CHAN KWOK WAI v. SECRETARY FOR JUSTICE

HCPI000134A/1999

HCPI 134/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.134 OF 1999

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BETWEEN
	CHAN KWOK WAI	Plaintiff
	AND
	SECRETARY FOR JUSTICE	Defendant

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Coram: Hon Suffiad J in Court

Dates of Hearing: 20 - 24 and 27 - 29 March 2000

Date of Judgment: 30 June 2000

 

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J U D G M E N T

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1. In this action, the plaintiff claims for damages including aggravated and exemplary damages for personal injuries sustained by him as a result of being assaulted by a number of police officers inside the Upper Levels Police Station, which is situated in High Street on the night of 1 January 1995.

Background

2. It is common grounds between the parties that the plaintiff was arrested by a team of detectives from the Regional Crime Unit in the afternoon of 1 January 1995. He was taken back to the Upper Levels Police Station and there handed over to another team of detectives, also from the Regional Crime Unit, being Team 3A, headed by one Inspector Lai Kam Wah. Detectives from Team 3A then took the plaintiff back to his home in Tsing Yi Island and there conducted a brief search of the plaintiff's home. After that, the plaintiff was again brought back to the Upper Levels Police Station. The plaintiff was interviewed under caution by these detectives in the Upper Levels Police Station that night. A second interview of the plaintiff under caution took place in the afternoon of 2 January 1995. In the afternoon of 3 January, the plaintiff was taken by detectives out to a stone hut in Yuen Long. He was later taken back to the Upper Levels Police Station and that night a third interview under caution took place. Subsequently, the plaintiff was charged with the offences of conspiracy to rob and also possession of arms and ammunitions without a licence. He was tried for these offences before a judge and a jury in the High Court in September 1995.

3. Effectively the only evidence upon which the plaintiff could have been convicted of these offences were the admissions and confessions contained in his 3rd Cautioned Statement. At the trial in the High Court, a voire dire was conducted to determine the admissibility into evidence of the three cautioned statements allegedly given by the plaintiff. After hearing evidence on the voire dire, the trial judge held that all three cautioned statements were admissible in evidence. The matter was then rehearsed before a jury. Ultimately, the jury acquitted the plaintiff of all the charges which the plaintiff faced.

The plaintiff's case

4. The plaintiff's case, both in the criminal trial in September 1995 as well as in this present action, was that the plaintiff had been subjected to a very serious mistreatment, torture and assaults at the hands of no less than four police officers inside the Upper Levels Police Station immediately before the 1st Cautioned Statement was taken from him. It is this conduct on the part of the police officers (the details of which I will come to when dealing with the plaintiff's evidence) which forms the basis of his present claim. It should be noted that in the pleadings, the plaintiff relies only on the assaults which he alleges that he was subjected to on the night of 1 January 1995. However, in his evidence, a second assault was referred to which took place during the third interview, namely, on the evening of 3 January 1995.

The plaintiff's evidence

5. The plaintiff gave evidence that on the second occasion that he was taken back to the Upper Levels Police Station on 1 January 1995, it was by that time already completely dark. He was taken into a room by Inspector Lai, the cautioned statement taker, one heavily built detective and one or two other policemen. When he was going into the room, he was kicked from behind by an officer. As a result, he lunged forward and his forehead knocked against a chair, causing it to bleed. He was questioned by Inspector Lai as to where the gun was. When he said he did not know, the other officers then removed his handcuffs and took off all his clothes. He was then pressed down onto a chair whilst naked and each of his hand was handcuffed to the rear leg of the chair by a pair of handcuff. The air-conditioning was then turned on. His hair was pulled back and an officer separated his legs and stepped on his private parts. The plaintiff asked to make a phone call but was ignored. Water was then poured down his nose from a bottle of water which was already in the room when he entered. He was punched in his chest and his testicles were stepped on by the officers and he was asked to tell where the gun was. Some other officers then came into the room with a bucket of dirty water and two towels and a mop. One of the officers then poured the dirty water into the bottle and in turn poured that down his nose while covering his mouth with a wet towel. The plaintiff shouted for help but the water on the floor was mopped up into the bucket and poured over him again.

6. A policeman at the doorway of the room then took a person into the room and asked the plaintiff if he knew that person. The plaintiff did not answer because he was feeling uncomfortable but later came to know that person to be Chow Yin Leung when he was in Lai Chi Kok Remand Centre.

7. Whilst the plaintiff was still sitting on that chair naked, one of the policeman from behind him slapped both of his ears at the same time with his two hands very hard. As a result, the plaintiff heard droning sounds but could not hear anything else. He could not struggle because he was handcuffed. Another policeman came into the room with a bottle of waste water and gave it to Inspector Lai. Inspector Lai then poured that water into his nose, using straws. Other policemen then held him back and Inspector Lai said there was still some urine and he was told to drink it. Since he could not struggle, he simply endued and drank as he was told to. The urine was forced into his mouth and he was forced to drink it.

8. According to the plaintiff, during the time that this treatment was meted out to him, one of the legs of the chair on which he was sitting cracked but did not break completely. Moreover, one of the officers had also hit him on his right sole with a ruler, causing the ruler to break. The officers then used his clothes to clean the wet floor after which he was given the wet and dirty clothes back to wear. After he had put on his clothes, he was handcuffed again.

9. After that, he was taken to another room by one or two officers where a cautioned statement was taken. The statement was written out by one of the officers and he was simply told to sign. He did so because he was frightened but he was not assaulted in this second room. After signing the statement, he was taken to Waterfront Police Station for detention. There, he was put in a cell. Because he had injuries all over his body, he requested to see a doctor. He made this request to the uniformed officer guarding the cell. The plaintiff said he told the uniformed officer that he had been assaulted by police. Before he was taken to the Queen Mary Hospital, he was told by this uniformed officer not to tell the doctor that he had been assaulted by the police or else he would be assaulted again. As a result, he did not tell the doctor how he came to be injured as he was afraid of being further assaulted back in the Police Station.

10. The plaintiff said that at the hospital the doctor only examined him, and he showed the doctor where he had pain. He cannot remember if the doctor had asked him how he had been injured. As far as he could remember, he did not tell the doctor that he was assaulted by the police nor did not give any other reasons for his injuries. After the medical examination, he was given some medication and was taken back to the Waterfront Police Station.

11. Later that day, he was taken back to the Upper Levels Police Station again where another cautioned statement was taken from him. On this occasion, the plaintiff said there was no mistreatment of him. The statement was written out and he was told to sign and he did so. After that he was detained again at the Waterfront Police Station.

12. In the afternoon of the next day he was taken out of the detention cell again by the same team of police officers from the Regional Crime Unit and taken to a stone hut in Yuen Long. He was not taken inside the hut but stayed outside with a black hood on. Later, he was taken back to the Upper Levels Police Station and a 3rd Cautioned Statement taken from him. Before this 3rd Cautioned Statement was taken, he said that a police officer took off his trousers and Inspector Lai then squeezed his private parts. At the time, both his hands were handcuffed together and there was several police officers present. He was punched in his chest and the officers kept asking him the source of the gun (allegedly found inside the stone hut). The plaintiff said he did not know. The assault then stopped. He was allowed to put on his trousers. A statement was then written out by one of the officers and the plaintiff was asked to sign which he did. He was then taken back to the Waterfront Police Station and detained.

13. Later, the plaintiff was charged with conspiracy to rob and possession of firearms and ammunition without a licence and was brought before a magistrate. In the magistrate's court, he was represented by a duty lawyer and a complaint was made to the magistrate of police assaults, at the same time asking for a prison custody. When he was before the magistrate, he saw his co-defendant, Chow Yin Leung, also there. The magistrate ordered him to be detained in prison custody.

14. When he arrived at Lai Chi Kok Reception Centre, he was examined by a doctor. He told the doctor that he had been assaulted by police and later a complaint was made to CAPO.

15. In September 1995, he was tried in the High Court in respect of these charges. He gave evidence once before the judge then again before the jury. He told the court of these assaults by police officers. At the end of the day, he was acquitted by the jury of all charges.

16. When he was released from the cells of the High Court in Queensway, those police officers who had assaulted him in the Upper Levels Police Station including Inspector Lai was waiting for him. They then handcuffed and arrested him in the presence of his mother, a clerk from the solicitor firm representing his co-defendant, as well as his co-defendant Chow Yin Leung. He was taken back to the Upper Levels Police Station into a room where Inspector Lai warned him against making any complaint or else trouble would be caused to his family as well. At that time, although a complaint had already been made to CAPO by the plaintiff, he had not given a full statement to CAPO. Inspector Lai also told him that his lawyer was on his way to see the plaintiff and told him not to tell his lawyer too much, and that if he did not make any complaints, he will be released and given bail. After the plaintiff was released on bail, he then went to Legal Aid to pursue this civil claim.

17. The plaintiff called Chow Yin Leung as a witness. Chow gave evidence that he was arrested at his home on 1 January 1995 by a team of officers led by Inspector Lai Kam Wah from the Regional Crime Unit. He was then taken to the Upper Levels Police Station, arriving there at about 6 p.m. He was taken into a room where the windows were covered up. His clothes were all removed, the air-conditioning turned on, and he sat on a chair handcuffed to it. His hair was pulled back, water was poured down his nose and he was asked by the officers if he knew a person called Chan Kwok Wai and where the gun was. At that time, Inspector Lai, a sergeant and several detectives in plainclothes were present. After about 10 minutes of being assaulted, another officer came into the room and said that Chan Kwok Wai had been arrested. Inspector Lai then told him to cooperate and that Chan Kwok Wai was their main target, and that the police will give him a statement to sign. But if he did not co-operate, the assault would continue.

18. Chow was then taken to another room where a cautioned statement was written out. While the statement was being written out, he was taken back to the first room. That was between 7 and 8 p.m. in the evening. Back in the first room, he only stood at the doorway. At the doorway, he saw a naked person sitting handcuffed to a chair and the police team who had earlier assaulted him was in the room. As he got to the doorway, he saw an officer hitting this person seated on the chair, once on his chest and another officer slapping him on his head from behind. As he got to this doorway, the hitting stopped. The person's hair was pulled back to lift his head and he was asked if he knew this person. He said he did not and he was then taken away. He only saw this person's face for about 10 seconds. He did notice, however, that the person who he now knows to be the plaintiff, was wet all over his body and face, but he did not notice whether the air-conditioning in that room was on or off at that stage.

19. When he was taken back to the room where the cautioned statement was being taken, while that was going on, he heard the plaintiff cried out for help on and off for a few minutes.

20. It was not until 3 January 1995 when he saw the plaintiff again in the magistrate's court that he came to know the plaintiff was by the name of Chan Kwok Wai. He had heard this name mentioned by the police when he was being questioned by them on the evening of 1 January. Later on, the plaintiff was jointly charged with him for the same offence and they were tried together in the same criminal case.

The defence case

21. The defence case was that the plaintiff was arrested at his home in Tsing Yi Island by Team 3B of the Regional Crime Unit (Team 3B was not led by Inspector Lai Kam Wah) and brought back to the Upper Levels Police Station at about 7:40 p.m. on 1 January 1995. It was only then that Team 3A, which was led by Inspector Lai Kam Wah, took over the plaintiff. Dinner was then arranged for the plaintiff in the Police Station and after dinner at about 8:45 p.m., the plaintiff agreed to lead Team 3A back to his home for a home search. The home search took place between 9:30 p.m. and 11:30 p.m. After that, the police team and the plaintiff drove around Cheung Hong Estate in Tsing Yi Island for just over one hour, looking for the plaintiff's car. The car was not found and the police team left Cheung Hong Estate at 12:40 a.m., arriving back at the Upper Levels Police Station at 1:30 a.m. because the traffic at the Cross Harbour Tunnel was congested.

22. The plaintiff was then taken to Room 121 by two officers. Officer 21225 was left to guard the plaintiff in the room while the other officer, 21471 went to the Inspector's office for a briefing. When Officer 21225 was guarding the plaintiff in Room 121, the plaintiff was seated on a chair with his handcuffs removed and there was a desk in front of the plaintiff. Constable 21225 stood at the doorway with the door open. Suddenly, at about 1:35 a.m., the plaintiff suddenly slapped both his ears with both his hands three times with great force. The officer shouted at the plaintiff but the plaintiff continued to bang his head on the desk, again with great force. Officer 21225 then rushed over, cradling the plaintiff with both his arms in order to stop him from hurting himself any further. The plaintiff tried to break free and kept on trying to bang his head on the desk. The officer then pulled the plaintiff away from the desk, but still the plaintiff tried to bang his head against the wall of the room, the door and a metal cabinet that was in the room. The officer then shouted for help and at the same time struggling with the plaintiff to stop him from hurting himself. After about a minute, Sergeant 10576 came into the room and together the two of them managed to subdue the plaintiff, pressing him down on the floor and handcuffing his two arms at his back. They then sat the plaintiff on the chair. During the struggle with the plaintiff, the plaintiff had kept on shouting "Help, help! Police brutality!"

23. Inspector Lai then came into the room, followed closely by Officer 21471 and asked what had happened. Officer 21225 then told the Inspector that the plaintiff had banged his head on the desk and had got injured. Inspector Lai then asked the plaintiff why he had done that. The plaintiff replied that he felt dizzy and had hit his head against the desk. Officer 21225 then contradicted the plaintiff and told the Inspector that the plaintiff had did it deliberately. The plaintiff denied that but maintained that he had felt dizzy. Inspector Lai then examined the plaintiff and from the middle top of the plaintiff's forehead, there was a little bit of blood running down his forehead. The plaintiff was asked if he needed to see a doctor which the plaintiff declined. A note to that effect was made in Constable 21225's notebook and the plaintiff was asked to sign it. No other injury was seen on the plaintiff at the time. On the instructions of Inspector Lai, the two constable and the Sergeant together took the plaintiff to the toilet to wash off the blood from his forehead. The plaintiff was then taken back to Room 121 and there was interviewed by Officer 21471 under caution. While the interview was going on in Room 121, Officer 21225 stood guard outside that room. After the interview at 4:15 a.m., the plaintiff was taken to Waterfront Police Station for detention by Sergeant 10407, Officer 21225 and Officer 21471.

24. The plaintiff was taken out from the Waterfront Police Station by officers of the Regional Crime Unit Team 3A at 3:15 p.m. on 2 January 1995 and brought to the Upper Levels Police Station. There, a second interview under caution with the plaintiff took place, ending at 4:28 p.m. the same day. Thereafter, the plaintiff was returned to Waterfront Police Station for detention again.

25. On the afternoon of the next day, namely 3 January 1995, police was led to a stone hut in Yuen Long by the girlfriend of the plaintiff. There the police recovered a pistol, some cannabis, gas mask, pliers, a pressure jet and walky talkies. After these items were recovered from the stone hut, the plaintiff was brought to the stone hut in Yuen Long and showed the recovered items. Under caution, the plaintiff said that the pistol belonged to a person called Ah Leung.

26. Whilst the plaintiff was at this stone hut in Yuen Long, the landlord of the stone hut identified the plaintiff as the person who had rented the stone hut from him.

27. The plaintiff was then taken back to the Upper Levels Police Station and at 8:15 p.m., a third interview under caution took place, finishing at 1:50 a.m. the following morning. In this interview, the plaintiff made admissions and confessions to the police, in particular about the pistol recovered. After the interview, the plaintiff was charged for the offences of conspiracy to rob and possession of arms and ammunitions without a licence. The plaintiff was taken before the magistrate court on these charges the following morning, namely 4 January 1995. The trial of these charges in the High Court took place in September and October 1995.

Assessment of the evidence

28. Evidence called on behalf of the plaintiff came from the plaintiff himself, Chow Yin Leung and three doctors, one from the Queen Mary Hospital, one from Lai Chi Kok Reception Centre and a specialist dealing with the plaintiff's perforated right ear drum.

29. The plaintiff himself, on his own admission, has a number of criminal convictions. These convictions not only affect his character but two of these convictions, involving the offence of burglary, also affects the plaintiff's honesty and therefore his credibility. Moreover, discrepancies are found between the evidence given by the plaintiff and the evidence given by his witness, Chow Yin Leung, as to how the plaintiff met up with Chow again after Chow's return to Hong Kong from South America and how it was that Chow was enlisted to give evidence for the plaintiff in this case. There are also discrepancies between the evidence given by the plaintiff in this action and the evidence given by him in the criminal trial which took place in the High Court in September 1995 where both the plaintiff and Chow Yin Leung were co-defendants. In the light of all these matters and having seen the plaintiff give his evidence in the witness box, I take the view that the plaintiff's evidence, in particular the more important aspect of it, would need to be supported or corroborated by other evidence before I would be prepared to give weight to it.

30. In the case of Chow Yin Leung, he has not been entirely frank with this court as to the full extent of his relationship with the plaintiff. The fact that he is prepared to come back all away from South America to give evidence on behalf of the plaintiff underlines the fact that he has a much deeper relationship with the plaintiff than he cares to admit. Again, I am not prepared to rely on his evidence without some independent support or corroboration of such evidence.

31. I have no hesitation in accepting the evidence of the three doctors with one exception which is that Dr Noom from Lai Chi Kok could well have been mistaken when he found that the plaintiff had a perforated right ear drum (which in fact was a scar).

