Lee Sze Man (Sue By Ching Kwong Ming Her Mother and Next Friend) v. Cheung Kin Wah and Others
Read the full judgment text of DCPI 648/2018 on BabelCite. This District Court judgment was delivered on 25 March 2024.
4. Evidence relied on by P (Issues 1 and 3)
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DCPI 648/2018 [2024] HKDC 458 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 648 OF 2018 ------------------------ BETWEEN
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------------------------ JUDGMENT ------------------------ 1.Introduction 1.1.The Plaintiff (“P”) is a mentally incapacitated person within the meaning of the Mental Health Ordinance Cap 136. These proceedings are brought by P’s mother, Madam Ching Kwong Ming (“Madam Ching”). 1.2.From 2005 to 11 August 2014, P was a resident at Bridge Rehabilitation Company (康橋之家), a privately-run residential care home located at 2-3/F, Man Shing Mansion, 109-113 Wong Tong Tsui Street, Kwai Chung, New Territories (“Care Home”). By reason of the Alleged Incident on 10 August 2014 (as defined below), P moved out of the Care Home on 11 August 2014. 1.3.As shown in a Certificate of Exemption of Residential Care Home for Person with Disabilities dated 1 April 2014 (“Certificate of Exemption”), the 2nd Defendant (“D2”) was authorized to operate, keep, manage or otherwise have control of the Care Home. 1.4.The evidence shows that the 1st Defendant (“D1”) was one of the founders of the Care Home in the late 1990s, and in mid 2012, the 3rd Defendant (“D3”) became the majority shareholder of D2. There are various commercial disputes between D1 and D3 (and related parties) which are litigated in other court actions, but it is unnecessary to canvass the details of such disputes, as they are largely not germane to the resolution of the disputes in these proceedings. What is relevant for present purposes is that according to an Annual Return of D2 refiled on 24 August 2015, as at 28 July 2014, its shareholders were D1 (holding 3,000 of 9,000 shares) and D3 (holding the remainder of the issued shares) and the directors were D1, Messrs Lee Wang Hin (“Lee Senior”), Chow Ho Yan and Du Chuan Qing. 1.5.In addition to being a director of D2, it is also common ground that at the time of the Alleged Incident, D1 was the warden (院長) of the Care Home and a registered social worker. 1.6.On 10 August 2014, Madam Ching visited P at the Care Home at around 6:30 pm and, as detailed further below, discovered that D1 had allegedly sexually assaulted P earlier that day (“Alleged Incident”). On the following day, Madam Ching and one of P’s younger sisters, Ms Lee Sze Ting (“Sze Ting”), took P away from the Care Home and they together reported the matter to the police. 1.7.D1 was arrested by the police in the afternoon of 11 August 2014 at the Care Home. He was initially charged for indecent assault, which charge was later amended to a charge of unlawful sexual intercourse with a mentally incapacitated person, contrary to section 125(1) of the Crimes Ordinance Cap 200 (DCCC 923/2014). D1 was first brought before the District Court on 18 November 2014. After a number of adjournments, on 17 May 2016, the prosecution decided to drop the charge against D1, on the basis that P was mentally unfit to attend trial to be cross-examined. 1.8.Following D1’s arrest:
1.9.In these proceedings, P seeks to recover loss and damage arising from the psychiatric injuries sustained by reason of the Alleged Incident (“Main Action”). D2 and D3 also issued Contribution Notices against D1 (“Contribution Proceedings”). By the order made by Master Catherine Cheng on 9 July 2021, it was directed that the Main Action and the Contribution Proceedings be tried together. 1.10.At the trial, P was represented by Ms Josephine Tjia and D2 and D3 by Mr Henry Leung, both of counsel. D1 has throughout acted in person. As D1 is visually-impaired, arrangements were made at the trial to address the impairment, including facilities to enlarge documents for D1’s benefit. 2.Issues for determination 2.1.During the trial, a settlement in respect of P’s claim against D3 was reached (and approved under RDC Order 80) and it was further agreed that D3’s claim for contribution be dismissed with costs to D1. What therefore remain are the disputes between P, D1 and D2. 2.2.As between P and D2, Ms Tjia and Mr Leung were able to compile the following agreed list of issues.
2.3.As far as D1 is concerned, there was no agreed formulation of the issues to be determined. The written closing submissions lodged by D1 were primarily directed at the liability issue in the Main Action (ie disputing the Alleged Incident). In the foregoing regard, he made an impassioned plea that since DCCC 923/2014 had been dropped against him, it is improper and unfair for the present serious allegations made against him to be determined in a civil case, especially in the circumstances where the serious allegations are based on the evidence of a person with mental deficiencies. He also stated that in complaints involving sexual assaults, the alleged perpetrator is often by perception put in a disadvantageous position and emphasized that the court must be vigilant to the lack of cogency in the evidence against him and the possibility that the present action is motivated by greed. 2.4.Stripped to their essentials, the submissions advanced by D1 identify issues which are largely similar to Issues (1) and (3); although I can appreciate that, as a lay person, D1 would (erroneously) (1) have a grievance that he should face trial again (now in the context of civil claim) and (2) hold the view that the case against him ought to be proved beyond reasonable doubt. 2.5.In respect of the Contribution Proceedings, D2’s position is that D1 should be apportioned 80% of the blame. D1 submitted in oral closing that D2 should bear the bulk of the responsibility (2/3) as D2 was his employer. 3.The evidence 3.1.In terms of factual witnesses, P called Madam Ching and Sze Ting, D1 himself gave evidence, and D2 called Mr Li Wing Yiu (“Mr Li”), Lee Senior’s son[3]. 3.2.P also relied on the following evidence:
3.3.In terms of medical evidence:
3.4.D1 had expressly elected not to adduce any medical evidence (order dated 5 June 2019 §11). On 2 January 2020, the court directed that should any of the Defendants require the attendance of Dr Hung at the trial, they should inform P’s solicitors in writing on or before 25 February 2020 the issues on which they wished to cross-examine Dr Hung. D2 (and D3) did not do so, and eventually, the order dispensing with Dr Hung’s attendance at the trial was made on 10 June 2021, following an earlier dismissal of an application by D1 to call Dr Hung to testify at the trial (order dated 22 December 2020). I set out the foregoing chronology because, as will be canvassed below, D1 and D2 at the trial challenged the reliability of the Joint Medical Report. 3.5.I propose to first deal with Issues 1 and 3 (ie whether D1 had sexually assaulted P and whether the assault caused the psychiatric injuries suffered by P). I will then consider Issues 2 and 4 (ie whether D2 should be held liable either for its own breach of duty or on the basis of vicarious liability and the Quantum Issues). 4.Evidence relied on by P (Issues 1 and 3) 4.1.Madam Ching and Sze Ting do not have firsthand knowledge of the Alleged Incident and they sought to relay what they heard or learnt from P. I agree with Mr Leung’s characterization of them, namely both of them are honest witnesses, but the main focus of the court should be on the admissibility, cogency and reliability of P’s evidence (now adduced by way of hearsay). 4.2.The matters set out in this section, unless noted otherwise, are undisputed or indisputable. 4.3.Madam Ching married her husband in Hong Kong in 1990 but she only permanently moved from the Mainland to Hong Kong in 1995. Madam Ching and her husband have 3 daughters. P and Sze Ting are the eldest and second daughters. Madam Ching’s husband passed away in 2011. 4.4.P was born on 2 October 1992 in Hong Kong but was raised in the Mainland. Unfortunately, when P was only 8 months’ old, she suffered from meningitis and complications of post-meningitis hydrocephaly with epilepsy. She was thereafter found to have developmental delay and diagnosed to have moderate grade mental retardation. P followed Madam Ching and moved to Hong Kong in 1995. 4.5.In 2002, 2004 and 2005, P had 3 psychiatric admissions to a hospital due to behavioural problems. Prior to 2005, Madam Ching had placed P at the Care Home on an intermittent basis, but such stays did not last long because Madam Ching always missed P. During such intermittent stays, Madam Ching met 何雯珊姑娘 (“Nurse Leung”) at the Care Home. Madam Ching had regarded Nurse Leung to have taken extremely good care of P during the intermittent stays. 4.6.The Care Home occupied two floors. The lower floor housed female residents and the upper floor male residents. The warden’s office was on the lower floor and its door was made of sandblast glass and therefore opaque (“Office”). 4.7.Following P’s discharge from her psychiatric admission in 2005, Madam Ching decided to place P (at that time aged 13) at the Care Home on a more permanent basis. When P became a resident of the Care Home in 2005, the position of warden of the Care Home was held by Nurse Leung. Nurse Leung had a very close relationship with P and had designated a dedicated desk for P to indulge in her favourite hobbies, which were writing and playing with a calculator (“Dedicated Desk”). It is common ground that P’s behaviour problems improved after she was placed in the Care Home on a more permanent basis[6]. 4.8.When P turned 18 years old, P started to work at a sheltered workshop at the Mei Tin Integrated Rehabilitation Services Centre operated by Wai Ji Christian Service (“Mei Tin Centre”). 4.9.Nurse Leung left the Care Home in 2012, and thereafter, the position of warden was taken over by D1. 4.10.Around 2 weeks before the Alleged Incident, Madam Ching visited P at the Care Home. On that occasion, P had a tantrum and threw a bowl from the Care Home onto the street (“July Incident”). According to Madam Ching, P wanted to go home with her but Madam Ching explained to P that circumstances did not permit that to happen. 4.11.On the day of the Alleged Incident at around 10 or 11 am, Madam Ching called the Care Home and spoke to D1. Madam Ching told D1 that she would visit P later that day. 4.12.The CCTV Record simultaneously shows 4 locations of the Care Home. According to the CCTV Record, on the day of the Alleged Incident:
4.13.In other words, P was inside the Office with D1 with the door closed for about 3 minutes (between 12:41:49 to 12:44:52 hrs) (“Relevant Period”). What happened inside the Office during the Relevant Period is the core dispute between the parties. It is P’s case that the Alleged Incident happened during the Relevant Period. For the first time at the trial, D1 gave a detailed account of what happened during the Relevant Period. D2 essentially put P to strict proof. 4.14.Item 155(1) is slightly over 1 minute long and therefore is not a video of the entirety of Relevant Period. It is plain that it captured the latter part of the Relevant Period, as the end of Item 155(1) shows that P was about to push open the door of the Office. As the door of the Office was made of sandblast glass, Item 155(1) gives a blurry view of what was happening inside the Office, but in any event, the postures and movements of the persons inside the office can readily be discerned. Item 155(1) shows as follows:
4.15.What is shown in the CCTV Record and Item 155(1) was subject to cross-examination at the trial. However, the court is in position to observe for itself their contents. The observations set out above are my own. 4.16.At around 3 pm, Kitty showed Item 155(1) to Ms Kwan. In her police statement, Ms Kwan explained that as D1 had already left the Care Home and she was then pre-occupied by other tasks, she did not immediately make any enquiries, whether with D1 or P. 4.17.At around 6:30 pm, Madam Ching arrived at the Care Home with the food she prepared for P’s dinner. At that time, P was seated at the Designated Desk and P greeted Madam Ching warmly. 4.18.However, after having consumed some of her dinner, P refused to eat anymore. She ran out to the flat roof and started crying. Madam Ching chased after P to show her concern, upon which P yelled at Madam Ching loudly and asked her to leave (你快啲走啦，你死啦，你唔好理我！). Madam Ching tried to console P but to no avail. 4.19.Madam Ching then went back inside the Care Home to cover the leftover food so that P could continue to eat after she had calmed back down. Kitty then approached Madam Ching and asked Madam Ching and an employee of the Care Home (辛姐) to follow her to the lift lobby where Kitty showed Item 155(1) to Madam Ching and 辛姐. 4.20.Upon watching Item 155(1), Madam Ching on the one hand became incensed but on the other felt helpless. Madam Ching then looked for P and found that P was already seated at the Designated Desk. Madam Ching’s evidence on what then transpired was follows:
4.21.The effect of P’s answers is that during the Relevant Period, D1 took out his penis and used it to touch P’s genital area. 4.22.Madam Ching then tried to contact others (including Sze Ting and a social worker at Mei Tin Centre) for assistance but was unable to reach any of them. She left a message for the social worker at Mei Tin Centre and left the Care Home. 4.23.Upon reaching home, Madam Ching told her other two daughters about the Alleged Incident and they both told Madam Ching to report the matter to the police. Given that P was still at the Care Home, Madam Ching decided not to do so that night. 4.24.A social worker at Mei Tin Centre called Madam Ching the next morning. The social worker advised Madam Ching that she should fetch P from the Care Home, on the pretense that she was taking P out for a meal, and then go to the police station. 4.25.In the meantime, at around 10 am at the Care Home, Ms Kwan asked Kitty and P to go to the Office. What transpired can been seen from Item 155(2), which is about 4 minutes long:
4.26.Ms Kwan did not immediately take action after the interview and continued to go about her own tasks. In the video, P’s attitude was playful and throughout did not appear to be stressed, anxious or sad. Again, the foregoing are my own observations. 4.27.Madam Ching and Sze Ting then arrived at the Care Home and left with P. Before they reached the police station, D1 called Madam Ching and asked her not to listen to others and denied what was said about him (唔好聽人亂講，冇呢啲事). D1 found out about Item 155(1) because Kitty was showing it to others at the Care Home and he also learned from Ms Kwan that she had interviewed P earlier. 4.28.Madam Ching, Sze Ting and P reported the matter to the police. They and the police returned to the Care Home at around 1:45 pm and D1 was arrested at around 2:35 pm. 4.29.P was taken to Princess Margaret Hospital for examination and was found to be clear and calm. In fact, the medical examination was carried out on P’s own consent. The doctor was of the view that the presence of an intact hymen with a vaginal opening that could only admit tips of two fingers tightly indicated that full penetration of penis beyond the vaginal opening was unlikely to have occurred. On the other hand, the absence of injuries to the private parts did not rule out the occurrence of digital penetration of private parts or the rubbing of penis against the external genitalia. 4.30.P was discharged the next day (12 August 2014). Her family decided to place her at Mei Tin Centre and she continued to work at the sheltered workshop. 4.31.During the police investigation:
4.32.I have viewed the 15/8 Video Interview (which commenced at 10:30 am and concluded at 11:35 am) and read the transcript. I agree with Mr Leung’s observations that the answers given by P were at times contradictory and difficult to understand and do not appear to relate to the Alleged incident in terms of, for example, location[7] and timing[8]. D1 also has a valid point, in that the descriptions by P indicate that she was positioned on top of D1 on a bed and there was penetration of penis beyond the vaginal opening which is inconsistent with the medical findings (§4.29 above)[9]. It cannot be seriously disputed that there was no bed inside the Office at the time of the Alleged Incident. Importantly, I note that during the 15/8 Video Interview, Ms Lee (with no criticism on my part) had on occasions guided P in the process. For example, when P said that she had her trousers on, Ms Lee continued to ask questions, apparently for the purpose of seeking to elicit a different answer[10]. 4.33.According to the Forensic Report:
4.34.P’s condition thereafter started to deteriorate. On 22 September 2014, she threw a tantrum and bit a co-resident when she was stopped from throwing excessive tissues in the toilet. P was admitted to the Kwai Chung Hospital and was not discharged until 7 December 2015. Thereafter, P briefly stayed at Wellness Manor of the Neighbourhood Advice-Action Council and was eventually transferred to Po Leung Kuk Sham Shui Po Integrated Rehabilitation Centre. 4.35.According to the Joint Medical Report, Dr Hung is of the opinion that P suffers from Posttraumatic Stress Disorder (“PTSD”) and Schizophreniform Disorder (“SD”) which were not present before the Alleged Incident. 5.D1’s evidence (on Issues 1 and 3) 5.1.D1’s evidence as to what happened in the Office during the Relevant Period was as follows.
5.2.As regards the Forensic Report, for the first time at the trial, D1 said that he had masturbated in the male staff quarters on the upper floor on Friday or Saturday (10 August 2014 was a Sunday) and had told the driver at the Care Home about it on Saturday. The driver lived in the Care Home and it was suggested that the driver had placed the tissue paper D1 used after his masturbation in the male staff quarters into the rubbish bin inside the Office. He said that he was framed, as (1) there was no reason why the rubbish bin inside the Office had not been cleared between 10 to 13 August 2014, (2) Kitty would not have the financial resources to buy a phone with video recording, and (3) someone had directed P to make a false complaint against him. He suggested that the conclusions in the Forensic Report can be explained by P having coughed, sneezed, or salivated. 6.Factual findings (Issue 1 and 3) 6.1.Although the matters set out at section 4 above, except where noted, are undisputed or indisputable, there are 3 evidential issues raised by D1 and D2 which require my determination. 6.2.First, although what P had said (1) to Madam Ching on the evening of the 10 August 2014, (2) on 11 August 2014 to Ms Kwan as recorded in Item 155(2) and (3) during the 15/8 Video Interview are not challenged (“3 Hearsay Occasions”), D1 and D2 question their admissibility (without prejudice to any further argument on their weight). 6.3.Secondly, in terms of the Forensic Report, D2 argues that it is inadmissible expert evidence, as no leave to adduce such had been obtained. 6.4.Thirdly, although leave was granted for the Joint Medical Report to be adduced without calling Dr Hung, D1 and D2 both say that it is unreliable for a number of different reasons. 6.5.I now deal with the above 3 issues. (a) Admissibility of P’s evidence 6.6.Section 50 of the Evidence Ordinance Cap 8 (“EO”) provides:
6.7.Section 3 of the EO provides:
6.8.Both Ms Tjia and Mr Leung referred to Daimler AG v Helge Herbert Leiduck [2021] HKCA 328. I agree with Mr Leung that that decision is an authority for the proposition that the burden of establishing the facts rendering hearsay admissible is always borne by the party tendering the evidence: Daimler AG §§43-45. 6.9.Irrespective of the burden of proof, it seems to me that the medical evidence does not show that P was not competent as a witness within the meaning of sections 3(b), 50(1)(b) and (4) of the EO at the time of the 3 Hearsay Occasions. As pointed out by Ms Tjia, not all persons suffering from mental incapacity are not competent as a witness. A person of unsound mind is only incompetent if he appears incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly. 6.10.As stated in the Joint Medical Report (§§15.9 to 15.16), P only started to suffer from PTSD and SD from September 2014 onwards, which was after the 3 Hearsay Occasions in mid-August 2014. Prior to September 2014 (§§15.5 to 15.8), she was diagnosed with moderate mental retardation with a mental age of 6 to 9 years old. As stated at Daimler AG §26, the previous section 3(a) of the EO, which provided that children under 7 years of age was incompetent to give evidence, unless they appear capable of receiving just impressions of the facts respecting which they are examined and of relating them truly, had been repealed. 6.11.Unlike cases where the hearsay evidence is contained in a written statement, I have the opportunity to view P’s contemporaneous condition as recorded in Item 155(2) and the 15/8 Video Interview in the light of the medical evidence. I agree with Ms Tjia. P’s behaviour was generally consistent with young child, in that whilst she at times perhaps was inattentive, had difficulties in articulating herself or was even playful, I am far from being satisfied that she was incapable to receiving just impressions of the facts respecting they were examined or of relating them truly. 6.12.Although I am not prepared to hold that P’s evidence is inadmissible by reason of sections 50(1) and (4) of the EO, I still need to decide the weight to be attached. As set out in Lau Kwai Ping Joyce v Fulland International Limited [2020] HKCFI 1501 §§60-62, in assessing the weight of hearsay evidence, considerations should be given to sections 49(1) and (2) of the EO and the totality of the evidence, and it is appropriate to assess hearsay statement against other factual/expert evidence before accepting any aspect(s) thereof. 6.13.In the present case, it seems to me that the 3 Hearsay Occasions should be assessed separately. Whilst the foregoing exercise is detailed below, I can state now that I am not prepared to attach any weight to Item 155(2) and the 15/8 Video Interview. (b) Admissibility of the Forensic Report 6.14.The issue of the admissibility of the Forensic Report generated much debate between Ms Tjia and Mr Leung and I must confess the controversy was as a result of my query made during the trial, arising from the fact that P did not apply for leave to adduce the Forensic Report as expert evidence. The admissibility of the Forensic Report was not a point taken by D2 in opening, but as a result of my query, Mr Leung took the position that the Forensic Report, in so far as it contains expert opinion, is not admissible. He however accepted that the Forensic Report could be considered as a piece of factual evidence, namely that, as a matter of fact, Mr Lam had received the relevant samples, carried out the DNA extraction test and come to the conclusions as stated therein. 6.15.For the following reasons, I disagree with Mr Leung. Having reflected on the matter, it now seems to me that my query had raised the controversy unnecessarily. 6.16.First, as set out at MG Charter Ltd v Beijing Caisa International Service Co Ltd [2019] HKCFI 2800 §3, a factual witness who possesses professional expertise may proffer opinion evidence provided that such opinion evidence (1) reasonably relates to facts within his or her personal knowledge; and (2) is based on his own experience and expertise. 6.17.MG Charter §7 cites Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No 6) [2008] EWHC 2220 (TCC) (29 September 2008) §§665 to 672. At Multiplex §§670-672, Jackson J (as he then was) said:
6.18.Secondly and perhaps more fundamentally, one needs to examine the parties’ pleadings. 6.19.Amended Statement of Claim §9(i) pleads as follows:
6.20.D2’s Defence §16 only pleads a non-admission. As stated at Hong Kong Civil Procedure 2024 Note 18/13/5, a party who does not admit an allegation is simply putting the alleging party to proof in respect of the allegation but does not set up a positive case that the allegation is false. 6.21.In the present case, P filed a hearsay notice on 19 April 2019 in respect of a host of documents including the Forensic Report and various police statements setting out the “chain of evidence”. D2 has throughout not filed any counter-notice. Even having had sight of the Forensic Report, D2 did not amend its Defence to take issue with the Forensic Report, for example, to contest the conclusion stated therein. It is therefore questionable whether an expert issue has been raised at all. In the light of D2’s non-admission, P adduced the Forensic Report to prove the factual matters alleged Amended Statement of Claim §9(i), to which D2 did not challenge. That should be the end of the matter. 6.22.In the foregoing regard, I further note the provisions of section 25 of the EO. Section 25 of the EO provides as follows:
6.23.Although I accept that the Forensic Report is not in the form of a Form 1 set out in the Schedule of the EO, all the essential ingredients as required in a Form 1 are substantially complied with. I make reference to section 25 not a basis to justify the admissibility of the Forensic Report, but for the point that findings by Government Chemist (which Mr Lam was one) are presumed to be accurate. 6.24.In the present case, Mr Leung has not offered any reason to doubt the conclusion reached in the Forensic Report. I find that the Forensic Report is admissible, and I attach full weight to it. (c) Reliability of the Joint Medical Report 6.25.D1 says that the Joint Medical Report is unreliable, as the factual account contained therein came from Madam Ching and she had left out essential details, for example the July Incident. D1 also challenges the conclusion in the Joint Medical Report, as P was recorded by another doctor to be in stable mental state on 21 August and 4 September 2014, well after the Alleged Incident. 6.26.D1 and D2 both say that the basis of the Joint Medical Report is premised upon P having been repeatedly assaulted sexually (Joint Medical Report §9). They therefore attack the reliability of the Joint Medical Report on the basis that it does not mention whether P’s PTSD and SD could be caused by a single incident of sexual assault. 6.27.I have already set out at §3.4 above the chronology of the orders made by the court in respect of the Joint Medical Report. Especially in the case of D2, it is entirely unsatisfactory that, despite given the opportunity to do so, it did not provide any reason as to why Dr Hung should attend the trial and yet now challenges the reliability of the Joint Medical Report. 6.28.In any event, I am of the view that none of the objections put forward by D1 and D2 to challenge the reliability of the Joint Medical Report is meritorious. It is important to note the crux of Dr Hung’s opinion set out in the Joint Medical Report.
