.

23.Fourth, one of Mr Tam’s main thrusts of criticism is that the Plaintiff without explanation failed to adduce objective evidence, including the lack of photographs and video evidence on the displayed objects and some behaviours as alleged, the small number of photographs and video clips adduced when compared with the high frequencies of some behaviours as alleged, and the lack of records of complaints as alleged.

24.Whilst it is true that the Court may draw an adverse inference against a party who without a proper explanation failed to call a witness whom he might reasonably be expected to call or produce documents he might reasonably be expected to disclose, I do not find the present case as an appropriate one in which such an adverse inference should be drawn, for the following reasons:-

(1)  First, in the present case, the Plaintiff has given detailed first-hand evidence on the Defendant’s behaviours. Her evidence has included detailed particulars on the Defendant’s behaviours, such as various examples of the contents of the messages and the objects displayed, the types of liquids poured during different periods of time, and the estimated frequencies of various types of the Defendant’s said behaviours.

(2)  On the other hand, the Defendant has never filed any pleadings identifying which part of the Plaintiff’s case (whether on liability or quantum) was in dispute in these proceedings. The Defendant had allowed the Judgment on Liability to be entered in default. The Defendant did not participate in any of the Court hearings until the assessment hearing. The Defendant has neither filed any evidence on quantum, nor ever taken out any application for specific discovery.

(3)  Whilst the burden of proof remains on the Plaintiff, it is a matter of judgment for the Plaintiff (with the assistance of her legal team) to decide, in such circumstances, whether she has already adduced sufficient evidence by way of her testimony outlined in her witness statement and all other evidence produced, including some photographs and video clips already evidencing parts of the Defendant’s behaviours as complained. There is no strict legal requirement for a plaintiff to adduce all corroborating evidence.

(4)  Accordingly, even if the Plaintiff has not in the particular circumstances of the present case produced all available objective evidence to corroborate her testimony, this alone should not necessarily lead to any adverse inference that such evidence, if produced, would be against the Plaintiff’s case and evidence.

(5)  Further, the Plaintiff’s evidence that there were CCTV cameras capturing what occurred in the corridor concerned was short of confirming that all matters as then captured were recorded, stored and remained in existence (but not for example overwritten) and in the Plaintiff’s possession, custody or power. One would also reasonably expect that if the Defendant did not carry out the alleged behaviours and genuinely believed that there were CCTV clips proving the same (by not capturing the alleged behaviours), the Defendant would have applied for specific discovery of such evidence. Yet there was no such application in records at all.

(6)  In any event, the existing evidence does not support the adverse inference as now proposed by Mr Tam. What the Plaintiff did not produce to corroborate a particular part of her evidence may not necessarily be against her said evidence. For example, the Plaintiff referred to only 16 photographs in support of her allegations on the displayed messages. Such photographs were either undated or dated in 2018 or 2022. However, in several video clips produced for other purposes (ie, the clips on 28 August 2020, 1 October 2020 and 7 January 2023), messages were clearly seen being displayed on the gate of the Defendant’s Flat. It follows that the mere fact that the Plaintiff did not produce photographs in 2020 or 2023 to show the displayed messages cannot mean or lead to an adverse inference that any photographs or objective evidence in 2020 or 2023, if produced, would be against the Plaintiff’s case and evidence.

25.Following my analysis above, I do not find the mere fact that some photographs were undated fatal to the Plaintiff’s case and evidence either. Although the Court may not be able to place weight on undated photographs when the Plaintiff could not tell when such were taken, the Court may still consider and accept the Plaintiff’s own testimony, without relying on any such undated photographs.

26.I note Mr Tam’s criticism on the Plaintiff’s change of her case and evidence on the timing when the pouring of Talcum powder stopped. It was a concession made by the Plaintiff on the persisting period of one of the Defendant’s behaviours, and the Plaintiff volunteered such information during re-examination, even without contrary evidence from the Defendant challenging her original evidence at that time. I do not find the Plaintiff to be deliberately lying to the Court in such circumstances. One must bear in mind that the Plaintiff was testifying on a number of different behaviours persisting over different periods of time. It was only one mistake made on one kind of behaviours, which the Plaintiff candidly and fairly corrected (to her own disadvantage) in her oral evidence. I do not find such evidence to be damaging the Plaintiff’s credibility or reliability at all.

