CHAN SZE KI v. DEPARTMENT OF JUSTICE AND ANOTHER

HCPI 478/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.478 OF 2003

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J U D G M E N T

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1. The plaintiff brings this claim for damages against the defendants for negligence and breach of duty resulting in personal injuries to the plaintiff from a gunshot wound sustained by the plaintiff on 24 April 1992.

Background

2. The plaintiff joined the Royal Hong Kong Police Force as a constable in March 1983.  There can be no question that the plaintiff was an outstanding member of the police force and received a number of commendation as a police officer in the police force.

3. In 1987, the plaintiff was promoted to the rank of probationary Inspector, after a mere four years from joining the police force as a constable.

4. On 24 April 1992, the plaintiff, then an Inspector, was assigned to lead a team of officers to raid a premises at Flat B on the 6^th floor of No.26 Li Tak Street in Tai Kok Tsui (“the target premises”).

5. The 2^nd defendant was assigned as the plaintiff’s immediate supervising officer and was the highest ranking officer in command  during this raid.

6. When the raid on the target premises was carried out, armed culprits inside the target premises retaliated with a barrage of gunfire using assault rifles.  During the ensuing confrontation between the culprits and the police officers, the plaintiff sustained a gunshot wound to his head and was hospitalised for a significant period of time having to undergo a major operation in July 1992 for his head injuries.

7. In 1996, the plaintiff was again hospitalised and underwent a further operation when he was diagnosed with meningitis resulting from the head injury when he was shot on 24 April 1992.

8. In 2001 the plaintiff underwent a craniotomy to treat a severe cerebral spinal fluid leakage (“CSF”) due to herniation of the head injury sustained in 1992 from the gunshot wound.

9. It is in relation to this head injury sustained from the gunshot wound in the raid on the target premises that the plaintiff brings this claim against the defendants.

The plaintiff’s claim

10. The basis of the plaintiff’s claim in negligence against the 1^st defendant was put on this footing :

(a)	the 1st defendant was aware that the plaintiff had not received sufficient or appropriate training for conducting raids against armed gangs or robbers yet the 1st defendant assigned the plaintiff to lead a team of officers in confrontation with an armed gang;
(b)	the 1st defendant either knew or had reason to believe that the suspects were in possession of firearm but fail to deploy other police tactical units better suited to confront armed gangs.  This reckless disregard for the safety of the plaintiff and his team members constituted gross negligence on the 1st defendant.
(c)	The 1st defendant fail to assign a suitably competent officer, to oversee the operation of this raid who would have been able to give proper orders and instructions when confronted with the situation which the plaintiff and his team members faced at the target premises;
(d)	the 1st defendant failed to enforce any adequate or backup system at the site of the raid.  The chances of serious injury to one of the officers should have been reasonably foreseeable.  Yet the 1st defendant failed to supply standby medical treatment, personnel and/or similar facilities at the site of the raid;
(e)	the 1st defendant fail to provide immediate medical treatment to the plaintiff after the accident and failed to dispatch the plaintiff to hospital in a timely manner.

11. As for the 2^nd defendant, the basis of the plaintiff’s claim against him in negligence is as follows :

(a)	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, which occurred the day before this raid;
(b)	failing to provide the plaintiff with the proper instructions and information in order for him to take steps to protect himself from imminent danger;
(c)	giving orders to proceed with the raid after being warned by the plaintiff that the suspects in the target premises were believed to have in their possession firearms;
(d)	failing to protect the plaintiff from further exposure to danger by removing the plaintiff’s bulletproof vest at a critical and crucial moment of the operation;
(e)	failing to call for immediate medical treatment for the plaintiff  when the plaintiff was seen to be seriously injured.

Limitation issue

12. Before moving on to deal with the evidence in this case, there is an issue of limitation, which needs to be dealt with.

13. As already indicated above in this judgment, the gun battle resulting in the plaintiff sustaining this gun shot wound took place in April 1992.  The Writ in this matter was issued on 9 May 2003. 

14. Section 27(4) of the Limitation Ordinance (“the Ordinance”) provides that the limitation period in personal injuries cases to be three years from the date on which the cause of action accrued or, if later, the date of the plaintiff’s knowledge to bring the suit.

15. It is the plaintiff’s contention that the date on which the cause of action accrued in this matter was not until sometime in August 2001 or thereafter, due to the fact that he did not have knowledge of the significance of the injury until his craniotomy in August 2001 and/or his being told by medical experts of the extent of his disabilities in November 2001.  As such, he was within the period of limitation in bringing this claim.

16. Alternatively, the plaintiff, prays in aid the court’s exercise of discretion to disapply the limitation period under section 30 of the Ordinance.

17. Section 27(6) of the Ordinance provides as follows :

“In this section, and in section 28, references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts
(a)	that the injury in question was significant; and
(b)	that that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c)	the identity of the defendant; and
(d)	if it is alleged that the act or omission was that a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.”

18. Knowledge of those matters contained in sub-paragraphs (b), (c) and (d) of section 27(6) are not in issue in this case.  Only sub-paragraph (a) is in issue.

