MAK HUNG YIN v. TSANG KOON CHUNG AND OTHERS

CACV 493/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 493 OF 2000

(ON APPEAL FROM COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 1038 OF 1997)

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J U D G M E N T

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Hon Rogers VP:

1. On 31 January 1996 Mr Mak Hung Yin went to the Social Welfare Department office on the 7th floor of Kwai Hing Government Offices in Kwai Chung. There is no doubt that by the time he emerged from the ground floor of the building, within the hour, he had suffered an injury that caused an epidural haematoma. On the next day he had an operation to remove the clot that had formed.

2. At the trial of this Action before Lugar-Mawson J, Mr Mak claimed damages against 2 members of the staff of the Social Welfare Department. In his judgment, the trial judge found both persons responsible for the plaintiff's injury and awarded damages of $91,600 plus interest. The question that arises on this appeal is whether the 3rd defendant, Mr Leung Chi Shing, is responsible for that injury. The appeal is as to fact. For that reason it will be necessary to set out the facts in some detail.

3. In 1996 Mr Mak was approximately 56 years old. He was a heroin addict. At the beginning of the year he was in a drug addiction training centre. Unfortunately his mother became very seriously ill. As a result, on 10 January 1996, Mr Mak was given early release from the DATC where he was held. Although Mr Mak was married and his wife was working, he was not able to support himself financially. As a result he claimed public assistance. The early occasions on which Mr Mak visited the Social Welfare Department office are not important features in this case. It would appear that Mr Mak received payments from the Social Welfare Department for his living expenses.

4. Mr Mak's mother died on 18 January 1996. On the same day Mr Mak was introduced to Mr Leung for the first time. Mr Leung was an assistant in the Social Welfare Department and was assigned to be the case officer for Mr Mak. On 30 January 1996 Mr Mak went to the Kwai Hing Social Welfare Department office in order to claim an allowance in respect of his mother's funeral expenses. On that occasion he also saw a Mr Lai. Mr Lai was to be the person who would deal with Mr Mak's claim in respect of the funeral expenses.

5. It should be noted here that Mr Mak is quite open about the fact that at least on 30 January he had created quite a disturbance in order to attract attention and be served. He admitted becoming very impatient and shouting for attention. He also admitted that he was "verbally abusive" to the staff.

6. The allowance in respect of the funeral expenses could not be paid on 30 January and thus it was that Mr Mak and his wife returned to the Social Welfare Department office on the following day.

7. It emerges from the evidence that on 31 January Mr Mak awoke at about 9 a.m. His wife went to work. He had no work to go to, but he went to have breakfast. Mr Mak's breakfast consisted not only of congee and noodles but he also drank wine. On that day he had had about four taels of wine in the morning. Mr Mak said in evidence that his normal daily consumption of alcohol was one bottle of Chinese wine. If he could afford it, he would purchase "coloured" wine. If he could not afford the more expensive, or as he put it the better, coloured wine, he would purchase white wine.

8. There is no doubt that on 31 January Mr Mak had consumed a substantial quantity of wine before going to the Social Welfare Department office. Indeed his wife said in evidence that his breath smelt of alcohol. So too did a Ms Lai, who was one of the witnesses at the trial.

9. After Mr Mak's wife had finished work at about 12 noon, they went to the Social Welfare Department office together and arrived there at about 12:30 p.m. Again, Mr Mak became aggravated because he did not receive immediate attention from the staff. Mr Mak's wife had paid the funeral expenses and hence she was to receive at least part of the reimbursement from the Social Welfare Department. She approached the reception counter. The 1st Defendant, Tsang Koon-chung, who is a clerk in the Social Welfare Department, was processing or was about to process her application. Mr Mak admits that at that point he intervened. He used foul language. He pushed his wife aside. She went to sit on one of the benches. Mr Mak then continued his abuse. He was rude to Mr Tsang and he insulted him. Mr Tsang did not reply but, instead, he got up and opened the door to come out from behind the reception counter. What happened after that is a little confused. It would seem that there was some scuffle. Mr Mak says that Mr Tsang punched him in the stomach. One thing is sure that Mr Tsang was subsequently charged with common assault. He admitted the facts and was bound over for a year in the sum of $500.

