LAM TAM LUEN v. ASIA TELEVISION LTD

HCPI 1394/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NOS. 1394 AND 1395 OF 2003

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BETWEEN

HCPI 1395/2003

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(Consolidated by the Order of Master de Souza dated 29 November 2004)

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J U D G M E N T

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1. This is a trial only on the issue of liability, by reason of an order for split trial, in respect of two cases which have been consolidated.

2. In both cases, the plaintiff is the same, namely, Madam Lam Tam Luen, although in HPCI 1394 she brings the claim in her own personal capacity while in HCPI 1395 she sues in her capacity as administratrix of the estate of her late husband, Chan Kong, deceased, (“the Deceased”).

3. The defendant is also the same in both cases, namely, Asia Television Ltd.

4. Both actions are brought against the defendant for damages, in the first action for personal injuries sustained by the plaintiff herself and in the second for damages in respect of the death of the Deceased.  In both instances, the injury to the plaintiff and the death of the Deceased arose from an incident which happened on the morning of 30 December 2000 when the plaintiff and the Deceased were both set upon and attacked outside their shop at Shun Ning Road by one Tang Kin Kong (henceforth referred to as “Tang”) armed with a wooden pole.  In that attacked by Tang, the Deceased sustained severe injuries to his head and died from those injuries as a result while the plaintiff also sustained serious injuries to her head and both arms.

BACKGROUND

5. The defendant is a local television station.  In 1999, the defendant produced a television series entitled “Hong Kong Today”.  It was described as an “infotainment” production by the defendant.  The programme included controversial subjects of current affairs or interests and at times it included exposés of wrongdoings or attempts at deceiving the general public.

6. The Deceased operated a Chinese medicine shop, The Tung Kong Medicine Shop at the junction of Shun Ning Road and Tonkin Road in Shamshuipo and was himself a Chinese medical practitioner.

7. Tang held himself out as a practitioner of Chinese herbal medicine and operated a herbalist clinic in Shun Ning Road just two shops away from the Tung Kong Medicine Shop of the Deceased.

8. In the early part of 1999, some time before April, Tang had advertised himself out to be capable of curing cancer with the use of tree roots as medicine.  His business was operated under the name of “Famous hereditary doctor” and at the front entrance a banner advertised his practice as “the light of cancer”.

9. One such episode of the defendant’s series, “Hong Kong Today”, was aired on the evening of 8 April 1999 and was an exposé of Tang which aimed at showing Tang up as a charlatan in his claim to be able to cure cancer with the use of tree roots and his method of charging or overcharging his patients (hereinafter referred to as “the ATV programme”).

10. As part of the ATV programme, the Deceased was interviewed by the production or television crew of “Hong Kong Today” and in that interview was asked for his comments on Tang’s claim to be able to cure cancer with tree roots.  When the ATV programme was aired, and in particular the interview of the Deceased, the Deceased was shown full face during the interview given by him.  The interview given by the Deceased and shown on the ATV programme was very short.  Effectively it consisted of the Deceased making just one statement and answering one question put to him by the interviewer, the translated transcript of which was as follows :

“(Deceased):    Nowadays Hong Kong is different.  It’s not so easy to be--to be coaxed by you.

(Interviewer):   That means you think he is cheating people right?

(Deceased):     Well, no one says so.”

11. The ATV programme was aired on 8 April 1999.  Some 18 months after the airing of the ATV programme, on 30 December 2000, the attack by Tang on the Deceased and the plaintiff took place.

12. After the attack on the Deceased and the plaintiff, Tang did not run off but stayed at the scene of the attack and there was some evidence to indicate that Tang had asked other bystanders in the vicinity to call the police.  When the police arrived at the scene, they found Tang inside his clinic at Shun Ning Road.  When first confronted by the police, Tang was found to be muttering to himself words to the effect that he was being poisoned by poisonous gas.

13. Tang was arrested and later charged with the murder of the Deceased as well as the attack on the plaintiff.

14. After his arrest and under caution, Tang told the arresting officer that he had attacked the Deceased and the plaintiff because they had been emitting poisonous gas into his clinic and his home with pipes.

15. Upon being psychiatrically examined, it was confirmed by two government psychiatrists who had examined Tang, being Dr C.H. Yuen and Dr Steve Tso, that Tang was suffering from delusional disorder.

16. In August 2002, Tang stood trial for the murder of the Deceased as well as a second charge of wounding (the plaintiff herein) with intent.  At the criminal trial, Tang represented himself having declined to be legally represented.  The defence run by Tang to the charge of murder was self defence, on the basis that he was defending himself against the Deceased who was trying to poison him with poison gas emitted into his clinic and his home by pipes, and that there was a mastermind behind the acts of the Deceased in trying to poison him.

17. Tang was convicted initially by the jury for murder of the Deceased.  Tang was also convicted of the charge of wounding with intent.

18. On appeal to the Court of Appeal, however, the murder conviction was quashed and substituted instead by a conviction of manslaughter.  The reason given by the Court of Appeal was that the murder conviction could not stand in the light of the undisputed psychiatric evidence that Tang was suffering from delusional disorder at the time of the killing.

19. In the present proceedings, it is common ground between the parties that Tang was, at the time of the attack upon the plaintiff and the Deceased, suffering from delusional disorder.