32. Turning now to the defence evidence. The main witnesses for the defence were DPC 21471, DPC 21225 and Sergeant 10576. Inspector Lai Kam Wah was not called to give evidence, having left the police force by the time of this trial. Two other officers from Team 3A were also called to give evidence but they were involved with Chow's cautioned interview on 1 January and the early hours of 2 January rather than with the plaintiff. While there are no substantial discrepancies between the evidence given by the various witnesses called for the defence, a common feature which drastically weakens the defence evidence is the way in which the notebooks of almost all the important witnesses for the defence have been made up. These police notebook entries not only do not comply with the Police General Orders, but are made up in such a way that it has given rise to the suggestion by Mr Wright, who appears for the plaintiff, that there was a massive conspiracy by all the officers in Team 3A of the Regional Crime Unit to cover up that incident in which the plaintiff came to be injured when he was in the Upper Levels Police Station on the night of 1 January or the early hours of 2 January 1995.

33. Dealing now with the various police notebook entries of the witnesses called by the defence, first of all it should be noted that it is common grounds that apart from the police notebook entries, nowhere else has it been recorded by any of the police officers the incident in which it was alleged that the plaintiff injured himself whilst in the Upper Levels Police Station that night.

34. Dealing firstly with the notebook of Officer 21471, his notebook records down from page 29 up to page 39 matters which happened between 1 January 1995 up to 10 a.m. of 6 January 1995. Those entries between pages 29 and 39 makes no mention of the incident in which the plaintiff was alleged to have injured himself in the Upper Levels Police Station on the night of 1 January or the early hours of 2 January. From page 39 of his notebook, a post-record is then made of "the course of the investigation of the case of conspiracy to rob". This post-record is a post-record of events going back to 1 January 1995 from 8 a.m. onwards. This post-record covers very much more detail than the earlier pages in his notebook. At page 45, he continues with this post-record of what took place on 2 January 1995. And at page 46, there is a record of the incident in which the plaintiff was alleged to have injured himself whilst inside the Upper Levels Police Station. This was made on the basis of what was reported by DPC 21225. This post-record does not stop there but goes on, at page 58, to deal with 3 January 1995. In fact, the post-record takes up the rest of the notebook right up to page 60.

35. The evidence from DPC 21471 was that after this notebook (Exhibit D3) was used up, he then used an unofficial notebook and pieces of scrap paper to make note of matters which happened between 6 January 1995 and 13 January 1995 when he was issued with another police notebook. It was only on 13 January 1995 that he copied back into his new police notebook all the other entries which, in the meantime, had been jotted down in an unofficial notebook and pieces of paper.

36. Turning now to the notebook of DPC 21225. In his notebook, the events of 1 January 1995 was recorded from page 46 onwards and on page 48, it began to record the events which took place on 2 January 1995. At the bottom of page 48 in his notebook, an entry was made at 1:50 a.m. which records an incident occurring at 1:35 a.m. on that day when the plaintiff was alleged to have banged his head against the corner of a wooden table inside Room 121, causing injury and bleeding to his head. It also records the fact that the plaintiff declined to see a doctor in respect of that head injury. That entry was also purported to have been signed by the plaintiff confirming the same. After that entry immediately, at page 51 of the notebook, another entry which purports to have been recorded at 2:02 a.m., post-records in very much more detail the same incident. In this post-record, the plaintiff was alleged to have used his own two hands to clap on his ears for about three times before banging his head against the corner of the table in front of him. It then goes on to post-record the fact that the plaintiff was taken down to the toilet to wash off the blood before being brought back into Room 121 where the record of interview commenced. This post-record of the whole incident occupies over eight pages in the notebook. The last entry on page 60 (i.e. the last page) of this notebook is an entry at 15:32 on 2 January 1995 that DPC 21471 inside Room 121 took a record of interview from the plaintiff.

37. The evidence of DPC 21225 was that after that last entry on page 60, his notebook had been used up entirely. However, although he had continued on duty for the rest of that day at the Station, no efforts was made by him to obtain a new police notebook until 9:30 a.m. on 3 January 1995. During that period that he was without an official police notebook, the evidence of DPC 21225 was that he had made notes which should have been in his notebook, on several pieces of paper. Those notes were then copied back into his new notebook after he had been issued with it on 3 January 1995.

