To for Cheung v. To Kam Luen and Another

HCA002611/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 2611 OF 1972

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Coram: Mr. Registrar Silke in Chambers.

Date of Judgment: 3 October 1973

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DECISION

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1. This is an assessment of damages on part of an Interlocutory Judgment signed on the 10th January 1973 and concerns the 1st defendant, To Kam Luen, only, the action against the 2nd defendant, To For Kun, having been discontinued on the 9th April, 1973.

2. The plaintiff is the registered owner of a plot of land at Nei Wai, Castle Peak, New Territories registered as lot No. 803A in Demarcation District No. 130.

3. On the 27th September 1972 the 1st defendant went onto the land and pulled down a structure in the process of being built, spread human and animal excretion over the land and spread it also on building materials which were on the land.

4. It would seem that there was a dispute among villagers as to the disruption of Fung Shui by the plaintiff's building on the site. There were to be two buildings the foundation of both of which had been completed. A large crowd entered upon the land and, while the foundations were not affected, destroyed the walls partly built on one of these. The plaintiff in evidence described the walls as being erected to a uniform height of te feet. He is supported by the person who arranged the carrying out of the work, Wong Bui. The 1st defendant in turn, having first said he was not there at all, gave it in evidence that the walls were only three feet high.

5. I prefer the evidence of the plaintiff and his witness on this point. Neither appeared to me to exaggerate and Wong Bui if he was not sure on any point said so.

6. Work had started on the 19th September - the destruction took place on the 27th September - investigations by the police then took place resulting in the defendant's appearance in court on the 30th September at Fanling. On the next day clearing up of the site commenced and this occupied two days - the 1st and 2nd October. It is said that the renewal of construction commenced on the 6th October.

7. The plaintiff claims general damages occasioned he says by having to store his feed for his farm for a period longer than he would have had if the destruction had not occurred. He was undoubtedly put to some inconvenience but I do not think the sum he mentions to be the measure of it. The agreement in respect of the construction has been produced and it gives a completion date of the 5th November by which date the building was complete. He could not have expected to store his feed until then.

8. I would award a nominal sum of $25 under this head.

9. As to the special damages:

10. I shall deal with these as they are set out in the statement of claim.

(a) Wages thrown away: I accept that this has been proved and that the work on the walls was wasted - but not that on the foundations. These were undamaged. Mr. Wong Bui thought four to five days were spent on this portion - he was not sure exactly how long. I would allow four days for six workmen at $60 per day or $1,440.00.

(b) I accept the stoppage of work was enforced from the 27th September to the 2nd October. In this and in connection with (d) (ii) I note that it is said the workers were allowed to go home after the 27th September and that it was difficult to contact them but I also note Mr. Wong Bui's evidence to the effect that workers were paid their wages daily and that the wages cheque (Ex. A1) was dated 30th September.

11. I see no reason why the reconstruction work could not have begun on the 3rd October and I would allow five days again for six workmen at $60 per day or $1,800.00.

(c) (i) No proof of this was provided - though obviously cement was used in the walls. I have no evidence at all to show me how much it cost. This I would disallow.

(ii) Six thousand bricks were delivered. The majority were used in constructing the walls and some which were left on the site were impregnated with excretion and "smelt badly". I accept both the quantity and the amount mentioned and would allow at $800.

(iii) It is clear that this was used in the foundations and is not compensable. I would disallow.

(iv) This fine gravel was used for the pillars and on 27th September two to three lorry loads were unused. This was partly damaged and Mr. Wong Bui told me one lorry load could be used in the reconstruction. I would allow $150 on this.

(v) Of these steel rods two to three piculs were unused. A total of eight piculs at a cost of $440 at $55 per picul were delivered. Some of these were used in the foundation - those unused were capable of use again, I would allow 3 piculs at $55 per unit or $165.

(vi) I accept that this was a total loss through either use in the walls or impregnation with excreta. Allow at $93.00.

(vii) Some of these angle irons were unused - Wong Bui says twenty pieces. I am in some doubt here as to what was destroyed as Ex. H1 refers to the delivery of 14 pieces only. The evidence is confusing and this item will be disallowed.

(viii) There is no evidence at all to show any loss of 1 1½  roll of wire fencing. Wong Bui says he does not remember whether destroyed or not. This will be disallowed.

(ix) I accept that this British Lumber was intended for beams and as a result of being impregnated with excreta was unusable because of its smell. I shall allow this at $1,000.00 (Ex. L1).

(d) (i) This has been proved and I shall allow in full. I did raise the point as to whether or not there was any payment made for the fill when dumped but this point was not pursued. $700.00.

(ii) I can see no reason at all, as I said earlier, why the construction workers who were being paid their daily wages could not at least have been asked to clear up the site. This was never done and extra workers at the construction wage of $60 per man were employed. I do not think the 1st defendant should be asked to pay twice and this will be disallowed.

12. The total special damages will therefore be assessed at $6,148.00. Add general damages at $25 and the total damages are assessed at $6,173.00.

13. The plaintiff is entitled to his costs but in the light of the amount recovered on District Court Scale V taxed.

14. The 1st defendant's costs be taxed in accordance with the Legal Aid (Scale of Fees) Regulations Cap 91 in the usual way.

15. Dated the 3rd day of October, 1973.

Representation: