Au Kam Han v. Au Kam Ming and Another

HCPI001069AM/1998

HCPI 1069/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1069 OF 1998

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CORRIGENDUM

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Page numbers 15, 20, 32 and 33 be replaced by the attached new page numbers 15, 20, 32 and 33.

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outcome. The Defendant well knew that he would be faced with such evidence of his and his co-accused's interviews and statements. That was why such a wasteful attempt was made to prevent the Plaintiff having access to them. I do not need to repeat my comments made in the judgment delivered in that earlier hearing. Any attempt to prevent the Plaintiff relying on such evidence was a futile effort to deny justice. Since the Police officers are not required to prove the recording of the statements or interviews - most of the contents are undisputed in any event - the dispute pales into insignificance.

Although both Defendants dispute the accuracy of the records in some respects, such disputes do not affect the overall picture disclosed by the investigation into this crime and the additional evidence adduced in this trial. Their challenges are really limited to a complaint that the Police Officers did not record clearly enough that the first Defendant told the second Defendant to cancel the plan and that the second Defendant told Leung Kam-yan and/or, one of the gang of four, to cancel the plan; and that neither Defendant had wanted Mr Leung killed or said anything to that effect.

The First Defendant also pleaded guilty to conspiring to cause grievous bodily harm and he too was sentenced to ten years imprisonment.

The Defence

Mr Bedford advanced the proposition of the 'novus actus' as breaking the chain of causation. Quite what 'novus actus' he had in mind was difficult to fathom. However the argument, such as it was, was reduced to a contention that since the first Defendant allegedly told the second Defendant to abandon to plan, and the second Defendant allegedly told Leung Kang-yan to abandon the plan, neither of them could incur any

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Pain and Suffering and Loss of Amenity

That this man suffered pain and anguish before his death is unarguable. He was, on the evidence, abducted at about 1 p.m. His last telephone contact with his wife (and with anyone as far as is known) was at about 7 p.m. To the extent that one can rely upon Ho's information he was probably alive until 8 p.m. His hands were bound with wire and his mouth taped. The pathologist's report described his injuries in stark detail. He had 16 or so horrific "chopping" injuries. He was buried in a shallow grave. The report concludes that the cause of death was unascertainable. Decomposition of his body had made the pathologist take that view. This seems to have been the comment which led to Mr Bedford's submission that this somehow raised an obstacle to finding his client liable. It does not call for much understanding to appreciate that the chopping injuries were highly likely to be fatal. Polythene sheeting found covering his face and neck could have caused suffocation if, of course, he was still alive. It was not possible to say whether he died before or after burial. The accomplice Ho had been told that Mr Leung resisted vigorously before he was killed.

Miss Yip puts forward $300,000.00 as an appropriate figure under this head.

Mr Bedford seemed to suggest that the Plaintiff had failed to prove that at the time the deceased died he could have brought an action to recover damages. That I reject as being an unsustainable argument. This man died as the result of the criminal act of the Defendants. His estate is entitled to recover damages appropriate to the pain and suffering experienced by him which was more than transient for which he could have

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could have lent themselves to such exercises when public funds were at stake. I make it clear that the lawyers eventually representing the 2nd Defendant did not associate themselves with these actions.

Furthermore this case on liability was conducted on behalf of the 1st Defendant with scant regard for the obvious and the unarguable.

Whilst there was certainly justification for a close examination on behalf of the Defendants of the evidence relating to the level of dependency and loss of accumulation of wealth, there was none for the attempt to raise an argument on liability.

The Amended Defence settled by Counsel perhaps gave some foretaste of the stance to be adopted. Paragraph 10 reads :

"..... the Plaintiff has failed to claim for financial assistance that was available to the Plaintiff under the Criminal Injuries Compensation Scheme ..... and ..... this represents a failure to mitigate the Plaintiff's loss."

Any suggestion that the Plaintiff's decision to sue the tortfeasor for compensation instead of resorting to a plea for public funds represents a failure to mitigate loss, defies logic and the law. Fortunately it was not pursued in written argument.

The Defendant pursued a case on liability which wasted costs to a significant effect. Happily the argument on damages has been confined to paper but is also wasteful to some extent. The conduct of the Defence in this case calls for costs on a common fund basis. The Defendants are legally aided and therefore the costs will have to be paid out of public funds. Nonetheless if the 1st Defendant's assets are found to be

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sufficient to meet the costs awarded to the Plaintiff then the Legal Aid fund may be able to recoup such costs.

Finally the last paragraph of Mr Bedford's written submission sets the tone for the nature of the arguments raised. I simply quote the last two sentences :

"Plaintiff's claim is a vengeful attempt to exact an outrageous blood money claim from the 1st Defendant. The 1st Defendant calls upon the court to send a clear message to the Plaintiff that the injury claims are intended to be compensatory and not punitive and that the civil jurisdiction is not to be made an arena for spiteful and unnecessary claims of this kind."

Such incredible statements are calculated to produce only a deafening silence.

Representation:

Miss Anita Yip, instructed by Messrs Darin Leung & Partners, for the Plaintiff

Mr Nigel Bedford, instructed by Messrs Paul Ng & Company, for the 1st Defendant

Mr John Kerr, instructed by Messrs Or, Ng & Chan, for the 2nd

Defendant [Appeared on 18 and 19 December 2000 only]