10. It was at this stage that Mr Leung came on the scene. The commotion had caused him to come out of his office because he understood that Mr Mak was creating a disturbance and he regarded Mr Mak as his "client". Mr Leung wanted Mr Mak to go into one of the 3 interview rooms. It matters not which, although at the trial there was some dispute as to which room was used.

11. Mr Mak's evidence as to how he went into the room was by no means consistent. In evidence-in-chief he said that Mr Leung was leading the way, that he was in between him and that Mr Tsang followed behind. When they reached the room both Mr Leung and Mr Tsang pushed him into the room. In cross-examination by counsel on behalf of the 1st defendant, Mr Mak agreed that Mr Leung took him down the corridor to the interview room and had his arm on his, Mr Mak's, shoulder. When cross-examined by counsel for the 3rd defendant Mr Mak said that Mr Leung had told him to follow him, Mr Leung, which he did and then when he reached the room Mr Leung and Mr Tsang were behind him. Perhaps these variations do not matter very much, but they do rather contrast with the evidence given by the plaintiff's wife, as recorded in the judgment, that the 2 defendants pressed the plaintiff's shoulders and arms to his side and pushed him into the room.

12. The plaintiff said in evidence that after he had been pushed into the room he bumped into something, which he did not identify, and then fell onto the floor. After that, the 2 defendants pressed him down on the ground and kept beating his head. This went on for about 2 to 3 minutes. The plaintiff said that the defendants used both fists. He shouted for help, but no one came to his rescue. Later in his evidence, he said that Mr Leung pinned him down and that it was Mr Leung who assaulted him the most. He also expanded his evidence to say that Mr Leung pressed his leg on his my hand, or arm, to stop him moving whilst both men beat him with their fists.

13. As will be seen later, crucial to the conclusion reached by the judge that the defendants were responsible for Mr Mak's injury was the question of whether any injury was occasioned to the plaintiff in the interview room. In particular, as to whether there was evidence that the plaintiff had been hit on the head with a sharp blow in the region of the right temple. The plaintiff gave no such evidence. His evidence was confined to being hit about the head with fists. He did not suggest in his evidence that he hit his head on the table or some other object when he fell onto the floor. The relevant passage came in re-examination, as follows: -

"Q. Yes, and there was then this question, 'whereupon you fell into a chair standing at the end of the room?' And your answer was 'No.'

A. That's right.

Q. I see, and what do you mean by 'No'?

A. That -- that is to say, I did not fall down myself; it was he who pushed me into it and -- and as a result I fell.

Q. I see. What do -- once again, were you just pushed by a he or by they -- by them?

A. Mr Leung and Mr Tsang pushed me.

Q. Are you now saying that you did in fact fell on a chair standing in the room but it was a result of the push?

COURT: What do you mean 'fell onto a chair'? Did he? Did you actually fall onto a chair, hitting the chair?

A. Well, I -- he pushed me into there and I hit a chair and then I fell onto the floor.

COURT: Not onto the chair?

A. No, I did not fall onto the chair, I fell onto the floor.

MR YAU: I'm sorry, I have used the wrong expression, my Lord. It was meant as clearly he fell and hit himself on the chair.

Q. Now, and then the next question you also say 'No.' The question was, the suggestion Mr Leung continued to move forward and struck you to fall on the floor.

A. I -- I didn't say no.

COURT: Well, never mind what he said; he's telling me now what happened, you see.

Q. Now, just tell the court. After you -- your body hit on the chair, what happened next?

A. Then he use his hand to shut the door and then the two of them came up and starting -- and started to beat me up -- beat me up.

Q. At that point were you in a standing position or were you already lying down?

A. I was lying down.

Q. With your left side of the body pressing on the floor?

A. That's right."

14. During all this time, Mr Mak's wife had remained seated outside. Although the plaintiff said that he had called out for help, the wife's evidence was that she had only heard his call for help after some period of time, about 3 minutes, after the 3 men had entered the room.

