LAM KANG v. CHOI HOK YIN AND ANOTHER

HCPI 557/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 557 OF 2004

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J U D G M E N T

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Introduction

1.  The plaintiff, the father of the late Lam Cho Kin (“the deceased”), commenced this action in June 2004:-

(1) pursuant to the Fatal Accidents Ordinance (Cap. 22), on behalf, and for the benefit, of the deceased’s dependents (including himself);

(2) pursuant to the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) on behalf, and for the benefit, of the deceased’s estate.

2.  The 1^st defendant (“the defendant”) is sued as the primary tortfeasor whereas the 2^nd defendant is sued (pursuant to s. 13(1), Crown Proceedings Ordinance (Cap. 300)) as acting for the defendant’s employer, the Commissioner of Police (pursuant to s. 4(1), Cap. 300).

3.  The background facts giving rise to this action will be summarized below.

Background Facts

4.  The defendant was employed by the 2^nd defendant as a detective police sergeant.  At the relevant time, he was attached to the Kowloon West Regional Crime Unit.

5.  On 26 June 2001, the defendant received information that a crime syndicate would return spare parts obtained from a car theft to the victim of the theft incident later on that day in the Kowloon City area.

6.  The inspector commanding the team of police officers of which the defendant was a member organized an operation with a view to arresting the criminals involved.  Police officers of the team (including the defendant) would position themselves in the vicinity of the place where delivery of the stolen spare parts was expected to take place.  The plan was arrest action would be taken when the stolen goods were handed over.

7.  A light goods vehicle (“the suspected vehicle”) appeared at the scene at about 10:15 pm.  Its driver turned out to be the deceased.  Also inside the suspected vehicle were 2 males, one Mr Leung Kin Chan (“Leung”) and one Mr Yim King Hong (“Yim”).

8.  The suspected vehicle stopped in front of a traffic light at the junction of Ma Tau Kok Road and Kowloon City Road.  The defendant emerged from his ambush position and walked along the pedestrian crossing the front of the suspected vehicle.  He then turned and walked back.  Shortly afterwards, the defendant drew his service revolver and a shot was fired.  The bullet hit the deceased on the right side of his neck.  He later died as a result of the injury.

9.  Bulky stolen vehicle spare parts were found inside the suspected vehicle.  The deceased, Leung and Yim all have previous criminal convictions for offences connected with motor vehicles.

10.  Apart from this action, the defendant has faced criminal prosecution and disciplinary proceedings as a result of the shooting incident.  There is no need to go into the details of those earlier proceedings (except insofar as matters therein have been raised in this action (see especially under “Evidence Adduced at Trial” below)) suffice it to say, in relation to the criminal prosecution, the trial judge ruled that there was no case to answer and, in relation to the disciplinary proceedings, the charges were found not proven.

Causes of Action

11.  What precisely caused:-

(1)     the defendant to draw his service revolver;

(2)     the firing of the shot which resulted in the deceased’s death,

are two of the main factual issues in this action.

12.  In short, the causes of action pleaded in the statement of claim are:-

(a)     unlawful trespass to the person of the deceased;

(b)    discharge of firearm in breach of the Police General Orders (“PGOs”);

(c)     negligently discharging firearm.

Evidence Adduced at Trial

13.  Witnesses’ testimony will be dealt with under the next heading.  Besides that, the plaintiff adduced the following pieces of evidence, all of which are hearsay evidence in nature.

14.  In assessing the evidence, I have taken into account, among other things, s. 49(1), Evidence Ordinance (Cap. 8) :-

“In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence”.

S. 49(2), Cap. 8 stipulates that:-

“regard may be had, in particular, to the following-

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g) whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party”.

15.  The first piece of evidence comes in the form of an extract of the testimony of one Ms. Tsui Pui Wan (“Tsui”) given during the criminal trial.  Tsui approached the police quite some time after the shooting incident.  She told the police she happened to walk pass the scene around the time of the shooting incident and heard the shot being fired.  She said she thought at the time there was a flat tire.  When she turned her head, she saw a man (who must be the defendant) standing to the right of the suspected vehicle outside the driver’s window, pointing a pistol-like object (which was held by both hands) at the window.

16.  Because Tsui never claimed to have witnessed the shooting, the plaintiff adduced the extract of her testimony merely to establish in this action that the defendant never gave any warning to the deceased before the shot was fired.  The prosecutor in the criminal trial also appeared to have that matter in mind.  There was the following exchange between the trial judge and the prosecutor during the no case to answer submission:-

“MR SHAM: And speaking frankly, there’s no evidence of whether [the defendant] has identified himself as a police officer and then he drew his revolver or things like that …

COURT: Ms Tsui was never asked if she heard it.

MR SHAM: Yes, because she didn’t …

COURT: Well, I’m not saying …

MR SHAM: She was not asked.  Yes.

COURT: She was not asked.

MR SHAM: She wasn’t asked.  I accept that.

COURT: It’s a very difficult situation.

… ” (p. 112L-R, transcript of criminal trial).

17.  The appellant courts have often said that findings of fact by the trial courts (especially those based on an assessment of credibility and/or reliability of witnesses at trial) should not be lightly interfered with: Hong Kong Civil Procedure 2006, para. 59/1/48.  One of the reasons given for such observation is the disadvantage of not having had the chance of observing the witnesses testify: see, for example, Benmax v. Austin Motor Co. Ltd. [1955] 1 All ER 326, 327; Khoo Sit Hoh v. Lim Thean Tong [1912] AC 323, 325; Ting Kwok Keung v. Tam Dick Yuen and Others [2001] 3 HKLRD 12.

18.  I suffer from the same disadvantage.  A witness’ failure to mention something can give rise to at least 3 inferences: the matter did not happen, the witness has not seen or heard it, or the witness simply was not given the chance to mention it.

19.  In relation to Tsui’s testimony, the prosecutor, who was present at the criminal trial and the one who led the evidence-in-chief, basically conceded nothing could be made out of Tsui’s failure to mention if the defendant had declared his identity.  In these circumstances, I do not consider it proper to draw any inference adverse to the defendant.  No weight should therefore be attached to Tsui’s testimony.

20.  The plaintiff also seeks to rely on Tsui’s failure to mention the suspected vehicle surged forward before the shooting incident.  Judging from the whole tenure of her testimony (there was a drizzle, she was walking hastily and so on), Tsui was quite probably not particularly attentive to her surroundings.  For this additional reason, I also conclude that no weight can be attached to this failure.

21.  The next piece of evidence is an extract from the testimony of Leung also given in the criminal trial.  He said he fell asleep shortly after he boarded the suspected vehicle and was awoken by a very loud “bang” sound.  The plaintiff fairly accepted in the skeleton submission that he “was probably not in the position to [hear any warning] because he was asleep before the bang sound”.  No weight can properly be attached to this piece of evidence.

22.  The third piece of evidence is the transcript of the police interview of Yim.  According to Yim, he was asked by someone to deliver some items to a garage.  That person lent the suspected vehicle to Yim.  After having dinner with the deceased, Yim felt sleepy and so let the deceased drive the suspected vehicle while Yim took a rest and sat in the middle seats.  The windows of the suspected vehicle were closed, the air conditioning was switched on and so was the hi-fi but the music was not loud.  Yim heard the sound of a “bang” but he did not hear anyone said “don’t move, police” or “stop the vehicle”.  It should be noted Yim said a few times during the interview the deceased began to move the suspected vehicle and someone dashed out from one side of it before the “bang” sound.

23.  Yim’s account was not given under oath.  In view of his admission that he was the one who was to drive the suspected vehicle to the place near the police ambush, he appeared to have the closest connection to the stolen spare parts among the 3 persons inside the suspected vehicle.  The account given in the police interview is overly economical in details.  It has the sign of someone trying to say as little as possible to distant himself from everything that happened that day.  For this reason, I place no weight on his account either.

Witnesses’ Testimony

24.  The following witnesses testified at trial:-

(1)     the plaintiff;

(2)     the defendant;

(3)     detective senior police inspector Yau, the inspector commanding the police team;

(4)     detective police constable 21260.

The witnesses referred to in sub-para. (2) to (4) above were called by the defendant.  The 2^nd defendant did not call any witness to testify.

(1)     Plaintiff’s Witness

25.  With regret, I do not find the plaintiff to be truthful or reliable.  In short, I agree with the defence that he knew very little about the deceased’s life outside.  He has no knowledge of the precise identity of the deceased’s employer(s) or the deceased’s friends.  The deceased was admittedly seldom at home for his meals.

26.  During cross-examination, the plaintiff has to make up various matters from time to time to conceal his lack of knowledge about the deceased’s past life or future plans.  He was questioned about the tattoos appearing on the deceased’s body to which he claimed that those were related to the deceased’s devotion to Buddhism.  He also claimed that it was the deceased’s plan to devote himself to Buddhism by becoming a monk.  The plaintiff’s story that the deceased used to keep all his savings from work under his own pillow is inherently implausible.

