Singh Arjun By His Next Friend Singh Anita Guruprit v. Secretary for Justice and Another

DCEO 9/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 9 OF 2011

--------------------

--------------------

-------------------------------------

JUDGMENT

-------------------------------------

CONTENTS

A.  Introduction

1.Arjun is Indian by race and Punjab by ethnicity.  He was 11 years old when he encountered the incident that I shall recount shortly.  The incident has given rise to allegations of racial discrimination, unlawful arrest and false imprisonment against the police.

2.As Arjun is a minor, this action was commenced by his next friend, his mother “Mrs Singh”.[1] The Secretary for Justice representing the Government is named the 1^st defendant and Police Constable Hung Kai Kam (“PC Hung”) is named the 2^nd defendant.[2]

3.The plaintiff’s claim is essentially for a declaration that the police have discriminated against Arjun on the ground of race, an apology, and an order directing the Commissioner of Police to investigate and discipline the officers concerned.  There is also a claim for damages.

4.Over the course of a 16-day trial, the parties have combed through the evidence in minute detail and, with the participation of the Equal Opportunities Commission (“EOC”) as amicus curiae,[3] debated the pertinent legal issues.  A total of 12 witnesses testified and over 170 authorities were cited in argument.  No stone was left unturned. 

5.In the end, I am quite satisfied that, whilst what happened must have been unpleasant to Arjun, the plaintiff has failed to establish his claim.

B.  An overview of the incident

6.In the afternoon of 6 January 2010, Arjun was returning home after a tuition class.  He took the Mass Transit Railway (“MTR”) and alighted at the Wanchai MTR Station.

7.He bumped into a middle-aged Chinese lady (identified as “Madam Chan” at the trial) on his way up to the ground level.  When the pair reached the top of the escalator at Exit A3 at around 15:50 hours, a scuffle broke out between them.  There were cross-accusations and they, as well as two passersby, called 999. In addition, Arjun called his mother.  Some MTR staff intervened and Mrs Singh arrived shortly to accompany Arjun.

8.PC Hung and Senior Police Constable Kwan Wing Yiu (“SPC Kwan”) were dispatched to the scene in response to the emergency calls.  The precise course of event that took place after their arrival is subject to serious dispute.  There are allegations of discriminatory conduct on the part of the officers.  Eventually, Madam Chan was taken to the hospital and Arjun was arrested by PC Hung for assaulting Madam Chan.  It is the plaintiff’s case that the arrest was unlawful.

9.Arjun and Mrs Singh were then taken to the Wanchai Police Station, leaving the MTR station at around 16:41 hours.  What happened en route to and during their stay at the police station is also disputed.  The plaintiff alleges that Arjun was coaxed into admitting his guilt and had been treated discriminatorily.  It is common ground that Arjun’s police interview did not commence until around 19:55 hours because of the wait for the Punjabi language interpreter Kuldip Singh (“KS”).  After the interview, Arjun was released on bail and left the police station at around 22:30 hours.

10.Arjun’s bail was extended once at the end of January and he attended a second police interview on 3 February 2010.  When he returned to the police station again on 5 March 2010 to answer his bail, he was released unconditionally with his bail money refunded.

11.On 12 March 2010, the plaintiff’s solicitors made representations to the Director of Public Prosecutions on behalf of Arjun regarding the incident.  The solicitors complained that Madam Chan had acted aggressively and that the arrest was arbitrary, making references to Arjun’s racial background and his inability to speak Cantonese.  They argued that it would not be appropriate to prosecute Arjun and suggested, instead, that the “inappropriate behavior” of Madam Chan be investigated and the “policing mistakes” corrected.

12.In a reply dated 13 April 2010, the Deputy Director of Public Prosecutions (“DDPP”) expressed that:

“I have recommended no further action. I consider that the complainant behaved inappropriately in the circumstances. I wish to apologize for any anguish caused to Master Singh over the incident.”

13.On 16 November 2011, the plaintiff commenced this action.

C.  The disputes

14.The plaintiff has pleaded two causes of action: (i) racial discrimination, and (ii) unlawful arrest.  The plaintiff says that the unlawfulness of the arrest has plagued the subsequent detention.[4]

C1&  The legal disputes

15.The racial discrimination claim is founded on section 27 of the Race Discrimination Ordinance, Cap 602 (“RDO”).  In gist, that section renders unlawful racial discrimination in the provision of goods, facilities or services.  It is the plaintiff’s case that the police had refused or deliberately omitted to provide “services” to Arjun on the ground of his race, arguing that section 27 is engaged in all stages of the activities of the police.  The defendants, on the other hand, argue that only some (but not all) of the police activities amounted to the provision of service.  The EOC favours the liberal approach of the plaintiff. There is therefore a dispute on the scope of application of section 27 to police activities.  [Issue 1]

16.Since this is the first time a claim based on section 27 has reached the trial stage, the plaintiff has invited me to issue general guidelines under section 73E(5) of the District Court Ordinance, Cap 336 (“DCO”) to regulate the burden of proof in racial discrimination claims.  Both the defendants and the EOC are against the idea.  [Issue 2]

17.Turning to the unlawful arrest claim, apart from challenging the factual basis of the arrest, the plaintiff argues that it was unnecessary for PC Hung to arrest Arjun.  The parties dispute as to whether there is a necessity test for arrest in Hong Kong.  [Issue 3]

C2.  The factual disputes

18.The same factual matrix underlies both causes of action.  The plaintiff has raised many factual disputes in argument and urged me to bear in mind the totality of the evidence, especially when assessing his racial discrimination claim. 

19.It is the experience of the English courts that cases of racial discrimination tend to be long, as there is a temptation on the part of the claimant to introduce into the case as many items as possible as material from which the court may draw an inference that “racial grounds” are established.  In some cases, too much background material of marginal relevance has gone in with the effect that the focus on the foreground becomes obscured or even eclipsed.[5]

20.This is not a case generally on police conduct and procedure or whether any of the police officers involved should have acted differently or even “by the book”.  Instead, the main focus of the trial should be on:

(a)  Whether there was denial of services insofar as any of the pleaded police activities constitutes the provision of a “service” in the context of the RDO?  [Issue 4]

(b)  Whether Arjun’s arrest was unlawful?  [Issue 5]

21.There is also a tendency on the part of the plaintiff to sway beyond his pleadings.  For example, the plaintiff attempted to cross-examine PC Hung at the trial on whether it had been open to the police to deal with Arjun by means of a summons short of an arrest.  Upon the objection of the defendants, I ruled that it was not open on the pleadings for the plaintiff to lead evidence in that regard.[6]

22.The problem has persisted into closing submissions.  For example:

(a)  One of the key arguments advanced in the plaintiff’s closing submissions (“PCS”) is that Madam Chan was not present at Exit A3 when the police arrived so much so that PC Hung had no chance to speak to her before arresting Arjun.[7] However, it was pleaded in the Re-Amended Statement of Claim (“RASOC”) and admitted in the Amended Reply (“AR”) that PC Hung had spoken to Madam Chan.

(b)  In his final analysis, Mr Blanchflower invites me to compare the treatment received by Arjun with that received by Madam Chan.[8] This is contrary to the plaintiff’s pleaded case (reiterated in his opening submissions) that the appropriate comparator should be “a hypothetical 11 year old of similar height and build to [Arjun] who spoke fluent Cantonese and was of the Chinese ethnic race”.

(c)  The plaintiff invokes section 5 of the RDO in the PCS and asks me to take into account the less favourable treatment received by Mrs Singh (as Arjun’s near relative) in deciding if Arjun had been discriminated.[9] This was not pleaded.  In any event, the plaintiff has apparently misread that section as it refers to discrimination of the complainant by reason of the race of his/her near relative.

(d)  The plaintiff argues racial profiling and institutional racism which have never been pleaded.[10]

(e)  The plaintiff invokes the doctrine of doli incapax and argues that PC Hung had omitted to consider if Arjun had the requisite mens rea to commit a crime.[11] This has not been pleaded.  Worse still, the point was not put to PC Hung at trial and PC Hung had no opportunity to explain his thought at the time of arrest.

23.All these have prompted Mr Wong to stress in the defendants’ closing submissions (“DCS”) the importance of properly delineating the scope of the plaintiff’s claims by reference to the pleadings. 

24.The Chief Justice has recently reiterated in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 (at §21) that:

“It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues: Wing Hang Bank Limited v Crystal Jet International Limited. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced.”

Mr Justice Elias has similarly warned in the English case of The Law Society v Bahl [2003] IRLR 640 (at p 649) that in anti-discrimination litigations:

“... a tribunal should not make findings of unlawful discrimination in respect of any matter which was not in the originating application or the subject of subsequent amendment. It is not for the tribunal to extend the range of complaints of its own motion...”

25.Having regard to the final submissions in the PCS, the following pleaded allegations are central to the plaintiff’s case:

  At the Wanchai MTR Station

(a)  &PC Hung arrested Arjun after a short exchange of two or three sentences with Madam Chan and without further investigation.  In particular, the police ignored Arjun and Mrs Singh who were trying to explain their side of the story.  [Issue 6]

(b)  &PC Hung communicated with Arjun and Mrs Singh in a reprehensive manner. He shouted at Arjun and declared arrest in a loud voice.  [Issue 7]

(c)  PC Hung ignored Arjun’s injury and damaged sweater and did not enquire if Arjun required medical treatment.  [Issue 8]

(d)  PC Hung refused to record the statement of “the Nepalese lady” that would support Arjun’s allegations.  [Issue 9]

(e)  PC Hung told Mian Waseem (“MW”), a friend of Arjun who happened to walk past Exit A3, not to worry as the police were just scaring Arjun and it was nothing serious.  [Issue 10]

(f)  PC Hung cautioned Arjun in a language that neither Arjun nor Mrs Singh would understand.  [Issue 11]

En route to the police station

(g)  PC Hung threatened Arjun inside the police vehicle saying that the police had watched the CCTV and knew Arjun to be guilty and that if Arjun did not admit to the assault he would be prosecuted and severely punished.  [Issue 12]

At the Wanchai Police Station

(h)  The above threat was repeated by various police officers (including PC Hung) at the police station.  [Issue 13]

(i)  Despite Mrs Singh’s plea that Arjun’s first language was English and that she was also fluent in English, PC Hung insisted to take Arjun’s statement in Punjabi.  The wait for KS (the Punjabi language interpreter) had prolonged Arjun’s detention.  [Issue 14]

(j)  Arjun was not provided with special arrangements suitable for children under arrest and in police custody.  [Issue 15]

(k)  No drink or nourishment was provided to Arjun or Mrs Singh during their stay at the police station.  [Issue 16]

(l)  PC Hung initially refused to allow Arjun’s father (“Mr Singh”) to attend Arjun’s interview.  He only relented after Mrs Singh had threatened to complain to his superintendent.  [Issue 17]

(m)  Arjun was not promptly released on bail when it was clear that the inquiry could not be completed within a reasonable time.  [Issue 18]

Other complaints

(n)  Arjun’s “caution and charge” were not withdrawn at the first available opportunity or within a reasonable time.  [Issue 19]

(o)  Despite DDPP’s comment, the police have refused to investigate Arjun’s complaint and neglected to caution, arrest or prosecute Madam Chan.  [Issue 20]

26.The defendants deny any wrongdoing and so it is necessary to make findings on the above allegations. 

27.In the ensuing discussion, I shall first tackle the factual disputes and the legal issues before turning to apply the law to the facts as I found them.  It should be made clear that I have considered all the arguments advanced by the parties (including those from the EOC).  The fact that I do not expressly deal with any particular submission in this judgment does not mean that I have omitted it in my overall assessment.

D.  The evidence

28.The plaintiff called Arjun, Mrs Singh, Mr Singh, MW and KS to give evidence.

29.PC Hung, SPC Kwan and the following witnesses testified for the defence:

(a)  Leung Tak Kuen (“Mr Leung”), the Station Operator of the MTR Corporation Limited who was on duty at the Wanchai MTR Station at the time of the incident.

(b)  Station Sergeant Garr Hok Ming (“SSGT Garr”), the Duty Officer on duty when Arjun and Mrs Singh were escorted to the Wanchai Police Station.

(c)  Woman Detective Police Constable Yuen Yin Wah Selina (“WDPC Yuen”), the investigation officer of this case.

(d)  Detective Senior Inspector Tang Sze Fun Raymond (“DSIP Tang”) who is in overall charge of this case.

(e)  Leung See Shui (“Ms Leung”), an English Translator of the Hong Kong Police who attended Arjun’s interview on 6 January 2010.

30.I shall set out their evidence, insofar as they are relevant to any issue that requires determination, in the discussion below.

31.There is no dispute about the authenticity of the documents included in the trial bundles.  The main documentary evidence are:

(a)  The CCTV recording of Exit A3 (“the CCTV footage”), from the moment Madam Chan arrived at the escalator landing (at around 15:50 hours) to the time when Arjun and Mrs Singh were escorted away (at around 16:42 hours).

It should be noted that the field of vision of the footage is limited and does not encompass the entire width of Exit A3.  The camera was set by default to capture the escalator landing on the right hand side of the exit.  At times, the camera was panned to the left to capture the staircase towards the left.  However, this part of the recording was blurred by the reflection of a glass panel in front of the camera.  The reflection has made it difficult, if not impossible, to discern what was going on.  As such, the CCTV footage does not provide a complete account of what happened at Exit A3.  Furthermore, the CCTV footage does not come with any audio recording. 

(b)  The audio recording and transcripts of the 999 calls made by Madam Chan, Arjun and two passersby on 6 January 2010.

(c)  The Notice to Persons under Investigation by or Detained in the Custody of the Police dated 6 January 2010 signed by Arjun, Mrs Singh, KS and PC Hung (“Notice”).

(d)  Two records of interview of Arjun.  The first cautioned interview was conducted by PC Hung in the presence of Mrs Singh on 6 January 2010 between 19:55 and 21:45 hours (“Arjun’s 1^st cautioned statement”).  Arjun was interviewed under caution again on 3 February 2010 by WDPC Yuen.  This time, Arjun was accompanied by his mother and their solicitors.  The plaintiff does not take issue with the voluntariness of these statements.

(e)  Two Polaroid photographs taken by WDPC Yuen on 6 January 2010 showing Arjun’s left arm (with the left sleeve of his sweater rolled-up) and his sweater (marked “broken” on the photograph) respectively.

(f)  The medical report of Arjun dated 21 June 2010 adduced by the plaintiff. It contains the findings of the medical examination of Arjun when he attended the Accident & Emergency Department of Ruttonjee Hospital on 8 January 2010 for treatment.

(g)  PC Hung’s statements.  Arjun’s 1^st cautioned statement was recorded in PC Hung’s police notebook and the notebook was retained as evidence after the interview.   PC Hung was issued with a new police notebook (“PC Hung’s new notebook”) wherein he made a post-record of the incident.  He made a formal statement in the small hours of 7 January 2010 in which he recounted the events in full (“PC Hung’s POL 154 statement”).

(h)  Madam Chan’s statement dated 22 January 2010 (“Madam Chan’s POL 154 statement”), and her two medical reports dated 11 January and 18 February 2010 respectively.

E.  General credibility of the witnesses

32.Both parties are critical of the other side’s witnesses.  In particular, the plaintiff has commented that PC Hung, SPC Kwan and DSIP Tang were evasive and/or not forthright and that they avoided questions and took long pauses before answering in cross-examination.

33.Whilst there is nothing wrong in commenting on the demeanour of witnesses, the Court of Final Appeal has warned against overreliance on demeanour as a means to resolve factual disputes.  In Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at 348, Bokhary PJ explained that:

“It is common to speak of a trial judge’s advantage of having ‘seen and heard’ the witnesses.... the words ‘seen and heard’ are perhaps capable of giving an exaggerated impression of the role which demeanour plays in the resolution of disputes of fact - demeanour being, as Lord Pearce put it in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at p 431, ‘mostly concerned with whether the witness appears to be telling the truth as he now believes it to be’. (Emphasis supplied)

Having said that about demeanour, I should make it clear that I accept that trial judges are entitled to take demeanour into account when assessing testimony. In life what really happened is not always what afterwards seems objectively probable. So demeanour has a role to play. Of course trial judges must bear in mind that demeanour can be deceptive and is therefore to be approached with care. In general, I would trust them to do that. Unless good reason to think otherwise appears, trial judges should be taken to have considered demeanour with caution, doing so only in the context of such inherent probabilities as may exist and the whole of the evidence.

It can of course happen that neither rival account is appreciably more inherently probable or improbable than the other, and there may be little or no evidence other than the testimony of the protagonists, each with an interest to serve. In such a situation, there will be little or nothing for the fact-finding judge to go on apart from demeanour.”

34.Consideration of the inherent probabilities or improbabilities of an allegation having regard to all the evidence including in particular any undisputed or indisputable fact and any contemporaneous document is a more reliable guide.  In Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corporation Ltd [2007] 3 HKLRD 439 at §135, Stock JA said that:

“Comparison with contemporaneous documentation is always an aid to reliability of oral testimony, unless there is reason to believe that the documentation is contrived or materially incomplete ... The truth ... can best be tested by reference to contemporaneous documentation where it exists, or to its absence where one would expect it to have been created, as well as to inherent probabilities ... having regard to all the facts that are known. ... This is not to say that the documentation should have been treated as if it stood on its own, not to be explained, contradicted or supported by oral testimony. It is however to say that in this case the approach adopted to assessment of the facts placed far too much emphasis on character impression and too little upon what was suggested by the documentation and by the inherent probabilities in their historical context.”

35.I have found the following observation of Chung J in Star Glory Investment Limited v Kai Tuo (HK) Technology Company Limited, unreported, HCA 3523/2002 at §12 instructive:

“There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified:-

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility.  Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony.  For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest.” 

36.The guidance of Peter Smith J in EPI Environmental Technologies Inc v Symphony Plastic Technologies Plc [2005] 1 WLR 3456 at §§74-75 is also commendable:

“... (i) First, it is essential to evaluate a witness's performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence. (ii) Second, witnesses can regularly lie. However, lies themselves do not mean necessarily that the entirety of that witness's evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie. (iii) Third, I regard it as essential that witnesses are challenged with the other side's case. This involves putting the case positively. This is important for a judge to enable him to assess that witness's response to the other case orally, by reference to his or her demeanour and in the overall context of the litigation. A failure to put a point should usually disentitle the point to be taken against a witness in a closing speech. This is especially so in an era of pre-prepared witness statements. A judge does not see live in-chief evidence, thereby depriving the witness of presenting himself positively in his case.

None of the above or the helpful assistance provided by the reported authorities is necessarily determinative. All of them provide factors to enable a judge to come to a particular conclusion about the acceptance or rejection of a particular person's evidence.”

37.In the present case, it is important to bear in mind that the witnesses are testifying about events that happened more than 4 years ago.  It is understandable that they may not have remembered every detail or may have remembered a particular detail incorrectly.  This is particularly so as they are vexed with very fine details in cross-examination.  I do not expect them to have perfect memory and it is only reasonable that they sometimes need time to recollect and reflect before giving an answer.  This applies to witnesses from both sides.

E1.  The defence witnesses

38.All the defence witnesses except Mr Leung (the MTR staff) and Ms Leung (the police interpreter) are police officers.  In a way, police officers have an edge over civilians as witnesses as they are trained to be observant and generally keep contemporaneous notes. 

39.In this case, the evidence of the police officers is generally consistent with the contemporaneous record.  I shall discuss the specific challenges mounted by Mr Blanchflower against their evidence below. 

40.Ms Leung’s evidence is generally consistent with the contemporaneous record in Arjun’s 1^st cautioned statement. 

41.The plaintiff does not seek to challenge Mr Leung’s evidence. 

42.All in all, I accept that the defence witnesses are all credible and their evidence is generally reliable. 

E2.  The plaintiff’s witnesses

43.Unlike police officers, the plaintiff’s witnesses have not received any training in making a mental note of material matters as an incident unfold and did not make contemporaneous notes to help them recollect the event later.  This is also the first time they testify in court and so they are bound to be nervous.

  Arjun and Mrs Singh

44.The key witnesses for the plaintiff are Arjun and Mrs Singh.  They have tried their best to recall the incident at trial and I am satisfied that they are honest witnesses. 

45.Arjun was 11 at the time and is now 14 years old.  MW recalls seeing him sitting on the floor crying and looking very upset at the MTR station.  Indeed, it is Arjun’s own evidence that “because of all the trauma that I went through ... I couldn’t distinctly remember the events.”[12] He accepts that parts of his initial recollection are incorrect.  For example:

(a)  &Based on Arjun’s (and Mrs Singh’s) instructions, the plaintiff has pleaded that the police only stayed briefly and conducted no investigation at the MTR station. 

After watching the CCTV footage, Arjun has come to accept that he had got the timing a bit off[13] and that the officers had spoken to various people at the MTR station for about 40 minutes.  He describes his initial account as “faulty recollection” and says that the impression in the RASOC that the police had stayed briefly at the MTR station was “inadvertently created”.[14]

(b)  In his witness statement, he described vividly of seeing the police van and the ambulance arriving together and the police signalling the paramedics to take Madam Chan away.  It is common ground that the police van and the ambulance arrived separately.  After watching the CCTV footage, he attributes all that to “faulty memory”.[15]

(c)  He accepts that the allegation that PC Hung had “a short exchange of two or three sentences” with Madam Chan before the arrest was due to “distorted memory”.[16]

(e)  Contrary to what he stated in his witness statement, he accepts that he could not have known what the Nepalese lady had said as she was speaking in Cantonese and he does not speak the language.  He says that he has “remembered incorrectly”.[17]

46.Mrs Singh admits under cross-examination that she did not witness part of what she stated in her witness statements but merely assumed them to be true.  She explains that she was confused by the crowdedness of the MTR station and was focusing on the welfare of her son at the time.[18]

47.These proceedings were taken out before the CCTV footage became available.  The plaintiff must have relied on the initial instructions of Arjun and Mrs Singh in formulating the complaints.  This accounts for the “mistakes” in the pleadings and in the earlier statements. 

48.It is rather disconcerting to see that Arjun and Mrs Singh tend to make the same “mistakes”.  The defendants have invited me to find that they have made up the plaintiff’s claim together.  In my view, it is natural for the mother and son to talk about the incident afterwards.  These discussions must have somehow reinforced each other’s “faulty memory” and filled in the blanks (so to speak).  When the CCTV footage came to be available, their allegations must have got so entrenched in their minds that it became difficult for them to take a fresh look at their complaints.  I do not accept that they have colluded together. 

49.To a certain extent, the defendants have been able to identify some of the more obvious “mistakes” in the plaintiff’s case by means of the CCTV footage.  There are many allegations (especially those that allegedly happened en route to and inside the police station) that are solely dependent on the bare assertions of Arjun and Mrs Singh and are not otherwise objectively verifiable.

50.Riberio PJ has reminded us in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at §182 that in civil trials, the civil standard of proof (whilst remaining at all times on balance of probabilities) must commensurate with the seriousness of the allegation:

“The majority in the House of Lords in Re H held that the civil standard requiring proof on a balance of probabilities continues to apply where, in civil proceedings, an allegation is made of criminal (or similarly serious) misconduct, but explained that such standard is to be applied flexibly, factoring in the inherently greater improbability of serious misconduct as compared with lesser forms of misconduct, and therefore requiring the person bearing the burden of proving the allegation to prove it with evidence of a commensurate cogency. The well-known passage in the speech of Lord Nicholls of Birkenhead states as follows:

‘The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. (at 586)’”

51.The plaintiff has no doubt made very serious charges against the defendants, accusing the force of institutional racism and the individual officers of discriminatory and unlawful conduct.  I have borne in mind the above guidance in assessing the plaintiff’s complaints.  The conclusion that I have reached after considering all the evidence is that whilst Arjun and Mrs Singh may be honest, their evidence is not reliable.  This will be elaborated below.

  KS

52.KS has been a part-time court interpreter since 2000.  He professes that “... I have throughout my interpretation and translation career, discharged my duties as interpreter/translator in good faith and to the best of my knowledge and skills.”  He gives damning evidence against the defendants in two material respects: (i) Contrary to the defence’s case, he provided no translation service on 6 January 2010; and (ii) He witnessed PC Hung threatening Arjun, denying Arjun the opportunity to make a statement, and repeatedly refusing to provide food and water to Arjun and Mrs Singh during the interview on 6 January 2010.

53.I have grave doubt about KS’s credibility.  His allegations are not only unpleaded but incredible:

(a)  He claimed in §12 of his witness statement that “I did not sign the police notebook because I was not providing any translation service to Arjun.” In court, he changes his evidence and says that: “I didn’t provide Punjabi translation.  That’s what I can say because there is none of the document which I have written in Punjabi that confirms it.” [19]

In fact, Arjun’s 1^st cautioned statement contains quite a number of signatures of KS.  There is also a declaration handwritten by KS to confirm that he had provided translation (see Section I2 below).  Mrs Singh also confirms that KS must have translated for her.  This shows that KS did not remember much when he was first approached to give a statement.

(b)  In §9 of his supplemental statement, he claimed (after reading the defendants’ witness statements) that “I was told by [PC Hung] to record that I had read over the notebook English translation to Arjun in Punjabi.  I recorded this fact in the notebook where indicated to me as it was expected of me and [PC Hung] had asked me to do so.  I confirm however that I had not read over the document in Punjabi...”  All these are denied by PC Hung.

KS’s admission that he lied on the record brings his own credibility into question.  The fact that he would willingly do such a thing goes against his responsibilities as a court interpreter.  According to him, he did it just because he was asked to do it and it was expected of him.  If he was prepared to lie so easily, why should his evidence be given weight?

(c)  Neither Arjun nor Mrs Singh has ever alleged that Arjun had been threatened, denied an opportunity to make a statement, or that they had been denied food or water during the interview on 6 January 2010.

When KS was asked in court to elaborate on his accusations, he reneged and said: “I cannot recall but he was – he was – I can’t recall it.  The incident happened 4 years’ ago. I don’t think you’ll remember what you did last week.”[20]

54.I do not accept KS’s allegations against the defendants.

  Mr Singh

55.Turning to Mr Singh, his evidence on his attendance at the police station on 6 January 2010 is contradicted by the contemporaneous record in one important respect.  He claims he was escorted into the interview room by a male police interpreter.  But the contemporaneous record (in terms of Arjun’s 1^st cautioned statement) shows clearly that it was Ms Leung who acted as police interpreter at the interview (see Section I5 below). 

56.I have decided not to place any weight on Mr Singh’s evidence.

  MW

57.The defendants do not really challenge MW’s credibility and I accept his evidence.

F.  What happened between Arjun and Madam Chan before police arrived?

58.It is common ground that Arjun bumped into Madam Chan at the MTR station on 6 January 2010.  Of those who have testified, Arjun is the only one who has personal knowledge of what had happened. 

59.According to Arjun, he accidentally brushed against Madam Chan’s right hand as he was rushing up the escalator.  He apologized but Madam Chan over-reacted and started shouting and swearing at him.   As they reached the top of the escalator at Exit A3, Madam Chan turned around and forcefully grabbed his arm, pulled him aside and pushed him against the wall.  He was shocked and instinctively reacted to try to break away from her grip.  After several unsuccessful attempts, he called the police as well as his mother. Eventually, some MTR staff separated them and his mother arrived shortly thereafter to accompany him.

60.Madam Chan did not testify.  There is her account of the incident in terms of her POL 154 statement in the trial bundles.  Suffice it to say that she gave a very different account, describing Arjun as an aggressive bruiser.  According to Madam Chan’s statement, Arjun initially brushed against her in the concourse, then became agitated and repeatedly pushed and pressed against her on the escalator.  When they reached the escalator landing, Arjun punched her abdomen three times with 7 to 8 blows each.

61.The defendants have not sought to defend Madam Chan’s account at trial.  They merely seek to argue, by reference to the CCTV footage, that Arjun had hit or at least tried to hit Madam Chan at Exit A3.

62.I have no difficulty in preferring Arjun’s account.  Although there is no video recording of their initial encounter, what happened at the escalator landing was captured by the CCTV.  Arjun’s account is generally consistent with the CCTV footage. 

63.There were three occasions when, at first glance, Arjun appeared to be hitting Madam Chan.[21] This has prompted Arjun to explain in his supplemental statement that he was merely trying to yank his arm from Madam Chan’s grip.  Having looked at the CCTV footage repeatedly and very carefully, I am quite satisfied with Arjun’s explanation.

64.Furthermore, I have been able to observe Arjun over the course of his evidence.  At times, the cross-examination was quite testing but he remained polite and gentle throughout.  I do not believe him to be aggressive, rude and vengeful as portrayed in Madam Chan’s statement.

65.I find that Arjun initially bumped into Madam Chan by accident and that he did not hit or attempt to hit Madam Chan at Exit A3.

G.  What happened after the arrival of the police?

66.The witnesses from both sides made mistakes on the timing of events at the MTR station.  In the end, both sides agree to refer to the timestamp on the CCTV footage. 

67.According to the CCTV footage, PC Hung arrived at Exit A3 at around 16:04 hours and SPC Kwan came in about one to two minutes later.  PC Hung was the one who conducted the investigation at the scene.  I reject the plaintiff’s suggestion (see §58 of the PCS) that SPC Kwan was in charge of the investigation as that was not apparent from the CCTV footage. 

68.PC Hung’s evidence has generated a lot of disputes and bears reciting in full here:

“5. Madam Chan informed [SPC Kwan] and me that she had called 999 and that she had a slight body contact with Arjun when she was alighting from a Chai Wan bound MTR train at the Wanchai MTR Station at about 15:40. As she reached the concourse and was about to take an escalator up to the ground level of Exit A3, Arjun intentionally bumped into her from behind. She immediately caught Arjun and questioned him. Arjun then told her that she had pushed him earlier, so he was pushing her back. Madam Chan also informed [SPC Kwan] and me that Arjun had hit her abdomen several times and some passers-by on the ground floor of Exit A3 subsequently separated her from Arjun.

6. Madam Chan told [SPC Kwan] and me that her right middle finger was crooked, red and swollen and she also felt pain in her abdomen. I observed that Madam Chan’s right middle finger was crooked, red and swollen.

7. I then made enquiry with Arjun who was accompanied by Mrs Singh, while [SPC Kwan] accompanied Madam Chan to concourse for first aid treatment of her middle right finger. I asked Arjun and Mrs Singh if they could understand Cantonese and both of them replied that they could speak English but not Cantonese.

8. As I was not fluent or conversant in English, I made enquiries with Arjun and Mrs Singh in simple English. I asked what had happened and whether he had any injury or any complaint. I spoke to them in a calm and normal manner and at no time did I shout at, or speak in a loud voice to them, as I understand it is (wrongly) alleged in the Amended Statement of Claim. Arjun informed me in English that he was hurrying home and was rushing up the escalator at the Wanchai MTR Station when he bumped against Madam Chan. Madam Chan then grabbed him by his sweater and called the police. Arjun said that he had also called the police and that he was not injured. I observed that Arjun did not have any visible signs of injury or bruises, nor did he complain of any pain or of any assault on him by Madam Chan, nor did he make any requests to me as, nor suggest to me that he was, a victim of a crime. I did not notice any damage to his sweater at all. However, for the avoidance of doubt, and in accordance with police practice, I asked Arjun and Mrs Singh if Arjun required medical treatment and they both said no. At no time did Mrs Singh make any requests or suggestions to me based on any allegation that Arjun had been assaulted.

9. At around 16:38 on 6 January 2010, [SPC Kwan] rejoined me at the Scene and informed me that Madam Chan had already been sent to the Ruttonjee Hospital by ambulance A526. I then informed [SPC Kwan] about my enquiry with Arjun and Mrs Singh. By reason of the inquiries made and conversations with Madam Chan and Arjun, and the observations on Madam Chan and Arjun, which showed to me that Madam Chan had sustained some injuries, while Arjun did not have any apparent injuries or bruises and no complaint of injuries was made by him, I believed that Arjun had assaulted Madam Chan, who was the victim. I also believed, from the said inquiries, conversations and observations, that Madam Chan had grabbed Arjun’s sweater so as to prevent him from leaving the Scene after he had injured her. I informed [SPC Kwan] of my belief and he agreed that there was evidence showing that Arjun had assaulted Madam Chan.

10. I also asked Ng Wing Hong (“Mr Ng”), an MTR staff, whether there was any CCTV recording system which could have captures the incident. Mr Ng advised me that there was no CCTV recording for the concourse and only the ground level at Exit A3 has CCTV recording. I was also informed by Mr Ng that the CCTV footage would not be available for inspection by me or [SPC Kwan] as in the absence of urgent need in this case, prior arrangement with the Mass Transit Railway Corporation through the Police Rail District was required before the CCTV footage could be inspected or viewed by me or any other Police Officers.

