LAW CHI MAN v. COMMISSIONER OF POLICE

DCPI 2945/2018

[2022] HKDC 1231

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2945 OF 2018

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BETWEEN

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JUDGMENT

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1.   Introduction

1.1  In the early morning of 26 August 2016, the plaintiff was arrested by the police at the bus station at the South Bound Pick Up Area (Mongkok route), Lok Ma Chau Boundary Control Point, San Sham Road, Lok Ma Chau, New Territories (“Location”) [1]. The plaintiff was later charged and convicted after trial at the Fanling Magistracy of a single charge of criminal damage.

1.2  There is no dispute between the parties that the plaintiff sustained injuries during the arrest process (“Incident”). The plaintiff commenced these proceedings to recover loss and damage against the defendant, premising on the causes of action of battery and negligence. In his Statement of Damages[2], in addition to the damages arising from his physical injuries and special damages, he further claims:-

(1) exemplary damages for the arbitrary, offensive and/or unconstitutional conduct of the arresting police officers[3];

(2) aggravated damages for “his injured feelings and loss of dignity caused to him by the assault of the arresting police officers”[4].

1.3  I was helpfully assisted at the trial by Mr Jonathan Tai for the plaintiff and Ms Deanna Law for the defendant, both of counsel.

1.4  It should be pointed out at the outset that Mr Tai accepted that the arrest of the plaintiff was lawful, and as both counsel agreed, what is in dispute is whether the use of force by the police officers (including the use of handcuffs) was reasonable and necessary in the circumstances.

1.5  In terms of factual witnesses, the plaintiff gave evidence and the defendant called PC11904 (Mr Lee Pui Lun), SGT3485 (Mr Tam Yiu Cheung) and PC12784 (Mr Lau Chung Leung).

2.   Plaintiff’s amendment application on first day of trial

2.1  I first deal with an application which I heard and determined on the first day of the trial. On 25 July 2022, the plaintiff issued a summons for leave to amend his Statement of Damages. The proposed amendments entailed the following revisions:-

(1) downward revisions of his claims for (a) pain, suffering and loss of amenities and (b) exemplary damages;

(2) upward revisions for his claims for various special damages items.

2.2  Ms Law naturally consented to the downward amendments but opposed the upward revisions.

2.3  I only allowed the downward revisions and informed the parties that I would set out my reasons in the judgment.

2.4  In disallowing the contested upward revisions, I took into account (1) there was no explanation for the late application and (2) perhaps more importantly, the plaintiff’s witness statement did not support the upward revisions for special damages, which were essentially factual matters. What was envisaged therefore was for the plaintiff to give evidence impermissibly for the first time in the witness box to support the upward adjustments. It is for the foregoing reasons that I made the order set out at the preceding paragraph.

2.5  For completeness, I should point out that the plaintiff orally applied to amend the Statement of Damages on the last day of the trial to revise upward his claim for pain, suffering and loss of amenities and exemplary damages. The oral application, which was a volte-face on the position taken on the first day of trial, was made without any notice to the defendant and after written closing submissions were lodged by the plaintiff in which no indication for the oral application was given. As I understand Mr Tai, he was instructed to make the oral application by the plaintiff. As there was no or no valid reason proffered for the late application (and made without a summons), I declined to entertain the oral application.

3.   Summary of the plaintiff’s factual evidence on the Incident

3.1  The following matters are taken from the plaintiff’s witness statement which he adopted.

(1) At the material time, the plaintiff was attempting to board a bus to return to Hong Kong. He claimed to have bought a bus ticket but was not given a ticket stub (票尾). He was refused boarding by an employee of the bus operator as he was unable to present a ticket stub.

(2) The plaintiff therefore reasoned with the employee of the bus operator but without success. He became upset as he felt he was treated unfairly (不憤). In the course of the dispute with the bus operator employee, the plaintiff smacked his hand on the edge of a workbench at the bus station, which caused the glass top of the workbench to crack. According to his memory, the glass top of the workbench was already cracked and was held together by yellow adhesive tape.

(3) Later on, a few police officers arrived at the Location and declared arrest on the plaintiff for criminal damage. When being investigated, the police officers did not give him an opportunity to explain the misunderstanding between him and the bus operator employee and even started to threaten, roughly treat (粗暴對待), harass and assault him.

