TSANG CHI ON (曾志安) v YAU CHI LOK (丘子樂)

DCPI 1752/2022

[2024] HKDC 1874

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1752 OF 2022

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JUDGMENT

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INTRODUCTION

1.  This is the assessment hearing of the claim by the Plaintiff Mr. Tsang Chi On (“P”) for damages for personal injuries arising out of an assault incident that took place on the night of 9 June 2019 (“Incident”).

2.  As a result of the Incident, the Defendant Mr Yau Chi Lok (“D”), one of the assaulters, was on 16 July 2020 convicted of the offences of (ii) Taking part in an unlawful assembly and (ii) Assaulting a police officer in the due execution of his duty (ESCC 2495/2019), for which he was sentenced to imprisonment for 4 months (concurrent sentences).

3.  D never entered an appearance in these proceedings and was absent at the assessment hearing. The assessment hearing proceeded in his absence, this court having been satisfied that due service of notice of hearing and relevant documents was effected.

4.  Interlocutory Judgment on liability in default of defence was entered against D on 18 August 2023 leaving damages to be assessed.

5.  P was the only witness of fact called at the hearing.

6.  The evidence of medical reports of public and private hospitals and clinics as to the treatment and care of P has been ordered to be adduced as agreed evidence (as to admissibility and authenticity) without calling the makers thereof. Medical expert evidence was not obtained.

THE INCIDENT

7.  Prior to the Incident, P, a young police constable aged 24, was in training with the Police Tactical Unit (“PTU”). It was the first day his platoon was deployed to maintain public order amidst notified public processions and meetings around Victoria Park and Admiralty areas on Hong Kong Island on 9 June 2019.

8.  The crowds refused to leave after conclusion of the meeting at 10 p.m. At midnight, about 200 protesters gathered outside the Legislative Council (“LegCo”) Complex in Admiralty in an unlawful assembly. They acted disorderly and became aggressive.

9.  P and his team were instructed to form a checkline to prevent the protesters from storming the LegCo Complex. P’s evidence is that at around 0019 hours, whilst conducting dispersal action, he saw a colleague being pushed to the ground and surrounded by a group of protesters. He rushed over alone to help, and was snatched at the loose fittings of the reflective vest that he was wearing. He was then surrounded by several protesters who struck his head and pushed him to the ground. The group of protesters, including D, continued to assault him.

10.  P was fisted in his head, had his glasses and beret knocked away. He was kicked in his head repeatedly and was hit by a metal rod, causing his head to spin and his vision to lose focus. He had extreme pain and felt humiliated. During the assault, someone tried to snatch his baton. He had fear of imminent death as he knew that the baton when taken charge by the assaulters could become a lethal weapon when they kept attacking his head. It was his strong will to live (“求生意志”) that had enabled him to prevent his baton from being snatched away, and endure the brutal attack.

11.  It was chaotic at the scene and P could not identify the assaulters. Subsequent evidence shows that D had kicked P on the head at least once whilst P was struggling with another assaulter on the ground.

12.  The assault lasted for 1 to 2 minutes until P was rescued by his colleagues and taken into the LegCo Complex. He was bleeding at his right (R) eye corner. He had lost vision in both eyes completely then, and only gradually regained some vision after about 15 to 20 minutes upon first aid treatment.

13.  As a result of the assault, P sustained injuries to his R eye, left (L) occiput and R shoulder.

INJURIES AND TREATMENT

14.  P was immediately sent by ambulance to the Accident and Emergency Department of Queen Mary Hospital (“QMH”). He was noted to have suffered R eye injuries with three lacerations by glass fragments at his R upper and lower eyelids. He was treated with ATT booster injection and was transferred to the Department of Surgery of QMH for further investigation and management.

15.  Examination revealed, other than the R eye injuries, R parietal scalp haematoma. P was also seen by an ophthalmologist. Examination showed both eyes visual acuity at 20/30. X-rays orbits showed no fracture and plain CT scan showed intact globes. The R eyelids laceration wound was sutured. He was discharged home on the same day with medication.