11. I understand that in the Amended Statement of Claim, it is suggested that at the Scene I had spoken to a Nepalese lady and a friend of Arjun of a similar age. I understand that the Amended Statement of Claim also mentioned a Pakistani man who was supposed to have spoken to Mrs Singh at the Scene. However, I can confirm that during the time when I was at the Scene, I did not see, meet with or talk to, and was not aware of the presence of, any Nepalese lady or Pakistani gentleman or friend of Arjun. Nor did any passer-by ask or talk to me about the incident at the Scene. In fact, both [SPC Kwan] and I tried to locate other witnesses at the Scene by asking if any person saw what had happened but no one provided us with any information.

12.  At 16:50 on 6 January 2010, I said to Arjun and Mrs Singh in simple English that I was arresting Arjun for common assault and asked him to go to the Police Station with me.  As I was not fluent or conversant in English, I cautioned Arjun and declared arrest in Cantonese for the offence of common assault at the Scene.  After I declared arrest on Arjun for common assault, neither Arjun nor Mrs Singh said anything to deny the offence.”

G1.  Did PC Hung arrest Arjun without investigation? [Issue 6]

69.The plaintiff has pleaded in §23(1) of the RASOC that upon arrival at the MTR station, “PC Hung spoke to Madam Chan first, and after a short exchange of two or three sentences and without further investigation, walked straight towards Arjun and in a loud voice declared that Arjun was under arrest for the assault of Madam Chan.” 

70.In §23(6) of the Re-Amended Defence, the defendants responded by admitting that the officers had spoken to Madam Chan upon arrival and averring that Arjun was arrested after due investigation at the scene. 

71.In reply, the plaintiff reiterated (in §§7 and 19(3) of the AR) that the police had indeed spoken to Madam Chan.

72.So it is common ground on the pleadings that the officers had spoken to Madam Chan upon arrival.  What is in dispute is whether the police had conducted further investigation before arresting Arjun.

73.Arjun’s and Mrs Singh’s witness statements are generally supportive of their pleaded case.  They, however, disavowed their evidence in court:

(a)  Arjun says that he does not in fact know if PC Hung had spoken to Madam Chan.[22]  As I have noted in Section E2 above, he describes his initial recollection as “distorted” and “faulty” and says that the plaintiff’s pleaded case was “inadvertently created”.

(b)  Mrs Singh likewise says that she merely assumed those allegations to be true and has since accepted, upon reflection, that they are incorrect.[23]

74.So, the plaintiff’s pleaded case is not supported by evidence. 

75.In his closing submissions, Mr Blanchflower puts forward a newcase on behalf of the plaintiff.  He argues that: “[B]y the time the police arrived at the MTR station, Mdm Chan had already been taken to the Concourse level by MTR staff to receive medical attention”.[24]  He puts much emphasis on his new case:[25]

“If PC Hung did not speak to Mdm Chan at the MTR A3 Exit, then the entire foundation of the Defendants’ pleadings and evidence that PC Hung had a reasonable belief about Mdm Chan’s complaint, that Arjun had assaulted her, falls away. The location of Mdm Chan is:

(1) Critical to the issue of Arjun’s unlawful arrest claim because it can conclusively determine whether PC Hung, the arresting officer, had taken reasonable steps to form the alleged reasonable belief from which he justified the lawfulness of his arrest of Arjun;

(2) Critical to the issue of Arjun’s RDO claim because it assists the Court identify the factual criterion which led to PC Hung’s failure to provide policing services to Arjun by eliminating Mdm Chan’s information from his sphere of considerations; and

(3) Undermines entirely the credibility of PC Hung and SPC Kwan – if they cannot be trusted as to whether PC Hung arrested Arjun on the basis of speaking to Mdm Chan and making enquiries from her, what else is untrue?”

He goes so far as to suggest that I should draw an adverse inference against the defendants for not calling any witness to confirm the whereabouts of Madam Chan when the police arrived.[26]

76.In my view, the new case argued by Mr Blanchflower is clearly inconsistent with the plaintiff’s pleaded case. 

77.I have not lost sight of the somewhat convoluted statements in the AR. 

(a)  In §8, it is pleaded that:

“... The Plaintiff avers that:

(1) Neither Arjun or Arjun’s Mother saw PC Hung speak to Madam Chan but they genuinely believed that he did speak to Madam Chan prior to accusing him of assaulting Madam Chan and declaring him under arrest;

(2) Arjun and Arjun’s Mother held this belief because:

(a) They were surrounded by MTR employees which blocked their view;

(b)& They did not therefore see Madam Chan being escorted away from the escalator and Exit, toward the lower levels of the Wanchai MTR Station by MTR Employees;...” 

(b)  In §13, it is pleaded that:

“The Plaintiff further avers as follows:

(1) PC Hung did not at any material time go down into the Wan Chai MTR Station to personally inspect and observe Madam Chan. He was at all material times at the MTR Exit and did not see Madam Chan...”.

78.The above statements must be read in the context of the entire AR.  Given the unequivocal admissions in §§7[27] and 19(3)[28], the plaintiff must be taken to mean: (i) by §8, that the plaintiff’s case is that PC Hung had spoken to Madam Chan at the MTR station although Arjun and Mrs Singh did not “see” it; and (ii) by §13, that PC Hung did not “go down” to the concourse level to personally check on Madam Chan’s condition. 

79.Given the “new” case, it would have been vital for the plaintiff to amend his pleadings to properly introduce the issue and to adduce evidence to prove that Madam Chan was not at Exit A3 when police arrived.  The plaintiff has done nothing.  As said by the Chief Justice in Kwok Chin Wing, it is unacceptable for unpleaded issues (let alone a totally new case) to be raised out of the evidence.  It must also be said that there is no property in a witness and the plaintiff could have called Madam Chan or the relevant MTR staff in support of his new case. 

80.As the matter stands, the plaintiff’s new case is based entirely on Mr Blanchflower’s interpretation of the CCTV footage.  With respect, I do not agree with his interpretation:

(a)  At around 16:01:50 hours, Madam Chan could be seen walking across the screen from right to left and then out of sight.  Mr Blanchflower argues in §§87 and 88(3) of the PCS that Madam Chan was being led down the stairs the moment she went off screen.  This is speculation.

None of the witnesses (including Mr Leung[29]) saw Madam Chan being escorted downstairs.  Arjun and the Nepalese lady could be seen doing the same thing (ie walking from right to left and then out of sight) at around 15:59:06 and 16:02:00 hours respectively.  It is common ground that they had all along remained on the ground level. 

(b)  At around 16:02 hours, an MTR staff could be seen raising his arm and pointing downward.  Mr Blanchflower suggests in §88(3)-(4) of the PCS that the MTR staff was indicating to someone to take Madam Chan down to the concourse level to receive treatment.  He argues that MTR staff would not have let her waited indefinitely at Exit A3 for the police. 

There is no factual basis for the contention.  First, the CCTV footage does not show anyone responding to the alleged gesture of the MTR staff.  Secondly, Mr Leung recalls Madam Chan telling arriving MTR staff that she had called the police.  So, it was within the contemplation of those present that the police would be arriving in any minute and it was not unreasonable for everyone to remain at Exit A3 to wait for the police.

(c)  SPC Kwan could be seen walking down the stairs at around 16:06 hours.  Mr Blanchflower argues at §88(9) of the PCS that a reasonable officer would have spoken to and accompanied Madam Chan down if Madam Chan had by then remained on the ground level, suggesting that SPC Kwan did not escort her down as testified by the officer. 

The CCTV footage does not show SPC Kwan accompanying anyone down, as the image is blurred by the reflection of the glass panel.  Be that as it may, I agree with Mr Wong (see §29 of the DCS) that the movements of SPC Kwan are consistent with the officer’s evidence.  On balance, I reject the plaintiff’s contention.

(d)  Mr Blanchflower argues at §88(8) of the PCS that given their earlier altercation, the MTR staff would not have allowed Arjun and Madam Chan standing by the left wall in close proximity to each other.  I do not agree. 

According to Mr Leung, the distance between the entrance of the exit and the top of the staircase leading to the concourse level is 15 to 20 feet.  There is enough space objectively for Arjun and Mrs Singh on the one hand and Madam Chan on the other hand to stand side-by-side.  By then, the earlier argument had subsided and MTR staff was on hand.  There is nothing unreasonable in asking them to remain at Exit A3 to wait for the police.

81.For completeness, I should briefly deal with Mr Blanchflower’s submission that adverse inference should be drawn against the defendants.  The relevant legal principles are, as confirmed by the Court of Appeal in Pacific Electric Wire & Cable Co Ltd v Texan Management Ltd, unreported, CACV 90/2012, 17 September 2013, at §§106-107, as follows:

(1)  In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2)  If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3)  There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4)   If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.

82.In the present case, the issue of the whereabouts of Madam Chan was never pleaded and the defendants could not be expected to adduce evidence in that regard.  Far from being silent, their witnesses (PC Hung and SPC Kwan) attested that Madam Chan was at Exit A3 when they arrived.  The fact that PC Hung had spoken to Madam Chan at Exit A3 is also confirmed by the contemporaneous record (PC Hung’s post-recorded statement). Mrs Singh is also adamant that they must have spoken to each other and that “we didn’t see doesn’t mean that they didn’t talk”.[30]

83.On the other hand, the plaintiff has offered not one iota of evidence to support his claim that Madam Chan had been taken downstairs before the arrival of the police.  In the premises, there is no basis to draw any adverse inference against the defendants.

84.In any event, how would PC Hung know what to arrest Arjun for if he did not speak to Madam Chan?   Mr Wong is also right that:

“If Arjun’s case is that PC Hung did not in fact talk to Mdm Chan but had told him untruthfully that he had is to be accepted, that would involve a finding that not only had PC Hung (a police constable barely out of training school) decided to arrest Arjun immediately with no investigation and no legitimate basis in his own mind to do so, he had also within the extremely short period of time that he was at the scene worked out what false premise or story (ie that he spoke to Mdm Chan already when he had not) he was to give Arjun and his mother so as to justify the arrest (which he must have known he had to back up later by making false statements when he wrote up his notes and the police statement). And he was supposed to have gone to all these troubles, just because he took one look at Arjun and realized he was an Indian? This is unlikely and unbelievable in the extreme.” (§33 of the DCS)

85.I therefore reject the plaintiff’s pleaded case (as it is not supported by evidence) and his new case (for the above reasons).

86.Turning to the defence case, it is PC Hung’s evidence that he arrested Arjun after inquiring with Madam Chan, Arjun, Mrs Singh and Mr Ng (an MTR staff) at the scene.[31] He says that by the time he escorted Arjun and Mrs Singh away from the MTR station, Arjun had already been arrested.[32]  He emphasizes that “there is no point in us hanging around the Scene, and for me (and SPC [Kwan]) to talk to Arjun and Mdm Singh for quite some time thereafter” if he had arrested Arjun shortly after arriving at the MTR station.[33]

87.Mr Blanchflower has persisted in his challenge:

(a)  At trial, PC Hung uses a still screen of the CCTV footage to point out that Madam Chan was standing by the left wall when he arrived.  Mr Blanchflower points out that PC Hung’s evidence was inconsistent with §4 of his witness statement wherein he stated that Madam Chan was “standing near the escalator connecting the concourse...”  In response, PC Hung explains that he only remembered the precise location of Madam Chan after he had made his second supplemental statement.  He thought it was unnecessary to make a further statement to clarify that because he had already stated in his second supplemental statement that he had spoken to Madam Chan at “the Scene” which term encompasses the whole of Exit A3. 

I accept PC Hung’s explanation.  The precise location of Madam Chan has never been put in issue and PC Hung could not be blamed for not being precise as to her whereabouts in his evidence.  Whether Madam Chan was standing by the left wall or near the escalator, she was at “the Scene”.  In fact, Arjun and Mrs Singh made the same mistake when they initially recounted that Madam Chan was standing on the other/opposite side of Exit A3 when the officers arrived.[34]

(b)  &Mr Blanchflower criticizes SPC Kwan for not correcting a similar mistake in §4 of his witness statement.  However, SPC Kwan was not asked about this and there was no opportunity for him to explain.

(c)  Mr Blanchflower then suggests that the statement in §5 of SPC Kwan’s witness statement that Madam Chan had spoken to both officers is inconsistent with the officers’ evidence in court that they arrived at the MTR station one after the other.  I do not think the criticism is justified.

It is SPC Kwan’s evidence that when he joined PC Hung at the MTR station after parking the police vehicle, Madam Chan was still speaking in an agitated manner.[35]  Thus, Madam Chan did at one stage speak to both of them.   

88.The CCTV footage is objective evidence that the officers had spent 40 minutes at the scene investigating the incident.  On the whole, I accept the defendants’ evidence that PC Hung only arrested Arjun after due investigation at the scene.

G2.  Did PC Hung ignore Arjun and Mrs Singh and communicate with them in a reprehensive manner? [Issues 6 & 7]

89.The plaintiff alleges in §23(2) of the RASOC that the police ignored Arjun and Mrs Singh who were trying to explain their side of the story. 

90.Arjun and Mrs Singh claimed in their witness statements that the police had ignored them and only spoken to Madam Chan upon arrival.  However, the CCTV footage reveals that PC Hung had indeed spoken to them and they have come to accept that at trial. 

91.Arjun is able to recall telling PC Hung at the scene that he bumped into Madam Chan as he was hurrying home and rushing up the escalator, that he was grabbed by Madam Chan and she refused to let him go, and that he had called the police.[36] He does not remember using the word “assault” in his account.[37]  His evidence is consistent with the contemporaneous record in PC Hung’s new notebook (and POL 154 statement):

“AP [ie Arjun] said as he was hurrying home, he rushed up the escalator to the ground level of Exit A3 and bumped against Vtm [ie Madam Chan]. Vtm then grabbed him by his clothes and called the Police. Therefore AP also called the Police. At the time, AP stated that he was not injured.”

92.It is Mrs Singh’s evidence that she could not tell the police from her personal observation what had happened between Arjun and Madam Chan.[38] But she can confirm that neither she nor Arjun used the word “assault” when recounting the incident to the police.[39]  This is consistent with PC Hung’s evidence that he derived no useful information from Mrs Singh and so nothing was recorded. [40] 

93.It is thus clear from the evidence that PC Hung had sought out Arjun’s account and listened to what Mrs Singh had to say and did not ignore them.

94.At trial, Arjun complains that the police were dismissive of what they said.[41] Mrs Singh also alleges that the police was “not very much interested in our side of the story.”[42]  Given what happened afterwards (eg the arrest), it is understandable why they hold such impression.  I agree with Mr Wong that it is rather unlikely for someone who had spent 40 minutes in making enquiries to be dismissive. 

95.In §23(1) of the RASOC, the plaintiff also complains that PC Hung shouted at Arjun and declared arrest in a loud voice.

96.Mrs Singh claims in her supplemental statement that the CCTV footage has captured the instances when PC Hung was acting in a rude and aggressive manner.[43]  Mr Blanchflower similarly suggests in the PCS that the CCTV footage contains footages that show PC Hung and SPC Kwan acting aggressively.[44]  I have looked at the relevant footages very carefully but do not discern any rudeness or aggression on the part of the police.

97.It is apparent from the CCTV footage that Exit A3 was very crowded and busy at the time and the incident had attracted a lot of onlookers.  Given the crowdedness of the place, it is understandable that PC Hung and SPC Kwan might need to speak louder than usual.  I accept Mr Wong’s submission that it is rather unlikely for the police to act rudely or aggressively to an 11-year-old boy and his mother in the full view of the public. 

98.All in all, I reject the plaintiff’s case that the police had ignored Arjun and Mrs Singh or communicated with them in a reprehensive manner.

G3.  Did PC Hung ignore Arjun’s injury and damaged sweater? [Issue 8]

99.The plaintiff complains in §23(4) of the RASOC that the police ignored Arjun’s injury and damaged sweater and did not enquire if Arjun required medical attention.

100.According to PC Hung, he did not observe any injury on Arjun and, upon enquiry, Arjun told him that he was not injured and did not require any medical treatment.[45] His evidence is corroborated by the contemporaneous record in his new notebook and POL 154 statement.  Mr Leung (the MTR staff who testified) also confirms that Arjun did not complain of any injury.[46]  In court, Arjun also accepts that he did not tell the police at the MTR station that he was injured or in pain [47] and that the first time he mentioned to anyone on 6 January 2010 that he had been hurt by Madam Chan was in his 1^st cautioned statement.[48] 

101.Arjun was wearing a grey long sleeves sweater on top of an orange long sleeves sweater on 6 January 2010.  It can be seen from the CCTV footage that when he first appeared at the top of the escalator at around 15:50 hours, he was wearing the grey sweater.  Then at around 16:13 hours, he could be seen in his orange sweater.  Arjun must have taken off the grey sweater between these times.  Neither Arjun nor Mrs Singh can recall when Arjun took off the grey sweater.[49]

102.If Arjun was wearing long sleeves clothing all the time (be it the grey sweater or the orange sweater), it was unlikely that PC Hung could have seen Arjun’s arm.  It is not suggested by the plaintiff that Arjun had rolled-up his sleeves to show any injury to PC Hung or that PC Hung’s attention had specifically been drawn to any damage on Arjun’s sweater.

103.It is thus clear that Arjun did not complain to anyone at the MTR station that he was injured or that his sweater was damaged and no injury or tear was discernable. 

104.When WDPC Yuen later became aware of Arjun’s complaint that he had been pinched by Madam Chan through reading Arjun’s 1^st cautioned statement, she took instant photographs of Arjun’s left arm and his sweater.  As far as WDPC Yuen could observe at the time, there was no bruise or injury on Arjun’s arm.[50] The quality of the photographs in evidence is such that no injury on Arjun’s arm and tear in Arjun’s sweater is discernable. [51] 

105.According to the medical report adduced by the plaintiff, when Arjun was examined two days later on 8 January 2010 the doctor only noted “(R) scapular area tender”.  There is no mention of any bruise or injury to his arm.  In the premises, there could not have been any injury observable on Arjun’s arm when he was at the MTR station.

106.There is then the dispute over whether PC Hung had enquired if Arjun required medical attention.[52] Arjun denies it[53] and Mrs Singh does not remember it.[54]  Although there is no contemporaneous record of the enquiry, PC Hung is adamant that he did ask as a matter of standard police practice.[55]  WDPC Yuen also says that she followed standard practice in asking the same question at the police station.[56] This aspect of her evidence was not challenged in cross-examination.

107.On balance, I accept that PC Hung had made such enquiry.  It would have been difficult for anyone to confirm if something was not said in a conversation (as opposed to what was said) and Arjun and Mrs Singh have demonstrated that their memories of what happened have faded after 4 years.  WDPC Yuen confirms the practice of enquiring if an alleged victim requires medical attention.  I find it more likely than not that PC Hung had made the enquiry upon being told by Arjun that he had been grabbed by Madam Chan.

108.All in all, I reject the plaintiff’s complaint in this regard.

G4.  Were there other witnesses of the incident? [Issue 9]

109.In the RASOC, the plaintiff asserts that:

(a)  There was a large crowd of eye-witnesses at the MTR station who had “seen and observed the entire incident”. (§17)  In particular, a Pakistani man and “the Nepalese lady” made themselves known to Mrs Singh that they had witnessed Madam Chan’s assault on Arjun. (§16)

(b)  PC Hung refused to take the Nepalese lady’s statement which would support Arjun’s explanation but only recorded her identity card number in his police notebook. (§23(3))

  The Pakistani man?

110.None of the plaintiff’s witnesses (including Mrs Singh) testifies as to the presence of any Pakistani man who might have seen or observed Madam Chan’s assault on Arjun.  The plaintiff has not identified the Pakistani man from the CCTV footage either.  I reject the plaintiff’s case that there was such a witness.

  The Nepalese lady?

111.On the other hand, PC Hung could be seen in the CCTV footage talking to a lady with a white hair-band.  That lady is identified as “the Nepalese lady” at trial.

112.In the PCS, Mr Blanchflower submits that:

(a)  the CCTV footage corroborates “Arjun and Mrs Singh’s evidence that the Nepalese lady witnessed Arjun’s complaint of assault by Mdm Chan thus undermining PC Hung’s and SPC Kwan’s evidence that this person did not exist and that her evidence was irrelevant to their investigation” (at §79(2)); and

(b)  SPC Kwan has admitted under cross-examination that the Nepalese lady was a “key witness” of Madam Chan’s assault on Arjun (at §320). 

I do not agree with these submissions.

113.First, PC Hung has given a plausible explanation in §7 of his 2^nd supplemental statement as to why he did not recall the presence of the Nepalese lady earlier:

“While it appears from the CCTV footage that such a lady was present and was standing near us when I was making enquiries of Arjun and Mrs Singh, and that I spoke briefly to her, I have no recollection of meeting or talking to her, and I did not record any information of, or given by, any Nepalese lady whilst talking to her. If any information given by this lady shown in the CCTV footage was relevant or useful in any way, I would have recorded the information, as well as her personal particulars (including her name and contact details). The fact that I did not therefore shows clearly to me that whatever she told me was not of any use or relevance. I sincerely believe that that was the reason why I did not recall meeting or talking to her, given that she told us nothing materially useful.”

SPC Kwan gave a similar explanation at §§6-7 of his supplemental statement.

114.Secondly, it is apparent from the CCTV footage that the Nepalese lady only came on the scene (at around 15:52:30 hours) after the initial scuffle at the top of the escalator and the three occasions when Arjun appeared to be hitting Madam Chan.  According to the plaintiff’s own running commentary of the CCTV footage at Appendix B of the PCS, the Nepalese lady could, at most, see Madam Chan holding Arjun and Arjun’s struggle to get free.  But the fact that Madam Chan was holding onto Arjun and would not let him go was not something in dispute at the scene.  And Arjun accepts, after watching the CCTV footage, that “the Nepalese lady would not have been able to tell the police anything other than the fact that Madam Chan was holding [me] so as to refuse to let [me] go”.[57]

115.In the circumstances, there is no objective basis for Mr Blanchflower to say that the Nepalese lady had witnessed Madam Chan’s assault on Arjun and for SPC Kwan to say that the Nepalese lady was “a key witness as to what took place at the top of the escalator when Arjun was allegedly assaulted by Madam Chan”.[58]

116.In fact, SPC Kwan’s answer was quite inconsistent with the general thrust of his evidence that the Nepalese lady was not a material witness. [59] His answer was likely to be inadvertently made in the face of persistent cross-examination by Mr Blanchflower.  When he was re-examined by Mr Wong, he clarified that:[60]

Q.  Now, you were then asked something about the Nepalese lady being a key witness as to what happened at the top of the escalator when Arjun was allegedly assaulted by Chan.

A.  Yes.

Q.  Now, then next you were asked nowhere in your notebook was there a note of this and you agreed.

A.  Yes.

Q.  Now, why did you not make a note?

A.  Because I reckoned that she was not a witness, that’s why I did not make a record of the particulars of this person.

117.Thirdly, as to whether the Nepalese lady had given relevant evidence to PC Hung at the scene:

(a)  Arjun claimed in §28 of his supplemental statement that the Nepalese lady had told arriving MTR staff and PC Hung that Madam Chan had assaulted him and that it was not his fault.  In court, however, Arjun accepts that he could not have made out what was said as she was speaking in Cantonese and he did not understand the language.  He attributes what he stated in his supplemental statement as “faulty recollection”.  Whilst he is later prompted in re-examination to say that the Nepalese lady might have spoken partly in English and partly in Chinese, he says he is not sure.[61]     

(b)  Mrs Singh likewise claimed to have heard what the Nepalese lady had said.[62]  She said that the Nepalese lady was “involved as a person who was willing to testify on behalf of Arjun”.[63]  At trial, she is unable to recall what was spoken.  This is her evidence:[64]

Q.  Now, can you again recall, the best you can, what the Nepalese lady said to the police, to PC Hung?

A.  I had to – I was with Arjun and she was telling him.  I didn’t – I could not clearly listen, but I knew she was telling him that Arjun was in trouble.

Q.  Well, but you suggest her that – or you were telling us quite specifically, at para 11, what the Nepalese lady was telling PC Hung in English.  Right?

A.  Yes, just a – she was telling him, I didn’t tell the details, did I?

Q.  Sorry?

A.  Did I tell you the details?

Q.  Well, you were able to tell us the gist of what the Nepalese lady told the police in English.

A.  Where have I said that?

Q.  Well, you – paragraph 11, second line, “In English, she said that Madam Chan had grabbed Arjun first and then Arjun had tried to free himself.”

A.  Yes.  That – by the actions, I can tell.

Q.  Sorry?

A.  By her actions, I could tell.  You know she made an action that – by her action.

Q.  By her action?

A.  Yes.

Q.  Sorry.  By her action?

A.  Yes.

Q.  So you didn’t hear what they actually said?

A.  No, I could hear faintly.

Q.  Mm?

A.  Very faintly, I could – you know, I could make out, like.  You know when someone is at a distance talking, you can make it faintly?

...

Q.  So you heard – did you – faintly, what did you hear them speak?

A.  When you hear something faintly, you only hear, you know, something which is the – you only conclude what is important in that.  So this was the – I concluded.  This was the important thing she was telling him.

118.There is thus no credible evidence that the Nepalese lady had given material evidence to PC Hung.  I accept PC Hung’s evidence that “whatever she told me was not of any use or relevance”.

119.I also do not accept that PC Hung had recorded the Nepalese lady’s HKID card number in his police notebook.  PC Hung denies taking down the Nepalese lady’s HKID card number and no such record exists in his police notebook.  Arjun accepts that he did not really see what was written down.[65] Likewise, Mrs Singh confirms that she did not actually see what PC Hung wrote down.[66] 

  Any other witness?

120.It is PC Hung’s evidence that:[67]

“While there were passers-by at the Scene, [SPC Kwan] and I did call out if anyone saw what had happened but no one provided me or [SPC Kwan] with any useful information such as the evidence on what had happened between Arjun and Madam Chan while they were on the escalator before their arrival at the Scene which could assist [the police’s] investigation. The fact that this is not shown on a grainy footage with no sound and focus on one angle looking at the Scene does not mean that we did not. We did.”

121.It is apparent from the CCTV footage that the police came on the scene about 10 minutes after the scuffle between Arjun and Mrs Singh.  It is rather unlikely for any eyewitness to remain there for so long.  I accept the defendants’ case that the officers were unable to locate any material witness despite their effort. 

G5.  Did the police neglect to watch the CCTV recording at the scene?

122.PC Hung recorded in his new notebook and POL 154 statement that:

“... I checked with the MTR staff member [NG Wing-hong, S/N 197211] whether there was any video-recording capturing the circumstances at the ground level of Exit A3 available. He stated that there was no video-recording for the ticket selling concourse and the video-recording for the ground level of Exit A3 was available.”

123.Under cross-examination, he says that:[68]

Q.  Did you think of asking the MTR to just view the CCTV at the time you were at the scene?

A.  Yes.

Q.  And did you?

A.  Yes, I did.

Q.  What did you say?  What did you ask?

A.  At the time it was a public place.  At the same time I noticed there was a CCTV installed at exit A3 of the Wanchai MTR Station, so I would ask the MTR staff whether I could view the tape right there and then to see what happened when the case occurred.  But eventually, they said that it would take some time to view that tape to see what happened when the case occurred, so I jot down...

INTERPRETER:  Sorry.

A.  So I took the means for contact so that we could view the tape later.

...

Q.  Now, when you talked to this person and they said it would take time to view the tape, what sort of time would it take?

COURT: Sorry, what sort of time?  In other words, as far as you are aware, how much time it would take for them to arrange for the viewing of the tape, right?

MR BLANCHFLOWER: Yes, thank you.

A.  At that time he told me that they could not immediately show the – check the CCTV tape.

Q.  Well, how long would it take, one hour, two hours, three hours?

A.  I’m not sure.

Q.  So what you did know is that you could view the tape but it would take some time, and not immediately?

A.  [Need] my supervisor to write a letter to the rail district to apply for the viewing of the relevant CCTV tape.

Q.  Okay, can you look at your POL 154, at tab 40?

A.  Yes.

Q.  Okay, first of all, you wrote down apparently his details, SN number?

A.  Yes.

Q.  But there is no record there of him telling you that it would take time to view it.

A.  That’s correct.

Q.  There is no record there of your intention to ask a supervisor to contact the MTR.

A.  That’s correct.

Q.  Now, knowing that there was this CCTV of the scene why not ask your supervisor to make a request for the CCTV before you made any decision to arrest Arjun?

A.  Because at that time I had made inquiries with the MTR staff.  He said that since it was not the case of serious urgency so they could not immediately review – to check the CCTV tape.

Q.  That wasn’t my question.  Will you answer my question, please?  Did you have any problem understanding it?

A.  I have no problem.

Q.  Will you please answer it now?  Why, knowing that it could be viewed, why didn’t you make an urgent request to your supervisor to make an urgent request to the MTR to view that relevant CCTV before arresting Arjun?

A.  Because at that time I have asked the MTR staff and he said that the CCTV footage could not be viewed immediately afterwards.  So under that circumstances in order to safeguard the interests of Arjun and his mother, so I thought that it was necessary to bring them back to the police station for investigation.

Q.  We will come to that.  So you say that the MTR staff said that it was a non-urgent case.

A.  That’s correct.

Q.  And so the MTR staff were determining what was urgent or not urgent.

A.  That’s not correct.

124.PC Hung clarifies in re-examination that:[69]

Q.  Now, well, you were asked about whether – whether you can view the CCTV right at the scene at the time and you gave us the answers about – about whether it’s an urgent situation, right?

A.  Yes.

Q.  Now, you were asked by Mr Blanchflower to confirm – and you did confirm – that in your POL 154 there was no record of Mr Ng telling you that it takes time to view the CCTV.

A.  That’s correct.

Q.  Why didn’t you record that?

A.  Because at that time I was looking for evidence.  First of all, I tried to locate witness.  And if there were CCTV installed at the place where the case occurred I would ask whether I could view the CCTV footage then.  At that time the staff said that there wasn’t, so I just jotted down his relevant particulars for our detailed investigation in future to assist in our investigation in future.

Q.  No, but the point is you did not write down what you were told by Mr Ng that it would take time to view the CCTV.  My question is why didn’t you make a note of that in your POL 154?

A.  Well, in our conversations I could [not] record down every sentence that we uttered, I could only record the main points in my POL 154.

Q.  Now, is – do you consider this to be a main [point] or not about this taking time to view?

A.  Well, as for whether it was a main point, well while I was looking for evidence, the CCTV footage is sure a main point, but whether I could view the CCTV right there and then, well, it was – whether it was a main point ...

MR BLANCHFLOWER: I’m sorry, I didn’t hear the end of the answer.

INTERPRETER: “Whether I could view it right [there] and then, well it was” – he has not finished his answer.

A.  But I’ve said, it is a main point.

Q.  Then why didn’t you record it on the POL 154?

A.  Well, I can’t say that I would record down what he said verbatim in my statement.

125.In §120 of the PCS, Mr Blanchflower criticizes that:

“PC Hung said in re-examination that viewing the CCTV was ‘a main point’, yet he made no record of it in his notebook or POL 154. He also confirmed that it was he who decided that it was not urgent to view the CCTV at the MTR station when he was there. This is not included in his statements. This also goes to indicate that he had a total disregard for Arjun’s welfare – he had the ability to view the CCTV at the time by insisting to MTR employees that it was an urgent case, but didn’t, and went ahead and arrested an 11 year old.”

126.In my view, PC Hung did not neglect the relevancy of the CCTV evidence. He made enquiry with MTR staff (Mr Ng) but was told that it would take time to arrange to view the CCTV recording.  He therefore took down Mr Ng’s particulars for follow up actions.  It is unreasonable to expect him to make a verbatim record of his enquiry.

127.In fact, it was not up to PC Hung or Mr Ng to decide whether the police would be allowed access to the CCTV recording. 

(a)     PC Hung says any request would have to route through his superior at the Rail District.  According to §74-10 of the Force Procedure Manual, requests for viewing of CCTV recordings captured by the MTR Corporation should be made through “SIP ADM RAILDIST”. 

The documentary evidence shows that DSIP Tang (as the officer in overall charge of the case) sent a request by email to “SIP ADM RAILDIST” at 23:00 hours on 6 January 2010 for the relevant recording.  That was followed by an email from “SIP ADM RAILDIST” to the MTR Corporation. 

(b)     According to Mr Leung (the MTR staff who testified), save for urgent operational need the established practice is for the police to make prior arrangement with the Group Manager of the MTR Corporation to view the CCTV recording.[70]

128.Mr Leung was cross-examined as to whether the police might gain immediate access to the CCTV recording at the scene:[71]

Q.  That in a situation of emergency, where the police need to know right away what happened at a particular time, captured by CCTV, would MTR allow them to look, just to look?

A.  They can’t.

Q.  Not at all?

A.  They can only watch it after they have, that is the police, made an application to the relevant department of our company for viewing of that footage, recording.

Q.  So in a case of emergency, and the police know that – they need to know the description of somebody who’s just shot somebody in the MTR station, is it your evidence, sir, that the MTR would not allow the police just to look at a few minutes of the CCTV footage?  Is that your evidence?

A.  It has to be dealt with, for example we, Wanchai MTR station belong to the Central Group.  We cannot just open the footage for viewing, only the manager of the Central Group can switch on the footage for viewing.