THE PLAINTIFF’S CASE

20. In opening the plaintiff’s case, leading counsel for the plaintiff accepted that as a general rule, a defendant cannot be held responsible for the voluntary tortuous acts of a third party.

21. The plaintiff’s case was therefore founded upon one of the exceptions to that general rule, which is that where there is a special relationship between the plaintiff and the defendant, the defendant owes a duty of care to the plaintiff against risk or harm from a third party.

22. In the present case, the special relationship giving rise to such a duty that the plaintiff sought to rely on was that at the time of the interview of the Deceased by the television crew of “Hong Kong Today”, assurances were given to the Deceased that the face of the Deceased in the interview would be blocked out when the ATV programme was aired and further that the Deceased and the plaintiff were assured by the television crew that no danger would come to them if the Deceased agreed to be interviewed.

23. According to the plaintiff from whom this evidence came, it was on that basis that the Deceased agreed to be interviewed by the television crew.

24. In breach of those assurances given, when the ATV programme was aired, nothing was done by the defendant to block out the face of the Deceased in the interview and his full face was shown in the ATV programme, the inference being that by showing the Deceased face, it enabled Tang to, at the very least, identify the Deceased (and therefore the plaintiff also) as being persons involved, within his delusional system, in the conspiracy to poison him with poisonous gas.  On this basis, the plaintiff’s case was that the ATV programme was a cause of the attack on the Deceased and the plaintiff.

25. The case of the plaintiff was therefore framed in both negligence as well as breach of contract in that those assurances alleged to have been given by the defendant to the Deceased and his wife (the plaintiff) were not adhered to by the defendant.

26. The further/alternative case of the plaintiff was that from what was depicted of Tang in the ATV programme the defendant knew or ought to have known that Tang was not a mentally well person and therefore knew or could have foreseen that by showing the full face of the Deceased in that episode during the interview, coupled with the fact that the general tone of that episode was mocking and derogatory of Tang, the defendant was putting the Deceased at risk of being attacked by Tang from ill feelings generated by the ATV programme being aired.

THE DEFENCE CASE

27. The defence can be summarized as follows.

28. Firstly, no request was made by the Deceased and therefore no assurances given by the television crew to blank out the Deceased’s face during the interview.  Neither was any assurance given to the Deceased by the television crew to the effect that he need not be afraid of Tang.

29. Secondly, from what was said by Tang after the attack to the police and to the two government psychiatrists as well as what was said by Tang in evidence in his own defence at the criminal trial, the attack by Tang on the plaintiff and the Deceased had nothing to do with the ATV programme aired by the defendant.  Rather, according to Tang, he had attacked the Deceased and the plaintiff because they were using pipes to emit poisonous gas into his home and his shop, and that both of them were working for a mastermind who was behind this scheme to poison Tang.

30. Thirdly, nothing in the ATV programme indicated in any way that Tang was suffering from any psychiatric illness including delusional disorder or that he was mentally ill or impaired.

31. Therefore, the defendant says that it owed no duty of care to the Deceased and/or the plaintiff and/or was not in breach of any duty to either of them.

32. Moreover, the defendant also denies liability on the grounds that the attack by Tang on the Deceased and the plaintiff was not reasonably foreseeable to the defendant at the time when the ATV programme complained of by the plaintiff was aired.

FACTUAL DISPUTES

33. There are two main areas of factual disputes between the parties in this matter.  I shall deal with the factual disputes first before I deal with the evidence of the two experts.

34. The first area of factual dispute relates to whether any assurances as alleged by the plaintiff were given or made by the television interviewing crew who interviewed the Deceased at the Deceased’s herbalist shop and whether the interview was agreed to by the Deceased being conditional upon such assurances given.

35. That evidence came from the plaintiff alone.

36. In summary, her evidence was that three persons came into their shop sometime in mid-1999 (she was unsure of the date but it is common ground that the ATV programme was aired on 8 April 1999).  They introduced themselves as being reporters from “ATV” and greeted the Deceased as a practitioner of Chinese medicine.  They said that the medical practitioner next door by the name of “Tang” claimed that he could cure cancer with tree roots and asked to conduct an interview with the Deceased for his opinion as to whether tree roots could cure cancer.

37. Initially the Deceased declined to be interviewed saying that it was inconvenient for him to comment about Tang’s claims as he was frightened that there might be retaliation since he and Tang were in the same trade and therefore rivals.

38. Despite the Deceased declining to be interviewed, the television crew did not leave but persisted in their request saying there was nothing to fear about and that they will guarantee no retaliation in future.  They said to the Deceased if he was afraid, perhaps the interview could be conducted in the form of chatting.  They asked the Deceased to please do them a favour.

39. The Deceased said to the television crew that if he agreed to give the interview, he would have to be guaranteed that the interview would not be broadcast.

40. The television crew then told the Deceased that if the interview was to be broadcast, there are technical means to prevent his image from being shown.

41. They further told the Deceased that the interview would be kept in the strictest confidence and his identity would not be exposed.  They asked the Deceased to accept the interview as a favour to them.

42. The Deceased then agreed to the interview if it would not go on the air and asked them to guarantee that there would be no mishap as he did not want any trouble.

43. This was agreed to by the television crew and the interview with the Deceased took place.

44. On the other hand, the evidence adduced by the defendant comes from Alex Lee Chuen Hung, who, at the time of the interview with the Deceased, was employed by the defendant as a scriptwriter.

