Wu Shubun v. Secretary for Justice for and on behalf of Commissioner of Police
Read the full judgment text of HCPI 1348/2000 on BabelCite. This High Court CFI judgment was delivered on 20 May 2008.
1. This judgment is divided into the following parts :
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HCPI 1348/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1348 OF 2000 ----------------------
---------------------- Before : Hon Poon J in Court Dates of Hearing : 10–14, 17–21, 24–25, 27–28 September, 2–5, 8–9, 15–16, 18, 22–24, 29, 31 October, 1 November 2007 and 17–18 March 2008Date of Judgment : 20 May 2008 ---------------------- J U D G M E N T ---------------------- 1.This judgment is divided into the following parts :
A. THE DISPUTES 2.The plaintiff alleges that the police wrongfully and intentionally assaulted him on 3 occasions :
These occasions are referred to as “the 1st, 2nd and 3rd Occasions” below. 3.The plaintiff alleges that assaults on him on the 1st and 2nd Occasions caused him to develop schizophrenia and phobia of police, which has since continued to date. In October 2000, he commenced this action by his mother and next friend, Madam Chan Nung Chu (“Madam Chan”), against the Secretary for Justice for and on behalf of the Commissioner of Police, claiming damages of about HK$7.7 million. 4.The Secretary disputes both liability and quantum. He strenuously denies that the police had assaulted the plaintiff on any of the Occasions as alleged. He accepts that the plaintiff suffers from schizophrenia but not phobia of police. He denies that there is any causal connection between the alleged assaults, even if proved, and the plaintiff’s schizophrenic disorder. The plaintiff was already in the prodomal phase prior to the 1st Occasion and his mental condition would have led to his disorder any way. As to quantum, the Secretary contends that even if liability is established, the plaintiff is only entitled to a much smaller sum of about HK$500,000. B. SOME PRELIMINARY MATTERS 5.Before I come to the main issues, it is convenient to first dispose of several preliminary matters. B.1. The burden of proof 6.The burden of proof rests squarely on the plaintiff to prove his case. 7.The plaintiff pleaded that the assaults were wrongful and intentional; that the police officers in each of the three Occasions were actuated by malice and intended to and did humiliate him and subjected him to ridicule and indignity; and that their acts of assault and humiliation were oppressive and unconstitutional. All are very serious allegations indeed. That being the case, a word on how to approach the burden of proof is necessary. 8.The approach is to be found in Re H & Others (Minors) (Sexual Abuse : Standard of Proof) [1996] AC 563 where Lord Nicholls said at p.586D–G :
9.The Re H approach has been consistently applied by the courts in Hong Kong. Recently in A Solicitor v. The Law Society of Hong Kong, FACV24/2007, unreported, 13 March 2008, the Court of Final Appeal reiterated that the Re H approach is a feature of the civil standard where grave allegations are in issue : per Bokhary PJ at paragraph 84. 10.I will apply the Re H approach here. B.2. The factual witnesses 11.This case essentially turns on the credibility of the factual witnesses. For the plaintiff, they are :
The Secretary called 14 police officers[2] :
12.Given the nature of the disputes, counsel submitted and I ordered that the factual witnesses should give viva voce evidence. 13.I have carefully considered all the factual witnesses’ evidence and have, for that purpose, gone through the transcripts of the trial. Mr Lam, counsel for the plaintiff, asked me to take into account several general factors arising out of the special features of the present case when assessing their credibility. 14.First, Mr Lam submitted that because the incidents all happened some 10 years ago, allowance should be given to possible lapse of memory on the part of the plaintiff and his witnesses. I agree. I think that should equally apply to the police witnesses. In fact, some of them frankly admitted that other than the contemporaneous records they made in their police notebooks, they did not have any independent memory of what took place then because of the long passage of time. 15.Second, Mr Lam asked me to bear in mind the fact that the plaintiff is a psychiatric patient. I also agree. Although he is mentally fit to do so, giving evidence in court must have been extremely stressful to him.[3] 16.Third, Mr Lam submitted that since the plaintiff and his witnesses are grass-root people, they should not be expected to exhibit the same degree of sophistication as the police witnesses, who might be described as professional witnesses. While the plaintiff and his witnesses all evidently came from modest background, I do not think it has any particular bearing on their credibility. In essence, they were asked to describe what they perceived and did and what happened to them personally at the time. Those matters did not involve any particular difficulty or complication. The lack of sophistication on their part, if any, should not and could not have prevented them from properly understanding and responding with candour to the questions put to them or indeed giving evidence truthfully. The police witnesses might well have been trained to give evidence in court and are likely to have such experience in the past. But contrary to what Mr Lam has seemingly implied, even if they can be described as “professional witnesses”, it does not necessarily follow that they are more inclined to give false evidence. In my view, any difference in sophistication, if existed at all, might have affected the way the witnesses expressed themselves in the box but certainly not the substance or veracity of their evidence. 17.Fourth, Mr Lam submitted that Mr Shum, counsel for the Secretary, had spent a lot of time extracting from the plaintiff and his witnesses discrepancies between their oral testimony on the one hand, and documentary evidence and their witness statements on the other. Such an exercise is futile because given the passage of time and the unsophisticated nature of the witnesses, some discrepancies are natural and only to be expected. I agree only if the discrepancies are minor. If, however, the discrepancies are major or significant, a credible explanation is plainly called for. In the absence of any satisfactory explanation, the court is entitled to and indeed should approach the evidence affected by those discrepancies with caution. B.3. The medical evidence 18.The plaintiff called Dr Chan Sai Yin (“Dr Chan”) to give evidence on his behalf. The Secretary called Dr Peter W.T. Yu (“Dr Yu”). Both are psychiatrists. They have filed numerous reports. I will call Dr Chan’s reports “the Current Reports” below. 19.Mr Shum submitted that Dr Chan is not an independent witness and his evidence should accordingly be excluded.[4] He took a number of points. 20.First, Dr Chan was a senior medical officer of Kowloon Hospital between November 1994 and December 2001. In that capacity, he had interviewed the plaintiff twice (“the 2001 Interviews”) and preparing three medical reports as ordered by a magistrate (“the 2001 Reports”).[5] Dr Chan had not disclosed the 2001 Interviews or the 2001 Reports in the Current Reports. Mr Shum contended that the 2001 Interviews and the 2001 Reports were material facts which Dr Chan ought to have disclosed. His failure to do so cast grave doubt on his independence. 21.It is well established that an expert should inform the court all relevant matters whether such matters are favourable to his conclusion or not : HACTL v. Commissioner of Rating and Valuation [2004] 2 HKLRD 702, per Lam J at paragraph 28(e) at p.711B. The question is : are the 2001 Interviews and the 2001 Reports material facts that Dr Chan ought to have disclosed? 22.In his oral testimony, Dr Chan explained his non-disclosure thus. The 2001 Reports were irrelevant to the present action. They contained no information which contradicted the Current Reports. The 2001 Interviews were so brief that whatever information gathered then had not been used in the Current Reports. In any event, even without the 2001 Interviews, his opinions in the Current Reports would just be the same. 23.I accept Dr Chan’s explanations, which are not contradicted by any evidence before me. I find that the 2001 Interviews and the 2001 Reports are not material matters that Dr Chan should disclose. One may think that out of an abundance of caution, Dr Chan should have disclosed them. But the failure to do so would not somehow turn him into a biased witness as contended by Mr Shum. 24.The second point that Mr Shum took in attacking Dr Chan’s independence is this. Dr Chan had an interest in the outcome of this litigation. With respect, this attack, which has no evidential basis whatsoever, is most unfair and entirely unmeritorious. It must be rejected. 25.Thirdly, Mr Shum submitted that Dr Chan blindly accepted the instructions given by the plaintiff and his family on the alleged assaults and disregarded various medical reports prepared by the government doctors by accepting the explanations given by the plaintiff’s family without looking for independent evidence. He effectively contended that Dr Chan should have independently verified the truth of his instructions. I disagree. Generally speaking, an expert is entitled to accept the instructions on factual matters from his client and based on them as working assumptions to formulate his opinion. Mr Shum’s submission is wrong as a matter of principle because it requires an expert to undertake a fact-finding exercise on his instructions, which clearly falls beyond his expertise and role as an expert. Further, how Mr Shum treated Dr Yu’s evidence demonstrates that his attack on Dr Chan cannot possibly stand. Like Dr Chan, Dr Yu also based his opinion on the instructions that he had received, that is to say, no assault had taken place. Mr Shum said Dr Yu was entitled to take the instructions as assumptions and could legitimately proceed without carrying out any independent verification. This biased, inconsistent treatment that Mr Shum accorded to the two experts, who basically adopted the same approach, is not justified at all. 26.Finally, Mr Shum sought to rely on other points which, he submitted, showed that Dr Chan was not impartial. But I agree with Mr Lam that those points related to weight only and not admissibility of Dr Chan’s evidence. I will deal with them only if necessary below. 27.The experts’ reports are not the only medical evidence before the court. There are other contemporaneous medical notes and reports prepared by other government doctors who had examined the plaintiff or had seen his family members to discuss his mental illness. Mr Lam submitted that the makers of those reports and notes had not been called to give evidence. They are no more than hearsay evidence. I agree. But they are nevertheless evidence relevant to the plaintiff’s mental condition at the time and, as will be seen in a moment, also bear considerable weight on the credibility of some of his witnesses. Contrary to counsel’s contention, they cannot and should not be ignored. That said, I would approach them with care, bearing in mind that they, being hearsay, have not been tested by cross-examination. C. THE PRIMARY ISSUES ON LIABILITY 28.I now come to the primary issues on liability. 29.The first and foremost issue on liability is, of course, whether the plaintiff was assaulted by the police officers on any of the three Occasions as alleged. 30.The second issue is on causation — if proved, did the assaults cause the plaintiff’s mental disorder, be it schizophrenia or phobia of police (if proved) or both? Related to causation is the important question as to what was the plaintiff’s mental condition prior to the 1st Occasion? I will call this “the Plaintiff’s Mental Condition Question” below. D. CHRONOLOGY OF THE MAIN EVENTS 31.To put the primary issues in context, a chronology of the main events is helpful :