15. There was one other witness whose evidence was read into the transcript. He was a Mr Chow. His evidence was that when the plaintiff first approached the reception desk he stretched out his right and seemed to hit Mr Tsang. Later after the plaintiff had sworn at Mr Tsang, Mr Tsang hit the plaintiff in the stomach with his left hand. Mr Chow said that 3rd defendant held the plaintiff back when the plaintiff looked as if he was going to retaliate in reaction to Mr Tsang's punch. Although Mr Chow says that the 3rd Defendant pushed the plaintiff into the interview room, he says that the plaintiff's wife was content just to sit beside him on the bench without a word. Mr Chow's statement said that he did not hear any sound of a quarrel coming from the interview room when the 3 men were inside, nor did he hear any cries for help. All that time he was waiting in the reception area.

16. There was a difference between the plaintiff and his wife as to how the plaintiff emerged from the room. The plaintiff said that after the assault he had crawled out of the room and asked his wife to help him stand up. His wife said that a minute or two after the 2 defendants had left the room, the plaintiff walked out and came and sat down beside her. Mr Chow's statement also does not mention that the plaintiff crawled out of the room. All he says is that the 3 people came out of the room. If the plaintiff had been crawling one would have expected that fact to be noted in Mr Chow's statement. Moreover, Mr Chow only records the plaintiff as complaining to Mr Tsang "You hit me. When I get my money, I'll report to the police and go for a body check."

17. After the plaintiff had come out of the interview room it seems that Mr Lai did give the plaintiff's wife the money in respect of the funeral allowance.

18. There is no doubt that the plaintiff was upset by what had occurred. At one stage he attempted to throw a vase, which contained plastic flowers, at Mr Tsang. He also wanted to make a telephone call to complain about the assault. His evidence was that Mr Lai refused that request and that he was told to make his telephone calls outside.

19. The next extraordinary events in this saga occurred when Mr Mak and his wife were leaving the Social Welfare Department office. There were two clerical workers who were then employed at the Social Welfare Department. They were on their way to lunch at the same time that the plaintiff and his wife were leaving. The judge accepted their evidence as truthful. The first witness was a Ms Lai. She said that she was on her way out with her colleague, Ms Wong. When they were in the corridor leading towards the lift, she heard a banging sound as if something had banged against wood. She then turned round to look to see what had happened and she saw a man in light coloured clothing. He covered his head with both hands; he was stooped or had lowered his body a bit and had bent his body a bit. She said that she had not realised that the wall was made of wood, and not concrete, until that had happened. Although she had not seen him hit his head on the wall, her impression was that that was what had happened.

20. Ms Lai went on to say that the man and the woman had caught up with her at the entrance to the lift. She said the man smelt of alcohol and she felt scared and wanted to go away as soon as possible. She said that in order to avoid the man and woman she deliberately took the lift that was going up from the 7th floor, despite the fact that the other lift, which was also approaching the floor, would have reached the ground floor first. She said that both she and Ms Wong entered the lift. Ms Wong stood close to the panel of control buttons.

21. Ms Lai continued that the next thing that happened was that she saw the man knock his head against the side of the lift. He did it so violently that he made the lift shake. Ms Lai said that she felt scared by this and avoided eye contact with the man, so she looked at the woman. At that stage the woman was smiling or grinning. Ms Lai demonstrated the way that the woman looked and the judge interpreted that as giggling. Ms Lai said that the woman appeared very happy.

22. Finally, when the lift reached the 4th floor the doors opened and there was a short period when nothing happened. But then the man put himself in a position where the doors closed on his head. They opened again and closed on his head about three to four times. Ms Lai's evidence was that it was not a gentle closing of the doors. She said: -

"-- we said that lift was a little bit mad because a normal lift -- if that's a normal lift after the doors were opened there would be a short period of no activity before the doors closed, but this one, this particular lift, after the doors were opened it would close several times with bangs."

23. After that the man moved back a step. Ms Lai says that she thought that the man would be very angry with her colleague Ms Wong, who was standing by the control panel of the lift, and she looked at the woman at the back of the lift. Far from looking angry or concerned Ms Lai said that she saw that the woman was still smiling. She said that she seemed to be enjoying or appreciating what the man was doing.

