Wong Tak Wai v. Cheung Wai Sun and Others

DCCJ 3295/2023

[2025] HKDC 692

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3295 OF 2023

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JUDGMENT

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INTRODUCTION

1.In these proceedings, the plaintiff (“P”) seeks damages against the 1^st to 5^th Defendants (“Ds”) for an alleged assault by the officers of the Correctional Services Department (“CSD”). P’s claim arises from a set of criminal proceedings TWCC 2567/2015 (the “Criminal Proceedings”) in which he was prosecuted for the offence of assault occasioning actual bodily harm (“AOABH”), namely using a ball pen to cause injuries on the left forearm of Assistant Officer I Yung Chun Wa (“D2”) at Shek Pik Prison (“SPP”). P was acquitted on 7 April 2017 by a magistrate after trial.

2.The prosecution’s case in the Criminal Proceedings was as follows:

(1)  On 8 June 2015, P submitted a request for the refund of $8.80 photocopying charges (the “Refund Request”) and on 9 June 2015, Acting Chief Officer Chiu Chun Hong (“D3”) asked D2 to escort P to his office (the “Office”) for an interview to handle the Refund Request;

(2)  When D3 informed P that the Refund Request would not be granted, P suddenly became emotional and swept the stationeries from the desk to the floor in the Office and onto D3’s body;

(3)  D2, who was present in the room, warned P to stop, but in vain. P took out a pen from the right pocket of his shirt and attempted to attack D3. D2 immediately intervened by grabbing P’s arm and again warned P to stop. However, P struggled free from D2’s control and slashed D2’s left forearm (“Ds’ Alleged Assault”);

(4)  At this juncture, CSD Officer Cheung Wai Sun (“D1”), passed through the corridor outside the Office. He heard the loud noise and went into the Office to assist in subduing P. D1 gave verbal warnings to P repeatedly but P ignored the same. D3 instructed D1 to deploy pepper spray against P in order to subdue P. P was finally subdued on the floor by both D1 and D2.

3.P does not dispute that he submitted a written Refund Request on the day before the Alleged Assault and was brought by D2 to see D3 at the material time. In his pleadings and witness statements filed in these proceedings, he denied assaulting any officers but claimed to be the victim of assault by D1 – D3 who acted in concert.

4.The crux of P’s case is that the interview was a plot perpetrated by D1-D3 to coerce P to withdraw his two judicial reviews (“the JRs”) against the CSD. Contrary to the Ds’ case, P averred D1 and D3 were both in the Office when P was brought in by D2. There were no discussions about the Refund Request, rather, P was asked by D3 to withdraw the JRs as soon as he arrived in the Office. He was repeatedly attacked by D1 and D2, and pepper spray was used against him (the “P’s Alleged Assault”).

5.To support his averrment of D1-D3’s fabrication, P gave evidence under cross examination that while or just before he was taken away from the Office, he saw D2 holding a ball pen and pointed it at his own left forearm. P suggested the possibility that D2’s injuries were self-inflicted.

6.In such premises, P’s claim is as follows:

(1)  Against D1-D3, based on (i) assault, (ii) misfeasance in public office (“MIPO”), (iii) malicious prosecution, and (iv) breach of statutory duties;

(2)  Against Wong Steven (“D4”), the Acting Senior Superintendent at SPP at the time of the incident, based on breach of statutory duties and vicarious liability; and

(3)  Against Secretary for Justice, acting for and on behalf of the Commissioner of Correctional Services (“D5”), for vicarious liability.

ISSUES IN DISPUTE

7.Parties agreed on a Statement of Issues as follows:

Statutory duty

(1)  Did D1, D2 and/or D3 owe P a statutory duty in tort under the following rules of the Prison Rules (Cap 234A) (“Prison Rules”):

1.  to treat prisoners with kindness and humanity, under Rule 138;

2.  not to use force unnecessarily in dealing with the prisoners, under Rule 237;

3.  not to knowingly make any false, misleading, or inaccurate statement in connexion with his duty, under Rule 239;

4.  not to deliberately act in a manner calculated to provoke a prisoner, under Rule 239; and/or

5.  Not to act in a way likely to bring discredit on the Correctional Services, under Rule 239?

(2)  Did D3 owe P a statutory duty in tort under Rule 79 of the Prison Rules to ensure due observance by his subordinates to the provisions of the Prison Rules?

(3)  Did D4 owe P a statutory duty in tort under Rules 79, 80, and 81 of the Prison Rules to ensure due observance by his subordinates to the provisions of the Prison Rules and/or was responsible for the due observance and maintenance of strict discipline throughout the prison?

Factual Issues

(4)  What were the circumstances of the Incident happened on 9 June 2015? Specifically:

(i)  Did D1, D2 and/or D3 bully and/or force P to withdraw his two judicial review proceedings HCAL 61/2015 and HCAL 70/2015?

(ii)  Did D1/D2 and/or D3 unlawfully assault P?

(5)  Did D1, D2 and/or D3 fabricate evidence in the Criminal Proceedings TWCC 2567/2015 in:

(i)  Making their respective witness statements to the police; and/or

(ii)  Giving evidence in the trial of TWCC 2567/2015?

(6)  If D1, D2 and/or D3 did unlawfully assault P, what injuries were caused by the assault at common law?

(7)  Was/were D1, D2 and/or D3 liable for assault at common law?

(8)  Was/were D1, D2 and/or D3 liable for MIPO at common law?

(9)  Was/were D1, D2 and/or D3 liable for malicious prosecution at common law?

(10)  Was/were D1, D2 and/or D3 in breach of the statutory duties?

