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HCPI 557/2004
C C
IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E E
PERSONAL INJURIES ACTION NO. 557 OF 2004
F ____________ F
G BETWEEN G
LAM KANG, the personal representative Plaintiff
H H
of the estate of LAM CHO KIN, the deceased
I and I
CHOI HOK YIN 1st Defendant
J J
SECRETARY FOR JUSTICE 2nd Defendant
K K
____________
L L
M M
Before: Hon Chung J in Court
N N
Dates of Hearing: 20 to 23 March 2006
O Date of Handing Down Judgment: 6 June 2006 O
P _______________ P
Q
JUDGMENT Q
_______________
R R
S Introduction S
T 1. The plaintiff, the father of the late Lam Cho Kin (“the T
deceased”), commenced this action in June 2004:-
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(1) pursuant to the Fatal Accidents Ordinance (Cap. 22), on behalf, B
and for the benefit, of the deceased’s dependents (including
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himself);
D (2) pursuant to the Law Amendment and Reform (Consolidation) D
Ordinance (Cap. 23) on behalf, and for the benefit, of the
E E
deceased’s estate.
F F
2. The 1st defendant (“the defendant”) is sued as the primary
G G
nd
tortfeasor whereas the 2 defendant is sued (pursuant to s. 13(1), Crown
H Proceedings Ordinance (Cap. 300)) as acting for the defendant’s employer, H
the Commissioner of Police (pursuant to s. 4(1), Cap. 300).
I I
J J
3. The background facts giving rise to this action will be
summarized below. K
K
L L
Background Facts
M M
4. The defendant was employed by the 2nd defendant as a
N
detective police sergeant. At the relevant time, he was attached to the N
Kowloon West Regional Crime Unit.
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P
5. On 26 June 2001, the defendant received information that a P
crime syndicate would return spare parts obtained from a car theft to the
Q Q
victim of the theft incident later on that day in the Kowloon City area.
R R
6. The inspector commanding the team of police officers of
S S
which the defendant was a member organized an operation with a view to
T arresting the criminals involved. Police officers of the team (including the T
defendant) would position themselves in the vicinity of the place where
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delivery of the stolen spare parts was expected to take place. The plan was B
arrest action would be taken when the stolen goods were handed over.
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D
7. A light goods vehicle (“the suspected vehicle”) appeared at the D
scene at about 10:15 pm. Its driver turned out to be the deceased. Also
E E
inside the suspected vehicle were 2 males, one Mr Leung Kin Chan
F (“Leung”) and one Mr Yim King Hong (“Yim”). F
G G
8. The suspected vehicle stopped in front of a traffic light at the
H junction of Ma Tau Kok Road and Kowloon City Road. The defendant H
emerged from his ambush position and walked along the pedestrian
I I
crossing the front of the suspected vehicle. He then turned and walked
J back. Shortly afterwards, the defendant drew his service revolver and a J
shot was fired. The bullet hit the deceased on the right side of his neck. He
K K
later died as a result of the injury.
L L
9. Bulky stolen vehicle spare parts were found inside the
M M
suspected vehicle. The deceased, Leung and Yim all have previous
N criminal convictions for offences connected with motor vehicles. N
O O
10. Apart from this action, the defendant has faced criminal
P prosecution and disciplinary proceedings as a result of the shooting P
incident. There is no need to go into the details of those earlier proceedings
Q Q
(except insofar as matters therein have been raised in this action (see
R especially under “Evidence Adduced at Trial” below)) suffice it to say, in R
relation to the criminal prosecution, the trial judge ruled that there was no
S S
case to answer and, in relation to the disciplinary proceedings, the charges
T were found not proven. T
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Causes of Action B
11. What precisely caused:-
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(1) the defendant to draw his service revolver;
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(2) the firing of the shot which resulted in the deceased’s death,
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are two of the main factual issues in this action.
F F
12. In short, the causes of action pleaded in the statement of claim
G G
are:-
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(a) unlawful trespass to the person of the deceased;
I (b) discharge of firearm in breach of the Police General Orders I
(“PGOs”); J
J
(c) negligently discharging firearm.
K K
L L
Evidence Adduced at Trial
M 13. Witnesses’ testimony will be dealt with under the next heading. M
Besides that, the plaintiff adduced the following pieces of evidence, all of
N N
which are hearsay evidence in nature.
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14. In assessing the evidence, I have taken into account, among
P P
other things, s. 49(1), Evidence Ordinance (Cap. 8) :-
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“In estimating the weight, if any, to be given to hearsay evidence
in civil proceedings the court shall have regard to any
R circumstances from which any inference can reasonably be drawn R
as to the reliability or otherwise of the evidence”.
S S
S. 49(2), Cap. 8 stipulates that:-
T “regard may be had, in particular, to the following- T
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(a) whether it would have been reasonable and
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practicable for the party by whom the evidence was
adduced to have produced the maker of the original
C statement as a witness; C
(b) whether the original statement was made
D contemporaneously with the occurrence or existence D
of the matters stated;
E E
(c) whether the evidence involves multiple hearsay;
F (d) whether any person involved had any motive to F
conceal or misrepresent matters;
G (e) whether the original statement was an edited account, G
or was made in collaboration with another or for a
particular purpose;
H H
(f) whether the circumstances in which the evidence is
I adduced as hearsay are such as to suggest an attempt I
to prevent proper evaluation of its weight;
J (g) whether or not the evidence adduced by the party is J
consistent with any evidence previously adduced by
the party”.
K K
L 15. The first piece of evidence comes in the form of an extract of L
the testimony of one Ms. Tsui Pui Wan (“Tsui”) given during the criminal
M M
trial. Tsui approached the police quite some time after the shooting
N incident. She told the police she happened to walk pass the scene around N
the time of the shooting incident and heard the shot being fired. She said
O O
she thought at the time there was a flat tire. When she turned her head, she
P P
saw a man (who must be the defendant) standing to the right of the
suspected vehicle outside the driver’s window, pointing a pistol-like object Q
Q
(which was held by both hands) at the window.
R R
16. Because Tsui never claimed to have witnessed the shooting, S
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the plaintiff adduced the extract of her testimony merely to establish in this
T T
action that the defendant never gave any warning to the deceased before the
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shot was fired. The prosecutor in the criminal trial also appeared to have U
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that matter in mind. There was the following exchange between the trial B
judge and the prosecutor during the no case to answer submission:-
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“MR SHAM: And speaking frankly, there’s no evidence of
whether [the defendant] has identified himself as a police officer
D and then he drew his revolver or things like that … D
COURT: Ms Tsui was never asked if she heard it.
E E
MR SHAM: Yes, because she didn’t …
F F
COURT: Well, I’m not saying …
G MR SHAM: She was not asked. Yes. G
COURT: She was not asked.
H H
MR SHAM: She wasn’t asked. I accept that.
I I
COURT: It’s a very difficult situation.