27.  Apart from the plaintiff’s lack of knowledge, there was a complete absence of documents about the deceased’s employment or savings.

(2)     Defence Witnesses

The Defendant

28.  The defendant’s testimony about the shooting incident can be summarized as follows.

29.  At about 6 pm on 26 June 2001, the defendant was tipped off that a car theft syndicate would return to the victim of the theft for a ransom spare parts stolen 2 days earlier.  The information was related to the inspector shortly later.  More detailed information was obtained by the defendant by about 8:30 pm.  The inspector was again informed.

30.  Between 8:30 pm and 9:40 pm, the inspector assembled his team and organized an ambush operation in the vicinity of Kowloon City Road and Sung Wong Toi Road.

31.  After the police team was in position, the suspected vehicle, driven by the deceased, appeared at about 10:15 pm.  It stopped in front of the traffic light controlling Kowloon City Road at its junction with Ma Tau Kok Road.  The defendant came out from his ambush position and walked across the front of the suspected vehicle, trying to observe if the stolen spare parts were inside.

32.  When the defendant turned back and was about to reach the pavement, he noticed that the deceased appeared to have noticed him.  The deceased also bent down as if to reach for something.  The defendant took out his police warrant card with his left hand.  At the same time, he placed his right hand on the revolver which was still in the holster.  He then heard engine revving noise, so he believed the suspected vehicle was about to dash forward, although the traffic light still showed a red light.

33.  The defendant decided to take action to stop the suspected vehicle.  He held up the police warrant card and shouted: “police, stop the vehicle”.  The suspected vehicle surged forward towards him.  The defendant pulled out his revolver and raised it up.  At this juncture, the suspected vehicle already reached where he was.  He felt his right hand (which was holding the revolver) was hit by the right door mirror of the suspected vehicle and the revolver suddenly fired a shot.  The shot broke the window glass of the driver’s door and struck the deceased’s neck.  The suspected vehicle rolled forward until it hit the iron fence on the left side of Kowloon City Road.

34.  The plaintiff’s criticisms the defendant’s testimony include:-

(a) he never asked the informant whether the culprits were armed, showing that he was not concerned with that matter;

(b) his distance from the suspected vehicle immediately before the shooting was about 8 to 9 feet.  This was different from the distance observed by Tsui;

(c) he was instructed to lay ambush.  There was no valid reason for him to walk towards the suspected vehicle.  His explanation that he wanted to find out if there were stolen spare parts is clearly a fabrication;

(d) there was no way he could tell if he had alerted the deceased.  The same applies to the reason why the deceased bent down.  Hence, there was no justification for him to reach for the revolver;

(e) pulling out the revolver could not stop the suspected vehicle.  The reasonable thing for him to do would be to move away from the suspected vehicle;

(f) it was improbable the revolver fired because the defendant’s right hand was hit by the door mirror because, according to him, his index finger was off the revolver’s trigger;

(g) even if the defendant’s right hand had been hit by the door mirror, this would only result in the revolver being turned away from the suspected vehicle.

35.  I believe the defendant’s testimony is truthful and reliable.  I will not set out the reasons for so deciding as if to answer the plaintiff’s above criticisms but only state the following.

36.  Although some of his actions at the time might not have been the wisest, and might not have been taken by other police officers in his position, I do not find his account to be inherently implausible.  Some of the actions he took that night has the support of the inspector, for example, the need to ascertain whether there were stolen spare parts inside the suspected vehicle.  Some of the matters he mentioned happened in an extremely short time and so may not be totally rationally explicable after the event.

37.  One of the most important matters in this action is whether the shooting was an accident.  The defendant’s complaint of pain of his right hand, and the medical findings of bruising of his right little finger, shortly after the event, supports his account about his right hand being hit by the door mirror and the shot being fired accidentally as a result.

38.  I do not agree that, if the defendant’s right hand had been hit by the door mirror, the revolver must necessarily have turned away from the suspected vehicle.  This would only be true if the revolver was held by an inflexible object, such as a rod.  But a person’s hand has many joints, and when one feels pain, the muscle contraction caused by the pain can result in the hand flexing involuntarily and unpredictably.

Other Defence Witnesses

39.  Yau’s testimony generally supports the defendant’s account.  Since he was not present when the shooting occurred, he cannot give direct evidence regarding what precisely happened.  However, he confirmed that the defendant’s act of walking towards the suspected vehicle was not an act in breach of his instruction.  Yau also observed that the defendant’s small finger was swollen and red at the scene.