(11)  Was/were D1, D2 and/or D3 vicariously liable for the assault, MIPO, malicious prosecution, and/or breach of statutory duty on the part of the D1, D2 and/or D3?

Damages

(12)  What is/are the head(s) of damages awardable if liability is established against any of the D1 to D5?

(13)  To what extent is P entitled to aggravated damages?

(14)  To what extent is P entitled to exemplary damages?

8.To answer the above issues, I will first make factual findings of the incident and proceed to discussions of legal principles vis-a-vis the liability of each defendant. Damages will be considered after the conclusion of liability.

FACTUAL FINDINGS

Admissibility of evidence

9.All the statements of the prosecution witnesses and defendant, together with the evidence presented in the Criminal Proceedings, were filed for this present action. Besides, I have the benefit of having over a thousand pages of transcript of the entire Criminal Proceedings, which consists of, quite incredibly, 12 mentions before the trial hearing over a charge of AOABH.

10.On the admissibility of the earlier judgment, Hon Lisa Wong J in Capital Century Textile Company Limited v Li Dianxiao & Cong Bo Wai [2018] HKCFI 729 at paragraph 23 reaffirmed that a judgment and factual finding of another court or tribunal in earlier proceedings, whether civil or criminal, is inadmissible in subsequent proceedings, unless the party against whom the finding is sought to be deployed is bound by reason of an estoppel per rem judicatam, which is a situation where a court has already decided an issue between two parties, they cannot bring that same issue again in a different case. This is to prevent parties from re-litigating the same issue over and over again.

11.A modern statement of such rationale can be found in Rogers v Hoyle [2015] QB 265 where Leggatt J said at paragraphs 59,93 and 104:

“59. A central part of a judge’s task in a civil case is to evaluate the evidence adduced by the parties and to decide what conclusions may properly be drawn from that evidence. It is a cardinal, principle, and an essential ingredient of the right to a fair trial before an impartial and independent tribunal, that in carrying out this task judges must form their own opinions by making their own evaluation of the evidence and must not defer to the opinion of anyone else…

…

93. When the Court of Appeal described the opinion of the criminal court as “irrelevant”, I therefore do not think that the term was being used in the sense defined earlier to denote evidence which is not logically probative. What I believe they meant is that the opinion of another court, like the opinion of a bystander, is not a matter to which a court required to decide the issue ought to have regard. The underlying rationale in my view, albeit not clearly spelt out in the judgment of the Court of Appeal, is the rationale to which I referred earlier for the exclusion of opinion evidence in general: namely, that it is the duty of a court to form its own opinion on the basis of the evidence placed before it; and that it would not be proper for the court in forming that opinion to be influenced by the opinion of someone else, however reliable that person’s opinion is likely to be. In so far as the evidence before the later court is the same as the evidence before the earlier court, the latter court is in as good a position to draw inferences and conclusions from the evidence. In so far as the evidence is different, the opinion of the earlier court does not assist the court’s task.

…

104. As in the case of the rule which excludes opinion evidence, generally, therefore, the true justification for the rule in Hollington v F Hewthorn & Co Ltd, as I see, it is not that the opinion of an earlier court is irrelevant, but lies in the requirements for a fair trial. The responsibility of a judge to make his or her own independent assessment of the evidence entails that weight ought not to be attached to conclusions reached by another judge — all the more so where the party to whose interests the conclusions are adverse was not a party to the earlier proceedings…”.

12.In short, the exclusion of the factual findings and conclusions of an earlier court or tribunal from subsequent proceedings serves to ensure a fair trial, but such concern does not exist in relation to the evidence referred to in an earlier judgment such as the contents of documents or the evidence of witnesses, see paragraphs 28 and 29 of Capital Century, supra. Such principle was reaffirmed in JSC BTA Bank v Mukhtar Ablyazov [2017] EWHC 2906 (Comm) at paragraphs 26-28 per Sir Ross Cranston.

13.I therefore reminded myself that in hearing and determining this case, I have to make my own decision on the evidence and submissions presented to me, without being influenced by the opinion of the earlier magistrate. And I also bear in mind that the record of the criminal trial is conclusive evidence of P’s acquittal only but no proof that P was innocent or Ds were guilty.

14.Re-litigation can sometimes be an abuse of process but the present action is not an attempt to rake over the ashes for a rerun of the magistracy action in the guise of a new action. P’s cause of action here was founded upon his earlier acquittal and the alleged fabrication he raised at the trial in the Criminal Proceedings. While the issue in the Criminal Proceedings is not identical to what raised in these current proceedings, in order to determine whether D1-3 did assault P, it would be necessary to call substantially the same evidence before the magistrate trying the assault.

15.For these reasons, in considering the evidence before me, I find it is important to study the statements and factual evidence presented in the Criminal Proceedings not only for the purpose of reference, but such evidence is vital to this case as quite plainly, the history of this incident happened ten years ago from the instant trial, and human memory only deteriorates with time. The statements taken by the police and the evidence given for the Criminal Proceedings should therefore be treated as contemporaneous evidence of the incidents in question with higher probative value than any witness statements of P and Ds prepared for this case with the benefit of hindsight.

16.In this regard, I also bear in mind the approach in assessing witness’s credibility summarized by Hon Coleman J in Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923, paragraphs 53 to 62 especially where the incident happened long before the giving of evidence, in particular:

“57. These matters do not mean that human memory is simply unreliable. Often, memory is reliable. However, it is also fallible, and so when assessing reliability, it is important to have in mind what causes that fallibility.

58. Therefore, in a case such as the present case, it seems to me that a sensible approach may be to limit (or at least be cautious about) the reliance placed on the witnesses’ individual recollections of what was said in conversations, and to give more weight and make factual findings on inferences drawn from any documentary evidence as well as known or probable facts, in particular objective facts.

59. Documents which are likely to be helpful are those contemporaneous documents which may describe not only what was going on, but also the motivation and state of mind of those concerned…

60. In most cases, the credit of a witness on matters not germane to the litigation is unlikely to be helpful, and the demeanour of witnesses is not a reliable pointer to honesty or accuracy. Witness evidence, written and oral, is obviously not without purpose; but, its principal uses are to allow scrutiny of any documentary record and to evaluate the witness’s motivations, personality and working practices.

61. Evaluation of a witness’s evidence may, depending on the particular circumstances, also include having regard to factors such as: evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleadings, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure: see Painter v Hutchison [2007] EWHC 758 (Ch) at paragraph 3…

62. An examination of the consistency of conduct and documents and motives will, therefore, likely be helpful. As long as it is recognized that there is also a risk of potential (perhaps unconscious) bias in the identification of them, it is the inherent probabilities and likelihoods which will be of greater assistance in deciding what, on the balance of probabilities, actually happened.”

17.In light of the above, the assessment of witness’s credibility must pertain to their earlier police witness statements and oral evidence given under oath. The evidence given by various witnesses in this action is of comparably less value but be helpful in examining the consistency of the individual witness’s conduct, documents and motives.

Hearsay Evidence

18.P’s Counsel, M. Wong (“Mr Wong”), contended that P’s version of the incident was supported by the evidence of the then Chief Officer, Leung Chun Yin (“Leung”), who was called at the criminal trial by the prosecution as a witness, but not for the present proceedings. Mr Kwan, counsel acting for the Ds (“Mr Kwan”), reminded this Court in his opening submission that a party proposing to adduce in civil proceedings hearsay evidence shall give to the other parties to the proceedings such notice of that fact under section 47A(2) of the Evidence Ordinance Cap 8 (the “EO”) as is reasonable and practicable in the circumstances for the purpose of enabling them to deal with any matters arising from its being hearsay. A failure to give such notice nonetheless will not affect the admissibility of the evidence but may be taken into account by the court as a matter adversely affecting the weight to be given to such hearsay evidence under section 47A(4) of the EO.

19.P did not give any hearsay notice for the use of the evidence of Leung’s statement but based on the principles stated in paragraphs 9-15 hereinabove together with the consideration of s 49 of the EO, I have no hesitation in giving weight to Leung’s statement and his oral evidence that was given under oath in court as shown in the Transcript.

Evidential threshold for serious allegations of wrongdoing

20.Notwithstanding that P’s claim involves serious allegations tantamount to criminal allegations, the standard of proof remains the civil standard - on balance of probabilities. Mr Kwan relied on the leading authority In re H & Ors (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and reminded this Court the following passage from the majority in the House of Lords held at paragraphs 73-74:

“73. The more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability… Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

74. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow’s Will Trusts [1964] 1 W L R 451, 455: “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”

21.The followings are my assessment of evidence bearing in mind the principles stated in the foregoing paragraphs.

ANALYSIS OF EVIDENCE

Assessment of D1-D3’s credibility

22.D1 to D3 gave evidence in accordance with their witness statements to the police at the criminal trial. They gave evidence that while D3 was in the Office trying to explain to P about his Refund Request, P suddenly lost his temper and became emotional, took out a ball pen and tried to attack D3. All D1-D3 gave evidence that the whole incident (i.e. from the time P was brought into the Office to the time he was taken away) lasted for less than two minutes.

23.There were two important aspects of evidence raised by P to highlight the unreliability of Ds’ evidence, first being the CCTV footage record which allegedly did not support D1-D3’s sayings that D1 only entered into the Office after P was brought in. Secondly, the position alleged by D1-D3 where P was subdued in the Office did not accord with Leung’s evidence.

24.There were various sets of CCTV camera footage played in the present proceedings to show the process of how P was escorted to the Office, and brought away after the alleged attack. My focus, as highlighted by Mr Wong at the trial, was the recordings from CCTV camera number 115 (“Camera 115”) and number 168 (“Camera 168”). Camera 115 captured D2 escorted P and walked into the corridor leading to the Office at 14:31:29 hours. The same camera showed a number of CSD officers were seen rushing towards the Office’s direction at 14:34:30, which was more than two and a half minutes after P was seen to carry off.

25.On the other hand, Camera 168 captured D1 turned into the corridor where D3’s Office situated at 14:26:26 and an unidentified officer was seen walking leisurely at 14:30:20. About 3 minutes later, number of CSD officers were seen rushing towards the direction of D3’s Office at 14:34:10.

26.The time of these two Camera115 and Camera 168 were not calibrated, but parties of both sides did not dispute the accuracy of these cameras’ time. In light of these videos, I agree with P that the alleged incident, either P or D3 being attacked, must have happened between 14:30:20 and 14:33:28.

Where was D1 before P was brought to the Office?

27.The problem with these records of camera footage is that D1 was seen walking up a staircase and turned into the other end of the corridor at 14:26:26 from Camera 168. And since the Office was just beside the staircase, P contended that D1 must have been in the Office for at least 4 minutes already before P was taken inside by D2 at 14:31:29 (the “Critical 4 Minutes”), which tallies with the evidence given by P that D1 was present in the Office at the time when he was brought in.

28.Mr Kwan argued that the mere capturing of D1 turning into the corridor of the Office did not mean D1 entered the Office before P’s arrival. Ds’ case relied on the evidence given by D1 that part of his duties was to patrol SPP to ensure everything was in order. D1 further stated under cross-examination that after going up to the 1^st Floor where the Office situated, he spent the next few minutes checking the facilities of the common area on that floor before hearing the noise coming from the Office. He took several moments to identify the precise source of the noise before deciding to enter into the Office, and once he entered the Office, he saw the struggle between P and D2.