J
… ” (p. 112L-R, transcript of criminal trial). J
K K
17. The appellant courts have often said that findings of fact by the
L
trial courts (especially those based on an assessment of credibility and/or L
reliability of witnesses at trial) should not be lightly interfered with: Hong
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Kong Civil Procedure 2006, para. 59/1/48. One of the reasons given for
N
such observation is the disadvantage of not having had the chance of N
observing the witnesses testify: see, for example, Benmax v. Austin Motor
O O
Co. Ltd. [1955] 1 All ER 326, 327; Khoo Sit Hoh v. Lim Thean Tong [1912]
P AC 323, 325; Ting Kwok Keung v. Tam Dick Yuen and Others [2001] 3 P
HKLRD 12.
Q Q
R 18. I suffer from the same disadvantage. A witness’ failure to R
mention something can give rise to at least 3 inferences: the matter did not
S S
happen, the witness has not seen or heard it, or the witness simply was not
T given the chance to mention it. T
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19. In relation to Tsui’s testimony, the prosecutor, who was B
present at the criminal trial and the one who led the evidence-in-chief,
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basically conceded nothing could be made out of Tsui’s failure to mention
D
if the defendant had declared his identity. In these circumstances, I do not D
consider it proper to draw any inference adverse to the defendant. No
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weight should therefore be attached to Tsui’s testimony.
F F
20. The plaintiff also seeks to rely on Tsui’s failure to mention the
G G
suspected vehicle surged forward before the shooting incident. Judging
H from the whole tenure of her testimony (there was a drizzle, she was H
walking hastily and so on), Tsui was quite probably not particularly
I I
attentive to her surroundings. For this additional reason, I also conclude
J that no weight can be attached to this failure. J
K K
21. The next piece of evidence is an extract from the testimony of
L Leung also given in the criminal trial. He said he fell asleep shortly after L
he boarded the suspected vehicle and was awoken by a very loud “bang”
M M
sound. The plaintiff fairly accepted in the skeleton submission that he “was
N probably not in the position to [hear any warning] because he was asleep N
before the bang sound”. No weight can properly be attached to this piece
O O
of evidence.
P P
22. The third piece of evidence is the transcript of the police
Q Q
interview of Yim. According to Yim, he was asked by someone to deliver
R some items to a garage. That person lent the suspected vehicle to Yim. R
After having dinner with the deceased, Yim felt sleepy and so let the
S S
deceased drive the suspected vehicle while Yim took a rest and sat in the
T T
middle seats. The windows of the suspected vehicle were closed, the air
conditioning was switched on and so was the hi-fi but the music was not U
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loud. Yim heard the sound of a “bang” but he did not hear anyone said B
“don’t move, police” or “stop the vehicle”. It should be noted Yim said a
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few times during the interview the deceased began to move the suspected
D
vehicle and someone dashed out from one side of it before the “bang” D
sound.
E E
F 23. Yim’s account was not given under oath. In view of his F
admission that he was the one who was to drive the suspected vehicle to the
G G
place near the police ambush, he appeared to have the closest connection to
H the stolen spare parts among the 3 persons inside the suspected vehicle. H
The account given in the police interview is overly economical in details.
I I
It has the sign of someone trying to say as little as possible to distant
J himself from everything that happened that day. For this reason, I place no J
weight on his account either.
K K
L
L Witnesses’ Testimony
M 24. The following witnesses testified at trial:- M
N
(1) the plaintiff; N
(2) the defendant;
O O
(3) detective senior police inspector Yau, the inspector
P P
commanding the police team;
Q (4) detective police constable 21260. Q
R The witnesses referred to in sub-para. (2) to (4) above were called by the R
defendant. The 2nd defendant did not call any witness to testify.
S S
T T
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(1) Plaintiff’s Witness B
25. With regret, I do not find the plaintiff to be truthful or reliable.
C C
In short, I agree with the defence that he knew very little about the
D deceased’s life outside. He has no knowledge of the precise identity of the D
deceased’s employer(s) or the deceased’s friends. The deceased was
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admittedly seldom at home for his meals.
F F
26. During cross-examination, the plaintiff has to make up various
G G
matters from time to time to conceal his lack of knowledge about the
H deceased’s past life or future plans. He was questioned about the tattoos H
appearing on the deceased’s body to which he claimed that those were
I I
related to the deceased’s devotion to Buddhism. He also claimed that it
J was the deceased’s plan to devote himself to Buddhism by becoming a J
monk. The plaintiff’s story that the deceased used to keep all his savings K
K
from work under his own pillow is inherently implausible.
L L
M
27. Apart from the plaintiff’s lack of knowledge, there was a M
complete absence of documents about the deceased’s employment or
N N
savings.
O O
(2) Defence Witnesses
P P
The Defendant
Q Q
28. The defendant’s testimony about the shooting incident can be
R summarized as follows. R
S S
29. At about 6 pm on 26 June 2001, the defendant was tipped off
T that a car theft syndicate would return to the victim of the theft for a T
ransom spare parts stolen 2 days earlier. The information was related to the U
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B
inspector shortly later. More detailed information was obtained by the B
defendant by about 8:30 pm. The inspector was again informed.
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D
30. Between 8:30 pm and 9:40 pm, the inspector assembled his D
team and organized an ambush operation in the vicinity of Kowloon City
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Road and Sung Wong Toi Road.
F F
31. After the police team was in position, the suspected vehicle,
G G
driven by the deceased, appeared at about 10:15 pm. It stopped in front of
H the traffic light controlling Kowloon City Road at its junction with Ma Tau H
Kok Road. The defendant came out from his ambush position and walked
I I
across the front of the suspected vehicle, trying to observe if the stolen
J spare parts were inside. J
K K
32. When the defendant turned back and was about to reach the
L pavement, he noticed that the deceased appeared to have noticed him. The L
deceased also bent down as if to reach for something. The defendant took
M M
out his police warrant card with his left hand. At the same time, he placed
N his right hand on the revolver which was still in the holster. He then heard N
engine revving noise, so he believed the suspected vehicle was about to
O O
dash forward, although the traffic light still showed a red light.
P P
33. The defendant decided to take action to stop the suspected
Q Q
vehicle. He held up the police warrant card and shouted: “police, stop the
R vehicle”. The suspected vehicle surged forward towards him. The R
defendant pulled out his revolver and raised it up. At this juncture, the
S S
suspected vehicle already reached where he was. He felt his right hand
T (which was holding the revolver) was hit by the right door mirror of the T
suspected vehicle and the revolver suddenly fired a shot. The shot broke U
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B
the window glass of the driver’s door and struck the deceased’s neck. The B
suspected vehicle rolled forward until it hit the iron fence on the left side of
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Kowloon City Road.