19. It is the plaintiff’s contention that he only acquired knowledge that his injury was significant in 2001 when a CT scan of his brain showed herniation of brain substance through the skull fracture he had sustained from the gunshot wound.  The diagnosis of the herniation required immediate surgery and a coronal incision and craniotomy was performed in August 2001 to correct the condition.  It was not until November 2001 that he was told by a medical expert that as a direct result of the injuries he sustained in April 1992, the plaintiff would suffer from a number of disabilities for the rest of his life.

20. On the other hand, the defendants submits that although the plaintiff’s injury may have deteriorated in 2001 such that his brain herniation required a craniotomy, however, the plaintiff must have known in 1992 when he had the operation to remove the bullet from his skull and in 1996 when he had the further operation for meningitis that his injury was significant such that the cause of action would have accrued well before 2001.

21. In this respect, section 27(7) of the Ordinance defines what is a “significant injury” and provides as follows :

“For the purposes of this section an injury is significant if the plaintiff would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.”

22. I need also to take into consideration what has become known as the McCafferty test, which is to be found in the judgment ofGeoffrey Lane LJ in McCafferty v. Metropolitan Police Receiver [1977] 2 All ER 756 at 775 :

“… it is clear that the test is partly a subjective test, namely: would this plaintiff have considered the injury sufficiently serious? And partly an objective test, namely: would he have been reasonable if he did not regard it as sufficiently serious?  It seems to me that s.14(2) is directed at the nature of the injury as known to the plaintiff at that time.  Taking that plaintiff with that plaintiff’s intelligence, would he have been reasonable in considering the injury not sufficiently serious to justify instituting proceedings for damages?”

23. The section 14(2) mentioned in the cited passage is the English equivalent to our section 27(7) of the Ordinance.

24. Applying the above to our present case, it is the nature of the injury as known to the plaintiff in 1992 and 1996 when he had those two earlier operations which I must look at.  Taking this plaintiff with his intelligence I come to the conclusion that he would not have been reasonable to consider the injury not sufficiently serious to justify

instituting proceedings for damages in 1992 or 1996.

25. Accordingly, I hold that section 27(6)(a) of the Ordinance does not assist the plaintiff on the limitation issue and that the Writ issued in these proceeding was not issued within the three year limitation period.

26. Turning now to deal with the exercise of discretion under section 30 of the Ordinance to disapply the limitation period.

27. In deciding whether or not to exercise my discretion, I must have regard to all the circumstances of the case and in particular to those six factors particularised in subsections (a) to (f) of section 30(3) of the Ordinance.

28. In so far as the reasons for delay and the extent to which the plaintiff acted promptly as provided for in subsection (a) and (e) goes, it is the plaintiff’s contention that there were a number of reasons for such delay. 

29. Firstly, immediately after he was shot, and while the plaintiff was still recuperating in the hospital, his superior officer, Chief Inspector Tsang, assured him that the police force would conduct an internal investigation into the shooting incident and that the plaintiff would be compensated sufficiently and in a timely manner.  The plaintiff was advised to focus on his recovery instead and that matters relating to the shooting could be dealt with later.  The plaintiff trusted Chief Inspector Tsang and decided to follow his suggestion.

30. Secondly, the plaintiff was still employed by the police force and was receiving a monthly income.  Although he had undergone physical and psychological trauma as a result of the gunshot wound sustained by him, he felt that as long as the police force was still paying him his monthly salary, he did not need to take any further steps against his employer.  After initially recovering from his injuries, the plaintiff had resumed his work, and continued with his career in the police force.  At the time as the 2^nd defendant, was his superior officer, and plaintiff did not wish to jeopardise his career advancement by confronting the defendants about  matters from the shooting incident.

31. Thirdly, in 1993 the plaintiff was awarded $124,000 by way of employees compensation and believed that he was not entitled to any further compensation.  In 1997, after his hospitalisation in December 1996 which was a result from the gunshot wound due to subsequent infection developing, the plaintiff submitted a second application for further employees compensation.  Due to domestic problems, the plaintiff had forgotten about the second application for employees compensation until in about June or July 2001 when he was told by his superior that the second application was rejected.  Up till then, the plaintiff had believed that the employees compensation was his only available remedy.

32. Fourthly, until July 2001 the plaintiff had no reason to believe, that  his mental function and physical health would further deteriorate due to the gunshot wound.  As a result, he did not see the need to take legal action against his employer.  Only when he became aware of the brain herniation and the leakage of the CFS spinal fluid did he go about obtaining independent legal advice in 2001, after which the Writ was promptly issued in 2003.

33. Moreover, because of the gunshot wound, the plaintiff’s mental process has been diminished, which has contributed to the delay in initiating legal proceedings against the defendants.

34. In so far as prejudice to the defendant is concerned, arising from any evidence from the defendant being less cogent, by reason of the delay, no issue has been taken by the defendant in this respect.

35. Nothing turns on the conduct of the defendants pursuant to section 30(3)(c) of the Ordinance.

36. However, the defendants contend that the delay by the plaintiff was too long and unreasonable, the plaintiff had not acted promptly and reasonably and was also unreasonable in having taken such a long time in obtaining advice.

37. The defendants further submit that the plaintiff’s lack of knowledge as to his entitlement to bring common law proceedings (as opposed to merely a claim for employees compensation) is not a factor, which the court should take into consideration in the exercise of its discretion under section 30 of the Ordinance. (See Sunwar Bhimray Sunwar v. Le Cheong Engineering Co and anr, HCPI 1492/2000 unreported). 