Q.  So if the police made a request, a verbal request by telephone to your manager at Central, they could view the CCTV?

A.  That’s correct.

...

Q.  It’s a very simple matter for the police to request a viewing, isn’t it?

INTERPRETER: To request to view the tape?

MR BLANCHFLOWER:   Yes.

A.  Yes.

Q.  It can be done within one hour or two hours.

A.  I’m not sure.

129.The circumstances of this case are far less serious than the example posed by Mr Blanchflower in cross-examination.  Even if PC Hung had insisted, I doubt if SIP ADM RAILDIST and the Group Manager of the MTR Corporation would approve his request.  And it would not be practicable for PC Hung to oblige everyone to remain at the scene for an undetermined amount of time while clearance was being sought.

130.I therefore reject Mr Blanchflower’s criticisms.

G6.  Did the police tell MW that they were just scaring Arjun? [Issue 10]

131.It is the plaintiff’s case (at §23(5) of the RASOC) that the police told MW, a friend of Arjun who happened to walk pass, that he needed not worry for they were just scaring Arjun and it was nothing serious.

132.Arjun stated in §26 of his witness statement that: “PC Hung had told Waseem that they (the Police) were trying to frighten me so that I would admit to wrongly hurting Madam Chan and that they were going to take me to the police station but that it was no big deal.”  Arjun says in court, however, that he did not actually hear what was said but merely recited in his statement what he had learned from Mrs Singh.[72]

133.On the part of Mrs Singh, she stated in §13 of her witness statement that: “... Waseem told me that PC Hung had said that this was not a very serious incident and that they were scaring Arjun so that he would admit his wrongdoing in assaulting Madam Chan.”  She maintains that in court.

134.However, MW does not recall the conversation at all.  When he was cross-examined by Mr Wong, he said this: [73]

Q.  Waseem it said here that – well, Mrs Singh told us that you told her that PC Hung had said to you that they were scaring Arjun into – so that he would admit his wrong doing, right?

A.  I don’t have such impression.

Q.  You do not recall at all?

A.  That’s correct.

135.If PC Hung had really said that to him, I do not think MW could have forgotten it.  I do not accept the plaintiff’s case in this regard.

G7.  How was Arjun cautioned? [Issue 11]

136.The plaintiff also complains in §23(6) of the RASOC that Arjun was cautioned in a language that PC Hung knew or ought to have known that Arjun would not understand.

137.PC Hung admits having cautioned Arjun in Cantonese.  He explains that “[a]ccording to what I’ve learned from the Training School and what I knew at that time, I was not able to administer the caution to him in English...”[74]

138.When he was asked in cross-examination if he had been concerned that Arjun might not understand the caution, he responded that: “It is exactly the point why I had to take him back to the police station to make a post-record with him in a language that he understand with the assistance provided by the interpreter to make a post-recorded cautioned statement from him.”[75]

139.SPC Kwan,SSGT Garr and DSIP Tang all confirm that police constables are only taught to administer caution in Cantonese at Police Training School.[76]  Whilst I find that perplexing, the evidence clearly establishes that Arjun was cautioned in Cantonese not because of his race.

H.  Did the police coax Arjun into admitting his guilt? [Issues 12 & 13]

140.In §24(1) and (2) of the RASOC, the plaintiff complains that Arjun had been threatened on the way to and during his stay at the police station.

141.According to Arjun:

“Throughout the drive to the Police Station, PC Hung spoke to me in English that he had viewed the CCTV Footage at the Wan Chai MTR Station and saw that I had assaulted Madam Chan. He said that if I did not admit to the assault, I would be prosecuted and severely punished. However, if I did admit the assault, I would receive a less severe punishment in the nature of a caution from the superintendent and that I would be released as I was only a child.

I did not respond to PC Hung’s threats primarily because he was asking me to lie and encouraging me to admit something that I had not done. I also knew that I did not have to say anything to PC Hung as I knew my rights as a Hong Kong permanent resident that I could remain silent. I also knew that it was not possible for PC Hung to have viewed the CCTV footage of the Incident as he claimed, because he had never left the Exit from the time of his arrival to the time of our departure for the Police Station. I was sure that he was lying and wanted to try to trick me into admitting that I had assaulted Madam Chan.”[77]

142.Arjun says that after he and Mrs Singh had seen the Duty Officer at the police station:

“After a few minutes PC Hung came back in and tried to coerce me into admitting responsibility by telling me the superintendent would be lenient on me if I admitted my guilt now. I refused to do so and PC Hung left. As we waited, different policemen continued to come into the room. One of the officers was not in uniform and told me that he had viewed Madam Chan’s X-ray film at the hospital and that she was badly injured. He asked me to admit to assaulting Madam Chan, which I refused to do. This routine continued with PC Hung and another officer a few more times. The plainclothes officer also came in a second time to tell me that Madam Chan was a high ranking social worker and that I was going to be in big trouble but that if I confessed to the assault, I would receive a superintendent’s caution as a more mild punishment. I continued to refuse to admit to something that I did not do and protested that I was innocent and had been the one who was a victim of an assault by Madam Chan.”[78]

143.Arjun also says that whilst they were waiting for KS (the Punjabi language interpreter):

“During the one hour wait, different uniformed officers came into the room and tried to coerce me into admitting. This happened about six to seven times and I continued to deny responsibility for the alleged assault.”[79]

144.Mrs Singh’s evidence to similar effect is at §§19, 25 and 32 of her witness statement.

145.Although KS suggests that Arjun was also threatened during the interview,[80] his account is not consistent with those of Arjun and Mrs Singh and should be rejected.

146.PC Hung denies ever threatening Arjun.  He says that he remained in the vicinity of Arjun and Mrs Singh throughout the time they were at the police station (save for one occasion when he went to the washroom for a short while) and he did not see or hear any police officer making threats to them.  It is also the evidence of WDPC Yuen that she was the investigation officer assigned to the case and other police officers had their own duties to attend to and had no business to speak to Arjun and Mrs Singh. 

147.The plaintiff has no doubt made very serious allegations against PC Hung and other unidentified police officers.  The plaintiff’s case is only supported by the bare allegation of Arjun and Mrs Singh.  I agree with Mr Wong that: “If Arjun’s case is to be believed, that would mean that, for an alleged offence of common assault (which while a serious offence, is likely to be one which the police deals day-in and day-out), a team of police officers found it necessary to take turns to threaten Arjun in order to deal with this offence. This is unlikely in the extreme.” 

148.Furthermore, PC Hung was conscious of the fact that Arjun might not understand his rights so much so that he had decided to take Arjun back to the police station so that Arjun might make a statement with the assistance of an interpreter.  It would have been obvious to PC Hung that any admission obtained under such circumstances would be subject to serious challenge. I find it unlikely that he would coax Arjun into an admission.

149.I do not accept that Arjun had been threatened by the police at all.

I.  What happened at the police station?

I1.&  Appearance before the Duty Officer

150.It is Mrs Singh’s evidence that:

“When we arrived at the Police Station, PC Hung and his partner told us to follow them. On the way, I saw a police officer wearing a white shirt and thought he was a more senior policeman. I now know that he was the Duty Officer (“DO”) in charge of the report room. My father was a naval officer in the Indian Navy so I understood that it was best to speak to a more senior officer if you have concerns about a junior officer. I therefore stopped to speak to the DO. PC Hung’s attitude changed immediately. He went from being extremely rude to us to treating us more politely. I believe this was because I told the DO in English that I thought we were being discriminated against because we were of Indian ethnicity. I also told him about the incident and that Madam Chan was the one who had grabbed Arjun’s arm and hurt him and that PC Hung should have arrested her instead of my son. To my surprise, he apologised on behalf of the Police Force but he said he could not do anything but to detain Arjun for further investigation in accordance with police procedures.”[81]

151.Arjun’s evidence to similar effect is at §32 of his witness statement.  In court, however, he says that SSGT Garr did not really apologise for any discrimination.  His evidence is that:[82]

Q.  Right, so the duty officer did not ask any questions or make any investigation before he apologised, is that your evidence?

A.  Yes, but he didn’t – it’s not a formal apology of any sort.  The apology is more of like, ‘I’m sorry if I caused you any inconvenience’ or something like that.  It’s not like he is vindicating me of all charges or anything like that.  It’s simply an apology by word, just like, ‘I’m sorry if the police was causing any inconvenience’.  It’s not like he is vindicating me or anything.

Q.  So the apology is not to apologise for any discrimination.

A.  Not that I – not as far as I know.

152.On the other hand, PC Hung denies that Mrs Singh had complained to the Duty Officer at the police station or that the Duty Officer had apologized.[83] The defendants also called SSGT Garr, the Duty Officer on duty at the time, to refute the allegation. 

153.SSGT Garr’s evidence is that he interviewed Arjun and his mother briefly on 6 January 2010.  He told Mrs Singh in English that her son had been arrested for assault and asked if she had anything to say or any complaint and both Mrs Singh and Arjun remained silent.  He also observed that Arjun had suffered no visible injury.

154.I prefer the defendants’ evidence.  SSGT Garr’s evidence is corroborated by the contemporaneous record in his police notebook.  The entry relating to Arjun recorded: “No complaint and no report.”  The entry is made in-between earlier and later entries on the same day concerning other arrested persons and is unlikely to be falsified. 

155.Mr Blanchflower has sought to discredit SSGT Garr by suggesting (at §66 of the PCS) that SSGT Garr has denied the fact that Mr Singh had attended the police station on 6 January 2010 – something which is common ground between the parties.  With respect, I think he has got this wrong.

156.SSGT Garr’s evidence (as stated in §6 of his supplemental statement) is that “I was the Duty Officer at the Police Station on 6 January 2010 but had not dealt with any Indian male at all on that day.” There is no evidence that SSGT Garr personally managed the front desk of the police station so much so that he must have met and dealt with Mr Singh when he attended the police station.  Indeed, it is WDPC Yuen’s evidence that the front desk was managed by “a police constable or a sergeant”.[84]

157.I therefore reject the plaintiff’s complaint.

I2.  The Punjabi language interpreter [Issue 14]

158.This is perhaps the most contentious issue in this case.  In §24(3) and (4) of the RASOC, the plaintiff complains that:

“(3)  Despite Arjun’s mother’s request and pleas that Arjun’s first language was English, and that she was also fluent and conversant in English (she was an economics teacher in Hong Kong before she homeschooled Arjun) PC Hung insisted on taking a witness statement in Punjabi;

(4)  The wait for a Punjabi translator prolonged Arjun’s detention at the Wan Chai Police Station to 10:30 pm when he was finally released on police bail, after giving his witness statement (by himself, in his own handwriting and without aid of the interpreter or his mother) in English as he did not understand Punjabi sufficiently;”

159.It transpires from the evidence that a number of police officers took part in the decision to engage KS (the Punjabi language interpreter) to assist in Arjun’s interview on 6 January 2010.

  SSGT Garr

160.According to SSGT Garr, he instructed PC Hung: [85]

“... to call for an Indian Language interpreter for Arjun, as I believed that the mother language of Arjun and Mrs Singh was either Punjabi or [Hindi], and according to standard police procedure in such circumstances an Indian interpreter should be present.”

He elaborated in his supplemental statement that:

“Where the mother tongue of a person in custody is not Cantonese or English, or where a child under the age of 16 is in custody and the mother tongue of either the child or his/her guardian is not Cantonese or English, it is the usual practice of the Police to request an interpreter who speaks the mother language of the person in custody or his/her guardian for the purpose of assisting in the taking of a cautioned statement from the person in custody. This is to ensure that the person in custody and his/her guardian would be able to understand the content of the cautioned statement and to protect the interest of the person in custody.”

161.Under cross-examination, SSGT Garr says that:[86]

Q.  And as you’ve recorded here, it was because of your belief that the mother tongue of Arjun and Mrs [Singh] was either Punjabi or [Hindi].

A.  Yes.

Q.  Now, did you make any inquiries as to whether they spoke Punjabi or Hindi?

A.  No.

Q.  So how did you know what English language interpreter to request for Arjun – Indian.

A.  My experience is that if an Indian person is arrested, to protect the arrested person’s interests, we would either arrange for a Punjabi or [Hindi] interpreter. But this also involves English interpretation, so there is a procedure to find out.  The procedure is to provide translation [to] this person.

Q.  So coming back to my question, how did you know whether Arjun spoke Punjabi or [Hindi]?

A.  Because the police constable told me that he was an Indian boy so to protect his interests.

Q.  So you assumed, because he was Indian, that he would need an interpreter?

A.  Of course we would ask the arrested person clearly whether a translation service is needed.

...

Q.  So you assumed that he would need an interpreter.

A.  Yes, he needed.

Q.  That’s what you assumed.

A.  You can put it that way.

Q.  Did you believe that he might have not understood Punjabi or [Hindi]?

A.  Yes, but this procedure of the arrangement of the interpreter involves the interpreter speaking to that person first.

Q.  Yes. But did you believe that Arjun could speak English and would have his statement taken in English instead of in either Punjabi or [Hindi]?

A.  Let me say this, if Arjun did not understand Punjabi or [Hindi] and that he could speak English, then my colleague would – PC Hung would inform me to arrange for an English interpreter.

Q.  But that was after you had already arranged an Indian interpreter.

A.  Not yet.

  PC Hung

162.According to PC Hung, he asked Arjun at the police station (in the presence of Mrs Singh) where Arjun came from, and Arjun replied that he came from India. [87]  This is confirmed by both Arjun and Mrs Singh.[88]

163.PC Hung also suggests in his evidence that he might also have asked Arjun the same question at the scene.[89] This is unlikely, as there is no contemporaneous record of the enquiry.  There was no reason for him to repeat the question at the police station if he already had the answer.  I also find it unlikely that Mrs Singh had told him that Arjun spoke Punjabi or that she opted for an Indian language interpreter herself, as there is no contemporaneous record of such exchanges.[90]

164.On the other hand, Arjun and Mrs Singh maintain at trial that they had told PC Hung at the MTR station that Arjun was born in Hong Kong.  That is denied by PC Hung.  I do not find this aspect of Arjun and Mrs Singh’s evidence reliable either.  They had both failed to mention it in their witness statements but only mentioned it for the first time in their supplemental statements.  When they were asked by Mr Wong as to how they could suddenly both remembered it:

(a)  Arjun answered: “It is not that I remember this clearly at all times.”[91]

(b)  Mrs Singh’s response was that: “I can’t give any reason, but it’s the – it’s true.”[92]

165.It is also their evidence that when Arjun told PC Hung that he came from India, Arjun also said he could not speak any Punjabi and that English was his first language.  That, according to them, happened before they spoke to KS over the phone.[93] They also maintain that they had told KS over the phone that Arjun did not speak Punjabi but only spoke English.[94] 

166.What is common ground between the parties is that Arjun and Mrs Singh did speak to KS over the phone.  According to PC Hung, he called the Regional Control and Command Centre (“RCCC”) for instruction and was given KS’s contact number.  He arranged for Arjun and Mrs Singh to speak to KS over the phone to confirm that they spoke the same language before requesting KS to come over.  He did not hear what was said between them and, when the phone was passed back to him, KS confirmed that he would attend the police station to provide interpretation service.[95]

167.On balance, I find it unlikely that Arjun/Mrs Singh had told PC Hung or KS that Arjun did not speak Punjabi and only spoke English or that English was Arjun’s first language.  If PC Hung had known that, he did not have to go through the procedure to find a suitable interpreter for Arjun.  KS is also adamant that he would not have wasted time to come to the police station had he known that his service would not be required.[96] According to KS, he only found out at the police station that Arjun could only speak very basic Punjabi.  I therefore reject the plaintiff’s case that there was any protestation for the arrangement of a Punjabi language interpreter.

  WDPC Yuen

168.There is also the evidence of WDPC Yuen (the investigation officer).  According to her, she asked Mrs Singh at the police station (in the presence of Arjun) what Arjun’s “mother tongue” was and explained to them that the police was arranging an interpreter who would speak Arjun’s mother tongue.[97] Mrs Singh replied that it was Punjabi.  WDPC Yuen then confirmed with the RCCC that a Punjabi language interpreter would be required and that the interpreter should report to her upon arrival at the police station.  She also made the arrangement for an English language interpreter to attend the interview.[98]

169.Notwithstanding her initial denial (see §53 of her supplemental statement), Mrs Singh accepts in court that she must have told WDPC Yuen that Arjun’s mother tongue was Punjabi.  Her evidence is that:[99]

Q.  Now, is it correct that the WDPC asked you what was Arjun’s mother tongue and you said “Punjabi”?

A.  It says “Punjabi”, so I must have told it’s Punjabi, when she asked me.

COURT:   I’m sorry, what is your answer?

A.  I must have told it is Punjabi, if someone asked me what is Arjun’s mother tongue, it is Punjabi.  He cannot speak.  That’s another fact.  But the mother tongue is Punjabi.  The mother tongue means the same, whatever if he can speak or not speak.

She explains in re-examination that according to her understanding, “mother tongue” means what one’s ancestors speak.[100] It is not the plaintiff’s case that Mrs Singh had shared her peculiar understanding of the term with any police officer on 6 January 2010.

  KS

170.Although KS no longer recalls having spoken to Arjun or Mrs Singh on the phone, he accepts that that “may well have been the case” (see §6 of his supplemental statement). 

171.It took KS an hour to travel from his home in Tung Chung to the Wanchai Police Station.  It is his evidence that “I do recall telling [PC Hung] at the police station, after I spoke to Arjun and his mother, that Arjun could only speak very basic Punjabi and could not read or write Punjabi” (see §9 of his witness statement).  Under cross-examination by Mr Wong, he said that:[101]

Q.  So you did not know that Arjun could not speak Punjabi before you arrived at the station?

A.  No.  Otherwise the police wouldn’t have asked me to come to the police station if they had given me any indication – why should I go to the police station then.

Q.  So if you somehow – well, are you saying that, well if you knew that Arjun could not speak Punjabi before you went to the police station, you would have told the police well there’s no need for me to come?

A.  Of course.

Q.  Of course.

A.  Why waste the police time and why should I waste my time?

172.As I have determined in Section E2 above, KS’s claim that he had provided no translation service at Arjun’s interview is incredible.  Mrs Singh has confirmed that KS must have translated for her.  PC Hung would not know if KS was translating for Mrs Singh or Arjun.

173.One of the lines of cross-examination of the defendants’ witnesses at trial was that there was nothing written in Punjabi in PC Hung’s notebook to confirm that KS had provided translation service.  Both KS and WDPC Yuen confirm that it is not an invariable practice that the interpreter would write down the translation provided.  According to KS:[102]

Q.  You said that the fact that you didn’t write down anything in Punjabi proves that you did not do any translation or interpretation into Punjabi for Arjun.

A.  Yes.

Q.  Right.

A.  Sometimes it so happened, yes.

Q.  Sometimes it doesn’t.

A.  Yes.

Q.  And do you agree that it is...

A.  Like whether if he is illiterate – doesn’t know alphabet, he cannot read and write – in such cases it happens.

Q.  So you say if the person in custody is illiterate then you don’t need to write down what you interpret in Punjabi in the notebook.

A.  No need, yes.

Q.  Isn’t it the same when the person in custody, himself, can read what was written in English then you don’t need to write down in Punjabi?

A.  It also happens.

174.Arjun clearly falls into the scenario last mentioned by KS.  As Arjun could read English, he did not require the Punjabi translation to confirm the accuracy of the record.  

175.So to recap:

(a)  SSGT Garr initiated the process in accordance with standard police procedure to find Arjun a suitable interpreter for the purpose of his police interview. 

(b)  PC Hung and WDPC Yuen made the necessary inquiry based on which the RCCC nominated KS as the Punjabi language interpreter. 

(c)  During the inquiry, Arjun said that he came from India and Mrs Singh confirmed that Arjun’s mother tongue was Punjabi.

(d)  It took KS an hour to travel from his home in Tung Chung to the Wanchai Police Station.  Upon arrival, he learned that Arjun only speak basic Punjabi. 

(e)  KS mainly provided Punjabi translation to Mrs Singh at the interview.

176.It is therefore incorrect for the plaintiff to allege in the RASOC that PC Hung insisted on taking Arjun’s statement in Punjabi.  A number of police officers took part in the inquiry and the decision to engage KS was only made after KS had conferred with Arjun and Mrs Singh by telephone.  

177.The officers were apparently acting in accordance with §21-34 of the Force Procedure Manual and Direction 6 in Chapter 14 of the Police Manual in making the inquiry and no issue is taken on this. 

178.There was no protestation from Arjun or Mrs Singh over the engagement of KS.  It took KS an hour to come to the police station. Since Arjun and Mrs Singh have both contributed to the decision to engage KS, they may not now complain about the wait. 

179.I therefore reject the plaintiff’s complaint in this regard.

I3.  Had Arjun been denied arrangement suitable for children under arrest and in police custody? [Issue 15]

180.In §25(1)(d) of the RASOC, the plaintiff complains that the defendants refused or deliberately omitted to provide Arjun with “special arrangements for a child under arrest and in the custody of the police”.  There is no elaboration on what those special arrangements were.

181.At the trial, the plaintiff merely put to SSGT Garr and PC Hung that (i) the same form of Notice to Persons under Investigation by or detained in the Custody of the Police is also used on adult suspects and (ii) Arjun was interviewed and granted bail in the same manner as adult suspects. [103] With respect, that does not even begin to speak of any special arrangement for children under arrest and in police custody. 

182.Section 6 of the Juvenile Offenders Ordinance, Cap 226, provides that:

“No child or young person while detained in a police station ... shall be permitted to associate with an adult (not being a relative) who is charged with any offence other than an offence with which the child or young person is jointly charged.”

183.Paragraph 3 under §49-17 of the Police General Order requires that:

“When a child or young person (apparently under 16 years of age) is arrested, all reasonable efforts are to be made to inform the parent(s) or guardian to come to the station whilst the child or young person is held there...”

184.Direction 5 of the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security also stipulatesthat:

“So far as practicable, children and young persons under the age of 16 years (whether suspected of a crime or not) should only be interviewed in the presence of a parent or guardian, or in their absence, some person who is not a police officer and is of the same sex as the child...”

185.It is common ground that Arjun was all along accompanied by Mrs Singh inside the police station on 6 January 2010. They remained either in the report room on G/F or the interview room on 1/F and were kept away from other adult suspects.

186.I am satisfied that Arjun had been accorded with all the arrangements mandated by law and required by police practice for children under arrest and in police custody.  The plaintiff’s complaint is therefore rejected.

I4.  Had Arjun or Mrs Singh been denied food or water? [Issue 16]

187.The plaintiff complains in §24(5) of the RASOC that: “No drink or nourishment was provided to Arjun or his mother for the duration of their detention in the police interrogation room for 5 odd hours by PC Hung or other police officers...”.

188.What is certain from the evidence is that Arjun and Mrs Singh did not make any request for food whilst they were at the police station (and so there was no denial of food to them).[104] They, however, alleged in their respective witness statements that they had asked for water whilst they were waiting for KS but was told that only hot water was available.[105]

189.Under cross-examination, Arjun clarifies that it was his mother who asked for water once.  He does not recall wanting to have a drink himself.[106] According to Mrs Singh, “[w]hen I asked the police officers for some water, we were told that they had hot water available.”[107]  PC Hung denies that any police officer had told them that only hot water was available. 

190.I find the plaintiff’s allegation unconvincing.  To start with, the allegation that only hot water was offered does not really amount to denial of drinking water.  Mrs Singh could have allowed it to cool down before drinking.  As the evidence goes, Mrs Singh says she refused the offer because water was not important to her at that time and Arjun carried a bottle of water around. [108] 

191.KS’s evidence in this regard is astonishing:[109]

“During the recording of the interview between the time of my arrival and the end of the interview, I recall that Arjun and his mother did ask for food and water on a number of occasions but their requests were denied by the various police officers present.”

He elaborates under cross-examination that:[110]

A.  ...He had been – he was requesting for a sip of water and every time he was denied his right.  I’m very positive – I cannot kill my consciousness.  Knowing that it is his right and his right is not being provided by the police.  I was helpless.

Q.  Sorry, you are now talking about the water, right?  You say he was requesting for water and denied his right knowing this was right.

A.  Yes.

Q.  You mean Arjun was requesting for water?

A.  Yes.

Q.  And it was denied?

A.  Yes.

192.KS’s account is flatly inconsistent with the evidence of Arjun and Mrs Singh and should be rejected.

193.Turning to the defendants’ evidence:

(a)  Arjun (in the presence of Mrs Singh) was informed of his rights at the beginning of the interview, including the right to “be supplied with adequate food and refreshment free of charge” and “request to be provided with drinking water.”[111] Both Arjun and Mrs Singh signed on the Notice and they confirm in court that they were aware of their rights.[112]

(b)  PC Hung says he brought water to Arjun and Mrs Singh whilst they were waiting inside the interview room.[113] This aspect of his evidence was not challenged.

(c)  WDPC Yuen also says she informed Arjun and Mrs Singh that water and meal would be provided and that they should inform PC Hung if they wished to use the washroom.[114] There was no challenge to this part of her evidence either.

(d)  According to PC Hung, there were water dispensers around the Wanchai Police Station for Arjun and Mrs Singh to use.  The presence of water dispensers around the police station is confirmed by SSGT Garr and WDPC Yuen.  Mrs Singh’s evidence is equivocal.  She said that:[115]

Q.  Did you see any water dispensers?

A.  We didn’t notice, may be there was but we didn’t notice...”

194.All in all, I accept the defence case and reject the plaintiff’s complaint that Arjun and Mrs Singh had been denied food or water.

195.At the trial, the parties also debated the issue of whether Arjun had been given a Chinese meal.

196.There is documentary evidence (in the form of a Meal Order and the relevant computer record) suggesting that a Chinese meal was “taken” by Arjun at around 19:47 hours.[116] Arjun and Mrs Singh both deny receiving the meal.  They say that Arjun could not have taken any Chinese meal as he was following a restricted vegetarian diet.

197.In his closing submissions, Mr Wong accepts that the defendants can offer no direct evidence to confirm that the meal had been delivered to Arjun. Be that as it may, I am satisfied that the police did order a meal for Arjun on 6 January 2010.  It is standard practice for the police to order meals for detainees at police stations.[117] According to SSGT Garr, the meal for Arjun was delivered to the CID room at around 19:47 hours.[118]  At that time, Arjun was engaged in an interview inside the interview room.  The interview began at around 19:40 hours (when Arjun was notified of his rights in terms of the Notice) and concluded at around 21:45 hours.  That was why Arjun never received the meal. 

198.I do not agree with Mr Blanchflower (see §133 of the PCS) that this issue has adversely affected the credibility of the defence witnesses.

I5.  Was Mr Singh not allowed to attend Arjun’s interview initially? [Issue 17]

199.The plaintiff alleges in §24(6) of the RASOC that: “PC Hung initially refused to allow Arjun’s father to come into the witness interrogation room so that he could witness Arjun’s signing of his witness statement, and only relented when Arjun’s mother said she would complain to his superintendent”.

200.According to Mr Singh, he went to the Wanchai Police Station after work on 6 January 2010.  The police officers inside the report room initially refused him access to Arjun.  He called Mrs Singh who was then accompanying Arjun at the interview and,

“[a]fter about 10 minutes, a male plain clothes officer met with me at the report room and brought me up to the investigation room to meet my wife and son. I was later told by my wife that after my call she had threatened to report to the officers’ supervisor if they did not allow me to go in.” [119]

Mr Singh says that: [120]

“My understanding, after reading my wife and son’s witness statements, is that the person who came to fetch me at the ground floor of the Police Station and escorted me to where they were being detained was the person that my wife and son have referred to as the Police Interpreter. I can confirm that the individual who escorted me ... was ‘a male plain clothes officer’.”

201.Arjun,[121] Mrs Singh[122] and KS[123] all gave similar evidence.  In particular, both Arjun and Mrs Singh confirm that it was the “Police Translator” who went out of the interview room to escort Mr Singh in.

202.According to the defence, however, the police translator who attended Arjun’s interview was Ms Leung.  Ms Leung confirms that there was no other male interpreter present at the interview apart from KS.  She says that since it was already night time, she was the only police interpreter on duty at the time.    She does not recall going out of the room to fetch Mr Singh.  She says she would have remembered it if it had occurred as it is unusual for both parents to be present when a cautioned statement is taken from a child suspect and she has never seen it happened before.

203.The fact that Ms Leung attended the interview and did the English translation was contemporaneously recorded in Arjun’s 1^st cautioned statement in terms of her signatures and handwritten translations.

204.According to WDPC Yuen, she (in her capacity as the investigation officer of the case) was notified of the arrival of Mr Singh at around 21:00 hours.  She met Mr Singh and told him that a cautioned statement was being taken from Arjun in the presence of Mrs Singh. Mr Singh agreed to wait and sat on a chair at the corridor of 1/F of the police station.  When she twice checked on the progress of the interview, Mr Singh was not inside the interview room.  She says there was no reason for her not to allow Mr Singh to go in if that was insisted.[124] PC Hung also denies that Mr Singh was present at the interview.

205.Based on the contemporaneous record, I accept that it was Ms Leung who acted as the police interpreter at the interview.  Mr Singh’s allegation is therefore contradicted by contemporaneous evidence. 

206.Speaking of the interview, there is an apparent inconsistency between WDPC Yuen's evidence on the one hand and the evidence of PC Hung and Ms Leung on the other hand as to whether PC Hung was present during the whole duration of the interview.  Mr Blanchflower thinks that affects PC Hung’s credibility (see §57 of the PCS).  I do not agree. 

207.It is WDPC Yuen's evidence that the interview room was very small and there was no way she could go in when PC Hung, Arjun, Mrs Singh, KS and Ms Leung were all inside.[125]  I accept that PC Hung must have stepped out momentarily to make way for WDPC Yuen (a senior officer overseeing his investigation) when she twice checked on the progress of the interview.  According to Exhibit D1 drawn by WDPC Yuen, PC Hung was just outside when she went into the interview room.  The plaintiff does not challenge the voluntariness of Arjun’s 1^st cautioned statement and there is nothing sinister about the momentary absence of PC Hung.  In fact, the size of the interview room is another reason why it is unlikely for Mr Singh to squeeze in when the five were inside.

I6.  Was Arjun released promptly on 6 January 2010? [Issue 18]

208.The plaintiff complains in §25(1)(e) of the RASOC that the defendants refused or omitted to “[release] Arjun on bail in a prompt manner when it was clear that the inquiry into the matter could not be completed within a reasonable time and when it was in the interests of justice to do so”.

209.It is not clear why the plaintiff says Arjun should be released earlier.

210.To recap:

(a)  The inquiry at the MTR station took about 40 minutes.  The plaintiff is not suggesting that the police had taken unreasonable time to inquire.  Quite to the contrary, it is their pleaded case that the police did not investigate sufficiently at the scene.

(b)  Arjun and Mrs Singh arrived at the police station at around 17:00 hours.  They were brought before the Duty Officer as a matter of standard police procedure.  Between 17:20 and 18:40 hours, they were taken to the report room for Arjun’s personal particulars to be recorded.  There is no suggestion that any of these procedures was unnecessary or had taken too long.

(c)  Arjun and Mrs Singh then waited for an hour for KS to come to the police station. 

(d)  At around 19:40 hours, Arjun was informed of his rights as per the Notice.  The actual interview took more than 2 hours to complete (from 19:55 to 22:10 hours).  This is not surprising given the amount of writings and translation involved.  There is no suggestion that the interview took too long. 

(e)  According to the computer record in evidence, DSIP Tang gave instruction (at 21:41 hours) to release Arjun on bail even before the interview ended.[126] And Arjun and his parents left the police station at around 22:30 hours shortly after the interview. 

211.Insofar as the plaintiff is suggesting that the police should have proceeded with the interview without a Punjabi language interpreter, I do not agree.  As I have determined in Section I2 above, the police was informed prior to the interview that Arjun came from India with Punjabi as his mother tongue.   Arjun only opted to use English in the middle of the interview. 

212.The plaintiff does not challenge the time taken for KS to travel from Tung Chung to the police station.  There is no suggestion that another Punjabi language interpreter was available who could attend the police station earlier.

213.The plaintiff’s complaint is therefore rejected.

J.  Did the police withdraw the caution and charge against Arjun promptly? [Issue 19]

214.The plaintiff complains in §25(1)(f) of the RASOC that there has been a failure on the part of the police in: “Withdrawing the caution and charge against Arjun at the first available opportunity and/or within a reasonable time”.

215.The plaintiff has not explained how a caution, once administered, can be withdrawn.  The DDPP promptly replied to the plaintiff’s solicitors after receiving their representation that no further action would be taken and Arjun was never charged. 

216.There is thus no basis for the plaintiff to allege that any caution or charge had not been withdrawn.

K.  Did the police refuse to investigate Arjun’s complaint? [Issue 20]

217.The gist of the plaintiff’s complaints in §24(7) and 25(1)(b) & (c) of the RASOC is that the defendants have refused to investigate Arjun’s complaint against Madam Chan and omitted to caution, arrest or prosecute Madam Chan notwithstanding DDPP’s comment and the overwhelming evidence against Madam Chan. 

