CHAN SZE KI v. DEPARTMENT OF JUSTICE ON BEHALF OF THE COMMISSIONER OF HONG KONG POLICE FORCE AND ANOTHER

CACV 276/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 276 OF 2005

(ON APPEAL FROM HCPI 478 OF 2003)

______________________

J U D G M E N T

______________________

Hon Cheung JA :

The plaintiff’s claim 

1. The plaintiff, Mr. Chan Sze Ki, is a detective inspector with the Hong Kong Police Force (‘the Police’).  On 24 April 1992, he was leading two teams of police officers to conduct a raid at an address in Li Tak Street in Tai Kok Tsui, Kowloon (‘the premises’).  His immediate supervising officer and the commander in charge of the raid was Mr. Trevor John Oakes (‘Mr. Oakes’), the 2^nd defendant, who was then a superintendent with the Police but had since retired from it. 

2. The premises were located on the 6^th floor of a residential building.  An armed gang which had committed the Chow Sang Sang Goldsmith robbery (‘the Chow Sang Sang robbery’) the previous day was inside the premises.  As soon as this gang knew that the Police was outside the premises, its members used assault rifles and fired at the police officers who were forced to retreat from the premises, down the staircase, to the ground floor of the building. 

3. After leaving the building, the 2^nd defendant asked his subordinates to close the iron gate at the entrance of the building so as to contain the gang inside the building.  The gang was making its way down the staircase. 

4. The plaintiff fearing that some of the police officers might still be inside the building then tried to prise open the gate.  He was forced to turn back because he heard loud explosions from above him.  But in so doing he lost his balance and fell down at the entrance of the building.  The gang which by then had come out from the building, fired at the plaintiff’s head causing him serious injuries.  Fortuitously the plaintiff survived.   

5. Mr. Oakes and another officer were also wounded in the shooting.  The suspects then fled the scene and disappeared.  Eventually they were caught by the Police.  They were later prosecuted and convicted of offences relating to the Chow Sang Sang robbery and other robberies and also the attack on the police officers in respect of the operation.

6. The plaintiff claimed damages against the Commissioner of Police (‘the Commissioner’)(the 1^st defendant) and the 2^nd defendant for negligence.  His case was dismissed by Suffiad J who also found in the alternative that the plaintiff himself was 50% to blame for his injuries.  The plaintiff now appeals to this Court.

Events leading to the raid

7. In order to understand the nature of the raid and the claim, it is necessary to deal with the evidence of Mr. Kerry Stanton Pearce (who was a Chief Superintendent of the Police at the time of the raid but had also since retired), Mr. Oakes and the plaintiff.  

The evidence of Mr. Pearce

8. Mr. Pearce’s evidence can be summarized as follows.

1)   About a month before this raid, Chief Inspector Ng Kam Ki (‘CIP Ng’) had reported to him about an informer, who had information regarding two suspects (‘the suspects’) who were stealing cars for armed robbery gangs.  Upon receiving this information, Mr. Pearce instructed the Criminal Intelligence Bureau to carry out research and analysis of the information and also instructed CIP Ng to further develop the information.

2)   On the morning of the raid, he noticed on the Regional Sitreps (i.e. Situation Reports) that the Chow Sang Sang robbery had occurred the previous evening in Mong Kok.  It was an armed robbery and a long-barrelled weapon was used in the robbery.

3)   About 8:30 on the morning of the raid Mr. Pearce instructed the 2^nd defendant to conduct raids on three addresses from the information obtained relating to the suspects.  The only information Mr. Pearce had in his possession at that time was that the suspects were allegedly stealing cars but that information did not indicate that the addresses were connected with the Chow Sang Sang robbery case.  Although one of the addresses was the premises which was in the same district where the getaway car in the Chow Sang Sang robbery was found to have been abandoned, that did not cause him to make any connection between the robbery and the raid because the location i.e. Tai Kok Tsui was a popular dumping ground for getaway cars in 1992.

4)   Mr. Pearce said he had very little confidence in the informer or the information and the only purpose of the raid was to confirm the veracity of the information provided by the informer with the hope that it might lead the Police to the armed robbers.  He did advise Mr. Oakes that he should take some ‘artillery’ meaning shotguns to the raid.  He explained that he mentioned this to Mr. Oakes because the climate at the time was very bad in terms of armed robberies which occurred almost daily.