E. WAS THE PLAINTIFF ASSAULTED ON THE 1ST OCCASION? 32.I now turn to examine the first issue on assault : was the plaintiff assaulted on the 1st Occasion? 33.I will first look at the events leading to the plaintiff’s arrest on 15 September 1997 and how the police initially handled him thereafter. E.1. Harassing the female staff of the Parlour 34.At the material time, the plaintiff was about 20. He was then working at a Kam Sha Restaurant (“Kam Sha”) in Hung Hom. 35.On 13 September 1997, the plaintiff went to the Parlour and harassed the female staff there by asking them if they offered sexual service. Some police officers and the proprietor of the Parlour, Ms Fung Ka Lin (“Ms Fung”) came to Kam Sha that evening. Ms Fung identified the plaintiff as the harasser. The police asked him to apologize to Ms Fung, which he did. The police and Ms Fung then left. 36.It is the Secretary’s case, as described by Inspector Ng in his oral testimony and stated in the relevant police records, that the plaintiff went to the Parlour on 14 and 15 September 1997 and harassed the female staff again and in the process had behaved oddly, including wandering outside the Parlour, lifting up his vest and fondling his chest. The plaintiff’s evidence is the on 14 September 1997 he went there to apologize and on the following day, he just went to the electronic game centre opposite the Parlour. His behaviour was normal. He took off his vest because it was hot. 37.This dispute is not relevant to the plaintiff’s case on assault but bears some significance on the Plaintiff’s Mental Condition Question. I will return to it in Part H. E.2. The alleged home visit on 15 September 1997 38.It is the evidence of both Mr Wu and Madam Chan that in the early afternoon on 15 September 1997, PC53016 and PC51748 went to their home for investigation. They asked where the plaintiff slept and where he usually put his things. They wanted to conduct a search. When Mr Wu asked what offence the plaintiff had committed, PC53016 simply said, “你地自己知自己個仔衰咩野！” Mr Wu said he did not know and asked again why they wanted to search the plaintiff’s things. The police officers just persisted. Mr Wu thought that his family was law abiding. So he allowed them to search, which they did. Afterwards, they left. 39.PC53016 denied that he and his colleague had been to the plaintiff’s home as alleged. 40.I reject the evidence of Mr Wu and Madam Chan on the alleged home visit. There is nothing in the evidence to suggest that the police already knew where the plaintiff lived even before his arrest later on the same day. It is also flatly contradicted by the contemporaneous entries in PC53016’s notebook, which I accept to be true and accurate. 41.Mr Shum submitted that had the home visit occurred, there would have been no need for the police, according to PC47475, to lay ambush near the Parlour on 15 September 1997 after receiving the complaint that the plaintiff harassed the staff again. Mr Lam disagreed. He relied on the police statement that Ms Fung gave on 15 September 1997 in which she said that she knew where the plaintiff worked and it was she who took the police to Kam Sha to arrest him. He submitted that what Ms Fung said was in sharp contrast of PC47475’s evidence that Ms Fung gave her the impression that the man harassing the Parlour was unknown to her and that she did not know where to find him. This puts the credibility of PC47475 and PC53016 in question. I disagree. The apparent inconsistency between Ms Fung and PC47475 is minor. In any event, it does not support the plaintiff’s allegation that the home visit took place at all. I accept Mr Shum’s submission. 42.I agree with Mr Shum that Mr Wu and Madam Chan tried to dramatize the events by fabricating the home visit. E.3. How PC47475 arrested and handled the plaintiff 43.On 15 September 1997, at about 18:00 hours, PC47475 and several police officers came to Kam Sha and arrested him for the offence of loitering. 44.It is the plaintiff’s evidence that at the time of the arrest, the plaintiff asked PC47475 what offence he had committed and why he was arrested but PC47475 simply told him : “你自己知自己衰咩野”. This PC47475 denied. He said that at Kam Sha, he told the plaintiff that he was arrested for loitering. He cautioned the plaintiff and under caution, the plaintiff said that he had nothing to do with this and someone had asked him to go to the Parlour to ask if they offered masturbation service. 45.PC47475 and the police officers took the plaintiff to the Hung Hom Police Station for further investigation. They arrived at 18:30 hours. PC47475 took the plaintiff to Room 23 on the G/F. There, he post-recorded in his police notebook his verbal caution and the plaintiff’s response at Kam Sha. The post-record started at 18:45 hours and finished at 19:25 hours. The plaintiff signed at the end of the post-record and stated :“我明白” and “我已閱讀過口供。我知道我可隨意作任何修改、更正或增補。這份口供的內容全部屬實，且我是自願作供的。” 46.Under cross-examination, the plaintiff said that PC47475 asked him to sign the post-record and copy the Chinese statement above from a card, which he did. He maintained that PC47475 did not tell him why he was arrested at Kam Sha. 47.PC47475 then took a cautioned statement from the plaintiff between 19:30 hours and 21:11 hours. The cautioned statement began with the reason for the plaintiff’s arrest and PC47475’s caution and contained a series of questions and answers. At the end, the plaintiff wrote in Chinese that he had read the record of interview and confirmed that it was an accurate record of the questions and his answers. 48.It is PC47475’s evidence, as stated in his police notebook, that after taking the cautioned statement, he gave a copy to the plaintiff who also signed on the notebook to acknowledge receipt. The plaintiff’s evidence is that PC47475 asked him to sign and he did it accordingly. But he was not given a copy of the cautioned statement. After taking of the cautioned statement, PC47475 left the room and returned later. PC47475 initially wanted to give him a copy of the cautioned statement but got it back from him, tore it up and threw it in the rubbish bin. 49.I reject the plaintiff’s complaints against PC47475. Those complaints were all contradicted by the contemporaneous records in PC47475’s notebook, the truth and accuracy of which the plaintiff had signed to confirm. Even taking into account his age and the fact that it was the first time he was ever arrested, I am still unable to accept the plaintiff’s allegation that he signed PC47475’s notebook simply because he was told to do so. In my view, those complaints against PC47475 were all made up by the plaintiff afterwards, similarly with a view to dramatizing the events. 50.I accept PC47475’s evidence as to how he arrested and handled the plaintiff. 51.I now come to the matters which are of more relevance to the plaintiff’s case. E.4. The apparent time gap in handling of the plaintiff by DSPC13208 52.After taking the cautioned statement, PC47475 handed the plaintiff over to the duty officer of the police station for custody. 53.Divisional Investigation Team 4, headed by Inspector Ng, then took over the case. The investigation officer assigned to the case was DSPC13208. Other team members were DPC49037 Tsang Wing Hong Eric and DSPC1371 Wong Man Tung James.[6] 54.Pursuant to the instruction of Inspector Ng, DSPC13208 began the investigation at 21:00 hours on 15 September 1997. He first took statements from four witnesses, who were Ms Fung and her three employees. 55.At 23:50 hours, DSPC13208 took over the plaintiff from the duty officer. He then took an antecedent statement from the plaintiff at 00:10 hours on 16 September 1997. DSPC13208 said the taking of the antecedent statement should not have taken more than half an hour. In other words, it should finish at around 00:40 hours at most. But it was only at 02:23 hours that DSPC13208 handed the plaintiff to the duty officer for bail. There is apparently a lacuna in the police record as to what happened to the plaintiff in this time gap of about 90 minutes between 00:40 hours and 2:23 hours. 56.Mr Lam submitted that this unexplained time gap strongly supported the plaintiff’s case that he was assaulted. I disagree. I do not think the time gap by itself caused any suspicion. 57.It is true that the antecedent statement itself did not record the time when it was finished. DSPC13208 explained in his oral testimony that it was his habit not to record the time when the taking of a statement finished. His explanation is supportable by other statements he took from Ms Fung and the employees, which equally did not state the time when they were finished. I accept his explanation and do not find any suspicion in his failure to note the time when the antecedent statement finished. 58.Both Inspector Ng and DSPC13208 admitted under cross-examination that the plaintiff should have been returned to the custody of the duty officer as soon as possible after DSPC13208 had gone through all the matters assigned to him with the plaintiff. DSPC13208 said after taking of the antecedent statement, the plaintiff remained in the room where the statement was taken. However, due to the long lapse of time, he frankly admitted that he could not recall why it took so long to return the plaintiff to the duty officer. The best that he could say was that according to the usual practice, fingerprints and photos might have been taken from the plaintiff. The plaintiff might have made a call to his family for bail. And it might have taken Inspector Ng, the officer-in-charge of the case, some time to consider bail and decided on the amount of the bail money. DSPC13208 however did not put down these matters in his notebook as he thought they were minor. The important thing was the taking of the antecedent statement, of which he did make a record. 