Lam Fong v. Hing Yip Construction Co
Read the full judgment text of DCEC 164/1978 on BabelCite. This District Court judgment was delivered on 24 April 1979.
1. The only issue in the present application is that of dependency upon the deceased workman.
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DCEC000164/1978 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT KOWLOON CIVIL JURISDICTION WORKMEN'S COMPENSATION CASE NO. 164 OF 1978 ----------------- In the Matter of an Application between
----------------- Coram: D.A. Davies, D.J. Date of Judgment: 24 April 1979 ----------------- JUDGMENT ----------------- 1. The only issue in the present application is that of dependency upon the deceased workman. 2. Although the Respondents had earlier stated in their Answer that they challenged the earnings of the deceased, I am informed by Miss Eng for the Respondents that the claim, based upon $100.00 per day, is no longer in dispute. 3. The attorney, (Mr. LAM Fong), and the deceased man's brother (Mr. LEE Chow-yeung) have given evidence on behalf of the Applicant. 4. The deceased workman was Mr. LEE Yu-ning. He was 31 years old at the date of his death. He came to Hong Kong from China in 1962 with his elder brother Chow Yeung. 5. At some stage since then (it is not quite clear when), Chow Yeung married, whereas the deceased Yu Ning remained a bachelor. 6. Chow Yeung is a dim-sum cook and in 1976 and 1977 was earning $1,300.00 per month. He now has a family of 3 children. 7. At the time of his death, Yu Ning was a construction-site worker employed by the Respondents and earning $100.00 per day. 8. According to Chow Yeung's evidence, Yu Ning was for about 3 months a dim-sum cook working together with him, but that was about 2 or 3 years ago during the depression in the building industry. As soon as the building industry recovered, Yu Ning re-joined it. 9. The attorney, Mr. LAM Fong is unable to give any evidence from his own personal knowledge, since he is not acquainted with the circumstances of the deceased or his family. His function in these proceedings has been to produce certain documents which were received by him from local government authorities in the area of China where the deceased's relatives are presently residing. 10. Miss Eng has expressed her distaste for "evidence" presented in this documentary form, and has specifically objected to the admissibility of one particular document, a list of remittances. Mr. Moss for the Applicant submits that I can and should admit, and take cognizance of, this document. 11. I will deal first with the purely technical question of admissibility. 12. In my view the list of remittances (provisional Ex.A2) is prima facie admissible under section 49(1) of the Evidence Ordinance, and for this purpose the People's Bank of China Tung Koon Branch can validly be regarded as a "person" within the meaning of the section. 13. Rule 3(1)(c) of the Evidence (Hearsay) Rules provides for the giving of notice to the other side, of intention to put in a statement under section 49 (7 days after set down, in the case of the District Court); and Rule 5(1) specifies what such notice shall contain. 14. It is, however, tolerably clear that Rule 11(1)(a) enables the Court, if it thinks just to do so, to allow a statement under section 49(1) to be given in evidence even if Rule 3(1) has not been complied with. 15. In fact, notice was given by Director of Legal Aid dated 26th January, and the Respondents' solicitors replied by Counter-notice under Rule 8, requiring the makers of the list of remittances (and another document) to give evidence in person. (Director of Legal Aid in his Notice of 26th January had anticipated this and stated that those persons
16. It cannot therefore be argued that there has been non-compliance with rule 3 (1), but there may well have been at least a partial failure to comply with Rule 5(1). 17. Both counsel have addressed me on the correct inter-pretation of Rule 11(1)(a). 18. There are obviously 2 possible interpretations:- 19. One is that the Court can exercise its discretion to admit the statement where no notice at all has been given under Rule 3(1), but in a case where notice has been given but which does not fulfil the requirements of Rule 5(1), then Rule 11(1)(a) is inapplicable. The other is that in Rule 11(1)(a) one should regard the reference to Rule 3(1) as inclusive of Rule 5(1) and where notice has been given which does not comply with the latter rule, the discretion to admit the document nonetheless is provided for by Rule 11(1)(a). 20. I prefer this second interpretation since it would be contrary to common sense that a party who fails to give any notice at all should be placed in a better evidential position than a party who does give notice, but that notice is technically defective under Rule 5 (1). 