The evidence of Mr. Oakes

9. Mr. Oakes’ evidence on the information about the suspects in the premises was according to the judge ‘on all fours’ to that of Mr. Pearce.  The judge summarised Mr. Oakes’ evidence as follows :

1)   Mr. Pearce had been unable to make any connection between the Chow Sang Sang robbers and the car stealing gang.  Therefore, Mr. Pearce instructed him to make further inquiries at the premises, hoping to locate the car thieves there.

2)   Mr. Oakes decided to go with the raiding party to the premises, one of the reasons being that he could deal with the possibility of locating the informer at the premises if that should be the case. 

The evidence of the plaintiff

10. The plaintiff was at the time of the raid the team leader of Team 2C of the Kowloon East, Regional Crime Unit (‘KE RCU’).  His evidence was that,

1)   On the morning of the raid he was briefed by Chief Inspector Cheung Yuk Fung (‘CIP Cheung’) that the operation concerned two suspects in relation to the Chow Sang Sang robbery which took place the previous day.  CIP Cheung mentioned that the robbery suspects had used ‘pistol like objects’ in carrying out the robbery.

2)   CIP Cheung said that three addresses had been identified with the robbery suspects.  The plaintiff was given one address and told to conduct a raid there as soon as possible.  The address that he was given was the premises.  CIP Cheung stressed that the suspects were believed to be armed and instructed the plaintiff to attend the raid with bullet-proof vests.  The plaintiff was told that in addition to his team i.e. Team 2C, some officers from Team 2B of the KE RCU would participate in the operation.  Mr. Oakeswould accompany and supervise the raiding party.

Three teams of police officers

11. From the evidence, three teams of police officers were involved with the operation.  Two teams led by the plaintiff would visit the premises and if the target persons were not located at the premises, they would have gone on to the second address and if necessary the third address.  Another team would also visit another targeted address.

The finding

12. One can see immediately from the summary of evidence that there was a conflict of evidence between Mr. Pearce and Mr. Oakes on the one hand and the plaintiff on the other hand about the purpose of the raid.  The judge found all three witnesses were truthful witnesses.  He made the following findings :

‘79(1)   the information or intelligence received and based upon which this operation was mounted related in the main to car thieves who had been stealing cars for use by armed robbers or armed gangs;

(2)   the decision to mount the operation and the raid on the target premises being one of the three addresses supplied by the informer was made in the hope that the car thieves would be located which may give the police a further lead to the armed robbers to whom the car thieves were supplying stolen cars;

(3)   such operation was undertaken by the police with an open mind and in the light of there being a likely link between the car thieves and the armed robbers, the briefing to the plaintiff by CIP Cheung was on the basis that the operation was to follow up on the Chow Sang Sang robbery case with the added warning that the suspects could be armed;

(4)   what was not known to the police at the time and not within their reasonable contemplation was that assault rifles and grenades were kept at the target premises and would be used against the police personnel in the operation; and

(5)   I further find that when the operation was mounted, it was not an operation to combat known heavily armed suspects in the target premises but rather a normal operation to check out the target premises but with the added caution that the occupants of the target premises may be armed with pistol like objects.’

Negligence of the defendants

13. The plaintiff’s case is that the operation was a planned raid on armed robbery suspects.  It was known to his supervising officers and those directing him at the raid that the suspects at the premises had previously used assault rifles the previous day at the Chow Sang Sang robbery.  This has been the plaintiff’s case since the statement of claim was served (see paragraph 5 thereof). 

14. His claim against the Commissioner was based on his breach of duty as an employer in failing to take reasonable precaution in the performance of his duty.  The crux of the Commissioner’s negligence was in :

‘13(b) Negligently failing to deploy a suitable tactical unit to assist in the raid/operation in circumstances where it was either known or thought likely that firearms and/or assault rifles would be within the Target Premises;

(c) Negligently failing to assign a competent command officer who was capable of giving proper orders and instructions when confronted with a dangerous situation involving armed robbers who were known to have in their possession and who were known to have previously used heavy firearms in a robbery the day before the incident occurred.’