38. While I accept the defendants’ contention, that the plaintiff’s lack of knowledge as to his right or entitlement to bring common law proceedings against the defendants (other than employees compensation claim) is not a matter which should cause the court to disapply the limitation period.  However, in my view, the rest of the matters put forward by the plaintiff is sufficient to make it equitable for the limitation period to be disapplied in this case. 

39. Although there has been some long delay by the plaintiff, his initial reluctance to bring proceedings against the defendant is understandable, since he had remained in the police force at all times.

40. The one singular factor which swings the matter in favour of the plaintiff is, in my view, the fact that no prejudice has been occasioned to the defendants by such delay.

41. Therefore, in all the circumstances of this case, I am prepared to exercise my discretion to disapply the limitation period in favour of the plaintiff and to allow this action to proceed.

Plaintiff’s case on liability

42. The plaintiff’s case on the issue of liability can be summarized as follows.

43. On the morning of the raid, the plaintiff was instructed by his superior officer, Chief Inspector Cheung Yuk Fung, to carry out the raid on the target premises, where a group of robbery suspects were believed to be hiding.  The plaintiff was informed that the 2^nd defendant would be supervising the raid.

44. The plaintiff was assigned to lead two teams consisting of 12 police officers during the raid at the target premises.  CIP Cheung informed the plaintiff that the suspects may be armed and instructed the plaintiff to attend the raid with bullet-proof vests.  While briefing the raiding team members, the plaintiff discovered that there were only three bullet-proof vests available for the 14 members of the  raiding party.  Upon enquiring about the matter, the plaintiff was told that additional teams were going to raid two other target locations and would be requiring the remaining bullet-proof vests.

45. When the raiding party arrived at Li Tak Street, the plaintiff ordered certain members of his team to survey the target premises and to report the results of the reconnaissance to the 2^nd defendant.  The 2^nd defendant approved the plan and the plaintiff put on a bullet-proof vest himself before approaching the target premises.

46. When outside the target premises on the 6^th floor of the building, the plaintiff gave instructions to members of his team to find a way to gain entry into the target premises.  It was during this time, the plaintiff heard what appeared to him to be the sound of gun cocking coming from inside the target premises.  The plaintiff immediately informed the 2^nd defendant about this sound of gun cocking.  Despite being so informed, the 2^nd defendant ordered the plaintiff to proceed with the raid.  Since the 2^nd defendant was the supervising officer, and the highest ranking officer in command of the raid, the plaintiff had no choice but to follow his order.

47. The plaintiff informed the raiding party of the 2^nd defendant’s instructions to proceed, and to knock on the door of the target premises.  When the door opened, the plaintiff revealed his police identity to the persons inside.  At once, he saw them dashing into a cubicle inside the target premises.  A few moments later, a man emerged from the cubicle and started firing an assault rifle in the plaintiff’s direction.

48. The plaintiff immediately ran back to where the other team members were waiting.  After noticing that a member of the party had been injured, the plaintiff reported the situation to the 2^nd defendant and suggested a retreat since they could not match the firepower of the persons using assault rifles from inside the target premises.  The 2^nd defendant agreed with this suggestion, and the members of the raiding party started to make their way down the staircase and out of the building.

49. When outside of the building, the plaintiff saw a police officer, one of the raiding party, close the iron gate at the main entrance of the building.  Fearing for the safety of those police officers who may still be in the building, the plaintiff asked that officer, whose decision it was to close the iron gate.  That police officer told the plaintiff he had been ordered by the 2^nd defendant to close the iron gate.  The plaintiff then queried the 2^nd defendant as to his order to close the iron gate, but received no reply from the 2^nd defendant.

50. The plaintiff then took upon himself to find some equipment in an attempt to prise open the iron gate but at that time he heard a number of loud explosions from above, and tried to move back to the pavement.  In the process of doing so, the plaintiff lost his balance and fell down right in front of the main entrance of this building.  Just at that moment, the suspects came out from the main entrance of the building, and one of them shot the plaintiff in the head, after which the suspect fled.

51. The plaintiff remained in a kneeling posture for some time after being shot.  The 2^nd defendant approached him and asked him about his condition.  The 2^nd defendant, then removed the bullet-proof vest from the plaintiff and dragged the plaintiff into a nearby metal shop.  The 2^nd defendant left the plaintiff in the metal shop unattended and the plaintiff lost consciousness soon thereafter.  Sometime later, the plaintiff regained partial consciousness and was able to summon the help of a passing fireman before losing consciousness again.

52. When the plaintiff regained consciousness and opened his eyes, he found himself in the Intensive Care Unit of the Kwong Wah Hospital.

The defendants case on liability

53. It is the defendants case that the intelligence or information received by the police was such that they did not expect to find armed robbers at the target premises.  Rather the intelligence obtained from an informer pointed to the possibility of finding car thieves at the target premises, who in turn, may lead them to the armed robbers.  It is therefore the defendants case that there was no negligence as to the instructions given and the decisions made by the commanding officers in carrying out this raid on the target premises.