(4) In particular, PC11904 used both hands to fiercely hold (凶狠地捉住) the plaintiff’s left arm for a few minutes. When the plaintiff started to feel pain and numbness, he made several requests to PC11904 to let go but was ignored. PC11904 then suddenly twisted the plaintiff’s left arm towards the plaintiff’s back.

(5) A few other police officers simultaneously grabbed the plaintiff’s right arm and twisted it to his back.

(6) The police officers then pushed the plaintiff to the ground and then proceeded to handcuff him. When pushed to the ground, the plaintiff sustained injuries to his chest, head, right eye corner, face and left knee. His clothes and pants were also damaged as a result.

(7) The plaintiff felt humiliated by the treatment of the police officers as the Location was a public place.

(8) The plaintiff subsequently made a complaint against the police officers but was informed that his complaint was found unsubstantiated after investigation.

3.2  The following evidence emerged from the plaintiff’s viva voce testimony.

(1) As some of the wording in the witness statement was not his own, there were a number of inaccuracies. For example, contrary to §3.1(2) above, he clarified that he was unsure whether the glass top of the workbench had pre-existing cracks.

(2) Another example is, contrary to §3.1(3) above, the police officer did not in fact declare arrest on him. A further correction was that he was in fact given the opportunity to explain to PC11904 about the dispute with the employee of the bus operator. He additionally corrected his written statement in that he was not threatened or harassed by the police officers.

(3) He was adamant that he only had meaningful interaction with PC11904 but not with any other police officers at the Location. Whilst he admitted that he had become emotional during his discussions with the employee of the bus operator, he was calm when he was speaking to PC11904.

(4) He said that he explained the situation to PC11904 for about 4 to 5 minutes during which PC11904 did not say anything. PC11904 then suddenly grabbed his left arm with two hands and continued to do so without saying a word. He complained to PC11904 of numbness after about 3 minutes but his complaint was ignored. About 30 seconds later, he made a second complaint upon which PC11904 twisted his arm to his back.

(5) As regards §3.1(5) above, he clarified that two other police officers were involved in grabbing his right arm. He had noticed the presence of the two other police officers during the 3 minutes when PC11904 grabbed his left arm.

(6) Prior to being subdued on the ground, PC11904 did not request him to board the police vehicle.

4.   Summary of the defendant’s factual evidence on the Incident

4.1  I first summarize the evidence of PC11904. What is stated below is taken from his witness statement and its attachments (including his notebook and a statement made for the purpose of the plaintiff’s complaint (CAPO).

(1) PC11904 arrived at the Location at 00:45 hrs. He first carried out investigations with two employees of the bus operator, namely a Madam Liu (廖議女士) and a Madam Wong (王愛娥女士). During the investigation, he was told that:

(a) Madam Liu did not allow the plaintiff to board a bus as he was unable to present a ticket stub, and in the midst of the argument then ensued, the plaintiff broke the workbench;

(b) Madam Liu then reported the matter to the police;

(c) Madam Wong witnessed the entire incident.

(2) The plaintiff was not cooperative prior to PC11904 declaring arrest, insisting that the police should not arrest him and behaving emotionally. PC11904 arrested the plaintiff at 00:50 hrs for criminal damage.

(3) After the police vehicle arrived at the Location, at 00:55 hrs, PC11904 instructed the plaintiff to board the police vehicle. The plaintiff refused. He then used his right hand to hold on to (搭着) the plaintiff’s left shoulder and his right hand to grab the plaintiff’s left wrist to escort the plaintiff to the police vehicle. The plaintiff struggled and freed himself from PC11904’s right hand and pushed away PC11904, upon which PC11904 re-grabbed the plaintiff’s left wrist. The plaintiff continued to act emotionally and tried to free himself. PC11904 then performed the straight arm bar take down (“Manoeuvre”), which involved subduing the plaintiff on the ground by holding the plaintiff’s left wrist and pressing his left shoulder towards the ground. Two other colleagues (SPC53984 and PC12784) then assisted PC11904 to control the plaintiff. PC11904 then handcuffed the plaintiff and helped him up.