15. The crux of the negligence of Mr. Oakes was in,

‘13(g) Negligently failing to warn the plaintiff that the armed robbers had in their possession, and were known to have previously used, assault rifles in a robbery the day before the incident occurred;

(h) Negligently failing to provide the plaintiff with proper instructions and information in order for him to take steps to protect himself from imminent danger;

(i) Negligently giving orders to proceed with the raid/operation at the site of the incident despite being warned by the plaintiff that the armed robbers were believed to have in their possession heavy firearms.’

The position of the Commissioner

16. In this case the real issue is whether the Commissioner had knowledge that the persons inside the premises were connected with the Chow Sang Sang robbery that took place the previous day and whether they were equipped with assault rifles.  In this context, the knowledge of the Commissioner must necessarily mean the knowledge of the senior police officers who were involved in the decision to raid the premises.

17. If the Commissioner had indeed such knowledge, then based on the evidence and the specific findings in this case, liability can be established against him. 

Hierarchy of command

18. In terms of hierarchy of command, Mr. Pearce was the most senior of the police officers.  He was the Superintendent-in-charge of the Operations Division of the Criminal Intelligence Bureau.  Next in command was Mr. Oakes who had the rank of Superintendent Crime, Kowloon East.  Mr. Pearce instructed Mr. Oakes to prepare and conduct the operation.  He also sent Senior Inspector Chan Che Man (‘Inspector Chan’) of Regional Intelligence Unit, Kowloon East, (‘RIU, KE’) to brief Mr. Oakes.  Mr. Oakes then instructed CIP Cheung to prepare the raid.  The plaintiff and his subordinates were then briefed by CIP Cheung. 

Purpose of the raid

19. CIP Cheung did not give a witness statement nor did he give evidence in court.  In order to reconcile the conflict in the evidence, the judge found that the Police was keeping an open mind on the possible connection between the car thieves and the armed robbers.  The judge found on that basis it was hardly surprising that CIP Cheung would have told the plaintiff that this operation was to follow up on the robbery as well as warning him that the suspects might be armed since ‘pistol like objects’ were known to have been used in that robbery.

20. While Mr. Pearce and Mr. Oakes saw no connection between the Chow Sang Sang robbery and the raid, CIP Cheung had no difficulties in making the connection between the raid and the robbery and had expressly instructed the Police officers to conduct the raid on that basis. 

21.  Mr. Leong S.C., counsel for the Commissioner and Mr. Oakes, submitted that CIP Cheung was involved with the ‘operation’ aspect of the raid and that his view might be different from that of Mr. Pearce and Mr. Oakes who were involved with the ‘decision’ aspect of the raid.

22. In my view if CIP Cheung as the officer in charge of planning the operation had no difficulties in drawing the connection between the two, it is legitimate to question whether Mr. Pearce and Mr. Oakes in their evidence had played down the significance of the raid. 

23. Mr. Pearce described the raid in these terms

‘You go shake a tree to see what falls out....’

24. Mr. Oakes said

‘this was a fairly straightforward and standard operation........  On paper, this could have been dealt with by probably a sergeant and two or three PCs’.

25. The circumstances of the case clearly pointed towards a real connection between the Chow Sang Sang robbery and the raid.  The raid was to be conducted on the same day when Mr. Pearce learnt of the robbery.  It was conducted at the same locality where the getaway car of the robbery was found to have been abandoned.  Three teams of police officers were instructed to raid the addresses of two suspects.  Two of the teams were combined together to conduct the raid on the premises.  Apart from Mr. Oakes and the plaintiff, there were 12 officers in that team.  One of the two suspects turned out to be the mastermind behind the Chow Sang Sang robbery and a string of other armed robberies.  He was inside the premises.  The officers were instructed to wear bullet-proof vests and to bring their weapons.  A superintendent of Police also took part in the raid.  It is bordering on incredulity to maintain that the raid was to merely try to get information from some car thieves.

Knowledge of assault rifles

26. However, what is more significant for the present appeal is that Mr. Pearce was aware that a ‘long barrelled weapon’ was used in the robbery and he had discussed this with Mr. Oakes.  

27. When CIP Cheung instructed his men that ‘pistol like objects’ were used in the robbery, it meant that the Police must have been aware that weapons of some sort had been used in the robbery.  One would also have expected the information on the use by the robbers of a ‘long barrelled weapon’ to be passed on to those planning the operation. 