218.In §§162-166 of the PCS, Mr Blanchflower submits that there is no credible evidence that the defendants had taken any step to investigate Arjun’s complaint.  In particular, he complains that:

(a)  PC Hung failed to record “critical details” in his POL 154 statement, namely, (i) Arjun’s complaint that Madam Chan had grabbed his arm forcefully and pinched and hurt him; and (ii) the location where PC Hung asked if any bystander had witnessed Madam Chan assaulting Arjun.

(b)  WDPC Yuen only investigated Madam Chan’s complaint against Arjun, and no police officer was assigned to investigate Arjun’s complaint against Madam Chan.

(c)  DSIP Tang only investigated Arjun’s action in trying to free himself from Madam Chan’s grip.  His claim that the defendants have fully investigated Arjun’s complaint is discredited by WDPC Yuen’s evidence. 

(d)  All the documentary evidence adduced by the police is marked with the case number relating to Madam Chan’s complaint (ie WCH RN 10000781) with Arjun being described as “AP” and Madam Chan as “VTM”.  There is no case number assigned to and no case file opened for Arjun’s complaint. 

(e)  Arjun was asked to give cautioned statements which might be used against him, whereas Madam Chan was only interviewed not under caution and her evidence would be used to prosecute Arjun.

(f)  There was no request for Arjun’s medical report.

(g)  The police only sent an investigation report on Madam Chan’s complaint to the Department of Justice for legal advice.  There is no evidence that they have done likewise in relation to Arjun’s complaint.

219.In order to deal with these arguments fully, I need to take stock of the investigation done at various stages of this case.

  PC Hung

220.PC Hung and SPC Kwan spent 40 minutes at the MTR station talking to various people including Madam Chan, Arjun, Mrs Singh, the Nepalese lady and MW.  Only Madam Chan and Arjun were able to give material evidence.

221.PC Hung was the officer responsible for the investigation at the scene.  He noted the gist of what Madam Chan and Arjun said on loose papers, and later used those notes to compile his post-recorded statement and POL 154 statement at the police station.  He also interviewed Arjun in which Arjun was given the opportunity to write out his own statement.

222.It is his evidence that:

(a)  He appreciated at the time that: [127]

“my role are objective and I am the one to be fair and I have to get an understanding from both parties what had happened and other details. I absolutely would not simply by seeing one sustain injuries or that the person was injured and regard that person as the victim.”

(b)  He did consider that Arjun might have bumped into Madam Chan accidentally.  But he could not be sure as he did not witness Arjun’s movement and so had to investigate further.[128]

(c)  He did consider that Arjun was entitled to resist Madam Chan’s arrest and to act in self-defence.[129]  On being asked by Mr Blanchflower whether Madam Chan’s action in grabbing Arjun without the latter’s consent amounted to common assault, he explains that his understanding was that:[130]

“because previously they had a dispute, at the same time Madam Chan was bumped into by him once on the escalator and at the top of the escalator she was hit a few times in the abdomen by Arjun. Madam Chan wished to clarify the matters, that’s why she grabbed him and did not let him go.”

He emphasises that:[131]

“I could not determine who had committed crime simply consider what had happened at exit A3. As a police officer, when I arrived at the scene I had to conduct a thorough investigation, just like, well, Madam Chan grabbed Arjun. I had to see whether she did it intentionally and about her motivation. I couldn’t say that it constitute to a crime by simply that she grabbed him. I had to conduct a thorough investigation.”

  WDPC Yuen

223.WDPC Yuen was the investigation officer assigned to the case.  She oversaw Arjun’s interview and twice checked on its progress.  When she became aware of Arjun’s complaint through reading Arjun’s 1^st cautioned statement, she took Polaroid photographs of Arjun’s arm and sweater.  She enquired if Arjun needed to see a doctor to which Arjun replied in the negative. 

224.Thereafter, WDPC Yuen conducted investigation and collected the evidence.  She obtained information from the hospital concerning Madam Chan’s injuries and contacted Madam Chan to request an interview.  She obtained and listened to the recording of all the 999 calls.  She attended the MTR station to try to locate the MTR staff who came upon Arjun on 6 January 2010 but was told that no one would be able to tell her anything about the incident.  She viewed various CCTV recordings obtained from the MTR Corporation. 

225.She interviewed Arjun again on 3 February 2010, affording Arjun the opportunity to elaborate on his complaint against Madam Chan.  She also put the relevant CCTV recordings to Arjun so that Arjun might clarify his action.  She did not ask for Arjun’s medical report as she reckoned that Arjun would provide it if thought necessary.[132]  When pressed by Mr Blanchflower as to why she did not ask for a medical report, she remarks that she was not responsible to investigate Arjun’s complaint and there would be conflict if the same officer were to investigate both complaints.

  DSPC 19065

226.On 22 January 2010, Madam Chan gave a statement to the police in which she detailed her complaint against Arjun.  The interview was conducted by DSPC 19065 as, according to WDPC Yuen, Madam Chan had requested to be interviewed by a male officer.  At that interview, Madam Chan was asked if she had assaulted Arjun and she replied in the negative.[133]

  DSIP Tang

227.From time to time, WDPC Yuen reported the progress of her investigation to DSIP Tang.  It is the latter’s evidence that he was alive to the respective allegations of Madam Chan and Arjun since the beginning and had investigated both complaints together.[134]

228.On 6 January 2010, he noted Arjun’s complaint through reading Arjun’s 1^st cautioned statement but thought that Arjun might be exaggerating.  He knew from experience that bruises would appear soon if a person was pinched forcefully but he could not discern any injury on Arjun’s arm from the photograph taken by WDPC Yuen a few hours after the incident.[135] He emphasizes at trial that he had not yet come to a conclusion at that stage and decided to investigate further.  He therefore gave instruction to release Arjun on bail and did not see fit to arrest Madam Chan.

229.DSIP Tang personally reviewed all the evidence gathered by WDPC Yuen.  In particular, he spent a lot of time repeatedly viewing the CCTV recording obtained from the MTR Corporation.  He explains in his evidence that:[136]

“CCTV shows the actual situation at the time. In fact, my opinion is that the situation at that time was that Arjun was assaulting Madam Chan repeatedly. His purpose was probably that he wanted to struggle to get loose of Madam Chan’s hand which was grabbing him and to leave the scene and there were some punches. I call them punches and in fact they were very forceful and in the CCTV I did not see any situation in which Madam Chan assaulted Arjun. Almost the whole time, she was trying to protect herself and this situation tallied with the medical report of Madam Chan. Furthermore, I have looked at the photograph of Arjun on the day of the incident when the matter was reported and he did not have any sign of injuries. Therefore my judgment or opinion was that this assault complaint of Arjun did not stand. Nonetheless, I asked PC19065 to make investigation from Madam Chan to see whether or not she had assaulted Arjun and her reply was that she did not. She grabbed him only because he wanted to leave the scene at the time. That’s why she was assaulted by Arjun for at least five times. Afterwards, I also requested the solicitor acting for Arjun for the medical report but they refused. So, that’s the conclusion of what I have done in relation to Arjun’s complaint of assault.”

  Discussion

230.Turning to Mr Blanchflower’s complaints, first, PC Hung duly post-recorded what Arjun had told him at the scene in his new notebook, namely, that Madam Chan had grabbed him by his clothes.  There is no basis for the plaintiff to suggest that PC Hung should also have recorded the allegations in Arjun’s 1^st cautioned statement as Arjun only mentioned them for the first time in the police station. 

231.PC Hung also explains in his evidence that: “If there is anybody who is an individual witness, independent witness to the case I would have jotted down his particulars for investigation.”[137] As no one came forward, there was no record.

232.Secondly, notwithstanding WDPC Yuen’s claim that she did not investigate Arjun’s complaint, it is apparent from the evidence that she had taken Arjun’s complaint seriously and her investigation did cover it.  In fact, her investigation is so comprehensive that the only thing the plaintiff could find fault with is the absence of Arjun’s medical report.  As it turns out, the medical report adduced by the plaintiff is no evidence of any pinching on the arm.

233.I agree with Mr Wong that WDPC Yuen’s remark that she was not responsible to investigate Arjun’s complaint is likely to be an ill-considered response in face of persistent cross-examination by Mr Blanchflower.  At the most, her evidence shows that she had misunderstood the scope of her investigation.  However, she was subject to the supervision of DSIP Tang who was the directing mind behind the investigation.  Her misunderstanding therefore would not have made any difference to the investigation and there is no real suggestion – apart from Arjun’s medical report – that any important evidence had been omitted by reason thereof.

234.For the same reason, the complaint that no police officer had been assigned to specifically investigate Arjun’s complaint should also be rejected.

235.Thirdly, I accept that DSIP Tang had investigated both complaints together.  The fact that his investigation officer (WDPC Yuen) might have misunderstood her duties does not detract from the fact that the investigation made, as directed by him, was quite comprehensive.

236.From the investigation, DSIP Tang concluded that Madam Chan was justified in grabbing Arjun at the MTR station (as she intended to make a report to the police whilst Arjun was attempting to leave) and that Arjun had assaulted her (based on his viewing of the CCTV evidence). He is adamant that: [138]

“I did consider whether there was sufficient evidence to support Arjun’s allegation that Madam Chan did assault him, but in view of the evidence ... the conclusion was that there was insufficient evidence showing that Madam Chan had assaulted Arjun and no further action was taken in relation to Arjun’s allegation of assault by her. It is not right for Arjun to allege that the [police] did not investigate whether Madam Chan did unlawfully assault him.”

237.As the officer in overall charge of the investigation, DSIP Tang was obliged to form his own view.  I agree with Mr Wong that the merits of Arjun’s complaint against Madam Chan are by no means obvious and DSIP Tang had clearly considered Arjun’s complaint and formed a view based on the evidence. 

238.As it turns out, his interpretation of the CCTV evidence (on whether Arjun had hit or attempted to hit Madam Chan) is different from WDPC Yuen’s or indeed mine.  What matters is not whether DSIP Tang is right or not but whether he has made a genuine, proper and reasonable effort to investigate Arjun’s complaint.  On the evidence, I am satisfied that he did make a thorough investigation of Arjun’s complaint.

239.Fourthly, DSIP Tang has explained why a separate file with a different case number was not required for Arjun’s complaint: [139]

“This is because this is the same case. It’s one case, as we call it. That’s why we would not assign a different file number for a different complaint. As the O/C case, in fact I have to handle all the complaints in relation to this case. So according to the police procedure it is absolutely not necessary to assign or open a new reference number.”

240.In my view, it is eminently sensible for the police to investigate all the allegations under the rubric of the same case file.  Arjun and Madam Chan’s complaints arose out of the same factual matrix. They are interrelated in terms of substantive merits.  It is impractical for the police to open two files with separate case numbers and duplicate the paperwork to document what is essentially the same investigation just because there are two complainants.

241.I do not think that the acronyms used to identify the parties have any bearing on the propriety of the investigation.  The fact remains that Arjun was arrested for assaulting Madam Chan.  That was why Arjun was denoted by “AP” (meaning arrested person) and Madam Chan by “VTM” (meaning victim) in the police documents. 

242.Fifthly, the plaintiff’s suggestion that Arjun should be invited to give a statement not under caution is contrary to Rule II of the Rules and Directions for the Questioning of Suspects and the Taking of Statements.  That rule stipulates that:

“As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offense, he shall caution that person or cause him to be cautioned before putting to him any questions or further questions, relating to that offence.”

It would have been unfair to Arjun to ask him to give a statement not under caution whilst he was still being investigated. 

243.DSIP Tang has explained that his investigation has revealed insufficient evidence to support Arjun’s complaint.  There was no basis to caution Madam Chan, see Rule II above.

244.Arjun has given two cautioned statements detailing his complaint.  It is not the plaintiff’s case that he has anything further to say.  Madam Chan has denied assaulting Arjun in her statement.  The fact that the DDPP has taken the view that Madam Chan had “behaved inappropriately” is no evidence against Madam Chan.  There was nothing further to investigate after the decision not to pursue against Arjun.

245.Sixthly, WDPC Yuen has explained that she thought Arjun would volunteer his medical report if necessary.  This is not surprising as Arjun was accompanied by the plaintiff’s solicitors at the second interview.   

246.It is also DSIP Tang’s evidence that the plaintiff’s solicitors had refused to provide Arjun’s medical report to him despite his request.  In §§73-74 & 165(6) of the PCS, Mr Blanchflower observes that that was not mentioned in DSIP Tang’s witness statement and there is no documentary evidence of any request.  He doubted DSIP Tang’s evidence and says that that should go to his credibility.

247.Whilst I agree that this aspect of DSIP Tang’s evidence is not reliable (as he only mentioned it for the first time at trial), I do not think his credibility is thereby affected.  DSIP Tang was not asked if his request was made in writing or not and so the absence of documentary evidence is neither here nor there.  More importantly, there is no evidence from the plaintiff’s solicitors to refute the suggestion and DSIP Tang’s allegation is not inherently improbable.   He was not cross-examined as to the timing of the refusal.  The plaintiff’s solicitors could have refused to provide Arjun’s medical report when they had none on hand.

248.Lastly, it is DSIP Tang’s evidence that he sought “legal advice from the Department of Justice on the possible charges against both Arjun and Madam Chan”.[140] I agree with Mr Wong that no adverse inference may be drawn from the fact of non-waiver of privilege and a witness’ consequential refusal to answer questions.[141]

249.All in all, I am satisfied that the police had investigated Arjun’s complaint and the plaintiff’s contention is rejected.

L.  Summary of my factual findings

250.I make the following findings on the central allegations of the plaintiff:

(a)  The police did not ignore Arjun and Mrs Singh at the MTR station and did not communicate with them in a reprehensive manner.  [Issues 6 & 7]

(b)  There was no visible injury on Arjun and PC Hung’s attention was not drawn to any damage to Arjun’s sweater.  When PC Hung enquired if Arjun required medical treatment, Arjun replied in the negative.  [Issue 8]

(c)  PC Hung did not make a record of the evidence of the Nepalese lady because it was not relevant to the investigation.  [Issue 9]

(d)  PC Hung arrested Arjun after due investigation at the scene.   [Issues 6]

(e)  PC Hung did not tell MW not to worry as the police were just scaring Arjun and that it was nothing serious.  [Issue 10]

(f)  PC Hung cautioned Arjun in Cantonese because PC Hung was not fluent in English and did not know how to administer a caution in English.  This has nothing to do with Arjun’s race.  [Issue 11]

(g)  The police did not coax Arjun into admitting his guilt.  [Issues 12 & 13]

(h)  SSGT Garr followed standard police procedure in initiating the inquiry on Arjun’s mother tongue.  Arjun told PC Hung that he came from India, and Mrs Singh confirmed with WDPC Yuen that Arjun’s mother tongue was Punjabi.  Based on the information provided, the RCCC nominated KS to assist in Arjun’s interview.  PC Hung procured KS to speak to Arjun and Mrs Singh over the phone before asking KS to attend the police station.  Prior to the interview, there was no indication from either Arjun or Mrs Singh that Arjun did not speak Punjabi and there was no protestation over the engagement of KS.  [Issue 14]

(i)  Arjun was provided with arrangements suitable for children under arrest and in police custody in accordance with the relevant law and police practice.  [Issue 15]

(j)  There was no denial of food or water to Arjun or Mrs Singh whilst they were at the police station.  [Issue 16]

(k)  Mr Singh agreed to wait outside the interview room for the interview to finish.  The police did not deny him access to Arjun during Arjun’s interview.  [Issue 17]

(l)  Arjun was granted bail promptly on 6 January 2010.  [Issue 18]

(m)  The plaintiff has failed to establish how a caution may be withdrawn after it was administered.  And Arjun has never been charged with any criminal offence.  [Issue 19]

(n)  The police did not refuse to investigate Arjun’s complaint. Madam Chan was not cautioned, arrested or prosecuted because there was insufficient evidence showing that she had assaulted Arjun.  [Issue 20]

M.  The law on racial discrimination

251.The plaintiff’s racial discrimination claim is founded on section 27 of the RDO.  That section provides that:

(1) It is unlawful for any person (“the first-mentioned person”) concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against another person (“the second-mentioned person”) who seeks to obtain or use those goods, facilities or services—

(a) by refusing, or deliberately omitting to provide, the second-mentioned person with any of them; or

(b) by refusing or deliberately omitting to provide the second-mentioned person with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person’s case in relation to other members of the public or (where the second-mentioned person belongs to a section of the public) to other members of that section.

(2) The following are examples of the facilities and services referred to in subsection (1)—

...

(h) the services of—

(i) any department of the Government; or

(ii) any undertaking by or of the Government.

252.Closely related to that provision is the definition of racial discrimination in section 4:

(1) In any circumstances relevant for the purposes of any provision of this Ordinance, a person (“the discriminator”) discriminates against another person if—

(a)   on the ground of the race of that other person, the discriminator treats that other person less favourably than the discriminator treats or would treat other persons; or

(b) the discriminator applies to that other person a requirement or condition which the discriminator applies or would apply equally to persons not of the same racial group as that other person but—

(i) which is such that the proportion of persons of the same racial group as that other person who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it;

(ii) which the discriminator cannot show to be justifiable irrespective of the race of the person to whom it is applied; and

(iii) which is to the detriment of the other person because that person cannot comply with it.

(2) For the purposes of subsection (1)(b)(ii), a requirement or condition is justifiable if it serves a legitimate objective and bears a rational and proportionate connection to the objective.

(3) It is declared that, for the purposes of this Ordinance, segregating a person from other persons on the ground of the race of that person is treating that person less favourably than the other persons are treated.

253.It is common to refer to the form of discrimination defined in sub-section (1)(a) as “direct discrimination” and the form defined in sub-section (1)(b) as “indirect discrimination”.  These two forms of racial discrimination are mutually exclusive.  The former aims to achieve formal equality whereas the latter looks beyond formal equality towards a more substantive equality of results.[142] The plaintiff only argues direct discrimination in this case.[143]

254.At the heart of the plaintiff’s case is the contention (at §203 of the PCS) that: “all policing services at all stages are engaged under the RDO.”  As there is no local authority on the point, the plaintiff prays in aid Canadian authorities.

255.The EOC supports the plaintiff’s proposition but with its own arguments.

256.The defendants accept that some police activities can be regarded as provision of service.  They submit (at §31 of their opening submissions)that: “police activities only amount to the provision of services to individual members of the public if they involve assistance to or protection of those individuals.  On the other hand, if the case merely involves the police investigation, pursuit, arrest, detention or prosecution of persons suspected of having committed offences for the purpose of enforcing the law, such activities will only be regarded as constituting the police’s performance of their duties and functions and not the provision of services, whether to the suspected person or the complainant or the victim of crime.”  This is elaborated further in the DCS.  They mainly rely on English authorities that followed the House of Lords’ decision in In re Amin [1983] 2 AC 818 in support.

257.What is in dispute is therefore the scope of application of section 27 to police activities.  In other words, what activities of the police amount to provision of “services”?  This is essentially a question of statutory interpretation.

M1.  The purposive approach to statutory interpretation

258.In HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, Li CJ  said that:

“11. In interpreting a statute, the court’s task is to ascertain the intention of the legislature as expressed in the language of the statute. This is of course an objective exercise. The court is not engaged in an exercise of ascertaining the legislative intent on its own. As Lord Reid pointed out in Black-Clawson International Ltd v Papierwerke Waldhof – Aschaffenburg AG [1975] AC 591 at 613G.

‘We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.’

12. The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning. Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise. In HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at 606E, Sir Anthony Mason NPJ stated:

‘The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.’

See also Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at 154 B-C. As the Court pointed out in Town Planning Board v Society for the Protection of the Harbour Limited (2004) 7 HKCFAR 1 at 14 A-C, the mischief rule is an early example of the purposive approach. And the purposive approach (including the mischief rule) has been reflected in Hong Kong in s.19 of the Interpretation and General Clauses Ordinance, Cap.1.

13. The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law. See Town Planning Board v Society for the Protection of the Harbour Limited at 13 I-J and Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461.

14. The purpose of a statutory provision may be evident from the provision itself.  Where the legislation in question implements the recommendations of a report, such as a Law Reform Commission report, the report may be referred to in order to identify the purpose of the legislation.  The purpose of the statutory provision may be ascertained from the Explanatory Memorandum to the bill.  Similarly, a statement made by the responsible official of the Government in relation to the bill in the Legislative Council may also be used to this end.  See PCCW – HKT Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR 337 at 351 F-J and Director of Lands v Yin Shuen Enterprises Ltd (2003) 6 HKCFAR 1 at 15 A-H.”

259.In the present case, the plaintiff and the EOC have made extensive references to the Basic Law, the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBORO”) and the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”) when interpreting the RDO.[144] 

260.The Court of Appeal has given helpful guidance in M v Secretary for Justice [2009] 2 HKLRD 298 (at §57) on the role played by the Basic Law, the HKBORO and applicable international conventions in statutory interpretation:

“[Leading counsel for the plaintiff] submitted that the court should interpret the DDO [ie Disability Discrimination Ordinance] so far as possible to conform with the Basic Law and the Bill of Rights. I agree. The true purpose and limits of DDO must be ascertained by a faithful construction of the relevant provisions. [Leading counsel for the plaintiff] has also referred us to the United Nations Convention of the Rights of Persons with Disabilities which became applicable to Hong Kong ..., it is important to note that such and other international instruments are statements of aspiration. Here, I wish to echo what Mummery LJ said in Clark v. TDG Ltd t/a Novacold Ltd [1999] IRLR 318, namely, that there is not:

‘... an easy way of achieving a sensible, workable and fair balance between the different interests of disabled persons, of employers and of able-bodied workers, in harmony with the wider public interests in an economically efficient workforce, in access to employment, in equal treatment of workers and in standards of fairness at work ...’

How the balance should be struck is pre-eminently the responsibility of the legislature.  I do not believe either the Basic Law or the Bill of Rights require me to interpret the relevant provisions in DDO otherwise than in accordance with what I perceive to be their plain meaning.”

261.On their part, the defendants refer to statements made by the Government officials responsible for the Race Discrimination Bill (“the Bill”) at the Legislative Council (“LegCo”) in the DCS.  Mr Blanchflower voices his objection in his closing replies, arguing that “it isn’t a Pepper v Hart situation”. His objection is overruled. 

262.Li CJ has explained in Cheung Kwun Yin that:

“15. Whilst as noted above, statements made by officials of the Government in relation to the bill in the Legislative Council may be used to identify the purpose of the statutory provision, employing it in order to ascertain the meaning of the statutory words stands in a fundamentally different position. In England, in Pepper v Hart [1993] AC 593, the House of Lords decided that such statements may be referred to as an aid to interpretation for the purpose of ascertaining the meaning of the statutory language, where the following three conditions are met: (a) The legislation is ambiguous or obscure or leads to an absurdity; (b) The material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) The statements relied upon are clear.

16. The House of Lords has emphasised that the three conditions should be strictly insisted on. See R v Environment Secretary, Ex parte Spath Holme Ltd [2001] 2 AC 349 at 392 D-E, 408 C-D, 413 G-H and Robinson v Secretary of State [2002] NI 390 at 405e. Under the approach laid down in Pepper v Hart, where the three conditions are fulfilled, the Minister’s statements may be used to resolve the ambiguity, obscurity or absurdity. In R v Environment Secretary, Ex parte Spath Holme Ltd, Lord Nicholls (at 399 C-E) emphasised that even where the conditions are met, Government statements, however they are made and however explicit they may be, cannot control the meaning of legislation and it is for the court when determining what was the intention of Parliament in using the words in question, to decide how much importance, or weight, if any, should be attached to a Government statement.

17. In Hong Kong, although the Court has applied the approach in Pepper v Hart on isolated occasions on the assumption that it applies, it has kept open the question whether and the extent to which that approach is applicable in Hong Kong.  See Lam Pak Chiu v Tsang Mei Ying (2001) 4 HKCFAR 34 at 44 D-E and PCCW – HKT Telephone Ltd v Telecommunications Authority at 352 F-H.  It is unnecessary to determine this question in the present case. When it arises for examination, the practical as well as the conceptual and constitutional implications involved in the Hong Kong context would have to be considered.”

263.As will be apparent from the discussion below, the defendants make references to these statements for the purpose of establishing the context and purpose of the RDO and not to ascertain the meaning of the words used.  This is permissible under the purposive approach.

M2.  An overview of the RDO

264.I begin by noting that the Government has always been prohibited from engaging in any discriminatory practice or activity.  Article 22 of the HKBORO provides that:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Article 25 of the Basic Law similarly guarantees that:

“All Hong Kong residents shall be equal before the law.”

265.However, it has been said that the Basic Law and the HKBORO are not intended to apply to private relations,[145] and section 7 of the HKBORO specifically confines the applicability of the HKBORO to the Government and public authorities.  Prior to the enactment of the RDO, Hong Kong had no comprehensive proscription against racial discrimination in respect of the private sector. 

266.On the other hand, the HKSAR has an obligation under ICERD to take steps to prohibit and to eliminate racial discrimination.  Article 2 thereof requires that:

“1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and to this end:

(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups or persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this objection;

...

(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

...”

267.The United Nations Committee on the Elimination of All Forms of Racial Discrimination (“the UN Committee”), which is the monitoring body of the ICERD, and the local community had expressed concerns over the absence of specific legislation in Hong Kong dealing with racial discrimination in the private sector.[146]  It was in such context that the RDO was enacted in 2008.

268.One of the stated aims of the RDO is “to render discrimination, harassment and vilification on the ground of race unlawful”.[147] The Ordinance is divided into 9 parts. 

269.Parts 1 and 2 contain the definitions and define the scope of application of the Ordinance.  Section 3 provides that the RDO is binding on the Government.  Section 4, as we have seen, defines what discrimination for the purpose of the RDO is.  And section 9 provides that an act done for multiple reasons one of which is the race of a person is to be taken as having been done for the reason of the race of that person.

270.Parts 3 and 4 outlaw discrimination and harassment in specific fields, such as employment.  Our present focus (section 27) is contained in Part 4 which is concerned with discrimination and harassment in other fields, such as education, provision of goods, facilities, services and premises, and public bodies, etc.  Part 5 prohibits other unlawful acts, such as discriminatory advertisements and vilification on the ground of race. 

271.Part 6 sets out the exceptions to the RDO.  For example, section 55 provides that nothing in Parts 3, 4 and 5 shall render unlawful any immigration legislation concerning persons not having the right to enter and remain in Hong Kong.  No exception respecting police activities is provided.

272.Part 7 sets out the functions and powers etc of the EOC.  Part 8 deals with enforcement, and Part 9 contains other miscellaneous provisions not relevant for present purposes.

273.Having taken an overview, the following general points may be noted.

274.First, the RDO does not provide for any general prohibition against racial discrimination.  The RDO only renders unlawful acts that fall within the provisions in Parts 3, 4 and 5. 

275.In this regard, the RDO follows the pattern of other similarly worded anti-discrimination legislations in England (eg the Sex Discrimination Act 1975 and the Race Relations Act 1976) and in Australia (eg the Anti-Discrimination Act 1977 (NSW), the Equal Opportunity Act 1984 (WA) and the Disability Discrimination Act 1992 (Cth)).

276.In England, the House of Lords has commented in Amin (at 833G) that:

“... not all sex discrimination is unlawful. Part I of the [Sex Discrimination Act 1975] merely defines discrimination and it contains no provision for making it unlawful. Discrimination is only unlawful if it occurs in one of the fields in which it is prohibited by Parts II, III or IV of the Act.”

277.The High Court of Australia similarly observed in IW v The City of Perth [1996-1997] 191 CLR 1 at p 14 that:

“... given the artificial definitions of discrimination in the [Equal Opportunity Act 1984] and the restricted scope of their applications, the court or tribunal should not approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act. The Act is not a comprehensive anti-discrimination or equal opportunity statute. The legislature of Western Australia, like other legislatures in Australia and the United Kingdom, has avoided use of general definitions of discrimination... Those legislatures have also deliberately confined the application of anti-discriminatory legislator to particular fields and particular activities within those fields.”

278.Likewise, the Supreme Court of New South Wales commented in Commissioner of Police (NSW) v Mohamed (2009) 262 ALR 519 at §23 that:

“The underlying structure of the Anti-Discrimination Act is not to prohibit all forms of discriminatory conduct, even where such conduct is antithetical to internationally recognised human rights and fundamental freedoms, but to specific grounds of discrimination, which are prohibited in specific areas of social activity... Generally speaking, the areas in which the prohibitions operate seek to exclude entirely private activities, not having a broader public element to them.”

279.In my view, it is important to approach the RDO with an open mind.  One should not begin with any preconceived idea as to what amounts to racial discrimination and therefore should be prohibited by the RDO.  The question of whether an act falls within the scope of the RDO can only be answered following a faithful construction of the relevant provisions.

280.Secondly, the Government is always subject to the Basic Law and the HKBORO.  Those who are aggrieved by any discriminatory policy or activity of the Government can seek redress by means of judicial review.[148]  And an application for judicial review may include a claim for damages.[149]  There are also established mechanisms (eg the Independent Police Complaints Council and the Ombudsmen) to deal with administrative complaints against the police.  Thus, a person who claims to have been discriminated by any police officer on racial grounds has the means to complain independent of the RDO.  What the RDO has achieved is to establish, for the first time in Hong Kong, a legally recognised cause of action for racial discrimination in private law.

281.Thirdly, section 3 of the RDO now provides that:

“This Ordinance binds the Government.”

282.When the Bill was introduced into LegCo in December 2006, clause 3 thereof was worded differently and provided that:

“This Ordinance applies to an act done by or for the purposes of the Government that is of a kind similar to an act done by a private person.”

283.The Bills Committee scrutinising the Bill queried “the justification for granting a broad exemption for the performance of functions and powers of the Government [in terms of clause 3], given that the three existing anti-discrimination ordinances expressly bind the Government.”[150]

284.In response, the Government explained that:

“... one of the main consideration which calls for the introduction of the Bill has been both BL [ie the Basic Law] and HKBORO bind only the Government and public authorities. They do not cover acts of racial discrimination in the private sector. This is the cause of concern, both locally and with the UN Committee. It is against this background that the Bill is prepared and subsequently introduced into LegCo, specifically to address concerns over the lack of specific legislation ‘protecting persons from racial discrimination to which they may be subjected by private persons, groups or organizations.’ For the sake of parity of treatment, it is proposed in Clause 3 that the Race Discrimination Ordinance, when enacted, would apply ‘to an act done by or for the purpose of the Government that is of a kind similar to an act done by a private person.’ In other words, the proposed provisions would apply to both the Government and the private sector. Clause 3 is not meant to be an exception clause and ought not be regarded as ‘granting a broad exemption’. Clause 27(2)(h) further clarifies the ambit of the proposed legislation to include particularly ‘services of any department of the Government or any undertaking by or of the Government’. The Administration has assured members that the Bill would cover areas such as provision of public medical services and education, even though law enforcement, correctional service, and immigration control to the extent that they do not fall within any of the specified areas (eg provision of services and facilities) are not covered.

With regard to the determination of ‘an act by the Government that is of a kind similar to an act done by a private person’, the Administration has explained that this is a question of fact which ultimately has to be determined by the Court in light of the relevant circumstances of each individual case. The Administration stresses that neither Clause 3 nor any other provision of the Bill could limit the protection provided by the human rights provisions of BL which is a constitutional document of HKSAR or absolve the Government and public authorities from liabilities arising under HKBORO. Hence an act that contravenes HKBORO (which prohibits all forms of discrimination by Government and public authorities) may be challenged in the Court under HKBORO, even if it is not covered specifically under the Bill.”[151]

285.In view of the concerns expressed by the Bills Committee however, the Government introduced a Committee Stage Amendment (“CSA”) to amend clause 3 to its present wording. 

M3.  The plaintiff’s argument

286.The plaintiff argues that “all policing services at all stages are engaged under the RDO.”

287.By way of introduction, Mr Blanchflower refers to article 25 of the Basic Law and article 22 of the HKBORO (amongst other provisions) and says that “[t]he right against discrimination and to equality is a fundamental right”.  He draws a distinction between “human rights legislation” and “ordinary statute” and submits that the RDO should be “interpreted generously, and any exemptions be interpreted strictly and narrowly” as it relates to “fundamental rights”.[152]  

288.Mr Blanchflower relies on the Canadian authority of Gould v Yukon Order of Pioneers [1996] 1 RCS 571 and the local case of Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 69 to draw the distinction.  With respect, I think his reliance on these authorities is misplaced.    My reading of the majority judgment in Gould is that the Supreme Court of Canada was there applying the purposive approach as we understand that approach to be in this jurisdiction.[153] And Hartman J (as he then was) did not draw the distinction in the local case either. 

289.Perhaps, Mr Blanchflower was thinking about the fundamental rights and freedom constitutionally guaranteed in Chapter III of the Basic Law (which contains article 25). 

290.In Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at pp 28-29, Li CJ explained that:

“What is set out in Chapter III ... are the constitutional guarantees for the freedoms that lie at the heart of Hong Kong’s separate system. The courts should give a generous interpretation to the provisions in Chapter III that contain these constitutional guarantees in order to give to Hong Kong residents the full measure of fundamental rights and freedoms so constitutionally guaranteed.”