29.I agree with Mr. Wong that such version of events is not sustainable. Although the camera footage proved the existence of such ‘common area’ is in close proximity of the Office, I bear in mind that D1 had never explained in the Criminal Proceedings the details as to what he did in those Critical 4 Minutes. Further, given the restricted size of the ‘common area’ outside the Office on the 1^st Floor corridor, I would expect that D1, if he was there as alleged, would have been able to see D2 escorting P to the Office at around 14:30:20.

30.The weakest evidence from D1 which allowed me to reject his evidence would be the direct contradiction between his earlier evidence in the Criminal Proceedings and the current trial; in the former, D1 gave evidence in-chief that he heard noises from the Office when he was at the corner of the staircase（咁未到值日官嘅辦公室之前，咁喺樓梯轉角位就聽到總懲教主任行政嗰間房嗰度就有啲聲音出嚟），however, the evidence he gave under cross examination in this current trial was that he heard noises when he was checking the facilities of the common area on 1^st Floor and it took him a moment to decide to go into the Office.

31.Although Mr Kwan averred that the duration between D1’s arrival at 1^st Floor and hearing the noise from the Office was not put to D1 at the trial, the obvious discrepancies between the evidence given by D1 in the current proceedings and the Criminal Proceedings are clearly irreconcilable.

32.The rejection of D1’s evidence itself however does not denote that he must have been in the Office before P’s arrival, and the probability of such must be weighed against other available evidence.

33.Mr. Kwan relied on Leung’s evidence to support D1’s account that he had only entered the Office after P. In the Criminal Proceedings, Leung gave evidence that he was the first one who arrived at the Office after hearing noises, and he saw the door was ajar（道門係虛掩嘅…虛掩嘅意思即係開咗少少）。It is P’s case that D2 closed the door of the Office after P was brought in, as such, if the door was opened when Leung arrived, this must necessarily mean that someone must have opened the door after P was taken into the Office.

34.Ds’ case is that the slightly-opened-door strongly suggested D1 did enter the Office the way he described; that he was alerted by the noise from the Office and went in without closing the door.

35.I agree there is logics to Mr Kwan’s explanation but consider that it is dangerous to draw any conclusion simply from a door being left opened. I could see alternative explanation such as the door was never properly shut by D2. Thus, while accepting Leung’s evidence that the door was left ajar, I do not think this itself could negate the possibility that D1 entered the Office before P was brought in.

The location where P was subdued

36.The Office is not particular spacious and a cabinet with 5 drawers (the “Cabinet”) was placed facing the door, which means as soon as one walks into the Office, the view of the Office will be partly blocked by the Cabinet.

37.P alleged that he was subdued near the door of the Office, and claimed his version tallied with Leung’s evidence in the Criminal Proceedings. This contrasted to Ds’ case that P was subdued in the area between D3’s desk and the Cabinet.

38.Both D1 and D3 gave evidence that the width of the Cabinet was about the same as the door. I compared the exhibits from the Criminal Proceedings which included some photos that depicted the internal of the Office and a master layout sketch of the Office which was used for witnesses to mark down the location where P was subdued. The width of the Cabinet showing therein was significantly wider than it should be, and thus I could not eliminate the possibility that the location marked by various witnesses were affected by the inaccurate layout. In any event, I find that such discrepancies are not central to the crux of the current dispute, and given the chaotic nature of the incident, the location where P was finally subdued without any resistance should not affect the general credibility of both P and Ds’ witnesses in this action.

39.Besides the matters highlighted above, I find all D1-D3 gave evidence largely consistent to their earlier statements, and when there was evidence given in this trial different to their earlier testimonies in the Criminal Proceedings, I put more weight to the latter as the earlier evidence was given closer to the incident. Besides, not all inconsistencies indicate unreliability because it is far from realistic to expect any of the witnesses, including P to have detailed recollection of the event that happened ten years ago.

40.Since D1-D3’s evidence corroborated each other’s, I reminded myself that since I found D1’s evidence unreliable, the evidence given by D2-D3 should also be assessed cautiously even when there were no apparent internal inconsistencies.

41.On the other hand, even if I accept P’s case that D1 was in the Office at the time he was brought in, this does not imply the alleged assault happened the way P averred. P’s credibility must be assessed on its own merits before coming to any findings.

Assessment of P’s credibility

42.Mr Kwan in his closing submissions analysed P’s evidence in detail, explaining the inconsistencies between the P’s Alleged Assault and his medical records, the omission of the alleged assault from D3 in P’s original Statement of Claim written by himself (“SOC”), the delay in providing particulars as to the P’s Alleged Assault to police, and also some internal inconsistencies between his pleaded case and his evidence about the course of events as well as his injuries. I do not intend to go through all of them here but would highlight the few aspects of evidence which to my mind, most damaging to P’s credibility.

43.But before coming to this, I will at this juncture deal with

Mr Kwan’s criticisms of P giving no particulars regarding the Alleged Assault in his first cautioned interview with the police, and his reasons given to the interview police of not providing particulars were not believable.

44.The right to remain silent is a cornerstone of the criminal law, which provides accused individuals with crucial protection to avoid self-incrimination. There is no general obligation on an accused to disclose the nature of his defence until trial, let alone provide any detailed statements. I accept P might simply make up some excuses to the interviewing police so that he would not have to give out any details of his defence, but the omission of such does not affect his credibility.

45.On the same note, no adverse inference can be drawn against P for his delay in disclosing that he saw D2 holding a pen against his own left forearm.

