Ho Kwok Wa v. Tsui Kwok Leung
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DCPI 1034/2023 [2026] HKDC 1757 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 1034 OF 2023 ------------------------------ BETWEEN
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--------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------- 1.This is an assessment of the Plaintiff’s damages in a personal injury action. 2.On 3 April 2023, the Plaintiff commenced the present proceedings against the Defendant for damages and loss sustained by him as a result of an assault incident inflicted and committed by the Defendant on 20 October 2020 at the public light bus terminus at San Wan Road, Sheung Shui, New Territories. 3.No defence was filed by the Defendant. Interlocutory judgment on liability was entered against the Defendant, leaving damages to be assessed. The Defendant did not attend the assessment of damages hearing (“AOD”). The Court is satisfied that notice of hearing and relevant documents were duly served and the Defendant was informed of the proceedings against him. 4.At the AOD, the Plaintiff was represented by Mr. Nicholas Mang of Messrs Joseph Leung & Associates. The Plaintiff adopted as evidence-in-chief his witness statement filed on 2 January 2024. 5.In the Revised Statement of Damages (“RSOD”)[1], damages are claimed under the following heads (and no answer was filed by the Defendant):
6.In the Plaintiff's written opening submissions, the Plaintiff revised his claim as follows:
7.At the AOD, except PSLA that the Plaintiff reserved his right to claim the amount as pleaded in RSOD, Mr Mang confirmed to the Court of the heads of claim and amount stated in the Plaintiff’s written opening submissions. BACKGROUND 8.The Plaintiff was aged 60 at the time of the assault and is now 66 years old. At the material time, the Plaintiff was a civil engineer. 9.At around 9:45 pm on 20 October 2020, the Plaintiff was waiting for a minibus at the San Wan Road minibus terminus. The Defendant, a minibus driver, suddenly punched the Plaintiff in the face upon seeing him. The Defendant declared it was out of malice because the Plaintiff had previously lodged a complaint regarding the Defendant's driving attitude. The Plaintiff reported the matter to the police. The Defendant was subsequently arrested, convicted of one charge of ‘wounding’, and an 18-month probation order was made. Injuries and treatment 10.Following the assault, the Plaintiff was conveyed by ambulance to the Accident and Emergency Department of North District Hospital (“A&E NDH”). Examination revealed a 0.5 cm laceration wound to his lower lip and loosening of the left upper incisor. The Plaintiff received wound dressing, pain medication, and was granted sick leave. 11.Subsequently, the Plaintiff sought several dental consultations:
Sick leave 12.A&E NDH granted the Plaintiff sick leave from 21 October 2020 to 11 November 2020, totaling 22 days. Complaints of the Plaintiff 13.About one month after the assault, the Plaintiff’s loosened left upper incisor fell out, followed by another three teeth over the next two months, and a further nine teeth over the subsequent five months. In total, the Plaintiff lost 14 teeth after the assault[2]. 14.The Plaintiff suffered physical pain requiring pain medication for approximately two months until the symptoms gradually subsided. Owing to the loss of 14 teeth, the Plaintiff now suffers from permanent functional impairments. His speech has become slurred and indistinct, and eating has become an exceptionally slow process. These permanent difficulties have severely hindered his efficiency at work[3]. EXPERT EVIDENCE 15.Direction was given to the parties to jointly report to the court of their stance to adduce expert medical evidence. The Plaintiff did not apply to adduce expert medical evidence as to quantum, whilst the Defendant was deemed to have elected not to adduce any expert medical evidence in this action. The present case accordingly has no expert evidence from the parties. THE PLAINTIFF’S CREDIBILITY 16.When assessing the Plaintiff’s credibility, I have considered the general principles set out by Deputy High Court Judge Eugene Fung SC in his Judgment in Hui Cheung Fai & Another v Daiwa Development Limited & Others, HCA 1734/2009 (unreported, 8 April 2014):