28. But as it turned out CIP Cheung did not mention this type of weapon when he was briefing the plaintiff and the other police officers.  This means either CIP Cheung did not know of this when he was planning the raid or that he knew of it but did not mention it to his men.  All things being equal, the former situation is more likely to be the case. 

29. But whatever may be the position, the important thing is that within the police, there were officers high up on the command chain who were aware that a ‘long barrelled weapon’ had been used in the Chow Sang Sang robbery.  In terms of the dangerous world of criminal activities, the description of ‘long barrelled weapons’ must be referrable to weapons like assault rifles. 

30. That knowledge, in terms of the connection of the raid with the robbery, the use of assault rifles at the robbery and the likely presence of such weapons at the premises, must have been possessed by the senior police officers involved with the decision to raid the premises.  In any event from the surrounding circumstances of this case, it is not difficult to infer that they ought to have had such knowledge. 

31. In my view based on this analysis of this case the plaintiff has clearly discharged the burden of establishing that it was known to those supervising and directing him on the raid that the suspects at the premises had previously used assault rifles during the robbery and such knowledge was attributed to the Commissioner.

Negligent to send the plaintiff

32. The next question to be asked is that with such knowledge, whether the Commissioner was negligent in sending the plaintiff and his men to the raid.  The plaintiff’s case is that the Commissioner was negligent because he had failed to ‘deploy a suitable tactical unit to assist in the raid/operation’.  In other words, he should not have been sent to the raid without assistance from police officers who were better equipped to deal with the robbers.

33. In my view, the Commissioner was negligent.  The finding by the judge was that the officers would not have been sent to conduct the raid if the Police had such knowledge.  He found that,

‘ 81.   Had it been known or suspected or even believed by him (i.e. Mr. Oakes) that there were assault rifles and grenades in the target premises which the culprits would not hesitate to use against the police, I cannot imagine that he would have allowed the raiding party (himself included) to be carrying only standard police issue revolvers which would be a total mismatch in terms of firepower against assault rifles.

82.   On the other hand, if it was only suspected that the people inside the target premises, had in their possession pistol like objects, a raiding party of 12 officers from the Regional Crime Unit all armed with standard police issue revolvers ought to be more than sufficient a match for the suspects.’

34. This finding was clearly supported by the evidence of Mr. Pearce who said that,

‘ If we had any information this was it, we would have been over there with the 7^th Cavalry.’

35. As it turned out the plaintiff and his team was hopelessly outmatched by the robbers.  Had there been better assistance this unfortunate event could have been avoided.  It does not matter that the plaintiff was only injured after he had left the building because if a better equipped team was present, it would be most unlikely that the robbers would have made their escape in such a blatant manner and without curtailment by the police officers who were forced to retreat from the raid.  Causation has been established in this case.

Omission

36. In coming to this view, I am acutely aware of the unique role of a trial judge in terms of finding of fact and the restriction imposed on me in interfering with finding of fact.

37. The judge’s finding that the intelligence available in the present case was ‘underdeveloped intelligence’ which would not have been sufficient for enlisting the service of the elite Special Duty Unit which is basically an anti-terrorist squad cannot stand once the full extent of the Commissioner’s knowledge is ascertained.  Further, in attempting to reconcile the evidence of Mr. Pearce and Mr. Oakes on the one hand and the evidence of the plaintiff’s evidence on the other hand on what the plaintiff had been instructed by CIP Cheung about the operation, the judge had clearly not taking into account the important fact that even on Mr. Pearce’s evidence, he was aware that a ‘long barrelled weapon’ had been used in the robbery.  This important omission flawed the finding.

Unique role of the Police

38. I am also acutely aware of the unique role of the Police.  The nature of police work requires the officers to deal with dangerous situations.  However, as an employer, the commissioner must also discharge his duty towards his employees by providing them with a safe system of work and to take reasonable precautions for their safety. 

39. The recent English case of Mullaney v. Chief Constable of West Midlands Police [2001] EWCA Civ 700 shows that the courts, while recognizing the importance of public policy in claims put forward by police officers against the head of the Police, also recongized that,

‘ in balancing the relevant considerations of public policy or (put another way) in deciding what is fair and just in all the circumstances the court should put into the balance in favour of the claimant police officer the fact that it is ordinarily the duty of an employer to take reasonable care to devise and operate a safe system of work.’