16.  P attended follow up at the Department of Ophthalmology and Department of Surgery of QMH in the following 6 months. Visual acuity gradually resumed to 1.0 (R), and 0.8 (L).

17.  P attended the Occupational Health Clinic (“OHC”) of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) on 17 July 2019. He reported to have persistent dull headache over the whole head, R shoulder pain, nausea, anxiety and low mood. Clinical impression was head injury with possible post concussion syndrome, R eyelid injury and anxiety state with insomnia. Medications were prescribed for pain control, sleep improvement and anxiety symptoms. P was referred for rehabilitative treatment of physiotherapy and occupational therapy. He had flashbacks of being assaulted repeatedly.

18.  Upon follow up at the OHC of PYNEH, P reported to have mild dizziness and headache upon physical exertion. He was referred to the Department of Anaesthesia and Department of Neurosurgery of PYNEH for further treatment on 28 August 2019.

19.  On 15 October 2019, P attended the Department of Anaesthesia of PYNEH. He was diagnosed with post concussion syndrome with headache. On 13 November 2019, a diagnostic greater-occipital nerve block was performed for relief of headache, which was partially effective for a week. P presented with low mood, insomniac symptoms and significant social phobia.

20.  P continued to attend the outpatient clinic of the Department of Neurosurgery of PYNEH and had conservative treatment.

21.  Despite having some improvement, P had persistent headache around his L occiput, and dizziness after exercises. He attended The University of Hong Kong-Shenzhen Hospital (“SZH”) on 17 December 2019, and was admitted for a night for investigations of cranial MR and MRA. He was diagnosed with post-traumatic syndrome following head injury. He also attended a course of acupuncture for relief of the neurological symptoms.

22.  P attended a total of 36 consultation sessions at the OHC of PYNEH between 17 July 2019 and 3 March 2020. By the last session, his physical condition had improved, and mood had become stable. He had minimal headache, with no more flashbacks, anxiety or depression.

23.  In view of persistent residual psychiatric symptoms of stress, poor sleep quality and mild anxiety, P subsequently attended 4 treatment sessions at the Department of Clinical Psychology of PYNEH from 20 March 2020 to 10 August 2020.

24.  As a result of the injuries sustained in the assault Incident, continuous sick leaves were granted to P from 10 June 2019 to 31 January 2020 for “R eye injury, headache and dizziness”. He resumed work and could cope with normal duties since February 2020.

25.  P attended medical assessment by the Employees’ Compensation (Ordinary Assessment) Board arranged by the Labour Department on different dates in August and September 2021. According to a Certificate of Assessment (Form 7) issued on 7 October 2021, P was assessed to be suffering 0.5% permanent loss of earning capacity as a result of “assault injury resulted in post concussion syndrome and headache”. The sick leaves granted from 10 June 2019 to 31 January 2020 were endorsed.

Permanent Disabilities

26.  Prior to the Incident, P was healthy and active, and enjoyed physical exercises and trainings. His enjoyment of daily life and physical activities has been disturbed, particularly due to headache, dizziness and aggravated physical pains associated with exertion and tiredness. He tried not to take painkillers long-term for fear of side effects.

27.  P’s evidence is that despite the mild residual symptoms that had impacted adversely on his physical fitness and brought on much discomfort, he had been able to resume work and perform normal duties since February 2020, and has not required to take sick leave off work thereafter.

28.  After the Incident and sometime in around August 2022, P was promoted to the rank of Inspector. He gave evidence in court that the permanent disabilities of occasional headaches and dizziness resulted from the Incident had impacted on him badly during strenuous physical trainings for the promotion in the period of end 2022 to early 2023 such that he had to take painkillers often.

29.  The symptoms had since alleviated, as P has not engaged in strenuous physical trainings and partly because he had become used to the mild and transient headaches. He has not taken any painkilling medication ever since.

ANALYSIS OF THE EVIDENCE

30.  Despite the brutal assault and the initial multiple injuries sustained in the Incident to the head, eyes and R shoulder, fortunately P had a rather quick and uneventful recovery. The overall medical evidence supports a minor head injury with post concussion syndrome, with residual neurological symptoms that had lingered on for a few years.