(4) The reason for subduing the plaintiff by the Manoeuvre was to prevent the plaintiff from escaping.

4.2  PC11904 gave the following viva voce evidence.

(1) He stated that SGT3845 and another officer arrived at the Location before he did. When he arrived at the Location, he saw SGT3845 speaking to the plaintiff. Whilst the plaintiff was emotional, he did not try to run away from SGT3845.

(2) He clarified that the plaintiff did not in fact expressly say that the police should not arrest him. Instead, it was an impression which he formed from the plaintiff behaving emotionally (including using foul language with SGT3845).

(3) He accepted in cross-examination that prior to the arrest, the plaintiff did not try to flee and did not try to assault anyone.

(4) He also observed that the plaintiff tried a number of times to walk towards the Madam Liu and the workbench but was prevented to do so by SGT3845.

(5) He was taken by Mr Tai to the transcript of the criminal proceedings in which he was one of the prosecution witnesses. He confirmed the evidence which he gave during the criminal trial that there was no struggle prior to his trying to escort the plaintiff to the police car.

(6) Following the arrest, he guarded the plaintiff. The plaintiff tried a number of times to walk towards the workbench and Madam Liu and he prevented the plaintiff from doing so.

(7) As regards §4.1(3) above, he said that after the plaintiff freed himself, the plaintiff repeatedly said “do not touch me” (mixed with foul language) and swung his upper body wildly. The events described at §4.1(3) above took place over a very short duration, namely within a minute.

(8) Where he had accepted that the plaintiff did not try to flee from the Location, he proffered additional reasons for subduing the plaintiff by the Manoeuvre, namely to control the plaintiff, to protect the safety of the plaintiff himself and others nearby and to prevent the situation from escalating.

(9) He had already decided to carry out the Manoeuvre when he re-grabbed the plaintiff.

(10) He also stated that the usual practice in a situation such as the present case would be to instruct a suspect to board a police vehicle. If the suspect was not cooperative, he would hold the suspect and escort him. If the suspect refused, he would use appropriate force to deal with the situation.

(11) In his view, the Manoeuvre was the minimum level of force which he could use to control the plaintiff which was unavoidable in the circumstances. He accepted that he did not warn the plaintiff before subduing him by the Manoeuvre as there was no time to do so as the events unfolded very quickly. He further said that generally no such warning would be given.

(12) It was necessary to handcuff the plaintiff because he was still struggling vehemently after being subdued onto the ground.

4.3  Turning to the evidence of SGT3485, he frankly admitted that his recollection of the Incident had faded due to the lapse of time, importantly on the crucial events of what happened after the police vehicle had arrived and what transpired when PC11904 tried to escort the plaintiff to the police vehicle. It is fair to point out that there were a number of inconsistencies between his evidence and that of PC11904. For example, whilst he said that he instructed PC11904 to arrest and handcuff the plaintiff, PC11904’s evidence was that the decisions were his own. In any event, save one aspect, I find his evidence to be generally peripheral to the issues to be decided in these proceedings.

4.4  That aspect is this. Under cross-examination by Mr Tai, SGT3485 gave evidence on the underlying factors which would affect a police officer’s decision on whether to use force to subdue an arrested suspect. They seem to me to be propositions of common sense and the factors include the general behaviour and physical characteristic of the suspect, the seriousness of the suspected offence, and the general surroundings of the area where the arrest took place (ie whether it was a public place or of such a character which might present a flight risk).

4.5  PC 12784 gave evidence that he arrived with the police car. When he arrived, he observed that the plaintiff was behaving emotionally with PC11904 but could not recall what PC11904 was doing. He however witnessed the events described at §4.1(3) above. After PC11904 carried out the Manoeuvre, he assisted him to control the plaintiff. He also confirmed that the plaintiff was still struggling after being subdued onto the ground.

5.   Factual analysis

5.1  It is plain that the resolution of the factual disputes on the Incident hinges on an assessment of the credibility of the witnesses, and in particular that of the plaintiff, PC11904 and PC12784.