27.In fact, under cross-examination, the Plaintiff also agreed that from April 2021 to 5 October 2022, she was not harassed by the Defendant. When being put to her that the Defendant had not lived in the Defendant’s Flat and thus, there had been no harassing acts since 6 June 2023, she said that she did not know. These show that even with the total lack of contrary evidence from the Defendant, the Plaintiff still candidly and fairly admitted (even to her disadvantage) that the Defendant’s behaviours did not persist from about April 2021 to 5 October 2022, and from 6 June 2023 to the date of the assessment hearing. Those are further instances demonstrating the Plaintiff’s honesty as a witness despite her own interests at stake.

28.I have also considered other alleged inconsistencies between the Plaintiff’s witness statement and oral evidence as submitted by Mr Tam, which relate to the impacts of the Defendant’s behaviours, and the loss and damage suffered. I shall further deal with those parts of the evidence below. Suffice to say that I do not find the same damaging the Plaintiff’s reliability, or her evidence on the Defendant’s behaviours as analysed above.

29.As said above, the Plaintiff has given detailed evidence on the Defendant’s behaviours. Subject to a few concessions as noted above, the Plaintiff stood firm upon cross-examination. Her evidence is corroborated by photographs and video clips, recording messages and objects displayed on the gate of the Defendant’s Flat, noise created and liquids poured by the Defendant. Nothing shown to the Court contradicts the Plaintiff’s evidence, although not all parts of her complaints were recorded (on which I draw no adverse inference for reasons already explained). The Plaintiff’s evidence is not contradicted by any positive evidence from the Defendant either.

30.Accordingly, on the Defendant’s behaviours, I find the Plaintiff’s evidence to be credible and reliable, subject only to the part of her evidence relating to the period from January 2014 to December 2015, which I cannot accept in full as she admittedly did not live in the Plaintiff’s Flat during that period. The Plaintiff in her oral evidence explained that she returned to the Plaintiff’s Flat occasionally and was able to observe the Defendant’s behaviours. But even so, such still would not explain how she could observe the frequencies of the Defendant’s behaviours when she only went back occasionally. Absent any further explanations from the Plaintiff, I find it inherently improbable for her to have known the frequencies of the Defendant’s behaviours during that period, and do not accept her evidence in that regard. But subject to that, I fully accept the Plaintiff’s evidence on the Defendant’s behaviours, including her concessions made as referred to in paragraphs 26 to 27 above.

31.Following upon my above findings, I reject Mr Tam’s submissions that the Defendant’s behaviours did not constitute intimidation or harassment. It is artificial to say that the Plaintiff was not scared or disgusted by one particular kind (or even one particular occasion) of the Defendant’s behaviours, when what she faced was a persistent series of incidents including different kinds of behaviours, which overlapped with each other sometimes. The Defendant’s behaviours must be looked at as a whole, and in the context of an immediate neighbourhood where the Plaintiff and the Defendant were the only persons using the corridor concerned. I do not accept that just because the Plaintiff moved back to the Plaintiff’s Flat in 2016, it must mean that the Defendant’s behaviours were then not harassing or intimidating. There is no basis to assume that the Plaintiff would always be able to secure alternative accommodation. There is no reason for her to be expected, or even forced to move out of her own property just because of the Defendant’s conduct either.

32.As to the Plaintiff’s evidence on her sufferings, since she was not residing in the Plaintiff’s Flat from January 2014 to December 2015, I am unable to accept any significant sufferings on her part during that period. In fact, the Plaintiff agreed under cross-examination that she did not have sleeping problems or anxiety disorder in December 2015. Subject to that, I accept her evidence on her emotional sufferings which included insomnia and anxiety. I note Mr Tam’s objections based on the Plaintiff’s diagnosis. But the Plaintiff explained in her oral evidence that by referring to “anxiety disorder”, she in fact meant anxiety only but not a formal medical diagnosis. Not everyone with emotional issues must seek medical help. Her evidence is consistent with Dr Hon’s evidence (as discussed below) that it is common for a patient of depressive disorder to have anxiety. As she is not alleging any past diagnosis of “anxiety disorder”, I do not find any inconsistency from Dr Hon’s Report recording “no past psychiatric history” either. All in all, I find no reason not to believe the Plaintiff’s evidence.

33.Lastly, on the different items of special damages as alleged in the Plaintiff’s case and evidence, my views and findings are as follows:-

(1)  On medical expenses, as I accept Dr Hon’s diagnosis of the Plaintiff’s condition (as discussed below), I accept that the Plaintiff has suffered from depressive disorder because of the Defendant’s conduct. According to her evidence, her medical costs as at the date of her witness statement were estimated at around HK$2,000.00. It is a very modest sum which I find no reason not to accept as genuine, when the Plaintiff no doubt received some medical assistance from Dr Hon in or since late 2022.

