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Ting Kam Yuen v Cheung Wing Kin And Another

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date18 August 2011
Subject MatterMiscellaneous Proceedings
Judgement NumberHCMP2276/2010
CourtHigh Court (Hong Kong)
HCMP2276/2010 TING KAM YUEN v. CHEUNG WING KIN AND ANOTHER

HCMP 2276/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2276 OF 2010

____________

BETWEEN

TING KAM YUEN, the lawful attorney for and on behalf of the Dependants of TONG KWOK FONG, deceased, and as the Personal Representative of the Estate of TONG KWOK FONG, deceased Plaintiff
and
CHEUNG WING KIN, the Representative of the Estate of CHEUNG TAK MING (deceased) 1st Defendant
CHEUNG WING KIN, the Representative of the Estate CHOW TAI HO (deceased) 2nd Defendant

____________

Before: Deputy High Court Judge L. Chan in Court

Date of Hearing: 16 August 2011

Date of Judgment: 18 August 2011

______________

J U D G M E N T

______________

1. This is an application by the Plaintiff for a declaration that all interests in two properties registered in the names of Cheung Tak Ming (“Tak Ming”) and Chow Tai Ho (“Chow”) as joint tenants had passed to Tak Ming as the surviving joint tenant upon the death of Chow, and now form part of the estate of Tak Ming, the 1st Defendant.

The background

2. The properties are two residential flats with one situated in Chai Wan and the other in Aberdeen. The Plaintiff is the personal representative of the estate of Tong Kwok Fong (“Tong”). Tak Ming was the owner of a fishing vessel. Tong was a Mainland fisherman working on Tak Ming’s vessel. Tak Ming secured Tong’s service by paying a management fee to Tong’s employer, the Hong Kong and Macau Floating Fishermen Service Company. Tong died as a result of a collision between Tak Ming’s vessel and a ship somewhere at the south of Hong Kong. The Plaintiff, herein as the personal representative of Tong’s estate, sued the estate of Tak Ming for damages in HCPI288 of 1996 and obtained judgments for liability and quantum.

3. Tak Ming’s vessel went for a fishing trip on 14 March 1993. Those on board the vessel were Tak Ming; his wife, Chow; his younger brother, Cheung Kwei Ming (“Kwei Ming”); his youngest brother, Cheung Sai Ming (“Sai Ming”); Sai Ming’s wife, Kok Kun Mui (“Kok”); Sai Ming’s daughter, Cheung Chi Ching (“Chi Ching”); and Tong. The vessel finished the fishing trip at about 4 am on 15 March 1993 and commenced its return journey. The vessel was then steered by Tak Ming. At about 5 am on the same day, the vessel collided with a ship and sank.

4. It is the Plaintiff’s case that Chow died shortly after the collision while Tak Ming survived the collision but died after being rescued by a container ship, MV Kuo Chang, more than an hour later. The Defendants, however, disagree. They say that there is insufficient evidence to show whether Tak Ming survived Chow or vice versa. The parties do not dispute that Tak Ming was older than Chow.

5. Section 11 of the Conveyancing and Property Ordinance, Cap.219 provides that:

“(1) Except for the purposes of section 4(11) of the Intestate Estates Ordinance (Cap.73), where, after the commencement of this section, 2 of more persons die in circumstances rendering it uncertain that any one of them, or which of them, survived the other or others, such deaths shall, for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.”

6. However if the Plaintiff can demonstrate, with evidence, a defined and warranted conclusion that the younger person had died before the older one, the presumption in section 11 will not apply (Hickman v Peacy [1945] AC 304 at323-324 and Re Bate [1947] 2 All ER 418. The burden of proof is, of course, on the Plaintiff and the standard is on a balance of probabilities (Re Phene’s Trust (1869-70) LR5 Ch. App. 139 at 151 and Hickman v Peacy at 321 and 324).

Statements of Kwei Ming and Sai Ming

7. After the collision, both Kwei Ming and Sai Ming had made statements to the police. Kwei Ming gave his statement to a police officer on 17 March 1993 at 1530 hours which was about two and half days after the incident. Sai Ming gave his statement on the same day at 1800 hours to another police officer.

8. The relevant parts of the English translation of Kwei Ming’s statement are as follows:

“…

3. At around 3 pm on 14 March 1993, our vessel reached Dangan Island and we started to catch fish. At about 3 am on 14 March, we started to draw up the net for the last time. At about 4 am we started to return to Hong Kong from the south of Dangan Island via the Dangan Bay. At that time my elder brother, Cheung Tak Ming was steering the fishing vessel and the other adults were sorting out our catch into different types at the stern while my niece was sleeping inside the cabin.