21. For this reason, I find as a matter of law that I have a discretion to admit in evidence the list of remittances (provisional Ex.A2), and I exercise that discretion, because I consider that in the best interests of justice, I should have it before me. It has been referred to by the deceased's brother Chow Yeung, and I will discuss that aspect of the evidence later on. 22. Before I leave the subject of the Notice and Counter-notice, however, I think it appropriate to make some general remarks on the question of calling witnesses in cases such as the present one. 23. The statement in the Notice that various persons were "beyond the seas ...... etc." is manifestly incorrect. In fact as we now know from the evidence of LEE Chow-yeung, the area in question is a mere 20 miles north of the Sino-Hong Kong border. 24. Whilst I do not think it either necessary or desirable that officials of the Chinese Government (and this includes bank and postal officials) should be required to come to Hong Kong to give evidence, I see no apparent reason why an alleged dependant cannot do so. 25. When I looked at Miss Eng's Counter-notice, I did not understand that "LI Yun-kut" referred to in item (b) is in fact the father of the deceased. His age is given as 63 years, and according to Chow Yeung's evidence, when he last saw his father, he was looking a bit thin. 26. However, he lives only about ¼ hour's cycle ride or ½ hour's walk from the railway station. If there was any cogent reason why he could not come here and give evidence personally as to his dependency, it has not been revealed to the Court. 27. In past years, it has not been possible for such persons to visit Hong Kong legally. Realizing this, the Courts have frequently moved upon scant evidence concerning dependants living in China. 28. Now, however, the situation has changed. We are no longer dependent solely upon "China watchers" for our knowledge of conditions inside the vast republic. 29. The border is no longer legally impenetrable, and there is prima facie nothing unreasonable in expecting a person such as the deceased's father to make the comparatively short journey to Hong Kong. Circumstances may be different in each case. Distances are a factor to be considered. It might, for example, be extremely onerous for a dependant to travel to Hong Kong from the border of Mancuria; but in the vast majority of cases, the dependants are in Kwangtung province since the majority of immigrants to Hong Kong are from there. 30. Poverty, illness, infirmity and extreme youth are other considerations when deciding whether it is reasonable for a dependant in China to come here and give evidence. Finally, of course, comes the question of obtaining permission to travel. 31. Be that as it may, however, in this day and age, any suggestion that the evidence of all dependants in China is per se unobtainable can no longer be sustained, and the Court is entitled to seek convincing reasons if it is thereby asked to accept second-best evidence. 32. I make these remarks most forcefully to all applicants and their legal representatives. 33. Returning now to the issues before me, the comments which I have just made are particularly applicable to the present case. 34. The evidence adduced for my consideration is that of the witness LEE Chow-yeung, and two documents - a so-called "Certificate of Relationship and Dependency" signed by a Notary Public in Tung Koon (Exhibit A1) and a so-called "Certificate of Remittances", to which I have earlier referred (Ex.A2). (Both counsel are agreed, and I with them that a document entitled "Summary of Case" (Ex.A3) and the Hong Kong Social Welfare Department Report should be ignored, since the contents of both are essentially hearsay.) 35. It is appropriate to deal with Ex.A1 first. 36. I will assume for the purposes of ...(illegible) that the Notary Public who signed it had the necessary knowledge from whatever source, to certify the contents as correct. The vital portion is the last sentence:
37. One might well ask what that statement really means? At the time of the death of the deceased, were these three persons receiving no support whatever from the state, either financial or in kind? Or were they receiving some support from the State which was by itself inadequate for their needs, and were therefore subsidised by the deceased's contributions? Or were they entitled to full benefit from the State and using the deceased's contributions to achieve a higher standard of living than their neighbours? 38. The ambiguity apparent in Ex.A1 is such that in the final analysis, I can do no more than refer back to the verbal evidence of LEE Chow-yeung, which I propose in due course to do. 39. I move next to consideration of Ex.A2, the list of remittances. The question of to what extent this list truly represents the contributions of the deceased to his relatives in China is one of the subjects to which Chow Yeung has testified, and I will later refer to his evidence. 40. Again, for the purposes of argument I will assume that all the sums listed originated from the deceased himself. The problem of what approach to adopt to a similar list of remittances confronted me in 1974 in the case of CHOI Yee-shui and LEE Sai-mui trading as Lung Chuen Watch Co. (W.C.C. 83/1972, K.D.C.) 41. I can do no more than refer to that judgment