45. He was present at the time of the interview with the Deceased and his evidence as to what transpired at the interview is as follows.

46. Alex Lee says that when the television crew entered the shop of the Deceased, they introduced themselves and the purpose of their visit.  They asked the Deceased if he would agree to an interview to which the Deceased replied affirmatively and they then started the camera recording straight away.  The Deceased never appeared reluctant to receive the interview nor did he ask the television crew to leave.

47. Alex Lee also said in evidence that he can confirm that there was no request from the Deceased to conceal his (the Deceased’s) identity nor did anyone else make such request to him on the Deceased behalf.

48. As a matter of fact, Alex Lee was not aware that the wife of the Deceased was present at the shop when the interview took place.

49. In cross-examination, Alex Lee agreed that it could be said that they had coaxed the Deceased into appearing in the ATV programme.  When he was asked in re-examination what he meant by that, he explained that it was his understanding in Cantonese the word “coax” is similar in meaning to the word “persuade” but that he did not mean to say that any promise was made to the Deceased to conceal his identity.

50. The second area of factual dispute relates to whether what was alleged to have been said by Tang during his attack on the Deceased and the plaintiff was in fact said.

51. The evidence relied on by the plaintiff in this respect comes from the plaintiff herself and one other witness, Mo Kwong Wing.  Both of them give evidence as to what was said by Tang at the time of the attack and which the plaintiff relies on as part of her case.

52. On the other hand, the defendant relies on what was said by Tang to the police under caution, to the government psychiatrist when he was examined by them and at the criminal trial when he gave evidence in his own defence.  It is the defendant’s contention that Tang could not have said those words alleged by the plaintiff during the attack because they are so different and inconsistent with what was said by Tang after the police arrived on the scene.

53. The plaintiff gave evidence as to the attack by Tang with a long wooden pole on the Deceased on the morning of 30 December 2000.  When she tried to protect the Deceased from being hit by Tang, she herself was also attacked by Tang with the wooden pole.

54. It was the plaintiff’s evidence that during the attack, Tang shouted out in a loud voice “You called the TV to expose me, I’ll beat you to death, I’ll beat your whole family to death”.  This was also the evidence given by her at the murder trial of Tang.

55. Mo Kwong Wing was called as a witness by the plaintiff.  He worked in a noodle shop on the other side of Shun Ning Road, opposite to the Tung Kong herbal clinic of the Deceased.  It was Mo’s evidence that at about 8 a.m. or 9 a.m. of 30 December 2000, he was about to finish work, having worked the night shift of 29 December.  He heard screaming and shouting from across the road.  He saw Madam Lam, the plaintiff, being chased and attacked by Tang.  He saw the plaintiff fall down near the kerb outside the noodle shop where he worked.  Tang continued to hit her and shouted “You drop dead, bastard, you exposed me on the TV and caused me a hard life, I fucking beat you to death.”  These words were repeated by Tang some two or three times when he was hitting the plaintiff with the wooden pole.

56. On the other hand, what was relied on by the defendant were what had been recorded down as having been said by Tang either to police officers at the scene when police officers arrived there, or to the two Government psychiatrists who examined him after his arrest, or by way of evidence given by Tang at his murder trial.

57. When police officers first arrived at the scene of the attack, they found Tang in his own clinic.  When one of the police officer, Constable Nip, approached Tang, Tang was muttering to himself about being poisoned by gas, and that he had hit Madam Lam (the plaintiff) to prevent her from destroying the evidence (of the poisonous gas and pipes).  What was said by Tang was recorded by Constable Nip in his notebook.  No mention was made by Tang of the ATV programme in what he said to police officers concerning the attack.

58. Likewise when Tang was examined by Government psychiatrists, Tang made no mention of the ATV programme in relation to the attack by him on the Deceased and the plaintiff.

59. Firstly, Tang told Dr Steve Tso, a Deputy Senior Medical Officer at Castle Peak Hospital that since mid-1999, he (Tang) believed that pipes of different sizes were being secretly installed by many “persecutors” in the walls of both his home and his clinic and which were emitting poisonous gas causing him to have difficulty breathing and coughing out blood.  There were about 50 such “persecutors” consisting of the neighbours at his clinic and also the neighbours at his home.  He had complained of this “persecution” to the police a number of times.  To avoid being poisoned, he did not return to his home and stopped his herbalist business.

60. He had planned to attack the victims (i.e. the plaintiff and the Deceased) so as to arouse the attention of the mass media to investigate into his “poisoning”.  He believed that this couple were part of the “persecutors”.  He had brought a wooden pole the day before the attack, and on the day of the attack, he had arrived early at 8 a.m. or 9 a.m. and waited for the victims to arrive.  When both victims arrived, he had assaulted them with the wooden rod until they both collapsed.

61. He told Dr Tso that he knew what he was doing and knew what he had done was wrong.

62. Tang was also interviewed by Dr C.H. Yuen, a visiting Consultant Psychiatrist at the Siu Lam Psychiatric Centre.

63. Tang told Dr Yuen that at around April 1999, when he moved to his new clinic at Tung King Street, he had detected odour similar to that of roasting meat and began to have the idea that those odour were poisonous.  He then found many pores on the floor and walls and after covering the pores with cotton balls, also found the same odour on the cotton balls.  This confirmed for Tang that the poisonous odour came from the pores.