38. Turning now to deal with the notebook entry of Sergeant 10576. In his notebook, there is an entry at the bottom of page 13 against the time of 1:35 a.m. (on 2 January 1995) which details the incident in which the plaintiff was alleged to have injured himself whilst in the Upper Levels Police Station. The record of this entry spans pages 14, 15, 16 and the first line of page 17. Although the entry is made against the time of 1:35 a.m., under cross-examination Sergeant 10576 agreed that that entry was not made at the time of 1:35 a.m. but that the time of 1:35 a.m. denotes the time when that incident occurred. He further said in cross-examination that that entry in those pages were made after the incident when the plaintiff had commenced his interview in Room 121 and when he himself had returned back into his own office. However, there is no time in any of these pages to indicate when it was that that entry was made. Sergeant 10576 further agreed in cross-examination that that did not comply with the requirements of the Police General Orders.

Findings of fact

39. As already indicated, I have no hesitation in accepting the medical evidence adduced by the plaintiff in this case. That medical evidence shows that when the plaintiff was examined by Dr Tse at the Queen Mary Hospital on the morning of 2 January 1995, he was found to have suffered a perforated ear drum in his left ear, swellings and abrasions at both wrists, red bruises at his forehead, back and left shoulder; as well as tenderness at his sternum. I also accept the evidence of Dr Tse that when he examined the plaintiff at the Queen Mary Hospital, he was told by the plaintiff that the cause of these injuries was due to the fact that the plaintiff had slipped and fallen at the Waterfront Police Station and that no other person was involved in his sustaining these injuries.

40. Dr Noom from the Lai Chi Kok Reception Centre also gave evidence on behalf of the plaintiff. He may well have been wrong to think that the plaintiff had perforated ear drums in both ears when, insofar as the plaintiff's right ear drum was concerned, there was only a scar. However, I do accept Dr Noom's evidence that he was told by the plaintiff that the plaintiff had been assaulted by police.

41. The third doctor called by the plaintiff was Dr Lam, a specialist in the ENT Department, Queen Mary Hospital. The plaintiff was seen in the ENT clinic on 11 January 1995 and Dr Lam confirmed that the plaintiff's left ear drum had a 10% healed perforation.

42. From all the medical evidence before me, there can be little doubt that the injuries found on the plaintiff came about while the plaintiff was in police custody, and most likely during the time when he was in the Upper Levels Police Station on the night of 1 January 1995 or the early hours of 2 January 1995. The real issue which I have to determine is whether these injuries were inflicted on the plaintiff by the police as the plaintiff alleges or whether the plaintiff had inflicted these injuries on himself as alleged by the defendant.

43. The first matter I note is that on both versions, that of the plaintiff's as well as that of the defendant's, these injuries came about at a time before the first cautioned interview of the plaintiff by the police and before any record of interview was made. In the circumstances, I think very little of the explanation tendered by these police officers to explain why the plaintiff should have to inflict these injuries on himself. Their explanation was that the plaintiff did so to forestall having to answer questions. If the officers had conducted themselves properly and in accordance with the rules for questioning a suspect, the plaintiff would have been under no obligation to answer any questions. It would have been difficult to envisage any situation why the plaintiff would have to resort to such measures, simply to avoid answering questions.

44. On the other hand, there is evidence before me to show that Chow Yin Leung had told the police, at some time after 8 p.m. on the evening of 1 January 1995, that the plaintiff had two guns which were hidden in the plaintiff's home. No doubt it was as a result of what Chow had told the police in this respect that caused the plaintiff to have been taken back to his home in Tsing Yi Island by Team 3A of the Regional Crime Unit for yet another house search (the plaintiff's home having been searched by Team 3B when the plaintiff was first arrested). Not only did this second house search proved fruitless insofar as locating the guns were concerned, but there was also evidence coming from the police officers concerned to show that the plaintiff was unco-operative with the police at that time. This comes from the evidence from the officers that they had spent over an hour, driving around the Cheung Hong Estate in Tsing Yi Island in an attempt to look for the plaintiff's car, the registration number of which was known to the police at the time. Had the plaintiff been co-operative with the police, I cannot imagine the police wasting time by driving around the estate looking for his car. Taking into account, therefore, that the police believed from Chow's statement that the plaintiff had two guns hidden at his home, the fact that the home search at Tsing Yi proved fruitless, and that the plaintiff was not co-operating with the police, this gives rise to the situation where there may well be a reason for the police to apply pressure to bear on the plaintiff in order to get him to reveal where he has hidden those two guns.