6.29.As regards D1’s point that the Joint Medical Report has omitted to consider relevant factual matters, D1 must first establish the existence of any such relevant factual matters. It is important to note D1 (and D2) do not challenge (and in any event that there is no contrary medical evidence to challenge) Dr Hung’s opinion that it was unlikely For P to have developed SD and PTSD in the absence of a traumatic event or traumatic events (§6.28(4) above). In cross-examination, D1 did not seek to establish with Madam Ching (or Sze Ting) that at the material time there were any other traumatic events which happened to P. In cross-examination, D1 also did not take Madam Ching to any part of the Joint Medical Report (for example section 10 thereof which set out the information Madam Ching provided to Dr Hung) to challenge either accuracy or completeness. 6.30.As regards D1’s point that Dr Hung failed to consider the fact that P was seen as mentally stable on 21 August and 4 September 2014, it is true that no express mention of the foregoing is made in the Joint Medical Report. However, Dr Hung at Joint Medical Report §14.1 expressly stated that he had reviewed the documents and only information which was relevant to the psychiatric condition would be summarized. Unless there is any medical evidence (and there is none) to show that PTSD and SD ought to have surfaced almost immediately after a traumatic event, I am in no position to gainsay Dr Hung’s opinion on the irrelevance of the fact that P was seen to be in mental state on 21 August and 4 September 2014. There is simply no contrary evidence to challenge Dr Hung’s opinion set out at §15.19 of the Joint Medical Report (referred to at §6.28 above). 6.31.As regards the point taken by D1 and D2 that Dr Hung’s opinion is based only based on repeated sexual assaults, it is in my view an unfair reading of the Joint Medical Report, especially §15.21 thereof (§6.28(4) above) where Dr Hung plainly said that a singular traumatic event can cause P’s PTSD and SD. In any event, as acknowledged by Mr Leung, Yeung Lai Ping v Secretary for Justice [2021] HKCA 256 is an authority for the proposition that I am entitled to use my common sense to fill a gap that is not wholly covered by the medical evidence (Yeung Lai Ping §62). It seems to me where D1 and D2 do not challenge Dr Hung’s opinion that traumatic events can cause PTSD and SD, it is only common sense that a singular event, if severe, can also give rise to the mental conditions. 6.32.I am therefore of the view that D1 and D2 have not raised any ground to reasonably challenge the reliability of the Joint Medical Report. (d) Findings of fact (Issues 1 and 3) 6.33.In assessing witness credibility, I adopt the approach set out at Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors, HCA 1734/2009, 8 April 2014 §§79-83. In essence, importance is attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of the events. It is further important to assess the consistency of the evidence of a witness with undisputed or indisputable evidence, and its internal consistency, namely by comparing the oral testimony and his witness statement(s). 6.34.In the particular circumstances of this case, Hui Cheung Fai §83 contains a pertinent reminder:
6.35.But it does not mean, contrary to what D1 has asserted, that P has to prove the present claim beyond reasonable doubt. As set out at A Solicitor v Law Society of Hong Kong (2008) 11 HKCFAR 117:
That, as Lord Nicholls pointed out at p.587C-E, goes to the “in-built flexibility” of proof on a preponderance of probability, not the creation of a new standard.” 6.36.At §6.12 above, I stated that I decline to attach any weight to Item 155(2) and the 15/8 Video Interview, having considered sections 49(1) and (2) of the EO and the totality of the evidence. My reasons are as follows.
6.37.I should point out that whilst I have declined to rule that Item 155(2) and the 15/8 Video inadmissible by reason of section 50 of the EO, whether I should nevertheless rule them inadmissible by reason of section 47(1) of the EO (ie on the basis that its exclusion is not prejudicial to the interests of justice), in the light of my conclusion that I attach no weight to them, does not make a practical difference. 6.38.But the above concerns do not apply to the conversation between P and Madam Ching on the evening of the Alleged Incident. The conversation was short and direct, consisting of two questions and two answers between mother and daughter (§4.20 above). There was no “leading” in any way by Madam Ching and, importantly, P’s answers are consistent with Item 155(1) and directly supported by the Forensic Report. I accept that evidence and attach full weight to it. 6.39.On the other hand, I have no hesitation in rejecting D1’s evidence. D1 is, in my view, a dishonest witness and his evidence in many respects does not stand up to scrutiny.
6.40.I have borne in mind the allegations here made against D1 are serious. But for the above reasons, I find in favour of P on Issue 1. I find that during the Relevant Period inside the Office, D1 had sexually assaulted P. Although I am unable to make precise findings on each detail of the sexual assault, I am satisfied that (1) D1 had pulled out his penis from his trousers, (2) his penis came into contact with P’s private parts, and (3) he had in the process ejaculated. I also find, and neither D1 nor D2 has suggested otherwise, that D1’s acts were not carried out with P’s consent. 6.41.I also accept the content of the Joint Medical Report in its entirety, and am assisted by the contents therein in reaching my finding that the Alleged Incident was the direct cause of P’s PTSD and SD. 7.Liability issues (a) D1’s liability 7.1.Although P’s pleaded case against D1 is put on a number of different bases (intentional tort and negligence), it seems to me that where Issue 1, as stated above, is determined in favour of P, it must follow that liability against D1 is established: Tangarorang Jessamie Mendrez v Chan Chau Wing, DCPI 433/2010, 29 January 2013. D1 and D2 have not suggested otherwise. (b) Issue 2(i): Whether D2 in breach of its duty of care towards P? 7.2.That D2 is under a duty to provide a safe environment to P is accepted (and cannot reasonably be disputed) by D2. Amended Statement of Claim §17 pleads a host of particulars of negligence against D2. At their core, P’s complaints are (1) failure to exercise supervision of the staff of the Care Home including D1, (2) failure to install any adequate system of safety monitoring of the Care Home including the Office and (3) failure to put in place any code of conduct to guard against the risks of sexual assaults at the Care Home, including steps to ensure that female residents would not be alone with any male staff including D1. 7.3.In D2’s written closing submissions, Mr Leung relied on the following matters which were largely not disputed by either P or D2.