40. I would like to emphasize that liability is established against the Commissioner in the present case on the unique facts and the finding by the judge.  My conclusion is based on the way in which the case was contested below, namely that the commissioner only sought to justify the deployment on the basis that the persons sought to be arrested might have handguns only.  It was never his case that the operation could be justified even if, as the facts showed, assault rifles might be encountered. 

The OCTB report

41. In his appeal the plaintiff has mounted a case that the judge had ignored the contents of a report prepared by the Organized Crime and Triad Bureau (‘OCTB’) which took over the case after the raid.  The report was dated 26 June 1992 and was disclosed by the plaintiff.  At paragraph 1 of this report, it was stated that the raid was conducted ‘on receiving a piece of reliable information in a goldsmith shop robbery’.  At paragraphs 20 to 22 it showed that CIP Ng was told by his informer that he had been asked by someone to find a stolen car for a robbery gang; a car previously supplied to the gang was used in robberies; one Ah Hon (real name Fung Wai Hon) was also a member of that gang and he was living at the premises which was to be raided.  The evidence showed that Fung Wai Hon was the mastermind behind the robberies.   

42. Mr. McCoy S.C., counsel for the plaintiff, submitted that this information showed that the Police could not possibly have conducted the raid to look for car thieves but rather a robbery gang, one of whom was living at the premises to be raided.

43. The judge held that,

‘ As for the OCTB report, I am unable to give weight to its contents in the way that the plaintiff seek for the following reasons.  I do not know the identity of those who compiled the report except that they were probably officers from the OCTB.  The maker of that report was not called.  The report was prepared for criminal prosecution purposes and as such, references to the nature of the intelligence was irrelevant for the purpose of prosecution.  It was prepared after the raid with information collated by the OCTB from various sources but with no input from either Mr Pearce or the 2^nd defendant.’

44. I agree with the judge as far as paragraph 1 of the report is concerned.  As to paragraphs 20 to 22, the report has clearly identified the source of information to be CIP Ng.  However it was not the plaintiff’s case that Mr. Pearce was aware of the information contained in paragraphs 20 to 22.  As such this report does not have a significant bearing on the finding by the judge.

Case against Mr. Oakes

45. The only case that is advanced against Mr. Oakes in this appeal is that when the police officers were outside the premises, one of them heard a gun cocking sound which could only be associated with automatic or semi-automatic weapons. Despite being told of the sound, Mr. Oakes did not withdraw from the scene but had instead continued with the raid.  In so doing he was said to be negligent.

46. The judge found that Mr. Oakes was not negligent.  I agree with his conclusion and his view on the following :

1)   ‘89.     .....The sound of a gun cocking cannot by itself indicate the presence of assault rifles as opposed to a pistol.’ 

2)  ‘90.     .....(A) withdrawal was not an option because the police are under statutory duty to protect the public.  To withdraw would allow the persons inside the premises to walk away, and carry on their criminal activities.’ 

3)   ‘90.     (E)ven after the gun cocking sound was heard, that still did not justify the engagement of the Special Duty Unit.  For one thing, the director of operation, would not have agreed to such a course.  Furthermore, it takes two to three hours for the Special Duty Unit to plan and prepare an operation.’ 

4)   ‘90.     Mr. Oakes reasonably believed that there was no chance that they could secure the area of the target premises without detection for those two to three hours while waiting for the SDU.’

47. It must be borne in mind that Mr. Oakes was conducting a secretive operation and a decision had to be made on the spot on whether the raid should proceed or not.  I am not prepared to say that under such circumstances he was negligent in pressing ahead with the raid.

Contributory negligence

48. The judge held in the alternative that the plaintiff was 50% contributorily negligent.  He held that,

‘ But if I had to deal with that issue, I would have had no hesitation in finding that the plaintiff was substantially to blame for his own injuries when he was shot by one of the suspect coming out of the building, due to the fact that the plaintiff had disobeyed a proper order given by the 2^nd defendant to close the iron gate at the main entrance of the building.  That the plaintiff acted out of concern for his own officers is no excuse to disobeying the order of the 2^nd defendant.  As such, the plaintiff was largely the author of his own misfortune.’