And he later reiterated in Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at §24 that “[a] generous approach should be adopted to the interpretation of the rights and freedoms whilst restrictions to them should be narrowly interpreted”.

291.In §§26-27 of Bahadur, Li CJ drew a distinction between rights provided for in the Basic Law and in the HKBORO.  Insofar as a right is provided for in the HKBORO, he said article 39 of the Basic Law makes it clear that:

“... first, that such rights and freedoms may not be restricted unless as prescribed by law. Secondly, even if the restrictive measures are prescribed by law, art 39(2) provides that the restrictions shall not contravene provisions of the ICCPR [ie International Convention on Civil and Political Rights] as applied to Hong Kong, that is, as incorporated by the Bill [ie HKBORO]. Thus, in the context of rights recognised by the ICCPR as applied to Hong Kong, (whether or not such rights are also enshrined in the Basic Law), art 39(2) spells out the two requirements which any purported restriction must satisfy.”

292.In this case, the plaintiff’s racial discrimination claim is couched in terms of section 27 of the RDO.  No breach of the Basic Law or the HKBORO has been pleaded.  We are presently not concerned with the interpretation of Chapter III of the Basic Law or any restriction of rights provided under the HKBORO. 

293.Li CJ observed in Cheung Kwun Yin (at §12) that the purposive approach has been reflected in section 19 of the Interpretation and General Clauses Ordinance, Cap 1.  That section requires that:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

Thus in engaging in a purposive interpretation, the court is already giving the subject legislation a fair, large and liberal interpretation having regard to its context and purpose.  The present search is for a meaning which the words used is capable of bearing and intended by the legislature to bear.  A general statement that the provision should be “interpreted generously” does not, with respect, advance the plaintiff’s cause any further.

294.Mr Blanchflower has invoked the principle of legality in argument. [154]  In A v Commissioner of Independent Commission Against Corruption (2012) 15 HKCFAR 362 at §24, the Court of Final Appeal explained that:

“By virtue of the principle of legality, human rights and fundamental principles of law, even where derogable, cannot be overridden except by express words or necessary implication.”

295.Section 27 (as we have seen) is a right conferring provision, without which there is no legally enforceable cause of action for racial discrimination in private law.  Insofar as it applies to the Government, it adds to the public law protection and complements the existing administrative complaint channels.  Section 27 does not seek to override any human rights or fundamental legal principles.  I do not think the principle of legality is engaged.

296.Turning to his main argument, Mr Blanchflower mainly relies on Nassiah v The Regional Municipality of Peel Services Board, 2007 HRTO 14, Johnson v Halifax Regional Police Service [2003] NSHRBID No 2 and Maynard v Ontario Human Rights Commission, 2012 HRTO 1220) for his proposition.  He argues that: “Canadian courts have applied the purposive construction to the words ‘binds the Crown’ to hold that all police services are ‘services’ under the relevant human rights legislation in which citizens are entitled to have provided in a non-discriminatory way.”[155]

297.There is really no point for Mr Blanchflower to argue that “police services” are “services”. What I understand him to be saying is that all police activities are “services” for the purpose of section 27.  This is apparent from his elaboration in §170 of the PCS that: “Arjun’s case is that policing services at all stages: stop and search, investigation, arrest, and detention, and request for assistance and investigation, are subject to the RDO.”.  This seems to be Dr McCoy’s understanding too, as he submits (at §48 of the ECS) that: “Unlike the UK, the Canadian decision makers have almost been unperturbed by the word ‘services’, seeing all functions and duties for [the benefit] of the public necessarily included.”

298.With respect, I am not sure if their understanding of the Canadian approach is correct.  Furthermore, I do not think the decisions cited are apposite to the present discussion.  Let me start with my second point.

299.In Nassiah, Officer Elkington attended a department store to investigate the allegation that Ms Nassiah had stolen a bra.  The Human Rights Tribunal found (at §2 of the report) that the officer had discriminated against Ms Nassiah in the investigation in that:

“... Officer Elkington asked whether Ms Nassiah spoke English in part because she is Black. He was more suspicious and his investigation was heightened because she is Black. In addition, he called her a ‘fucking foreigner’ during the investigation and threatened to take her to jail if she did not produce the bra.”

In passing, the tribunal said (at §99) that:

“A police investigation into an allegation of theft is a service within the meaning of section 1 of the Human Rights Code...”

300.In Maynard, the Toronto Police was investigating a gun-related incident at the Malvern Town Centre involving a black male suspect driving a black sports car when Officer Baker stopped Mr Maynard (who was travelling home in his black BMW) for questioning.  An exchange ensued between the two which quickly escalated into the officer drawing his firearm at Mr Maynard.  The Human Rights Tribunal accepted (at §175 of the report) that “the most reasonable explanation for Officer Baker’s decision to follow Mr Maynard is that he was a black man, and specifically a young black man, driving a black vehicle near the Malvern Town Centre and as a result, he was stereotyped as a person with some probability of being involved in a gun-related incident”.  In finding that the officer had discriminated against the complainant, the Tribunal said (at §147) that:

“There is no dispute that the provision of policing services is a service within the meaning of the Code.”

301.Nassiah and Maynard are both concerned with the Human Rights Code of Ontario.  Section 1 thereof provides that:

“Every person has a right to equal treatment with respect to services, goods and facilities without discrimination because of race ...”

And section 47(1) stipulates that:

“This Act binds the Crown and every agency of the Crown.”

302.My reading of these provisions is that they prohibit unequal or discriminatory treatment in the provision of services by the Crown and its agencies. Unlike our section 27, the Human Rights Code does not expressly provide that the “service” at the heart of a section 1 complaint must also be a service sought to be obtained or used by the complainant.  It suffices if it is a service to the community.    

303.Johnson is concerned with the similarly worded Human Rights Act of Nova Scotia (“HRA”).  Section 5(1) thereof provides that:

“No person shall in respect of the provision of or access to services or facilities ... discriminate against an individual or class of individuals on account of ... race ...”

304.In finding that Constable Sanford had discriminated against Mr Johnson in the course of the ticketing and towing of Mr Johnson’s vehicle, the Board of Inquiry said (at pp 22 & 24-25):

“I find it difficult to imagine that these events would have unfolded the same way if a white driver from Texas had been involved in this stop. The lack of courtesy towards Mr Johnson, and the failure to make any attempt at all to investigate what the legal requirements were in an unfamiliar jurisdiction, whether through conversations with Mr Johnson or otherwise, are examples of unprofessional behaviour from which I am inclined to infer differential treatment., and I find that this differential treatment was based principally on Mr Johnson’s race.”

“I find that Constable Sanford initially had reason to be suspicious about the nature of the documentation offered and the expired licence plate. However, the whole tenor of his interaction with the occupants of the vehicle, especially with Mr Johnson, shows that he did not allow them a fair chance to respond to his concerns. His assessment of unfamiliar documentation was unacceptably cursory and he quickly decided he did not wish to speak to the only person who could have enlightened him ... Constable Sanford’s mind appeared closed virtually from the outset and remained that way for the rest of the evening and thereafter. I infer that the tragic lack of communication which caused Constable Sanford to fall into error was the result of the police officer’s use of a racial stereotype of black male criminality...”

305.Again, the Human Rights Act does not require the subject of the complaint to be a service sought by the complainant.  The Board simply said (at p 4) that:

“There is not much dispute about the law in this case. I did not understand the respondents [ie Officer Sanford and Halifax Regional Police Service] to dispute that police services are ‘services’ under s 5 of the Nova Scotia Human Rights Act which the citizen is entitled to have provided in a non-discriminatory way: see Fraser v Victoria (City) Police (No 2) (1998) 9 CHRR D/5068 (BCCHR); Gomex v Edmonton (City) (1982) 3 CHRR D/882 (Alt QB); Hum v RCMP (1986) 8 CHRRD D/3748 (CHRT).”

306.I have looked at the authorities cited in the above quotation.  The focus of the discussions in Fraser (at §§38692-38694), Gomez (at §§7851-7853) and Hum (at p 14) was whether the activities complained of were services performed for the public.  There was no discussion from the perspective of the complainant.

307.Given the requirement in our section 27 that the complainant must have sought to obtain or use the services complained of, I do not think Nassiah, Maynard and Johnson are apposite.  This brings me to my first point.

308.Mr Wong has pointed out in §72 of his closing replies (“DCR”) that none of the Canadian cases cited by the plaintiff contains any analysis or discussion as to the meaning of “services”.  Dr McCoy has also warned (at §31 of the ECS) that many of the authorities cited in argument “are not even court decisions but simply first instance tribunal decisions, untested by appellate approval or disapproval in their own jurisdictions.” 

309.In my attempt to gain a better understanding of the Canadian approach, I came across the judgment of the Federal Court of Appeal of Canada in Watkin v Attorney General of Canada, 2008 FCA 170.  Although that case is not concerned with police activities, there is an enlightening discussion on the meaning of “services” in the context of the Canadian Human Rights Act. 

310.This is what the Court said:

“21. The essence of the complaint when read in its most favourable light from the perspective of the appellant is that Health Canada has in effect discriminated against the complainants by enforcing the Food and Drugs Act against their company, but not against other businesses who were deserving of the same treatment. This differential treatment is said to be based on ethnicity.

22. In my view, Health Canada, when enforcing the Food and Drugs Act in the manner complained of is not providing ‘services ... customarily available to the general public’ within the meaning of section 5 [of the Canadian Human Rights Act]. The actions in question are coercive measures intended to ensure compliance. The fact that these measures are undertaken in the public interest does not make them ‘services’.

...

28. Public authorities can and do engage in the provision of services in fulfilling their statutory functions. For example, the Canada Revenue Agency provides a service when it issues advance income tax rulings; Environment Canada provides a service when it publicises weather and road conditions; Health Canada provides a service when it encourages Canadians to take an active role in their health by increasing their level of physical activity and eating well; Immigration Canada provides a service when it advises immigrants about how to become a Canadian resident. That said, not all government actions are services. Before relief can be provided for discrimination in the provision of ‘services’, the particular actions complained of must be shown to be ‘services’...

...

31. ... the first step to be performed in applying section 5 is to determine whether the actions complained of are ‘services’ (see Gould, supra, per La Forest J, para 60). In this respect, ‘services’ within the meaning of section 5 contemplate something of benefit being ‘held out’ as services and ‘offered’ to the public (Gould, supra, per La Forest J at para 55). Enforcement actions are not ‘held out’ or ‘offered’ to the public in any sense... I therefore conclude that the enforcement actions in issue in this case are not ‘services’ within the meaning of section 5.

...

33.  Regard must be had to the particular actions which are said to give rise to the alleged discrimination in order to determine if they are ‘services’ (Gould, supra, per Iacobucci J, para 16, per La Forest J , para 60), and the fact that the actions are undertaken by a public body for the public good cannot transform what is ostensibly not a service into one.  Unless they are ‘services’, government actions do not come within the ambit of section 5.  And in the present case, the enforcement actions which form the object of the complaint are not ‘services’ under any of the meanings that can be given to this word,...”

34.  In reaching this conclusion, I have had in mind throughout that the Act, being dedicated to the advancement and protection of human rights, should be given a broad, liberal and purposive interpretation in order to maximize its reach. However this is not a matter of giving the word ‘services’ a generous meaning in order to achieve that goal, this is a matter of not giving that word a meaning that it cannot bear (Gould, supra, per La Forest J, para 50 and per Iacobucci J, para 13).”

311.In my view, Watkin is instructive in that it gives us a glimpse as to how the Canadian courts might interpret “services”.  Contrary to the understanding of Mr Blanchflower and Dr McCoy, the Federal Court of Appeal actually said that “not all government actions are services” (§28) and that “the fact that the actions are undertaken by a public body for the public good cannot transform what is ostensibly not a service into one.” (§33)  Based on the ordinary meaning of the word, the Court accepted that “services” contemplate something beneficial to the recipient.

312.Thus, the mere fact that the police may be conducting an activity in the public interest (eg stop and search, pursuit, arrest and detention, etc) does not, as contended by the plaintiff and the EOC, mean that a service is relevantly involved.  

313.I therefore reject the plaintiff’s contention.

M4.  The EOC’s argument

314.Apart from praising the Canadian authorities cited by the plaintiff, the EOC also contends (at §65 of the ECS) that “services” is “a compendious term encompassing all duties and functions” of the police.

315.Dr McCoy advances three main arguments in support of the contention:

(a)  “[T]he thematic principles extracted from the leading authorities is that the ‘services’ provision must include all services provided by the police including in particular the pursuit, arrest or investigation of a person.”[156]

(b)  “[I]t is irrational to contemplate that the intention of the legislature was to intentionally create ‘blind spots’ in the RDO.”[157]

(c)  To interpret otherwise would be “to expose the Government to the unfair charge that it has not fulfilled its international obligations to eliminate discrimination in Hong Kong, by having created safe zones in the legislation so as to allow racially discriminatory conduct to be carried out by public officers with impunity.”[158]

316.First, I do not agree that the leading authorities cited in argument quite establish that the “services” provision must cover all activities of the government.  The Federal Court of Canada said in Watkin (at §28) that “not all government actions are services”.  Similarly, the Federal Court of Australia accepted in Rainsford v Victoria [2007] FCA 1059 (at §72) that “not all government functions are services, although some undoubtedly are.”  I shall discuss the Australian authorities in more detail in Section M6 below.

317.Dr McCoy takes the view that Amin was wrongly decided and that the position respecting race discrimination in England has since been put right by legislative amendments. He submits (at §41 of the ECS) that:

“... that outcome is what was intended by the RDO, namely, that ‘service’ means all public functions and duties – and should be adopted in the interpretation of such provisions in the RDO. Services is simply a compendious way of, in one word, covering the entire plenitude of public functions and duties.”

318.In England, section 20 of the Race Relations Act 1976 originally provided in terms similar to our section 27.  In 2000, the Race Relations Act 1976 was amended by the Race Relations (Amendment) Act 2000.  According to its preamble, one of the aims of the 2000 Act was “to extend further the application of the Race Relations Act 1976 to the police and other public authorities”. 

319.Section 1 of the 2000 Act (entitled “Discrimination by police and other public authorities”) inserted a new section 19B into the Race Relations Act 1976 in these terms:

“19B Discrimination by public authorities

(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.

(2) In this section ‘public authority’–

(a) includes any person certain of whose functions are functions of a public nature; but

(b) does not include any person mentioned in subsection (3).

(3) ...”

320.Baroness Hale of Richmond introduced the amendment in R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 WLR 1 at §76 in these terms:

“Discrimination law has always been applied to public authority providers of employment, education and housing, and other services, as long as those services are of a similar kind to those which may be supplied by private persons. But a majority of this House held, in [Amin], that it did not apply to acts done on behalf of the Crown which were of an entirely different kind from any act that would ever be done by a private person, in that case to the application of immigration controls. This is still the case for sex discrimination, but the race discrimination law was changed in response to the Macpherson report into the Stephen Lawrence case. It is now unlawful for a public authority to discriminate on racial grounds in carrying out any of its functions...”

321.Then came the Equality Act 2010.  One of the stated aims of the 2010 Act was to “reform and harmonise equality law and restate the greater part of the enactments relating to discrimination ... related to certain personal characteristics.”  The Act replaced all the prevailing anti-discrimination legislations, including the Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000.[159]

322.Section 29(1) of the Equality Act 2010 now provides that:

“A person (a ‘service-provider’) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.”

One of the protected attributes is race (see section 4), and section 31(3) relevantly provides that:

“A reference to the provision of a service includes a reference to the provision of a service in the exercise of a public function;”

323.In my view, the law of racial discrimination in England has evolved from its original formulation in the Race Relations Act 1976 to its present position under the Equality Act 2010 by means of legislation.  I cannot see how “that outcome” can be archived in Hong Kong without the necessary legislative intervention. 

324.Incidentally, I note that one of the statutory functions of the EOC, as provided in section 59(1)(e) of the RDO, is to “draw up and submit to the Chief Executive proposals for amending this Ordinance”.  It is therefore for the EOC to take it up with the Government if it thought appropriate.

325.The second and third arguments can be taken together.  Dr McCoy has urged that all functions and duties of the Government should be covered so that there will be no “blind spot” and HKSAR’s obligations under ICERD will be fulfilled.  His approach is noble and in line with EOC’s mission to “work towards the elimination of discrimination” (see section 59(1)(a) of the RDO). 

326.Notwithstanding their noble cause, I am afraid I cannot accede to the request as it will require this court to impose on the words used a meaning that they are incapable to bear.  There is only so much statutory interpretation can achieve and it is pre-eminently the responsibility of the LegCo to strike a balance between different interests of the community.  The Court of Final Appeal has warned in China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 at §36 that:

“There can be no quarrel with the principle that statutory provisions should be given a purposive interpretation, but there has been a distressing development by the courts which allows them to distort or even ignore the plain meaning of the text and construe the statute in whatever manner achieves a result which they consider desirable. It cannot be said too often that this is not permissible. Purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the legislature, and that intention must be ascertained by a proper application of the interpretative process. This does not permit the Court to attribute to a statutory provision a meaning which the language of the statute, understood in the light of its context and the statutory purpose, is incapable of bearing: see HKSAR v Lam Kwong Wai.”

327.I have already mentioned the CSA introduced by the Government that eventually became section 3 of the RDO.  In fact, the Bills Committee did not think the Government’s proposal went far enough and moved its own CSA in LegCo to add a new provision in these terms:[160]

“It is unlawful for the Government to discriminate against a person on the ground of race of that person in the performance of its functions or the exercise of its powers.”

328.At the Second Reading of the Bill, the Secretary for Constitutional and Mainland Affairs spoke against the CSA proposed by the Bills Committee: [161]

“Some Members have expressed the concern that clause 3 as originally drafted ... might provide an exemption for the Government. On this matter, I should point out clearly that the original draft was to clarify that both the acts [of] the Government and those of the private sector are governed equally by the Bill. There is no exemption for the Government. Nevertheless, in view of the concern raised by Members, we will introduce a Committee Stage Amendment (CSA) so as to amend clause 3 as “This Ordinance binds the Government”. This is to make clear that the proposed legislation, when passed, will fully be applicable to the Government.

Some Members have suggested that, in addition to the prescribed areas of activities stipulated in the Bill, the Bill should also cover all the Government functions, including all acts of the Government in ‘the performance of its function and the exercise of its powers’.  We should note that, unlike discrimination on the grounds of gender, disability or family status, racial discrimination involve much more complex issues and may therefore be easily abused.  The inclusion of all government functions beyond the prescribed scope of the Bill could run the risk of an influx of litigation and complaints which are unreasonable and unnecessary.  Such complaints and litigation are bound to detract government resources from proper use and would hamper efficient administration.

As a matter of fact, the Bill already covers all the services and facilities provided by the Government.  In regard to law enforcement, the Government is bound under the Basic Law, the Hong Kong Bill of Rights Ordinance and administrative laws not to discriminate on the ground of race.  Apart from the legal remedy, there are other administrative avenues (such as the Ombudsman) for redress of complaints against racial discrimination by government department in law enforcement.  Therefore, we do not consider it necessary to extend the scope of the Bill to cover such actions.

There are circumstances, for example, in the investigation and prevention of crime, which may call for target action at specific racial groups.  For example:

(a)  selection of passengers of certain ethnic groups for baggage examination at border control points on the basis of information or routine risk-profiling;

(b)  stop, search and investigative actions may target individuals of certain ethnic origins if race is one of the identifying descriptors of the suspect(s) of a particular crime case; and

(c)  if intelligence gathered suggests that persons from certain countries are travelling to Hong Kong with plans to undermine the public security of Hong Kong, the law enforcement agencies might have to take follow up actions focusing on individuals from such countries (or ethnic groups).

Hence, if the remit of the Bill were to be extended to cover all government functions (including law enforcement functions), there could be a real risk that targets of such operations could raise claims on the allegation that the law enforcement agencies’ actions constituted discrimination under the Bill.  This would impair seriously the capability of law enforcement agencies to prevent or detect crime.  Jurisprudence in the United Kingdom has demonstrated clearly that a police officer in the pursuit, arrest and charging of criminals is not providing a facility or service to the criminals.  Therefore, the Bill does not cover these activities.  We also do not consider it appropriate to expand the scope of the Bill to cover these activities.”

329.When the CSAs were put to a vote, the Government’s proposal was passed but the CSA proposed by the Bills Committee was negatived.[162]  In other words, the proposal to expand the scope of the RDO to comprehensively cover the performance of functions and exercise of powers by the Government was voted down by the Legislature.  It is legitimate to take into account unsuccessful legislative amendments moved by a person other than the promoters when it comes to statutory interpretation.[163]    The interpretation urged by the EOC has the effect of reviving what has been rejected and does not reflect the intention of the LegCo.

330.On the other hand, the UN Committee made the following comments at its 75^th session in August 2009:

“28. The Committee is concerned that the Hong Kong SAR Race Discrimination Ordinance only covers certain Government activities and exercise of its powers in its scope of application, ie employment, education and the provision of goods and services. (art 2)

The Committee recommends that all Government functions and powers be brought within the scope of the Race Discrimination Ordinance...”

331.The Government would not have suffered such comments to be made had it been possible to align the RDO with the objectives of the ICERD by means of statutory interpretation.

332.I therefore reject the EOC’s contention.

M5.  The defendants’ argument

333.In §187 of the DCS, Mr Wong expands on the defendants’ argument into the following statements:

(a)  Police activities only amount to the provision of services to individual members of the public if they involve assistance to or protection of those individuals.

(b)  Requests for police investigation may involve the provision of services if the investigation was sought for the purpose of rendering assistance or protection to individuals (for example, to seek out and apprehend someone threatening to harm the complainant).

(c)  On the other hand, if the case merely involves police activities (including investigation) which are undertaken for the purpose of pursuing, arresting or prosecuting persons suspected of having committed offences for the purpose of enforcing the law, such activities will only be regarded as constituting the police’s performance of their duties and functions and not the provision of services, whether to the suspected person or the complainant or the victim of the crime.

(d)  The police may be involved in the provision of services to persons within police custody insofar as those persons require protection and assistance whilst in custody.

334.It appears that (a) is the general statement and (b) to (d) are application of the general statement to different aspects of police activities, namely, investigation, pursue and arrest, prosecution and detention.

335.His argument is mainly crafted around the House of Lords’ decision in Amin and the English authorities that followed it.  He emphasizes that:

(a)  “... it remains vital to draw a distinction between (i) the performance of statutory functions and duties and (ii) the provision of services by public bodies.  That is because the authorities suggest that ‘acts in pursuit of government policy or the performance of distinctively governmental functions do not fall within the ambit of provision of services’: Gichura v Home Office [2008] ICR 1287 at §16, per Buxton LJ (with whom Waller and Smith LJJ agreed).  Thus, where the relevant statutory function or duty is distinctively governmental, it falls outside the ambit of ‘services’ for the purpose of s 27 of the RDO.”

(b)  “A helpful test to determine whether a particular act of a public body is ‘distinctively governmental’ is to ask whether the act is ‘of a kind similar to acts that might be done by a private person’: see Amin at 835E-F per Lord Fraser of Tullybelton (with whom Lord Keith of Kinkel and Lord Brightman agreed).  See also Farah v Commissioner of Police of the Metropolis [1998] QB 65 at 84G-H per Otton LJ, and Gichura at §22 per Buxton LJ.  If an act performed by a public body in discharge of its statutory functions and duties is very different in kind from any act that would ever be done by a private person, that is a strong indicator that it is a distinctively governmental function which does not fall within the ambit of provision of services for the purpose of the RDO.”

336.Historically, different Acts of Parliament were enacted to deal with different kinds of discrimination in England.  For example, the Sex Discrimination Act 1975 (“SDA 1975”) was concerned with sex discrimination whereas the Race Relations Act 1976 (“RRA 1976”) was concerned with race discrimination.  The provisions prohibiting discrimination in the provision of goods, facilities or services in both Acts were almost identical (see section 29 of the SDA 1975 and section 20 of the RRA 1976).  Our section 27 is modelled on these provisions. 

337.Importantly, both Acts provided (in section 85(1) of the SDA 1975 and section 75(1) of the RRA 1976 respectively) that:

“This Act applies –

(a) to an act done by or for purposes of a Minister of the Crown or government department, or

(b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,

as it applies to an act done by a private person.”

338.The case of Amin was concerned with the SDA 1975.  The complainant there applied for a special voucher to enable her to settle in the UK.  The entry clearance officer refused to entertain her application on the ground that she was not a head of household and hence ineligible to apply.  The House of Lords was unanimous in holding that the special voucher scheme was discriminatory as it assumed that the complainant’s husband would be the head of the family.  However, the majority of the House (comprising Lord Fraser, Lord Keith and Lord Brightman) ruled that the grant of special vouchers did not come within the general words of section 29 of the SDA 1975 and dismissed the claim.

339.In the leading judgment of Lord Fraser (to which Lord Keith and Lord Brightman agreed), His Lordship explained (at 835C-F) that:

“... In the present case the entry clearance officer in Bombay was in my opinion not providing a service for would-be immigrants; rather he was performing his duty of controlling them.

Counsel for the appellant [ie claimant] sought to draw support for his contention from section 85(1) of the Act of 1975...  That section puts an act done on behalf of the Crown on a par with an act done by a private person, and it does not in terms restrict the comparison to an act of the same kind done by a private person.  But in my opinion it applies only to acts done on behalf of the Crown which are of a kind similar to acts that might be done by a private person.  It does not mean that the Act is to apply to any act of any kind done on behalf of the Crown by a person holding statutory office.  There must be acts (which include deliberate omissions – see section 82(1)), done in the course of formulating or carrying out government policy, which are quite different in kind from any act that would ever be done by a private person, and to which the Act does not apply.  I would respectfully agree with the observations on the corresponding provision of the Race Relations Act 1976 made by Woolf J in Home Office v Commission for Racial Equality [1982] QB 385, 395B-C...”

340.In the case cited by Lord Fraser, Woolf J (as he then was) said this:

“... the wording used in section 75 [of the RRA 1976] was clearly intended to have a more restricted effect than the wording contained in the previous Act. It appears to me that an act, for the purposes of section 75, which is defined in section 78 as including a deliberate omission, means some act, which, while not necessarily the same, is one similar to the kind of act which can amount to unlawful discrimination under the Act of 1976. It does not, in my view, include activities of the sort involved in formulating and expressing government policy, or the hearing of cases before the courts of law and tribunals. I draw attention to the contrast between the word ‘act’ and the word ‘functions’ used in section 71.”

341.So, the decision in Amin was influenced by section 85(1) of the SDA 1975 (and section 75(1) of the RRA 1976). 

342.The other English authorities cited by Mr Wong all followed Amin.  The complainant in Farah was a Somali refugee.  She claimed that she had been attacked by white youths who had set a dog on her.  When she summoned the police for assistance, the police arrested her for affray, assault and causing unnecessary suffering to a dog. These charges were later dropped.  She brought an action against the Commissioner of Police alleging that the police’s conduct amounted to unlawful racial discrimination contrary to section 20 of the RRA 1976.  The Commissioner, having lost his application to strike out the racial discrimination claim, appealed.

343.The Court of Appeal applied Amin and held that only those parts of a police officer’s duties involving assistance to or protection of members of the public amounted to the provision of services to the public for the purposes of section 20(1) of the RRA 1976.  Hutchison LJ (to which Otton and Peter Gibson LJJ agreed) explained (at pp 77B & 78D-F) that:

“... it is arguable that the limited service for which the plaintiff looked to the police comes within Lord Fraser’s test.”

“In my view Mr Nicol [the plaintiff’s counsel] is correct when he argues that, prima facie, section 20 is wide enough to apply to at least some of the acts undertaken by police officers in the performance of the duties of their office. The crucial words – to be interpreted of course in the light of the examples given, but not on the basis that the examples are definitive of the circumstances to which the section can apply – are ‘any person concerned with the provision (for payment or not) of ... services to the public.’

I accept Mr Nicol’s contention that these words are entirely apt to cover those parts of a police officer’s duties involving assistance to or protection of members of the public.  Mr Nicol emphasised that it is in regard to that aspect of the officers’ duties that the claim in the present case is advanced; it is not suggested that pursuing and arresting or charging alleged criminals is the provision of a service.  What is said is that the service sought by the plaintiff was that of protection and that she did not, because of her race, obtain the protection that others would have been afforded.  It seems to me that that is less the provision of a service than is the giving of directions or other information to a member of the public who seeks them.”

344.In Gichura, the complainant was an asylum seeker whose claim for asylum had been refused.  He had been kept in immigration removal centres ran respectively by the Home Office and its contractor (Kalyx Ltd) pending removal.  He was wheelchair-bound and brought a claim under section 19 of the Discrimination Disability Act 1995 (“DDA 1995”) against the Home Office and Kalyx Ltd alleging discrimination in (i) the reception procedures, including the searches of the complainant and the time for which and the conditions in which he was kept waiting; (ii) the access to toilet and bathroom facilities; (iii) the access and egress from a room in the detention centre; (iv) the provision of suitable bedding; and (v) the provision of medical services in the immigration removal centres. 

345.Section 19 of the DDA 1995 concerning provision of services is different from section 29 of the SDA 1975 or section 20 of the RRA 1976 but nothing material turns on their differences.[164] Importantly, the DDA 1995 also contained a provision (at section 64) identical to section 85(1) of the SDA 1975 or section 75(1) of the RRA 1976.

346.At first, the claim was struck out by the District Judge who ruled that the acts complained of did not come within the meaning of services for the purposes of section 19 as they were performed pursuant to the government’s function to control immigration.  On appeal, the claimant conceded that (i) did not fall within section 19 and the Home Office agreed that it was arguable that (ii) to (v) did come within section 19.  However, Kalyx Ltd sought to uphold the Judge’s ruling.

347.In deciding that the Judge was wrong, Buxton LJ of the Court of Appeal (whose judgment Waller and Smith LJJ agreed) said:

“14. The point I think can be put like this. If one looks at the matters that are in dispute between the claimant and Kalyx Ltd – facilities, provision of bedding, provision of medical services and of course other aspects of life in the detention centre that are not specifically complained of, such as particular provision of food or recreation and so on – there seems to be no doubt that in the ordinary meaning of the English language provision of those matters is the provision of a service. The point that Kalyx Ltd takes, as did the district judge, is that those functions are part and parcel of a governmental function, that is to say, the detention of a failed asylum seeker pending removal, and therefore for that reason do not fall under section 19 of the 1995 Act. It will already have been noted that reference is made by the district judge in support of that analysis to [Amin] and to that I now turn.

[Buxton LJ then referred to Lord Fraser’s judgment in Amin.]

16. ... For that reason therefore acts in pursuit of government policy or the performance of distinctively governmental functions do not fall within the ambit of provision of services.

17. There are of course two reasons for that: one is that, as Lord Fraser held, such is not a function to which the 1975 Act applied at all, despite section 85(1) in that Act; and secondly, although he did not put it in quite this way, it would be a rather strange application of the concept of providing a service to say that one is providing a service to somebody when one is in fact restricting them from doing what they want to do. How does that distinction apply here? Kalyx Ltd says, as the district judge said, this case is the same or very similar to [Amin] because what they, Kalyx Ltd, are doing is performing a governmental function. They are standing in the shoes of the Home Office in detaining [the complainant] and other people in his position pending their expulsion from this country.

18. There is no case directly dealing with that, but we were shown a number of authorities that indicate that that is, if I may say so, too simplistic an approach... [Buxton LJ then referred to Savjani v Inland Revenue Commissioners [1981] QB 458 and Farah.] Of particular interest, if I may respectfully say so, is part of the judgment of Otton LJ [in Farah] when he said [1981] QB 65, 84-85:

‘These acts (or services) which the plaintiff sought from the police were, to my mind, acts which might have been done by a private person. The second category envisaged by Lord Fraser covers those acts which a private person would never do, and would normally only ever be performed by the police, eg gaining forcible entry into a suspected drugs warehouse. Here the officers would be carrying out government policy to which the Act would not apply. Moreover, they would be performing duties in order to prevent and detect crime exercising their powers to enable them to perform those duties.’

...

22.  That distinction is with respect of importance in distinguishing between acts which might be done by a private person and acts which a private person would never do. Clearly a private person would never sit in judgment on the issue of entry certificates, to take the facts of the case in [Amin]. Clearly a private person would never be engaged in searching for drugs. By contrast a private person would often be engaged in the sorts of services which we are concerned with in this case.

23.  Now it is quite right to say as Kalyx Ltd says, and as Miss Hewitt [Kalyx’s counsel] forcibly said, that everything that happened here was incidental to the detention of [the complainant]; but the authorities that I have referred to clearly show that that is not enough to exclude the provision of a service from the reach of the 1995 Act if, when done by a private person, what happened would be regarded as the provision of a service.