59.Mr Lam referred DSPC13208 to paragraph 5 of his witness statement dated 23 December 2001 in which he was asked to describe what happened to the plaintiff after the taking of the antecedent statement and before bail was granted. He again frankly admitted that he had not done so because he could not recall. 60.DSPC13208 was not shaken under cross-examination. I accept his evidence, which is in my view truthful and reasonable. I thus reject Mr Lam’s submission that the time gap was unexplained or that it strongly supports the plaintiff’s case of assault. To that I now turn. E.5. The plaintiff was allegedly assaulted 61.On how he was assaulted, the plaintiff had this to say in his oral testimony. 62.DSPC13208 took the antecedent statement from him in one go. After it was finished, DSPC13208 asked him to sit on a chair next to the room entrance. The door was open. DSPC13208 then left and a moment later returned. He asked the plaintiff to call his family and ask them to come to the police station to bail him out with HK$500. The plaintiff then made the call, which was answered by Madam Chan. He asked her to come to the police station to bail him out. 63.After the call, the plaintiff sat on the chair by the entrance again and waited. After a while, the duration of which he could not recall, he saw his mother and Shu Pang outside the room by the entrance. She gave the plaintiff a HK$500 dollar note and asked him why he was arrested. She also told him when he returned home, his father would certainly scold him fiercely (“返到屋企你實畀老竇鬧死”). The plaintiff got the bank note and turned his face away from her, ignoring what she said. When he turned his face towards her position again, Madam Chan and Shu Pang were gone already. 64.Then five to six plainclothes police officers entered the room. The plaintiff lost his patience and asked one of them, “阿Sir，咁耐，走得未呀？” A police officer in black leather jacket (“Officer A”) asked him to stand still in the middle of the room. Officer A then closed the door, handcuffed the plaintiff from behind and asked him to squat down, taking the posture as if he was sitting on an empty chair, which the plaintiff did. Then another older police officer with some grey hair wearing a pair of leather boot (“Officer B”) kicked the plaintiff at his private part. Feeling extreme pain, the plaintiff cried, “阿Sir，唔好打，咁打會打死人喎。” Then Officer A picked up a plastic bottle from the table, put it in the plaintiff’s mouth and ordered him not to spit it out. But he spat it out. Officer A stuck the bottle in his mouth again and ordered him not to spit it out. This time, the plaintiff dared not. DSPC13208 came forward and kneed the plaintiff’s right inner thigh. Officer A ordered the plaintiff to continue to adopt the squatting posture. DSPC13208 then left and returned to the room several times. After a long while, Officer A released the plaintiff’s handcuff and asked him to sit on a chair in the middle of the room. DSCP13208 took him to the duty officer on the G/F to process the bail procedure. 65.The evidence of Madam Chan and Shu Ching is similar. They arrived at the police station around 00:30 hours on 16 September 1997. An officer in the report room asked them to follow an uniformed travel police officer to the 2/F. When they arrived on the 2/F, that officer asked them to walk down the corridor. They then came to a room and saw the plaintiff inside. Madam Chan gave HK$500 to the plaintiff and asked him what he had done and said when his father came to know about this, he would scold him fiercely. Then several officers walked past by on the corridor. One of them asked them what they were doing there. She said she wanted to bail the plaintiff out. That officer asked them to wait there. Then another police officer came out and asked them to wait at the report room. So they left slowly. Suddenly, she heard the plaintiff crying sadly, “阿Sir，唔好打，咁打會打死人喎。” They immediately hurried back to the room but the door was shut. She shouted to the plaintiff, asking him if somebody hit him and why he cried so sadly. Then an officer rushed out of the room and shut the door behind him. He abused them with foul language and asked them to go back to the report room. Reluctantly they did. 66.DSPC13208 denied that he or any police officer had in his presence assaulted the plaintiff as alleged. 67.I have already considered the evidence carefully. In my view, the plaintiff’s case on the alleged assault does not withstand a closer scrutiny.
68.The plaintiff identified DSPC13208 as one of the officers who assaulted him. But he only did so on the first day of the trial when Mr Shum asked Mr Lam to identify the assailants.[7] All along, his case was that he did not know the exact identity of the assailants : see the original statement of claim dated 30 May 2001 and his witness statements dated 8 February 2002 and 16 January 2004. 69.Back in July 1998, the plaintiff wrote a complaint letter in Chinese to CAPO describing the assault in the 1st Occasion (“the 7/98 Letter”). There he only referred to the assailant as “Ah Sir” without stating his service number. And the narrative arguably gave the impression that “Ah Sir” was PC47475. When asked for an explanation, the plaintiff said when he wrote “Ah Sir”, he was in fact referring to DSPC13208. By then, he already knew that one of the assailants was DSPC13208. When asked why he did not simply say it was DSPC13208, the plaintiff said his father asked him not to complain about so many things. I am unable to accept this excuse. Making a complaint to CAPO that the police had assaulted him was exactly what the plaintiff was doing. The identity of the assailant(s) was certainly the most crucial information, which, if known, should be disclosed. In my view, the plaintiff was just making it up as he went along. 70.The plaintiff attended an interview with CAPO on 14 September 2000 (“the 14/9/00 Interview”). He was asked if he wished to complain against the police officer(s) who had assaulted him on the 1st Occasion. He said he did not because he could not recall which officer assaulted him in the 1st Occasion. Under cross-examination, the plaintiff put up various excuses. He first said the fact that he could not recall the officer’s identity was his impression at the time. Then he said he forgot to tell the CAPO officers that it was DSPC13208 who assaulted him. He went on to say that even before 2000, he remembered it was DSPC13208 who assaulted him but then he could not recall it because of the effect of the drugs and injections that he took. But there is simply no any evidence before me to support the plaintiff’s assertion that his memory was or would be impaired by the drugs and injections. Then the plaintiff said some time after 2000, which he could not remember, he recalled it was DSPC13208 again. In the end, the plaintiff said he could not offer any explanation. In my view, the plaintiff made up all these nonsensical answers as he went along, trying to explain the inexplicable. 71.Further, the plaintiff said he had told Shu Pang on 16 September 1997 and his father on 1 November 1997 that it was DSPC13208 who assaulted him on the 1st Occasion. But neither Mr Wu nor Shu Pang mentioned this very important fact in their complaint letters to CAPO or witness statements. This is unbelievable. 72.I have no doubt whatsoever that the plaintiff’s identification of DSPC13208 as one of the assailants on the 1st Occasion is a recent fabrication. And I so find. 73.Mr Lam submitted that by elimination Officers A and B who assaulted the plaintiff together with DSPC13208 might well have been DPC49037 and DSPC1371. His elimination, which has no evidential support, is nothing more than mere speculation. Mr Lam then complained that the two officers were not called and no explanation was given. His complaint is misconceived. For the plaintiff’s former solicitors had said in the correspondence back in 2002 that their evidence was wholly irrelevant. That apparently remained to be the case throughout the trial. No adverse inference can be drawn against the Secretary for not calling them at all.
74.It is the plaintiff’s evidence that three officers assaulted him. But in the 7/98 Letter, he seemed to have suggested that only one police officer was involved. When asked, the plaintiff simply said he could not offer any explanation about this glaring inconsistence. This is most unsatisfactory.
75.The plaintiff said that he was assaulted because he asked the police officers why it had taken such a long time for him to be released from custody. That was also the reason he raised in the 7/98 Letter. I reject this reason because I find the plaintiff a poor and unreliable witness and I am unable to accept his evidence. 76.Another reason emerged in a complaint letter that his father wrote and signed by his parents and Shu Pang dated 30 January 2001 (“the 30/1/01 Letter”). There it was said that the police found a photograph of Chairman Mao and asked the plaintiff why he had that photograph. When the plaintiff said what was wrong about having that photograph, the police beat him up. The first reason was not even mentioned at all. The plaintiff, Shu Pang and Mr Wu were cross-examined on this point. The plaintiff said he did not know why his father wrote the 30/1/01 Letter in that way. He then said he had briefly told Shu Pang that the police assaulted him because of the Mao photo. But he said he did not say so earlier in his oral testimony because he did not see the reason for doing so. Shu Pang said it should be the plaintiff who told him the second reason. Mr Wu said the plaintiff mentioned to him the first reason and also the fact that he police found the Mao photo and the plaintiff’s retort, from which he deduced the second reason. In my view, the plaintiff, Shu Pang and Mr Wu made up the second reason to beef up their case why the plaintiff was assaulted. This must be rejected. 77.In his closing submission, Mr Lam raised a third reason. He said the police beat the plaintiff up in order to teach him a lesson so as to make sure that he would not go back to the Parlour to annoy the staff again. This reason is not pleaded. It lacks evidential support. It was not even put to the officers concerned in cross-examination. It must be rejected as well.
78.In the 7/98 Letter, the plaintiff described in details his version of the 1st Occasion. But why he never mentioned that he was handcuffed at the back or kneed at his right thigh. The same omission can be found in the 30/1/01 Letter. No credible explanation has been offered as to why that was the case.