D D
34. The plaintiff’s criticisms the defendant’s testimony include:-
E E
(a) he never asked the informant whether the culprits were armed,
F showing that he was not concerned with that matter; F
G (b) his distance from the suspected vehicle immediately before the G
shooting was about 8 to 9 feet. This was different from the
H H
distance observed by Tsui;
I (c) he was instructed to lay ambush. There was no valid reason I
for him to walk towards the suspected vehicle. His J
J
explanation that he wanted to find out if there were stolen
K K
spare parts is clearly a fabrication;
L (d) there was no way he could tell if he had alerted the deceased. L
The same applies to the reason why the deceased bent down.
M M
Hence, there was no justification for him to reach for the
N revolver; N
O
(e) pulling out the revolver could not stop the suspected vehicle. O
The reasonable thing for him to do would be to move away
P P
from the suspected vehicle;
Q (f) it was improbable the revolver fired because the defendant’s Q
right hand was hit by the door mirror because, according to
R R
him, his index finger was off the revolver’s trigger;
S S
(g) even if the defendant’s right hand had been hit by the door
T mirror, this would only result in the revolver being turned T
away from the suspected vehicle.
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B
35. I believe the defendant’s testimony is truthful and reliable. I B
will not set out the reasons for so deciding as if to answer the plaintiff’s
C C
above criticisms but only state the following.
D D
36. Although some of his actions at the time might not have been
E E
the wisest, and might not have been taken by other police officers in his
F position, I do not find his account to be inherently implausible. Some of F
the actions he took that night has the support of the inspector, for example,
G G
the need to ascertain whether there were stolen spare parts inside the
H suspected vehicle. Some of the matters he mentioned happened in an H
extremely short time and so may not be totally rationally explicable after
I I
the event.
J J
37. One of the most important matters in this action is whether the
K K
shooting was an accident. The defendant’s complaint of pain of his right
L hand, and the medical findings of bruising of his right little finger, shortly L
after the event, supports his account about his right hand being hit by the
M M
door mirror and the shot being fired accidentally as a result.
N N
38. I do not agree that, if the defendant’s right hand had been hit
O O
by the door mirror, the revolver must necessarily have turned away from
P the suspected vehicle. This would only be true if the revolver was held by P
an inflexible object, such as a rod. But a person’s hand has many joints,
Q Q
and when one feels pain, the muscle contraction caused by the pain can
R result in the hand flexing involuntarily and unpredictably. R
S S
T T
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B
Other Defence Witnesses B
39. Yau’s testimony generally supports the defendant’s account.
C C
Since he was not present when the shooting occurred, he cannot give direct
D evidence regarding what precisely happened. However, he confirmed that D
the defendant’s act of walking towards the suspected vehicle was not an act
E E
in breach of his instruction. Yau also observed that the defendant’s small
F finger was swollen and red at the scene. F
G G
40. The detective police constable’s testimony also confirms the
H suspected vehicle surged forward, followed by someone shouting: “police, H
stop” and then the shot being fired.
I I
J J
41. I find the defence witnesses to be truthful and reliable.
K K
Causes of Action / Findings of Fact
L L
(a) Unlawful Trespass to the Person
M M
42. The tort of trespass can be established if the plaintiff can show
N that the defendant’s act of assault (which the shooting clear was) was done N
intentionally or negligently: Clerk & Lindsell on Tort (2006) 19th Ed., Ch.
O O
15, especially para. 15-04 to 15-07.
P P
43. For the sake of clarity, assault by negligence will be dealt with
Q Q
below. The discussion under this heading is confined to intentional assault.
R R
44. With the rejection of the plaintiff’s evidence, and the
S S
acceptance of the defendant’s account, there is simply insufficient evidence
T to prove this tort. T
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B
(b) Breach of PGOs B
45. The PGOs relied upon are:-
C C
“A police officer … shall not resort to the use of force unless
D
such action is strictly necessary and he is otherwise unable to D
effect his lawful purpose.
E Police officers shall identify themselves as such and, when E
circumstances permit, a warning shall be given of the intention to
use force and of the nature and degree of force which it is
F F
intended to use …
… only the minimum force necessary to achieve the purpose may G
G
be used … The force used must be reasonable in the
circumstances” (29-01).
H H
“A police officer may discharge a firearm … to protect any
person, including himself, from death or serious bodily
I
I injury … ” (29-03 para. 2).
“A police officer may draw a revolver from its holster, or present J
J
a firearm (pointing or aiming) as a precautionary measure if he
considers he may be justified in using it in accordance with …
K 29-03 paragraph 2” (29-04 para. 1). K
L L
M 46. First, I do not find that the PGOs create a civil liability in the M
plaintiff’s favour. The power to make PGOs is vested in the 2nd defendant
N N
by s. 46(1), Police Force Ordinance (Cap. 232) which provides:-
O O
“… the Commissioner may from time to time make such orders
as he thinks expedient to enable him to administer the police
P force, render the police force efficient in the discharge of its P
duties and for carrying out the objects and provisions of this
Ordinance, and in addition, such orders may provide for any of
Q the matters specified in section 45” (emphasis supplied). Q
R It appears only s. 45(1)(h), Cap. 232 is relevant for present purpose:- R
“The Chief Executive in Council may make such regulations … S
S
Such regulations in addition to the powers hereinbefore conferred
may prescribe or provide for … such other matters as may be
T necessary and expedient for preventing abuse or neglect of duty, T
and for rendering the police force efficient in the discharge of its
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duties, and for carrying out the objects of this Ordinance”
B B
(emphasis supplied).
C C
47. Clerk & Lindsell says the following in relation to liability
D D
arising from the breach of statutory duties:-
E “Some statutes are expressly designed to create new civil E
remedies, and others are intended to modify or clarify existing
common law rights of action. Equally, there are some statutes
F which create criminal sanctions but which state expressly that F
they do not confer any civil remedy, and some may create both
criminal and civil remedies. Unfortunately, most legislation fails G
G
to give any express guidance as to whether an action for damages
is available for its breach, and then the courts have to decide what
H Parliament intended” (para. 9-02); H
“… The claimant must show that the damage he suffered falls
I I
within the ambit of the statute, namely that it was of the type that
the legislation was intended to prevent and that the claimant
J belonged to the category of persons that the statute was intended J
to protect … ” (para. 9-04);
K At one time the courts adopted a liberal approach to the K
imposition of civil liability for breach of a statutory duty. This
has been replaced by the ‘construction approach’ whereby the
L L
court seeks to construe the legislation in order to find the
intention of Parliament” (para. 9-12).