24. There is no doubt that the man in question was the plaintiff and the lady with him must have been his wife. Ms Wong who was with Ms Lai identified him. Ms Wong confirmed everything that Ms Lai had said apart from the fact that she did not remember whether the lift shook when the plaintiff hit it with his head. Because Ms Wong was standing by the control panel of the lift, she was able to see very clearly that the plaintiff's head was sandwiched between the doors when they closed 3 or 4 times when the lift was on the 4th floor. She said that the lift doors made a banging sound when they opened and closed on the plaintiff's head. Despite this the plaintiff acted as if he were numb and just stood there, in the same position.

25. Both the plaintiff and his wife denied this episode. They denied that the plaintiff had hit his head on the wall of the corridor or on the wall of the lift. The plaintiff also denied that he stood in the doorway of the lift and let the lift doors close on his head. It would appear from the judge's note of the wife's evidence, that she simply said she did not remember the incident on the 4th floor. It is, therefore, implicit in the judge's acceptance of Ms Lai and Ms Wong's evidence that he did not accept the plaintiff's evidence nor, indeed, his wife's evidence, at least in this regard.

26. The importance of the events which took place inside the interview room stems from the fact that it was the judge's conclusion that the 1st and 3rd defendants assaulted the plaintiff in the interview room and that in the course of the assault he fell, striking his head, either on the edge of a piece of hard furniture in that room, or on the floor. The judge said that he was drawn to that conclusion from the evidence and on the balance of probabilities.

27. The judge arrived at this conclusion by a process of reasoning using as its starting point some of the statements made in a medical report by Dr Fung Ching-fai. Dr Fung had examined the plaintiff on behalf of the Social Welfare Department. At the commencement of the Action, the Secretary for Justice had been joined as the 2nd defendant, being sued in a representative capacity on behalf of the Director of Social Welfare. By the time of trial the claim against the Director was no longer pursued. The medical reports of all the doctors who examined the plaintiff were admitted as agreed evidence in the case.

28. Dr Fung had interviewed Mr Mak in June 1998 and made a report in August of that year. In the report he had explained the two most common reasons for injuries leading to epidural haematoma. The first was what was referred to as a focal injury. Such injuries are usually caused by the impact of a hard object. The other common cause of an epidural haematoma is vibration or shaking. Dr Fung came to the conclusion that, if Mr Mak had only been attacked, and had been hit on both sides of the head, by fists the most likely damage that would have been produced would have been a cerebral contusion. There would also have been concussion and diffuse axonal injury. Dr Fung said that it was extremely unlikely that injury by fists could produce Mr Mak's injury. He thought that the most likely cause of the injury would be the direct impact by a hard and sharp object at the right temporal region of the head. He reiterated that injury by fists leading to the formation of this epidural haematoma was extremely unlikely. Dr Fung also noted that the presence of a linear fracture with depression at the site of the epidural haematoma further supported his conclusion that a hard object had produced the injury with a hard or acute edge. Such an edge was, for example, an edge of a door or the corner of a wall.

29. Dr Fung's report also contains the statement that Mr Mak "could recall clearly that he did not hit his head against the floor or any surrounding furniture during the attack."

30. There was before the judge no evidence that Mr Mak had hit his head either on the chair or on the desk or, indeed, on the floor. The plaintiff's evidence was entirely confined to his statements that his body hit the chair and that he fell on the floor and as to his being hit with fists. It may be noted, however, that Mr Mak had made a statement to the police on 5 February 1996. On page 7 of the translation of the statement he said "I bumped against the table corner on my right temple before hitting my head to the ground." Nevertheless, that was not what the plaintiff said in evidence in the course of the trial. Still less had the plaintiff been cross-examined about such an allegation.

31. The re-re-amended statement of claim contained the allegation that "...Prior to the assault, the Defendants violently pushed the Plaintiff forward causing the Plaintiff falling forward and having his head to have collision with a table or chair or other hard objects before landing on the ground." That allegation was only introduced into the case in the re-re-amended statement of claim. Leave to make that amendment was given in May 1999. That, as was observed by counsel for the 3rd defendant, was after Dr Fung's report had been disclosed. It was nearly 3 years after the action had been commenced. Whether or not, as Mr Yau on behalf of the plaintiff suggested, the amendment was based on the statement to the police or, as Mr Yeung on behalf of the 3rd defendant suggested, it had probably been made as a result of Dr Fung's report, probably does not matter.