79.It is the effect of the evidence of the plaintiff, her mother and Shu Pang that the latter two were outside the room when the plaintiff was assaulted. Their evidence is highly unsatisfactory. Both Madam Chan and Shu Pang said an officer came out of the room, abused them and asked them to leave. But in their witness statements, they said that officer appeared in the corridor. Further, the allegation that Madam Wu handed a HK$500 note to the plaintiff was never mentioned in their witness statements. It emerged for the first time in the plaintiff’s oral testimony. Then it was repeated by Madam Chan and Shu Pang in their oral testimony as well. 80.In my view, they made up the evidence that Madam Chan and Shu Pang were outside the room with a view to corroborating the plaintiff’s allegation that he was then being assaulted inside.
81.The plaintiff’s allegation that he suffered physical injuries as a result of the assault did not sit well with Dr Ko’s finding when he saw the plaintiff on 18 September 1997. He recorded in his report dated 3 May 2002 (“Dr Ko’s Report”) that “no positive physical finding or obvious skin lesions observed during the consultation”. 82.Under cross-examination, the plaintiff said Dr Ko did not perform any physical examination on him at all. But he had not told Dr Ko that he was being assaulted although he was still feeling extreme pain in his private part. Madam Chan said she did not know the plaintiff was being kicked at his private part. I find their evidence unbelievable. If the plaintiff had been assaulted and was still feeling extreme pain in his private part, common sense dictates that he should tell Dr Ko the same and ask him to conduct an examination. E.6. Other matters that contradict the plaintiff’s case of assault 83.The plaintiff’s case of assault is further contradicted by the following matters.
84.It is Madam Chan’s evidence that while waiting inside the police station for the plaintiff, Madam Chan called Mr Wu telling him that it would take a while before they returned home. But she did not tell him that the plaintiff had been beaten up by the police. It really defies common sense. 85.The plaintiff, Su Pang and Madam Chan all said that they did not tell Mr Wu about the assault when they returned home with the plaintiff on 16 September 1997. The plaintiff said he only did so on 1 November 1997 after he was beaten up again by the police on the 2nd Occasion. It is unbelievable. Even if Mr Wu is a stern father, as his family members have portrayed, who was irritated by the plaintiff’s arrest, it should not have prevented them from telling him about the assault, which was undoubtedly a very serious matter. 86.Mr Wu’s evidence on when he came to know about the assault is also highly unsatisfactory. In chief, he said he was extremely angry and scolded the plaintiff with foul language when they returned home. They did not tell him that the plaintiff was assaulted. He only came to know about it on 1 November 1997 after the 2nd Occasion. Under cross-examination, Mr Wu was referred to the transcript of his interview with CAPO on 7 September 2000 in which he said his wife told him on 16 September 1997 that she heard the plaintiff crying “阿Sir，唔好打，咁打會打死人喎。” When asked for an explanation of this inconsistence, Mr Wu said as at 16 September 1997 he already knew that the plaintiff had been beaten up by the police. But this was contrasted by his witness statement where he said in paragraph 14 that he was then not aware of it. Mr Wu then put the blame on the plaintiff’s former solicitor. He said it was the solicitor who had advised him to write his statement in such a way. In my view, this is yet another point that Mr Wu made up in the box. Mr Wu’s evidence as to when he first came to know about the alleged assault is so poor that I reject it in its entirety.
87.It is the plaintiff’s evidence, corroborated by his parents, that Mr Wu was very angry when he knew that the plaintiff was arrested because he went to the Parlour to harass the female staff. Mr Wu said the plaintiff had violated the family’s rules (家規) and asked Madam Chan to take him to see a doctor : (a) to see if his brain functioned normally during his puberty and (b) to teach him a lesson. Madam Chan obliged and took the plaintiff to Hung Hom Clinic on 18 September 1997. There, the plaintiff was examined by Dr Ko. Dr Ko did not find any definite psychotic symptoms on the plaintiff. However, upon her insistence, Dr Ko referred the plaintiff to the department of psychiatry, Kowloon Hospital. On 6 October 1997, Madam Chan took the plaintiff to see Dr Yeung there. Dr Yeung’s diagnosis was that the plaintiff suffered from dissociable personality disorder.[8] 88.It baffles me that Mr Wu wanted to examine the plaintiff’s brain and teach him a lesson so that he asked Madam Chan to take the plaintiff to see Dr Ko of Hung Hom Clinic. If the plaintiff was assaulted and Mr Wu knew about it (as he said he did), and the plaintiff felt persistent pain in his private part for days, Mr Wu should have asked Madam Chan to take the plaintiff to see a doctor because of the physical injuries. 89.Mr Wu’s evidence on why he asked the plaintiff to see a doctor is also in stark contrast of what he told PC8343 on 29 October 1997 when the plaintiff was being questioned by the police in connection with the indecent assault case. According to the statement/report that PC8343 made on 31 October 1997, which I accept to be true and accurate, Mr Wu told PC8343 that the plaintiff had something wrong with his brain and he had been taken to see a psychiatrist since after he was arrested for harassing girls on the last occasion. PC8343 could not have possibly made this up, which could only have and indeed had come from Mr Wu. 90.What Madam Chan did after Dr Ko found no psychotic symptoms on the plaintiff baffles me further. According to the medical report prepared by Dr Ko’s Report, “despite reassurance patient’s mother still very worry about patient’s mental condition and strongly request referral to psychiatrist for further assessment”. Madam Chan disagreed with the medical report. She said she only asked for a referral for full examination so that she could account to her husband. She did not know why Dr Ko wrote the Report in such a way. 91.I reject Madam Chan’s evidence. Dr Ko had already confirmed that the plaintiff did not suffer from any psychotic symptoms. Dr Ko’s diagnosis would certainly be sufficient to answer her husband. No referral would be required. Although Dr Ko was not called, I can see no reason to doubt what he had written in his Report. Indeed I fail to see why he would make the referral had Madam Chan not insisted and said she was worried about the plaintiff’s mental condition. 92.I find that, as recorded in Dr Ko’s Report, Madam Chan took the plaintiff to see Dr Ko for suspected mental illness and that although Dr Ko found no psychotic symptoms, she strongly insisted that the plaintiff should be referred to a psychiatrist because she was worried about the plaintiff’s then mental condition. It does not sit well with alleged assault at all.
93.At the 14/9/00 Interview, the plaintiff and his father did not wish to pursue any complaint against the assailant(s) involved with the assault on the 1st Occasion. I have already dealt with the plaintiff’s reason why he did so.[9] 94.Mr Wu’s explanation why he did not want to pursue against the police is even more perplexing. He said if he did so, the police involved might lose their job, thus affecting their families. This generous attitude is simply untrue. For he did complain against the police (presumably the same team of officers) for a more serious offence, namely, fabricating evidence in the bound over application. In my view, Mr Wu is making it up as he went along. 95.On the evidence before me, I can see no reason why the plaintiff and Mr Wu would drop the complaint if the assault did take place as alleged. E.7. Non-discovery of police notebooks 96.To complete the discussion, I need to deal with Mr Lam’s complaint that the Secretary had failed to produce the notebooks of DSPC1371 and Inspector Ng without good explanation. He asked me to draw adverse inference against the police’s case. I can see no substance in this complaint at all. 97.As I have pointed out earlier,[10] DSPC1371’s evidence was said to be irrelevant. I fail to see how his notebook could be relevant. 98.Inspector Ng retired in 2005. It is his evidence that when he made his witness statement for this action in December 2001, he did not have his notebook with him. He prepared his witness statement based on the information contained in the police case file. He could not recall which police formation issued the notebook to him and he did not know what had become of it after he had handed it over. He could not explain why it was untraceable. But he was not surprised because the processing of police notebooks involved manual work and mistakes did happen and many notebooks had in fact gone missing. In any event, he would not put down details of the case in his police notebook. As the officer-in-charge of the case, he would only note when he took over the case and what instructions he gave to his sub-ordinates. I accept his evidence. 99.In the circumstances, I do not think any adverse inference as contended by Mr Lam can be drawn for not disclosing the notebooks of DSPC1371 and Inspector Ng. E.8. Conclusion 100.For the above reasons, I find the plaintiff, his parents and Shu Pang all poor and untruthful witnesses. I reject their evidence. On the other hand, I find the police witnesses involved on the 1st Occasion truthful and reliable. I accept their evidence. The plaintiff having failed miserably in discharging his burden of proof, I find that the police did not assault him on the 1st Occasion as alleged at all. F. WAS THE PLAINTIFF ASSAULTED ON THE 2ND OCCASION? 101.I next turn to the issue whether the plaintiff was assaulted on the 2nd Occasion. 