42. My views have in no way altered since the time of that judgment. In the present case, however, we do have the oral evidence of a witness, which the CHOI Yee-shui case lacked, and that evidence assumes a paramount importance. 43. LEE Chow-yeung gave evidence at some length. 44. Inter alia, in relation to Ex.A2, he has said that he last made a remittance to his relatives in China sometime in 1966. Since then and even to date, he has been unable to afford to do so, by reason of his family expenses in Hong Kong. He maintains that all the money for the remittances listed in Ex.A2 was given to him by the deceased, and remitted to China by him (Chow Yeung), because the deceased himself was illiterate, and did not like going to the bank. 45. Two of the remittances were addressed to the deceased's younger brothers. Those were both on 20th July 1977. They total 80.02 RMB. On the same day a remittance was sent separately to deceased's father. 46. According to Chow Yeung, at that time, his 2 brothers were also dependants, at least partially, but are no longer so. 47. Miss Eng has submitted that Chow Yeung's evidence concerning the origin of the remittances is unsatisfactory. I agree that what he said about his brother's reluctance to go to the bank sounds very thin in the light of the fact that he apparently overcame that reluctance on at least 3 other occasions in 1976 and 1977, when he remitted money in his own name. 48. On the other hand, there is undisputed evidence that the deceased was a bachelor with no heavy financial liabilities in Hong Kong and was at least at the time of his death, earning a very substantial wage. It is therefore reasonable to assume that he was in a much better position to contribute to the relatives in China than was his brother Chow Yeung. 49. I may not have been told the whole truth as to why the majority of remittances were made in the name of Chow Yeung - it possibly has more to do with giving face to the elder brother than illiteracy on the part of the deceased, but I am prepared to accept that at least the vast majority of the money was provided by the deceased. 50. I turn now to Chow Yeung's evidence concerning the circumstances of his father, mother and grandmother. In terms of the standards set by Lord Halsbury in the Main Colliery v. Davies case, that evidence is very sparse indeed. 51. Chow Yeung has said that at the time of and prior to, the death of the deceased, his father, mother and grandmother were receiving an allowance from the State of 40 catties of grain per month. He last visited them in March this year. He does not know whether the grain allowance has been increased, decreased or remains the same since Yu Ning's death. At present the brothers in China are contributing to their parents and grandmother, but Chow Yeung does not know to what extent. Grandmother is blind and the mother suffers from dizziness and leg pains in respect of which she has to consult a doctor, who charges for treatment (Chow Yeung does not know how much). Father is looking very thin. 52. The only thing which Chow Yeung can say with any degree of certainty is that these relatives do not have as much money to spend as when the remittances were being sent, and are manifestly poorer. 53. On the basis of this evidence, a finding of total dependency is obviously out of the question. 54. As to partial dependency, the applicant's case is stronger than in the Choi Yee-shui case, because there is at least some evidence of a considerably reduced standard of living and even some hardship on the part of the alleged dependants. I think that this is just (and only just) sufficient to establish a partial dependency. The difficulty lies in assessing the degree of the dependency, and accordingly quantum. 55. According to my calculations, the total of remittances listed for 1976 is 629.09 RMB, and those for 1977 (excluding the two direct to deceased's brothers) 655.27 RMB. In January 1978, there was a large single remittance. 56. Thus in very general terms, one could say that approximately $2,000.00 (H.K.) appears to have been sent to the three alleged dependants in each of the two years. It could be argued that the large remittance in January 1978 indicates that 1978 figures would have been higher had LEE Yu-ning remained alive. I am not, however, prepared to make that assumption on the strength only of one remittance. There were, for example, no further remittances in that year although Yu Ning was not injured until 16th April. 