64. Tang believed that a Mr Cheng with whom Tang had some conflict in the past had paid many people to “persecute” him (Tang), and one of those people paid by Cheng was the Deceased in this case.  The Deceased had a drug shop (herbalist) one shop away from Tang’s clinic.

65. Tang had complained to the police who told him to consult a doctor.  When he went to Kwong Wah Hospital, the doctor there suggested he should see a psychiatrist which he refused.

66. Tang again went back to the police to complain about being poisoned and was told by the police that they were already investigating the matter as someone else had also lodged a similar complaint.

67. Tang also wrote to the Commissioner of Police in February of 2000.  After taking statements from him, the police told him there was no “criminal element” in his case.  He was not satisfied with that.

68. He again wrote to the Commissioner of Police but nothing more was done and no reply given to him.

69. He continued to feel the poisonous gas at home and in his clinic.  He seldom went home or to his clinic since April or May 2000.

70. Tang told Dr Yuen that on the day of the attack, he went back to his clinic at about 8:40 a.m.  He saw the Deceased at about 9:10 a.m. and without further thought he took out a rod from his clinic and went up to the Deceased to hit him.  He did not want to kill the Deceased but only to hurt him so that the police would pay more attention to his complaint.

71. He also attacked the female victim (the plaintiff) because he had to stop her from returning to her drug shop to destroy all the evidence.

72. Tang did not regard what he had done was wrong.  He acted in “self defence” because he was being persecuted in the first place.

73. In both these accounts given to the two government psychiatrists, Tang made no mention of the ATV programme having played any part in his attack on the two victims in this case.

74. Likewise in the evidence given by Tang at his murder trial, that evidence from Tang was along the lines of the account given by Tang to Dr Yuen, namely, that the attack was done in self defence because the Deceased was one of the persecutors paid by Cheng to poison Tang by the use of pipes inserted into the walls of his home and his clinic.  Again no mention was made by Tang of any ATV programme as having anything to do with his attack on the Deceased and the plaintiff.  Once again, the reason given by Tang for his assault on the two victims was that he was acting in self defence and that he assaulted them so that the police would investigate into the matter of his being poisoned by poisonous gas.

75. In fact, when Tang was asked questions by the court in the criminal trial as to the ATV programme, he said that in the ATV programme, the Deceased was trying to protect him because the Deceased said during the interview in that ATV programme that he did not say it was deception by Tang.

76. Tang also said that after watching that ATV programme, he did not feel anything negative.

77. It is this evidence given by Tang at his murder trial, as well as what Tang said to the police and the government psychiatrists, which the defendant relies on to say that the ATV programme produced by the defendant had no part to play in the attack by Tang on the Deceased and the plaintiff.

ASSESSMENT OF THE FACTUAL EVIDENCE

78. In coming to make findings on the disputed factual evidence, having seen the plaintiff give her evidence from the witness box, there can be no doubt that she is a highly charged and emotional person.  There were quite a number of occasions when she openly wept and cried during the course of her evidence almost to the point of being hysterical.  On occasions the court had to adjourn temporarily for her to compose herself before continuing with her evidence.

79. She was also shown to be easily confused.  One instance that stands out was her insistence (at the trial for the murder of the Deceased) that the ATV programme was a production not of the defendant but of another television station, Television Broadcasting Corp.

80. Having said the above, I did not find the plaintiff to be a deliberately untruthful witness.  In fact I found her to be doing her best to be truthful, but that on certain issues, her reliability was called into question not only due to her dogged insistence when shown to be wrong but at times her evidence was embellished because she was susceptible to being confused or did not choose her words carefully thereby failing to be accurate or precise.

81. As to the first area of factual dispute, I have no hesitation in accepting the evidence of the plaintiff that initially the Deceased was reluctant to give the interview to the television crew which came into the clinic of the Deceased.

82. There is little doubt in my mind that the Deceased belonged to that class of persons who would not go out of their way to get involved in other people’s business which did not concern him.  That is self evident from the way he answered the leading question put to him by the interviewer at the interview shown on the ATV programme.  For this reason alone I do not accept the evidence of the defendant that the Deceased, upon being asked by the television crew to be interviewed immediately accepted their offer without any hesitation.

83. In cross-examination, Alex Lee did concede that the Deceased had to be coaxed into granting the interview.

84. Although Alex Lee tried to salvage that part of his evidence in re-examination by saying that he understood the word “coax” to mean “persuade”, it nevertheless remains, from that evidence of Alex Lee that some persuasion had to be used before the Deceased agreed to give the interview.

85. I also accept the evidence of the plaintiff that one of the television crew did make mention of there being technical means by which they could prevent the image of the Deceased from being shown if the interview was to be broadcast.  That having been offered by one of the crew, it would follow that the Deceased’s acceptance of the interview would likely be due to his belief that the image of his face in the interview would be blocked out by technical means.

86. However, I do not accept the evidence of the plaintiff that an assurance was given by the television crew that the interview would not be broadcast or would not go on the air.  Neither do I accept her evidence that the Deceased had asked for and was given an assurance by the television crew that there would be no retaliation from Tang.

87. The assurance that the interview would not be broadcast or would not go on the air was not the pleaded case of the plaintiff.  In fact the pleaded case of the plaintiff was simply that the defendant had promised that the face of the Deceased would not be shown when the programme was broadcast, but would be blocked out.