The Alleged Assault

46.According to P’s evidence in the Criminal Proceedings, D2 bear-hugged him from behind once he was escorted inside the Office, with D1 pointing the pepper spray towards his face. P was asked by D3 to withdraw his JRs or he would be beaten.（一攬住我之後，咁張偉新就行到我面前，攞支胡椒噴霧對住我塊面，跟住趙俊康就對我講，叫我撤銷兩宗司法覆核，如果唔撤銷，就即刻打我。）[1]

47.And as soon as P said no, D1 used the pepper spray to spray on P’s face. P claimed he had shut his eyes due to pain and D2 started to attack his right buttock from behind.（一講完「唔得」嘞，張偉新就攞胡椒—就㩒—即係就射胡椒噴霧落我塊面度嘞。因為當其時已經對住我塊面㗎喇。咁一噴完之後，咁我當然係合埋眼縮喇，即係痛喇。但係都係俾佢噴到塊面嘅。咁跟住翁進鏵就開始喺後面用佢嘅腳踭迷咗我 — 向我嘅右臀部連續鋤咗三、四腳，而我前面亦都係有人打我嘅。）[2]

48.P said he was continued being beaten up and ended up at the corner of the Office where he was in a face down position[3] with his head near the door. He was being sat on by an unidentified male who used one hand to bend P’s right arm behind P’s back, and another person was covering his mouth and nose. He was eventually freed from the suffocation and he heard this unidentified male call for assistance via his walkie-talkie.[4] P recognised the voice of this unidentified male as D1’s. P gave evidence that about ten odd seconds later, he saw Leung at the door and this was the first time he opened his eyes after he was pepper-sprayed.[5]

49.Shortly after other CSD officers started to arrive in the Office and he was lifted up by some unidentified person(s), he had one to two seconds of time to see D2 holding a ball pen with a lid against his own left forearm before he was escorted out of the Office.（其實當其時我 - - 係只係望到 - - 兩秒到㗎咋。咁我就望到翁進鏵就揸住一支有蓋嘅原子筆，就對住自己嘅左前臂，內側，就係咁多, 然後增援人員亦都到埋，就即時瞬間就押咗我走。）[6]

50.The importance of P seeing D2 holding a ball pen against himself is that it is used to suggest that the injuries found on D2’s left forearm was self-inflicted. I reminded myself the judgment in In re H & Ors (Minors), supra where the House of Lords held that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. Bearing in mind the explanations given by the House of Lords in paragraph 73 that “Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her.” — on the same logic of reason, I am convinced that “self-inflicted injury is less likely than injury from an assault” and more cogent evidence is required to establish the event as P averred.

51.There are intrinsic weaknesses and inconsistencies in P’s evidence as to what he saw. P gave evidence in both the Criminal Proceedings and this current action that his face was full of pepper spray[7] and was in pain, not only during the incident, but also after he was brought to receive medical treatment.[8] While this calls into question the ability or quality of his vision at the material time, P gave evidence that both his mental and physical state were equally affected after the alleged assault to an extent that he could not stand still and felt dizzy.[9] Not only do I have grave doubts as to his ability to see things clearly in that fleeting moment, I found his adamant insistence that the pen he saw ‘was not a blue pen’ and ‘with a lid on’ was simply incredible[10] due to the following observations.

52.P gave evidence during the trial in the Criminal Proceedings that his own pen had no lid, and D2 gave evidence that inmates of the SPP were only given blue colour ball pens[11], thus by saying that he saw D2 holding a pen with a lid and not in blue colour was a strong implication that such pen did not belong to P.

53.In assessing the reliability of his averrment, I paid particular attention to the state of mind which he explained in the current trial. He said he formed no particular impressions of D2’s act at the time when he saw it but only started to ‘rethink’ about this scene after learning from the police on 15 June 2015 when his first cautioned statement was taken that the injuries allegedly suffered from D2 was caused by a pen.[12]

54.Given his physical and mental state at the time he was subdued and escorted out of the Office, I find it objectively improbable that P could recall such small details of something that was seen in a fleeting moment after a lapse of time.

55.Further, should P’s averrment that D1-D3 acted in concert to frame him up is believable, it is reasonable to expect D2’s self-inflicted act would have been done discreetly. According to P, the beating lasted for about two minutes and at no times did he had resist or struggle[13], bearing in mind that he claimed to be ‘sat on’ and assaulted by D1 after which there was another ten odd seconds waiting for support, D2 would have had ample opportunities to inflict self-harm before other CSD officers arrived. It therefore begs the question why D2 chose to take an entirely unnecessary risk to inflict harm to himself at the moment when numbers of CSD officers congregating outside and inside the Office could have witnessed his act.

56.Moreover, as can be seen from the exhibit photos, there were in total four scratches found on the left forearm of D2 (with one of the scratches smaller and further away from the other three). I found no reasonable and objective explanation that D2 needed to mutilate himself with 4 strokes when one would be sufficient for a charge of assault.

57.From my view, the evidence of P seeing D2 holding a pen against himself is more likely than not a fabrication, with an objective to inculpate D2. This does not only show that D2 did not hurt himself and/ or hurt himself in the manner described by P but also renders P an unreliable witness. For the sake of completeness, the following paragraphs explain other incredible evidence given by P, which allowed me to reject his evidence in totality.

58.First, he mentioned having his eyes shut during the entire assault because of the pain from the pepper spray[14], and did not open his eyes until Leung came to the scene. I was urged by P that Leung’s evidence given in the Criminal Proceedings should be relied on as Mr Wong submitted in his opening submissions that P’s version about the course of the incident was supported by Leung’s.[15] However, Leung’s evidence that the door was ajar also contradicted P’s saying that he could feel the draught when the Office’s door was opened by Leung. There was no reason why Leung needed to lie and I prefer his evidence over P’s.