57. Working therefore on the basis that the average annual remittance was approximately $2,000.00 per annum, the first question is whether the deceased was the provider? I have already said that it seems reasonable that he would have provided the bulk of it, and although Chow Yeung's evidence on the subject was not entirely satisfactory, there is nothing to actually gainsay it, and I will accordingly accept that the extent of the contribution by the deceased was $2,000.00 per annum. 58. The next question is how much of that $2,000.00 was spent on necessaries? 59. "Necessaries" for this purpose must be regarded as goods essential to the dependants for them to maintain a standard of living suitable to their station in life. In general, this test must be applied in the context of the community in which they live. The standard to apply is not that of some European countries, where every worker considers himself entitled to a motor-car, colour T.V., washing-machine, electric lawn-mower, and almost every labour-saving gadget known to mankind. 60. By the same token, however, it would clearly be wrong to apply the standards of, say, some disaster-stricken parts of India, where more than half of the population are below subsistence level in terms of money, food, clothes and shelter. 61. From what I have heard in this case, the relatives of the deceased in China were not and are not in dire straits. It is only natural that Chow Yeung should tend to exaggerate their plight. For example I note that the grandmother has a separate house of her own. If the family were desperately short of money, one would expect her to be living with the deceased's father and mother, which would be likely to effect a considerable saving in the economy. (House-maintenance is often quoted as a major expense and a great burden in the rural areas of China.) Also it is difficult to visualize that a doctor would be charging, except perhaps a nominal fee, for treating the deceased's mother, unless it was plain that she was able to afford it. Over the two year period 1976 and 1977, the average remittance was in excess of 50 RMB per month. 62. Some idea of the value of that money in the community in which the relatives reside can be gained from the evidence of Chow Yeung that his elder brother earns 50 RMB per month. That brother is married, and for all I know may have children. There is no claim that he was dependent upon the deceased, and accordingly it can be assumed that 50 RMB per month is at least a living wage for a married man. By these standards one can only conclude that such a sum would be more than enough to maintain the deceased's retired parents and aged grandmother. 63. To sum up thus far, I very much doubt whether all the $2000.00 per annum was spent on "necessaries" within the definition which to I have earlier referred. 64. I can do no other than assess the position out of the top of my head in the present case, but I am minded to find that a figure of roughly two thirds would adequately, if not generously, represent the amount needed for necessaries. In round figures, let us put it at $1,400.00 per annum. 65. For how long would the deceased have gone on making these remittances? 66. I will assume his continued capacity to do so, in the sense of continued employment at the same level, and continued absence of other financial responsibilities; I will also assume his continued filial piety. 67. Grandmother is already 80 years old, and thus the span of time for making provision for her is obviously limited. 68. Father and mother are both 63 years old. Life expectancy is never an easy matter to assess. Neither are future currency values or inflation. Grandmother can be expected to die first, but I will not assume that that would necessarily result in a reduction in remittances. 69. Twelve years is in my view the outside limit of the length of time in the future over which the deceased would have been likely to continue supporting these relatives or any of them. Even that may be over-generous. 70. The award upon the partial dependency in the present case is accordingly based upon $1,400.00 x 12, which is $16,800.00. 71. As I prefer to make such an award in round figures I find for the Applicant in the sum of $17,000.00, with costs to the Applicant, to be taxed on the upper scale unless earlier agreed. 72. In conclusion, I would reemphasize my previous remarks concerning the standard of proof in cases where the alleged dependants of a deceased workman are in China. The courts are entitled to the fullest disclosure of the financial circumstances of such relatives; if a person is certified as a dependant of the deceased workman in Hong Kong, the question naturally arises why such a person is a dependant, and to what extent. It would be sheer humbug to order employers to pay out sums of compensation which ultimately serve no purpose except as a subsidy to the social welfare services of a neighbour state, and for this reason the true position of these so-called "dependants" in China must be clearly revealed in each case. 73. In Open Court this 24th day of April, 1979.
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