88. As for the assurance that there would be no retaliation from Tang, I am unable to accept the evidence of the plaintiff that such an assurance was given to the Deceased by the television crew.  For one thing it must have been the common understanding of all concerned that the television crew had no control over Tang.  Therefore they could not have been in any position to give such an assurance.  Secondly, it is the evidence of the plaintiff that up to the time of the interview by the television crew, they (i.e. the plaintiff and the Deceased) did not even know of Tang, apart from the fact that they were aware that he ran a herbalist clinic one shop away from the plaintiff’s shop in Tung King Street.

89. Nothing in the plaintiff’s evidence would indicate that at the time of the television interview, the Deceased or the plaintiff had any reason to be afraid of Tang.  The interview of the Deceased shown in the ATV programme certainly did not show the Deceased to appear frightened.  Moreover, it was the plaintiff’s evidence that it was only after the ATV programme had been aired that on occasions they would see Tang outside his shop staring at them from a distance or pointing his finger at them or muttering some words which they could not hear.  Even then, those gestures of Tang did not cause the plaintiff and the Deceased to move away from living or working in that area.  They in fact continued living and working there for the next 18 months until the attack.

90. Given that evidence, there could be no reason for the Deceased to have been so afraid of Tang to the extent made out by the plaintiff in her evidence or to seek an assurance from the television crew that there would be no retaliation or trouble from Tang at the time of the interview.

91. I can well understand the plaintiff being frightened of Tang after the vicious attack by him on them.  Very likely she had confused the timing and had wrongly attributed such fear of Tang to the time of the interview.

92. In so finding, I do not say that the plaintiff was intentionally or deliberately being untruthful to the court in her evidence, merely that in her own mind she had been confused as to her appreciation of the different stages of her apprehension of Tang.

93. Moving on to deal with the second area of disputed facts, I am satisfied that both the plaintiff and Mo Kwong Wing had given truthful evidence as best they could given the long lapse of time between the event of the attack occurring in December 2000 and the time of their giving evidence in this court.

94. Mo Kwong Wing was cross-examined at length as to why he did not remain at the scene after the attack, did not give any statement to the police as to what he saw and heard and did not give evidence in the criminal trial of Tang.  He was quite unabashed in admitting that since it was not a matter which directly concerned him therefore he did not wish to go to the trouble of remaining at the scene, giving a statement to the police and having to give evidence in the criminal trial.  He also said in evidence that it was much later, when approached by the plaintiff to help her by giving evidence in their civil proceedings that only then did he agree to give a witness statement to the plaintiff’s solicitors.  Although that witness statement was dated 8 December 2005, I have no doubt that those words said by Tang would have been firmly locked in the mind of Mo Kwong Wing all the time, since such an attack is something which someone like Mo may witness only once in a lifetime.

95. From both their evidence, I accept that Tang, at the time of the attack, did say words to the effect that he was beating them because they had called the TV to expose him.

96. The fact that Tang did not say anything to the police, the two government psychiatrists or when he was giving evidence at the murder trial linking the attack on the two victims with the ATV programme does not, in my view, affect in any way my accepting of that evidence of the plaintiff and Mo.

97. I do not see that the evidence given by the plaintiff and Mo as to what was said by Tang at the time of the attack to be such that it cannot co-exist with what was said by Tang to the police, the two government psychiatrists and at the murder trial given the delusional disorder that Tang was suffering from.

98. It is clear from the transcript of evidence of Tang’s evidence given at the murder trial that Tang was fully aware of the contents of the ATV programme, as well as the contents of the interview given by the Deceased in the ATV programme.  Tang was quite adamant that the programme was a broadcast by ATV and indeed it was his evidence at the murder trial that Madam Lam (being the plaintiff herein) had made a mistake when she insisted it was a programme of TVB.  Moreover, when Tang was asked by the judge in the criminal trial about the ATV programme, he said that the Deceased was protecting him in the ATV programme by saying that he (Tang) was not deceiving people.

99. I therefore conclude that what was said by Tang to the police, the two government psychiatrists and in his evidence at his trial for murder, was merely a shift in emphasis by Tang.  Such a shift in emphasis was hardly surprising when viewed in the light that Tang was running a defence of “self defence” for the charge of murder at the criminal trial.

100. From the evidence which I have accepted above, I find that there was an assurance given by the television crew to the Deceased that his face or image would be blocked out when the interview with the Deceased would be shown on the ATV programme, at any rate the Deceased was led to believe that would be done before he agreed to the interview.

101. It is also quite apparent from the evidence of Carole Cheng called by the defendant that it was never conveyed to her by the television crew any request to block out the image or the face of the Deceased.  As for the reason why this was not conveyed to Miss Cheng it is not a matter that I need to make any findings on suffice to say that it is common ground that nothing was done to block out the image or the face of the Deceased when the interview with the Deceased was shown on the ATV programme.

102. I therefore find that the agreement by the defendant to block out, by some technical means, the image or face of the Deceased when it was shown on the ATV programme was breached by the defendant.

THE EXPERT EVIDENCE

103. The parties each called an expert on psychiatry in this matter, Dr C.K. Wong for the plaintiff and Professor Felice Lieh Mak for the defendant.

104. It should immediately be noted that while both experts were called to give their opinion evidence concerning the mental condition of Tang and matters relating to his mental condition, neither of them had at any time before giving their evidence in court medically examined Tang.