31.  P gave evidence of a straightforward account of the Incident and the resulted injuries and disabilities. He was frank about the good recovery and his ability to resume full work and normal duties after expiration of sick leaves. I found him an honest witness who has made no attempt at all to exaggerate his predicament or the extent of the injuries and their impact. I accept his evidence on the assault, the injuries and the pain and suffering brought on by the Incident.

QUANTUM OF CLAIM

Pain, Suffering and Loss of Amenities (“PSLA”)

32.  P claims damages for PSLA in the sum of $200,000[1]as pleaded in the Statement of Damages filed on 5 August 2020 (“SOD”).

33.  I have considered the authorities on PSLA submitted by P’s counsel Ms Joyce Lai. The following authorities in which the plaintiffs suffered mild head injuries resulted in permanent mild residual disabilities of post concussion syndrome and psychiatric symptoms that were treated, and were awarded damages for PSLA within a range of $150,000 to $180,000, provide good reference:-

(1)  Hung Shing Kun v Yeung Chi Ming & Another [2006] HKDC119 (12 May 2006)

(2)  Cheung Chak Fui v Sun Hing Organisation Plastic Management Limited & Anor [2011] HKCFI 650 (unreported, 30 September 2011)

(3)  Wong Shiu Ping v Secretary for Justice for and on behalf of the Director of Leisure and Cultural Service [2017] HKDC 916 (unreported, 3 August 2017)

34.  Taking into account inflation since the dates of the judgments cited above, I accept P’s pleaded claim and assess the appropriate award for PSLA at $200,000.

Aggravated Damages

35.  I accept the submissions of Ms Lai that the circumstances of the brutal assault by a group of protesters in the Incident in which P sustained the injuries are such that aggravated damages should come into the picture. The injury to P’s feelings was gravely increased by the flagrancy, malevolence and the particularly unacceptable nature of the assaulting defendant’s behaviour: McGregor on Damages, 22^nd Ed at §43-002.

36.  P was subject to indignation and fear of imminent death when being assaulted by a group of aggressive protesters. It was a contempt and humiliation of a high degree that P, being a law enforcement officer assigned and authorised to maintain public order, should be subject to such brutal attack in the execution of his duty.

37.  Reference is made to the judgment of Appleton v Garrett [1996] PIQR, P1 in which Dyson J. endorsed the speech of Lord Devlin in Rookes v Barnard [1964] AC 1129, 1221 and referred to the paper of the Law Commission at paragraph 3.3 as follows:-

“In Rookes v Barnard Lord Devlin said that aggravated awards were 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 were conduct which was offensive or which was accompanied by malevolence, spite, malice, insolence or arrogance. In other words the type of conduct which had previously been regarded as capable of sustaining a punitive award. It would therefore seem that 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.”

[emphasis added]

38.  This court does not have the slightest doubt that there was exceptional or contumelious conduct or motive on the part of D in the present case in assaulting P. An award for aggravated damages would be appropriate to compensate for the grave injury to feelings, humiliation, contempt and loss of dignity that P had suffered.

39.  I have considered the further submissions of Ms Lai on the claim for aggravated damages:-

(1)  Chung Lai Ha v Ching Mei Yee [2014] HKDC 40 (unreported, 20 January 2014)

(2)   Li Wing Kwai v Chan Hau Yu [2014] HKDC 1016 (unreported, 5 September 2014)

(3)  Chan Kwok Wai v Secretary for Justice (unreported, HCPI 134/1999, 30 June 2000)

(4)  Chan Shek Ho v Shiu Ho Chi (unreported, HCPI 613/2014, 6 April 2018)

(5)  Achacoso, Warly Cabaneros v Liu Man Kuen (unreported, HCPI 121/2001), 11 June 2004)

40.  The plaintiffs in the cited authorities were all victims of assaults who were accepted by the Court to have suffered injury to feelings, dignity and pride. Awards for aggravated damages within a range of $30,000 to $100,000 were made in addition to awards for PSLA in the judgments given during years 2000 to 2018. Most of these awards should be increased nowadays taking into account inflation over the years.