49. I have to disagree with the finding by the judge.  The finding of contributory negligence by the plaintiff is not the proper inference to be drawn from the primary evidence.  First, it must be borne in mind that when the plaintiff asked Mr. Oakes why the iron gate had been closed, he was not given any reply by Mr. Oakes.  This is not a case where he was expressly told by Mr. Oakes that he had given the order to close the gate.  Second, the plaintiff was the leader of his team.  The combined team had 12 officers whose rank was all below that of the plaintiff.  He was concerned that some of his subordinates might still be inside the building and might be pursued by criminals with strong firearms.  This was not an unreasonable view in the light of the sudden dangerous development that had occurred a few moments ago. 

50. The plaintiff’s attempt to open the iron gate to let his men out was a classic rescue situation.  It is reasonably foreseeable that a senior officer would rescue his subordinates who might be trapped in a dangerous situation.  It is reasonably foreseeable that the plaintiff would have done likewise in the situation that had developed in this case. 

51. Some may view his act as heroic, which no doubt it was, but ‘heroism’ must be the last thing on his mind at that time.  At the heat of the moment he had decided to do what he considered to be the proper thing to do for the safety of his subordinates.  He had put his altruistic concern for his fellow men ahead of his personal safety.  I am unable to accept that the plaintiff was the author of his own wrong.

Damages

52. The plaintiff also challenges the alternative decision on damages by the judge under the following heads : pain, suffering and loss of amenities, loss of chance of promotion, loss of future income.  Other awards that were made on the alternative basis were not challenged.

Pain, suffering and loss of amenities

53. The judge awarded $800,000 on the basis that the case falls in between the ‘substantial injury’ category and the ‘gross disability category’.  The plaintiff argued that the award should be $1,200,000 as the case is within the ‘gross disability’ category.

54. The judge had correctly stated that,

‘The substantial injury category comprises injuries which require treatment in a hospital for many months and leave the victim with a much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg can not be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim’s life.

On the other hand, in respect of the gross disability category, it comprises injuries, which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes.  This category includes paraplegics who, particularly if young can expect to be placed at the upper end of the bracket.’

55. In Chan Pui Ki v. Leung On and Another [1996] 2 HKLR 401, damages at the substantial injury category was stated to be between $540,000 and $660,000 and the range for the gross disability category was between $660,000 and $1,000,000.

56. Since that decision judges have revised the range of damages upwards to take into account inflation : see Lam Mo Bun v. Hong Kong Aerosol Co. Ltd. & Others [2001] 1 HKLRD 540 and Lau Chung Nam v. Au Wai Man [2004] 1 HKLRD 57.

The injuries

57. The plaintiff was shot at close range.  The bullet penetrated his skull and was embedded at the frontal lobe of his brain.  Emergency resuscitation and brain surgery was performed to remove the bullet.  The judge described the operation as ‘traumatic’ and the plaintiff continued to suffer from the after effects for a significant period of time.  He was hospitalised for some four months and required lengthy follow up treatment.  Two further operations were performed in 1996 and 2001 respectively.  The second operation was required as a result of leakage of CFS and meningitis developing at his gunshot wound.  The third operation was for a craniotomy resulting from herniation of brain substance into the gunshot wound site.

58. The permanent disabilities (which are unlikely to be improved) now suffered by the plaintiff include

1) permanent disability of complete loss of sense of smell;

2) neurologically related symptoms such as emotional and behavioural problems and irritability.  He has difficulty inhibiting his emotions and controlling his rage;

3) short term memory loss;

4) serious urinary condition manifested by urgency and frequency of urination.  This resulted in bouts of incontinence and the plaintiff has to wear diapers when going out.  The urinary conditions may require a further operation.  These conditions are neuropathic in origin and are related to serious brain damage.  They manifested after the third brain surgery.

59. There is also a risk of him developing epilepsy in the future.

60. Although the plaintiff had resumed work in September 1992, the judge found that these disabilities limited his performance of his work.  His behaviour problems led to difficulties in maintaining congenial personal and professional relationships.  The memory loss affects his ability to conduct field and office work.  In 2002, the Medical Board concluded that the plaintiff was not suitable to carry firearms.

