Lam Kang v. Choi Hok Yin and Another

HCPI 557/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 557 OF 2004

____________

BETWEEN

____________

Before: Hon Chung J in Court

Date of Hearing: 20 March 2006

Date of Ruling: 20 March 2006

___________

R U L I N G

___________

1.This is the ruling on the plaintiff’s application for leave to amend his Statement of Claim.  The proposed amendment is by way of the addition of a new paragraph 6(n) which reads:-

“If, which is not contended by the plaintiff, that the 1^st defendant did announce his police identity and warn the deceased not to move, the 1^st Defendant suddenly emerged at the scene contrary to instructions of his superior in how to deal with the said Vehicle, and further without taking any or any due consideration of the condition that it was raining and dark, or that whether the occupants in the said Vehicle was or were able to see or hear him, placing himself in a risky situation which might or did give rise to serious consequences.”

2.The application is opposed by D1 (D2 takes a neutral position).  The principal ground of opposition is that there is no evidential basis in support of the averment that:-

“…[D1]… emerged at the scene contrary to instruction of his superior in how to deal with the said vehicle….”

3.The facts of this action need to be briefly mentioned to facilitate the understanding of this ruling.  The deceased (aged 24 at the time of death) was the driver of a light goods vehicle.  The light goods vehicle was the target of a police surveillance operation.  When the light goods vehicle stopped in front of a traffic light, D1, a police sergeant, approached it.  What precisely happened subsequently forms the gist of the factual dispute in this action.  But what is undisputed is the fact that a shot was fired from D1’s pistol which injured the deceased (who later died as a result).

4.This action is brought on the following basis:-

(a)            unlawful shooting;

(b)           breach of police general orders governing the use of firearms by police officers; and

(c)            negligence.

5.The proposed amendment is intended to be one of the particulars given in support of the alleged negligence.

6.Mr Sakhrani, counsel for D1, submitted that the gist of the statements from the police witnesses was that D1 was already out of the office when briefing was given to the other police officers by the team leader, a police station sergeant.  He also refers me to the findings of not guilty by the police disciplinary tribunal where 1 of the 3 charges which D1 faced was disobeying the instructions of his superior officers.

7.On the other hand, Mr Ho, counsel for the plaintiff, asks me to examine the statement of DSPC 21260.  He contends that it is probable the court may infer from what this police officer said there that D1 was aware of the instruction not to approach the light goods vehicle until it was safe to do so.

8.I agree with Mr Sakhrani that a lot of the documents in the trial bundles support his submission.  However, matters such as:

(a)     what instructions were given to the team of police officers including D1;

(b)     whether D1 was aware of the instructions given to the other officers

are factual matters and they are part of those factual disputes which will have to be determined after trial.

9.Judging from the statement referred to by Mr Ho, it does not appear to me at this stage that the averment in the proposed amendment is entirely hopeless.

10.For this reason, I will give leave to the plaintiff to amend the Statement of Claim.

Mr B K Ho, instructed by Messrs Hon & Co., for the Plaintiff

Mr Ashok K Sakhrani, instructed by Messrs Cheng, Yeung & Co., for the 1^st Defendant

Ms Eliza Yiu of Secretary for Justice, for the 2^nd Defendant