45. Thirdly, if the plaintiff had indeed inflicted those injuries on himself in the way the police officers had described, it would have been indeed curious that the Inspector, the Sergeant and the other officers involved to have allowed the plaintiff to go on to be interviewed under caution without any form of medical examination whatsoever and also to have failed to inform the duty officer at the Waterfront Police Station later on that the plaintiff had earlier that night tried to injure himself when the plaintiff was brought to the Waterfront Police Station for detention that night. On the other hand, had the plaintiff been assaulted by police officers instead, it is possible for the police officers to have made as little mention as they could of the plaintiff's injuries, particularly where they would have thought that the matter was over and done for after the plaintiff had signed in the notebook of Officer 21225 to the effect that the plaintiff did not require any medical treatment. Indeed, the evidence shows that it was not until after the plaintiff had returned to the Waterfront Police Station from medical examination at Queen Mary Hospital and when these officers came to collect the plaintiff from the Waterfront Police Station on the afternoon of 2 January 1995 that the medical findings (which were noted in the duty officer's register at the Waterfront Police Station) were made known to the officers of Team 3A of the Regional Crime Unit. It was likely that it was only then that they were alerted to the fact that this incident is far from over.

46. Fourthly, I take note of the fact that what the plaintiff told the doctor at Queen Mary Hospital as to the cause of his injuries and what he told the doctor at the Lai Chi Kok Reception Centre as to the cause of his injuries, though inconsistent in themselves, are nevertheless consistent with the plaintiff's version that he had in fact been assaulted by police officers. Quite clearly, he had told one version to the doctor at Queen Mary Hospital because he was still at that time in police custody, and had feared further repraisals by them. The fact that he told the doctor at Lai Chi Kok Reception Centre that he had been assaulted by police was because he no longer feared those officers since he was no longer in police custody. But had he inflicted such injuries on himself with the intention of making such allegations against the police, I would have expected the plaintiff to have taken the earliest opportunity of alleging police assault to the first doctor who examined him. This he did not do because he was still in police custody.

47. One further matter I take into consideration is the fact that had the plaintiff wished to injure himself in order to concoct such allegations, there would have been no need for him to do so in the presence of the police officers. He could well have inflicted injuries on himself after he had been detained in the detention cells at Waterfront Police Station, and could still have made the same allegations of assault by police.

48. The greatest difficulty that I have in accepting the defendant's version of events is the fact that this plaintiff, or any other person for that matter, wishing to inflict injuries on themselves would clap their own two ears with both their hands. Whilst there may be a number of different things that a person can do to inflict injuries on himself, sitting on a chair and clapping his own two ears with his own two hands is not something which even sounds plausible to me. On the other hand, it would be quite different if another person standing behind the plaintiff were to clap the plaintiff's both ears with his two out-stretched hands. That, in my view, would likely generate a great deal of force.

49. For these reasons given above, and also taking into account the evidence of the notebook entries of the police officers involved which notebook entries I have already referred to above, I have come to the following findings of fact :-

(1) At some stage after the plaintiff was brought back to the Upper Levels Police Station from his second home search, the plaintiff was interrogated by police officers as to the whereabouts of the two guns which police had information that the plaintiff had hidden.

(2) During the course of such interrogation and when the plaintiff proved unhelpful in his answers, he was assaulted by some or all of the police officers of Team 3A of the Regional Crime Unit, headed by Inspector Lai Kam Wah. The assault took the form of punches, most probably to his chest area, causing the tenderness to his sternum; being clapped on both ears from behind, causing the injury to his left ear drum; and being handcuffed either to the back or to the legs of a chair on which he was sitting in respect of both his hands causing the injuries to both his wrists because he was struggling whilst so handcuffed. More likely than not Inspector Lai, DPC 21471, DPC 21225 and Sergeant 10576 were present at the assault. There may have been others also.

(3) I further find that the plaintiff did not have his private parts squeezed or stepped on as alleged by him on the basis that there is nothing in any of the doctors' report to indicate that the plaintiff had complained of either pain or discomfort in that region when he was medically examined.

(4) As to the plaintiff's allegation of his mistreatment with water and/or urine being forced down either his nose or throat, I make no specific findings as to that allegation since it is not necessary for me to do so in order to dispose of this case.