24.  Farah’s case and Savjani’s case show that the court is prepared to take a fairly broad view of what falls outside the provision of the governmental service in the context of the discrimination legislation. It was, if I may respectfully say so, by no means certain in Savjani’s case that it would be said that, as part of their operation of the tax office, the Inland Revenue officials were providing a service to the public as opposed to ensuring that the public paid the taxes. But as Templeman LJ said there can be two functions going on at the same time. That in my judgment is this case. On the one hand Kalyx Ltd is of course detaining [the complainant]. True it is, as Miss Hewitt said, that anyone who is detaining a person has in effect to provide them with bed, board, food and facilities; but as this case shows many issues may arise as to how that is done.

25.  The broad view of what counts in these terms as provision of a service is important because it is important that the disability and other discrimination legislation does apply in circumstances which it is natural to think it should apply.  I do not think that it is conceivably right to say now that Parliament intended this very important legislation not to apply in circumstances such as in the detention centre with which we are concerned, or not to apply to detention in police custody or detention in prison.  Some of the functions that were performed there are purely governmental, like, as is conceded in this case, the administrative handling of the detainee on his arrival.  But once he is there he is as a detainee a member of a section of the public.  He is provided with what are in truth services and there is no reason either in the 1995 Act or in the authorities to which I have referred to exclude those services from the ambit of the Act.”

348.The Court of Appeal adopted Lord Fraser’s test in deciding whether what was done amounted to a “service” and recognised that two functions could be going on at the same time.  Whilst accepting that the act of detaining a person was purely governmental, the Court accepted that the provision of (ii)-(v) incidental to the detention might be regarded as “services” as they would be done by a private person. 

349.Thus, the English authorities cited by Mr Wong all followed Amin and were premised on the special context of the Act in question, namely, section 85(1) of the SDA 1975, section 75(1) of the RRA 1976 and section 64 of the DDA 1995.  Our RDO does not have any equivalent provision.  Quite to the contrary, the Government (as we have seen) abandoned its plan to introduce similar provision (in terms of clause 3 of the Bill) into the RDO in the legislative process. In the premises, I do not think we can legitimately borrow the English jurisprudence in aid of our interpretation of the RDO. 

350.I therefore reject the defendants’ contention.

M6.  My interpretation of section 27 of the RDO in relation to police activities [Issue 1]

351.Of the overseas authorities cited, I find the Australian ones most apposite.

352.In my view, the Australian approach is best illustrated by the decision of Robinson v Commissioner of Police, NSW Police Force (2012) 292 ALR 702.  In that case, the NSW Police Force wanted to arrest Mr Robinson in connection with certain alleged offences.  In the course of the arrest, Mr Robinson felt unwell and appeared to have had a seizure.  Medication was given before Mr Robinson was arrested and taken to hospital.  Thereafter, Mr Robinson was conveyed to a police station where he was charged and bailed.  Proceedings were later brought against the Commissioner of Police on behalf of Mr Robinson alleging unlawful discrimination in breach of section 24(1) of the Disability Discrimination Act 1992 (Cth). 

353.One of the issues before by the Federal Court of Australia was whether the NSW Police Force had provided “services” to Mr Robinson for the purposes of section 24(1).  That section is similar to our section 27 and provides that:

“It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability or a disability of any of that other person’s associates:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or make those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities to the other person.”

354.That Act also provides in section 14(1) that:

“This Act binds the Crown in right of the Commonwealth, of each of the States and of Norfolk Island.”

355.Yates J gave this analysis:

“166. Some consideration has been given in the cases to the characterisation of police functions with a view to determining whether, in particular circumstances, the provision or refusal of services is involved. In this connection, the cases recognise that a dual characterisation might be appropriate. For example, in [Farah] a distinction was drawn between pursuing, arresting or charging alleged criminals, which was not the provision of a service to the alleged criminals, and affording protection to members of public against violence and other criminal acts, which was regarded as the provision of a service to members of the public sufficient to attract the operation of s 20(1) of the Race Relations Act 1976 (UK)...

167. This underscores the need to focus on the position of the person alleging discrimination to identify whether services are being provided or refused to that person and to others in the same circumstances or in circumstances that are not materially different. It does not follow from the fact that the public or a section of the public benefits from an activity that, in a given case of alleged discrimination, a service is relevantly involved: see IW at CLR 16; ALR 706.

168. In my view it could not be said in the present case that DSC Mangan and DC Johnson were providing services to Mr Robinson for the purposes of s 24 of the Act when pursuing and arresting him on 21 March 2009. Similarly, DC Johnson was not providing services to Mr Robinson when maintaining custody over him in the ambulance and at the hospital. Thus, in my view, none of the complaints made by the applicants in relation to Mr Robinson’s treatment on the way to, and while at, Liverpool Hospital could fall within the purview of s 24 of the Act...

...

171. In their written submissions the applicants said that ‘dealing with’ Mr Robinson’s bail application meant ‘considering and disposing of’ that application or ‘considering whether to exercise the discretion to grant or refuse bail’...

...

177. I have come to the conclusion that ‘dealing with’ Mr Robinson’s bail application did not involve the provision of ‘services’ within the meaning of s 24 of the Act. I accept that the word ‘services’ is a word of generality and should be given a broad meaning consistent with the objects of the Act. I also accept that the word is apt to cover activities that are helpful and beneficial. No doubt the granting of bail to Mr Robinson was, in a sense, helpful and beneficial to him, as it might be to all accused persons, compared with the alternative of remaining in custody. But in no true sense can an authorised officer acting pursuant to the duties imposed by s 18 of the Bail Act, and its related provisions, be said to be providing services to accused persons, such as Mr Robinson.

...

180.  When granting police bail an authorised officer is granting authorisation to an accused person to be at liberty instead of remaining in custody.  However, that liberty is not unregulated.  It is liberty under the Bail Act...  The granting of bail is not so much the provision by a government authority of services to accused persons, but the exercise of government authority, in the operation of the criminal justice system, to control such persons and to regulate their liberty.  It is a modification of the state of liberty that is enjoyed by others.  Aspects of activity within the exercise of that control, such as the deliberative process of an authorised officer determining whether to grant bail and, if so, on what conditions, and the provision of information to be used for the purposes of that deliberative process, do not take on any different character so as to become, separately, services provided to accused persons.  All of these activities are inseparable from the mechanism of control that is exercised over accused persons, whose liberty is only that which the Bail Act itself provides for.  As Buxton LJ observed in [Gichura], ‘it would be a rather strange application of the concept of providing a service to say that one is providing a service to somebody when one is in fact restricting them from doing what they want to do’.  See also Rainsford at [78].”

356.On appeal, the Federal Court of Australia (comprising Siopis, Besanko & McKerracher JJ) opined that Yates J had considered the question of provision of a service “in detail, fairly and entirely accurately.”[165]

357.The following points may be noted from Yates J’s judgment:

(a)  The Court interpreted section 24(1) broadly to give effect to the objects of the Act.  This is in line with the purposive approach advocated in Cheung Kwun Yin.

(b)  On the meaning of “service”, the Court adopted its ordinary meaning notwithstanding the inclusive definition in section 4 of the Act (which is similar to our section 27(2)) and accepted that the word is apt to cover activities that are helpful and beneficial.  This may be contrasted with the special meaning adopted by the English courts in Amin, Farah and Gichura dictated by special context of the English anti-discrimination legislations.

(c)  The Court recognised a dual characterisation of police functions and emphasized the need to focus on the position of the person alleging discrimination in order to determine whether services had been relevantly involved. 

(d)  On the facts of that case, the Court held that the police did not provide service to the complainant when pursuing and arresting him, maintaining custody over him or dealing with his bail application.

358.In my view, (a) to (c) underlie the Australian approach which led to (d). 

359.Sundberg J of the Federal Court of Australia adopted the same approach in Rainsford v Victoria (2007) 167 FCR 1 (cited in Yates J’s quotation above):

“73. Counsel for the State suggested that the touchstone for service should be whether the act involves helpful or beneficial activity: IW 191 CLR at 11 per Brennan CJ and McHugh J. I accept that this is a useful test, but in a qualified way. Most activities are helpful to someone. That in itself does not make them services. The question must be whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs...

...

76.  ... The two activities complained of by Mr Rainsford are, in effect, first, the transportation of prisoners between prisons and between a prison and court and, second, the accommodation of prisoners in cells within the prison system... So identified, I am of the view that neither constitutes a service for the purpose of the DDA [ie s 24 of the Disability Discrimination Act 1992 (Cth) which is similar to our s 27].

77.  At [74] I postulated what would happened had no transport been available to prisoners. The question is entirely hypothetical since transport is an inherent part of incarceration. Prisoners on remand must attend court for their hearings. Prisoners in low-security prisons who are re-classified must be moved to higher-security prisons. The prison system simply could not function without prison transport. It is an artificial use of the word services to apply it to a fundamental integer of a system over which those affected have no or almost no control.

78.  The accommodation of prisoners in cells within the prison system is similarly an inherent part of incarceration.  Prisoners must be housed somewhere within the prison system and that this is so demonstrates that for a prisoner to have a cell is not a helpful or beneficial activity so far as the prisoner is concerned.  In so far as there is choice in the allocation of prison cells, it is a purely administrative and prison management matter.  It does not, of itself, provide prisoners with a benefit.  Rather, it is better described as being ‘part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services’, to adopt the words of Underwood J in Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner [2003] TASSC 27; (2003) 11 Tas R 324 at 341.”

360.Brennan CJ and McHugh J of the High Court of Australia similarly explained in IW (at pp 11 & 16-17) that:

“The term ‘services’ has a wide meaning. The Macquarie Dictionary relevantly defines it to include ‘an act of helpful activity’; ‘the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyances’; ‘the organised system of apparatus, appliances, employees, etc, for supplying some accommodation required by the public’; ‘the supplying or the supplier of water, gas, or the like to the public’; and ‘the duty or work of public servants’. But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion ... to approve the use of premises for use other than as a shop.

...

... The fact that the public or a section of the public benefits from the operation of an activity or the execution of a process of a council does not necessarily mean that the council provides a service for the purposes of the Act. To succeed in a claim under s 66K(1)(a) of [the Equal Opportunity Act 1984 (WA)],[166] the aggrieved person must establish that he or she has been refused a service that the alleged discriminator provides or would provide to another person in the same circumstances or circumstances that are not materially different.

...

In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides.  The appellant does not assert, and the Tribunal did not find, that the relevant service which the City provides was the consideration of an application for approval.  There was clearly no refusal to provide such a service.  Rather, the appellant asserts that it was the refusal to approve the application that was the refusal of the service which the Council provided.  However, the City did not provide any service of giving approvals.  Conversely, it did not provide any service of refusing approvals.  The Council, acting on behalf of the City, merely had a duty to consider applications, and a discretionary power to refuse or approve those applications unconditionally or on conditions.”

361.Other Australian authorities in the same vein include:

(a)  Mariani v NSW Police Force, State of NSW [2013] NSWADT 35, wherein the Administrative Decisions Tribunal ruled (at §87) that the initial handcuffing, cautioning, questioning and arrest of the complainant, the conveyance of the complainant by police vehicle to a police station, the questioning of the complainant in custody, the decision to apply for an apprehended violence order against the complainant, the decision to charge and to refuse him bail initially, attendance at the complainant’s home to enquire about compliance with bail conditions and the entry of information into the police database all did not involve the provision of a service.

(b)  Patrick v State of South Australia (No 2) [2009] SAEOT 1, wherein the Equal Opportunity Tribunal of the District Court held that the police was not providing a service to the complainant when arresting and holding her in custody. 

(c)  Secretary of the Department of Justice and Industrial Relations v Anti-Discrimination Commissioner (2003) 11 TAS R 324, wherein the Supreme Court of Tasmania decided that the Director of Public Prosecutions was not providing a service when he decided not to prosecute a male carer who had allegedly sexually assaulted a child under his care. 

362.In my view, the following Australian cases have taken the Australian approach to a different level. 

(a)  In Mohamed, the majority of the Court of Appeal of the Supreme Court of New South Wales (comprising Spigelman CJ and Basten JA) held (at §49) that:

“Conduct of police officers with respect to a request for assistance in relation to possible criminal activity, where protection of persons or property may be required, can involve the refusal or provisions of ‘services’ for the purpose of s 19 of the Anti-Discrimination Act.”

In coming to its decision, the Court took into account the inclusive definition of “police services” in section 6(3) of the Police Act 1990 (NSW) (see §31) and English authorities such as Farah and Gichura (see §§39, 41-42 & 45). 

(b)  Sully J of the New South Wales Supreme Court came to a similar conclusion in Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 by reference to section 6(3) of the Police Act 1990 and held (at §44) that:

“As soon as the late Mr Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr Russell was subsequently handled; or who witnessed the way in which Mr Russell was handled; became thereupon charged with a public duty to provide to the late Mr Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, ‘whether arising from criminal acts or in any other way’.”

363.Unlike the other Australian authorities cited, Mohamed and Russell tell us positively what “services” within the context of the relevant anti-discrimination legislation should entail. 

364.In canvassing the scope of the definition of “services”, Basten JA said this in Mohamed:

“29. In order to understand the operation of the provision, it is necessary to have regard to the definition of ‘services’, which is to be found in s 4(1) of the Anti-Discrimination Act...[167]

30. The definition is inclusive (and not exclusive) and operates by way of description rather than precise identification of the content of the term ‘services’. Taken in the abstract, there is no reason to suppose that the police force does not at least in some of its functions, provide services. Indeed, for much of its recent history, the New South Wales Police Force has been known as the New South Wales Police Service.

31. Section 6 of the Police Act deals with the ‘mission’ and functions of the New South Wales Police Force, stating in part:

6. Mission and functions of NSW Police Force

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions:

(a) to provide police services for New South Wales,

...

(3) In this section:

Police services includes:

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

...

(6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.

32. The term ‘services’ is not otherwise defined in the Police Act. There is no suggestion that, in referring to particular kinds of services, s 6(3) is using the term in any way other than its ordinary meaning. Because, as will be seen below, the term ‘services” is also used in the Anti-Discrimination Act in its ordinary undefined sense, it would be necessary to find either by way of textual analysis or on the basis of some other principle of statutory construction, a reason for not according the term the same meaning in each Act, so far as is relevant to that Act.”

365.Although the Police Force Ordinance, Cap 232 (“PFO”) in Hong Kong does not carry any definition of “police services”, section 10 thereof similarly provides that one of the duties of the force is “to take lawful measures for ... preventing injury to life and property”.  Thus, Mohamed and Russell remain instructive for the local context.

366.The fact that English authorities (especially Farah) were referred to in many of the Australian authorities cited does not mean that the Australian courts have adopted the English approach. As Brennan CJ and McHugh J explained in IWat pp 14-15:

“In Farah v Commissioner of Police of the Metropolis, the English Court of Appeal held that those duties of a police officer that involve the assistance to or protection of the public constitute ‘service to the public’ for the purpose of the Race Relations Act 1976 (UK). Otton LJ said:

‘[P]olice officers perform duties in order to prevent and detect crime and to bring offenders to justice. They are also vested with powers to enable them to perform those duties. While performing duties and exercising powers they also provide services in providing protection to the victims of crimes of violence.’

Otton LJ also said that, like Templeman LJ in Savjani, he would ‘be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act’. With respect, while we think that Farah was rightly decided, this is not the correct approach in determining questions under the Equal Opportunity Act 1984 (WA). In a case like Farah, the first question is whether the activity which the person refused to provide is capable of being regarded as a service which that person or his or her employer provides to other citizens. If it is, and a holding to that effect would promote the objects of the Act, then the court or tribunal should hold that it is a service within the meaning of the Act. But, given the artificial definitions of discrimination in the Act and the restricted scope of their applications, the court or tribunal should not approach the task of construction with any presumption that conduct which is discriminatory in its ordinary meaning is prohibited by the Act. The Act is not a comprehensive anti-discrimination or equal opportunity stature. The legislature of Western Australia, like other legislatures in Australia and the United Kingdom, has avoided used of general definitions of discrimination ... Those legislature have also deliberately confined the application of anti-discriminatory legislation to particular fields and particular activities within those fields.

No doubt most anti-discrimination statutes are legislative comprises, resulting from attempts to accommodate the interests of various groups such as traders, employers, religious denominations and others to the needs of the victims of discrimination.  As the evils of discrimination in our society have become better understood, legislatures have extended the scope of the original anti-discrimination statutes.  Many persons think that anti-discrimination law still has a long way to go.  In the meantime, courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconception as to their scope.  But when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its object.  Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory.”

367.On the other hand, I would treat the decision of Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265 with circumspection.  In that case, the police attended Mr Whitfield’s residence following complaints from neighbours and demanded him to leave.  The Administrative Decisions Tribunal accepted (at §86) that the police had been providing a service to Mr Whitfield within the meaning of that term in section 19 of the Anti-Discrimination Act 1977 (NSW) when demanding him to move out.  With respect, I have difficulty in seeing Mr Whitfield as a “potential beneficiary” in the circumstances of that case (see §85) and the Tribunal might have applied (wrongly in my view) the English approach(§§81 & 85).

368.Confining our present discussion to “services”, section 27 of the RDO (in my view) mandates that to fall within its scope, the activity complained of must be both (i) a service provided by the “first-mentioned person” to the public or a section of the public; and (ii) a service sought to be obtained or used by the “second-mentioned person”.  This is a matter of plain construction of the words used.

369.Section 27(2) merely provides examples of the facilities and services referred to in section 27(1) without attempting to redefine those terms.  I do not think the subsection has the effect of displacing the natural and ordinary meaning of “service”. 

370.The Shorter Oxford English Dictionarydefine “service” as: Provision of a facility to meet the needs or for the use of a person or thing; Assistance or benefit provided to someone by a person or thing; An act of helping or benefiting another, an instance of beneficial, useful, or friendly action; The action of serving, helping, or benefiting another, behaviour conducive to the welfare or advantage of another.  Such dictionary meaning is in line with the understanding of the Australian courts (see Robinson at §177 and IW at p 11).  I accept that the term contemplates something beneficial or helpful (see also Watkin at §31). 

371.The requirement that the activity complained of must be a public service excludes purely private or domestic arrangements.[168]  In relation to complaints against the police, it is usually not difficult to determine if the activity complained of constitutes public service having regard to the duties of the police force set out in section 10 of the PFO:

(a)   preserving the public peace;

(b)   &preventing and detecting crimes and offences;

(c)   preventing injury to life and property;

(d)   apprehending all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exists;

(e)   regulating processions and assemblies in public places or places of public resort;

(f)   controlling traffic upon public thoroughfares and removing obstructions therefrom;

(g)   preserving order in public places and places of public resort, at public meetings and in assemblies for public amusements, for which purpose any police officer on duty shall have free admission to all such places and meetings and assemblies while open to any of the public;

(ga)   assisting coroners to discharge their duties and exercise their powers under the Coroners Ordinance (Cap 504); (Added 27 of 1997 s. 75)

(h)   assisting in carrying out any revenue, excise, sanitary, conservancy, quarantine, immigration and alien registration laws;

(i)   assisting in preserving order in the waters of Hong Kong and in enforcing port and maritime regulation therein; (Amended 76 of 1999 s. 3)

(j)   executing summonses, subpoenas, warrants, commitments and other process issued by the courts;

(k)   exhibiting informations and conducting prosecutions;

(l)   protecting unclaimed and lost property and finding the owners thereof;

(m)   taking charge of and impounding stray animals;

(n)   assisting in the protection of life and property at fires;

(o)   protecting public property from loss or injury;

(p)   attending the criminal courts and, if specially ordered, the civil courts and keeping order therein;

(q)   escorting and guarding prisoners; and

(r)   executing such other duties as may by law be imposed on a police officer.

372.However, the fact that the police may be performing its functions and duties in the public interest does not mean that a “service” in terms of section 27 is involved.  This is the “dual classification” of government functions recognised in the Australian authorities.  Given the second requirement, one cannot assume that in carrying out its duties to the public, the police are necessarily providing a service to the complainant within the context of section 27.

373.In this regard, it should be noted that whilst the Australian courts have held that police activities involving protection of persons or property may amount to provision of services, that is not the test for “services” (as suggested by the defendants).  The Courts in Mohamed and Russell focused on that particular function of the NSW Police Force because that was relevant to the disputes before them.  But prevention of injury to life and property is only one of the functions provided in section 6 of the Police Act 1990 (NSW).  Likewise, our section 10 of the PFO contains other facets of police duties that may entail the provision of “services”.  There is no reason to confine the general meaning of “services” in relation to police activities to just prevention of injury to life and property.

374.The parties in this case (including the EOC) are eager to formulate a test fit for universal application.  In my view, it is unhelpful to determine in the abstract whether any given police activity may amount to the provision of “service” in terms of section 27 because circumstances of each case vary a lot.  Taking police investigation as an example, Basten JA has pointed out in Mohamed (at §19) that the term has no specific legal meaning and can cover a range of circumstances.  In my view, it is better to canvass the scope of section 27 with reference to the circumstances of the specific complaint in question. 

375.It is therefore imperative for those invoking the section to precisely define the “services” that epitomise his complaints.  As McHugh J of the High Court of Australia said in Waters v Public Transport Corporation [1991] 173 CLR 349 at p 405:

“Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination.”

376.For these reasons, I shall refrain from discussing in the abstract whether particular police activities such as stop and search, pursuit and arrest, detention, investigation and prosecution can or cannot amount to the provision of services under section 27.

M7.  On burden of proof [Issue 2]

377.Mr Blanchflower invites me “to regulate by way of guidelines the burden of proof in RDO cases so that once a claimant has established a prima facie case of racial discrimination, the Court will require an adequate explanation and the absence of which, or the rejection of such explanation, will result invariably in a finding of race discrimination.”  (see §277 of the PCS)

378.In §§274-290 of the PCS, he stresses “the difficulties faced by plaintiffs proving discrimination” and argues that “[u]nder s 73E(5)(a) DCO the District Court is not bound by rules of evidence, and (6) it can modify any rule of law or practice as to proof of any matter.  We therefore submit that the Court should adopt the recommendations of the CERD Committee.”

379.Both Mr Wong and Dr McCoy are against his suggestion.

380.Section 73E of the DCO (insofar as it is relevant) provides that:

“(1)  The Rules Committee may make rules regulating the practice of the Court in the exercise of its jurisdiction under the Race Discrimination Ordinance (Cap 602) and the forms of proceedings therein.

...

(5)  The Court in the exercise of its jurisdiction under the Race Discrimination Ordinance (Cap 602) –

(a)  shall not be bound by the rules of evidence...

(6)  Subject to subsection (5), any rules made in accordance with the provisions of this section may be made so as to modify, with respect to proceedings in the Court, any rule of law or practice as to the proof of any matter or as to the reception or admissibility of any matter in evidence.”

381.Thus, the rule making power under section 73E is reserved for the Rules Committee (established under section 17), which comprises the Chief Judge of the High Court, three District Judges, a barrister, a solicitor and the Registrar of the District Court.  It is pretty obvious that I am not the Rules Committee and do not possess such power.

382.Similar argument was raised and rejected by the District Court before.  In Yeung Chung Wai v St Paul’s Hospital [2006] 3 HKC 521, the plaintiff was concerned that it was unusual to find direct evidence of discrimination and proposed that “once the plaintiff establishes knowledge of the protected act on the part of the Hospital, the evidential burden shifts to the Hospital to give an adequate or satisfactory explanation for the prohibited act”.  In rejecting the proposal, HH Judge Marlene Ng noted that the courts in Hong Kong have consistently applied the following judgment of Neill LJ in King v Great Britain-China Centre [1992] ICR 516:

“... From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination... (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal... (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of difference in race would often point to the possibility of racial discrimination. In such circumstances the tribunal would look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put in North West Thames Regional Health Authority v Noone [1998] 1 ICR 813, 822, ‘almost common sense.’ (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”

383.The learned Judge observed (at §27) that:

“The above approach does not shift the evidential burden of proof. It is nothing more than a simple, pragmatic and common sense exercise in assessing and weighing evidence on the balance of probabilities with the burden of proof always and firmly on the plaintiff.”

384.In the English case of Bahl, Elias J said further (at §85) that:

“... Where there is a finding of less favourable treatment, a tribunal may infer that discrimination was on the proscribed grounds if there is no explanation for the treatment or if the explanation proffered is rejected: see the comments of Neill LJ in King v Great Britain-China Centre [1991] IRLR 513, approved by the House of Lords in Glasgow City Council v Zafar [1998] IRLR 36 (Neill LJ in fact said that the inference may be made where the explanation was inadequate or unsatisfactory, but it is our view clear, and in accordance with the principle in Zafar,... that he was envisaging an explanation which was inadequate or unsatisfactory in the sense that the tribunal did not accept it as genuine, not in the sense that it was a genuine, non-racial explanation, albeit that it was unreasonable because it resulted in unreasonable treatment).”

385.In the present case, Mr Blanchflower has attempted to repackage the argument by means of §24 of General Recommendation XXX adopted by the UN Committee on 1 October 2002 and §15 of the recommendations for Australia dated 14 April 2005 in argument.  The former recommended that:

“... the States parties to the Convention, as appropriate to their specific circumstances, adopt the following measures:

...

24. Regulate the burden of proof in civil proceedings involving discrimination based on race, colour, descent, and national or ethnic origin so that once a non-citizen has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for the differential treatment.

...”

And the latter stated that:

“The Committee notes with concern that it has proved difficult for complainants, under the Racial Discrimination Act, to establish racial discrimination in the absence of direct evidence, and that no causes of racial discrimination, as distinct from racial hatred, have been successfully litigated in the Federal courts since 2001 (arts 4 and 6). The Committee, having taken note of the explanations provided by the delegation, invites the State party to envisage regulating the burden of proof in civil proceedings involving racial discrimination so that once an alleged victim has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for differential treatment.”

386.However:

(a)  The UN Committee only called upon States Parties to adopt the measures enumerated in the former “as appropriate to their specific circumstances”. 

(b)  I do not see how the latter recommendation directed at Australia can be transposed to Hong Kong.

387.The plaintiffs’ efforts were futile.  I agree with the observations of Judge Ng and Elias J and decline to usurp the burden of proof in racial discrimination claims.  It remains for the plaintiff to prove his case on the balance of probabilities as in other civil cases.

M8.  On proof of direct discrimination

388.It is common ground that the proof of direct discrimination entails two questions:

(a)  whether the discriminator has treated the complainant less favourably than the discriminator treats or would treat others (“the comparator question”); and

(b)  whether the less favourable treatment was on the ground of the race of the complainant (“the causation question”).

389.In M (at §45), Tang VP (as he then was) said in relation to the similarly worded Disability Discrimination Ordinance, Cap 487 (“DDO”) that:

“I am also of the view that as a matter of plain construction, s 6(a) and s 8 [of the DDO, which is almost identical to ss 4(1)(a) and 8(5) of the RDO] require the court to compare the treatment of the complainant with the treatment of a suitable comparator (the comparator question) and in the event that less favourable treatment is established the court should decide whether the less favourable treatment was given ‘on the ground’ of the complainant’s disability (the causation question). The comparison under s 8 ‘shall be such that the relevant circumstances in the one case are the same, or not materially different, in the other.’ The comparator question and the causation question are separate questions ...”

390.So, the conventional wisdom is to take a two-stage approach and consider the comparator question first.

391.In that regard, section 8(5) of the RDO provides that:

“A comparison under section 4(1) of the case of a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case are not the same, or not materially different, in the other.”

What is contemplated is therefore a comparison between the treatment received by the complainant and how an appropriate comparator was treated or would be treated.  The comparator can be an actual comparator or a hypothetical comparator.  In either case, the relevant circumstances of the comparator must be either the same or not materially different from that of the complainant save, of course, that the comparator does not belong to the same racial group.

392.In §26 of the RASOC, the plaintiff identified the appropriate comparator as “a hypothetical 11 year old of similar height and build to him who spoke fluent Cantonese and was of the Chinese ethnic race”.  This was repeated in Mr Blanchflower’s opening (at §5.29). 

393.However, Mr Blanchflower has asked me in his closing submissions (at §262) “to compare the police conduct in relation to Mdm Chan’s complaint of Arjun and vice versa”, making reference to Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337. 

394.In Shamoon, Lord Nicholls of the House of Lords said this:

“8. No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.

9. The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the 1975 Act which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.

10. I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.

11. This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.

12. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case.”[169]

395.The defendants have agreed to the plaintiff’s original formulation of the identity of the comparator (see §194 of the DCS).  It is too late for Mr Blanchflower to reformulate the plaintiff’s claim in his closing submissions by means of a different comparator. 

396.In any event, I agree with Mr Wong that the relevant circumstances of Arjun and Madam Chan are materially different making it inappropriate to compare their treatments.  Aside from their age and physical attributes, their differences include (i) the fact that one had visible injury whilst the other had not; and (ii) the fact that Arjun admitted to having bumped into Madam Chan whereas there was no admission on the part of Madam Chan of assaulting Arjun.

397.Mr Wong is confident that no matter which approach I adopt for this case, the conclusion will be in the defendants’ favour.  In view of the pleaded case of the plaintiff, I shall stick with the conventional approach.

398.As for the causation question, all parties agree to apply the “but for” test.  In Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459 at 476A-E, the Court of Final Appeal explained in the context of the similarly worded Sex Discrimination Ordinance, Cap 480, that:

“In determining whether a particular arrangement involves sex discrimination, the Court of Appeal correctly adopted the ‘but for’ test enunciated by Lord Goff considering the Sex Discrimination Act 1975 in R v Birmingham City Council, ex p Equal Opportunities Commission [1989] 1 AC 1155 at p 1194A-C:

‘There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned ... is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex.’

This test was applied in James v Eastleigh Borough Council [1990] 2 AC 751 where Lord Bridge pointed out that the test is an objective one (at p 765D).”

399.As to the relevancy of the intention or motive of the defendants to discriminate, Lam J (as he then was) pointed out in M (at §§100-107) that the challenges made in Chan Wah and the authorities cited therein (ie ex p Equal Opportunities Commission and James) were all to an existing system rather than a specific decision by a person or a corporate body against an individual.  His Lordship observed that subsequent English authorities in relation to challenges in respect of specific decision against an individual show that one must have regard to the mental process of the alleged discriminator in those instances.

400.Lam J’s point is illustrated by the vivid example given by Lord Phillips in Regina (E) v Governing Body of JFS[2010] 2 AC 728 at §21:

“A fat black man goes into a shop to make a purchase. The shopkeeper says ‘I do not serve people like you’. To appraise his conduct it is necessary to know what was the fact that determined his refusal. Was it the fact that the man was fat or the fact that he was black? In the former case the ground of his refusal was not racial; in the latter it was. The reason why the particular fact triggered his reaction is not relevant to the question of the ground upon which he discriminated.”

To the above analysis must be added the scenario, mandated by our section 9, that if the shopkeeper refused to serve on both grounds, the refusal would be taken as racial.

401.In a lecture delivered at the Employment Lawyers Association on 10 July 2013, Lady Hale explained that :

“I was one of [the majority in the JFScase]. My main concern was to preserve the principle, established in the case of Birmingham City Council v Equal Opportunities Commission [1989] AC 1155 and maintained in the case of James v Eastleigh Borough Council [1990] 2 AC 751, that motivation or purpose was irrelevant: one can act in a discriminatory manner without meaning to do so or realising that one is. The question was simply (as Lord Phillips put it) ‘the factual criteria that determined the decision made by the discriminator’. It did not matter why he had chosen those criteria if in fact they fell within the prohibited grounds. It was only necessary to look into the mind of the alleged discriminator if the factual criteria for his decision were not clear. Lord Phillips gave the example of a fat black man who goes into a shop to make a purchase and is told by the shopkeeper, ‘I do not serve people like you’: it would then be necessary to know which fact had led to the refusal – the fact that he was fat or the fact that he was black (or the fact that he was a man)...”

402.In the present case, Mr Wong submits (at §200 of the DCS) that insofar as the plaintiff has satisfied the comparator question, it would be necessary to explore the mental processes of the relevant officers so as to determine the basis on which they had treated Arjun as they did.  I tend to agree with him.  Take the arrest as an example, the factual criteria for PC Hung to arrest Arjun was by no means clear.  It is necessary to look into the mind of PC Hung in order to determine if his criteria fell within the prohibited ground. 

M9.  Summary of the applicable legal principles

403.As the plaintiff is invoking section 27 of the RDO, it is important that he brings himself within the scope of that section.  It behoves him to identify with precision the “services” that epitomise his complaints. 

404.As a matter of plain construction, section 27 is concerned with services that are both a “service” provided by the “first-mentioned person” to the public and a “service” to the “second-mentioned person”. 

405.The term “service” should be understood in its natural and ordinary meaning, which means something beneficial or helpful.  Given the dual classification of government activities, the fact that the Government (as the “first-mentioned person”) is providing a service for the public good does not mean that a “service” is relevantly involved in terms of section 27.  One cannot transform what is ostensibly not a service to the “second-mentioned person” into one.