Award affirmed

61. The plaintiff is now nearly 42 years of age.  The injuries occurred when he was 28 years of age.  By then he had been a police officer for nearly 10 years.  He first joined the Police as a constable and became an inspector in July 1989.

62. The plaintiff asked for $1.2 million under this head and relied on the case of Wong Hin Pui v. Mok Ying Kit and Another (No. 2) [2001] 1 HKLRD 856 (PSLA at $1 million) and Chan Yuk v. Dragages Et Iravaux Publics (HK) Ltd and others [2000] 2 HKLRD 795 (PSLA at $1 million).

63. Mr. Leong S.C., counsel for the defendants, argued that these cases are not applicable because the plaintiff suffered from paresis which was not the case of the present plaintiff.

64. While a different judge may have adopted a higher award on the basis that, notwithstanding the absence of any paresis, the plaintiff’s physical injuries has greatly reduced his full participation as a police officer who is required to be engaged in some highly dangerous activities and his relationship with his colleagues has been affected, at the end I have concluded that the award should not be disturbed because the judge had the advantage of hearing the plaintiff’s case at first hand and he has adopted a figure which was within the range of damages for serious head injuries.

Loss of chance of promotion

65. The plaintiff’s case is that if he had not been injured, in the normal course of his career in the Police, he would have been promoted to Senior Inspector in 1993, to Chief Inspector by 1996 and to Superintendent by 1999.

66. The plaintiff has been an outstanding police officer and has shown outstanding leadership qualities.  However he has failed to pass the Standard III examination which all junior inspectors had to pass before they could be considered for further promotion.  Before he was injured in 1992, he had made nine attempts on five occasions to sit for this examination and he failed in all his attempts.  After he returned to work, between 1994 and 1999, he made a further 12 attempts on seven occasions to sit for the examination.  He only managed to pass one paper in 1994. 

67. The plaintiff had tried to explain that his career plan before the injury precluded him from devoting too much time to studies.

68. The judge after assessing the evidence came to the view that it would be too speculative and uncertain to find that the plaintiff can attain the rank of either Chief Inspector or Superintendent.

69. In my view the judge was correct in his decision.  Based on the objective evidence which the judge had considered his finding on this issue cannot be faulted.

Post-retirement loss of income

70. The plaintiff had claimed for post retirement loss of income.  The judge has not made any finding on its claim.  This claim must be remitted to the judge for assessment.

My conclusion

71. I will allow the appeal partially and set aside the judgment below on the following :

1) The dismissal of the plaintiff’s claim against the 1^st defendant.

2) The alternative finding and assessment of the plaintiff’s contributory negligence at 50%.

72. I will enter judgment for the plaintiff against the 1^st defendant as follows :

1)  Judgment on liability.

2)  Judgment on damages

(1)  $800,000 for pain, suffering and loss of amenities.

(2)  $150,000 for pre-trial loss of allowance.

(3)  $100,000 for future loss of allowance.

(4)  $46,600 for special damages.

(5)  $358,488 for future expenses.

73. The claim for post retirement loss of income will be remitted to the judge for determination.

74. The parties are to agree on the rate of interest on damages and its duration.  Failing agreement the decision of the judge on these issues will be affirmed.

75. I will reserve the question of costs of the appeal and below and will order written submissions on this issue including the making of a ‘Bullock’ or ‘Sanderson’ order in respect of the 2^nd defendant’s costs to be lodged within 14 days. 

Hon Yuen JA :

76. I have had the benefit of reading in draft the judgments of Cheung JA and Tang JA.  I agree with both Cheung JA and Tang JA that the appeal on liability should be allowed and that the judge’s alternative finding of contributory negligence should be set aside.

77. Every case has to be decided on its own facts.  Once the following facts were established in this case, there could have been no other conclusion on liability:

(1)  this was a raid which had been planned, not an unexpected operation forced by the exigencies of an emergency situation;

(2)  Chief Superintendent Pearce knew (from the Situation Report) that the Chow Sang Sang robbers had long-barrelled weapons, not just “pistol-like objects”;

(3)  Chief Inspector Cheung knew (as he told the Plaintiff) that the premises they would be raiding were identified with the Chow Sang Sang robbers, but the information about long-barrelled weapons did not filter through.  Chief Insp. Cheung was only aware that the suspects had “pistol-like objects”.  