(2)  On legal costs, the Plaintiff alleged in witness statement a total sum of HK$180,000.00, excluding the costs of legal proceedings. It is not a small sum and presumably comprises expenses incurred across a period, yet there is no breakdown or particular, such as date(s), name(s) of firm, and purpose(s) for which advice or consultation was obtained. No documentary proof such as invoice, fee note, receipt, or copy of cheques was produced. In her oral evidence, the Plaintiff stated that the said sum of HK$180,000.00 included the fees to lawyers in legal proceedings, contrary to what were said in her witness statement. It is hence unclear even on her own evidence what those expenses comprised. In such circumstances, I must reject the bare assertion in her witness statement of any legal costs caused by the Defendant’s conduct.

(3)  On licence fees, the Plaintiff clarified in oral evidence that the said fees were in fact “household contributions” paid to her mother. She said that when she was not living with her parents in her brother’s place, she only paid a sum of HK$3,000.00 to her mother. But she also agreed that she paid an additional sum of HK$5,000.00 to her mother because she had to contribute to expenses on food and electricity etc. when living with her parents. Expenses on food and utility would always be incurred regardless of where she lived. There is no evidence that she would not have been allowed to live in her brother’s place without payment of the said additional sum either. Based on her evidence as clarified orally, I cannot and do not accept the bare assertion in her witness statement of any licence fee paid for living in her brother’s place.

(4)  On loss of salaries, similarly, there is no breakdown or particular on the claimed sum of HK$240,000.00. The Plaintiff agreed in oral evidence that her yearly bonuses were discretionary and that for those years she did not receive any bonus, it was due to poor business. Further, there is no evidence as to whether and when she would have been promoted but for the Defendant’s conduct. There is simply no evidence on a chance of promotion to be lost. I cannot and do not accept the bare assertion in the Plaintiff’s witness statement of any loss of salary due to loss of promotion opportunities or bonuses.

C2. Dr Hon’sevidence

34.Dr Hon adopted Dr Hon’s Report in Court. According to Dr Hon’s Report, Dr Hon assessed the Plaintiff on 21 and 28 December 2022. He diagnosed the Plaintiff with moderate depressive episode, opining that her depressive symptoms were precipitated by the persistent nuisance from the Defendant and had caused a significant impact on her daily functioning. He also said that the Defendant is suspected to be suffering from mental illness from the behaviours described by the Plaintiff. He supplemented that he used ICD-10 for his diagnosis under cross-examination. He further explained that it is common for a patient of depressive disorder to have anxiety, and anxiety disorder is a condition less serious than depressive disorder. He explained that there is a hierarchy that a patient of depressive disorder may also have anxiety disorder, but not the other way round.

35.Mr Tam relies on Dr Hon’s evidence on the suspected mental illness of the Defendant to submit that the Defendant did not cause intentional harm. On Dr Hon’s diagnosis of the Plaintiff’s condition, Mr Tam submitted that it is unreliable as Dr Hon did not comply with the Code of Conduct for Expert Witness in failing to refer to any tests, examinations or other investigation on which he relied on in Dr Hon’s Report, and did not provide justifications for his failure to include any relevant details of the ICD-10 test conducted in giving his diagnosis. Mr Tam asked the Court to disregard Dr Hon’s Report and oral evidence on the Plaintiff’s diagnosis.

36.I am unable to accept Mr Tam’s submissions. On the Defendant’s condition, there is no dispute that Dr Hon did not examine the Defendant. He did not make any diagnosis but merely a passing comment of suspicion. I do not accept that as reliable and sufficient evidence on the Defendant’s state of mind. On the Plaintiff’s diagnosis, I do not find Dr Hon to have failed to comply with the Code of Conduct for Expert Witness or to include relevant details of the test conducted. According to Dr Hon’s oral evidence, whilst he had not set out ICD-10 diagnostic criteria generally, he set out the specific symptoms of the Plaintiff satisfying such a diagnosis under ICD-10 in Dr Hon’s Report. I do not find the reliability of Dr Hon’s Report and his oral evidence affected merely by the said lack of references to the general criteria. I fully accept Dr Hon’s Report and his evidence on the Plaintiff’s condition and diagnosis.