102.I will begin with the surrounding circumstances. F.1. The indecent assault case 103.On 23 October 1997, a female was indecently assaulted in a building on Cheung Ning Street, Hung Hom. The investigation was taken over by Team 2 of CID of Hung Hom Police Station in the early hours on 24 October 1997. Separately, the Task Force of the Hung Hom Police Station, headed by Senior Inspector Wong, also carried out their own investigation. F.2. The alleged home visit and the peeping incident 104.It is the evidence of the plaintiff’s parents and Shu Pang that on 27 October 1997 at about 11:00 hours, PC53016 and PC51748 came to their home making inquiry about the plaintiff. Mr Wu told them that the plaintiff now worked in a company called 飛駒空運公司 (“飛駒”) and asked them not to trouble the plaintiff there. The officers said they would not. PC53016 searched the plaintiff’s bag but did not say why. The officers then left. Later near noontime, they saw PC53016 and PC8343 standing outside and peeping at their home. Mr Wu asked what they were doing there but they left without saying a word. 105.PC53016 denied the alleged home visit. He and PC8343 also denied the peeping incident. 106.I find PC53016 a truthful witness. I accept his evidence that he did not go to the plaintiff’s home on 27 October 1997. 107.Mr Wu made a complaint to CAPO about the alleged home visit. In the letter dated 23 February 2001, CAPO advised Mr Wu that the officers concerned did admit that at about 11:15 hours on 27 October 1997 they did visit but did not enter into Mr Wu’s home. In a subsequent letter dated 19 July 2003, CAPO further advised Mr Wu that the officers concerned were PC51748 and PC53016. PC53016, in his oral testimony, said he did not make that admission to CAPO and he did not know why CAPO so advised Mr Wu. CAPO’s letters, on their face, contradicted PC53016’s evidence that he did not go to the plaintiff’s home on 27 October 1997. But as early as in a CAPO statement dated 19 August 1998, PC53016 already that he had ever been to the plaintiff’s home at all, which is consistent with his evidence in court. On the evidence before me, the reason why CAPO replied Mr Wu in the manner as they did is not clear. But CAPO’s reply, in my view, does not affect the overall credibility of PC53016. 108.I also accept PC53016’s denial of the peeping incident. 109.Turning to PC8343, I also find him a truthful witness. He denied the peeping incident. In his statement/record dated 31 October 1997, PC8343 stated that after being instructed to investigate the indecent assault case, his team members suspected that the plaintiff might be involved. So his team began investigation on the plaintiff. Under cross-examination, PC8343 could not recall what secret investigation he had conducted because of the long lapse of time. In my view, that is understandable. I do not consider any inference can be drawn from what he stated in the statement/record to prove that he and PC53016 had peeped into the plaintiff’s home as alleged. 110.In my view, the plaintiff and his family members made up the alleged home visit and the peeping incident with a view to dramatising the plaintiff’s case. I reject their evidence. F.3. The street encounter 111.The plaintiff said on 29 October 1997 at about 18:00 hours, after he had gone off work, he met PC53016 outside 飛駒. PC53016 asked him if he had been to Cheung Ning Street at night on 23 October 1997. He said no and then returned home. This encounter was denied by PC53016. 112.The plaintiff went on to say that while having dinner with his parents and Shu Pang, PC53016 and PC51748 suddenly came to their home in the Building at about 20:00 hours. They took him to the staircase on the 2/F and asked him if he had been to Cheung Ning Street on 23 October 1997. His father came and asked what happened but was told to go home. PC53016 then took the plaintiff downstairs to the Building’s entrance at Cooke Street. Later, Senior Inspector Wong arrived by a private car. He pointed out to the plaintiff that the woman sitting in the car and asked if he indecently assaulted her on 23 October 1997. The plaintiff denied. Then PC53016 took the plaintiff to the entrance of the opposite building on Cooke Street. There, he and PC8343 forced the plaintiff to admit the indecent assault but the plaintiff refused. Later, the plaintiff’s parents came. So did Senior Inspector Wong and Sgt 8210 and PC51748. In his parents’ presence, PC8343 again asked the plaintiff to admit the crime. Senior Inspector Wong then said the woman in the car was in fact a WPC. He asked the plaintiff to go back to the police station to identify the WPC. Mr Wu refused and said many neighbours and friends could prove that the plaintiff did not go to Cheung Ning Street on 23 October 1997. The police party then left. 113.The evidence of the plaintiff’s parents and Shu Pang is similar. 114.The evidence of the police officers concerned is dramatically different. On 29 October 1997, at about 21:00 hours, Sgt 8210 and his team drove the victim of the indecent assault case around in Hung Hom area trying to locate the suspect. At about 21:55 hours, they saw the plaintiff and she indicated that he looked like the suspect. PC8343 then stopped and questioned the plaintiff. Later, Mr Wu and his family members came to the scene and Mr Wu reasoned with the police. Mr Wu then took PC8343 to his home and showed him the plaintiff’s belongings. But PC8343 did not seize any of them. At about 22:00 hours, the plaintiff was allowed to leave because, according to Senior Inspector Wong, the victim was less than 50% sure that he looked like the suspect. PC8343 and PC53016 further denied that they had forced the plaintiff to admit the crime. 115.Mr Lam submitted that the second street encounter looked suspicious. As admitted by Senior Inspector Wong, there is a demarcation of duties between the Task Force (to which Senior Inspector Wong belonged) and the CID. Generally speaking, the Task Force is responsible for preventive actions and the handling of sudden events while the CID is responsible for investigation into criminal cases. Mr Lam submitted that it is therefore surprising that the Task Force would have arranged and initiated the street encounter on 29 October 1997. Even DPC11387 admitted under cross-examination that he had no idea why the Task Force took over the CID’s job. And Senior Inspector Wong simply shrugged off the matter by saying that he could not recall whether it was he who instructed his team members to conduct the street encounter. 116.I accept that there is a general demarcation of duties between the Task Force and CID. But Senior Inspector Wong also pointed out that it is not unusual for the Task Force to carry out their own investigation within the confines of their duties. His evidence is supportable by a CAPO statement made by the superior of Senior Inspector Wong, Woman Chief Inspector Leung Yuk Hung, ADVC Ops HHDIV (“WCIP Leung”) dated 3 March 1999 in which she said that she remembered instructing Senior Inspector Wong to bring the victim to tour around the area as she believed that the culprit was also working/living in the vicinity. So the Task Force was in fact involved in the investigation as well. I accept Senior Inspector Wong’s evidence. 117.Mr Lam then submitted that the street encounter is that the street encounter could not have been accidental — the police officers were driving the victim around who happened to spot the plaintiff walking in the street and his family members just came along later. The plaintiff’s version is more probable. 118.The police’s version of the street encounter is supported by contemporaneous records in the notebooks of the officers concerned including PC8343’s statement Mr Wu had signed. It is also consistent with WCIP Leung’s statement that she instructed them to take the victim to tour around the area to locate the culprit. On the other hand, there are unsatisfactory aspects in the plaintiff’s version. I do not believe PC8343 and PC53016 asked the plaintiff to admit the crime in the presence of his parents as alleged. Further, it does not make sense that Senior Inspector Wong asked the plaintiff to return to Hung Hom Police Station for the purpose of identifying a WPC as alleged. 119.Having considered the evidence in the round carefully, I prefer the police’s version to that of the plaintiff on the street encounters. Again, I am of the view that the plaintiff and his family made it up to beef up his case. 120.I now come to the more important matters. F.4. The reason for arresting the plaintiff 121.Senior Inspector reported the result of the street encounter to WCIP Leung, who then subsequently reported the same to Superintendent Ng Ka Sing, DVC HHDIV (“SP Ng”). SP Ng decided that the plaintiff should be arrested. WCIP Leung then instructed Senior Inspector Wong to do so. 122.Mr Lam submitted that on 29 October 1997, the victim had already exonerated the plaintiff during the street encounter. But SP Ng nevertheless instructed him to be arrested. According to his memo dated 8 July 1999, SP Ng explained his decision thus. With his good experience in criminal investigation he felt that the plaintiff was very suspicious. There was a good possibility that he was involved in other recent indecent assault cases in Hung Hom. The plaintiff should be arrested formally as to make sure that the investigation into the cases was thorough and vigorous. Mr Lam asked : what thorough and vigorous investigation could be conducted by arresting the plaintiff (when the victim had already exonerated him), except by trying to extract a confession from him? And would it not be surprising that headed by such a leader, the officers concerned used force against the plaintiff so as to make sure that he was telling the truth when carrying out the vigorous and thorough investigation with the plaintiff? Finally, Mr Lam complained that SP Ng has not been called to testify. 123.In my view, when the police carried out the investigation into the indecent assault case, their hands were not tied by the failure on the part of the victim to identify the plaintiff as the culprit. They were entitled to and indeed should carry out further investigation with the plaintiff if it was justified by all the circumstances of the case. Given the gross nature of the indecent assault (forced oral sex), it was reasonable for SP Ng to take the matter seriously and ordered a vigorous and thorough investigation. On the evidence before me, I cannot agree with Mr Lam that vigorous and thorough investigation intended by SP Ng necessarily meant extracting a confession from the plaintiff or that the officers would carry out the investigation by force. This is no more than speculation without any evidential basis. 