406.To prove direct discrimination, the complainant has to overcome both the comparator question and the causative question.  In terms of the comparator question, one asks whether the alleged discriminator has treated the complainant less favourably than he treats or would treat others.  The suitable comparator in this case, as pleaded by the plaintiff, is “a hypothetical 11 year old of similar height and build to [Arjun] who spoke fluent Cantonese and was of the Chinese ethnic race”.  If less favourable treatment is established, then one moves on to consider whether the less favourable treatment was on the ground of race (ie the causative question). 

407.Only if the complainant manages to prove his case on the balance of probabilities will he succeed in establishing racial discrimination under section 27. There is no shifting of the burden of proof.

N.   Did the police discriminate against Arjun in breach of section 27 of the RDO? [Issue 4]

408.In his final submissions, Mr Blanchflower focuses his argument on racial discrimination on four particular aspects: (i) racial profiling and institutional racism of the police; (ii) discrimination at the MTR station; (iii) discrimination at the police station; and (iv) failure to investigate Arjun’s complaint after his release.  I shall adopt his scheme in the following discussion.

N1.  Racial profiling and institutional racism of the police?

409.In §§295-311 of the PCS, Mr Blanchflower says there is evidence of racial profiling and institutional racism in this case. 

410.First, he prays in aid the MacPherson Report and some local academic studies[170] and submits that:

(a)  The MacPherson Report “is relevant to the context in Hong Kong bearing in mind the close relationship between the two police forces and similar training methods.”[171] “So while this case is not about indirect discrimination, the findings of such a culture in the Metropolitan Police Services is strikingly similar to the attitude displayed by” the officers in this case.[172]  “If it existed in that police service, it can exist in the Hong Kong Police Force.”[173]

(b)  “... Hong Kong society does have a problem with the racial stereotyping and profiling of South Asians.  The EOC study indicates that the misconceptions about the naughtiness of South Asian children and police experiences largely similar to what Arjun has personally experienced.  The Hong Kong Unison report corroborates the EOC findings that because of cultural misunderstandings Hong Kong Chinese persons are less likely to befriend or wish to be associated with South Asians.”[174]

411.Mr Wong has urged me to disregard those materials or place no weight on them.[175]

412.In my view, there is a fundamental objection in giving the MacPherson Report or the local studies any probative value. Insofar as the plaintiff is treating them as expert evidence, he is in breach of Order 38, rule 36(1) of the Rules of the District Court, Cap 336H (“RDC”) which provides that: 

“Except with the leave of the Court or where all parties agree, no expert evidence may be adduced at the trial or hearing of any cause or matter unless the party seeking to adduce the evidence – (a) has applied to the Court to determine whether a direction should be given under rule 37 or 41 (whichever is appropriate) and has complied with any direction given on the application.”

413.The need for expert evidence in racial discrimination cases is highlighted in the following passage taken from the Canadian case of Johnson (at  p 32):

“... expertise in racism and expertise in discrimination are two different things. Racism is a social phenomenon, discrimination a legally prohibited act. Boards are presumed to possess a certain expertise in the law of discrimination and human rights, but do not necessarily possess expert knowledge in the practices and impact of racism beyond a basic understanding of their dynamics ... Racisms takes many guises, exists in many different environments and it is studied by a great variety of social scientists using various methodologies. A given board of inquiry is unlikely to be up to date on all this literature...”

414.During the interlocutory stage, the plaintiff sought leave to adduce the expert evidence of Professor Bowling at trial.  That was met with the objection of the defendants and I ruled against the plaintiff.  Upon the plaintiff’s appeal, the Court of Appeal confirmed my ruling and said the following:

“23. ... Insofar as the Plaintiff intends to establish that there is a prevalent phenomenon of racial profiling in Hong Kong towards South Asian as a step in asking the court to draw the inference that the actions of the police officer involved were ‘contaminated by racist stereotyping and prejudice’, he could (subject to expert directions being given and complied with) invite the court to read the articles or studies cited by Professor Bowling. It could be said that the citation of articles suffer from the drawback that no cross-examination can be conducted in respect of the same. However, Professor Bowling, not being the author of any of these articles, would not be able to answer questions which should be directed towards their authors. With respect, Professor Bowling’s evidence on racial profiling does not add much to what had been set out in those articles and studies. The court does not need the assistance from the professor in reading and understanding those articles and studies.

...

27. There is no question of the trial being unfair to the Plaintiff if he is not allowed to adduce the opinion of Professor Bowling at the trial. A fair trial does not require the court to allow a party to put in whatever evidence he wishes to put in. On the question of racial profiling, subject to the question of expert directions and fair opportunity being given to the Defendants to respond to the same, there is no reason why the Plaintiff cannot put in whatever articles or studies on the relevant position in Hong Kong as evidence.”[176]

415.The plaintiff did not pay heed to the Court of Appeal’s advice and never applied for expert directions.  In other words, the plaintiff has no leave of the court or consent from the defendants to adduce the MacPherson Report and the local studies as expert evidence.  The rule restricting expert evidence is not just a matter of procedure.  It is concerned with admissibility of evidence and substantive fairness at trial.  As a result of the plaintiff’s failure to comply with O 38, r 36(1), the defendants have been deprived of a fair opportunity to adduce their own expert evidence (which may be in the form of articles or studies).  Fairness dictates that the plaintiff should not be allowed to rely on the MacPherson Report and the local studies as expert evidence.

416.Under section 73E(5) of the DCO:

“The Court in the exercise of its jurisdiction under the Race Discrimination Ordinance (Cap 602) –

(a) shall not be bound by the rules of evidence; and

(b) may inform itself of any matter in such manner as it sees fit, with due regard to –

(i) the rights of the parties to the proceedings therein to a fair hearing;

(ii) the need to determine the substantial merits of the case; and

(iii) the need to achieve a prompt hearing of the matters at issue between the parties.”

417.At the interlocutory stage, the defendants applied to strike out the plaintiff’s hearsay notice on the local studies.  Mr Blanchflower conceded at the hearing of the application that the local studies had no probative value to this case.  On that basis, I allowed the studies to remain as I took the view that the information contained therein would inform the court of the broad social context of Hong Kong.[177] In my view, Mr Blanchflower has gone beyond his concession by invoking the findings in these studies as evidence against the defendants. 

418.In any event, I do not think the MacPherson Report or the local studies would avail the plaintiff.

419.The submission that the Metropolitan Police Services of the UK and the Hong Kong Police Force have a “close relationship” and that they share “similar training methods” is without basis.  The plaintiff has not led evidence on the training method of either force or on the relationship between the two.

420.The evidence that led Sir William MacPherson to conclude that there was institutional racism or unwitting racism in the Metropolitan Police Services was summarised in §6.45 of the report.  That included serious deficiencies in the investigation of Stephen Lawrence’s racist murder (more particularly set out in Chapter 46 of the Report), disparity in “stop and search figures” in the UK which pointed to racist stereotyping of the police, significant under-reporting of “racial incidents” which was evidence of inadequate response of the police and a lack of confidence in victims to report incidents, and a failure in the relevant police training.  Corresponding studies have not been conducted of the Hong Kong Police.  There is no basis for the plaintiff to say that the behaviour of the officers involved in this case is “strikingly similar” to the attitude of the Metropolitan Police Services.

421.Mr Blanchflower has specifically invoked §3.32 of the EOC study and likens it to the experience of Arjun.  That paragraph stated that:

“Some Chinese participants felt that South Asian children were naughty; they were rowdy, and they played and ran liberally in parks or the public areas in housing estates. Despite their activities might be causing nuisance to people in the surrounding, their parents allowed them to continue. Chinese participants felt that South Asians were more lenient than Chinese parents in disciplining their children.”

422.The EOC study only surveyed 107 participants including 61 Chinese (see p 6).  I do not see how the plaintiff may generalise the experience of “some” of those 61 Chinese participants into a general problem of the Hong Kong society.  More importantly, the plaintiff has omitted to explore in any detail in cross-examination the attitude of the relevant police witnesses towards South Asian children.  Typically, the plaintiff merely put to the officers that their actions were racially motivated.  The following exchanges at the end of DSIP Tang’s cross-examination serves as an example:[178]

Q.  And perhaps as a matter of general statement, you and your officers discriminated against Arjun contrary to the Race Discrimination Ordinance in the manner in which you failed to provide him with the policing services required.

A.  I disagree totally.

Q.  And your actions of you and your officers against Arjun were on account of his race.

A.  Disagree.

423.It is interesting to note that in terms of provision of goods, services and facilities in Hong Kong, the EOC study concluded (at §3.41) that:

“For access to services and facilities, apparently there is little discrimination that is institutional. Ethnic minorities, like local Chinese, enjoy similar access. However, due to language problems, some of them will encounter problems in getting the required services on time. Needless to say, there are resource implications in providing adequate and timely translation services for ethnic minorities who do not speak Chinese. On the basis of equal treatment, it is believed that local Chinese will face similar problems if they cannot speak Chinese...”

424.The conclusion of the Hong Kong Unison study was very general: wide discrepancy in the level of acceptance between ethnic groups, low degree of acceptance towards Pakistanis, and ethnic minorities not accepted as Hong Kongers (see section 6 of the report).  I do not see how the plaintiff can relate such general comments to the circumstances of this case.

425.In Crabtree and Wong’s study, the authors noted “notable socio-economic difference between the resident Indian community in HKSAR and that of the Pakistani one” (at p 496) and focused their study on the Pakistani community.  It is not known how the plaintiff may transpose the findings about the local Pakistani community to Arjun who is Indian by race.

426.And it does not appear that Ms Rajwani’s case study was based on any empirical study.  The author specifically warned in footnote 14 that she had selected her examples “to demonstrate both the blatant and subtle forms of racial discrimination in Hong Kong...”  There was otherwise no indication of the degree of prevalence of racial discrimination in Hong Kong.

427.All in all, it is not sufficient for the plaintiff to point to some local studies to say that racial discrimination exist in Hong Kong as it does in other multi-racial societies.  As Mr Wong puts it: “Even if, which is not accepted, a majority of people, or a majority of police, in Hong Kong is racist, that does not mean that PC Hung, or SPC Kwan, or SSGT Garr, or WDPC Yuen, or DSIP Tang, was or was likely to be, consciously or subconsciously.”

428.Secondly, Mr Blanchflower submits in §299 of the PCS that the following is evidence of subconscious racism: (i) “[SPC Kwan] was of the view that Arjun was a foreigner”; (ii) “SSGT Garr’s evidence that he would always require an Indian interpreter for an arrested Indian person”; (iii) “WDPC Yuen’s evidence that she would assume all Indians would have Hindi or Punjabi as their mother tongue”; and (iv) “[DSIP Tang] asserted that Arjun’s evidence was an exaggeration but without being able to explain why he believed that.”

429.He also characterises the following conduct as racial stereotyping: (i) “[SSGT Garr’s] assumption that all Indians require an interpreter” (see §302 of the PCS); and (ii) “Instead of being allowed to be treated as a victim of a crime, because English was inconvenient to PC Hung and SPC Kwan, [Arjun] was arrested for the purpose of securing a Punjabi interpretation services” (see §304 of the PCS).

430.It is not apparent that Mr Blanchflower possesses the expertise to say what subconscious racism or racial stereotyping is.  In any event, I do not agree with his interpretation of the evidence.

431.SPC Kwan was merely stating a fact when he said Arjun was a “foreigner” (in the sense that Arjun was not Chinese).  The observation did not carry any racial connotation.  The relevant evidence is as follows:[179]

Q. Okay. So at the time in the MTR station Arjun was speaking in English, correct?

A. I did hear him speaking in English.

Q. His mother was speaking in English.

A. She did speak in English.

Q. Arjun never spoke in Cantonese.

A. That’s correct.

Q. At all times PC Hung and yourself spoke to Arjun and his mother in English or simplified English.

A. Yes.

Q. In 22 years of being a constable, do you know how to administer the caution in simple English?

A. No.

Q. You could not give a caution in simple English to Arjun on January 6^th?

A. Correct.

Q. PC Hung couldn’t give a simple caution in simple English?

A. Correct. He only declared arrest in simple English.

Q. So were you concerned that Arjun was given information about his legal rights in a language that he didn’t understand?

A. That’s why he was declared arrest in English only.

Q. But what about the caution, which is the legal rights?

A. Yes.

Q. You were concerned?

A. Yes.

Q. And did nothing about it.

A. Because at that time he was a foreigner.

Q. How do you know he was a foreigner?

A. I could tell from his appearance.

Q. His colour of his skin?

A. Yes.

Q. Did you know that he was born in Hong Kong?

A. No.

Q. Did you bother to ask?

A. I don’t remember.

Q. At any time did you ask to check his Hong Kong permanent ID card?

A. I did not.

Q. Did PC Hung?

A. I think he did.

Q. So he would know that Arjun had been born in Hong Kong; permanent resident.

A. This, I’m not sure whether he knew.

Q. Is every person who is not Chinese or has a Chinese appearance a foreigner to you?

A. Yes. 

432.It is not the evidence that SSGT Garr always require Indian suspects to have Indian language interpretation.  It is apparent from the evidence recounted above that the factual criterion adopted by SSGT Garr at the time was that Arjun was “a person who does not share a common language with the interviewer” (see §21-34 of the Force Procedure Manual and Direction 6 in Chapter 14 of the Police Manual).  This has nothing to do with Arjun’s race.

433.It is not the evidence that WDPC Yuen assumed all Indians to have either Punjabi or Hindi as their “mother tongue”. Her evidence (as set out in §3 of her witness statement) is that: “I understand that Indians may speak the dialect of [Hindi] or Punjabi and asked Mrs Singh in English whether the mother tongue of Arjun was [Hindi] or Punjabi.” 

434.DSIP Tang did offer an explanation as to why he thought Arjun was exaggerating.  In gist, he initially doubted Arjun’s complaint because the injury associated with the alleged assault did not show even after a few hours.  He later concluded that Arjun was exaggerating after watching the CCTV recording as he did not discern Madam Chan assaulting Arjun from the recording.  It is therefore wrong for Mr Blanchflower to think that DSIP Tang was unable to explain his view. 

435.It is also wrong for the plaintiff to attribute the arrest to the language barrier between Arjun and the officers.  According to PC Hung, he arrested Arjun because he “believed that Arjun had assaulted Madam Chan”.  This will be explored fully in Section O below. 

436.Thirdly, Mr Blanchflower criticizes (at §293 of the PCS) that “PC Hung did not receive any anti-discrimination training and that there are also no training guides or manuals on race relations with minority groups”. With respect, that is not quite the evidence.

437.The following evidence came out of PC Hung’s cross-examination:[180]

Q. Now, before we get, and we’re – January 6, you can confirm that in proceedings in this case for disclosure you confirmed that in the Hong Kong Police Manual, because you made an affirmation, that in respect of the manual there are no chapters on race relations and policing of minority groups.

INTERPRETER: I’m sorry, may you ask the question again?

Q. That in the Hong Kong Police Manual there are no chapters on race relations and policing of minority groups.

A. I am not clear about that.

Q. Well, Officer Hung, you made an affirmation in these proceedings in respect of the disclosure application where you confirmed that.

A. Yes.

Q. So, you’ll – that reminds you and you will – that’s correct?

A. That’s correct.

Q. And you also confirmed in your affirmation that there are – that in the Hong Kong Police Force Manual there are no chapters about standard operating procedure for the investigation and arrest of a juvenile suspect.

A. There are some procedures.  There are procedures in respect of the handling of the juvenile suspects of age 11 or age below 16.

MR WONG: Sorry, the age?

INTERPRETER: “Age of 11 or age below 16.”

A. And I would like to add something.  To summarise, so there’s all the suspects below the age 18 or the juvenile suspects.

Q. Well, why I’m asking you is that in that affirmation you confirmed – you confirmed an affirmation made by the – on behalf of the Commissioner of Police and the affirmation of the Commissioner of Police, and I’m sure your lawyers can show it to you, stated that there were no other chapters in the Police Force Manual on race relations and policing the minority groups and no standard operating procedures for the investigation of an offence and the arrest of a juvenile suspect, and you agreed with that.

A. I don’t agree.

Q. I may come back to that.  Now, January 6, 2010...

Mr Blanchflower never went back to the same topic and the affidavit mentioned in his cross-examination is not in evidence.  When Mr Blanchflower was confronted with the lacuna in his closing submission, he responded by saying that “[t]he other flipside of the coin is that there is no evidence that there is”.  With respect, since this is a point raised by the plaintiff, it is for the plaintiff to establish it by evidence. 

438.Looking at the evidence in the round, I do not accept that there is evidence of racial profiling or institutional racism in this case.  Rather, the evidence shows that the officers had responded to the needs of Arjun (who does not share a common language with the officers) as opposed to adopting a “colour blind” approach. 

439.In §6.18 of the MacPherson Report, Sir William has this to say about modern policing:

“As Lord Scarman said (Para 4.97 [in Lord Scarman’s Report into The Bixton Disorders]) there can be ‘... failure to adjust policies and methods to meet the needs of policing a multi-racial society’. Such failures can occur simply because police officers may mistakenly believe that it is legitimate to be ‘colour blind’ in both individual and team response to the management and investigation of racist crimes, and in their relationship generally with people from minority ethnic communities. Such an approach is flawed. A colour blind approach fails to take account of the nature and needs of the person or the people involved, and of the special features which such crimes and their investigation possess. As Mr Dan Crompton, Her Majesty’s Inspector of Constabulary (HMIC), helpfully said to us it is no longer enough to believe ‘all that is necessary is to treat everyone the same. ... it might be said it is about treatment according to need.’ (Part 2, Day 2, p 57).”

440.If PC Hung and SPC Kwan had harboured discriminatory views against South Asian children (as argued by the plaintiff), that should be apparent from their dealings with MW too.  After all, MW was 13 years old at the time[181] and has a South Asian complexion.  As the matter stands, there is no allegation of any discriminatory conduct in relation to MW.

N2.   Discrimination at the MTR station?

441.In §§312-325 of the PCS, Mr Blanchflower complains that Arjun was less favourably treated at the MTR station in the following respects: (i) the police failed to provide assistance to Arjun; (ii) Arjun was arrested on the ground of his race; and (iii) there was a failure to investigate Arjun’s complaint and his defence and to detect crime.

  Failure to provide assistance?

442.In relation to the first complaint, the plaintiff has identified the relevant services in the RASOC as “to assist a victim of crime through the 999 police call-centre” (at §22(1)) and “to protect the general public” (at §22(3)).  The defendants accept as a general proposition that the activity of the police in responding to requests for assistance or protection via 999 calls involves the provision of services for the purpose of section 27 (see §234 of the DCS).  The EOC also accepts that the response of the police to Arjun’s 999 emergency call might be considered services (see §57.1 of the ECS). 

443.Whilst I accept that the response of the police to a 999 emergency call may involve the provision of “service” in terms of “preventing injury to life and property” (section 10(c) of the PFO), I do not think there was any failure to provide such service to Arjun in this case. 

444.The police did dispatch PC Hung and SPC Kwan to the MTR station in response to, inter alia, Arjun’s call.  When they arrived, Arjun and Madam Chan had already been separated and there was no physical contact between them.  MTR staff was on hand and Mrs Singh was accompanying Arjun.  Arjun agrees under cross-examination that he was not under threat or danger from Madam Chan when the police arrived and he required no assistance or protection from the police at that time.[182]  I have found in Section G3 above that no injury was discernable from Arjun and PC Hung’s attention was not drawn to any damage to Arjun’s sweater at the scene.  When he enquired if Arjun required medical attention, Arjun replied in the negative.  In the premises, there was no failure on the part of the police to prevent injury to life and property. 

Arjun’s arrest

445.In relation to the second complaint, it is difficult to envisage an arrest as a service provided to the arrested.  The plaintiff has not pleaded any service in relation to Arjun’s arrest.  Despite his submission that Arjun was arrested on racial ground, Mr Blanchflower has not formulated his complaint in terms of a service.

446.Dr McCoy argues in §57.5 of the ECS that:

“PC Hung’s explanation for the arrest was to ‘protect interests’ of Arjun and to allow him to explain his version of the story under fairer circumstances, suggesting that it is implicit in the investigation of the crime, and likely to amount to a service;”

I do not agree with his analysis.

447.The fact that PC Hung had wanted to arrest Arjun for Arjun’s own good cannot transform what is ostensibly not a service into one given the ordinary meaning of the word.  I do not see how it can be said that the arrest was helpful or beneficial to Arjun.  As a matter of fact, the plaintiff resented the arrest so much so that they brought this action against the police.  Indeed, Dr McCoy’s argument goes against the general tenet of EOC’s case (see §60 of ECS) that “the police’s own subjective assessment of the facts can be determinative of whether the RDO is to apply, and whether they can be found to be ‘providing a service’ is most improbably the intended effect of section 27 RDO.”  

448.I therefore reject the plaintiff’s submission that Arjun’s arrest may found a claim under section 27. In any event, I do not accept that Arjun was arrested on the ground of his race.  The decision to arrest will be discussed fully below.

Failure to investigate?

449.In relation to the third complaint, the police are indeed under a public duty to prevent and detect crimes and offences (section 10(b) of the PFO).  From the point of view of a victim of crime, it would be helpful and beneficial for the police to investigate his complaint.  On the other hand, it is also helpful and beneficial to the accused for the police to investigate his defence to clear his name.  All these are done in pursuance of the duty of the police to prevent and detect crimes and offences.  I therefore accept that the investigation at the MTR station may involve the provision of “services” to Arjun.  For the reasons mentioned in Section M6 above, I reject the defendants’ narrow formulation that police investigation may only involve the provision of services if the investigation was sought for the purpose of rendering assistance or protection (see §§187.1-187.2 & 242-246 of the DCS).

450.However, I do not accept that there had been a failure to investigate at the MTR station.  To recap the relevant discussion above:

(a)  n terms of Arjun’s complaint, PC Hung did inquire into the reason for Madam Chan to grab Arjun.  At the scene, Arjun merely told PC Hung that he had been grabbed by Madam Chan and that Madam Chan had refused to let him go.  There is no suggestion that the officers should also be aware of what Arjun had told the 999 call operator or what Arjun would subsequently allege in his 1^st cautioned statement.  As a result of the investigation at the scene, PC Hung got the understanding that Madam Chan had grabbed Arjun in an attempt to clarify why Arjun had bump into her and hit her.

(b)  In terms of Arjun’s defence, PC Hung did inquire as to why Arjun had bumped into Madam Chan and consider if the bumping had been accidental.  He also took into account Arjun’s entitlement to resist Madam Chan’s arrest and right to act in self-defence.  He jotted down the gist of what Arjun had told him at the scene on loose papers which he had later used to compile the post-record in his new notebook.  The post-record accurately reflected Arjun’s explanation that he had bumped against Madam Chan while he was hurrying home and rushing up the escalator. 

(c)  The police did enquire if there were eye-witnesses of the incident but were unable to locate any.  Neither Mrs Singh, the Nepalese lady nor MW could give relevant evidence.  The CCTV recording was not available for immediate viewing.  In those circumstances, I accept that the police had made proper investigation at the scene.

451.In §318 of the PCS, Mr Blanchflower argues that there are two key pieces of evidence that point to a failure to investigate at the scene: (i) “PC Hung and SPC Kwan’s collective failure to take notes of relevant witnesses and record observations and findings”; and (ii) the CCTV evidence.  I do not agree.

452.First, insofar as Mr Blanchflower is criticising the officers for not making entries in their police notebooks at the scene (see §§54 & 319 of the PCS), I do not accept his criticism.  According to item 2 of §53-01 of the Police General Order: “Notes shall be made at the time of the event or as soon as is reasonably practicable thereafter.” (my emphasis)  I agree with Mr Wong that there is no inflexible rule that police officers must take notes at the time of the event.  The fact that officers are expected to keep notes in chronological order, write legibly in indelible ink and without erasure, and initial all deletions, alterations or additions etc (see items 7 to 10 of §53-01) lends support to his interpretation. 

453.It can be seen from the CCTV footage that the situation at the MTR station was quite chaotic.  There were many onlookers and the officers had to respond to various people upon arrival.  MW recalls Arjun looking very upset, crying and protesting tearfully at the MTR station.[183]  It is the evidence of PC Hung that he had to pacify Arjun and Mrs Singh as they were quite emotional at the time.[184]  Given the circumstances and the fact that the incident was still unfolding, I do not think PC Hung (and SPC Kwan) can be criticised for not taking notes in their police notebooks there and then.  A suitable opportunity (in terms of time and physical setting) for them to post-record the incident would be at the police station.  It should be noted that PC Hung post-recorded the incident in his new notebook between 0008 and 0054 hours on 7 January 2010 after Arjun’s interview.  Despite the fact that his shift had ended (at 2345 hours on 6 January 2010, see Bundle p 321), he did not wait until his next shift to make the entry.  I accept that that was the “reasonably practicable” moment after the incident to make the notes as required by the Police General Order. 

454.In §5 of the plaintiff’s closing replies (“PCR”), Mr Blanchflower blames Mr Wong for not putting his interpretation of item 2 of §53-01 of the Police General Order to the police witnesses.  With respect, the criticism is not justified.  Mr Wong’s interpretation is apparent from the words used and he does not seek to contradict PC Hung.  Rather, it is Mr Blanchflower who has failed to put his peculiar interpretation to PC Hung.  As Lord Hoffmann has reminded us in Aktieselskabet Dansk Skibsfinansiering v Brothers (2000) 3 HKCFAR 70 at pp 91-92:

“In addition to particularity in the pleadings, fairness requires that the adverse findings which the Judge will be invited to make should have been put squarely to the witness in cross-examination, so that he can have the opportunity to offer an explanation.”

455.In §319 of the PCS, Mr Blanchflower complains that there is no record of what the Nepalese lady and Mrs Singh said at the scene. 

456.PC Hung has explained at trial that neither Mrs Singh nor the Nepalese lady could give useful or relevant information.[185] Given my findings in Sections G2 and G4 above, I accept his explanation.  On the part of SPC Kwan, he recorded in his police notebook that: “The details were recorded down by [PC Hung], icw ECH R/N 10000781.”  As it was PC Hung who mainly conducted the investigation at the scene, I do not find that surprising. 

457.In §§321-322 of the PCS, Mr Blanchflower submits, based on one part of PC Hung’s cross-examination, that the officer had closed his mind as to whether Madam Chan had overreacted and ignored the fact that Arjun was entitled to use reasonable force in self-defence to resist Madam Chan’s arrest.  I do not agree.

458.PC Hung’s evidence is this:[186]

Q. So did you consider in those circumstances that when Arjun said that he was rushing and bumped into her that that might have been an accident?

A. Yes, I did consider that.

Q. So if it was an accident no offence had been caused because it was an accident?

A.         That’s correct, but if according to what one said, one party has said, it would be an accident but according to what Madam Chan had said, she said that Arjun had intentionally bumped into her once and that while they were having the dispute Arjun had hit her several times.

Q. Well, let’s just break that down because it’s two separate things.  She said Arjun intentionally bumped into her.  Arjun said, and you considered it was an accident, he accidentally bumped into her.  So wouldn’t that be reason to give further thought as to whether any offence had occurred against Madam Chan of assault or bumping?

A. That’s correct.

Q. Now, so in your mind it was possible that no offence happened on the escalator.  So now let’s look at the top of the escalator when Madam Chan was holding Arjun, so that’s the point of time we are now looking at.  Now, did you consider that Madam Chan was effecting a citizen’s arrest upon Arjun for him bumping into her, that’s why she held him?

...

A. When I arrived at the scene to investigate the matter I could not – well, for example, I could not determine who had committed crime simply consider what had happened at exit A3.  As a police officer, when I arrived at the scene I had to conduct a thorough investigation, just like, well Madam Chan grabbing Arjun.  I had to see whether she did it intentionally and about her motivation.  I couldn’t say that it constitute to a crime by simply that she grabbed him.  I had to conduct a thorough investigation.

...

Q. That is not my question.  You’re not listening to the question.  Instead of going off with your prepared answer just listen to the question.  Did you consider that when Madam Chan was holding Arjun that she was effecting a citizen’s arrest to hold him until police arrived?

A. I am of the view that at that time while Madam Chan was grabbing Arjun she wished to clarify the matter.

Q. She was holding him.

A. Yes.

Q. She wasn’t letting him go.

A. At that time that’s what he said, what Arjun said.

Q. She called the police to come and help.

INTERPRETER: She?

MR BLANCHFLOWER: Madam Chan.

A. Yes.

Q. She was detaining him until the police arrived.

A. I’m not clear about that because when I arrived at the scene they had already been separated.

Q. Did you consider that Arjun was entitled lawfully to resist arrest?

A. What I say if, for example, as a normal person ...

Q. No, no ...

A. ... if he was being grabbed suddenly by a stranger in the street I definitely believe that he would be afraid, he would be scared.

Q. And that’s what happened here, grabbed by a stranger, yes? Yes, is that he was grabbed by a stranger, correct?

A. Yes.

Q. And being grabbed by a stranger he was entitled to resist that assault, yes?

A. A person was being grabbed and he resist doesn’t mean that he could violently hit that person back.

Q. Did you consider Arjun’s case that he was entitled to resist the arrest by Madam Chan?  Did you consider not a hypothetical case, Arjun’s case?

A. Of course, he could.

Q. And did you consider that Arjun was entitled to act in self-defence to free himself from Madam Chan?

A. Yes.

Q. But in the end we know you arrested Arjun because he was Indian?

A. Disagree.

Q. You didn’t arrest Madam Chan because she was Chinese?

A. Disagree.

Q. And you arrested Arjun, this Indian child, to scare him to admit he assaulted Madam Chan?

A. Disagree. I would like to add something.  The reason why I arrest Arjun was because I wanted to provide a fair opportunity or environment to clarify the situation, and afterwards we would also take a detailed statement from Madam Chan, and of course we would take a detailed statement from Arjun as well to clarify the matter in details.

459.Contrary to Mr Blanchflower’s submission, the evidence clearly shows that PC Hung had kept an open mind.  He did not rush into conclusion (as was suggested by Mr Blanchflower) that the initial bump had been intentional.  He entertained the possibility that Arjun might have initially bumped into Madam Chan accidentally.  He was also alive to Arjun’s allegation that he had been acting in self-defence.  PC Hung was at pains to explain at trial that even so, Arjun was not entitled to use excessive force to resist Madam Chan.

460.I also reject Mr Blanchflower’s submission (at §323 of the PCS) that PC Hung was only concerned with Madam Chan’s complaint but ignored Arjun’s complaint or defence, that the police had only considered evidence in favour of Madam Chan’s complaint as relevant, or that the officers had closed their minds as to whether Madam Chan had overreacted.

461.Lastly, I have looked at the CCTV footage repeatedly and very carefully against the running commentary in Appendix B of Mr Blanchflower’s PCS.  I do not agree that the footage quite show that “the police officers were simply not interested in speaking to Arjun, Mrs Singh or the Nepalese lady.” (see §325 of the PCS)

462.All in all, I accept that Arjun had sought to obtain or use the services of the police at the MTR station in terms of (i) their responding to his 999 call to prevent injury to life and property and (ii) their investigation into his complaint and his defence to prevent and detect crimes and offences.  It is clear from the evidence that the police did not refuse or deliberately omit to provide such services to Arjun. 

N3.  Discrimination at the police station?

463.The main thrust of Mr Blanchflower’s complaint in §§326-341 of the PCS is that “the Defendants required Arjun and his near relative to take a statement in Punjabi because they were Indian.”  He criticises that: (i) SSGT Garr had adopted “a blanket policy for his duty room and assumed that all Indian persons would require interpretation services”; and (ii) SSGT Garr and PC Hung had “made up their minds that an interpreter was needed because [Arjun and Mrs Singh] were Indian” and Arjun was denied the “option to ... make an English statement”.  He argues that “[b]ut for the fact that Arjun and Mrs Singh were denied the choice of making a statement in English, the detention of Arjun would not have lasted for 5.5 hours.”

464.The plaintiff is silent as to what the relevant “service” is.  On the part of the EOC, Dr McCoy argues (at §57.6 of the ECS) that “the Defendants’ witnesses’ explanation of their insistence on having a Punjabi language interpreter attend at the police station to allow the Plaintiff to explain under fairer circumstances also suggests that that was a fundamental step required in the fair investigation of the alleged crime, and likely to amount to a service”.

465.In my view, it is quite impossible to frame the plaintiff’s complaint in terms of section 27.  As we have seen, that section is concerned with the refusal or deliberate omission to provide services sought to be obtained or used by the “second-named person”. In the present case, Arjun had never sought to obtain or use any Punjabi interpretation service.  To the contrary, the plaintiff’s case is that Arjun did not want Punjabi interpretation but it was forced upon him.  I am not satisfied that the complaint comes within the scope of section 27 of the RDO at all.

466.Furthermore, I do not accept the factual basis of the complaint.

(a)  SSGT Garr initiated the process to find Arjun a suitable interpreter in accordance with standard police procedure.  He suggested to PC Hung to engage an Indian language interpreter and left it to PC Hung to decide.  His evidence is that PC Hung could go back to him if Arjun spoke neither Punjabi nor Hindi.  As such, SSGT Garr did not operate a blanket policy to subject all Indian suspects to Indian language interpretation.