D. ASSESSMENT OF DAMAGES

D1. General and aggravated damages and exemplary damages

37.On the quantum of aggravated and exemplary damages, Counsel for the Plaintiff, Ms Lilian Ip appearing together with Mr Johnson Cheung, cited the cases of Law Lai Kwan v Intrend Finance Ltd [2017] 4 HKLRD 1, Lin Man Yuan v Kin Ming Holdings International Ltd & Anor (HCA 216/2008, unrep, 3 June 2015), Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197 and Kwong Yiu Keung Stanley & Anor v Chiu Sin Shum & Anor [2021] HKDC 158. The Plaintiff claims a sum of HK$800,000.00 for aggravated damages, which I understand to be the entirety of the compensatory damages claimed. As to exemplary damages, the Plaintiff claims a sum of HK$300,000.00.

38.On general and aggravated damages, the Defendant’s case is that the Plaintiff is entitled to nominal damages only. Mr Tam relied on the problems of the Plaintiff’s case on the Defendant’s behaviours as discussed under the Plaintiff’s evidence above, and the lack of causation between the Plaintiff’s depression and the Defendant’s conduct. Mr Tam has not cited any case authority on the appropriate quantum of aggravated damages should the Plaintiff’s factual case be accepted.

39.On exemplary damages, Mr Tam submitted that the Plaintiff is not entitled to the same at all, relying on the cases of霍兆榮對廉政公署 (CACV 247/2002, unrep, 6 February 2023) and Hon Kwan v Zara Asia Limited [2021] HKCFI 2556 adopting the legal principles laid down in Rookes v Barnard [1964] AC 1129. Mr Tam’s submissions, in essence, is that the Plaintiff’s case did not fall within any of the three categories as laid down in Rookes and thus, she is not entitled to any exemplary damages.

40.In response to Mr Tam’s submissions on exemplary damages, Ms Ip cited Broome v Cassell & Co Ltd [1972] AC 1027 and Lo Sam Shing v Li Fong (HCA 1803/2011, unrep, 14 March 2014), in which Hon To J (as he then was) upon quoting Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122 and A v Bottrill [2002] UKPC 44 expressed that:-

“161. Thus, over the past forty years, the law on exemplary damages has moved forward. Certainly there are wrongful and conscious conducts which give no financial benefit to the wrongdoer but which are no less appalling than profit motivated conducts. There is no reason why such conducts should not be punished. Thus, the scope to which exemplary damages are available have expanded from punishing profit motivated conduct, ie conduct under Lord Devlin’s second category, to outrageous conduct. The essence of such outrageous conduct is conscious wrongful conduct committed in contumelious disregard of the plaintiff’s rights with an additional element of flagrancy or cynicism or oppression, or committed in manner or circumstances which render the conduct particularly appalling, such that the court has to show its public disapproval of such conduct and to pass on a public message that the law will not tolerate such conduct by awarding exemplary damages over and above that which would be sufficient to compensate the victim for the wrong suffered.”

41.Ms Ip in her oral submissions further made references to some cases cited by her on quantum, in which exemplary damages were awarded.

42.In further response, Mr Tam submitted that even if the “outrageous approach” (ie, the approach contended by Ms Ip) is to be adopted, the Plaintiff’s claim of exemplary damages still ought to be dismissed for the Plaintiff failed to meet the high threshold.

43.I have carefully considered all the submissions made by Counsel for both sides, including all the case authorities cited by them.

44.On general damages including aggravated damages, I have made my factual findings based on the evidence as discussed above. I have also taken into account the cases on quantum cited by Ms Ip.

45.For the periods of sufferings, as the Plaintiff was not living in the Plaintiff’s Flat from January 2014 to December 2015, and given the Plaintiff’s evidence as mentioned in paragraph 27 above, the only periods during which I find the Plaintiff to have significant sufferings due to the Defendant’s behaviours were from January 2016 to April 2021 and from 5 October 2022 to 6 June 2023 (with the pouring of Talcum powders stopped since 2017 or 2018). These add up to a period of around 6 years, which is comparable with that in the case of Lau Tat Wai as cited by Ms Ip.

46.For the severity of the Defendant’s conduct and the Plaintiff’s sufferings, unlike the case of Lau Tat Wai in which the plaintiff was harassed and intimidated not only at home, but also over email, SMS messages and telephone calls to him and his family, friends and colleagues, and was even put under surveillance and was hence harassed and intimidated anywhere, anytime, the Defendant’s behaviours in the present case occurred outside the Plaintiff’s Flat only. The Plaintiff was not harassed or intimidated whilst she was at work or otherwise not at home. It is not saying that the Defendant’s conduct was therefore not serious, as one should certainly be entitled to a sense of safety and privacy at home. But the fact that the harassment and intimidation did not take place anywhere, anytime is an obvious factor which makes the Defendant’s conduct and the Plaintiff’s sufferings in the present case less serious than those concerned in Lau Tat Wai.