M M
N
48. There are many indicia which the court looks to when N
determining whether civil liability has been created by a statute and no
O O
universal rule can be formulated which will answer the question:
P
Charlesworth & Percy on Negligence (2001) 10th Ed., para. 11-12. P
Q Q
49. As can be seen from ss. 45(1)(h) and 46(1), Cap. 232, the
R PGOs were enacted for the purposes of enabling the 2 nd defendant:- R
“to administer the police force”,
S S
and to:-
T T
“render the police force efficient in the discharge of its duties and
for carrying out the objects and provisions of [Cap. 232]”. U
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B
I therefore do not consider that a breach of the PGOs per se confers on a B
citizen, such as the plaintiff, a civil remedy in addition to his common law
C C
rights. For example, a police officer’s mere failure to warn of the intention
D
to use force, or drawing the revolver from his holster in circumstances D
other than as permitted by PGO29-04 cannot by themselves create a civil
E E
liability.
F F
50. As regards the claim that the defendant has breached the PGOs
G G
in having used firearm improperly, likewise I do not consider the PGOs
H have created a civil liability independent of (or in addition to) the common H
law.
I I
J 51. But even if the PGOs were to create any civil liability on J
which a claim in this action can be based, on the evidence accepted by me
K K
(see the paragraphs above), I do not find that the plaintiff has been able to
L establish any breach of the PGOs. L
M M
(c) Negligence
N N
52. The alleged negligence has been pleaded as follows:-
O O
(a) shooting the deceased without prior warning or disclosure of
P
police identity; P
(b) carelessly aiming the revolver at the deceased;
Q Q
(c) failing to ensure that there was a safe distance between himself
R R
and the deceased;
S (d) failing to avoid accidentally shooting the deceased. S
T T
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B
Because I accept the defendant’s testimony (and reject the plaintiff’s
C
evidence), sub-para. (a) to (c) above are not established. C
D D
53. The plaintiff argues that, even if the defendant has been telling
E
the truth about the shooting incident, he was still negligent. After seeking E
clarification from the plaintiff during his final submission, the basis for
F F
such argument is:-
G (1) a tortfeasor owes a duty not to put himself in danger which G
will give rise to a dangerous situation;
H H
(2) a tortfeasor owes a duty to see to it that his action would not
I I
give rise to injury to other people, including someone in the
J position of the deceased. J
K These are in essence a more elaborate way of stating para. 52(d) above. K
L L
54. I disagree with both of the above. The action of a police
M officer who was in execution of his duties, especially in an operation which M
at least potentially carried an element of risk of violence, should not be
N N
judged according to the above tests propounded by the plaintiff. The duties
O of police officers render it necessary for them to make split-second O
decisions when they are engaged in crime detection or prevention
P P
operations. Even if they committed mistakes which are in essence “errors
Q of judgment” (similar those referred to in Jackson & Powell on Q
Professional Negligence (2002) 5th Ed., especially at para. 11-040 and 12-
R R
187), there is no negligence. In this action, I also take into account the
S situation testified to by the defendant was one involving the need for him to S
make decisions within an extremely short time period. His acts therefore
T T
can at most amount to such “error of judgment” only.
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55. In brief, in the circumstances testified to by the defendant, I do B
not find that there was any want of care on his part.
C C
D Conclusion on Liability D
E
56. The plaintiff has failed to establish liability against both E
defendants.
F F
G 57. The claim is accordingly dismissed. G
H H
Quantum of Damages
I I
58. Even if the plaintiff’s testimony be accepted, there is still
J immense problem with regard to quantum of damages on the plaintiff’s part. J
This is because:-
K K
(a) there is no proper evidence of employment (let alone savings).
L
L Hence, the claim on behalf of the deceased’s estate is not made
out; M
M
(b) the plaintiff’s claim that the deceased was a devoted Buddhist
N N
and in all likelihood would have become a monk for the rest of
O his life would mean that the dependence claim has to be O
rejected as well.
P P
Q 59. There is also an absence of documentary evidence (such as Q
receipts) in support of some of the plaintiff’s claims (such as funeral
R R
expenses). I would not have made any award in relation to these claims if
S it had been necessary to consider quantum of damages. S
T T
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Other Matters B
60. The trial bundles prepared by the plaintiff for use at the trial of
C C
this action have been prepared in an unhelpful way. Essentially, the
D documents discovered by the defence in their lists of documents have been D
indiscriminately included. As a result, at the beginning of the trial, there
E E
were more than 10 bundles placed before the court, without any indication
F regarding which of the documents would be relevant. F
G G
61. Further, at the Check List Review hearing before the master,
H the plaintiff did not obtain any directions concerning expert evidence. As a H
result, no leave was given in the plaintiff’s favour in this regard (Ord. 36 r.
I I
36(1)).
J J
62. Notwithstanding that procedural defect, the trial bundles K
K
prepared by the plaintiff contained expert evidence given for the
L L
prosecution in the criminal trial. The defendant objected to the use of such
M
evidence and indicated that, if the court were to give leave for the plaintiff M
to do so, the defendant might have to seek an adjournment to call his own
N N
experts.
O O
63. In the face of such objection and indication, the plaintiff has at
P P
least two options: to seek leave to adduce expert evidence and have the trial
Q adjourned, or to abandon the expert evidence contained in the trial bundle. Q
At the end, the plaintiff chose the latter course.
R R
S 64. I say nothing about whether the outcome of this trial would be S
different if the plaintiff had adduced his expert evidence. I also leave it to
T T
the plaintiff to decide if his legal advisers’ failure to seek leave to adduce
U expert evidence warrants his further action. These are matters which the U
V V
由此
A
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B
plaintiff may want to seek independent legal advice from another firm of B
solicitors.
C C
D
65. In view of my earlier observation about the trial bundles, I am D
of the view that only one-ninth of the costs for preparing the trial bundles is
E E
reasonable. In relation to solicitor-and-own-client costs, this is a case
F where the plaintiff’s solicitors will have to show cause (under Ord. 62 r. F
8(1)(a) and 8(2)) if they wish to charge the plaintiff costs relating to the
G G
trial bundles in excess of that amount.
H H
Costs Order Nisi
I I
66. There is no apparent reason to depart from the usual rule that
J J
costs should follow the event. There will accordingly be a costs order nisi
K pursuant to Ord 42 r 5B(6) that the costs of this action be paid by the K
plaintiff to the defendants to be taxed if not agreed.
L L
M M
N N
O O
P (Andrew Chung) P
Judge of the Court of First Instance
Q
High Court Q
R R
Mr B K Ho, instructed by Messrs Hon & Co., for the Plaintiff
S Mr Ashok K Sakhrani, instructed by Messrs Cheng, Yeung & Co., S
for the 1st Defendant
T T
Ms Eliza Yiu of Secretary for Justice, for the 2 nd Defendant
U U
V V
由此
A A
B B
HCPI 557/2004
C C
IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E E
PERSONAL INJURIES ACTION NO. 557 OF 2004
F ____________ F
G BETWEEN G
LAM KANG, the personal representative Plaintiff
H H
of the estate of LAM CHO KIN, the deceased
I and I
CHOI HOK YIN 1st Defendant
J J
SECRETARY FOR JUSTICE 2nd Defendant
K K
____________
L L
M M
Before: Hon Chung J in Court
N N
Dates of Hearing: 20 to 23 March 2006
O Date of Handing Down Judgment: 6 June 2006 O
P _______________ P
Q
JUDGMENT Q
_______________
R R
S Introduction S
T 1. The plaintiff, the father of the late Lam Cho Kin (“the T
deceased”), commenced this action in June 2004:-
U U
V V
由此
A
-2- A
B
(1) pursuant to the Fatal Accidents Ordinance (Cap. 22), on behalf, B
and for the benefit, of the deceased’s dependents (including
C C
himself);
D (2) pursuant to the Law Amendment and Reform (Consolidation) D
Ordinance (Cap. 23) on behalf, and for the benefit, of the
E E
deceased’s estate.