(b)  If PC Hung and SSGT Garr had made up their minds, there was no reason for them (and WDPC Yuen) to conduct the inquiry to ascertain Arjun’s language.  It transpires from the evidence that KS was nominated by the RCCC and not mandated by SSGT Garr or PC Hung. 

(c)  As I have summarised in Section I6 above, Arjun arrived at the police station at around 17:00 hours and was released on bail at around 22:30 hours.  During the 5.5 hours stay at the police station, he was briefly interviewed by the Duty Officer (SSGT Garr), had his personal particulars recorded, and was interviewed by PC Hung under caution. The wait for KS only lasted for about an hour (from 18:40 hours to 19:40 hours). 

(d)  The fact remains that Arjun wrote his own statement in English freely on PC Hung’s notebook.  There is no basis to suggest that he had been denied the choice of making a statement in English.

467.PC Hung is also criticized (see §333-334 of the PCS) for not following §21-34 of the Force Procedure Manual to record in the preamble of Arjun’s 1^st cautioned statement the fact that Arjun had chosen to use English.   I do not agree with the criticism.

468.§21-34 provides, inter alia, that:

“In order to ensure the validity of any statement (whether cautioned or otherwise) recorded from a foreign national or from a person who does not share a common language with the interviewer, the following rules are to apply:

(a) whenever possible, all interviews should be conducted in the mother tongue of the interviewee unless he prefers to use another language; if he chooses to use another language, then his decision and reasons, if suggested, should be recorded as a preamble in the statement;

(b) any statement should be recorded in the mother language of the interviewee; if another language is chosen by the interviewee, the decision and reasons, if suggested, should be recorded as a preamble in the statement;

...”

It is common ground that prior to the interview, Mrs Singh had confirmed with WDPC Yuen that Arjun’s mother tongue was Punjabi.  There is no evidence that Arjun had opted for another language other than his “mother tongue” at the beginning of the interview and so the rule was not engaged.

469.The contemporaneous record (ie Arjun’s 1^st cautioned statement) reflects that PC Hung conducted the interview in Cantonese, with English and Punjabi interpretation initially.  After PC Hung had post-recorded the arrest and caution in Chinese, the same was translated into English by Ms Leung for the benefit of KS.  KS then confirmed, by his written declaration, that:

“The above statement has been read over to SINGH Arjun in Punjabi in the presence of his mother SINGH Arjun said he understands and he wishes to say something.”

Mrs Singh confirms that KS must have interpreted for her.  Thereafter, the following statement appears in Arjun’s handwriting:

“I am a Hong Kong born and received my childhood education. I don’t know how to read and write Punjabi. I prefer the statement to be taken in English and written by myself...”

470.Thus according to the record, Arjun only opted to use English in the middle of the interview.  He expressed his choice clearly through his handwritten statement.  That is why there was no choice of language in the preamble. 

471.In my view, Arjun’s handwritten statement confirms that: (i) KS had been providing Punjabi interpretation (otherwise there is no need for Arjun to profess “I don’t know how to read and write Punjabi”); and (ii) Arjun had not opted for English before (otherwise there is no need for him to state “I prefer the statement to be taken in English”).

472.In §§28-30 of the PCR, Mr Blanchflower suggests for the first time that “[t]he provision of bail is a ‘service’ under section 27 of RDO”.  That was never pleaded.  On Dr McCoy’s part, he submits (at §57.8 of the ECS) that “the exercise of discretion to release the Plaintiff on police bail, or not to continue him on police bail, should also constitute a service.  The exercise of a discretion or the making of an evaluation, based on a fair evaluation of the evidence against the Plaintiff (and other potential suspects) amounts to a service.”

473.I respectfully agree with the ruling of Yates J (see §180 of Robinson) that the granting of bail is not so much a provision of services but an exercise of government authority in the operation of the criminal justice system to control and regulate the liberty of the accused.  Aspects of the process (eg the exercise of the discretion to grant bail and to set the conditions) which are inseparable from the whole do not take on a different character so as to become, separately, services provided to the accused.

N4.  Refusal to investigate after Arjun’s release?

474.In §§342-355, Mr Blanchflower basically argues that the defendants have refused to investigate Arjun’s complaint after WDPC Yuen’s investigation notwithstanding “overwhelming evidence that Mdm Chan had assaulted Arjun on 6 January 2010 and that she was not telling the truth about the bumping incident on the escalator and had used entirely disproportionate force against Arjun.”  I do not agree.

475.There is no clear evidence (let alone overwhelming evidence) that Madam Chan had assaulted Arjun or that Madam Chan was lying.  The only evidence of assault came from Arjun himself but the objective evidence is lacking. 

(a)  Arjun only told PC Hung at Exit A3 that he had been grabbed by Madam Chan and that she did not let him go.  He did not remember using the word “assault”.  This is confirmed by the post-recorded statement of PC Hung in his new notebook.   Arjun only elaborated on the alleged assault by Madam Chan later in the police station.

(b)  The CCTV footage only shows Madam Chan holding onto Arjun and not letting him go but does not show any clear conduct of assault.  On the other hand, it shows the three occasions when Arjun appeared to be hitting Madam Chan.

(c)  Neither WDPC Yuen nor DSIP Tang observed any injury to Arjun on 6 January 2010.[187]  The instant photograph taken of Arjun shows no injury.  The medical report adduced by the plaintiff does not record any injury to Arjun’s left arm either.

476.Mr Blanchflower suggests (at §100 of the PCS) that “by 27 January 2010, there was no reasonable justification to prefer Mdm Chan’s complaint over Arjun’s complaint”.  It is true that Madam Chan’s account in her POL 154 statement is different from what she told PC Hung on 6 January 2010.  However, the fact that Madam Chan has given inconsistent accounts of the incident is no evidence that she had assaulted Arjun.

N5.  &Conclusion

477.For the above reasons, the plaintiff has failed to establish that Arjun was less favourably treated in the provision of “services” by the defendants.  There is no basis to suggest that the officers would have done anything differently for a comparator of another race.  There is no breach of section 27 of the RDO and I dismiss the plaintiff’s claim on racial discrimination.

O.  Was Arjun’s arrest unlawful? [Issue 5]

478.Section 50 of the PFO confers power on police officers to arrest without a warrant.  Insofar as it is relevant for present purposes, it provides that:

“(1) It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged or whom he reasonably suspects of being guilty of –

(a) any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment; or

(b) ...

(1A) A police officer may exercise the power to apprehend a person under subsection (1) without any warrant for that purpose and whether or not he has seen any offence committed.

...”

479.In Yeung May Wan v HKSAR (2005) 8 HKCFAR 137, the Court of Final Appeal summarized the relevant legal principles as follows:

“72. Leaving aside for the moment a question concerning the relevance of judicial review (mentioned later in this judgment), Woolf LJ in Castorina v Chief Constable of Surrey (1988) 138 NLJ Rep 180 identified the relevant questions as follows:

‘(1) Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer’s state of mind.

(2) Assuming the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury.’

...

94. The provisions of PFO s 50 give the police officer the power to arrest upon the reasonable suspicion condition being met. But he obviously has a discretion and is not obliged to make an arrest in every case where such condition is satisfied. Indeed, the authorities show that there may be cases where, notwithstanding the existence of a reasonable suspicion of guilt, an arrest may be made in bad faith or otherwise be made in circumstances justifying a judicial review on the basis laid down in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. In Holgate-Mohammed v Duke [1948] AC 437 at p 443, Lord Diplock, having noted that the conditions precedent for an arrest had been fulfilled in the case at hand, continued as follows:

‘... since the wording of the subsection under which he acted is ‘may arrest without warrant’, this left him with an executive discretion whether to arrest her or not.  Since this is an executive discretion expressly conferred by statute upon a public officer, the constable making the arrest, the lawfulness of the way in which he has exercised it in a particular case cannot be questioned in any court of law except upon those principles laid down by Lord Greene MR in [the Wednesbury case] ... The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the exercise of statutory discretion of a constable under s 2(4) of the Criminal Law Act 1967, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought.’”

480.Applying the above to this case, the pertinent questions to ask on the lawfulness of Arjun’s arrest are:

(a)  Did PC Hung suspect that Arjun was guilty of common assault?

(b)  Was there reasonable cause for that suspicion?

(c)  Was the arrest nonetheless unlawful on Wednesbury grounds? 

481.It is common ground that it is for the arresting officer to establish that he had a reasonable suspicion.  After that is done, the burden falls on the arrested person to establish that the arrest was unlawful on Wednesbury grounds.

O1.  Did PC Hung suspect that Arjun was guilty of common assault?

482.It is common ground that PC Hung arrested Arjun on 6 January 2010 for common assault.  According to section 40 of the Offences Against the Persons Ordinance, Cap 212, a person convicted of the offence of common assault may be sentenced to a term of imprisonment of 1 year.  There is no dispute that common assault is an arrestable offence under section 50(1) of the PFO.

483.It is PC Hung’s evidence that at the time of the arrest he “believed that Arjun had assaulted Madam Chan”.[188] This was repeated in his post-recorded statement in his police notebook and his evidence in court.

484.In Section IV(B) of the PCS, Mr Blanchflower argues that since PC Hung did not arrest on the basis of a suspicion, “it is not open to [the defendants] to now run the defence of reasonable suspicion”.  He says that “when a police officer arrests on the basis of reasonable belief, the grounds for that belief must be stronger than mere suspicion”.  I do not agree. 

485.In Hussien (at 948B), Lord Devlin explained that:

“suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is at the end. When such proof is obtained the police case is complete; it is ready for trial and passes on to its next stage...”

In Buckley v Chief Constable of Thames Valley Police [2009] Po LR 181 at §6, it was said that suspicion “is a state of mind well short of belief and even further short of belief in guilt or that guilt can be proved”.

486.Since PC Hung believed that Arjun had committed the offence of common assault, he was subjectively more certain than a mere suspicion and the statutory threshold was satisfied. The greater must include the lesser.  His choice of word in describing his state of mind cannot make the statutory requirements more stringent.

487.In fact, PC Hung has explained under cross-examination that since he did not witness Arjun’s movement on the escalator, he could not be sure whether Arjun had accidentally bumped into Madam Chan or not.[189] So there was a degree of uncertainty in his mind and it is debatable whether PC Hung has used the term “believe” to describe his state of mind correctly or not.  I agree with Mr Wong that it is pointless to engage in an argument over semantics.

488.Thus, although PC Hung has used the term “believe” to describe his state of mind, it is apparent from his evidence that he was relying on the second limb of section 50(1) (ie suspicion that Arjun is guilty of an arrestable offence) as opposed to the first limb (ie belief that Arjun will be charged with an arrestable offence).  On the evidence, I accept that at the time of arrest PC Hung did form a genuine suspicion that Arjun was guilty of common assault.

O2.  Was there reasonable cause for that suspicion?

489.In Yueng May Wan (at §§73-75), the Court of Final Appeal explained that in assessing the objective dimension of the suspicion, one is concerned with what was actually known to the arresting officer:

“73.  The House of Lords in O'Hara made it clear that when considering whether these subjective and objective requirements have been met, one is concerned solely with what was in the mind of the arresting officer. The House of Lords was dealing in that case with a provision requiring the arresting constable to have ‘reasonable grounds for suspecting [the person arrested] to be a person who is or has been concerned in ... acts of terrorism’ and Lord Steyn stated (at 292) that provisions employing such language ‘categorise as reasonable grounds for suspicion only matters present in the mind of the constable.’

74.  Lord Hope of Craighead (at 298) elaborated upon this as follows:

‘My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else.’

75.  As Lord Steyn pointed out, it is by virtue of ‘the longstanding constitutional theory of the independence and accountability of the individual constable’ that the law has come to fasten on the mind of the arresting officer himself:

‘The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. ...... The executive ‘discretion’ to arrest or not, as Lord Diplock described it in Mohammed-Holgate v Duke [1984] A.C. 437, 446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers.” (O’Hara at 293D-E)’

490.To recap, the information that was in the mind of PC Hung at the time of the arrest was:

(a)  From Madam Chan: that she had a slight body contact with Arjun when she was alighting the train; that Arjun intentionally bumped into her from behind at the escalator and, when she caught Arjun to question him, he responded by saying that he was pushing her back as she had pushed him earlier; and that Arjun hit her abdomen several times.[190]

(b)  From Arjun: that he bumped against Madam Chan as he was hurrying home and was rushing up the escalator; and that Madam Chan grabbed him by his sweater.[191]

(c)  From his own observation: Madam Chan’s right middle finger was crooked, red and swollen and she complained of pain in her abdomen.[192] On the other hand, there was no injury on Arjun, and he did not complain of any pain or require any medical treatment.[193]

Although PC Hung also spoke to other people, he did not discern any relevant information from them. 

491.Based on the inquiry made at the scene, PC Hung “believed that Arjun had assaulted Madam Chan” and that “Madam Chan had grabbed Arjun’s sweater so as to prevent him from leaving the Scene after he had injured her.”[194]

492.Mr Blanchflower challenges the objective reasonableness of PC Hung’s state of mind.  He submits that:

(a)  PC Hung did not speak to Madam Chan at all and so did not have the information to lawfully arrest Arjun;

(b)  PC Hung failed to take into account Arjun’s age and doli incapax and did not consider if Arjun had the requisite mens rea to commit an offence; and

(c)  PC Hung failed to inform himself of Arjun’s right to defend himself.

493.The first challenge cannot sustain given my finding that PC Hung did speak to Madam Chan upon arrival at the MTR station.

494.In relation to the second challenge, the issue of Arjun’s mental capacity to commit an offence is nowhere pleaded and never put to PC Hung.  As pointed out in Phipson on Evidence, 18^th Edition (2013) at §12-12:

“In general a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point ... This rule serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence. If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.”

The plaintiff is therefore not entitled to mount such a challenge in closing submissions.

495.In any event, section 3 of the Juvenile Offenders Ordinance, Cap 226, provides that:

“It shall be conclusively presumed that no child under the age of 10 years can be guilty of an offence.”

496.Arjun was 11 at the time of the incident.  He was not below the age of criminal responsibility in Hong Kong.

497.In R v Gorrie [1918] 83 JP at 136, it was explained that:

“In the case of persons under fourteen years of age, the law presumed that they were not criminally responsible; they were not supposed to have that discretion which would make them criminally responsible. But in any particular case, if the prosecution could show that although the accused was under fourteen the act was done with what was called mischievous discretion, then they could rebut the presumption that the child was not responsible. Therefore, the jury should first of all consider whether it would be their duty to find him guilty if he were over fourteen, and then consider whether mischievous discretion deprived him of the shelter which he would otherwise have. If it was an assault and not an accident – if, however little he might have meant to do him any harm, he did in fact intentionally stab the other boy with the penknife and thereby caused his death, that was manslaughter ... Then they came to the second point. The boy was under fourteen, and the law presumed that he was not responsible criminally; and if the prosecution sought to show that he was responsible although under fourteen, they must give them very clear and complete evidence of what was called mischievous discretion: that meant that they must satisfy the jury that when the boy did this he knew that he was doing what was wrong – not merely what was wrong, but what was gravely wrong, seriously wrong. It was for the jury to say whether there was any evidence that this boy when, as was alleged, he ‘jabbed’ the other with the knife in this horseplay, had any consciousness that he was doing that which was gravely wrong.”

Thus, for a child who has attained 10 but is under 14 years of age, the presumption of doli incapax continues to apply but the presumption can be rebutted.

498.Arjun has confirmed at trial that he knew at the time that it was a crime to assault someone.[195]  That is clear and positive evidence to rebut the presumption. 

499.Mr Blanchflower has provided no authority in support of his proposition (at §396 of the PCS) that PC Hung needed to rebut the presumption before the arrest. 

500.As to the third challenge, I am afraid the plaintiff has omitted the relevant evidence.  PC Hung did confirm under cross-examination that he had considered Arjun’s entitlement to act in self-defence:[196]

Q. Did you consider Arjun’s case that he was entitled to resist the arrest by Madam Chan?  Did you consider not a hypothetical case, Arjun’s case?

A. Of course, he could.

Q. And did you consider Arjun’s case that he was entitled to act in self-defence to free himself from Madam Chan?

A. Yes.

Q. But in the end you know you arrested Arjun, that’s correct?

A. That’s correct.

501.The thrust of Mr Blanchflower’s challenges is that PC Hung should have made all reasonable enquiries and considered all possible defences before making the arrest.  He says (at §§375-377 of the PCS) that to pass the test PC Hung must have informed himself of “all relevant circumstances – inculpatory and exculpatory” citing §148 of Pang Yiu Hung v Commissioner of Police [2003] 2 HKLRD 125.  I do not agree.

502.Hughes LJ dealt with a similar argument in Buckley at §10:

“Next [counsel or the appellants] contends that since Constable Scully did not investigate the assertion that the appellants had been elsewhere at the time, that is to say that they had alibis, his suspicion could not be reasonable. It is no doubt true that it would not have been difficult to cross the road to ask the occupants of the house where one of the claimants was said to have been. However, to criticise the officer for not investigating a possible alibi is to confuse the progress of an inquiry and the business of the proof of guilt with the existence of a reasonable suspicion at a stage which will necessarily be at the outset of the inquiry. It has been said time and again in this court and indeed in the House of Lords that the necessity to demonstrate reasonable grounds for suspicion does not import any obligation upon the police constable to investigate possible defences. Of course if a suspect immediately produces a verifiable alibi that may well dispel the suspicion which reasonably existed or the reasonable grounds for it which previously existed. That, however, is a different proposition.”

503.Likewise, Purchas LJ expressed in Castorina (at p 246) that “course of inquiry which may or may not be taken by an investigating police officer before arrest are not relevant to the consideration whether, on the information available to him at the time of the arrest he had reasonable cause for suspicion.”

504.In fact, Pang Yiu Hung does not support Mr Blanchflower’s contention as Hartmann J pointed out at §141 that:

“Once a reasonable suspicion has been formed, an officer is not, however, obliged to refrain from effecting an arrest in order to make further enquiries. With the benefit of hindsight, prudence may have dictated course of enquiry that could have been taken before making an arrest. But that is not the point. It is for the officer, in the exercise of his discretion, to determine when he should make an arrest. That ‘executive discretion’, as Lord Devlin described it, is restrained in law by the principle only that, at the time of the arrest, the arresting officer must have a ‘reasonable’ suspicion.”

505.In my view, the apparent injury to Madam Chan must have lent support objectively to her complaint that Arjun had assaulted her.  In the premises, I accept that there were reasonable grounds for PC Hung to suspect that Arjun had committed the offence of common assault. 

O3. Was the arrest unlawful on Wednesbury grounds? [Issue 3]

506.In Section IV(C) of the PCS, Mr Blanchflower basically argues that it was not necessary for PC Hung to arrest Arjun in the circumstances of this case.  He submits that “[t]he test of necessity is well established in the common law” (citing English and Australian authorities) and has been incorporated into the Police Force Manual and the Police Manual.  He challenges the 3 reasons offered by PC Hung for the arrest. He criticises PC Hung for not inviting Arjun to attend the police station voluntarily and accuses PC Hung of adopting “a fixed policy to arrest”.

507.First, I agree with Mr Wong that the relevant law in England and Australia are different from ours and the overseas authorities cited by Mr Blanchflower are not apposite.

508.Prior to 2005, the law of arrest in England was set out in section 24 of the Police and Criminal Evidence Act 1984 which was similar to our section 50 of the PFO.  However, the Serious Organised Crime and Police Act 2005 has changed all that and the new section 24(4) now provides that:

“... the power of summary arrest ... is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.”

That explains why the more recent English authorities invoked by Mr Blanchflower all discussed whether it had been necessary to arrest in the circumstances of those cases (eg Re Alexander [2009] NIQB 20 at §§3 & 17-20, Richardson v Chief Constable of West Midlands Police [2011] 2 Cr App R 1 at §§2, 20-21, 51 & 59-63, and Lord Hanningfield of Chelmsford v Chief Constable of Meryside Police [2012] 1 WLR 517 at §14).  There is no such legal requirement in Hong Kong.

509.Mr Blanchflower also relies on Australian authorities such as Zaravinos v New South Wales (2004) 214 ALR.  It is apparent from §14 of that judgment that the statutory provision governing the law of arrest in Australia (ie section 352 of the Crimes Act 1900) is very different from ours.  Furthermore, the Court of Appeal of the Supreme Court of NSW has specifically rejected the Holgate-Mohammed line of cases, holding (at §§31-32) that “there is marked divergence between the law as understood in England ... and the law in Australia...”.  As we have seen, our Court of Final Appeal has specifically endorsed Holgate-Mohammed in Yeung May Wan.  In the premises, I do not think I should place any weight on the Australian authorities cited.

510.The fact that Hong Kong Police Force have emphasized in their internal guidelines and manual that police officers should only arrests if “necessary” does not create a legal requirement of necessity in the law of arrest.[197]

511.Secondly, PC Hung has offered 3 justifications in §§8-13 of his 3^rd supplemental statement for the arrest: (i) seriousness of the offence; (ii) to preserve evidence or reveal additional evidence concerning the offence in the most effective manner; and (iii) in Arjun’s interest for him to be taken into custody and escorted back to the police station immediately for an interview. 

512.There is no merits in the challenge (at §420 of the PCS) that “[t]he 3 reasons ... are not found in any contemporaneous document, nor were they found in the evidence of [SSGT Garr], WDPC Yuen, or [DSIP Tang].”  The plaintiff only articulated this challenge clearly on Day 7 of the trial and PC Hung was given an opportunity to file his 3^rd supplemental statement to elaborate on his thought process.[198]  This explains why those 3 reasons were not mentioned in earlier documents.  Furthermore, there is no reason why PC Hung’s thought process should feature in the account of the other officers. 

513.On the first reason offered by PC Hung (ie seriousness), it is wrong for the plaintiff to think (as expressed in §425 of the PCS) that common assault is not a serious offence. The offence is certainly serious enough to attract a term of imprisonment.

514.In §424 of the PCS, it is suggested that PC Hung has given inconsistent evidence as to his view on the seriousness of the offence.  I do not agree.  On Day 7 of the trial, there were the following exchanges between Mr Blanchflower and PC Hung (through the interpreter):[199]

Q. And so the MTR staff were determining what was urgent or not urgent.

INTERPRETER: 咁即係話由地鐵公司嘅職員去決定乜嘢為之緊急，乜嘢為之非緊急啦？

A. 唔係。

INTERPRETER: That’s not correct.

Q. But it was serious enough for you to have arrested Arjun, correct?

INTERPRETER: 但呢宗案件嘅緊急嘅情度係足以令到你即時當時拘捕Arjun，係咪呀？

A. 唔係。

INTERPRETER: That’s not correct.

Q. So it wasn’t a serious offence?

INTERPRETER: 咁即係話唔係一個嚴重嘅案件喇？

A. 唔係。

INTERPRETER: Oh, that’s correct.

Q. Okay, well, I will come back...

515.There was clearly an ambiguity in the last question and answer.  PC Hung could have been saying (i) that the offence was not serious or (ii) that he disagreed with the question posed to him (meaning that the offence was serious).  When Mr Blanchflower later followed it up on Day 11, PC Hung responded that:[200]

Q. And do you confirm that at earlier time you agreed that it was not a serious offence?

A. I disagree.

Q. So you disagree with your earlier answer.

MR WONG: No, I think...

MR BLANCHFLOWER: Just let him answer please.

MR WONG: No, there is an ambiguity, I think, in your question...

...

COURT: All right.  Now, listen carefully, witness. The question was, “So it wasn’t a serious offence?”  咁即係話唔係一個嚴重嘅案件喇？  Answer: 唔係.  “Oh, that’s correct.”

Q. Do you recall that question and your answer?

A. No recollection.

Q. I put it to you that based on your statement, that this offence was not sufficiently serious to require the arrest of Arjun.

A. It’s not right.

516.Thus, any ambiguity has been clarified and I do not accept that PC Hung has been inconsistent.

517.As to the second reason (ie preservation of evidence), Mr Blanchflower criticizes in §426 of the PCS that “[t]here was no evidence that needed to be seized or would be vulnerable to destruction, tampering or required preservation.  The future taking of a cautioned statement is not something which a police officer has a right to – after all, Arjun has the right to remain silent.” 

518.With respect, I think Mr Blanchflower has misunderstood PC Hung’s evidence.  As pointed out by Mr Wong in §84.3 of the DCR, what PC Hung meant was that he had sought to preserve the accuracy and purity of Arjun’s evidence by taking down his account of what happened as soon as possible through an interpreter when the matter was still fresh in Arjun’s mind.

519.On PC Hung’s third reason (ie to protect Arjun’s interests), Mr Blanchflower submits that: (i) the explanation is unreliable as it was not mentioned in PC Hung’s earlier statements (see §§312-313 of the PCS); and (ii) “it is only ever necessary to arrest someone for their protection if that person is under threat of violence from third parties and that person refuses to remove themselves voluntarily” citing Police General Order §5-09 (see §428 of the PCS).

520.I have dealt with the first point above.  As to the second point, §5-09 only sets out examples of when an arrest may be thought to be advisable (such as when “the arrest would be in the offender’s own interest, eg he is surrounded by a hostile crowd likely to injure him”) and is not meant to be exhaustive.  PC Hung has explained that in the circumstances of this case he thought Arjun needed protection because of his language ability.  This, when read together with his second reason, is aimed at providing an opportunity to Arjun to explain himself accurately and fully in his native language.  This has nothing to do with Arjun’s race.

521.Lastly, the fact that Arjun had been cooperative and might be willing to attend the police station voluntarily to give a statement would not render the arrest Wednesbury unreasonable. The English Court of Appeal has pointed out in Holgate-Mohammed (at p 216C-E) that:

“As to the proposition that there were other things which he might have done, no doubt there were other things which he might have done first. He might have obtained a statement from her otherwise than under arrest to see how far he could get ... But the fact that there were other things which he might have done does not, in my judgment, make that which he did do into an unreasonable exercise of the power of arrest if what he did do, namely to arrest, was within the range of reasonable choices available to him.”

522.There is no evidence that PC Hung adopted a fixed attitude to arrest.  Quite to the contrary, his evidence is that: [201]

“... my understanding was that once I had formed a reasonable suspicion or belief that Arjun had committed the offence of common assault, I had the power, and may (but not must), pursuant to section 50(1) of the PFO, arrest him ...”

523.In my view, it was within the range of reasonable choices available for PC Hung to arrest Arjun on 6 January 2010 and the plaintiff’s challenge to the exercise of the “executive discretion” therefore fails.

O4.  &Conclusion

524.As the defendants have established that PC Hung had a reasonable suspicion to arrest Arjun and the plaintiff has failed to challenge the lawfulness of the arrest on Wednesbury grounds, the plaintiff’s claim in respect of unlawful arrest and false imprisonment must fail.

P.  Relief

525.It is clear from the foregoing discussion that the plaintiff has failed to prove his claim and the action falls to be dismissed.  For completeness, I shall briefly comment on the relief claimed.

526.The remedies sought may be grouped under 4 broad headings:

(a)  Declaration: A declaration that the defendants have unlawfully discriminated against Arjun. (Prayer 1)

(b)  Orders against PC Hung:  An order directing the Secretary for Justice to order PC Hung (i) not to repeat or continue with the unlawful conduct, acts or omission; and (ii) to apologise in writing to Arjun and to place a full-page advertisement setting out the apology in all major newspapers. (Prayers 2(1) & (3))

(c)  &Orders against the Commissioner of Police: An order directing the Secretary for Justice to order the Commissioner (i) not to repeat or continue with the unlawful conduct, acts or omission; (ii) to investigate the conduct of PC Hung and, if necessary, discipline him; and (iii) to apologise in writing to Arjun and to place a full-page advertisement setting out the apology in all major newspapers. (Prayers 2(1)-(3))

(d)  Damages: Damages for injury to feelings, damages for pecuniary losses (including future losses), punitive and exemplary damages. (Prayers 2(4) & 3)

527.First, there is no basis to grant any declaratory relief or to order the Commissioner or PC Hung to desist from any unlawful act or to apologise.  Had I found any wrongdoing on the part of the defendants, I would have followed Ma Bik Yung v Ko Chuen (2006) 9 HKCFAR 888 at §§34-36, 49-56 and make an order nisi for the parties to come back to make representations before making any apology order.

528.Secondly, I agree with Mr Wong that it is for the Commissioner, who is charged with the supreme direction and administration of the police force under section 4 of the PFO, to decide whether to invoke the procedure under the Police (Discipline) Regulations, Cap 232A, to investigate and punish any disciplinary offence.  I do not think the court or the Secretary for Justice has the power to “order” the Commissioner to do so.

529.Thirdly, there is no basis to award any damages for injury to feelings given the threshold set out in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 §65 (applied by the Court of Appeal in Yuen Wai Han v South Elderly Affairs Ltd [2005] 2 HLLRD 277). 

530.On pecuniary losses, the plaintiff is claiming over HK$200,000 as follows:

Item	Description	Amount
A1	Time taken off by Mr Singh who is a yoga instructor to take Arjun to India to recover from shock and trauma	HK$18,000
A2	Additional child-care and support Mrs Singh had to provide to Arjun as a result of his shock and trauma and inability to study or go anywhere without Mrs Singh (January 2010 – May 2011)	HK$80,000
B1	Registration to the A&E Department of the Ruttonjee Hospital on 8 January 2010	HK$100
B2	Obtaining medical report from Ruttonjee Hospital	HK$695
B3	Indian herbal tonics	HK$2,000
C	Amount incurred by Mrs Singh for travelling to accompany Arjun to and from private tuition sessions, seminars and colloquiums (January 2010 – May 2011)	HK$15,000
D1	Additional tuition fees for home-visit tutorials at HK$4,000 per month	HK$92,000
D2	Fees for hiring a mentor and coach for Arjun at HK$200 per session with a total of 120 sessions to look after him and provide consultation (January – July 2010)	HK$24,000
E1	Unattended 2010 IGCSE English exam	HK$1,500
E2	Re-application for IGCSE English exam	HK$1,500
E3	Educational facilities to help Arjun’s recovery from the incident	HK$3,500
F	Future transportation expenses, HK$1,000 per month for additional transportation to enable Arjun to take more private forms of public transport until Arjun is admitted to university	HK$1,000 per month till Arjun admitted to university
G	Future educational expenses, HK$2,000 per month for additional cost of home tuition services until Arjun is admitted to university	HK$2,000 per month till Arjun admitted to university

531.Mr Singh has withdrawn item E2 as the examination had not been taken.[202]

532.The plaintiff has offered no documentary evidence whatsoever in support of his claims.  Neither Mr Singh, Mrs Singh nor Arjun offers any explanation.  Whilst I can be sympathetic to the more usual and smaller items such as B1 and B2, I certainly have difficulty in appreciating the rest. 

533.I accept that Arjun had experienced frequent nightmares and anxiety immediately after the incident.[203]  His condition has improved gradually over time and I am glad that he has more or less returned to normal after about 6 months.[204] The plaintiff claims that Arjun was diagnosed to be suffering from “Acute Post Traumatic Stress Disorder” and still displays indications of “Situational Anxiety”.[205]  However, the clinical psychological assessment mentioned in Mr and Mrs Singh’s evidence has not been produced and there is nothing to confirm that Arjun has been suffering from any medical condition.

534.More specifically:

(a)  In relation to A1, there is nothing to prove Mr Singh’s earnings as a Yoga instructor or confirm that he had taken time off. 

(b)  Items A2 and C (totalling $95,000) appear to be arbitrary, as Arjun had all along been homeschooled and taken care of by Mrs Singh (see §2(5) of the RASOC and §3 of Mrs Singh’s witness statement).  There is no attempt on the part of the plaintiff to identify what these additional support or expenses were and no breakdown was provided.

(c)  The plaintiff has not explained what B3 and E3 were for and why these herbal tonics and educational facilities were advisable.

(d)  There is no attempt to compare Arjun’s cost of education before and after the incident, so as to identify the additional education fees and expenses incurred.  And there is nothing to evidence the payment of $116,000 claimed under D1 and D2.

(e)  Given Arjun’s evidence that he has more or less recovered and that he is now studying in university, there is no basis to award any future expenses under F and G.

535.Irrespective of my findings on liability, I would have difficulties in awarding any pecuniary damages to the plaintiff.

536.Lastly, there is no evidence of any “high handed, insulting, malicious or oppressive” conduct[206] or “outrageous conduct, disclosing malice, fraud, insolence, cruelty and the like”[207] in this case to ground any award for aggravated or exemplary damages.

Q.  Disposition

537.For all the above reasons, this action is dismissed.  Having regard to section 73E(3) of the DCO, I make an order nisi that each party shall bear its own costs.  The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

538.I thank counsel for their submissions.

Mr Michael Blanchflower SC leading Mr Earl Deng instructed by Vidler & Co, assigned by the Director of Legal Aid, for the plaintiff.

Mr Stewart Wong SC leading Ms Janet Ho instructed by the Department of Justice for the 1^st and 2^nd defendants.

Dr Gerard McCoy SC leading Ms Denise Souza instructed by Equal Opportunities Commission, for the amicus curiae.