7.4.From the foregoing, Mr Leung submitted as follows:
7.5.I do not agree with Mr Leung. I refer to FSM v Clarke 1999 CanLii 9405, a case relied on by Mr Leung. In that case, FSM was repeatedly assaulted sexually by his dormitory supervisor, Derek Clarke. At FSM, the Supreme Court of British Columbia said as follows:
7.6.In the present case, Mr Leung accepted in oral closing that the bottom-line is that there was no proactive supervision by D2 over D1 and D2 had, effectively left D1 to his own device. In my view, in doing so, D2 was thereby taking the risk set out in the underlined passage of FSM above. In the particular circumstances of this case, the risks were amplified by the facts that (1) the Office was on the floor housing female residents, (2) the female residents including P were vulnerable and suffering from disabilities, and (3) there were no surveillance cameras inside the Office therefore any mechanism of “self-monitoring” between employees could not have been effective as to what was happening inside the Office. 7.7.I also take note of the fact that no evidence was put in on how much it would have cost to install surveillance cameras inside the Office. In any event, less costly but effective measures such as (1) replacing the sandblast door of the Office with clear glass, (2) establishing a guideline that female residents should not be inside the Office alone with any male staff, or (3) requiring that the door of the Office should remain open when a female resident was inside the Office alone with any male staff were plainly practicable measures which could have been put in place. 7.8.For the above reasons, I am satisfied that D2 was in breach of its duty of care towards P. (c) Issues 2(ii) and (iii): Whether D2 vicariously liable 7.9.In Trustee of the Barry Congregation of Jehovah’s Witnesses v BXB [2023] UKSC 15, it is stated as follows:
7.10.D2 does not take issue with stage 2, namely the close connection test. In my view, the concession was correctly made. As has been stated in Lister v Hesley Hall Ltd [2002] 1 AC 215 (referred to at BSB §58(3) above):
7.11.In deciding whether D1 was employed by D2, I refer to the guidance set out in Poon Chau Nam v Yim Siu Cheung t/a Yet Cheung Airconditioning & Electric Co (2007) 10 HKCFAR 156:
7.12.The following matters, except where noted otherwise, are not disputed:
7.13.As pointed out at Poon Chau Nam §58, each situation is different. In the present case, the circumstances were complicated by the fact that D1 was also a shareholder and director of D2, and the Care Home was founded by him before D3 became a majority shareholder of D2. 7.14.But it must be remembered that a person can have dual roles, simultaneously as an office holder (director) and also an employee. In my view, as a matter of overall impression, D1 was an employee of D2, for the following reasons:
7.15.For the above reasons, the relationship between D1 and D2 was one of employment. 7.16.Poon Chau Nam §22 is a clear authority for the proposition that whether or not the work was performed in the capacity of an employee or as an independent contractor is to be regarded by an appellate court as a question of fact to be determined by the trial court. Where, as here, I have found that D1 was at the material time employed by D2, it seems to me that it is unnecessary for me to consider the alternative case of whether the relationship between D1 and D2 was “akin to employment”. 7.17.But I must express my disagreement with Mr Leung that P, as a matter of pleading objection, is not permitted to raise the issue of whether vicarious liability could have arisen as the relationship between D1 and D2 was “akin to employment”. D2’s Defence is nebulous. On the one hand, Defence §6 sets out an admission that “subject to the Defence herein, those parts in paragraph 2(c) and in relation to the 2nd Defendant alone are admitted”. Amended Statement of Claim §2(c) pleads “The 1st Defendant was the Warden… employed by the 2nd and/or 3rd Defendants in charge of the Care Home and a shareholder of the 3rd Defendant.” In other words, there was an express admission that D1 was the warden employed by D2. Yet, in its Answers to Further and Better Particulars, D2 denied that D1 was employed by D2 to be the warden of the Care Home. 7.18.Had it been necessary, I would have held that it was open to find for P on the issue of vicarious liability on the basis of the relationship between D1 and D2 being akin to employment. The scenario that D1 was not employed by D2 but carried out the tasks of a warden is D2’s own pleaded case: Poon Hau Kei v Hsin Chong Construction Company Limited Taylor Woodrow International JV (2004) 7 HKCFAR 148 §§19-20. As stated in Poon Hau Kei, provided the court does so in a fair manner, it is entitled to decide in favour of a party on the basis of a scenario that he has not pleaded but his opponent has pleaded. 7.19.Where D2 does not take issue that Stage 2 has been satisfied, and in the light of my finding that D1 was at the material time employed by D2, I find that D2 should be held liable to P on the basis of vicarious liability. 8.Issue 4 (Quantum issues) 8.1.P claims 7 heads of damage: (1) PSLA, (2) aggravated damage, (3) pre-trial loss of earnings, (4) post-trial loss of earnings, (5) pre-trial expenses, (6) post-trial expenses and (7) loss of society. 8.2.Save the issue of causation of P’s PTSD and SD (which I have dealt with above), D1 made no submissions on any of the heads of damage claimed by P. D2 only disputes the claims for PSLA, aggravated damage and loss of society. (a) PSLA 8.3.At the time of the Alleged Incident on 10 August 2014, P was 21 years old. As already canvassed above, prior to the Alleged Incident, P was found to have developmental delay and diagnosed with moderate grade mental retardation. 8.4.On 11 August 2014, P was taken to the Accident and Emergency Department of Princess Margret Hospital. She was asymptomatic on admission and her mood was stable. As stated above, forensic examination revealed that there was no external bodily injuries, and her hymen was intact. 8.5.On 21 August and 4 September 2014, P was examined at West Kowloon Psychiatric Centre. She was noted to be in stable mental state and there was no gross psychotic or mood symptoms. 8.6.After P moved out from the Care Home, she resided at Mei Tin Centre. She was noted to have increased irritability, self-harm behaviour including banging her head against the wall and aggressive behaviour. She also had disorganized behaviour such as removing her clothes suddenly in front of others. She would talk about the Alleged Incident repeatedly and blamed Kitty for video-taping her on that day. She heard non-existing voices of her mother talking irrelevantly. She could maintain sleep and appetite but refused to take medication. 