124.Further, I do not think any adverse inference can be drawn because SP Ng was not called. As rightly pointed out by Mr Shum, it was never the plaintiff’s case that SP Ng had counselled or procured his sub-ordinates to assault the plaintiff. He was not even present when the plaintiff was allegedly assaulted. There is no need to call SP Ng. 125.For completeness, I reject the plaintiff’s case that his arrest on 30 October 1997 was unlawful. F.5. The Task Force arrested and handled the plaintiff 126.On 30 October 1997, at about 16:30 hours, Senior Inspector Wong and his team arrived at the Company and arrested the plaintiff there. He was then brought back to Hung Hom Police Station. PC8343 then took a cautioned statement from the plaintiff between 19:45 and 21:50 hours. He then made a post-record in his police notebook. At 23:30 hours, he handed the plaintiff to the duty officer for custody. 127.It is the plaintiff’s evidence, denied by all the officers concerned who gave evidence, that while PC8343 was taking the cautioned statement from him, PC51873 told him as a man (男人大丈夫), if he had done it, he had to admit it; if not, he had to deny it till the end; that PC8343 also came and said that if the plaintiff did not commit the crime, then it was possibly committed by his elder or younger brother, then the plaintiff could admit it; that PC8343 also said that the plaintiff’s father was a triad member; and that Senior Inspector Wong also came and asked the plaintiff to admit it or else he would be in trouble if the case were to be handed to the CID. 128.I reject the plaintiff’s evidence, which was clearly made up by him to dramatize the events. I accept the evidence of the police officers concerned. I find them all truthful and reliable. F.6. The plaintiff was allegedly assaulted 129.The investigation was taken over by the CID. DPC11387 took a cautioned statement from the plaintiff between 02:20 and 02:50 hours on 31 October 1997. If was followed by an antecedent statement taken by DPC46165 from the plaintiff at 03:05 hours. 130.The plaintiff had this to say about how he was assaulted in his oral testimony. 131.The plaintiff was handcuffed at the back and ordered to sit by a desk where DPC11387 took the cautioned statement. When DPC11387 was about to begin, DSgt 13248, DPC46165 and Inspector W.T. Wong came to surround the plaintiff. DPC11387 then began by asking the plaintiff if he admitted. When he said no, DPC11387 hit his head with four to five box files (each of about two to three inches thick) once. Then DSgt 13248 kneed at his chest once. DPC46165 then hit the plaintiff’s left face once with his right fist. Then Inspector W.T. Wong elbowed once at the middle of his back near his neck. The plaintiff repeated that he had not committed the crime. Inspector WT Wong then said “唔認就打到認”. The four officers then assaulted the plaintiff together, hitting him in the same manner many times. Finally, PC46165 asked the plaintiff to kneel before a Kwan Dei statue and swear that he had not done it, which he did. PC46165 then took the antecedent statement from him. 132.The plaintiff said that as a result of the assaults on him, he suffered physical injuries. His left face was swollen with redness. There were bruises and redness on his chest and back. 133.At about 08:00 hours on 1 November 1997, Madam Chan and Shu Pang bailed the plaintiff out. On their way home, they came across Mr N.C. Yeung, Mr K.L. Yeung and Ms Lok. They all said they saw the physical injury on the plaintiff’s left face. Mr N.C. Yeung further said that he was in飛駒when the plaintiff was arrested on 30 October 1997 and he did not see any injury on the plaintiff’s face. The plaintiff then returned home and after bath found the injuries on his body as described above. 134.Later in the morning on 1 November 1997, Madam Chan took the plaintiff to see Mr Tao for treatments. The plaintiff said he told Mr Tao that he was hit by somebody. Mr Tao said the plaintiff had not told him so. According to the prescription chits kept by Mr Tao, the plaintiff had bruises on his chest and back. No reference was made to any injury on his face. And the plaintiff had been seeing Mr Tao up to the end of December 1997. 135.DPC11387, DSgt 13248 and DPC46165 all denied that they and Inspector W.T. Wong had assaulted the plaintiff as alleged.
136.Whether the assault on the plaintiff took place is a matter of the witness’s credibility. I first look at the police’s version. 137.Mr Lam argued that the credibility of DPC11387, DPC46165 and DSgt 13248 who had allegedly assaulted the plaintiff is dubious. 138.Mr Lam first submitted according to DPC11387 under cross-examination, Senior Inspector Wong asked him to ascertain from the plaintiff whether he had been to Cheung Ning Street on 23 October 1997. And the plaintiff said he did. But the cautioned statement that he took from the plaintiff did not record the question and answer. 139.The said cautioned statement contained two questions and answers only. In the first question, it was stated that the plaintiff had admitted to the police that he had been to Cheung Ning Street on the day in question (23 October 1997). In the circumstances, I do not think the failure on the part of DPC11387 to note down the question and answer referred to above is material or would affect his credibility. 140.Mr Lam next submitted that in the said cautioned statement, the plaintiff was merely asked whether he could take DPC11387 to No. 55 Cheung Ning Street, to which the plaintiff said no. The question and answer did not justify the taking of a cautioned statement from the plaintiff. It therefore cast doubt on the real purpose of taking the plaintiff away from the duty officer’s custody. 141.I disagree. The plaintiff had already been arrested for the indecent assault case. DPC11387 was making further investigation from him. The proper way to proceed was of course by way of taking the said cautioned statement. 142.Mr Lam then referred to the evidence of DPC46165 that he was conducting anti-crime patrol duties with DSgt 13248 and DPC19403 (who had since deceased) when he was asked to return to the Hung Hom Police Station to assist DPC11387 to handle an indecent assault case. But DPC11387 said he did not know that DPC46165 was asked to return to the police station to help him out. DPC11387 said he could have easily handled the work without DPC46165’s assistance. Mr Lam submitted that it is highly suspicious why DPC46165 was asked to return to the police station at all, except to help to ensure that the plaintiff split his gut. 143.Again, I disagree. I can see nothing suspicious for an officer to deal with one part of the investigation and another to continue with the work, although the first officer might well be able to handle all the work by himself. 144.Mr Lam then submitted that the whereabouts of DSgt 13248 around the time of the assault was equally suspicious. According to his notebook, DSgt 13248 made an entry at 02:12 hours on 31 October 1997, DPC11387 took over the plaintiff from the duty officer. Then at 03:45 hours, he and his team carried out anti-crime patrol. Mr Lam criticised DSgt 13248 for not making a record of what he himself did between 02:12 hours and 03:45 hours. He went on to submit that according to the CAPO statement dated 5 August 1998, DSgt 13248 said he could not recall if he returned to the police station with DPC46165 and DPC19403. But according to DPC46165, after he finished taking the antecedent statement, he left the police station with DPC46165, DSgt 13248 and DPC19403 for anti-crime patrol. This implies that DSgt 13248 and DPC19403 should have returned to the police station with DPC46165. Mr Lam asked : why did all three officers had to return to the police station to help DPC11387 with a simple task for which he needed no assistance, except to force the plaintiff to speak? 145.I again disagree. As rightly pointed out by Mr Shum, the thrust of Mr Lam’s submission is that DSgt 13248 wanted to create false alibi around the time of the alleged assault. This however does not bear a closer scrutiny. In his CAPO statement, DSgt 13248 already stated that although he did not remember if he returned to the police station with DPC46165, he should have later retuned to the police station because he stated in his notebook that at 3:45 hours, he took his team to carry out anti-crime patrol. Thus one can reasonably draw the inference that, even as early as August 1998, DSgt 13248 had already agreed that around the time of the alleged assault, he was probably in the police station. Further, Mr Lam’s submission that the three officers had to return to the police station to help DPC11387 to force the plaintiff to speak is speculation without evidential support. 146.In my view, none of the attacks advanced by Mr Lam against the credibility of the police witnesses is valid. I reject them all. I find that all the police witnesses involved on the 2nd Occasion are truthful and reliable. I accept their evidence. 147.To complete the discussion on this topic, I need to dispose of two further points taken by Mr Lam. Mr Lam complained that the Secretary should have disclosed the notebook of DPC19403. The reason for non-disclosure, namely, his notebook was untraceable because he had died in 2000, is absurd. The most adverse inference should be drawn against the Secretary. Mr Lam’s submission rests on the assumption that the whereabouts of the officers who had allegedly assaulted the plaintiff are in total chaos. I do not think this assumption is borne out by the evidence before me. Even if there is confusion in the evidence as to their whereabouts, I think it is perfectly understandable given the long lapse of time. After all, the incident happened more than 10 years ago. Even DSgt 13248 frankly admitted that he did not have any independent memory other than what was stated in his notebook and perhaps the CAPO statement. 148.Mr Lam next complained that Inspector W.T. Wong should be called to give evidence and the failure to do so entails adverse inference to be drawn. I disagree. The other two officers who were allegedly involved in the assault have given oral evidence. They confirmed that no assault took place as alleged. The decision not to call Inspector W.T. Wong is justifiable. No adverse inference can be drawn.