5.2  Both counsel relied on Hui Cheung Fai & Anor v Daiwa Development Limited, HCA 1734 of 2009, 8 April 2014 §§75-83. In essence, importance is attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of the events. It is further important to assess the consistency of the evidence of a witness with undisputed or indisputable evidence, and its internal consistency, namely by comparing the oral testimony and his witness statement(s).

5.3  I have no hesitation in preferring the evidence of PC11904 and PC 12784 over that of the plaintiff.

5.4  On the issue of unlikelihood or unlikelihood of an event having happened, the evidence of the plaintiff portrayed a scenario where chronologically after PC11904 arrived at the Location: (1) the plaintiff explained the situation in a calm manner to PC11904 for 4 to 5 minutes during which no response was forthcoming from PC11904; (2) PC11904 then suddenly used both hands to grab the plaintiff’s left arm for 3 minutes without uttering a word; (3) after being grabbed for 3 minutes, the plaintiff requested PC11904 to let go but was ignored; and (4) about 30 seconds later, the plaintiff again requested PC11904 to let go upon which PC11904 carried out the Manoeuvre. At the trial, I specifically requested the plaintiff to verify his evidence on the time estimates by reference to a clock inside the court room (with a seconds hand) and he confirmed their accuracy.

5.5  The suggestion that PC11904, who was tasked with investigating a complaint reported to the police, would remain silent for 4 to 5 minutes when interacting with a suspect is devoid of common sense. The further suggestion that PC11904 would suddenly grab the arm of a suspect who was behaving calmly and did so for 3 minutes without saying anything cannot be explained by any normal police behaviour, or might I add, any normal human interaction. The yet further suggestion that PC11904 would suddenly subdue a calm suspect onto the ground by the Manoeuvre is again far-fetched.

5.6  The plaintiff’s credibility is further eroded by a number of inexplicable inconsistencies. For example, his viva voce evidence that no arrest was declared on him is inconsistent with his own statement and also the fact that the arrest was a matter of agreed facts at the criminal trial. Yet, the plaintiff incredibly explained that he had not agreed to the agreed facts at the criminal trial.

5.7  Ms Law in her written closing submissions referred to a plethora of inconsistencies in the plaintiff’s evidence, some of which have been set out at §§3.2(1) and (2) above. I have considered all the points made by Ms Law (to which Mr Tai did not spend any or any substantial time to address in his oral address).

5.8  I have not lost sight of the comments made by Mr Tai in closing. It is true that PC11904 had supplemented and corrected his evidence in the witness box (as summarized at §§4.1 and 4.2 above). However, Mr Tai was unable to point to any discrepancies of the gravity which could undermine the credibility of PC11904 (the only identified instance in closing is that set out at §4.2(2) above). Further, it has not been suggested by Mr Tai that the evidence of PC11904 was incredible in any material aspects. I accept PC11904’s evidence.

5.9  I also accept the evidence of PC 12784 although it has to be said that his evidence is more corroborative in nature.

5.10  For the above reasons, I reject the plaintiff’s factual case in so far as it is inconsistent with that of the defendant’s and accept the evidence of the defendant’s witnesses. I make factual findings along the lines of §§4.1, 4.2 and 4.5 above.

6.   Liability

6.1  Although I have made factual findings which are adverse to the plaintiff’s case, it is not the end of the matter. Mr Tai submitted that liability may still be established on the defendant’s factual case. As stated at §1.2 above, the plaintiff’s claim is based on battery and negligence. In relation to the former, where, as here, there is no dispute that force was used on the plaintiff, it is for the defendant to justify that the police officers acted with a lawful excuse. As regards the latter, Mr Tai relied on Poon Hau Kei v Hsin Chong Construction Co Ltd, Taylor Woodrow International Ltd Joint Venture (2004) 7 HKCFAR 148 for the proposition that, subject to the issue of fairness, a plaintiff can “get home” on the basis of a scenario not pleaded by the plaintiff but is pleaded by the defendant. Ms Law did not quarrel with the propositions advanced by Mr Tai.

6.2  There is no real dispute between counsel on the applicable principles. On the issue of battery, the relevant principles are set out at Wong Weng Chi v The Secretary for Justice [2020] HKDC 412 §§19-32 and may be distilled as follows.