59.Secondly, given that P’s eyes were closed during the entire alleged assault, there was no possible way for him to identify accurately various locations of the Office where he was being attacked and subdued, and it is dangerous to rely on such evidence which he was using merely his ‘feelings’ to describe.

60.Thirdly, it was P’s case that he was sat on by an unidentified male whose voice was later recognised by P as being D1’s (paragraph 48, supra), this however contradicted Leung’s case where he said it was D2 who was pressing down P when he arrived at the door of the Office.[16]

The alleged plot to force P withdrawing his JRs

61.Notwithstanding all the inconsistent and/or incredible evidence stated above, I have carefully studied the motives of D1-D3 alleged by P to gauge the propensity of the P’s Alleged Assault. There is no dispute that P made two applications for the JRs (HCAL 61/2015 and HCAL 70/2015) at the time of the incident, and it was agreed by P that none of D1-D3 were in the decision making of the matters he raised in his JRs. In fact the subject matter raised in HCAL 70/2015 was about some fundamental rights of all prisoners, and thus such JR was to be decided by the headquarters of CSD, but not any individual officers at the SPP. In gist, there was no valid explanation from P as to how D1 to D4 would be directly affected by the JRs.

62.Afterall, evidence also revealed that D3 and D1 worked in different divisions and shifts and had no direct working relationship with each other. There was no evidence, even from P, of grudges between himself and any of the Ds. D1 also gave evidence that at the time of the incident, he was about two years away from his retirement year. Why would D1 take a risk in assaulting P when there is no benefit to him vis-à-vis the JRs so close to his time of retirement?

63.Summing up the above, it is simply inconceivable that three CSD officers who did not know each other well would conspire and concoct a plan to force P to withdraw the JRs, which bears no direct relevance to them, at the risk of losing their jobs and/or pensions.

64.Mr. Wong in his Opening Submissions suggested that the subject of the JRs “is beside the point” and that the incident was for D1 to D3 to teach P a lesson and “not to kick up a fuss without success”. With respect, I agree with Mr Kwan that this was a complete shift of P’s case and contradictory to P’s own evidence. First, in P’s Re-Amended Statement of Claim (“RASOC”) which was prepared by P’s legal representative, it is clearly pleaded that the incident is for D1 to D3 “to force and or bully P into withdrawing his outstanding judicial review cases”. Secondly, it was never pleaded in the RASOC that P was a big troublemaker or that the incident was to teach him a lesson. Indeed, P’s evidence in both the Criminal Proceedings and the current action averred that he was specifically asked by D3 to withdraw the JRs when he was being beaten up[17], but no remarks or utterance from D1 to D3 about ‘stop kicking up a fuss’. This newly aversion of ‘motivation’ must therefore be rejected.

65.In any event, should P’s version was to be accepted that D1-D3’s assault was to force him withdrawing his JRs and/or giving him a lesson, I still fail to see any logic of them accusing P of AOABH, which would only put them at risk of exposing their mischievous behavior through the Criminal Proceedings.

Summary on evidence

66.P was an incredible witness from the analysis above.

67.I found no cogent evidence to support P’s allegation of being framed up by D1 to D3 for assaulting D2. There was not a scintilla of truth in P’s aversion of D2’s self-inflicted act. Although I have reservations of D1’s evidence as to his whereabouts after he left the staircase onto the Office’s floor, D2 to D3’s evidence must be, on the balance of probability, preferred over P’s. As such, I accept the defence case that P was escorted to the Office and became emotional when his Refund Request was rejected by D3. The respective injuries sustained by P and D2 were caused by the altercation, resistance and struggling between P, D1 and D2.

LIABILITY

68.The liability issues are discussed below premised on my fact findings.

Statutory Duties

69.First and foremost, P contends that D1 to D4 owe P a statutory duty in tort under the rules of the Prison Rules, and thus any breaches of the Prison Rules give rise to a civil remedy. Authorities from Hong Kong courts is scant on this topic but it is trite that not every breach of statutory duty gives rise to a civil remedy, but a question of construction of the relevant statute.

70.Mr Kwan has helpfully cited the relevant principles from Clerk & Lindsell on Torts (24^th ed) at [8-06] in his opening submissions:

The basic proposition is that, in the ordinary case, a breach of statutory duty does not, but itself, give rise to any private law cause of action.

Such a cause of action can however arise if it can be shown, as a matter of construction of the statute, that the “statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty”.

There is no general rule by which one can determine the intention of Parliament, but there are a number of “indicators”. Thus, if the statute provides no other remedy for its breach and the parliamentary intention to protect a limited class is shown, this indicates that there may be a private action, since otherwise there would be no means of enforcing the protection that the legislation was intended to grant.

Where the statute does not provide an alternative remedy to enforce the relevant duty, that will normally indicate that the statutory right was designed to be enforceable by those means only and not by private right of action. However, the mere existence of some other remedy is not necessarily decisive. It may still be possible to show that on the true construction of the Act, the protected class was intended by Parliament to have a private remedy.

Further, in [8-04]:

“the claimant must show that the damage he suffered falls within the ambit of the statute, namely that it was of the type that the legislation was intended to prevent and that the claimant belonged to the category of persons that the statute was intended to protect. It is not sufficient simply that the loss would not have occurred if the defendant had complied with the terms of the statute. This rule performs a function similar to that of remoteness of damage.”

