CHEN YUNG HUI alias CHAN WING FAI v. LAM SHING AND ANOTHER

1985, No. A7200

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an action for damages for personal injuries and loss suffered by the plaintiff, who was aged 30 at the time of this incident as a result of an assault that occurred on the 24th December 1982 at about 11:15 in the morning. I am only concerned with the issue of liability.

2. On that day the plaintiff who employed as a delivery worker for a transportation company, was required to deliver some bales of cotton to a factory in Tai Yip Street, Kwun Tong. The lorry which was used to carry the goods parked outside Nos. 101 and 103 Wah Yip Street which runs parallel to Tai Yip Street. It, was the plaintiff's intention to deliver the goods by using the corridor on the ground floor of Peter Leung Industrial Building, the premises of the 2nd Defendant, which is located between the two streets and can be seen on the plan on page 18 of the is 1st defendant's bundle of documents.

3. The goods for delivery were unloaded from the lorry onto a trolley which the plaintiff and a colleague pushed along the corridor of the premises to about half way when the 1st defendant, who was employed by the 2nd defendant as a caretaker of the building, informed them that they were not allowed to do so. A quarrel then ensued, but Mr Chow who was the driver of the lorry then interposed in order to mediate. According to the plaintiff the 1st defendant went to the management office where he intended to make a telephone call, but was prevented from doing so by the plaintiff. The plaintiff testified that tire 1st defendant had said to him that he was going to ask some people to come and claimed he was afraid that something might happen. The 1st defendant then went to the kitchen and came out holding a knife. The plaintiff said he was about to leave the manager's office when he was chopped by the 1st defendant on the head two or three times. He tried to ward off the attack with his right arm, but this resulted in injuries to his arm and hand. The plaintiff was later admitted to the United Christian Hospital. At the hospital the plaintiff made a statement to the police in which he said that the 1st defendant was holding an iron waterpipe during the incident.

4. In cross-examination the plaintiff agreed that a hook or spoke was used by him to unload the bales of cotton. It was also established in cross-examination that the plaintiff was in fact making his second trip along the corridor as the original delivery was the wrong one so that it had to be returned. He also agreed that there is a notice outside the building to the effect that the corridor is not a public thoroughfare. The plaintiff explained that the lorry had been parked in Wah Yip Street because of difficulties in parking in Tai Yip Street and that the corridor was to be used as a short cut.

5. The 1st defendant gave evidence that he is a watchman and that at the time of the incident he was aged 57. He says that he saw the plaintiff with two other men in the corridor on the date of the incident and told them to go away which they did. However, he saw them again some time later that morning and told them to stop. At this time the plaintiff was holding a hook which he was using to keep hold of the cotton yarn on the trolley while he was pushing the handcart.

6. After the 1st defendant had spoken, the plaintiff became angry and said to him "You are asking for trouble". He was then attacked with the hook which landed upon his left arm causing him some pain. At this juncture the 1st defendant said that he picked up a piece of waterpipe which was nearby and asked why he had been struck, but he received no reply. He went on to say that he was then cornered by the three men, but after dropping the waterpipe, went into the manager's office to telephone the police. Here he picked up the receiver and started to dial, but was prevented from so doing by the plaintiff who seized the telephone set. He was then assaulted by the plaintiff and his colleague upon his chest which resulted in his body coming into contact with the wall behind him. After this assault the 1st defendant managed to get to the kitchen where he hoped to secure himself, but found that he was unable to shut the kitchen door. As a result he seized a vegetable knife in order to defend himself. He was confronted by the plaintiff and his two colleagues by the kitchen door where the plaintiff tried to grab hold of the knife at which stage the 1st defendant said that he was very frightened. When the plaintiff tried to get hold of the knife he received injuries to his arm and head. However, the 1st defendant was eventually overpowered by the plaintiff and his colleagues and the knife was taken from him. The police were subsequently called and the 1st defendant was arrested.

7. On the 30th December 1982 the 1st defendant appeared before a magistrate at the San Po Kong Magistracy where he pleaded guilty to a charge of unlawful wounding, contrary to section 19 of the Offences against the Person Ordinance and was fined $1,000. The 1st defendant was not represented at the hearing, but in mitigation he stated that he was first attacked by two persons, and when he went to the management office to make a telephone call he was stopped. He also said that he suffered injury.

8. As a result of the incident the plaintiff suffered injuries to his scalp, right elbow and right hand whilst the 1st defendant received injuries to his chest and left hand.

9. The 2nd defendant, the 1st defendant's employer, has been joined as a party on the grounds that the company was vicariously liable for the assault committed by its employee, the 1st defendant, in the course of his employment. No evidence was called by the 2nd defendant.

10. The issue that I have to determine is one of fact based upon the credibility of the plaintiff and the 1st defendant who were the only witnesses who gave evidence. It is clear that the plaintiff and his colleagues had no right to use the premises of the 2nd defendant as a short cut whilst the 1st defendant was merely carrying out his duties as the 2nd defendant's caretaker when he made his protestations. Despite the first protest made by the 1st defendant the plaintiff and his colleagues, did not take any notice and returned later. On the second occasion, I am satisfied and accept the evidence of the 1st defendant that the plaintiff became very angry at the 1st defendant's attempt to prevent their access along the corridor and that he was assaulted by the plaintiff with the hook. The subsequent events reveal that the plaintiff and his two colleagues acted in an aggressive manner towards the 1st defendant without the slightest justification. In respect of the two versions that I have heard concerning this incident I have no hesitation in accepting the evidence given by the 1st defendant and reject that given by the plaintiff.

11. The 1st defendant was considerably older than the plaintiff and his two colleagues and was merely carrying out his proper duties in trying to dissuade then from using the 2nd defendant's premises. Instead of leaving the premises on the second occasion as they should have done, they reacted in a hostile manner and carried out a deliberate assault on the 1st defendant, and also prevented him from telephoning the police.

12. I found the 1st defendant to be very frank in the answers that he gave to questions put to him both in evidence-in-chief and in cross-examination. He was an impressive witness and I am quite satisfied that he was telling the truth. The plaintiff, on the other hand, was evasive and rather shifty. He was not a witness of truth. The injuries that he suffered were consistent with an attempt to seize the knife as was described by the 1st defendant rather than from having been attached from behind. The facts put forward by the 1st defendant in mitigation before the magistrate are again consistent with his evidence in this case that he was acting in self-defence. In fact, having regard to those facts the magistrate should have made further investigations into the matter before accepting his plea of guilty.

13. In my judgment I am satisfied that the 1st defendant was wrongly convicted for had he had proper legal advice, he could have advanced a perfectly good defence to the charge of unlawful wounding. In the circumstances, I find that the plaintiff and his two colleagues were entirely to blame for the incident that occurred on the 24th December 1982 and that the action taken by the 1st defendant to defend himself was reasonable. He was placed in a position whereby he was entitled to take the steps that he described in his evidence. He did no more than was reasonably necessary in all the circumstances. His defence of self-defence therefore succeeds. The plaintiff's action is accordingly dismissed.

14. As the 1st defendant has suffered a gross injustice as a result of his conviction for unlawful wounding I consider that it would be appropriate for a petition to be submitted to the Governor to consider whether a pardon should be granted.