105. Both experts were therefore relegated to giving their expert opinion evidence based primarily on what was contained in the two reports of the government psychiatrists, Dr Tso and Dr Yuen, as well as to other circumstances which was part of the evidence in this case, specifically what could be perceived from the footage of the ATV programme; what Tang was alleged to have said during the time of the attack; what Tang said to the police after the attack; what Tang told the government psychiatrists and what Tang said in his murder trial.

106. It was common ground between the two experts that Tang was suffering from delusional disorder.

107. There were however three main areas of dispute between the experts.  The three areas of dispute relate to :

(a)      the time of onset of the delusional disorder in the case of Tang;

(b)     the causal relationship of the ATV programme and the attack on the victims;

(c)     the mental condition of Tang at the time of the airing of the ATV programme.

108. It would be useful for me to deal with each of the disputed areas relating to the expert evidence.

(a)     Time of onset of delusional disorder

109. Dr C.K. Wong takes the view that the time of onset of the delusional disorder in the case of Tang was around or shortly after April 1999 based on what was said by Tang to the two government psychologists as contained in their reports as well as what Tang said in evidence in the criminal trial.

110. On the other hand, Professor Lieh Mak takes the view that the onset of the delusional disorder in Tang’s case occurred well before 1999, and perhaps even as early as 1997.

(b)     Causal relationship of ATV programme and the attack

111. In this respect, Dr C.K. Wong made a distinction between what he termed as “sufficient cause” and “necessary cause” and came to a provisional opinion that the ATV programme was a “necessary cause”.  The reason given by Dr C.K. Wong was that Tang pin-pointed the Deceased and his wife (the plaintiff) as the people responsible for emitting the poisonous gas, and that Tang would not have so pin-pointed them but for the ATV programme.

112. It is by such reasoning that Dr C.K. Wong made the causal connection between the ATV programme and the attack on the two victims.

113. On the other hand, Professor Lieh Mak took the view that there was no direct relationship between the ATV programme and the attack itself.

114. She formed that view on the basis of what was said by Tang to police officers and the two government psychiatrists after the attack and also on the evidence given by Tang at his trial for murder.

115. However, she has not in any way taken into account what was alleged to have been said by Tang during the attack as contained in the evidence given by the plaintiff and Mo, and which have now been found as a fact by me.

116. Professor Lieh Mak’s explanation (when asked in cross-examination) for not taking that into consideration when forming her opinion was that, in her opinion, what was alleged by the plaintiff and Mo to have been said by Tang during the attack, were not consistent with the delusion system of Tang.

(c)     Mental condition of Tang seen from the ATV programme

117. Dr C.K. Wong was of the view that while the presentation of Tang’s clinic was boastful and exaggerating, he accepted that there was nothing to show that Tang was mentally deranged.

118. Secondly, while Tang’s attire was “shabby” and “untidy” and his speech somewhat inconsistent, at times emphasizing his “expensive medicine” as well as emphasizing his generosity in reducing fees for the poor, and also highlighting his noble wish to set up a cancer hospital, Dr C.K. Wong also accepted that there was no evidence of any thought disorder or other psychotic symptoms, in particular delusions.

119. As for whether Tang had a mental disorder prior to the ATV programme, Dr C.K. Wong stated that it was a common misconception that there were only two states of health, i.e. the state of health versus the state of illness.  Dr Wong said that in fact there was another state in between those two, namely, the state of poor health but not amounting to illness.

120. In his view, Dr Wong said that Tang was clearly not a mentally healthy person by the way he dressed, behaved and talked and that he was unreasonable and eccentric, but which did not mean that Tang was mentally abnormal or mentally disordered.

121. Dr Wong concluded by stating in the last paragraph of his second report the following:

“However, there was no evidence from the ATV programme that he (Tang) was suffering from active psychiatric illness.  He did not reveal any delusions.  There was no evidence of his being under the influence of any psychotic symptoms particularly delusions.  This stands in huge contrast to the way he behaved and talked to the police and to the psychiatrists Dr. Yuen and Dr. Tso as well as to the way he conducted himself during the trial: in these latter situations, he unequivocally revealed his persecutory delusions and was unshakeable regarding them.”

122. On the other hand, Professor Lieh Mak took the view that the television crew and production staff could not have been aware, from the ATV programme, that Tang suffered from a mental disorder since the television crew and production team produced that ATV programme with the mindset of uncovering a possible case of a conman attempting fraudulently to take advantage of cancer patients.  Moreover the production team and crew were not professionally trained or experienced to recognize mental illness and were not looking for any.

123. Moreover, the production team and television crew could not have been aware of any risk of harm because Tang did not demonstrate any anger, express any threats or even show any annoyance throughout the ATV programme even when the final confrontation between Tang and the television crew took place.

ASSESSMENT OF THE EXPERT EVIDENCE

124. As to the first disputed issue between the experts, namely, the onset of the delusional disorder of Tang, the first matter that should be noted is that neither expert had medically examined Tang before giving their opinion.

125. Indeed the necessity of examining Tang was well recognized by Dr C.K. Wong who stated in his report the following :

“However, in more complicated cases particularly when the patient has no insight and/or is uncooperative, it is often crucial to obtain the history not only from the patient but also from other sources.  This is so in the present case.”