41.  None of the cited authorities involves claims for aggravated damages by public officers who were assaulted in the execution of duty.

42.  I am of the view that in the circumstances of the present case, an award towards the upper end of the range of awards for aggravated damages made in the cited authorities would be appropriate.

43.  I make an award for aggravated damages in the sum of $100,000 as claimed by P.

Exemplary Damages

44.  The circumstances of the assault Incident resulting in the injuries to P are such that a separate head of claim for exemplary damages, punitive in nature, i.e. to punish D for the oppressive conduct and brutal attack on P, would be arguable. Reference is made to the judgment of Suffiad J in Chan Kwok Wai (Supra) at §§54-57.

45.  However, as no claim for exemplary damages is pleaded, I need not deal with this matter nor make a ruling.

Loss of Allowance

46.  As a result of the injuries sustained in the Incident, P was on continuous sick leaves and could not work until 31 January 2020. He makes no claim for loss of earnings during the sick leave for which he had received full pay.

47.  He claims loss of Disciplinary Services Overtime Allowance (“DSOA”) on the basis that due to his absence from work during sick leave, he was not posted for the overtime duties required of his PTU team and suffered loss of DSOA.

48.  This claim is supported by evidence of payroll records which show that during P’s sick leave period of 7.67 months (from 10 June 2019 to 31 January 2020), his PTU team was assigned with substantial overtime duties (during the prevailing social events and protests) of a total of 75 to 130 hrs per month, i.e. around 105 hrs per month on average, for each team member, at the DSOA rate of $174/hr.

49.  After P resumed work as from 1 February 2020, he had performed full overtime work and hrs assigned to his team, average at 60 to 70 hrs per month during 2020.

50.  P claims loss of DSOA at average monthly overtime of 105 hrs at: $174 x 105 x 7.67 months = $140,130.

51.  I accept that but for the Incident, P would have performed the overtime work assigned to his team. The claim for loss of DSOA is allowed as pleaded.

Other Special Damages/Miscellaneous Expenses

52.  P claims other special damages/miscellaneous expenses incurred and paid in respect of medical treatment fees paid (limited to those not waived in P’s capacity as a civil servant) to SZH and travelling expenses in the respective sums of RMB2,500[2] and $3,000, rounded to a total of $6,000.

53.  The amounts paid to SZH are supported by receipts.

54.  The claim is modest and reasonable, and is allowed in full.

Interest

55.  Interest on PSLA is assessed at the usual 2% p.a. from the date of service of the writ of summons to the date of judgment.

56.  A claim for interest on aggravated damages is not pleaded. I make no award accordingly, also following the approach of Suffiad J in Chan Kwok Wai (Supra) and that of Bharwaney J in Lai King Yiu v Acciona Infraestructureas, S.A (formerly known as Necso Entrecanales Cubiertas, S.A.) & Ors (unreported, HCPI 444/2008, 11 May 2009).

57.  Interest on other pre-trial special damages (loss of DSOA and miscellaneous expenses incurred and paid) is assessed at half of the judgment rate from the date of the Incident to the date of judgment.

58.  There be interest on all damages adjudged at judgment rate from the date of judgment until payment.

SUMMARY ON QUANTUM

59.  I summarise the award for P’s claim for damages as follows:-

(a)	PSLA	$200,000
(b)	Aggravated damages	$100,000
(c)	Loss of allowance	$140,130
(d)	Other special damages/ misc expenses	$6,000
	Total:	$446,130
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		(plus interest)

ORDER

60.  I therefore make an order that D do pay damages to P in the sum of $446,130 plus interest.

61.  Costs should follow the event. I make an order nisi that D should pay P the costs of this action, to be taxed if not agreed, with certificate for counsel.

62.  In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute.

63.  I thank P’s counsel Ms Lai for her assistance.

Ms Joyce Lai, instructed by Messrs Sun Lawyers LLP, for the Plaintiff

The Defendant, acting in person, absent