40.  The detective police constable’s testimony also confirms the suspected vehicle surged forward, followed by someone shouting: “police, stop” and then the shot being fired.

41.  I find the defence witnesses to be truthful and reliable.

Causes of Action / Findings of Fact

(a)     Unlawful Trespass to the Person

42.  The tort of trespass can be established if the plaintiff can show that the defendant’s act of assault (which the shooting clear was) was done intentionally or negligently: Clerk & Lindsell on Tort (2006) 19^th Ed., Ch. 15, especially para. 15-04 to 15-07.

43.  For the sake of clarity, assault by negligence will be dealt with below.  The discussion under this heading is confined to intentional assault.

44.  With the rejection of the plaintiff’s evidence, and the acceptance of the defendant’s account, there is simply insufficient evidence to prove this tort.

(b)     Breach of PGOs

45.  The PGOs relied upon are:-

“A police officer … shall not resort to the use of force unless such action is strictly necessary and he is otherwise unable to effect his lawful purpose.

Police officers shall identify themselves as such and, when circumstances permit, a warning shall be given of the intention to use force and of the nature and degree of force which it is intended to use …

… only the minimum force necessary to achieve the purpose may be used … The force used must be reasonable in the circumstances” (29-01).

“A police officer may discharge a firearm … to protect any person, including himself, from death or serious bodily injury … ” (29-03 para. 2).

“A police officer may draw a revolver from its holster, or present a firearm (pointing or aiming) as a precautionary measure if he considers he may be justified in using it in accordance with … 29-03 paragraph 2” (29-04 para. 1).

46.  First, I do not find that the PGOs create a civil liability in the plaintiff’s favour.  The power to make PGOs is vested in the 2^nd defendant by s. 46(1), Police Force Ordinance (Cap. 232) which provides:-

“… the Commissioner may from time to time make such orders as he thinks expedient to enable him to administer the police force, render the police force efficient in the discharge of its duties and for carrying out the objects and provisions of this Ordinance, and in addition, such orders may provide for any of the matters specified in section 45” (emphasis supplied).

It appears only s. 45(1)(h), Cap. 232 is relevant for present purpose:-

“The Chief Executive in Council may make such regulations … Such regulations in addition to the powers hereinbefore conferred may prescribe or provide for … such other matters as may be necessary and expedient for preventing abuse or neglect of duty, and for rendering the police force efficient in the discharge of its duties, and for carrying out the objects of this Ordinance” (emphasis supplied).

47.  Clerk & Lindsell says the following in relation to liability arising from the breach of statutory duties:-

“Some statutes are expressly designed to create new civil remedies, and others are intended to modify or clarify existing common law rights of action.  Equally, there are some statutes which create criminal sanctions but which state expressly that they do not confer any civil remedy, and some may create both criminal and civil remedies.  Unfortunately, most legislation fails to give any express guidance as to whether an action for damages is available for its breach, and then the courts have to decide what Parliament intended” (para. 9-02);

“… The claimant must show that the damage he suffered falls within the ambit of the statute, namely that it was of the type that the legislation was intended to prevent and that the claimant belonged to the category of persons that the statute was intended to protect … ” (para. 9-04);

At one time the courts adopted a liberal approach to the imposition of civil liability for breach of a statutory duty.  This has been replaced by the ‘construction approach’ whereby the court seeks to construe the legislation in order to find the intention of Parliament” (para. 9-12).

48.  There are many indicia which the court looks to when determining whether civil liability has been created by a statute and no universal rule can be formulated which will answer the question: Charlesworth & Percy on Negligence (2001) 10^th Ed., para. 11-12.

49.  As can be seen from ss. 45(1)(h) and 46(1), Cap. 232, the PGOs were enacted for the purposes of enabling the 2^nd defendant:-

“to administer the police force”,

and to:-

“render the police force efficient in the discharge of its duties and for carrying out the objects and provisions of [Cap. 232]”.

I therefore do not consider that a breach of the PGOs per se confers on a citizen, such as the plaintiff, a civil remedy in addition to his common law rights.  For example, a police officer’s mere failure to warn of the intention to use force, or drawing the revolver from his holster in circumstances other than as permitted by PGO29-04 cannot by themselves create a civil liability.

50.  As regards the claim that the defendant has breached the PGOs in having used firearm improperly, likewise I do not consider the PGOs have created a civil liability independent of (or in addition to) the common law.