At around 5 pm when I was at the stern, I heard our fishing vessel sound out three short blasts and hurried astern swiftly. Shortly thereafter, I heard a roaring sound from the bow and the whole vessel suffered a big shock. I saw everybody at the stern had fallen to the floor. I heard my elder brother shouting from the wheel cabin above ‘A big ship knocked against our fishing vessel.’ I immediately saw at our starboard forward the bow of a big ocean going ship with a very high hull and of light grey colour. I then saw our vessel listed to the port side and the stern began to fill with water quickly.

Shortly thereafter I fell into the water. I then exerted my utmost strength to swim up to the surface. When on the surface, I saw the port side of our vessel had heeled over to facing the sky and the starboard side was already underneath the water but not completely sunk. At that time, I did not see any other vessel at the sea surface. Then I shouted loudly at the water surface for my elder and younger brothers. I saw my elder brother carrying my niece on the water surface and my younger brother was also on the water surface. The others were not seen.

At that time there were many sundry items floating in the surrounding area of the sea surface. We three brothers saw a refrigerator. (We) then used the refrigerator and placed our niece onto it. We three brothers maintained the refrigerator and floated on the sea surface. After floating for about five minutes, fog began to appear at the sea surface. Whilst floating, we, the three bothers, shouted for help unceasingly.

(After) about more than an hour, we heard some person’s voice. We therefore swam towards the direction of the person’s voice and shouted for help at the same time. Shortly thereafter, I saw a big ocean going ship. It had a black colour hull and a few very large white colour English letters at the middle of the hull. There were many containers on board the ship. We then shouted loudly to the ship to lower a life boat. But it did not respond. Then my younger brother said he had sufficient stamina (and we should) let him swim to the ship.

Then my younger brother swam to the ship. I and my elder brother continued maintaining the refrigerator and floating on the sea surface. After waiting for about several five minutes, I realised that my elder brother had begun to suffer from lack of physical strength. I then shouted loudly to the ship for my younger brother to lower a life boat. But there was still no response.

Shortly thereafter I saw three persons bringing life boats and life jackets swimming towards us. Two of them rescued my elder brother. The other one gave me a life jacket. He then supported the refrigerator and swam back to the ocean going ship. And I myself swam back (sic) to the ocean going ship. After having returned (sic) to the ship, I saw my younger brother, who told me to go up to the wheelhouse of the ship to liaise with the Marine Department to ask for a helicopter to rescue us.

After finishing the talking, someone then gave me a blanket (and) led me to the resting room for a rest.

4. Having waited on the ship for about several five minutes, a marine police vessel carried us the brothers and our niece from the ship to Sai Wan Ho, Marine Police Base to board an ambulance to a hospital. After arriving at Tang Shiu Kin Hospital, I learned that my elder brother had passed away and my niece had to be sent to Queen Mary Hospital. I was discharged from Tang Shiu Kin Hospital after examination by the doctor.

…

Q. At the time of the collision, did you see if the wind and wave at the sea surface was big or small, the visibility was clear or not and how was the weather?

A. At that time, there was no wind (and) no wave, the sky was still very dark, but there was the moon. Visibility was about two nautical miles. No fog yet.

…

Q. Before the collision, did you hear any other vessel letting off any warning signal or light signal?

A. No.”

9. The relevant parts of the English translation of Sai Ming’s statement are as follows:

“… At about 4 pm, we started to go home from the south of Dangan Island via Dangan Bay. At that time it was my eldest brother who was steering the vessel, the others were sorting out the fishes at the stern. My daughter was sleeping in the cabin. At about some time after 4 to 5 o’clock, I suddenly heard our vessel sounded out three short blasts. I felt that my vessel was moving swiftly astern. I then heard a “bang”. I then fell on the floor. Then my eldest brother shouted loudly that (we were) knocked by an ocean going ship Then I looked up from the edge of the starboard side and saw a light grey colour bow of an ocean going ship.

Shortly thereafter, water came into the stern of the vessel. Then I was washed down to the sea. I swam back to the water surface, looked around (but) had already lost sight of the ocean going ship. I shouted loudly for my eldest/elder brother and looked for my wife. I heard the responses from my eldest and second elder brothers. I then swam towards them. I saw my eldest brother...

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