54. It is also the defendants case that the plaintiff had been given sufficient and proper training to be a police officer and that the raid carried out at the target premises, upon the information known to the police at the time, was within the normal duties of a police officer in the Regional Crime Unit.  As such, there was again no negligence on the part of the defendants in assigning the plaintiff and his team of officers to conduct this raid.

55. The defendants further contend that the decision by the 2^nd defendant to continue with the operation despite the reported gun cocking sound was not negligent in the light of the circumstances prevailing at the time.

56. Finally, the defendants case is also that the plaintiff acted in defiance of the 2^nd defendant’s order for the iron gate on the ground floor at the main entrance of the building to be closed and for the police officers on the street (including the plaintiff) to take safe cover.  In this respect, the plaintiff took it upon himself, and without regard to his own safety when he tried to open the iron gate by himself, and in defiance of that order.  In so doing, he either caused or contributed substantially to his own injuries when he was shot by one of the suspects coming out of the building.

Factual dispute

57. The major area of factual dispute between the parties concerns the information or intelligence received by the police upon which this raid was undertaken.

58. The plaintiff’s case was put on the footing in counsel’s final submission that the 1^st defendant had reliable and credible information that the suspects were in possession of firearms and assault rifles, while in the target premises and that the suspects had been involved in goldsmith shop robberies.

59. The evidence from the plaintiff was that this operation was a planned raid on robbery suspects which was highly dangerous involving suspects who were believed to be armed.

60. The basis of that belief by the plaintiff came about when he was briefed on this operation by Chief Inspector Cheung Yuk Fung.  His evidence, contained in paragraphs 17 and 18 of his witness statement states as follows :

“	17.	On 24 April 1992, at approximately 1100 hrs, CIP Cheung briefed me further with regard to the operation.  He explained that the operation concerned two suspects in relation to the Chow Sang Sang Goldsmith robbery (the ‘Robbery’) which took place on 23 April 1992; that is, the previous day.  During this briefing, CIP Cheung did mention that the Robbery suspects had used ‘pistol like objects’ in carrying out the Robbery, but I am certain that he did not state that an assault rifle had also been used.  If I had been informed by my superior (or anyone else) that an assault rifle had been used by (and/or was in the possession of) the criminals I would have definitely devised and implemented a different plan to tackle the situation.
	18.	CIP Cheung told me that three addresses had been identified with the Robbery suspects.  I was given one address and told to conduct a raid there as soon as possible.  The address that I was given was 6/F., 26 Li Tak Street, Tai Kok Tsui, Mongkok, Kowloon (‘the target premises’).  CIP Cheung stressed that the suspects were believe to be armed and instructed me to attend the raid with bullet-proof vests.  I was told that in addition to my team members (Team 2C), some officers from Team 2B of the KE RCU would participate in the operation.  It was decided that [the second defendant] would accompany and supervise my raiding party.”

61. Thereafter, the plaintiff gave a briefing to the raiding party, along the same lines as he had been briefed by CIP Cheung in relation to this operation.

62. It can therefore at once be seen that from what he was told in the briefing by CIP Cheung, there was no mention of any assault rifle being used.  The only mention of firearm in that briefing by CIP Cheung related to “pistol like object.”

63. In cross-examination, the plaintiff agreed that CIP Cheung was the only officer who had briefed or instructed him on this operation prior to arriving at Li Tak Street in this operation.  He also said that he cannot remember whether CIP Cheung told him what crimes the suspects were thought to have committed but that CIP Cheung told him that “the task was to follow up the goldsmith robbery”.  Moreover he was not told by CIP Cheung why the 2^nd defendant had to go along on this operation.

64. The plaintiff also agreed in cross-examination that he had no access to the information given by the informer to Mr Pearce.

65. On the other hand, the defendants’ evidence as to the information and/or intelligence obtained came from Kerry Staunton Pearce, Chief Superintendent of Police at the time of this raid and also from the 2^nd defendant.

66. It was the evidence of Mr Pearce that about a month before this raid, Chief Inspector Ng Kam Ki had reported to him about an informer, who had information regarding two 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.

67. Mr Pearce also gave evidence that about 8:30 a.m. on the morning of the raid he instructed the 2^nd defendant to conduct raids on the three known addresses from the information obtained relating to the suspects.  According to Mr Pearce, the only information he had in his possession at that time was that the two suspects were allegedly stealing cars but that information did not indicate that the addresses were connected with the Chow Sang Sang robbery case.  Moreover, although the target premises was in Tai Kok Tsui, the same district where the getaway car in the Chow Sang Sang robbery was dumped, that did not cause him to make any connection since Tai Kok Tsui was a popular dumping ground for getaway cars in 1992.

68. Mr Pearce further stated that 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 a hope, that it made lead the police to the armed robbers.

69. The evidence of the 2^nd defendant, regarding the information about the suspects in the target premises was on all fours to that of Mr Pearce.  It was also the evidence of the 2^nd defendant that Mr Pearce had been unable to make any connection between the Chow Sang Sang robbers and the car stealing gang.  Therefore, Mr Pearce instructed the 2^nd defendant to make further inquiries at the target premises, hoping to locate the car thieves there.

70. The 2^nd defendant also gave evidence that he decided to go with the raiding party to the target premises, one of the reason being that he could deal with the possibility of locating the informer at the target premises if that should be the case.