149.I next turn to the plaintiff’s version. I find the plaintiff, his parents and Shu Pang all poor and unreliable witnesses. I reject their evidence. Further, there is a stark unexplained inconsistence in the plaintiff’s evidence on the alleged assault. In the Answer to Interrogatories, he claimed that the assault took place after the taking of the cautioned statement by DPC11387 and before the taking of the antecedent statement by DPC46165. But in his oral testimony, he said it took place while the cautioned statement was being taken. 150.The only outstanding matter that I need to deal with is the injury on the plaintiff as observed by his neighbours and Mr Tao in the morning on 1 November 1997. 151.I find Mr N.C. Yeung and Ms Lok reliable. I note that their description of the facial injury on the plaintiff’s face is not entirely consistent with what they told CAPO earlier. But I consider the discrepancies minor and do not affect their credibility. I accept their evidence and find that when they saw the plaintiff at about 08:30 hours on 1 November 1997, the plaintiff’s left face was swollen with redness. 152.I do not find Mr K.L. Yeung a truthful or reliable witness. He is and was at all material times undoubtedly a close friend of the plaintiff’s family. I find it surprising that when he allegedly saw the plaintiff’s injury on his face in the early morning of 1 November 1997 and was told that the police assaulted him, he would simply ask him to see a doctor without even bothering to ask about the details of the assault. He said he had to hurry home. This excuse is very hollow indeed. I reject his evidence. 153.Mr Tao is in his 80’s and was asked to give evidence on matters happened some 10 years ago. In the prescription chits, he only recorded that the plaintiff’s chest and back was swollen. He made no record of any injury on the plaintiff’s face. Under cross-examination, he said he paid more attention to the more serious injury, that is, the injury on the plaintiff’s chest and back. I accept Mr Tao’s explanation. I accept his evidence that when he saw the plaintiff in the morning on 1 November 1997 the plaintiff’s back and chest was swollen, as recorded in his prescription chit on that day. 154.Based on the above, I find that the plaintiff had injuries on (a) his face when Mr N.C. Yeung and Ms Lok saw him at about 8:30 hours on 1 November 1997 (which injury was not present when he was arrested on 30 October 1997) and (b) on his chest and back as well when he saw Mr Tao later the same morning. But that is not sufficient. For the plaintiff has to prove that those injuries were inflicted by the police assaulting him as alleged. And since I have rejected his evidence, he has failed to do so. I do not want to speculate in what circumstances and when those injuries were caused. All I would say is the plaintiff has failed to discharge his burden of proof despite the evidence of injuries. F.7. Other matters 155.There are two further matters that I need to dispose of. 156.The first is this. It is common ground that the plaintiff was detained until 1 November 1997. While in custody, officers from other districts came to see him in connection with other indecent assault cases. Mr Lam complained that the further investigations were not justified especially the modus operandi in other cases was different. This complaint has nothing to do with any issue before me or the witnesses’ credibility. I will say no more. 157.The second matter is this. On 31 October 1997 while the plaintiff was still in custody, Madam Can went to Hung Hom Police Station with Shu Pang and Shu Ching. They were received by SSgt Wong. Their evidence is that they told SSgt Wong that the plaintiff was innocent and asked the police not to hit him. SSgt Wong then said that was something the police certainly would not do. On 3 November 1997, Mr Wu, Madam Chan and Shu Pang went to Hung Hom Police Station again. Their evidence is that they complained to SSgt Wong that the police had assaulted the plaintiff on 31 October 1997 whereupon SSgt Wong promised that such Occasion would not happen again. SSgt Wong also apologized for not being able to keep the promise he gave Madam Chan earlier, that is, the police would not hit the plaintiff. 158.SSgt Wong’s evidence is that on 30 October 1997, he noticed that Madam Chan and her sons looked quite anxious. So he took the initiative to invite them to his office and explain to them the normal procedure of how the police would handle an arrested person. He denied that he had made the alleged promise to Madam Chan. On 3 November 1997, SSgt Wong did see Mr Wu. Mr Wu appeared to be upset. SSgt Wong explained to him the normal procedure. SSgt Wong denied that Mr Wu had made any complaint as alleged. If he had, SSgt Wong would have dealt with it under the normal procedure for complaint. SSgt Wong also denied that he had made the promise or apology as alleged. 159.SSgt Wong impressed me to be a truthful and reliable witness. I accept his evidence. I reject the evidence of the plaintiff’s parents. Again, I think they made up the story against SSgt Wong in order to beef up the plaintiff’s case. F.8. Conclusion 160.For the above reasons, I find that the police had not assaulted the plaintiff on the 2nd Occasion as alleged. G. WAS THE PLAINTIFF ASSAULTED ON THE 3RD OCCASION? 161.The evidence of the 3rd Occasion is relatively simple and straightforward. 162.At the material times, the plaintiff and his family lived in the Building. In the afternoon of 8 October 1999, the police was performing an operation there, having received information that people with firearm might be present in the building. It is common ground that the plaintiff and Shu Pang were stopped and searched by PC4318 and PC48475 at the staircase of the building. 163.The plaintiff and Shu Pang said the officers abused them with foul language. PC48475 hit the plaintiff’s head with great force several times and Shu Pang was assaulted as well. 164.PC48475 and PC4318 denied that they had abused the plaintiff and Shu Pang. Rather it was the plaintiff and Shu Pang who spoke foul language against them at the time. PC48475 put his left hand on the plaintiff’s back while conducting a quick body search with his right hand as the plaintiff was moving his body around during the search. They denied that the plaintiff and Shu Pang were assaulted as alleged. 165.The account of the two police officers was consistent with the record SSgt Chow kept in the occurrence book at the time. 166.I find the police witnesses all truthful and reliable. I accept their evidence. They were just performing their duties and had not assaulted the plaintiff or Shu Pang as alleged. On the other hand, I find the evidence of the plaintiff and Shu Pang untruthful. I think they were just exaggerating. 167.For the above reasons, I find that the police had not assaulted plaintiff on the 3rd Occasion as alleged. H. WHAT CAUSED THE PLAINTIFF’S SCHIZOPHRENIC DISORDER? 168.In light of my findings on the plaintiff’s case of assault, it is strictly not necessary to consider the issue on causation. For completeness, I will nevertheless deal with it. This brings me to examine the Plaintiff’s Mental Condition Question. H.1. The Plaintiff’s Mental Condition Question 169.It is the Secretary’s pleaded case that the plaintiff was already in the prodromal stage of schizophrenia prior to the 1st Occasion. That being the case, I accept Mr Lam’s submission that the Secretary bears the burden to prove the same. Mr Shum essentially relies on two matters.
170.First, the plaintiff exhibited odd behaviour when he harassed the staff of the Parlour between 13 and 15 September 1997. 171.I note that the staff of the Parlour, the firsthand witnesses, had not been called to testify on the plaintiff’s behaviour on the time. But I do not think it matters. 172.I have already set out the Secretary’s case on the plaintiff’s behaviour in paragraph 36 above, which is supportable by the police statements the staff made at the time. It is also supportable by the Agreed Facts presented to the magistrate for the bound over application on 3 October 1997. The circumstances leading to that application are these. On 23 September 2003, the plaintiff reported to the Hung Hom Police Station. DSPC13208 took a further statement from the plaintiff at 17:30 hours in which he indicated his willingness to be bound over. Inspector Ng then made an application to the San Po Kong Magistracy for binding the plaintiff over. In that application, Inspector Ng summarized the events based on the complainants’ statements. On 3 October 1997, the plaintiff was bound over by the magistrate on the basis of the Agreed Facts of the case, which repeated the plaintiff’s odd behaviour at the time. 173.The plaintiff now denied that he had behaved oddly. He said he had behaved normally. See also paragraph 36 above. But I reject his evidence that he went to the Parlour on 14 September 1997 to apologize and only went to the game centre opposite the Parlour on the following day. Had he really done so, there is simply no reason for the staff of the Parlour to report the matter to the police. 174.The plaintiff also disputed the accuracy of the Agreed Facts. He complained that the police forced him to agree to be bound over and had misled the magistrate by presenting false evidence, namely, the Agreed Facts. This formed the subject matter of the plaintiff’s and his parents’ persistent complaints against the police over the years. Those complaints amount in substance to a charge of perverting the course of justice on the part of the police officers involved. In my view, it is plainly an afterthought. His behaviour, as contended by the Secretary and admitted by him previously, tends to support the Secretary’s contention that the plaintiff was already in the prodromal stage of schizophrenia. To remove this damaging obstacle to his claims, the plaintiff had to get rid of his admission. For that purpose, he had to make up those serious but unfounded complaints against the police afterwards to explain away why he made the admission to the Agreed Facts. 175.What Mr Wu told PC8343 on 29 October 1997 is also very damaging to the plaintiff’s case. To recap, Mr Wu told PC8343 that the plaintiff had something wrong with his brain and he had been taken to see a psychiatrist since his arrest for harassing the female staff of the Parlour. 176.I find that the plaintiff did behave oddly in the way as set out in paragraph 36 above. 177.Mr Lam submitted that even if the plaintiff did behave in such a way, his acts came nowhere near to the definition of prodomal symptom. His behaviour could certainly occur to any mentally normal young man who is 20 years of age. I disagree. I do not think any such normal young man would behave in such a bizarre way.