8.7.On 22 September 2014, P threw a temper and bit a co-resident. She was admitted to Kwai Chung Hospital (“KCH”). On admission, she was documented to be perplexed and irritable. She was diagnosed with PTSD and moderate grade mental retardation with significant impairment of behaviour. 8.8.Whilst in KCH, P on occasions required physical restraints because she was violent. She repeatedly needed drug titrations and eventually was administered clozapine, the most powerful antipsychotic drug though it had a more prominent side effect profile when compared to other similar drugs. 8.9.P was discharged in December 2015, not because of drastic improvement but because a residential placement became available. The doctors opined that P’s condition was still suboptimal at the time of discharge from KCH. 8.10.Examinations following P’s discharge from KCH revealed that she was still suffering from psychosis with resistant symptoms and features of PTSD. In later examinations, for example, on 20 November 2017, the doctor at KCH noted that P appeared calm and settled and there were no psychotic or mood symptom in that consultation. 8.11.Dr Hung examined P on 15 January 2018, accompanied by Madam Ching and two social workers. Dr Hung noted that P’s mood was unstable and unpredictable, but she was not depressed or tearful. Her speech was incoherent and irrelevant. She displayed self-muttering during the assessment which was often a sign of auditory hallucinations. She was not able to follow instructions and attempts at assessing her focus and concentration failed because she was not able to cooperate. 8.12.Dr Hung’s diagnosis was that P was suffering from (1) moderate intellectual disability, (2) SD and (3) PTSD. P’s moderate intellectual disability pre-existed before the Alleged Incident, and her SD and PTSD developed sometime in September 2014. 8.13.In the opinion of Dr Hung, P’s prognosis was “very poor”. P’s SD and PTSD are difficult to treat and resistant to treatment and have reached maximal medical improvement. She is unlikely to have any significant improvement in the future despite psychiatric treatment and the purpose of continued treatment is to prevent deterioration. 8.14.She is not expected to improve to the level which would allow her to resume working in a sheltered workshop and sick leave should be given for the rest of her adult working life. 8.15.In Dr Hung’s opinion, her then and future conditions are as follows. She requires close supervision and is unable to function independently in any way, as a result of her psychiatric disorder, but her condition is not so severe that she required long-term hospitalization. She is dependent on around-the-clock supervision in a hostel, due to her disorganized speech and behaviour, inability to comply instructions, irritability and violence towards herself and others. She requires lifelong psychiatric treatment. 8.16.In terms of P’s psychiatric impairment, Dr Hung is of the opinion that prior to the Alleged Incident, by reason of her moderate intellectual disability only, she was suffering from a 30% psychiatric impairment. Since the Alleged Incident, her psychiatric impairment is assessed to have increased to 70%. 8.17.In terms of loss of earning capacity, prior to the Alleged Incident, Dr Hung is of the opinion that P’s loss of earning capacity was 50%. Following the Alleged Incident, her loss of earning capacity is assessed at 90%. 8.18.The difference between P and D2 is the correct characterization of P’s psychiatric injuries under the 4 categories identified in Lee Ting Lam v Leung Kam Ming an infant by his next friend Leung Shu Wing [1980] HKLR 657. The 4 categories are:
8.19.Ms Tjia submitted that P’s injuries fall within the upper end of the substantial injury bracket and an award of HK$850,000 is appropriate. 8.20.Mr Leung disagreed. He submitted, by reference to Lily Tse Lai Yin & Ors v The I/O of Albert House and Ors, HCPI 828/1997, 17 September 2001 §29 that the categories of injuries laid down in Lee Ting Lam covers basically physical injuries and disablement. He submitted that an award of HK$100,000 is appropriate, 8.21.I am unable to accept Mr Leung’s submissions. There were a number of different decisions (all on assessment of damages) in Lily Tse handed down on 17 September 2001. The case referred to by Mr Leung is the assessment of damages in respect of the 9th plaintiff. However, in the decision relating to the assessment of damages of the 2nd plaintiff, Suffiad J considered that the Lee Ting Lam categories also covered psychiatric injuries:
8.22.Further, in Chan To Wai v Rigid Plumbing Ltd & Anor, HCPI 1334/1996, 27 January 1998, Wong J said:
8.23.In my view, given Dr Hung’s opinion, P’s psychiatric injuries fall within the middle of the substantial injury bracket. Prior to the Alleged Incident, whilst P lacked the ability to live independently, she was able to work and required a lower level of supervision. Following the Alleged Incident, she was hospitalized for over one year at KCH, and now requires close supervision and lifelong treatment. She is also unable to resume work for the rest of her life. 8.24.Mr Leung does not dispute Ms Tjia’s submissions that, given the previous adjustments in various cases to the damages awarded in the Lee Ting Lam brackets and inflation, the appropriate award for the substantial injury bracket should be between approximately HK$789,902 to HK$966,030 (with which I also agree). I accede to P’s claim of HK$850,000 under this head. (b) Aggravated damage 8.25.Aggravated awards are appropriate where the manner in which the wrong was committed was such as to injure the plaintiff’s proper feelings of pride and dignity or gave rise to humiliation, distress, insult or pain. Examples of the sort of conduct which would lead to these forms of intangible loss are conduct which is offensive or which is accompanied by malevolence, spite, malice, insolence or arrogance. There are two elements relevant to the availability of an aggravated award, first, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong and second, intangible loss suffered as a result by the plaintiff, that is injury to personality: Achacoso Warly Cabaneros v Liu Man Kuen, HCPI 121/2001, 11 June 2004 §26. 8.26.P seeks an award of HK$100,000, whilst D2 says that a sum of HK$30,000 is appropriate. 8.27.In Ambarini Bt Sahari Kasto v Fok Ka Ching [2017] 1 HKLRD 880, the plaintiff was sexually abused on a number of occasions by the defendant when she worked as a domestic helper between July and August 2011. An award in the sum of HK$80,000 was made, given the court’s view, inter alia, that the plaintiff had no social support, there was a breach of trust as the defendant abused his position as a person in authority, and the sexual abuses were repeated several times and lasted for a month. 