17.The Plaintiff testified at the AOD and his testimony was not challenged as the Defendant was absent. 18.In relation to his dental condition before the assault, the Plaintiff testified that he had 3 teeth that had already fallen off and implants were made. Except for these 3 teeth, all other teeth were still in good condition. He did not experience any other symptoms such as periodontal disease which caused him to seek dental consultation. The Plaintiff further clarified that, as a result of the assault, more than one tooth fell off and several became movable. However, it is noted that the Plaintiff’s witness statement provides a different account — that the loosened left upper incisor (caused by the assault) fell off only a month after the assault. 19.As to the Plaintiff’s conditions from the time of his witness statement until the present, his dental condition worsened over the years with only 3 teeth remaining. It now takes him more than an hour to finish a meal. He also suffers from nightmares and loss of memory. Other than these symptoms and inconvenience, he is in good health condition. 20.When examined on why he did not seek full mouth clearance and complete denture rehabilitation as recommended by Dr Chung in 2020, the Plaintiff expressed that he was unable to afford the costs of treatment, which were over $200,000. He sought further dental consultation and quotation on denture rehabilitation in 2024 upon recommendation from his friends on more economical treatments. 21.The Plaintiff worked for Yuen Wa Construction Co Ltd (“Yuen Wa”) as a civil engineer for around 3 years before the assault. He quit the job within a year after the assault due to increasing difficulty in communicating with co-workers. He now works as a warehouse officer with a monthly salary of $7,500. 22.Regarding the amount of salary as a civil engineer employed by Yuen Wa, the Plaintiff claimed that there were records showing receipts of salary but he forgot to pass them to his solicitors. It was he who requested Yuen Wa to issue salary in cash as it saved his time to withdraw money from the bank. When examined on why he had not filed any tax return nor made any MPF contribution during his employment with Yuen Wa, the Plaintiff testified: “I have no idea… the company should handle these matters for me.” 23.Overall, I find the Plaintiff’s testimony incredible due to its inherent improbabilities, in particular on the explanations he provided for his failure to file tax returns and make MPF contributions. The Plaintiff’s description of his dental condition before and after the assault is also inconsistent with the findings contained in the his written witness statements and medical reports of A&E NDH and Dr Chung. QUANTUM PSLA 24.The Plaintiff claims $250,000.00 for PSLA in his written submissions (reduced from $300,000.00 in the ROSD). 25.On causation, the Plaintiff relies on Yu Wai Kan v Law Cho Tai (unrep, HCPI 62/2010, 11 May 2011) at §71, submitting that but for the assault, he would have sought timely treatment for his pre-existing periodontal condition as it progressed, thereby preserving his teeth. He contends that the assault triggered a cascading loss of 8 teeth without evidence that natural progression would have inevitably caused this loss. He is now left with only three teeth in the left lower jaw. 26.The Plaintiff referred to the following comparable dental injury authorities:
27.As well established in Chan Kam Hoi v Dragages Et Travaux Publics [1998] 2 HKLRD 958, courts follow a three-scenario approach to the effect of pre-existing conditions. The three scenarios are: (1) the plaintiff would almost certainly have gone through life unaffected by the condition — here, the defendant is liable for all damage caused; (2) there is a strong possibility that natural progression or another event would have brought about the plaintiff's present state — the court assesses the degree of possibility to determine an appropriate reduction; and (3) the condition would certainly have led to disability and loss — the court makes an allowance based on when the precipitating event would have occurred. 28.According to the medical report of A&E NDH which recorded the Plaintiff’s injuries right after the assault[4], examination revealed loosening of the Plaintiff’s left upper incisor. According to the medical report of Dr Chung who was consulted by the Plaintiff on 10 November 2020[5] (within a month after the assault), Dr Chung diagnosed that there were a total of 21 missing teeth of which tooth 11 “might be related to the assault”. He further recorded 7 mobile teeth due to existing periodontal disease and failing implants (in relation to 2 teeth), of which extra mobility of tooth 13 “may be trauma related”. Given the Plaintiff's overall poor dentition, a full mouth clearance and complete denture rehabilitation was recommended. Dr Chung noted in the conclusion that “of the above sum (i.e. fees for rehabilitation treatment), 15% may be related to his facial trauma rehabilitation)”. 