32. Mr Yeung also drew our attention to the fact that the 3rd defendant had only been included as a party to the action late in the day. That had been by an amendment that was allowed in July of 1998. There again, there may be explanations as to why the 3rd defendant was not identified and sued earlier notwithstanding that he had been the case officer in charge of the plaintiff's case from 18 January 1996. It is curious that the plaintiff did not pick out the 3rd defendant in an identification parade that had been held after the plaintiff's complaint. The plaintiff's explanation was that he had not recognised the 3rd defendant whose appearance he said was different by reason of a different haircut and the presence of glasses.

33. Whilst there are matters, therefore, which give rise in themselves to suspicion as to the manner in which the plaintiff's case was brought against the 3rd defendant, the important fact is that the judge's conclusion as to the manner in which the plaintiff came by his injury is not supported by evidence but is an inference based solely on the statement in the medical report that a hard object must have caused the injury. Whereas that statement in itself is something which appears to be unexceptionable, the doctor did not give oral evidence and his elaboration as to what he considered could have caused the injury was by way of example and not exhaustive.

34. 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.

35. 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.

36. 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.

37. 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.

38. It should be noted that the 3rd defendant's evidence was that when he came to the waiting area and saw Mr Tsang and Mr Mak about to get into a fight his thought was to separate them and take Mr Mak to an interview room to calm him down. He then led the plaintiff to the interview room; he opened the door and held it back with his body to stop it springing back; suddenly he saw Mr Mak on the floor. There is a clear description in the evidence as to the way in which he said that Mr Mak was on the floor. He described it as being similar to the way in which Muslim people pray. Although in the translation this was also translated as "sprawl" it is clear that it was Mr Leung's evidence that Mr Mak was in a crouched position. I would merely say that for my own part this would not be a surprising position for a person to adopt if he had been punched in the stomach and was either in pain or wished people to think that he was in pain. Nor is the way the 3rd defendant says he opened the door to usher the plaintiff into the interview room anything other than natural.

39. The judge noted that the 1st defendant's counsel had sought to put an allegation that the 3rd defendant alone had struck the plaintiff inside the interview room. That allegation was only put to the plaintiff. The 1st defendant's counsel did not put it to the 3rd defendant. This was, perhaps, not surprising as the 1st defendant chose not to give evidence. However, although the judge summarised the evidence given by the witnesses, he made few findings of fact. In particular there were no findings in relation to the allegation that the plaintiff had been beaten by fists for a period of 2 to 3 minutes. If there were to be a finding that the plaintiff had been assaulted inside the interview room causing injury, it would have been necessary for a finding to be made about the plaintiff's allegations. The differing versions given by the plaintiff and the other witnesses were not assessed. Nor was it held that the assaults by fist took place over an extended period when a number of people, apart from the witnesses, were outside and within the vicinity and nobody heard anything untoward. Nor was any reference made to the fact that Mr Chow referred to the plaintiff accusing Mr Tsang of hitting him and going for a body check. Mr Chow did not say that the plaintiff complained against the 3rd Defendant nor that he complained about hitting his head.

40. I would mention that our attention was drawn to the fact that whilst the hearing of the trial commenced in January and the evidence was completed in February, with submissions in March the judgment was not delivered until August. It is, of course, most undesirable that judges should find themselves in a position where judgments have to be delayed, particularly where they entail an assessment of the evidence, not to say credibility. A gap of 6 months puts a tremendous strain on a judge to recall the evidence clearly, let alone the submissions. The gaps between the various parts of the proceedings at trial are perhaps indicative that the judge had to hear other cases before he had concluded hearing the present case and the trial was interrupted. This is most undesirable.

41. In my view, therefore, this appeal must be allowed. The consequence is that, since the 1st defendant did not appeal, the judgment against him stands but the judgment against the 3rd defendant must be set aside. I would therefore allow this appeal and propose that there be an order nisi of costs in favour of the 3rd defendant both here and below. Although the amount involved, even taking into account interest, was only in the region of $100,000 I consider that the costs should be on the High Court scale. Not only was that the order in the Court below, but the allegations against the defendants were of a serious nature and justify costs to be awarded on the High Court scale.

Hon Le Pichon JA:

42. I agree and have nothing to add

Hon Sakhrani J:

43. I agree.