71. Apart from the two seemingly conflicting versions given by the plaintiff on one hand, and on the other hand, coming from Mr Pearce and the 2^nd defendant, the plaintiff also seek to rely on the police statements given by some of the police party taking part in the raid.  These police statements were made shortly after the raid at the target premises.  What is relied on by the plaintiff in these police statements is the fact that some of the team members taking part in the raid were aware that the purpose of the raid at the target premises was that it was thought that some of the robbers of the Chow Sang Sang robbery may be hiding there.

72. The plaintiff also relied on a report prepared by the Oragnised Crime and Triad Bureau (“OCTB”) which was used in a later prosecution relating to this matter in which it was stated that the police had credible information from a “reliable informer” that the suspects in the target premises, the subject matter of this raid, had been involved in armed robberies in the past.  That report was prepared by officers from OCTB but with no input from either Mr Pearce or the 2^nd defendant when that report was compiled.

73. In so far as I have to make a finding on this aspect of the case, I accept the plaintiff to be a truthful and reliable witness.  At the same time, there is nothing in his evidence, which would even tend to suggest that the evidence given by Mr Pearce, and the 2^nd defendant cannot also be true.

74. Whilst I accept from the evidence of Mr Pearce and the 2^nd defendant that the information obtained from the informer related to suspected car thieves who were stealing cars for armed gangs of robbers, it would take very little to conclude that the police, in their investigation work, would keep an open mind and be hopeful that if they can locate the car thieves, they may then be able to get further information to lead them to the armed robbers.  In this respect, the police would not shut their eyes to a possible link between the car thieves and the armed robbers. 

75. Therefore, when the instructions were passed down from Mr Pearce to the 2^nd defendant, and in turn by him to CIP Cheung, who then briefed the plaintiff in the way said by the plaintiff in his evidence, it is hardly surprising that CIP Cheung would have told the plaintiff that this operation was to follow up on the Chow Sang Sang robbery case as well as warning him that the suspects may be armed since “pistol like objects” were known to have been used in that robbery.  Even when that was mentioned to the plaintiff in the briefing given to him by CIP Cheung, it is interesting to note that at that time the plaintiff appeared to have accepted those instructions to carry out the raid and did not ask CIP Cheung whether this operation should be carried out by other tactical or elite units within the police force.

76. In so far as the police statement of some of the members of the raiding party making mention that they were briefed or their understanding of the raid was to locate the robbers in the Chow Sang Sang robbery, that would hardly be surprising if the plaintiff, after his briefing by CIP Cheung, had in turn briefed his team along those lines.  That such was the understanding of the team members taking part in the raid only goes to show how they were briefed in the matter of the operation before it was mounted.  It cannot show the true extent of the information or intelligence received by the police in the matter.  Much less would it show what was to be expected from inside the target premises when the raid was undertaken.

77. Indeed, even with the information received by the police, no one in the police force could know what would be found in the target premises unless and until the raiding party could gain entry into it, but not before.

78. 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 complied the report except that they were probably officers from the OCTB.  The makers 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.

79. Therefore I make the following findings that :

(1)	the information or intelligence receive 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 address 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.

80. In coming to these findings, I have also taken into account the fact that the 2^nd defendant was himself present and outside the target premises on the 6^th floor of the building overseeing the operation.

81. Had it been known or suspected or even believed by him 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.

83. This lends further weight to my finding and the defendants’ evidence that it was never within their contemplation that assault rifles and grenades would be in the target premises and would be used against the police raiding party.

Decision on liability

84. The decision to conduct the operation is not the decision of an ordinary man but of a police commander making his professional judgment by exercising his knowledge, skill and experience in police operations.  Whether the decision to conduct the operation was proper and reasonable as to be view in the light of the intelligence available at the time and not with hindsight.

85. Given all the circumstances of this case as found by me, I  cannot say that a reasonably prudent and competent police commander would definitely not have made such a decision as was made by Mr Pearce and the 2^nd defendant in mounting this operation.

86. There is also evidence before me, which I accept that the Special Duty Unit, an elite force within the police force, is basically an anti terrorist squad and is to be engaged only under very strict criteria.  The intelligence available in the present case was described as “underdeveloped intelligence” which would not have been sufficient for enlisting the services of the Special Duty Unit. 

87. Insofar as the training of the plaintiff is concerned, there is no dispute that the plaintiff had been given proper training as a police officer (although not the kind of specialised training given to members of the Special Duty Unit to combat terrorists or heavily armed criminals).  I find from the facts of this case that this operation, at the time it was mounted and from the intelligence available at that time, it was no different from the standard operation commonly undertaken by offices of the Regional Crime Unit, even if it was believed that the suspects may be armed with pistol like objects in the target premises.

88. Accordingly, on the facts as were found by me, I come to the conclusion that it was not negligent of the 1^st defendant to assign the plaintiff to lead the team on the raid.

89. I further come to the conclusion that it was not negligent of the 2^nd defendant to have given the order to continue with the operation even after what was thought to be a gun cocking sound was heard by some officers to have come from inside the target premises.  Assuming that sound was indeed a gun-cocking sound, that added very little to what was suspected or believed by the police up to that stage since the police did believe that the car thieves were possibly linked to armed gangs of  robbers.  The sound of a gun cocking cannot per se indicate the presence of assault rifles as opposed to a pistol.  Therefore the gun-cocking sound added very little to the information already in the possession of the police.  In any event the team members had been warned of the possibility of the suspects being armed with “pistol like objects”.