29.The Plaintiff only had the next dental consultation in May and July 2024 with the Hong Kong Tuberculosis Association, where both treating doctors noted the Plaintiff had only 3 teeth remaining and they were all in poor conditions. Both doctors recommended extractions of all remaining teeth and implant-supported prosthesis/dentures. 30.It can be seen from the above medical history that the Plaintiff had very poor dental condition even before the assault. A&E NDH only recorded that the Plaintiff had one loosened tooth after the assault, while Dr Chung recorded 21 missing teeth and 7 mobile teeth at the time of consultation (around 2 to 3 weeks after the assault), and only 2 of them might be trauma-related. It is highly inconsistent with the Plaintiff’s oral evidence that, except for 3 teeth replaced by implants, all teeth were in good condition before the assault. The Plaintiff’s dental issues were left unattended until he sought dental consultation again in 2024 when he had only 3 remaining teeth. 31.The burden rests on the Plaintiff to demonstrate, on the balance of probabilities, that the assault — not the untreated progression of the pre-existing condition — was the true cause of tooth loss. Upon assessing the Plaintiff’s oral evidence and the available medical evidence, the Plaintiff has failed to discharge the burden of proof that, but for the assault, he would have received timely treatment of his dental condition to prevent further deterioration. Nor did the Plaintiff provide medical evidence to prove that the loss of one tooth and the extra mobility of another tooth (which might be, in Dr Chung’s opinion, caused by the assault) was the cause of the loss of the other teeth months after the assault. 32.The only available medical evidence shedding light on the causal link between the assault and the loosening or loss of teeth is Dr Chung’s medical report. Taking the Plaintiff’s case to its highest, he lost 2 teeth due to the assault. Considering further that he suffered 2 months of acute pain, permanent speech slurring, masticatory difficulty, and adjustments for inflation, I consider the revised claim of $250,000.00 to be on the high end. A sum of $100,000.00 is awarded under this head. Pre-trial Loss of Earnings 33.The Plaintiff claims $25,666.67 for his 22-day sick leave period based on his average monthly salary of $35,000.00 as a civil engineer, calculated as: $35,000 x 22/30 = $ 25,666.67. 34.It is the Plaintiff’s case that his salary was issued in cash. He solely relies on a confirmation letter by Yuen Wa in support of his claimed amount of monthly salary. The Plaintiff asserts that neither did his employer file an Employer’s Return to the Inland Revenue Department in relation to the Plaintiff’s earnings nor enroll him in an MPF account. 35.The burden of proof rests squarely on the Plaintiff to establish his pre-accident earnings. Where standard documents like tax returns, MPF statements, or bank records are absent, the court will closely scrutinise the plaintiff’s credibility and the reasons for the lack of records. 36.The Courts have expressed that even for workers paid in cash, some form of record-keeping is expected. The absence of any such record is often described as “incredible” or “hardly satisfactory”: see B K Anil Kumar v. J v. Fitness Ltd (trading As California Fitness) [2022] HKCFI 946, §104. The confirmation letter from the Plaintiff’s employer is of little weight due to its self-serving nature in the absence of other documents: Lai Hon Chiu v. Choy Kam Tim (unrep, HCPI 260/2007, 24 June 2008), §84. 37.Mr Mang for the Plaintiff submitted that the Plaintiff’s bank statements were not adduced as they are of low probative value. Other form of record keeping is also absent. For tax return, while the employer has the obligation to file tax returns for its employees, the Plaintiff also bears the responsibility to properly report to the authority of his income. From the Plaintiff’s only tax return for the year of assessment 2020/21[6], his employment with Yuen Wa and income were not properly reported. 38.There are no other documents showing the Plaintiff’s alleged earnings of $35,000 except the confirmation letter. I find the Plaintiff had failed to discharge the burden of proof. 39.All in all, on the balance of probabilities, I am not satisfied that the Plaintiff is a credible and honest witness in the aspect of his pre-accident occupation and earnings. Accordingly, no sum is awarded under this head. Loss of earning capacity 40.The Plaintiff claims $105,000.00, representing three months of his pre-accident earnings, as a fall back position if future medical expenses for dental restoration are not awarded. 41.Though I am satisfied that the risk of employment loss is not farfetched for the Plaintiff’s case, in view of my ruling above in respect of the Plaintiff’s pre-accident occupation and earnings, I consider no sum should be awarded under this head. Special damages 42.In the closing submissions, the Plaintiff submitted a revised claim of $6,565 for:
43.Evaluating the evidentiary records:
44.Total award for special damages is $3,295.00. Future Medical Expenses 45.The Plaintiff produced a quotation issued by Dr Chow Ping Ching Daniel of The Hong Kong Tuberculosis Association dated 9 October 2025[7], recommending a treatment plan comprising a removable complete denture for the upper jaw and an implant-supported removable complete denture for the lower jaw, at a total cost of $76,185. Another quotation was issued by Dr T.M. Siu dated 15 November 2025[8], recommending a removable full denture for the upper jaw at $30,000, and a full ‘All-on-4” fixed implant bridge for the lower jaw at $250,000, making a total of $280,000. 46.It is the Plaintiff’s submissions that the use of dentures may adversely affect a person’s gums and is a less satisfactory mode of treatment when compared with a fixed implant bridge. The Plaintiff considers that the implant bridge recommended by Dr Siu is reasonably required and he should not be compelled to undergo a less satisfactory form of treatment. 47.The Plaintiff further relies on Lam Yin Man v Ng Hing Chuen (unrep, DCPI 908/2015, 25 October 2017) and Wong Bik Chuen (supra) that future dental costs can be awarded without expert medical evidence. 48.A plaintiff claiming future medical expenses must provide sufficient evidence to satisfy the court that such treatment is necessary, reasonably required, and likely to be incurred. The evidentiary standard requires that the claim for future expenses be supported by medical evidence, typically in the form of expert reports or recommendations from the plaintiff's treating doctors, which substantiate both the need for the treatment and the reasonableness of the cost. The court will not make an award based solely on quotations or treatment plans from commercial providers if those are not supported by medical opinion or expert evidence: Chan Shek Ho v Shiu Ho Chi & Ors [2018] HKCFI 737, §113-115; Hau Kwok Fong v The Kowloon Motor Bus (1993) Ltd v Chan Ka Cheung, Sankyu Eastern International (HK) Company Limited and Hung Wah Hay [1999] HKCU 280. 49.The quotation of $280,000 by Dr T.M. Siu as relied on by the Plaintiff is simply a quotation, without medical opinion that such treatment plan is necessary and reasonably required. Similarly, although the quotation by Dr Chow Ping Ching Daniel comes with a medical record[9], Dr Chow did not give his opinion on how the assault has contributed to the Plaintiff’s present state. 50.The Plaintiff did not rely on Dr Chung’s medical report[10], who has also addressed the Plaintiff’s need for full mouth clearance and complete dentures rehabilitation, with quotation of a complete denture set ($80,000) and one review appointment ($2,000). In particular, Dr Chung noted that, of the above sum, around 15% may be related to his facial trauma rehabilitation. 51.Expenses incurred for resolving issues associated with pre-existing periodontal disease or lost implants would not be awarded, nor would costs for future preventative or restorative dental treatment relating to those conditions, unless causation to assault is established. The only supporting medical evidence is Dr Chung’s medical report which could establish causation to the assault. In the circumstances, I will grant 15% of $82,000, ie $12,300 under this head. CONCLUSION 52.The amount of damages awarded to the Plaintiff is summarized as follows:
Interest & Costs 53.The usual interest will be awarded at 2% per annum for general damages from the date of writ to the date of judgment and thereafter at judgment rate until payment in full; for special damages at half judgement rate from date of the accident to the date of judgment and thereafter at judgment rate until payment in full. 54.I also make an order nisi for costs that the Defendant shall pay the Plaintiff’s costs of the AOD, including all costs previously reserved (if any), such costs to be taxed if not agreed. Unless any party applies to vary the costs order nisi within 14 days hereof, the costs order shall become an absolute order. 55.I thank Mr. Mang for his assistance at the AOD.
Mr. Nicholas Mang, of Jospeh Leung & Co, for the Plaintiff The Defendant was not represented and did not appear | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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