F F
2. The 1st defendant (“the defendant”) is sued as the primary
G G
nd
tortfeasor whereas the 2 defendant is sued (pursuant to s. 13(1), Crown
H Proceedings Ordinance (Cap. 300)) as acting for the defendant’s employer, H
the Commissioner of Police (pursuant to s. 4(1), Cap. 300).
I I
J J
3. The background facts giving rise to this action will be
summarized below. K
K
L L
Background Facts
M M
4. The defendant was employed by the 2nd defendant as a
N
detective police sergeant. At the relevant time, he was attached to the N
Kowloon West Regional Crime Unit.
O O
P
5. On 26 June 2001, the defendant received information that a P
crime syndicate would return spare parts obtained from a car theft to the
Q Q
victim of the theft incident later on that day in the Kowloon City area.
R R
6. The inspector commanding the team of police officers of
S S
which the defendant was a member organized an operation with a view to
T arresting the criminals involved. Police officers of the team (including the T
defendant) would position themselves in the vicinity of the place where
U U
V V
由此
A
-3- A
B
delivery of the stolen spare parts was expected to take place. The plan was B
arrest action would be taken when the stolen goods were handed over.
C C
D
7. A light goods vehicle (“the suspected vehicle”) appeared at the D
scene at about 10:15 pm. Its driver turned out to be the deceased. Also
E E
inside the suspected vehicle were 2 males, one Mr Leung Kin Chan
F (“Leung”) and one Mr Yim King Hong (“Yim”). F
G G
8. The suspected vehicle stopped in front of a traffic light at the
H junction of Ma Tau Kok Road and Kowloon City Road. The defendant H
emerged from his ambush position and walked along the pedestrian
I I
crossing the front of the suspected vehicle. He then turned and walked
J back. Shortly afterwards, the defendant drew his service revolver and a J
shot was fired. The bullet hit the deceased on the right side of his neck. He
K K
later died as a result of the injury.
L L
9. Bulky stolen vehicle spare parts were found inside the
M M
suspected vehicle. The deceased, Leung and Yim all have previous
N criminal convictions for offences connected with motor vehicles. N
O O
10. Apart from this action, the defendant has faced criminal
P prosecution and disciplinary proceedings as a result of the shooting P
incident. There is no need to go into the details of those earlier proceedings
Q Q
(except insofar as matters therein have been raised in this action (see
R especially under “Evidence Adduced at Trial” below)) suffice it to say, in R
relation to the criminal prosecution, the trial judge ruled that there was no
S S
case to answer and, in relation to the disciplinary proceedings, the charges
T were found not proven. T
U U
V V
由此
A
-4- A
B
Causes of Action B
11. What precisely caused:-
C C
(1) the defendant to draw his service revolver;
D D
(2) the firing of the shot which resulted in the deceased’s death,
E E
are two of the main factual issues in this action.
F F
12. In short, the causes of action pleaded in the statement of claim
G G
are:-
H H
(a) unlawful trespass to the person of the deceased;
I (b) discharge of firearm in breach of the Police General Orders I
(“PGOs”); J
J
(c) negligently discharging firearm.
K K
L L
Evidence Adduced at Trial
M 13. Witnesses’ testimony will be dealt with under the next heading. M
Besides that, the plaintiff adduced the following pieces of evidence, all of
N N
which are hearsay evidence in nature.
O O
14. In assessing the evidence, I have taken into account, among
P P
other things, s. 49(1), Evidence Ordinance (Cap. 8) :-
Q Q
“In estimating the weight, if any, to be given to hearsay evidence
in civil proceedings the court shall have regard to any
R circumstances from which any inference can reasonably be drawn R
as to the reliability or otherwise of the evidence”.
S S
S. 49(2), Cap. 8 stipulates that:-
T “regard may be had, in particular, to the following- T
U U
V V
由此
A
-5- A
(a) whether it would have been reasonable and
B B
practicable for the party by whom the evidence was
adduced to have produced the maker of the original
C statement as a witness; C
(b) whether the original statement was made
D contemporaneously with the occurrence or existence D
of the matters stated;
E E
(c) whether the evidence involves multiple hearsay;
F (d) whether any person involved had any motive to F
conceal or misrepresent matters;
G (e) whether the original statement was an edited account, G
or was made in collaboration with another or for a
particular purpose;
H H
(f) whether the circumstances in which the evidence is
I adduced as hearsay are such as to suggest an attempt I
to prevent proper evaluation of its weight;
J (g) whether or not the evidence adduced by the party is J
consistent with any evidence previously adduced by
the party”.
K K
L 15. The first piece of evidence comes in the form of an extract of L
the testimony of one Ms. Tsui Pui Wan (“Tsui”) given during the criminal
M M
trial. Tsui approached the police quite some time after the shooting
N incident. She told the police she happened to walk pass the scene around N
the time of the shooting incident and heard the shot being fired. She said
O O
she thought at the time there was a flat tire. When she turned her head, she
P P
saw a man (who must be the defendant) standing to the right of the
suspected vehicle outside the driver’s window, pointing a pistol-like object Q
Q
(which was held by both hands) at the window.
R R
16. Because Tsui never claimed to have witnessed the shooting, S
S
the plaintiff adduced the extract of her testimony merely to establish in this
T T
action that the defendant never gave any warning to the deceased before the
U
shot was fired. The prosecutor in the criminal trial also appeared to have U
V V
由此
A
-6- A
B
that matter in mind. There was the following exchange between the trial B
judge and the prosecutor during the no case to answer submission:-
C C
“MR SHAM: And speaking frankly, there’s no evidence of
whether [the defendant] has identified himself as a police officer
D and then he drew his revolver or things like that … D
COURT: Ms Tsui was never asked if she heard it.
E E
MR SHAM: Yes, because she didn’t …
F F
COURT: Well, I’m not saying …
G MR SHAM: She was not asked. Yes. G
COURT: She was not asked.
H H
MR SHAM: She wasn’t asked. I accept that.
I I
COURT: It’s a very difficult situation.