(1) The starting point is that every resident is entitled to freedom of the person. Anyone who seeks to interfere with that freedom can only do so with proper legal justification. This was well-established at common law and is now laid down in Article 28 of the Basic Law.

(2) Battery is a form of trespass to person and is constituted by the actual infliction of unlawful force on another person.

(3) A police officer may subject another to restraint when he lawfully exercises his power of arrest. But, putting that and other statutory powers aside, police officer has no greater rights than ordinary citizen. If, taking into account the nature of his duty, his use of physical contact in the face of non-cooperation persists beyond generally acceptable standards of conduct, his action will become unlawful; and if he restrains a man, for example by gripping his arm or his shoulder, then his action will also be unlawful, unless he is lawfully exercising his power of arrest. Arrest is a continuing act, which starts when a person is taken into custody until he is released.

(4) Handcuffing a person without the person’s consent or other lawful justification amounts to battery.

(5) In the course of arresting a person and escorting the arrested person, the police can use reasonable measures and force to prevent the arrested person from escaping. If, however, those measures and force exceed what is reasonably necessary, the police may be required to pay compensation to the arrested person. Law enforcement authorities have been ordered to pay compensation to arrested persons for unreasonable use of handcuffs.

6.3  Further, as stated at Clerk & Lindsell on Torts, 23^rd Ed §14-07, the burden of proof lies with the plaintiff to establish the interference with his person by the police officers (which has indisputably been established in the present case) and it is then for the defendant to establish some justification or defence.

6.4  In the context of assessing reasonable force used to effect a lawful arrest, what is relevant is that the degree of force reasonable must be judged in the light of the circumstances apparent to the arrestor; and he will not be found to have used unreasonable force because of a defect in the planning of the arrest or crime prevention operation which with hindsight can be seen to render the amount of force used unnecessary: Clerk & Lindsell §14-53.

6.5  As I understand Mr Tai, the nub of his submissions advanced in closing is that the Manoeuvre and handcuffing were unnecessary and/or unreasonable in the circumstances. He made these submissions by reference to the fact that the reasons given by PC11904 (set out at §§4.1(4) and 4.2(8) above) did not justify him to act as he did, in that:

(1) there was no real risk of the plaintiff escaping from the Location, as the Location was a restricted area and there was sufficient police manpower to prevent the plaintiff from escaping;

(2) there was no real issue of safety; and

(3) there was no urgent need to use force to control the plaintiff and PC11904 should have first given a warning before subduing the plaintiff by force.

6.6  In my view, the analysis conducted by Mr Tai introduces an element of hindsight which does not represent realistically what PC11904 had to react to at the Location. The following matters or conclusions are plain from my factual findings.

(1) The Incident took place over a very short duration. PC11904 arrived at the Location at 00:45 hrs and he subdued the plaintiff about 10 minutes later. It was also essentially a “one-on-one” situation, in that whilst there were other police officers in the vicinity, only PC11904 was dealing with the plaintiff at the material time.

(2) Throughout the entire duration, the plaintiff was behaving emotionally and made multiple attempts to approach the workbench and Madam Liu but was prevented from doing so.

(3) After the arrival of the police vehicle, PC11904 instructed the plaintiff to board the police vehicle. As the plaintiff refused to do so, PC11904 tried to escort the plaintiff by holding his left shoulder and wrist. There can be no suggestion that PC11904’s action at this stage was unreasonable (and none was made by Mr Tai). PC11904 must have thought that his action was sufficient to deal with the situation as then presented to him, as otherwise he would have done something more drastic.

(4) But it turned out that it was not. The plaintiff reacted adversely by struggling to free himself (and he did free himself), pushing PC11904 away, asking not to be touched, and continuing to act in an unruly manner. It is plain that the plaintiff was at the very least obstructing PC11904 from the due execution of his duty. The situation called for an immediate decision as to whether the plaintiff needed to be controlled and subdued.