47.That said, I do bear in mind the very high frequencies of the various kinds of the Defendant’s behaviours in the present case. Further, I accept that the Plaintiff must be particularly anxious and depressed in the present case, as she had already once commenced legal proceedings and obtained injunctions against the Defendant, yet the Defendant still continued his behaviours for years, leaving her with seemingly no effective means to regain peaceful occupation of her own property. Such additional sufferings to the Plaintiff ought to be taken into account.

48.I must also take into account the fact that the Plaintiff has been diagnosed of depressive disorder as a result of the Defendant’s behaviours.

49.Taking all circumstances into account, I consider the present case to be comparable to Lau Tat Wai in its entirety. Aggravated damages were awarded at a sum of HK$600,000.00 in Lau Tat Wai. In the present case, the Plaintiff claimed a sum of HK$800,000.00. As said, the Defendant’s conduct was not as serious as that in Lau Tat Wai. Further, the Plaintiff’s claim is made on the basis of her alleged sufferings lasting for over 9 years, which basis I must reject based on my factual findings above. On the other hand, I note the Plaintiff’s additional sufferings in the present case as discussed, and the fact that she has suffered from depressive disorder. Having considered all the relevant factors, I consider an award of HK$600,000.00 for general damages including aggravated damages to be appropriate. I make such an award accordingly.

50.On exemplary damages, the parties’ arguments raise an important legal point as to what the test for the Court to award exemplary damages should be, namely, whether it is limited to the three categories laid down in Rookes, as contended by Mr Tam; or whether it should be based on an “outrageous approach”, by asking whether the Defendant’s conduct was conscious wrongful conduct committed in contumelious disregard of the Plaintiff’s rights with an additional element of flagrancy or cynicism or oppression, or committed in manner or circumstances which render the conduct particularly appalling, as contended by Ms Ip.

51.My views are as follows. First, whilst I see forces in Ms Ip’s arguments, I note that the House of Lords in Broome confirmed that Rookes was decided neither per incuriam nor ultra vires the House. Broome is therefore not an authority providing for any expansion of the three categories of cases as laid down in Rookes.

52.Second, in none of the cases on quantum as cited by Ms Ip, in which exemplary damages were awarded, was the said “outrageous approach” referred to or applied. Law Lai Kwan and Lin Man Yuan concerned financial disputes and fell within the second category of Rookes. As to Lau Tat Wai, whilst the defendant’s conduct was not profit motivated, there was a purpose which was to force the plaintiff to accede to her wishes. It may therefore still fall within the second category of Rookes as a “gain” is not confined to money-making. In fact, in Lo Sam Shing cited by Ms Ip, which was decided after Lau Tat Wai, Hon To J (as he then was) expressly observed that there was then no Hong Kong authority known to him in which exemplary damages were awarded on the basis of the defendant’s outrageous conduct yet. Unlike Lau Tat Wai, there is no evidence on the purpose or motive of the Defendant’s conduct in the present case. The present case therefore cannot fall within the second category of Rookes, even with non-monetary gains taken into account.

53.Third, in Lo Sam Shing, despite the observations made on the moving forward of the law as quoted above, Hon To J (as he then was) eventually made no award for exemplary damages, because the defendant’s conduct “was just short of being an affront to the court’s sense of justice and was insufficient to provoke the court to exercise its discretion to award the additional punishment”, and “[t]he general damages and aggravated damages are sufficient to provide consolation for the distress he suffered; to repair the harm done to his reputation; and to vindicate him”: see §§162 to 163 of the judgment.

54.In the present case, I take a similar view that even upon applying the “outrageous approach” as contended by Ms Ip, the present case is not an appropriate one for exemplary damages to be awarded. Exemplary damages should be awarded only where the compensatory damages including aggravated damages are inadequate to punish the defendant for his conduct, to mark the Court’s disapproval, and to deter such conduct. Given the sum of general damages including aggravated damages assessed above, I am satisfied that the compensatory damages in the present case are already sufficient to fulfil all the purposes of exemplary damages. It is particularly so because in assessing the said compensatory damages, I have already taken into account the Defendant’s failure to stop his conduct despite the injunctions granted, thereby causing additional sufferings to the Plaintiff. The Defendant has, also, already been punished for his non-compliance with the injunctions in the contempt proceedings under DCMP 720 of 2020. Again, I am not and should not be understood as saying that the Defendant’s conduct was not serious. However, upon taking all circumstances into account, I find it inappropriate to impose any additional punishment by way of an award of exemplary damages in the present case. It follows that it is unnecessary for any definite ruling to be made on the legal point raised. I make no award of exemplary damages.