178.The second matter that Mr Shum seeks to rely on is the diagnosis by Dr Yeung and Dr Ng. 179.As noted, after the incident on 1st Occasion, the plaintiff was taken to see Dr Ko. Upon Madam Chan’s insistence, the plaintiff was referred to Dr Yeung. In the notes of his interview with the plaintiff and her mother on 6 October 1997, Dr Yeung recorded the brief personal and employment history of the plaintiff and his diagnosis of the plaintiff’s mental condition. Several points emerged from the notes. First, the plaintiff changed jobs frequently because of odd behaviour. He had poor relationship with his colleagues and exhibited social withdrawal. Second, although the arrest on the 1st Occasion was referred to, nothing was said about the assault. Third, Madam Chan said that the plaintiff had obvious change of personality for over a year. Finally, Dr Yeung remarked : immature personality disorder out for psychotic illness. 180.On 4 February 1998, the plaintiff suffered full-blown schizophrenia. 181.Apparently Dr Yeung saw the plaintiff again on 16 June 1998. He then prepared a medical report dated 3 July 1998 (“Dr Yeung’s Report”). There Dr Yeung said :
182.Dr Ng’s diagnosis is quite similar. 183.On 7 February 1998, Madam Chan and Shu Ching went to see Dr Ng of the department of psychiatry, Kowloon Hospital. Dr Ng made contemporaneous medical notes. Later based on the noted, Dr Ng prepared a medical report dated 29 December 2000 (“Dr Ng’s Report”), in which Dr Ng said :
184.If accepted, the diagnosis of Dr Yeung and Dr Ng shows that the plaintiff was already in the prodromal stage of schizophrenia prior to the 1st Occasion. This is plainly a mortal blow to the plaintiff’s case. 185.What the plaintiff’s family did after receiving Dr Yeung’s Report and Dr Ng’s Report is quite telling. 186.In August 2000, the plaintiff’s parents approached Kowloon Hospital and requested to amend the information Madam Chan provided to Dr Yeung on 6 October 1997 and the diagnosis Dr Yeung then made on the ground that what she had misled Dr Yeung by giving incorrect information and by the misunderstanding caused by language barrier. They now said that there had been no abnormal behaviour, personality change and relationship problems in 1997. In a report dated 31 August 2000, Dr Chan Kwok Tung of the Department of Psychiatry of Kowloon Hospital said that based on the new information, the diagnosis by Dr Yeung of personality disorder was no longer substantiated. In a letter dated 18 September 2000, Dr Yeung confirmed that in light of the latest information, the diagnosis of personality disorder was withdrawn. 187.In her oral testimony, Madam Chan re-iterated that she was unable to communicate with Dr Yeung effectively because she spoke with a heavy Fujian dialect. Hence the misunderstanding. I asked her to repeat what she told Dr Yeung in her Punti. She spoke with an accent. But I have no difficulty whatsoever in understanding her Punti at all. I reject her allegation that it was because of the language barrier that she gave misleading information to Dr Yeung or Dr Yeung had misunderstood her. It is again an afterthought. 188.I note that Dr Yeung had agreed to withdraw his diagnosis that the plaintiff was suffering from personal disorder. But it should also be noted that he did so only because Madam Chan said the information given to him at the time was incorrect because of the language barrier. Now this reason is no longer sustainable in light of my finding above. I will not attach any weight to Dr Yeung’s withdrawal of his initial diagnosis. Contrary to Madam Chan’s allegation and despite Dr Yeung’s withdrawal, I find that the information contained in Dr Yeung’s Report about the plaintiff’s behaviour and condition was accurate. 189.I also note that Dr Yeung has not been called to give evidence. But I do not think it matters. For the only reason advanced by the plaintiff to dispute the accuracy of the medical notes kept by Dr Yeung of the interview and Dr Yeung’s Report, namely, Madam Chan had given inaccurate information to him because of the alleged language barrier, is now gone. 190.In January and February 2001, Madam Chan and Shu Ching made requests to amend the information they provided to Dr Ng in the interview on 7 February 1998. In a report dated 9 February 2001, Dr Ng re-iterated that the entry in Dr Ng’s Report that the plaintiff abnormal since August 1997 was based on the information given by Madam Chan and Shu Ching. In a further report dated 6 March 2001, Dr Ng set out the requests by Madam Chan and Shu Ching for amendment of the information they provided to him. The amendments effectively denied the information as set out in paragraph 3 of Dr Ng’s Report. On the evidence before me, unlike Dr Yeung, Dr Ng had not amended his diagnosis of the plaintiff’s condition. 191.In the box, Madam Chan said Dr Ng did not understand her because of her heavily accented Punti. Again, I asked her to repeat what she told Dr Ng. And again I had no difficulty in understanding her at all. 192.Shu Ching said in his oral testimony that Madam Chan was not allowed to speak because her heavily accented Punti. He did not know the matter clearly. She did but she was not allowed to speak. He did tell Dr Ng that the plaintiff was assaulted by the police but was stopped by Dr Ng. And he did not tell Dr Ng the things that he had written in Dr Ng’s Report. 193.Shu Ching’s evidence is simply incredible. The information contained in Dr Ng’s Report is privy to the plaintiff’s family. Dr Ng could not have obtained the same from other source. As I have observed, Madam Chan had no difficulty in communicating in Punti, I reject Shu Ching’s allegation that Dr Ng would refuse Madam Chan to speak. Further, even if Dr Ng did so because Madam Chan’s Punti was not comprehensible, Shu Ching could have interpreted for her so that full and precise information about the plaintiff could be given to Dr Ng. 194.I reject the evidence of Madam Chan and Shu Ching. 195.I find that the information contained in Dr Ng’s Report is accurate, although Dr Ng has not been called to testify. 196.Dr Chan agreed that if what contained in Dr Yeung’s Report is true, then the plaintiff was already in the prodomal stage of schizophrenia before the 1st Occasion. 197.For the above reasons, I find that the plaintiff was already in the prodomal stage of schizophrenia before the 1st Occasion. 198.The fact that he was already in the prodomal stage perhaps explains why the plaintiff lied that he was assaulted on the 1st Occasion. He wanted to overcome the problem about causation. To that I turn. H.2 Causation 199.Dr Chan said, and I accept, that if the plaintiff was already in the prodomal stage, stress, such as arrest and questioning by police on the 1st and 2nd Occasions, would trigger the plaintiff’s full-blown of schizophrenia in February 1998. I find that this is the cause of the plaintiff’s schizophrenia. It is not, as alleged, caused by the assaults inflicted on him by the police on the 1st and 2nd Occasions, even if proved. I. DOES THE PLAINTIFF SUFFER FROM PHOBIA OF POLICE? 200.In light of my finding that the police did not assault the plaintiff on any of the 1st to 3rd Occasions, whether or not the plaintiff suffers from phobia of police becomes academic. For completeness, I will very briefly dispose of it as follows. 201.According to DSM-IV published by the American Psychiatric Association, specific phobia is a recognized form of mental disorder. Diagnostic criteria include :
202.Dr Chan opined that the plaintiff is suffering from phobia of police. Dr Yeung disagreed. I have carefully considered their evidence on this matter. I prefer Dr Yu’s opinion to Dr Chan’s for this reason. There is evidence before the court that the plaintiff, despite his alleged phobia, exhibited aggressive behaviour towards police in June 2000. That is inconsistent with phobia of police. Dr Chan first explained his aggressive behaviour on the ground of the relapse of schizophrenia. He then said schizophrenia could overlap with phobia of police. But in the end, he admitted that he was not aware of any medical literature to explain why the plaintiff, who was allegedly suffering from phobia of police, would suddenly become aggressive towards them. I accordingly have doubt of the correctness of Dr Chan’s opinion that the plaintiff suffers from phobia of police. 203.I accept Dr Yu’s evidence and find that the plaintiff has failed to prove that he suffers from phobia of police. J. QUANTUM 204.The plaintiff having failed to establish liability, the question of quantum does not arise for determination. K. ORDERS 205.I would dismiss the plaintiff’s claims. 206.Costs are to follow the event. There will be an order nisi that the Secretary shall have the costs of the action (subject to the costs order that I made on 25 September 2007), to be taxed if not agreed. The plaintiff’s own costs are to be taxed in accordance with the legal aid regulations.
Mr Simon K.C. Lam, instructed by Messrs Lau & Chan, assigned by Legal Aid Department, for the Plaintiff Mr Edward Shum and Mr Edwin Choy, instructed by Department of Justice, for the Defendant [1] By a report dated 11 October 2007, the plaintiff was certified by his expert witness, Dr Chan Sai Yin, to be mentally fit to give evidence in court. [2] In this Judgment, I will refer to the police witnesses by their service numbers where applicable. [3] On 18 September 2007, during cross-examination, he could not withstand the pressure, lost control of his temper and rushed out of court. The doctor currently treating him had to come to court on the following day to monitor his condition. For the rest of his oral testimony, he was given a 15 minute rest once every 1 hour or so. [4] In fact, Mr Shum first made the application to exclude Dr Chan’s evidence on this ground in the middle of the trial. The application took two days (24 and 25 September 2007) to finish. In the end, I disallowed the application with costs against the Secretary but without prejudice to Mr Shum taking the point again later, which he did in his closing submissions. [5] The first one was dated 7 March 2001 on the plaintiff’s fitness to plea. The second one was a supplementary of the first, which did not require Dr Chan seeing the plaintiff again. The third one was dated 22 June 2001 on the suitability of the imposition of a supervision and treatment order. The first and third medical reports were produced in court. The second was not. [6] DPC49037 and DSPC1371 were not called to give evidence. [7] Leave was then granted for amendment of pleadings and filing of supplemental witness statements. [8] I will discuss the medical evidence by Dr Yeung in greater detail when I come to the Plaintiff’s Mental Condition Question. [9] See paragraph 70 above. [10] See paragraph 73 above. |
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