(5) An important consideration to PC11904 at that precise moment must have been what was the plaintiff going to do next? I find it entirely reasonable for PC11904 to have formed an impression that there was a risk of the plaintiff escaping (perhaps not from the Location but at least from his control) and a risk of safety of others (bearing in mind that the plaintiff had tried to approach Madam Liu multiple times although there was no actual threat of physical violence). Mr Tai submitted that there was no “real risk” of the plaintiff escaping or harming the safety of anyone. But it seems to me that as long as the risks were not negligible (and it would be unrealistic to suggest that PC11904 could dispassionately assess the risks in the time he had to react to the plaintiff’s unanticipated actions), it was entirely reasonable for PC11904 to take them into account.

(6) PC11904’s decision was to re-grab the plaintiff and subdue him by the Manoeuvre rather than dealing (perhaps together with his other colleagues at the Location) with the plaintiff’s next move and its attendant risks. I am unable to accept Mr Tai’s submission that even if the plaintiff (if not subdued) attempted to escape, to assault Madam Liu or to tamper with the workbench, there was sufficient police resources at the Location to prevent the plaintiff from doing so. Given the plaintiff’s unruly conduct, there was no justification for the risk exposure and the possibility of further escalation.

(7) As the events (from the plaintiff freeing himself and PC11904 subduing him) unfolded very quickly, it was impracticable for PC11904 to give a warning. In any event, given the unruly behaviour of the plaintiff throughout, the efficacy of a warning is suspect.

(8) That a warning would prove ineffective is highlighted by the fact that the plaintiff continued to struggle vehemently after he was subdued onto the ground. I am of the view that the use of handcuffs at that juncture to control the plaintiff entirely reasonable.

6.7  The parties proceeded on the basis that the Manoeuvre was a standard police technique for subduing a suspect. Whilst there were other methods, they involved even more violence (eg the use of police baton or spray). As the Manoeuvre was a standard technique, it could not be executed in a “safer” manner. As observed by Ms Law, the plaintiff has not suggested, apart from the Manoeuvre, what other “milder” measures could have been deployed in the event that the plaintiff had to be subdued. As I understand Mr Tai, the plaintiff’s case is that the Manoeuvre was premature (which I have found otherwise) and not that the plaintiff could be subdued or controlled by lesser force.

6.8  For the above reasons, I find that the defendant has established a justification for the force used on the plaintiff. I find that it was necessary to control and subdue the plaintiff and the Manoeuvre and the use of handcuffs were reasonably necessary. The plaintiff’s claim premised on battery is therefore dismissed.

6.9  As regards the plaintiff’s claim based on negligence, the particulars advanced are: (1) failing to ensure the physical safety of the plaintiff under arrest, (2) wrongly concluding that force should be used in controlling the plaintiff, (3) failing to give sufficient warning before force was used in controlling the plaintiff, (4) failing to prevent injuries to the plaintiff when force was used to control him and (5) using excessive force in controlling the plaintiff.

6.10  In the light of my findings against the plaintiff’s case on battery, it seems to me that all of the particulars of negligence also fall away.

6.11  As canvassed with counsel in opening, it is difficult to see how the plaintiff can succeed on negligence in the event that the defendant establishes a defence against the plaintiff’s claim based on battery. Mr Tai accepted that it was very unlikely that should the defendant prevail on battery the plaintiff would succeed in negligence. In his closing submissions, Mr Tai proceeded on the basis that the two causes of action would stand or fall together.

6.12  The plaintiff’s claim based on negligence is therefore also dismissed.

7.   Quantum

7.1  Were I wrong on the issue of liability, I would have assessed the plaintiff’s entitlements as follows.

7.2  The plaintiff was born on 8 November 1957. He received secondary education in the Mainland and moved to Hong Kong in 1979. He previously worked as a decoration / construction worker but ceased to do so 20 years ago following an injury to his right heel. There is therefore no claim in respect of any loss of earnings.

Pain, suffering and loss of amenities

7.3  Following the Incident, the plaintiff was medically examined at the Accident and Emergency Department of the North District Hospital. On examination, there were abrasion wounds over the right eyebrow and both shoulders. He was prescribed pain killers and discharged on the same day.

7.4  On the following day, the plaintiff attended the Accident and Emergency Department of the Queen Elizabeth Hospital. On examination, there were bruise and swelling over right upper eyelid and bruise over left anterior leg and left knee. X-ray of orbit showed tear drop sign over right face. CT scan of the brain showed depression of floor of the right orbit with small dense linear opacity noted in the inferior aspect of right orbit, which was suspicious of recent fracture. The plaintiff was referred to Hong Kong Eye Hospital for further treatment.

