Mak Pong-chi v. Tin Sing Chemical Engineering Co

DCEC000104/1980

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

WORKMEN'S COMPENSATION CASE NO. 104 OF 1980

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In the Matter of an Application between:-

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Coram: Judge de Basto, Q.C. in Court.

Date of Judgment: 13th January 1981

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JUDGMENT

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1. This is a claim under the Workmen's Compensation Ordinance for compensation to the parents of MAK Hok-man, deceased, as dependents of the said deceased who was fatally injured on the 9th December, 1978 in the course of his employment with the Respondent Company.

2. Liability in this case is admitted and the only issue now before the Court is the question of the extent of the dependency.

3. There is an undated Investigation Report by the Social Welfare Department ("the report"). The information contained in the report and the conclusions which the Social Welfare Officer arrived at, were based largely, if not wholly, on information purportedly received from Mr LAM Fong the attorney for the dependents and also from a Mr MAK Wai-kuen (wrongly referred to in the report as a brother of the deceased) who was a former co-villager of the dependents. Both these persons gave evidence and both denied what is attributed to them in the report.

4. The attorney, Mr LAM Fong, is the Secretary of the Masons' Union. He visits China at least twice a year and each year he represents about 40 or 50 Workmen's Compensation applicants who reside in China. He gave his evidence in very broad terms. He was not familiar with, nor has he any particular knowledge of, the commune to which the dependents belong. As far as I am aware Mr Lam has never met the dependents and obviously does not know anything about them of his own knowledge. Mr Lam's evidence was, inter alia, in such general terms that I am quite unable to place any reliance on it.

5. Mr MAK Wai-kuen testified that the last time he visited the dependents' village was in 1978 - he added, "Recently I have not returned to the village so I am not clear about their situation now." He said the last time he saw the dependents they were doing light agricultural work - "they couldn't do heavy tasks". Mr Mak said that the dependents owned their own house which they had inherited. He testified, in answer to the Court, that apart from payments based on working points, members of the brigade who did agricultural work receive food rations each month. The last time Mr Mak saw the dependents was in 1978 when he spoke to them "casually". Mr Mak said he was not now familiar with the Ham Sai Brigade. When he was asked when it was that he had been familiar with conditions in the Ham Sai Brigade he replied he seldom "asked about these matters". I accept from Mr Mak that the dependents own their house and I also accept that, in all probability, the dependents, like other agricultural workers, receive food rations. The rest of Mr Mak's evidence is in such impressionist terms that I am unable to place reliance on it. There are in evidence a number of Chinese documents. One of these is a remittance voucher from the China State Bank Ltd., Hong Kong Branch, showing that on the 15th May 1978 the deceased remitted RMB$300 (HK$822.70) to his father in China. Another remittance voucher is from the Yien Bank, Hong Kong Branch, showing that on the 6th June, 1978 the deceased remitted RMB$200 (HK$548.10) to his mother in China. There is another Chinese document of which there seems to be two English translations. I am informed by the Court Interpreter that the English translation in long hand is more accurate. The document, dated the 5th May, 1980 issued by the Chinese Agricultural Bank, Tung Kwun County, certifies that the deceased remitted "about" RMB$1,000 annually to his father in China "to maintain his living." The document goes to say: "as there is incomplete record of remittance, this document has been drawn up as proof." This seems to be an inconsequential statement.

6. Mr Clough, for the applicant, suggested that to assess the average monthly remittance to the dependents the Court should add the two remittance referred to above and divide by two giving a purported monthly average of HK$685.- On the other hand, taking the rate of exchange of RMB$1 to HK$3, and using the certifying document of the Chinese Agricultural Bank, this would indicate a monthly remittance to the father only of about HK$250.

7. Mr Pirie for the Respondent informed the Court that his "usual experience is that HK$150-$200 is remitted regularly" by sons living in Hong Kong to their parents in China. However, Mr Pirie's usual experience, with great respect, does not amount to evidence. Mr Pirie suggested HK$200 per month might be the appropriate figure.

8. I am not unaware that in cases of this nature it is extremely difficult for the alleged dependents to adduce any but the broadest of evidence. Cases of this kind are notorious for lack of cogent evidence. It is not uncommon for persons, as in this case, to make remittances to their relations in China through different banks. However, I must adjudicate and do the best I can on the evidence before me. On balance I think that in all probability the deceased sent on the average about HK$300 per month to his parents in China. The accused was aged 32 at the time of his death and a bachelor. His parents are in their mid-sixties. I think the deceased would probabably have continued to contribute to the support of his parents, on average HK$300 per month. For the purposes of assessment I think the deceased's parents have a reasonable prospect of another 12 years of life and I think the deceased would have made monthly contributions to his parents throughout that time. I am satisfied the parents of the deceased are partially dependent on the deceased. I award the applicant $43,200 as compensation. I agree with the recommendation of the Social Welfare Officer that there should not be a lump sum payment. I direct that this sum be paid into Court by the defendant within 14 days. I award interest on the said sum of $43,200 at the rate of 12% from the date of the accident to the date of this Order.

9. I have found, almost invariably, Reports by Social Welfare Officers, not only in cases of this kind but also in other proceedings, to have been conscientiously prepared. But I do not think that Social Welfare Reports should contain findings of fact. In the present case the Report includes the follwoing:-

"From the above findings, the parents were considered as partial dependents."

With respect, the question, inter alia, whether a dependency is whole or partial, is a question of fact for the trial judge to determine and no attempt should be made to usurp that function.

Representation:

Mr Clough of D.L.A. for the Applicant.

Mr Nick Pirie, instructed by Messrs. Murno & Co. for the Respondent.