71.It is therefore necessary to analyse the provisions of the Prison Rules under which the government prisons in Hong Kong are operated. It appears to me on a reading of the Prison Rules that they are not really designed to protect or give redress to prisoners but are intended to prescribe regulations, practices and provisions for the operation and administration of prisons, which encompass, inter alia, rules that prisoners have to follow, powers and duties of the officers, regulations in respect of visitors etc. Sections 70 to 174 of Division 5 of the Prison Rules provide a comprehensive list of duties of CSD staff, whereas Part IV prescribe rules as to the use of force or arms in prisons. A fair reading allows me to conclude that these sections are not written in the sense to impose duties on the CSD officers owing towards prisoners per se, rather, they are some detailed descriptions to define their duties, powers and prohibitions in respect of their ranks and capacity in their employment. In my view, these particular sections are akin to a work manual, with an intention to explain the work tasks of CSD officers.

72.Section 238A under Part V of the Prison Rules provide disciplinary provisions applicable to all staff employed in prisons, and those alleged breaches of statutory duties raised by P are to be found under section 239, with sub-section (a) to (r) being disciplinary offences that CSD officers commit can be subject to disciplinary proceedings. It is important to note that the procedure of such disciplinary proceedings, as provided under s 243 of the Prison Rules, is to be invoked by a CSD officer (not being below the rank of Chief Officer).

73.Most importantly, a staff who is found guilty of disciplinary offences maybe punished according to prescribed punishments listed under sections 247 to 249 of the Prison Rules. It is clear therefore that the government prisons operate as an organization in accordance with its own rules and any failure to comply with the statutory ‘requirements’ may lead to consequences expressly provided for under the Prison Rules. On the other hand, nowhere can I find a provision giving rise to a civil remedy for misconducts of CSD officers. I bear in mind that if a statute is silent as regard a civil remedy for a breach, the judge must examine the scope and purpose of the statute. See paragraph 20 of Richardson Greenshields of Canada (Pacific) Ltd v Keung Chak Kiu and Anor (unreported), HCCL 51/1988, 2 February 1989 per HJ Sears. Since I have already concluded that the Prison Rules was not passed to protect the welfare of the prisoners per se, but to provide regulations on the operation and administration of prisons, I am convinced that the Prison Rules is not designed to be treated as some statutory duties or legal obligations to give rise to third party claims, and thus no civil remedy lies for breaches of statutory duty of the sort P alleges.

74.Notwithstanding the above analysis, should there be any misconducts from the CSD officers or staff, prisoners can still enjoy ample and adequate civil remedies without resort to breach of statutory duty.

Assault

75.An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person. The defendant’s act must also be coupled with the capacity of carrying the intention to commit a battery into effect, see Clerk & Lindsell on Torts, supra at [14-12].

76.The medical report prepared by Dr. Lui Sheung-chung who examined P shortly after the incident at SPP Hospital showed the following findings:[18]

(i)  One redness with swelling, about 2x3cm, found over left side of scalp;

(ii)  Diffuse redness over scalp, face, neck and both conjunctiva;

(iii)  One superficial abrasion with swelling, about 2x3cm, over middle area of spine;

(iv)  Tenderness (elicited by palpation during physical examination) over right middle area of back and right lower scapular, left elbow lateral epicondyle, right buttock ischial tuberosity, left hip greater trochanter, right posterior-middle aspect of thigh; and

(v)  Several scratch marks, about 3cm, found over central abdomen.

77.Based on my factual findings that D1-D3 did not assault P the way he described, and taking into account of the nature and the body parts of the injuries suffered by P, I found those injuries were more likely than not occasioned by his resistance from being subdued, and the physical struggle with D1 and D2. Nevertheless, it is still necessary to consider the legality of the restraint and force applied on him as “police officer (or any other law enforcement agent) has no greater rights than ordinary citizen” per Goff LJ in Collin’s v Wilcock [1984] 1 WLR 1172 at 1178E. The relevant legal principles in relation to the scope of lawful arrest was discussed in Wong Weng Chi v Commissioner of Police [2020] HKDC 412 at paragraphs 22-32. In gist, the reasonableness of the force used on P must be examined against the overall circumstances of the arrest, or in this instant case, the restraint. Verbal warnings must be given and physical force must proved to be necessary.

78.Based on the evidence given by D2 and D3, I am satisfied that P exhibited violence after his Refund Request was refused by D3, and that D2 gave verbal warnings before using reasonable measures to prevent P injuring himself and others in the Office. I am satisfied that that warnings were given to P before D1 and D2 exerted force and pepper sprayed him, in such premise, the allegation of assault could not sustain.

Misfeasance in public officer

79.The essence of the tort of MIPO is abuse of public office in bad faith and dishonesty. As stated by Hon Au-Yeung J in Thapa Kamala v Tong Ming Kay & Ors [2021] HKCFI 2371 at paragraph 34, P must establish that (1) the conduct was that of a public officer exercising power in that capacity; (2) the officer must have either intended to injure P buy his acts, or knowingly or recklessly acted beyond his powers and the act would probably injure P; and (3) damage must thereby be caused to P in circumstances where the public officer knew the act would probably cause damage of the type suffered.

80.The requisite state of mind can therefore be divided into two broad types: (1) targeted malice; and (2) untargeted or reckless untargeted malice. Since I have rejected P’s evidence, there would clearly be no malice on the part of D2 and D3. Whilst D1’s evidence as to his whereabouts in the Critical 4 Minutes being unreliable, his presence or non-presence in the Office is neither central nor conclusive to the issue.