90. In this respect, the evidence of the 2^nd defendant was that firstly, 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 target premises to walk away, and carry on their criminal activities.  Secondly, even 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.  The 2^nd defendant 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.

91. This evidence of the 2^nd defendant has not been challenged and which I accept for the cogent reasons given by him.

92. The decisions made by the 2^nd defendant were not easy decisions, but had to be made on the spur of the moment under stress and pressure from the nature of the operation.  They were professional decisions made by him as a superintendent overseeing the operation.

93. In all the circumstances of this case I do not find negligence on the part of either defendant in this matter.

94. In coming to this conclusion on the issue of liability, I have not dealt with a number of pleaded breaches which include failure to institute or enforce any or adequate safety and back-up system such as stand-by medical treatment, personnel and facilities; failing to provide the plaintiff with immediate medical treatment; the 2^nd defendant removing his bulletproof vest thereby exposing him to further danger; the 2^nd defendant abandoning him and exposing him to a potentially hazardous area at the site and failing to call immediate medical treatment for him.

95. In respect of all these allegations, there is simply no evidence to suggest that any of these pleaded breaches were causative of the plaintiff’s injuries.

Contributory negligence

96. Having arrived at the above conclusion, it should not be necessary for me to go into the question of contributory negligence.

97. 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.

98. I would accede to the suggestion of counsel for the defendants and assess the amount of the plaintiff’s contributory negligence to be 50%.

Quantum

99. In the event that I should be wrong on the conclusion which I have come to on the issue of liability, I now turn to deal with the issue of quantum.

Injuries and treatment

100. The plaintiff was shot in the head at close range, the bullet penetrating his skull.  Following the incident, the plaintiff underwent emergency resuscitation and brain surgery in Kwong Wah Hospital to remove the bullet from the frontal lobe of his brain.  The operation was traumatic and the plaintiff continued to suffer from the after effects for a significant period of time and was hospitalized for some four months.

101. Thereafter the plaintiff required lengthy follow up treatment.  He was however, able to return to his pre-accident job as a police inspector after recuperation, in September 1992.

102. In 1996, he was again admitted to hospital for a further operation as a result of leakage of CFS and meningitis developing at his gunshot wound.

103. In August 2001 he was again hospitalized for a craniotomy resulting from herniation of brain substance into the gunshot wound site.

104. He now suffers permanent disability of complete loss of sense of smell and has developed neurologically related symptoms such as emotional and behavioural problems and irritability.  He also suffers from short term memory loss.

105. Although he has been able to return to his work as a police Inspector, these disabilities undoubtedly limit his performance of his work.

106. In the opinion of Dr S.T. Chan,  a neurosurgeon, there is a risk of the plaintiff developing epilepsy in the future.

107. Moreover, it is the view of Dr Chan the outbursts of temper by the plaintiff are more than simple irritability.  The plaintiff has difficulty inhibiting his emotions and controlling his rage.  All these problems lead to difficulties in maintaining congenial personal and professional relationships.  As for his short term memory loss, Dr Chan’s view is that it will surely affect the plaintiff’s ability to conduct field and office work.

108. In the opinion of Dr Chan, neurological injuries can generally improve with time, but only to a certain limit.  After a few years, one cannot expect any further improvement.  As matters stand now, these disabilities of the plaintiff can be taken to be permanent.

109. The effect of these disabilities on the plaintiff’s work can be seen by the fact that a medical board report prepared by doctors at Kwong Wah Hospital dated 17 January 2002 concluded that the plaintiff is not suitable to carry firearms.

110. Quite apart from the above disabilities, during the few months before the trial (which stated in March 2005) the plaintiff developed a serious urinary condition.  In a medical report prepared by Dr George Koo, urologist, Dr Koo states that the plaintiff developed urgency and frequency of urination after the craniotomy in 2001 and this condition resulted in bouts of urge incontinence.  This condition of the plaintiff worsened in January 2005 resulting in the plaintiff having to wear diapers when going out.

111. In Dr Koo’s opinion, the urgency and incontinence are neuropathic in origin and are related to the brain damage.  Dr Koo believes that the gunshot injury which the plaintiff suffered in 1992 and the subsequent treatment led to a mild neurogenic bladder and resulted in these symptoms.

112. Dr Koo is further of the opinion that if the plaintiff’s urological condition continues to worsen, he will require an operation in the future.  If that should come about, the permanent urinary impairment would be 20% and the cost of such operation in the private sector would be $90,000.

113. Dr Koo further stated that in his view there was a definite temporal relationship between the craniotomy and the urinary condition.  The timing of the onset, kidney contraction in the absence of other evidence lead him to conclude that there was a direct correlation between the surgical procedure and the urinary problems.  Dr Koo explained that there must have been a lot of surgical manipulation of the brain tissue during the craniotomy in 2001.  The fact that the plaintiff developed urgency, which could be seen objectively, led him to deduce that it was related to the craniotomy.