126. To the extent that Dr C.K. Wong states that the onset of the delusional disorder of Tang was around April 1999, I have no difficulty in accepting that since that was the view also of the two government psychiatrist after examining Tang.  Indeed the view as to the timing being around April 1999 was based on what was told to them by Tang.  In his evidence given at the criminal trial, Tang also repeated that it was about two to three months after he moved into his shop at Tung King street when he first found pipes emitting poison gas at his shop.

127. However, in paragraph 34 of his report dated 19 December 2005, Dr C.K. Wong goes on to state as follows :

“It is possible that Mr. Tang might have been predisposed to Delusional Disorder or he might even have been suffering from a ‘prodomal stage’ of the disorder.  However, without the ATV programme, just as without the fall, the bone would not have fractured even there was pre-existing osteoporosis.”

128. If by those words, Dr C.K. Wong is saying that the ATV programme (which was aired on 8 April 1999) caused or brought on the delusional disorder in Tang, then I am unable to accept that.  That is not an opinion that Dr Wong could give without examining Tang.

129. On the other hand, Professor Lieh Mak gives her opinion that the onset of the delusional disorder occurred well before 1999 and perhaps even as early as 1997.

130. That view taken by her was based on what is stated in paragraph 4 of the Psychiatric Report of Dr C.H. Yuen dated 28 September 2001 which reads :

“About 4 years ago: He (Tang) would have headache, dizziness, breathing difficulty and other discomforts whenever he went home.  There was a restaurant selling roasted meat nearby and he thought that his discomforts were due to the odours emitting from that restaurant.”

131. It is quite clear that Professor Lieh Mak has misread the words in that paragraph to come to that view of hers since that paragraph makes no mention of poison gas which forms the crux of Tang’s delusional disorder.

132. I have therefore no difficulty in rejecting that view of Professor Lieh Mak.

133. Turning now to deal with the causal relationship of the ATV programme and the attack.

134. To the extent that Dr C.K. Wong stated in his report and his evidence that the ATV programme enabled Tang to believe (within his delusional system) that the Deceased and his wife as being among those involved in poisoning him with poison gas, that may well have been the case in the absence of any other evidence which could show a link between Tang and the two victims.  Moreover, having accepted the evidence of the plaintiff and Mo as to what was said by Tang at the time of the attack upon the plaintiff, those words said by Tang would further support this view taken by Dr C.K. Wong.

135. I do not however accept the further view of Dr C.K. Wong that the ATV programme was the cause of the attack.  I shall come back to deal with this when I deal with the question of “causation” later in this judgment.

136. Professor Lieh Mak in coming to the view taken by her that there was no direct relationship between the ATV programme and the attack itself, was clearly shown up in cross-examination to have reached that opinion without having taken into consideration what Tang was alleged by the plaintiff and Mo to have said during the attack.  Not only did she fail to take account of that piece of evidence, but it would seem that such failure was deliberate rather than inadvertent.

137. The basis of her opinion therefore is questionable to say the least.

138. Expert witnesses should always keep in the forefront of their minds the guidelines laid down for expert witnesses in the case of the Ikarian Reefer.  Those guidelines provide that an expert opinion must be based on relevant facts and that the expert must draw attention to any other fact which may be inconsistent with those facts upon which his opinion is based.  Here, quite clearly Professor Lieh Mak did not take into consideration what was alleged to have been said by Tang during the attack and which I have now found to be a fact.

139. Even when asked in cross-examination how her opinion would be affected if those words of Tang said by him during the attack were taken into account, the professor avoided answering that question by saying that those words were inconsistent with Tang’s delusional system.  I need only say here that finding of fact is for the court and not the expert to make.

140. In the circumstances, little weight can be given to that opinion expressed by Professor Lieh Mak in this respect.

141. Finally, on the question of the mental condition of Tang as can be gathered from the ATV programme, once it is accepted by Dr C.K. Wong that there is no evidence of any psychiatric or mental illness, in particular delusional disorder, which was apparent from the ATV programme, then it seems to me that whatever else Dr Wong, being a trained expert in psychiatry, may detect of Tang from the ATV programme, it matters little since the only relevance of that would be whether the television crew or production team, being laymen and untrained in psychiatry, can gather or know of Tang’s mental illness or his propensity for violence of the kind demonstrated in the attack on the two victims, from what can be seen of Tang in the ATV programme.

CAUSATION

142. There can be little doubt in this case that the cause of the attack by Tang on the two victims was due to his delusional disorder.

143. That is so whether it is viewed from what was said by Tang to the police, to the two government psychiatrists who examined him as well as what he said at the criminal trial before the jury, or whether the matter is viewed from what was said by Tang during the attack itself.

144. Clearly what was said by Tang as to his being poisoned by the two victims using pipes to emit poison gas into his home and shop can only be due to his delusional disorder.

145. Even what was said by Tang during the attack on the two victims, to the effect that the Deceased and/or the plaintiff had called the TV to expose him and to cause him a hard life.  As the evidence stand in this case, it was the television crew who approached the Deceased for the interview and not the Deceased or the plaintiff who had gotten the television people to expose Tang.  In the circumstances, what was said by Tang at the time of the attack merely further highlights his fixed delusion of being persecuted and that Tang believed that the Deceased and/or the plaintiff being directly involved in that persecution of him had called the TV to expose him.  Moreover, those words of Tang has to be viewed in its proper context, as coming from a person suffering from the kind of delusional disorder that Tang was suffering from at the time of the attack.