J
… ” (p. 112L-R, transcript of criminal trial). J
K K
17. The appellant courts have often said that findings of fact by the
L
trial courts (especially those based on an assessment of credibility and/or L
reliability of witnesses at trial) should not be lightly interfered with: Hong
M M
Kong Civil Procedure 2006, para. 59/1/48. One of the reasons given for
N
such observation is the disadvantage of not having had the chance of N
observing the witnesses testify: see, for example, Benmax v. Austin Motor
O O
Co. Ltd. [1955] 1 All ER 326, 327; Khoo Sit Hoh v. Lim Thean Tong [1912]
P AC 323, 325; Ting Kwok Keung v. Tam Dick Yuen and Others [2001] 3 P
HKLRD 12.
Q Q
R 18. I suffer from the same disadvantage. A witness’ failure to R
mention something can give rise to at least 3 inferences: the matter did not
S S
happen, the witness has not seen or heard it, or the witness simply was not
T given the chance to mention it. T
U U
V V
由此
A
-7- A
B
19. In relation to Tsui’s testimony, the prosecutor, who was B
present at the criminal trial and the one who led the evidence-in-chief,
C C
basically conceded nothing could be made out of Tsui’s failure to mention
D
if the defendant had declared his identity. In these circumstances, I do not D
consider it proper to draw any inference adverse to the defendant. No
E E
weight should therefore be attached to Tsui’s testimony.
F F
20. The plaintiff also seeks to rely on Tsui’s failure to mention the
G G
suspected vehicle surged forward before the shooting incident. Judging
H from the whole tenure of her testimony (there was a drizzle, she was H
walking hastily and so on), Tsui was quite probably not particularly
I I
attentive to her surroundings. For this additional reason, I also conclude
J that no weight can be attached to this failure. J
K K
21. The next piece of evidence is an extract from the testimony of
L Leung also given in the criminal trial. He said he fell asleep shortly after L
he boarded the suspected vehicle and was awoken by a very loud “bang”
M M
sound. The plaintiff fairly accepted in the skeleton submission that he “was
N probably not in the position to [hear any warning] because he was asleep N
before the bang sound”. No weight can properly be attached to this piece
O O
of evidence.
P P
22. The third piece of evidence is the transcript of the police
Q Q
interview of Yim. According to Yim, he was asked by someone to deliver
R some items to a garage. That person lent the suspected vehicle to Yim. R
After having dinner with the deceased, Yim felt sleepy and so let the
S S
deceased drive the suspected vehicle while Yim took a rest and sat in the
T T
middle seats. The windows of the suspected vehicle were closed, the air
conditioning was switched on and so was the hi-fi but the music was not U
U
V V
由此
A
-8- A
B
loud. Yim heard the sound of a “bang” but he did not hear anyone said B
“don’t move, police” or “stop the vehicle”. It should be noted Yim said a
C C
few times during the interview the deceased began to move the suspected
D
vehicle and someone dashed out from one side of it before the “bang” D
sound.
E E
F 23. Yim’s account was not given under oath. In view of his F
admission that he was the one who was to drive the suspected vehicle to the
G G
place near the police ambush, he appeared to have the closest connection to
H the stolen spare parts among the 3 persons inside the suspected vehicle. H
The account given in the police interview is overly economical in details.
I I
It has the sign of someone trying to say as little as possible to distant
J himself from everything that happened that day. For this reason, I place no J
weight on his account either.
K K
L
L Witnesses’ Testimony
M 24. The following witnesses testified at trial:- M
N
(1) the plaintiff; N
(2) the defendant;
O O
(3) detective senior police inspector Yau, the inspector
P P
commanding the police team;
Q (4) detective police constable 21260. Q
R The witnesses referred to in sub-para. (2) to (4) above were called by the R
defendant. The 2nd defendant did not call any witness to testify.
S S
T T
U U
V V
由此
A
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B
(1) Plaintiff’s Witness B
25. With regret, I do not find the plaintiff to be truthful or reliable.
C C
In short, I agree with the defence that he knew very little about the
D deceased’s life outside. He has no knowledge of the precise identity of the D
deceased’s employer(s) or the deceased’s friends. The deceased was
E E
admittedly seldom at home for his meals.
F F
26. During cross-examination, the plaintiff has to make up various
G G
matters from time to time to conceal his lack of knowledge about the
H deceased’s past life or future plans. He was questioned about the tattoos H
appearing on the deceased’s body to which he claimed that those were
I I
related to the deceased’s devotion to Buddhism. He also claimed that it
J was the deceased’s plan to devote himself to Buddhism by becoming a J
monk. The plaintiff’s story that the deceased used to keep all his savings K
K
from work under his own pillow is inherently implausible.
L L
M
27. Apart from the plaintiff’s lack of knowledge, there was a M
complete absence of documents about the deceased’s employment or
N N
savings.
O O
(2) Defence Witnesses
P P
The Defendant
Q Q
28. The defendant’s testimony about the shooting incident can be
R summarized as follows. R
S S
29. At about 6 pm on 26 June 2001, the defendant was tipped off
T that a car theft syndicate would return to the victim of the theft for a T
ransom spare parts stolen 2 days earlier. The information was related to the U
U
V V
由此
A
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B
inspector shortly later. More detailed information was obtained by the B
defendant by about 8:30 pm. The inspector was again informed.
C C
D
30. Between 8:30 pm and 9:40 pm, the inspector assembled his D
team and organized an ambush operation in the vicinity of Kowloon City
E E
Road and Sung Wong Toi Road.
F F
31. After the police team was in position, the suspected vehicle,
G G
driven by the deceased, appeared at about 10:15 pm. It stopped in front of
H the traffic light controlling Kowloon City Road at its junction with Ma Tau H
Kok Road. The defendant came out from his ambush position and walked
I I
across the front of the suspected vehicle, trying to observe if the stolen
J spare parts were inside. J
K K
32. When the defendant turned back and was about to reach the
L pavement, he noticed that the deceased appeared to have noticed him. The L
deceased also bent down as if to reach for something. The defendant took
M M
out his police warrant card with his left hand. At the same time, he placed
N his right hand on the revolver which was still in the holster. He then heard N
engine revving noise, so he believed the suspected vehicle was about to
O O
dash forward, although the traffic light still showed a red light.
P P
33. The defendant decided to take action to stop the suspected
Q Q
vehicle. He held up the police warrant card and shouted: “police, stop the
R vehicle”. The suspected vehicle surged forward towards him. The R
defendant pulled out his revolver and raised it up. At this juncture, the
S S
suspected vehicle already reached where he was. He felt his right hand
T (which was holding the revolver) was hit by the right door mirror of the T
suspected vehicle and the revolver suddenly fired a shot. The shot broke U
U
V V
由此
A
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B
the window glass of the driver’s door and struck the deceased’s neck. The B
suspected vehicle rolled forward until it hit the iron fence on the left side of
C C
Kowloon City Road.