114. Dr Koo also explained that in severe cases of brain damage, both bowel and urinary problems may arise.  However, in less severe cases of brain damage, the bowel injury may not be obvious, but since the bladder is much more sensitive, any problem would be immediately felt.  Because the brain is a diffused organ, one could retain control even after mild damage, but it would not be normal and there would be involuntary contraction of the bladder.

115. Finally, Dr Koo also stated that the brain damage, would not necessarily improve with time.  In the plaintiff’s case, three and a half years had passed since the craniotomy and it was likely that his neurological condition would be permanent.

Pain suffering and loss of amenities

116. Upon such medical condition and disability of the plaintiff, counsel for the plaintiff submitted that his injuries and disabilities should put the plaintiff into the category of “gross disability” as it is understood in the case of Lee Ting Lam and as such  the award for pain suffering and loss of amenities ought reasonably to be assessed at $ 1.2 million.

117. The defendants on the other hand, submit that the injuries and disabilities of the plaintiff effectively put the plaintiff into the “substantial injury” category as it is understood in Lee Ting Lam and that the assessment under this head, should properly be $700,000.

118. 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.

119. On the other hand, the gross disability category 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.

120. In the present case, while there is very little loss of mobility to the plaintiff, his neurological condition as well as his urological condition both of which arise from his brain damage put him somewhere in between the substantial injury category and the gross disability category.

121. Accordingly, the award for pain suffering and loss of amenities would be assessed at $800,000.00.

Loss of earnings (pre-trial)

122. The plaintiff’s claim for loss of earnings is premised on his loss of chance of promotion due to the injuries and resultant disabilities suffered by him when he was shot in the head.

123. It is the plaintiff contention that had it not been for being shot in the head in April 1992, the plaintiff in the normal course of his career in the police force would have been promoted to Senior Inspector in June 1993, to Chief Inspector of Police by June 1996 and to Superintendent by June 1999.

124. On this basis, the plaintiff claims for pre-trial loss of earnings quantified in the total amount of $2,046,954.00 as being the difference in the salary he would have received had he been so promoted for the period from 1993 to date of trial.

125. There can be little doubt that from the internal/annual reports of the plaintiff produced in evidence, the plaintiff was accepted by all including his superiors to have been an outstanding police officer, even at the Inspectorate grade and with outstanding leadership qualities.

126. However, the one obstacle which stood in the plaintiff’s way was his failure to pass the Standard III examination which all junior Inspectors had to pass before there could be any further promotion for them.

127. As already stated, the plaintiff joined the police force as a constable in 1983 after completing his Form V School Certificate examinations.  In 1987 he became a probationary Inspector.  He passed his Standard II examination in July 1989, which qualified him as an Inspector as opposed to a probationary Inspector.

128. Since 1989, up to the time when he was shot in April 1992 the plaintiff had no further promotion, although he had the usual annual increments in salary each year.

129. The Standard III examination is made up of four papers all of which must be passed.  Paper A, criminal law and evidence; Paper B, practice procedure and evidence; Paper C, traffic, narcotics, gambling and miscellaneous offences; and Paper D, force management and discipline.

130. The plaintiff commenced his attempts to pass the Standard III examinations in October 1989.  From between 1989 to 1991 he made nine attempts on five occasions to sit for the Standard III examinations, but failed in all his attempts.  All those failed attempts were before he was shot in 1992.

131. After recuperating from his injury, and after he returned to work with the police force in September 1992 he made a further 12 attempts on 7 occasions to sit for the Standard III examination between 1994 to 1999.  During this time, he managed to pass only Paper A in April 1994.  His last attempt at the Standard III examination was in October 1999.

132. In 2000, the plaintiff applied to the Commissioner of Police for waiver of the examinations on medical ground but this application was rejected by the Commissioner.

133. It is the plaintiff’s case that his failure to pass the Standard III examination was due to his impaired short term memory which was one of the resultant disability arising from the brain damage caused by the gunshot wound.  The plaintiff also explained that his failure to pass any of the four papers of the Standard III before he was shot was due to a busy work schedule which left him with little or no time to prepare properly for that exam.

134. The evidence which I take into account in this aspect of the case are as follows :

(1)	in almost every annual appraisal report of the plaintiff from 1989/90 to 2000/01 the plaintiff’s superiors noted that “he is encouraged to pass Standard III exam” and “the only thing he must do is to pass Standard III exam”;
(2)	the evidence of Mr Pearce being one of a the examiner/marker of Standard III papers as well as being a the plaintiff’s reviewing Officer was to the effect that Paper A and B are bread and butter of crime work, but for Paper C and D, if they don’t study they struggle;
(3)	Mr Pearce’s evidence that there is no time limit to pass but the longer after an officer had left training school, the harder to pass, because things change;
(4)	Mr Pearce’s evidence that the plaintiff was the second-best detective Inspector under his command and that he had no hesitation to recommend him if he passed the exam; and also that he had asked the plaintiff to take some time to study but the plaintiff’s problem was that he just doesn’t study; and
(5)	Mr Lee’s evidence that most Inspectors were able to pass the Standard III exam within five years, but if an Inspector cannot pass within five years, it would be likely that he will never make.

135. What I have to do here is to evaluate the chance of promotion, which is lost to the plaintiff by reason of his injuries.  In doing so, I have to assess the chance of that promotion (which is a future event) on the evidence before me in this case by applying the principles laid down in Doyle v. Wallace [1998] PIQR Q146 and Anderson v. Davis [1993] PIQR Q87.