146. For this reason, I find that the delusional disorder of Tang was central to the attack by Tang on the two victims.  Without his delusional disorder, this attack would not have occurred, even had the ATV programme with all its derogatory slur on Tang been aired. 

147. I cannot therefore accept that the ATV programme was the cause or even one of the causes of the attack, albeit that the ATV programme may have allowed Tang to believe that the Deceased and/or his wife, the plaintiff, as being two of the many persons involved in the persecution of him in his delusional disorder.

148. In coming to this finding, needless to say I have rejected the opinion of Dr C.K. Wong that the ATV programme was more likely the cause of the attack.  That view, Dr C.K. Wong appears to have based on causation in medicine where he said in paragraph 32 of his report dated 19 December 2005 :

“Causation in medicine can be classified in different ways.  A practical approach in the present case is to classify the cause(s) as ‘necessary’ versus ‘sufficient’ ”.

149. Dr Wong then went on to explain the difference between “necessary cause” and “sufficient cause” and then to come to his opinion that the ATV programme was a necessary cause because the ATV programme had allowed Tang to pin-point the Deceased and his wife as being responsible for emitting the poison gas.

150. The courts have for long accepted that there are differences between causation in medicine and causation in law.  In Ocean Tramping Co. Ltd v. Lee Kin Kai [1991] 2 HKLR 232, Hunter JA said at page 235 :

“First causation is essentially a matter for the judge not for the doctors.  It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it.  Secondly, it is important to bear in mind that the law and medicine here, it seems to me, apply quite different standards.  In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantial contributing cause of the injury.  A cause is sufficient; it need not be shown to be the sole cause.”

151. It is not the causation in medicine that the courts look for but that the courts, in determining causation in law, must adopt a common sense approach in every case.

FORESEEABILITY

152. This brings me to the last and which I find to be the most difficult part of this case, the issue of foreseeability.

153. Even if the plaintiff was able to establish a special relationship between the defendant and the Deceased to bring the plaintiff’s case within the exception to the general rule that a defendant cannot be held responsible for the voluntary tortuous act of a third party in the way in which this case was opened by leading counsel for the plaintiff, coming within that exception to the general rule merely enables the plaintiff to establish that a duty in law existed between them, and the breach of that duty.

154. However, the plaintiff must, in order to establish liability, still go further to show that the injury or damage complained of was a reasonably foreseeable consequence at the time the breach was committed.

155. In the present case the breach alleged was the failure of the defendant to have blocked out the face or image of the Deceased in the interview when the ATV programme was aired.  That breach would have taken place on 8 April 1999.

156. The attack itself occurred on 30 December 2000, almost 18 months afterwards.

157. The issue then was whether such an attack was reasonably foreseeable to the defendant at the time of the breach.

158. In so far as foreseeability is concerned, the submission of the plaintiff is as follows :

(a)      essentially it is whether the damage is of such a kind which is reasonably foreseeable;

(b)     if the kind of damage and the manner of its occurrence is reasonably foreseeable, then it matters not that the precise extent of the damage was not foreseeable;

(c)     in the present case, the ATV programme being derogatory of Tang, it would have made Tang resent those who participated in it to expose his bogus claim of being able to cure cancer;

(d)     given the close proximity, it is possible that Tang would believe the Deceased and the plaintiff to be behind the “persecution” of him;

(e)      Tang being a “mentally unhealthy” person, his demeanour (as can be seen from the ATV programme) should have put the ATV production team on alert to the possible risk of harm either in terms of ill-feelings between kaifonfgs or acts of retaliation or violence.

159. In short it is submitted by the plaintiff that the defendant ought to have reasonably foreseen that Tang would be angered and humiliated by the ATV programme such that he would have sought vengeance against those taking part in the ATV programme including the Deceased and his wife, the plaintiff.

160. The fallacy in that argument of the plaintiff is that Tang was suffering from delusional disorder, which I have found to be the cause of the attack on the two victims.

161. Whatever else the ATV programme may have shown Tang to be, whether eccentric, unsavoury, shabby, ill-mannered, or even a charlatan and/or fraudster, it did not show him up to be suffering from any mental illness, much less delusional disorder.

162. It also did not show Tang to have a propensity for violence of the type shown in his attack on the two victims.  When the ATV programme showed the third occasion on which Tang was approached by the television crew, which was an open confrontation of Tang (as opposed to the first two occasions which were both recorded by hidden cameras), Tang’s reaction on that last occasion was merely to hide from the TV cameras by going into the inner part of his shop.  At no time did Tang display even the slightest bit of violent behaviour towards the television crew.

163. In the circumstances, I find that the defendant could not have reasonably foreseen that Tang would attack the two victims in the manner that he did due to his delusional disorder, since neither his delusional disorder (or for that matter any kind of mental illness) nor his propensity for the type of violence shown by Tang was reasonably foreseeable to the defendant at the time of the airing of the ATV programme.

CONCLUSION

164. For the reasons given above, the cause of the attack being the delusional disorder of Tang, and the type of damage caused not being reasonably foreseeable to the defendant, the plaintiff has failed to prove her case on liability and both the consolidated actions are dismissed.

COSTS (ORDER NISI)

165. There will be a costs order nisi that the plaintiff pays the costs of the defendant in defending both actions with certificate for two counsel in view of the fact that both parties have seen fit to appear by leading counsel leading a junior counsel.