D2. Special damages

55.On special damages, by reason of my factual findings above, save and except for the medical expenses at a sum of HK$2,000.00, the Plaintiff has failed to establish on evidence any of the special damages claimed by her. I make no award for the Plaintiff’s claim under the heads of legal costs, licence fees and loss of salaries accordingly.

56.As to medical expenses, Ms Ip in her submissions asked for a sum of HK$23,240.00 instead of HK$2,000.00. Such a sum is not supported by any part of the Plaintiff’s evidence. In the hearing bundles, there are some receipts from Dr Hon, and Ms Ip asked the Court to accept the same as the evidential basis of her claim. However, such receipts have never been referred to or explained in the Plaintiff’s evidence. Further, even the sums involved in those receipts do not add up to tally with the said sum of HK$23,240.00 put forward in Ms Ip’s submissions. I am therefore unable to and do not accept such receipts as sufficient evidence of the said sum of HK$23,240.00, which must accordingly be rejected. On the other hand, as said above, the sum of HK$2,000.00 in the Plaintiff’s pleaded case and evidence is a very reasonable and modest sum. I fully award the said sum of HK$2,000.00 as special damages for medical expenses incurred.

D3. Open letter

57.In her submissions, Ms Ip referred to an open letter containing a settlement offer from the Defendant. I accept Mr Tam’s submissions that absent formal admissions in the said letter, the letter is only relevant to the issue of costs, but not to the assessment of damages. Hence, in arriving at my findings and assessments above, I have not taken into account any of the matters set out in the said letter. In any event, even if I am wrong above and the said letter was taken into account, there would still be no change to any part of my findings and assessments above.

E. INTEREST

58.The Plaintiff claims pre-judgment and post-judgment interest at judgment rate. Ms Ip relied on the case of Lau Tat Wai, in which interest was awarded from the date of writ until payment at judgment rate. On the other hand, Mr Tam relied on Yuen Mui Fong v Lo Kut Chie Alan [2020] HKCFI 652 and submitted that no pre-judgment interest should be awarded.

59.I do not find the reason for not awarding pre-judgment interest in Yuen Mui Fong applicable in the present case. Based on my findings and assessments above, the general damages including aggravated damages are awarded based on a large part of the Defendant’s conduct prior to April 2021, that is, prior to the issuance of writ in the present case. It therefore cannot be said that in assessing the award of general damages including aggravated damages, the time period between the date of writ and the assessment hearing has already been taken into account.

60.On the other hand, I am unable to accept Ms Ip’s submissions on the appropriate rate for pre-judgment interest either. The conventional rate for pre-judgment interest is 1% above prime. Despite Ms Ip’s reference to the case of Lau Tat Wai, she has not been able to refer to any legal principles laid down therein on which she relies, and explain why judgment rate should be adopted or the conventional rate should be departed from for pre-judgment interest in the present case.

61.Accordingly, I award pre-judgment interest at the conventional rate at 1% above prime. Post-judgment interest will be at judgment rate.

F. DISPOSITIONS AND ORDERS

62.Based on the aforesaid matters, I order that final judgment be entered in the terms that the Defendant do pay to the Plaintiff damages in the sum of HK$602,000.00 (being the aggregate sum of the general damages including aggravated damages in the sum of HK$600,000.00 and special damages in the sum of HK$2,000.00) together with interest accrued thereon at 1% above HSBC prime rate from the date of writ to the date of this judgment, and thereafter at judgment rate until full payment.

63.The normal rule is costs follow the event. I have not heard the parties’ submissions on costs yet. I therefore make a costs order nisi that costs of these proceedings, including costs of the assessment of damages and all reserved costs (if any), be to the Plaintiff, with certificate for one Counsel, to be taxed if not agreed.

64.It remains for me to thank Counsel for the assistance rendered to the Court.

Ms Lilian Ip and Mr Johnson Cheung, instructed by Chan, Wong & Lam, for the plaintiff

Mr Oscar Tam and Ms Teresa Yu, instructed by Lo & Fung, for the defendant