China Light & Power Co., Ltd. v. Tsang Hing Yung and Another

HCA004303/1988

1988, No. A4303

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Master Jones in Court

Date of hearing: 12th December, 1988 and 9th February, 1989

Date of delivery: 20th February, 1989

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ASSESSMENT OF DAMAGES

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1. The first defendant was the consumer of electricity supplied to him by agreement with the plaintiff electricity company. He is now sued by the plaintiff under its Supply Rules for retrospective adjustments to billed charges in respect of interference with the meter. In the pleadings, the interference is averred to commence on 7th January, 1985 and( by a late amendment ) to cease on the 31st July, 1986, when a new meter was installed. Hence, the retrospective charges cover this period.

2. The first defendant failed to enter appearance and interlocutory judgment was entered against him on 17th July, 1988. This assessment is pursuant to that judgment. The plaintiff called Mr. Andrew Lo Ghung Park, employed as a revenue security engineer in its Revenue Security Department. His work involved, he said, cases of meter irregularity, when he assesses the need either to make refunds to or levy backcharges form customers. In so doing, he relies amongst other things on computer records.

3. In the course of his duties, Mr. Lo said he investigated the consumption history of first defendant. From his enquiries he concluded that the meter which was logging first defendant's consumption was working correctly, but had been manipulated. As a result of this, he said the meter was removed and replaced on 31st July, 1986.

4. Mr. Lo produced form the billing records of first defendant's account a computer printout of average daily consumption. This printout illustrates consumption on a daily average basis per month in the form of a simple graph line. It is known, according to the witness, as an ADC curve, the initials representing Average Daily Consumption. It is produced to assess backcharges based on the daily average level, comparing the period of tampering with the periods of normality on either side of it.

5. Mr. Lo said he used this method to assess backcharges, since it was impossible with simple meter tampering to make such an assessment on a technical basis. Meter tampering merely involved setting back the meter dial, after which the meter functioned normally but under-recorded consumption. The method of assessment used through the ADC curve is apparently known in the trade as "charge average consumption". It suffices to say that I accept both the need to use this method and its fairness and accuracy.

6. When explained by Mr. Lo, the ADC graph supported the plaintiff's contention that the meter started under-recording on 7th January, 1985. The monthly consumption levels form then until the replacement of the meter were far below the levels on either side of the period in question. I therefore accept Mr. Lo's evidence that the consumption for this period was impossibly low, and hence that the consumption either side of it was normal.

7. Having established his premises, Mr. Lo produced an average daily consumption figure for the "normal" period 6 months either side of the tampered period. He then applied this figure to the number of days in the tampered period and subtracted form the result the actual numbers of units billed for that period. By this method, he produced a short billing of 242648 units for the period of interference.

8. I accept the authenticity of Mr. Lo's method and of the short-billed figure it produces. Mr. Lo conceded that there may be a margin of error but claimed that it was small. In all the circumstances of this case, I find that the figure reflects the probabilities of short-billed consumption.

9. Reducing this figure of units of consumption into dollars and cents was the task of the next witness, Mr. Wong Fai Ming. He is the senior accounting officer with the plaintiff and said that his duties included working out backcharges from data supplied by the Revenue Security Department.

10. Mr. Wong produced as exhibit P.4 his revised calculations based on the short-billed units calculated by Mr. Lo. Monthly calculations were made on this basis and the total short-billing amounted to $142,663.51. This figure is lower than the amount in the statement of claim, owing to an amendment as to the date of installing the new meter.

11. The sum of $142,663.51 is accordingly awarded as damages, with interest at 2% over prime rate from date of writ to payment. Costs are awarded against the first defendant, with a certificate for counsel, save that there is no order as to costs of the adjourned hearing on 12th December, 1988.

Representation:

Appearance: Mr. J. M,atthews instructed by Messrs. Richard A. Parry for Plaintiff.

Tsang Hing Yung, 1st Defendant (Absent).