D D
34. The plaintiff’s criticisms the defendant’s testimony include:-
E E
(a) he never asked the informant whether the culprits were armed,
F showing that he was not concerned with that matter; F
G (b) his distance from the suspected vehicle immediately before the G
shooting was about 8 to 9 feet. This was different from the
H H
distance observed by Tsui;
I (c) he was instructed to lay ambush. There was no valid reason I
for him to walk towards the suspected vehicle. His J
J
explanation that he wanted to find out if there were stolen
K K
spare parts is clearly a fabrication;
L (d) there was no way he could tell if he had alerted the deceased. L
The same applies to the reason why the deceased bent down.
M M
Hence, there was no justification for him to reach for the
N revolver; N
O
(e) pulling out the revolver could not stop the suspected vehicle. O
The reasonable thing for him to do would be to move away
P P
from the suspected vehicle;
Q (f) it was improbable the revolver fired because the defendant’s Q
right hand was hit by the door mirror because, according to
R R
him, his index finger was off the revolver’s trigger;
S S
(g) even if the defendant’s right hand had been hit by the door
T mirror, this would only result in the revolver being turned T
away from the suspected vehicle.
U U
V V
由此
A
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B
35. I believe the defendant’s testimony is truthful and reliable. I B
will not set out the reasons for so deciding as if to answer the plaintiff’s
C C
above criticisms but only state the following.
D D
36. Although some of his actions at the time might not have been
E E
the wisest, and might not have been taken by other police officers in his
F position, I do not find his account to be inherently implausible. Some of F
the actions he took that night has the support of the inspector, for example,
G G
the need to ascertain whether there were stolen spare parts inside the
H suspected vehicle. Some of the matters he mentioned happened in an H
extremely short time and so may not be totally rationally explicable after
I I
the event.
J J
37. One of the most important matters in this action is whether the
K K
shooting was an accident. The defendant’s complaint of pain of his right
L hand, and the medical findings of bruising of his right little finger, shortly L
after the event, supports his account about his right hand being hit by the
M M
door mirror and the shot being fired accidentally as a result.
N N
38. I do not agree that, if the defendant’s right hand had been hit
O O
by the door mirror, the revolver must necessarily have turned away from
P the suspected vehicle. This would only be true if the revolver was held by P
an inflexible object, such as a rod. But a person’s hand has many joints,
Q Q
and when one feels pain, the muscle contraction caused by the pain can
R result in the hand flexing involuntarily and unpredictably. R
S S
T T
U U
V V
由此
A
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B
Other Defence Witnesses B
39. Yau’s testimony generally supports the defendant’s account.
C C
Since he was not present when the shooting occurred, he cannot give direct
D evidence regarding what precisely happened. However, he confirmed that D
the defendant’s act of walking towards the suspected vehicle was not an act
E E
in breach of his instruction. Yau also observed that the defendant’s small
F finger was swollen and red at the scene. F
G G
40. The detective police constable’s testimony also confirms the
H suspected vehicle surged forward, followed by someone shouting: “police, H
stop” and then the shot being fired.
I I
J J
41. I find the defence witnesses to be truthful and reliable.
K K
Causes of Action / Findings of Fact
L L
(a) Unlawful Trespass to the Person
M M
42. The tort of trespass can be established if the plaintiff can show
N that the defendant’s act of assault (which the shooting clear was) was done N
intentionally or negligently: Clerk & Lindsell on Tort (2006) 19th Ed., Ch.
O O
15, especially para. 15-04 to 15-07.
P P
43. For the sake of clarity, assault by negligence will be dealt with
Q Q
below. The discussion under this heading is confined to intentional assault.
R R
44. With the rejection of the plaintiff’s evidence, and the
S S
acceptance of the defendant’s account, there is simply insufficient evidence
T to prove this tort. T
U U
V V
由此
A
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B
(b) Breach of PGOs B
45. The PGOs relied upon are:-
C C
“A police officer … shall not resort to the use of force unless
D
such action is strictly necessary and he is otherwise unable to D
effect his lawful purpose.
E Police officers shall identify themselves as such and, when E
circumstances permit, a warning shall be given of the intention to
use force and of the nature and degree of force which it is
F F
intended to use …
… only the minimum force necessary to achieve the purpose may G
G
be used … The force used must be reasonable in the
circumstances” (29-01).
H H
“A police officer may discharge a firearm … to protect any
person, including himself, from death or serious bodily
I
I injury … ” (29-03 para. 2).
“A police officer may draw a revolver from its holster, or present J
J
a firearm (pointing or aiming) as a precautionary measure if he
considers he may be justified in using it in accordance with …
K 29-03 paragraph 2” (29-04 para. 1). K
L L
M 46. First, I do not find that the PGOs create a civil liability in the M
plaintiff’s favour. The power to make PGOs is vested in the 2nd defendant
N N
by s. 46(1), Police Force Ordinance (Cap. 232) which provides:-
O O
“… the Commissioner may from time to time make such orders
as he thinks expedient to enable him to administer the police
P force, render the police force efficient in the discharge of its P
duties and for carrying out the objects and provisions of this
Ordinance, and in addition, such orders may provide for any of
Q the matters specified in section 45” (emphasis supplied). Q
R It appears only s. 45(1)(h), Cap. 232 is relevant for present purpose:- R
“The Chief Executive in Council may make such regulations … S
S
Such regulations in addition to the powers hereinbefore conferred
may prescribe or provide for … such other matters as may be
T necessary and expedient for preventing abuse or neglect of duty, T
and for rendering the police force efficient in the discharge of its
U U
V V
由此
A
- 15 - A
duties, and for carrying out the objects of this Ordinance”
B B
(emphasis supplied).
C C
47. Clerk & Lindsell says the following in relation to liability
D D
arising from the breach of statutory duties:-
E “Some statutes are expressly designed to create new civil E
remedies, and others are intended to modify or clarify existing
common law rights of action. Equally, there are some statutes
F which create criminal sanctions but which state expressly that F
they do not confer any civil remedy, and some may create both
criminal and civil remedies. Unfortunately, most legislation fails G
G
to give any express guidance as to whether an action for damages
is available for its breach, and then the courts have to decide what
H Parliament intended” (para. 9-02); H
“… The claimant must show that the damage he suffered falls
I I
within the ambit of the statute, namely that it was of the type that
the legislation was intended to prevent and that the claimant
J belonged to the category of persons that the statute was intended J
to protect … ” (para. 9-04);
K At one time the courts adopted a liberal approach to the K
imposition of civil liability for breach of a statutory duty. This
has been replaced by the ‘construction approach’ whereby the
L L
court seeks to construe the legislation in order to find the
intention of Parliament” (para. 9-12).