7.5  On 29 August 2016, the plaintiff attended Hong Kong Eye Hospital. The medical findings were similar to those made by the examination at Queen Elizabeth Hospital on the previous day. Conservative management with monitoring was offered.[5] At the last ophthalmic consultation on 4 August 2017, there was 2mm enophthalmos of the right eye without functional deficit or any significant adverse effect on cosmesis. There was no permanent disability from the injury caused by the Incident.

7.6  In relation to expert evidence, by consent, leave was only granted to the parties to adduce orthopaedic expert evidence. Counsel agreed that the medical records by the plaintiff’s ophthalmologists are admissible evidence: Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1 at §46.

7.7  According to the joint orthopaedic expert report, the parties’ experts agreed as follows.

(1) At the joint examination on 5 September 2019, the plaintiff complained of (a) on an off bilateral shoulder soreness which was tolerable, (b) shoulder discomfort, and (c) discomfort when lifting heavy objects. The plaintiff also said that he had recovered fully from left knee injury and his activities of daily living was unaffected.

(2) The plaintiff suffered from minor soft tissue sprain and contusion injury of his shoulders and left knee on the day of the Incident.

(3) In relation to the treatment received, the plaintiff underwent conservative treatment for a short period of time and the progress was satisfactory.

(4) As to the plaintiff’s present conditions, the plaintiff’s left knee has received fully and he has recovered very satisfactorily from the minor soft tissue injury of both shoulders.

(5) The plaintiff has attained a stage of maximal improvement and no further treatment is required and the prognosis is excellent.

(6) The plaintiff’s injuries have no adverse effect on his activities of daily living and enjoyment of life.

7.8  There are minor differences between the experts on permanent impairment and sick leave. In relation to the former, the difference is between 1% and nil, and as to the latter, between 8-12 weeks and 6 weeks.

7.9  There is no reason to doubt the opinions expressed in the joint expert report. I do not believe the minor differences between the experts have the effect of altering the general picture that the plaintiff had suffered only very minor orthopaedic injuries from which he has made either complete or very substantial recovery. In so far as the plaintiff gave evidence that, contrary to the experts’ evidence, his daily activities or enjoyment of life were and are materially affected, I do not accept his evidence, much of which was only given for the first time at the trial.

7.10  From an ophthalmological perspective, despite the early suspicion of fracture, it is plain from the medical records that there was in fact no permanent disability and the plaintiff was throughout conservatively treated. I accept Ms Law’s submissions that the plaintiff’s ophthalmological injury was minor.

7.11  The plaintiff claims HK$250,000 under this head. As I understand Mr Tai, the bulk of the claim is attributed to the plaintiff’s ophthalmological injury. In contrast, Ms Law submitted that an award of no more than HK$30,000 is justified.

7.12  I have considered the authorities cited by the parties.

7.13  In relation to the plaintiff’s orthopaedic injuries, it seems to me that cases such as Lai Ka Yin v Chan Yiu Kei, DCPI 453 of 2008, 7 January 2009 and Lo Yin Fong v Maxim’s Caterers, DCPI 1424 of 2009, 15 March 2011 provide a useful comparison as they are similarly concerned with soft tissue injury and contusion. Awards in the region of HK$50,000 were made. However, in those cases, considerably longer periods of sick leave were thought justified (42 days and 62 days respectively). In my view, had an award been required to be made, I would have assessed this head at HK$30,000.

7.14  As regards the plaintiff’s ophthalmological injury, Mr Tai has, I think, retracted from his reliance in opening on 劉俊顯 v 劉德強 [2021] HKDC 177. It is plain that the injury in that case is far more serious. Instead, I find Liu Wan Yuk v The Path of Health Ltd [2020] HKCFI 2803 closer to the mark. In that case, the injury was corneal abrasion at the right eye, which was fully recovered 2 days after the accident. The plaintiff in that case could return to her pre-accident job and she did not require any medical or surgical treatment apart from using eye drops when required. An award of HK$50,000 was made. In my view, a similar award should be made in the present case, had it been necessary.

