MAK HUNG YIN v. TSANG KOON CHUNG AND OTHERS

CACV 949/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 949 OF 2001

(ON APPEAL FROM HCPI 1038 OF 1997)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. This is an appeal from a judgment of Lugar-Mawson J who awarded damages to the plaintiff for personal injuries. There were three defendants.

2. The action against the 2nd defendant the Director of Social Welfare was discontinued prior to the trial.

3. The case was a rather extraordinary one. The plaintiff's claim related to injuries he allegedly suffered as a consequence of assaults on his person inflicted by the 1st and 3rd defendants who were both serving officers in the Social Welfare Department.

4. On 12 January 1996 the plaintiff attended with his wife at the Social Welfare Department offices at Kwai Hing. The purpose of the visit was for the plaintiff to collect a death grant benefit in respect of the death of his mother.

5. It was accepted by the Judge that the plaintiff who was aged 56 and unemployed is both a heroin addict and an alcoholic. It was also accepted that at the relevant time the plaintiff was in an inebriated condition and behaved in an abusive manner resorting to foul language.

6. It was the plaintiff's case that he was assaulted by the two defendants and sustained serious injuries.

7. There can be no doubt that he did sustain serious injury.

8. Later on in the same day he was admitted to Princess Margaret Hospital where he was found to be suffering from an epidural haematoma. An emergency operation was successfully performed upon him and fortunately it would appear that he has suffered no permanent brain damage.

9. There was also evidence before the Judge which he accepted that following his visit to the Social Welfare Office he had been banging his head against a wall and inside a lift and then allowing his head to become sandwiched between the closing lift doors repeatedly. In other words self inflicting injuries to his head.

10. The 1st defendant was charged with common assault and the case was heard in the Tsuen Wan Magistracy on 18 October 1996. The 1st defendant agreed the brief facts of the case and was bound over by the Magistrate to keep the peace in the sum of $500 for 12 months.

11. For the reasons he gave the Judge was satisfied that the injury to the plaintiff had been caused by the defendants' assaults upon him and awarded him total damages of $91,600.00. The award was made against the defendants jointly and severally.

12. The 3rd defendant appealed against his judgment. The appeal was heard on 13 March 2001 and judgment was handed down on 21 March 2001.

13. The appeal was allowed. Rogers VP delivered the leading judgment and gave reasons why the award should be set aside.

14. It will be appreciated that as the 1st defendant was not a party to the appeal there was no question of the award against him being set aside. Hence this appeal.

15. The critical question on this appeal is to consider the judgment of the Court of Appeal and determine the extent (if any) to which a distinction can be drawn between the roles assumed by the two defendants and more particularly having regard to the reasoning of the Court whether the 1st defendant would have succeeded also had he been a party to the appeal.

16. There were two main areas where the Court of Appeal was critical of the way in which the Judge dealt with the evidence before him.

17. The first related to the plaintiff's evidence as to how he received his injuries.

18. As was pointed out by Rogers VP the plaintiff did not give evidence in court to the effect that he hit his head against a hard object as a consequence of being pushed by either defendant. His complaint was confined to receiving blows from the fists of the defendants after he fell on the floor.

19. As earlier stated the Judge accepted the evidence of the witnesses who gave evidence that the plaintiff inflicted injuries to his head himself.

20. All of this has to be considered in conjunction with the Judge's analysis of the medical evidence which is the other area where the Court of Appeal was critical.

21. The main point to be borne in mind is that all of the medical reports were agreed and none of the doctors were called upon to give evidence viva voce before the Judge.

22. The consequence of this was that none of the doctors were invited to consider the conflicting evidence concerning the way in which the injuries were caused.

23. An opinion was however expressed in Dr Fung's report that it was extremely unlikely that the epidural haematoma had been caused by fists hitting the plaintiff's head.

24. What all this amounted to was that there was insufficient evidence before the Judge to enable him to hold that on the balance of probabilities it was more likely that the plaintiff suffered his injuries in the interview room than by the subsequent events when the plaintiff was leaving the premises.

25. This was the way that Rogers VP analysed the position at p.14 of his judgment:

"Insofar as the judge reached the conclusion that the plaintiff's injury must have been occasioned in the interview room and not by his banging his head either against the wall or the lift or by allowing the lift doors to close on his head that is, again, a conclusion that was reached without evidence. None of the doctors was asked to consider, or at any rate dealt in their reports with, the question as to whether the plaintiff's injury could have been caused by his proven self-battery antics in the corridor and in the lift. The best that the judge knew of the lift was what could be gleaned from the photographs. But there was no examination of the lift or the edges of the doors. The judge made no reference to Ms Lai's evidence that the lift was 'a bit mad' nor to Ms Wong's evidence about the lift doors banging.

I have reached the conclusion, therefore, without even considering the 3rd defendant's evidence, that the judge's conclusion cannot be allowed to stand. It is in the nature of a surmise. For the reasons I have already explained, in disturbing the judge's conclusion, this court would not be disturbing a finding of primary fact.

The allegation against the 3rd defendant is of a serious nature. Not only does it accuse him of a crime, but his position as a public servant makes the accusation even more serious. An allegation that an officer of the Social Welfare Department, of all Government offices, assaulted someone, whom he was there to protect and look after, is very serious. This is quite apart from the effect that the proof of such an allegation might have on the 3rd defendant's career. In those circumstances, although, of course, the standard of proof is the civil standard, namely proof on a balance of probabilities, a Court should not reach such a conclusion without proof commensurate with an allegation of such gravity.

In my view, in this case, even without such considerations the conclusion was not a tenable one. Indeed, if a man, who is at least partially under the influence of alcohol, chooses to batter his head against a wall and against the metal surface a lift wall and then follows that up by allowing lift doors to bang against his head, sandwiching it, a number of times, it must be impossible to draw the conclusion that any head injury was caused by some other means when the medical evidence has not excluded his self battery as the cause. This must be particularly so if that required drawing a conclusion that those other means were in the nature of an occurrence of which he gave no evidence, even though it had been belatedly pleaded on his behalf."

26. Although these observations were directed towards the 3rd defendant's appeal they are equally applicable to the 1st defendant. There is no reason why the 1st defendant's appeal should not also be allowed and the award made against him set aside. In our view the appeal should succeed and is accordingly allowed. We also order that the costs of this appeal and below be to the 1st defendant.