51.  But even if the PGOs were to create any civil liability on which a claim in this action can be based, on the evidence accepted by me (see the paragraphs above), I do not find that the plaintiff has been able to establish any breach of the PGOs.

(c) Negligence

52.  The alleged negligence has been pleaded as follows:-

(a) shooting the deceased without prior warning or disclosure of police identity;

(b) carelessly aiming the revolver at the deceased;

(c) failing to ensure that there was a safe distance between himself and the deceased;

(d) failing to avoid accidentally shooting the deceased.

Because I accept the defendant’s testimony (and reject the plaintiff’s evidence), sub-para. (a) to (c) above are not established.

53.  The plaintiff argues that, even if the defendant has been telling the truth about the shooting incident, he was still negligent.  After seeking clarification from the plaintiff during his final submission, the basis for such argument is:-

(1) a tortfeasor owes a duty not to put himself in danger which will give rise to a dangerous situation;

(2) a tortfeasor owes a duty to see to it that his action would not give rise to injury to other people, including someone in the position of the deceased.

These are in essence a more elaborate way of stating para. 52(d) above.

54.  I disagree with both of the above.  The action of a police officer who was in execution of his duties, especially in an operation which at least potentially carried an element of risk of violence, should not be judged according to the above tests propounded by the plaintiff.  The duties of police officers render it necessary for them to make split-second decisions when they are engaged in crime detection or prevention operations.  Even if they committed mistakes which are in essence “errors of judgment” (similar those referred to in Jackson & Powell on Professional Negligence (2002) 5^th Ed., especially at para. 11-040 and 12-187), there is no negligence.  In this action, I also take into account the situation testified to by the defendant was one involving the need for him to make decisions within an extremely short time period.  His acts therefore can at most amount to such “error of judgment” only.

55.  In brief, in the circumstances testified to by the defendant, I do not find that there was any want of care on his part.

Conclusion on Liability

56.  The plaintiff has failed to establish liability against both defendants.

57.  The claim is accordingly dismissed.

Quantum of Damages

58.  Even if the plaintiff’s testimony be accepted, there is still immense problem with regard to quantum of damages on the plaintiff’s part.  This is because:-

(a)     there is no proper evidence of employment (let alone savings).  Hence, the claim on behalf of the deceased’s estate is not made out;

(b)    the plaintiff’s claim that the deceased was a devoted Buddhist and in all likelihood would have become a monk for the rest of his life would mean that the dependence claim has to be rejected as well.

59.  There is also an absence of documentary evidence (such as receipts) in support of some of the plaintiff’s claims (such as funeral expenses).  I would not have made any award in relation to these claims if it had been necessary to consider quantum of damages.

Other Matters

60.  The trial bundles prepared by the plaintiff for use at the trial of this action have been prepared in an unhelpful way.  Essentially, the documents discovered by the defence in their lists of documents have been indiscriminately included.  As a result, at the beginning of the trial, there were more than 10 bundles placed before the court, without any indication regarding which of the documents would be relevant.

61.  Further, at the Check List Review hearing before the master, the plaintiff did not obtain any directions concerning expert evidence.  As a result, no leave was given in the plaintiff’s favour in this regard (Ord. 36 r. 36(1)).

62.  Notwithstanding that procedural defect, the trial bundles prepared by the plaintiff contained expert evidence given for the prosecution in the criminal trial.  The defendant objected to the use of such evidence and indicated that, if the court were to give leave for the plaintiff to do so, the defendant might have to seek an adjournment to call his own experts.

63.  In the face of such objection and indication, the plaintiff has at least two options: to seek leave to adduce expert evidence and have the trial adjourned, or to abandon the expert evidence contained in the trial bundle.  At the end, the plaintiff chose the latter course.

64.  I say nothing about whether the outcome of this trial would be different if the plaintiff had adduced his expert evidence.  I also leave it to the plaintiff to decide if his legal advisers’ failure to seek leave to adduce expert evidence warrants his further action.  These are matters which the plaintiff may want to seek independent legal advice from another firm of solicitors.

65.  In view of my earlier observation about the trial bundles, I am of the view that only one-ninth of the costs for preparing the trial bundles is reasonable.  In relation to solicitor-and-own-client costs, this is a case where the plaintiff’s solicitors will have to show cause (under Ord. 62 r. 8(1)(a) and 8(2)) if they wish to charge the plaintiff costs relating to the trial bundles in excess of that amount.

Costs Order Nisi

66.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this action be paid by the plaintiff to the defendants to be taxed if not agreed.