7.15  In sum, I would have assessed the plaintiff’s claim under this head at HK$80,000.

Special damages

7.16  The plaintiff claims modest sums as follows: HK$1,000 for travelling expenses, HK$500 for damage to clothing and HK$10,000 for tonic food.

7.17  I note that the plaintiff had attended a number of consultations at various institutions. I would have allowed the amount claimed for travelling expenses.

7.18  Given the Incident, it seems to be beyond peradventure that some damage would have been done to the plaintiff’s clothing. I would have allowed the amount claimed.

7.19  As regards tonic food, I accept Mr Tai’s submission that the courts have always been ready to award a reasonable amount for tonic food even where no documentary evidence has been produced. The plaintiff gave evidence that he had purchased various supplements, painkillers and medical ointment for the period from August 2016 to October 2017. It seems to me that the claim is on the high side, as the plaintiff would have been prescribed the needed analgesics at his consultations. Had it been necessary, I would have allowed HK$3,750, equivalent to HK$250 per month over the period claimed.

Aggravated damages

7.20  Aggravated damages are awarded where the injury to the plaintiff’s feelings is increased by the flagrancy, malevolence and the particularly unacceptable nature of the assaulting defendant’s behaviour: McGregor on Damages, 21^st Ed at §42-002. They are in essence compensatory in nature for injury to feelings including the indignity, mental suffering, humiliation or distress that might be caused by an assault, as well as anger or indignation arising from the circumstances of the assault: Richardson v Howe [2004] EVCA Civ 1127 at §26.

7.21  Mr Tai accepted that an award of aggravated damages is only appropriate should the plaintiff succeed on assault but not on negligence alone.

7.22  The plaintiff gave evidence that at the time of the Incident he was not aware if there were any bystanders when he was subdued and handcuffed. Ms Law submitted, on that basis alone, the plaintiff was not subject to ridicule and contempt in public. However, I accept Mr Tai’s submissions that, on the authorities, an award for aggravated damages may still be made even if an assault were committed in a non-public place: Chan Kwok Wai v Secretary for Justice, HCPI 134 of 1999, 30 June 2000 and 霍兆榮 v 廉政公署, CACV 247 of 2022, 6 February 2003.

7.23  The plaintiff claims HK$100,000 under this head. Mr Tai principally relied on Chan Kwok Wai (in which an award of HK$100,000 was made) but the facts of that case are of a much more serious nature (the plaintiff having been assaulted in an interview and forced to admit guilt to a serious offence). In my view, taking into account the authorities submitted by the parties (including for example Chan Kiu Yeung v Mak Shun Wai [2021] HKDC 598), an award of HK$20,000 would have been appropriate.

Exemplary damages

7.24  The plaintiff claims HK$50,000 under this head.

7.25  Exemplary damages are awarded where there is unacceptable behaviour on the part of the defendant that displays features which merit punishment by way of malice, fraud, cruelty, insolence and the like, and where the conduct of government servants is in issue. The central requirement for exemplary damages is the presence of outrageous conduct and there is a high threshold: McGregor §§13-011 and 13-019.

7.26  Unlike the other heads of damage, an assessment of exemplary damages is necessarily intertwined with my findings of fact on the issue of liability. On the facts as found, even were the degree of force (including both the subduing and the handcuffing) not reasonably necessary, it seems to me, as submitted by Ms Law, they do not cross the high threshold to justify an award under this head.

Future medical expenses

7.27  The plaintiff claims HK$50,000 for further treatments for his residual problems. Given the experts’ joint opinion that the plaintiff has attained a stage of maximal improvement and no further treatment is required, no award is made under this head.

7.28  In sum, I would have assessed quantum as follows.

Pain, suffering and loss of amenities	HK$80,000
Special damages	HK$5,250
Aggravated damages	HK$20,000

8.   Conclusion

8.1  For the above reasons, the plaintiff’s claims are dismissed in their entirety.

8.2  There is no reason why costs should not follow the event. I make a costs order nisi that the plaintiff is to pay to the defendant the costs of the action (including any reserved costs) to be taxed if not agreed, with a certificate for counsel. The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

8.3  I thank both counsel again for their helpful assistance.