(5) Although the pleadings did not rely on the assault which is alleged to have occurred on the evening of 3 January 1995, at or during the third cautioned interview, I find that there was no such assault. The admissions made by the plaintiff in his 3rd Cautioned Statement more likely than not came about as a result of the finding of the pistol in the stone hut in Yuen Long and the fact that the plaintiff was identified by the landlord of the stone hut to be the person who had rented that stone hut.

(6) Lastly, I also find that the notebooks of DPC 21471, DPC 21225 and also of Sergeant 10576 where each of them post-recorded the incident of the plaintiff injuring himself in the Upper Levels Police Station, was made after Team 3A and Inspector Lai Kam Wah was alerted to the fact that the plaintiff had been medically examined at Queen Mary Hospital on the morning of 2 January 1995 and one of the injuries found was a perforated ear drum of his left ear. These entries were made with a view to cover up the assault by the officers of Team 3A of the Regional Crime Unit and most probably at the instigation or direction of Inspector Lai.

Liability

50. It follows from my finding that the plaintiff was assaulted by police officers that alone would be sufficient to dispose of the question of liability in this case.

Quantum

51. I turn now to the question of quantum. The plaintiff claims for $500,000 for pain, suffering and loss of amenities. The plaintiff also claims for a further $500,000 as aggravated and exemplary damages. There is no other claim by the plaintiff, not even for special damages.

52. On the other hand, the defendant has pleaded that $50,000 would be sufficient for pain, suffering and loss of amenities by the plaintiff. The defendant further concedes that if liability is proved, $100,000 for aggravated damages and another $100,000 for exemplary damages would suffice under those two heads.

53. Insofar as pain, suffering and loss of amenities is concerned, I take into account the fact that by 11 January 1995, when the plaintiff was seen by the specialist at the ENT Department of Queen Mary Hospital, the perforation to his left ear drum had already healed. On the other hand, the plaintiff would have been in pain for some eight or nine hours at least before he received medical treatment. From the evidence of the doctors, I gather that there was no permanent impairment or disability to the plaintiff resulting from these injuries. I am therefore of the view that $80,000 would be a sufficient compensation to the plaintiff under this head of damage.

54. I turn now to deal with aggravated and exemplary damages. Aggravated damages is compensatory in nature whereas exemplary damages is punitive. This difference between the two is succinctly stated by Lord Reid in Broome v. Cassell & Co. [1972] AC 1027 at page 1089 where he said :-

"The difference between compensatory, or punitive damages is that in assessing the former, the jury ... must consider how much the plaintiff ought to receive, whereas in assessing the latter, they must consider how much the defendant ought to pay."

55. Dealing first with aggravated damages, this head of damage is awarded to compensate the plaintiff's feelings and dignity caused to him by the assault of the police officers. In assessing the amount that I should award under this head, I take into account the character of the plaintiff as well as the fact that $80,000 had already been awarded to him for pain, suffering, loss of amenities. I remind myself that under this head of damages, the amount to be awarded is to compensate the plaintiff for his injured feelings and loss of dignity. In all the circumstances of this case, I am satisfied that an amount of $100,000 would be sufficient for that purpose.

56. Turning now to deal with exemplary damages. This is punitive in nature. It is to punish the defendant for the oppressive conduct of the police officers involved in assaulting the plaintiff. In assessing the damages under this head, I take into account not only the wrongful conduct of the assault upon the plaintiff by the police officers concerned, but also the fact that after the officers realized that the plaintiff had been medically examined and that he had suffered from a perforated left ear drum, they had done everything that they could, in particular, in making up their notebook entries in an attempt to cover up this assault on the plaintiff. Moreover, the charges laid against the plaintiff were prosecuted until its ultimate conclusion when the plaintiff was acquitted by the jury. The means of the defendant is also a factor to take into account. However in this case, the defendant, being Secretary for Justice, that speaks for itself in so far as means is concerned.

57. Taking account all the above factors, I am of the view that the defendant ought to be ordered to pay $200,000 under this head of exemplary damages.

Conclusion

58. There would, therefore, be judgment in favour of the plaintiff in the sum of $380,000. Interest upon the sum of $80,000 awarded for pain, suffering and loss of amenities would be awarded at 2% p.a. from the date of writ until the date of judgment. I shall further make a cost order nisi that the plaintiff do have the costs of this action to be taxed, if not agreed.

 

 

 

Representation:

Mr John Wright, instructed by Messrs Boase Cohen & Collins, for the Plaintiff

Mr Andrew Li, instructed by Department of Justice, for the Defendant