Malicious Prosecution

81.The tort of malicious prosecution was explained in Oh Jae-Hon Eugene v Richdale [2004] 4 HKC 315 at 322C-H as well as Thapa Kamala, supra in paragraphs 43-51. Mr. Kwan contended that the Court should not find D1-D3 liable in any event as they were not the prosecutors. For the sake of argument, should I have found D1-D3 giving false evidence in the Criminal Proceedings, their witness statements given to the prosecuting authorities would satisfy the elements of malicious prosecution given their apparent intention to influence the relevant prosecution authority in order to secure the wrongful conviction of P. However, based on my acceptance of D2 and D3’s case, it is clear that the prosecution in the Criminal Proceedings was not without reasonable or probable cause, and thus not malicious. Again, even D1’s evidence was not entirely reliable, P has still failed to prove that such evidence (or his witness statements given to the police for the Criminal Proceedings) was made for an illegitimate or oblique motive.

Vicarious liability

82.Given my findings above, there would be no vicarious liability on both D4 and D5. Should my findings be challenged and this becomes an issue in the future, I am of the view that D4 would not be found liable in any event just because he was a supervisor of D1-D3 at the material time.

83.Regarding the vicarious liability of D5, Mr Kwan contended that D5 should not be held liable for their employees’ frolic act even such acts were carried out during the employment because the Alleged Assault and alleged fabrication of evidence can hardly be ‘so connected’ with their employment.

84.I have been greatly assisted by the two authorities submitted by Mr Kwan including Lister v Hesley Hall Ltd [2002] 1 AC 215 and Racz v Home Office [1994] 2 AC 45 despite I came to a conclusion different from his. It is now opportune to take a closer look at these decisions in the context of vicarious liability. Both these cases concerned about the employers’ liability over their employees’ wrongdoings, namely sexual abuse performed by the warden of a boarding house in Lister and misfeasance in prison staff in Racz. The House of Lords in both cases held that the employers could be vicariously liable for acts of their employees even those acts were committed in bad faith and their employers were not negligent.

85.In Lister, the century-old test propounded by Salmond in Law of Torts, 1^st ed (1907) 83 was revisited where Salmond said that ‘a wrongful act is deemed to be done by a “servant” in the course of his employment if “it is either (a) a wrongful act authorized by the master, or (b) a wrongful and unauthorised mode of doing some act authorized by the master”. Difficulties usually arise from situation (b) and the learned author provided a ‘close connection’ test where he explained “a master is liable even for acts which he has not authorized, provided they are so connected with acts which he has authorized, that they may rightly be regarded as modes — although improper modes — of doing them.”

86.Such connection test requires the court to examine the nature and scope of the employment and the wrongful acting of the employee. The sufficiency of connection will exist “where the workman does some work which he is appointed to do, but does it in a way which his master has not authorized and would not have authorized had he known of it, the master is nevertheless still responsible, for the servant’s act is still within the scope of his employment.” This however must be distinguished from a situation where the servant is employed only to do a particular work or a particular class of work, and he does something outside the scope of that work, the master is not responsible for any mischief the servant may do to a third party.

87.The distinction between these two scenarios were explained by Lord President (Clyde) in Kirby v National Coal Board 1958 SC 514 which was quoted in Lister paragraph 39:

“It is often difficult in the particular case to distinguish between the second and the third of these situations, but the criterion is whether the act which is unauthorised is so connected with acts which have been authorized that it may be regarded as a mode — although an improper mode — of doing the authorized act, as distinct from constituting an independent act for which the master would not be liable.”

88.As such, the correct approach is to examine first, the scope of the employment, and secondly whether the tortious act comes within the scope. Likewise, should there be any prohibitions imposed by the employers in the course of the employment, it is necessary to consider if such prohibition is one to limit the scope of employment or one to deal with conduct within the scope of employment. Should the tortious act was committed simply due to any opportunities give rise from the surroundings of the employment rather than a failure of one in performing or adhering to the rules, such casual coincidence would not give rise to the vicarious liability.

89.But what is or is not included within the scope of the employment is very much a matter of fact, and in Lister, the House of Lords affirmed a broad approach should be adopted in considering the scope of the employment but not to dissect the servant’s task into its component activities. Both the negligent quality of the act and the connection with the employment have to be assessed against the background of the particular circumstances.

90.In the present case, the duties of D1-D3’s positions are no less than a warden of SPP where D5 entrusted the care of the prisoners to them. Under the Prison Rules, D1-D3 have the duties over the safety and welfare of the prisoners, they are empowered to supervise, control, punish prisoners and use reasonable force against them if proved necessary. Should P’s case be believed, the violence acted on him would certainly be an abuse of power that was granted to D1-D3 within their scope of employment. Applying the reasoning of Lister, the liability of the employers derives from their voluntary assumption of the relationship towards P, and the duties that arise from that relationship and their choosing to entrust the performance of those duties to D1-D3. The motive of D1-D3 and the fact that they were doing something expressly forbidden and were serving only their own ends would not negate the vicarious liability for his breach of such entrusted duty.

DAMAGES

91.Based on my findings on liability, P would not be entitled to any damages claimed.

CONCLUSION

92.It is clear, therefore in my judgment, that P has failed to establish his pleaded case against D1-D5, I therefore order P’s claim be dismissed and P should bear the costs of D1-D5 including any costs reserved, with certificate for counsel, to be taxed if not agreed. The order nisi shall become absolute if no application for variation is made within 14 days of the delivery of this Judgment. P’s own costs be taxed in accordance with the Legal Aid Regulations.

93.I thank counsel for their assistance.

Mr Wong Hay Yiu, instructed by Alex To & Co, assigned by the Director of Legal Aid, for the Plaintiff

Mr Jonathan Kwan and Mr Thomas Nip, instructed by Department of Justice, for the 1^st to 5^th Defendants