(4)  The judge found that the raiding party would have been adequately prepared if they were facing suspects armed with pistols, but not if they were facing suspects armed with assault rifles (paras. 81-82).

78. In respect of (3), the 1^st Defendant must be responsible for his department’s omission to marry Chief Supt. Pearce’s information with Chief Insp. Cheung’s information.  If it were to be suggested that Chief Insp. Cheung was acting on nothing more than his own “hunch” in identifying the premises with the armed robbers which hunch was not merited by the police information then available, one would have expected the 1^st Defendant to call him to give evidence that that was in fact the case.  Chief Insp. Cheung was not called.  

79. In respect of (4), there was no respondent’s notice from the 1^st Defendant to contest the judge’s finding that the Plaintiff’s party was inadequately armed for a raid on suspects with weapons more powerful than pistols. 

Hon Tang JA :

80. I agree that the appeal should be allowed.  It is clear from the pleadings that the main contention between the parties was whether the presence of long-barrelled weapons such as assault rifles at the target premises was within the reasonable contemplation of the Commissioner when the raiding party of 12 officers from the Regional Crimes Units was sent.

81. The judge held in paragraph 81 of his judgment that :

“81.  Had it been known or suspected or even believed by him (i.e. Mr Oakes) that there were assault rifles and grenades in the target premises which the culprits would not hesitate to use against the police, I cannot imagine that he would have allowed the raiding party …”

82. However, as explained by Cheung JA, it is obvious that C I Cheung Yuk Fung connected the target premises with the Chow Sang Sang robbery of the previous day but thought that only handguns had been used during the robbery.  On the other hand, in the Regional Sitreps (i.e. Situation Reports) of the morning of the raid, it was reported that long-barrelled weapons were used in the robbery.

83. That being so, the allegation of negligence in paragraph 13(b) (see paragraph 14 above) against the Commissioner has been substantially made out.  As I read paragraph 81 of the judgment, the judge was of the view that had it been known or within the reasonable contemplation of the Commissioner that there might be assault rifles at the target premises the raiding party equipped as it was should not have been sent.

84. I agree with the views expressed in paragraphs 38 to 40 above.  However, it was not the Commissioner’s case that even if long-barrelled weapons might be expected at the target premises, the raiding party could properly have been sent.  Had that been the Commissioner’s case I would be slow to second-guess him.  But that was not the Commissioner’s case at trial.  The case was fought on the basis that there was no reason to suspect the presence of assault rifles at the target premises since it was thought that the raid only concerned car thieves.  But as is clear from the evidence, C I Cheung connected the target premises with the Chow Sang Sang robbery, though unfortunately, he was not aware of the information in the Regional Sitreps about the use of long-barrelled weapons at the robbery.  That is why I am able to conclude on the narrow basis, upon which the trial was fought, that a case of negligence has been made out against the Commissioner.  My judgment is based on the fact that it was not the Commissioner’s case, that even if the senior officers involved in the planning of the raid taken as a whole knew, believed or suspected that assault rifles might be found at the target premises, the raiding party would still have been sent.  However, I must not be taken to have accepted the plaintiff’s argument that in the circumstances, a tactical unit should have been sent.

Hon Cheung JA :

85. This Court will allow the appeal partially and set aside the judgment below on the following :

1)  The dismissal of the plaintiff’s claim against the 1^st defendant.

2)  The alternative finding and assessment of the plaintiff’s contributory negligence at 50%.

86. This Court will enter judgment for the plaintiff against the 1^st defendant as follows :

1)  Judgment on liability.

2)  Judgment on damages.

(1)  $800,000 for pain, suffering and loss of amenities.

(2)  $150,000 for pre-trial loss of allowance.

(3)  $100,000 for future loss of allowance.

(4)  $46,600 for special damages.

(5)  $358,488 for future expenses.

87. The claim for post retirement loss of income will be remitted to the judge for determination.

88. The parties are to agree on the rate of interest on damages and its duration.  Failing agreement the decision of the judge on these issues will be affirmed.

89. This Court will reserve the question of costs of the appeal and below and will order written submissions on this issue including the making of a ‘Bullock’ or ‘Sanderson’ order in respect of the 2^nd defendant’s costs to be lodged within 14 days.