M M
N
48. There are many indicia which the court looks to when N
determining whether civil liability has been created by a statute and no
O O
universal rule can be formulated which will answer the question:
P
Charlesworth & Percy on Negligence (2001) 10th Ed., para. 11-12. P
Q Q
49. As can be seen from ss. 45(1)(h) and 46(1), Cap. 232, the
R PGOs were enacted for the purposes of enabling the 2 nd defendant:- R
“to administer the police force”,
S S
and to:-
T T
“render the police force efficient in the discharge of its duties and
for carrying out the objects and provisions of [Cap. 232]”. U
U
V V
由此
A
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B
I therefore do not consider that a breach of the PGOs per se confers on a B
citizen, such as the plaintiff, a civil remedy in addition to his common law
C C
rights. For example, a police officer’s mere failure to warn of the intention
D
to use force, or drawing the revolver from his holster in circumstances D
other than as permitted by PGO29-04 cannot by themselves create a civil
E E
liability.
F F
50. As regards the claim that the defendant has breached the PGOs
G G
in having used firearm improperly, likewise I do not consider the PGOs
H have created a civil liability independent of (or in addition to) the common H
law.
I I
J 51. But even if the PGOs were to create any civil liability on J
which a claim in this action can be based, on the evidence accepted by me
K K
(see the paragraphs above), I do not find that the plaintiff has been able to
L establish any breach of the PGOs. L
M M
(c) Negligence
N N
52. The alleged negligence has been pleaded as follows:-
O O
(a) shooting the deceased without prior warning or disclosure of
P
police identity; P
(b) carelessly aiming the revolver at the deceased;
Q Q
(c) failing to ensure that there was a safe distance between himself
R R
and the deceased;
S (d) failing to avoid accidentally shooting the deceased. S
T T
U U
V V
由此
A
- 17 - A
B
B
Because I accept the defendant’s testimony (and reject the plaintiff’s
C
evidence), sub-para. (a) to (c) above are not established. C
D D
53. The plaintiff argues that, even if the defendant has been telling
E
the truth about the shooting incident, he was still negligent. After seeking E
clarification from the plaintiff during his final submission, the basis for
F F
such argument is:-
G (1) a tortfeasor owes a duty not to put himself in danger which G
will give rise to a dangerous situation;
H H
(2) a tortfeasor owes a duty to see to it that his action would not
I I
give rise to injury to other people, including someone in the
J position of the deceased. J
K These are in essence a more elaborate way of stating para. 52(d) above. K
L L
54. I disagree with both of the above. The action of a police
M officer who was in execution of his duties, especially in an operation which M
at least potentially carried an element of risk of violence, should not be
N N
judged according to the above tests propounded by the plaintiff. The duties
O of police officers render it necessary for them to make split-second O
decisions when they are engaged in crime detection or prevention
P P
operations. Even if they committed mistakes which are in essence “errors
Q of judgment” (similar those referred to in Jackson & Powell on Q
Professional Negligence (2002) 5th Ed., especially at para. 11-040 and 12-
R R
187), there is no negligence. In this action, I also take into account the
S situation testified to by the defendant was one involving the need for him to S
make decisions within an extremely short time period. His acts therefore
T T
can at most amount to such “error of judgment” only.
U U
V V
由此
A
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B
55. In brief, in the circumstances testified to by the defendant, I do B
not find that there was any want of care on his part.
C C
D Conclusion on Liability D
E
56. The plaintiff has failed to establish liability against both E
defendants.
F F
G 57. The claim is accordingly dismissed. G
H H
Quantum of Damages
I I
58. Even if the plaintiff’s testimony be accepted, there is still
J immense problem with regard to quantum of damages on the plaintiff’s part. J
This is because:-
K K
(a) there is no proper evidence of employment (let alone savings).
L
L Hence, the claim on behalf of the deceased’s estate is not made
out; M
M
(b) the plaintiff’s claim that the deceased was a devoted Buddhist
N N
and in all likelihood would have become a monk for the rest of
O his life would mean that the dependence claim has to be O
rejected as well.
P P
Q 59. There is also an absence of documentary evidence (such as Q
receipts) in support of some of the plaintiff’s claims (such as funeral
R R
expenses). I would not have made any award in relation to these claims if
S it had been necessary to consider quantum of damages. S
T T
U U
V V
由此
A
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B
Other Matters B
60. The trial bundles prepared by the plaintiff for use at the trial of
C C
this action have been prepared in an unhelpful way. Essentially, the
D documents discovered by the defence in their lists of documents have been D
indiscriminately included. As a result, at the beginning of the trial, there
E E
were more than 10 bundles placed before the court, without any indication
F regarding which of the documents would be relevant. F
G G
61. Further, at the Check List Review hearing before the master,
H the plaintiff did not obtain any directions concerning expert evidence. As a H
result, no leave was given in the plaintiff’s favour in this regard (Ord. 36 r.
I I
36(1)).
J J
62. Notwithstanding that procedural defect, the trial bundles K
K
prepared by the plaintiff contained expert evidence given for the
L L
prosecution in the criminal trial. The defendant objected to the use of such
M
evidence and indicated that, if the court were to give leave for the plaintiff M
to do so, the defendant might have to seek an adjournment to call his own
N N
experts.
O O
63. In the face of such objection and indication, the plaintiff has at
P P
least two options: to seek leave to adduce expert evidence and have the trial
Q adjourned, or to abandon the expert evidence contained in the trial bundle. Q
At the end, the plaintiff chose the latter course.
R R
S 64. I say nothing about whether the outcome of this trial would be S
different if the plaintiff had adduced his expert evidence. I also leave it to
T T
the plaintiff to decide if his legal advisers’ failure to seek leave to adduce
U expert evidence warrants his further action. These are matters which the U
V V
由此
A
- 20 - A
B
plaintiff may want to seek independent legal advice from another firm of B
solicitors.
C C
D
65. In view of my earlier observation about the trial bundles, I am D
of the view that only one-ninth of the costs for preparing the trial bundles is
E E
reasonable. In relation to solicitor-and-own-client costs, this is a case
F where the plaintiff’s solicitors will have to show cause (under Ord. 62 r. F
8(1)(a) and 8(2)) if they wish to charge the plaintiff costs relating to the
G G
trial bundles in excess of that amount.
H H
Costs Order Nisi
I I
66. There is no apparent reason to depart from the usual rule that
J J
costs should follow the event. There will accordingly be a costs order nisi
K pursuant to Ord 42 r 5B(6) that the costs of this action be paid by the K
plaintiff to the defendants to be taxed if not agreed.
L L
M M
N N
O O
P (Andrew Chung) P
Judge of the Court of First Instance
Q
High Court Q
R R
Mr B K Ho, instructed by Messrs Hon & Co., for the Plaintiff
S Mr Ashok K Sakhrani, instructed by Messrs Cheng, Yeung & Co., S
for the 1st Defendant
T T
Ms Eliza Yiu of Secretary for Justice, for the 2 nd Defendant
U U
V V
HCPI557/2004 LAM KANG v. CHOI HOK YIN AND ANOTHER - LawHero