8.28.In Tangarorang, the plaintiff domestic helper was indecently assaulted on three occasions. On the first occasion, the defendant kissed and hugged the plaintiff, fondled her breasts and touched her buttocks. On the second occasion, the defendant sat on the plaintiff’s thigh and fondled her breasts for 30 to 45 minutes. On the third occasion, the defendant kissed the plaintiff on the lips. The court was of the view that the defendant abused his position as the employer and the defendant’s conduct was malicious. The court made an award of HK$30,000. 8.29.I agree with Ms Tjia that the circumstances of the present case are very serious. One has to bear in mind that P is a vulnerable person and the degree of breach of trust by D1 is deplorable. The evidence, which I accept, shows that since she was admitted into KCH, the plaintiff has been reluctant to talk about the Alleged Incident and has felt humiliated including blaming Kitty for videotaping Item 155(1). In my view, an award of HK$80,000 is appropriate. (c) Pre-trial loss of earnings 8.30.P has since 20 September 2014 been unable to work at the sheltered workshop. She was at that time earning $391.78 per month. The evidence shows, which I accept, that those who worked at a sheltered workshop enjoyed an average of annual increase of 2.5% in their earnings. The foregoing is not disputed by D2 and D1 did not make any contrary submissions. 8.31.I accept the quantification put forward by Ms Tjia. I allow HK$41,851.15 under this head. (d) Post-trial loss of earnings 8.32.P is unable to return to the sheltered workshop for the rest of her life. Ms Tjia has adopted a multiplier of 23.24, which is not disputed by D2. No contrary submissions was made by D1. 8.33.I accept Ms Tjia’s quantification and award HK$112,078.50. (e) Pre-trial expenses 8.34.The pre-trial loss of expenses consists of transportation costs incurred by P’s family members, either for visiting P at the KCH or accompanying her to consultations after her discharge. P claims HK$6,050, which is not disputed by D2. No contrary submissions was made by D1. I allow the claim. (f) Post-trial expenses 8.35.As set out in the Joint Medical Report, P requires psychiatric treatment at intervals of 2-3 months for the rest of her life. The claim is in respect of the transportation fees to be incurred as a result. 8.36.P claims HK$4,710, which is not disputed by D1 or D2. I allow the claim. (g) Loss of society 8.37.The claim is made under section 20C of the Law Amendment and Reform (Consolidation) Ordinance Cap 23. The claim made in closing is for the maximum of the statutory limit but the amount put forward in the Revised Statement of Damages is less, namely HK$220,000. 8.38.D2 contends that the appropriate amount is HK$15,000. Mr Leung submitted that, at Ng Tat Kuen v Tam Che Fu [2019] HKCFI 1191 §100, consideration was given to the fact that the daughter (who was making the claim) was living apart from the plaintiff and an award of HK$15,000 was made. 8.39.D2 also relied on Cheung Wai Ping v Chan Yuen Yee, HCPI 669/2005, 8 February 2007 in which the court held that the maximum level would only be appropriate where there was a complete loss of society, for instance if the plaintiff were in a vegetative state. 8.40.I take into account the following. Although P was living apart from her family, that was by reason of her pre-existing condition and the evidence, which I accept, is that Madam Ching and Sze Ting visited P frequently at the Care Home and they enjoyed a loving relationship. I also accept that P is less capable of appreciating and returning love and affection but on the other hand it cannot be said that there was a complete loss of society. 8.41.In my view, an award of $100,000 is appropriate under this head. 9.Contribution proceedings 9.1.D1 raised the point that the D2’s Contribution Proceedings against him has not been properly authorized by D2’s board. As pointed out by Mr Leung, D1 ought to have applied to strike out D2’s claim against him and he cannot by his defence dispute the authority to sue, nor can he do so at the trial: Hong Kong Civil Procedure 2024 Note 18/19/23. 9.2.In Liao Kuo Chun v Win Capital (HK) Ltd and Ors [2010] 4 HKLRD 257: it is stated:
9.3.In the present case, it seems to me that both blameworthiness and causative potency both point to the conclusion D1 should bear the majority of the responsibility. I hold that the D2 is entitled to claim 70% contribution from D1 in respect of P’s claim. 10.Conclusion 10.1.In summary, P’s claim is quantified as follows:
10.2.I should point out that D1 and D2 have not contended that the sum to be awarded should be discounted by reason of P’s pre-existing mental retardation. 10.3.Judgment is entered against D1 and D2 for the sum above. There shall be interest on general damages at 2% per annum from the date of the writ to the date of judgment and on special damages at half judgment rate from the date of the Alleged Incident to the date of judgment. Interest from the date of judgment will accrue at the judgment rate until payment. 10.4.Although I have not heard arguments from the parties, it seems to me that costs should be awarded to P on an indemnity basis. In my view, D1 and D2 have unreasonably and unjustifiably persisted with their defence, and in persisting with what I consider to be an entirely unmeritorious defence, have no doubt drove P’s family to relive what must be a very unpleasant experience. 10.5.I make a costs order nisi that:
10.6.The above nisi order will be made absolute within 14 days, absent any application to vary by summons. 10.7.At the oral closing, D1, no doubt having a certain command of the language, agreed that the judgment may be rendered in English. However, should D1 require any assistance, he may contact my clerk to arrange interpretation by a court interpreter at the District Court.
Ms Josephine Tjia, instructed by Tang, Wong & Chow, assigned by the Director of Legal Aid, for the Plaintiff The 1st Defendant appeared in person Mr Henry Leung, instructed by C. F. Lee & Co, for the 2nd and 3rd Defendants [1] Were the court to determine D2 was at the material time D1’s employer, D2 accepts that the Alleged Incident was so closely connected with the employment such that it would be fair and just to hold D2 vicariously liable. [2] D2’s position is that Issue 2(iii) is subject to a pleading objection, namely P’s pleaded case is pursued solely on the basis that D1 was at the material time employed by D2. [3] Lee Senior passed away in early 2016. [4] Kitty was also a resident at the Care Home. [5] Ms Kwan was employed as a 保健員at the Care Home. [6] D1’s Witness Statement dated 3 April 2020 §5 [7] Entries 147-153 [8] Entries 337, 395-399 [9] Entries 258-260, 274- 298, 312-327 [10] Entries 226-243 |
Cases cited in this judgment
Further hearings and rulings under DCPI 648/2018