136. From all the evidence before me, it is far too speculative and uncertain for me to come to any finding that the plaintiff will be promoted to Superintendent, let alone by June 1999.  Likewise for his promotion to Chief Inspector since there are other hurdles which the plaintiff must cross even after he has successfully passed the Standard III examinations before he can attain the rank of either Chief Inspector or Superintendent.

137. On the evidence before me, I am only prepared to go as far as to say that there is a chance, not a high one, that the plaintiff may reach the rank of a Senior Inspector given time for him to get down to his studies and to pass the Standard III exams.  That he can do so with some hard studies is reflected by the fact that he did pass Paper A in April 1994, after sustaining his head injuries.  I will rate that chance at no higher than 30% on the basis up to the time of his injury he had not even passed one of the four papers, but that after April 1994 he still has to overcome and to pass the remaining three papers of the Standard III.  If his achievements in the Standard III examination before he was shot was anything to go by, then it would seem unlikely that he would pass all the remaining three papers before 1997 even if he had not been shot.

138. In quantifying this claim for loss of earnings therefore, I must have regard to the Police Pay Scale (PPS).  The PPS for an Inspector is from PPS 16 to 41 and for a Senior Inspector from PPS 37 to 41.

139. In the case of this plaintiff, he was receiving salary at PPS 37 since 1997 and in June 2002 his salary scale was at PPS 40.  At present he has already reached the top of the scale at PPS 41.

140. Accordingly, there is no loss of earnings for the plaintiff even if he would have achieved the rank of a Senior Inspector by 1997.

Future loss of earnings and loss of pension

141. For the reasons given, there will not be any future loss of earnings or loss of pension since the plaintiff is already receiving the salary of a Senior Inspector at the top of the scale, being PPS 41.

Pre-trial loss of allowance

142. The plaintiff claims for Disciplinary Services Overtime (“DSOA”) allowance on the basis that due to his injuries, he was transferred to an administrative post in November 2001 and not posted out for duties resulting in his being unable to receive such allowance.

143. A sum of $150,000 representing the loss of DSOA will be awarded on the basis of the number of months which he could not receive DSOA and based on the average monthly DSOA earned by the plaintiff during the same year  closest to the period he was unable to perform overtime work but also taking into account the sick leave granted to him in respect of the injuries he had suffered in this matter.

Future loss of allowance

144. For future loss of DSOA, a lump sum of $100,000 will be a reasonable award due to the fact that there exist uncertainty as to a proper quantification since overtime in the future depends on the job nature of a particular post and the availability of time off.

Special damages

145. The plaintiff claims $100,000 for payment of acupuncture fees; $100,000 for tonic food and $31,600 for travelling by taxi to hospitals for treatment.

146. There is no evidence that the plaintiff had been advised to seek acupuncture treatment particularly when the plaintiff had all along been treated by conventional western medicine.  In any event, the amount claimed cannot be justified as reasonable.

147. In the circumstances, the claim for acupuncture fees will not be allowed.

148. As for the tonic food, I am prepared to allow $15,000 as being a reasonable amount given the circumstances of the case and the kind of injuries suffered by the plaintiff.

149. For the travelling expenses, the claim is based on 200 days of travelling by taxi to and from the hospital with the fares ranging from between $80 and $200 (return trips).  Considering the amount of time spent by the plaintiff in hospital and the duration which the follow up treatment has taken, the amount claimed will be allowed in full.

150. Total special damages comes to $46,600.

Future expenses

151. Future medical expenses claimed by the plaintiff in the sum of $90,000 relating to the future operation which would be needed if the plaintiff’s urological condition continues to worsen are agreed by the defendants and will be allowed.

152. The plaintiff also claims for the costs of follow-up consultations at $10,000 per year as well as diapers at a cost of $4,916 per year on the basis of a multiplier of 20 in view of the plaintiff’s age being now 41.

153. The defendants do not dispute the yearly costs of the follow-up consultation or the diapers but submits that the multiplier should properly be one of 16 rather than 20.

154. The defendants seek to rely on the judgment of Fung Kwok Ki  v. Wing Sang Construction Co. Ltd [2003] 3 HKLRD 201 where the plaintiff in that case was also 41 years at trial and a multiplier of 16 was used for calculation of future expenses.  However in that case, the life expectancy of that plaintiff was given by the medical experts to be about 29.  Not so in the present case.

155. For present purposes in this case, I would adopt a multiplier of 18 in calculating the future expenses.

156. That would give $180,000 for the future costs of follow-up consultations and $88,488 for the costs of diapers.

157. Total future expenses therefore comes to $358,488.00

Interests

158. Interests on general damages for pain suffering and loss of amenities will be awarded at 2 % p.a. from the date of the Writ.

159. In respect of special damages, because of the plaintiff’s delay in bringing these proceedings, I will accede to the suggestion of the defendants that the period for which interests can be claimed be reduced to six years instead of from the date of the accident.  Accordingly, interests will be awarded for special damages at 4.122% (being half judgment rate) for a period of six years.

Conclusion

160. For the reasons given above, the plaintiff’s claim herein against both defendants is dismissed with costs (order nisi) to the defendants to be taxed if not agreed.