Martnok Thanradee v. Commissioner of Policeand Another
Read the full judgment text of HCA 789/2011 on BabelCite. This High Court CFI judgment was delivered on 14 July 2016.
1. Martnok Thanradee (formerly Martnok Wannapha, “ P ”), a Thai, was the owner of Grow Karaoke (with name-change to Royal Pub on 20 March 2007) at G/F, Fung Wing Court (“ Building ”), 69 Tak Ku Ling Road (“ Road ”), Kowloon City (“ KC ”), Hong Kong (“ Premises ”). From 18 August 2006 to 17 June 2009 she was the liquor licensee (“ Licensee ”) of such karaoke pub, which she operated with her husband Leung Yiu Kai (retiree who had since passed away, “ Husband ”) who from time to time claimed to be
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HCA 789/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 789 OF 2011 ________________________ BETWEEN
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_______________ JUDGMENT _______________ I. INTRODUCTION 1.Martnok Thanradee (formerly Martnok Wannapha, “P”), a Thai, was the owner of Grow Karaoke (with name-change to Royal Pub on 20 March 2007) at G/F, Fung Wing Court (“Building”), 69 Tak Ku Ling Road (“Road”), Kowloon City (“KC”), Hong Kong (“Premises”). From 18 August 2006 to 17 June 2009 she was the liquor licensee (“Licensee”) of such karaoke pub, which she operated with her husband Leung Yiu Kai (retiree who had since passed away, “Husband”) who from time to time claimed to be the person-in-charge (“PIC”). Lee Hung Fai (“Lee”) was a resident of the Building (“Resident”) who lived 2 levels above the Premises, and since April 2006 he had made noise complaints against the Premises. 2.The Commissioner of Police (“D1”) and other police officers were all employed by the Government,[1] so D1 would not be vicariously liable for torts committed by other police officers in the course of their employment with the Government and/or engaged in activities attributable to the Government’s duty to provide police services.[2] In view of section 13(1) of the Crown Proceedings Ordinance Cap 300 and the admission by the Secretary for Justice (“D2”) that the Government was vicariously liable for torts committed by police officers in the course of their employment, P’s claim against D1 based on vicarious liability is bound to fail. There was no plea in the Re-Amended Statement of Claim (“RASoC”) that D1 and/or D2 (collectively, “Ds”) were vicariously liable for torts committed by counsel on fiat in conducting prosecutions. 3.In/about 2005, Chan Kin Wai Joe (“Chan”) was the owner/ Licensee of Aqua Snack Bar at the Premises. Aqua Snack Bar, Grow Karaoke and Royal Pub (whichever was applicable) is referred to below as the “Pub”. From December 2005 (when Chan’s liquor licence (“Licence”) was renewed) until February 2006, there were noise complaints to the police against Aqua Snack Bar with warnings by the police and referrals to the Environmental Protection Department (“EPD”). 4.Licensing matters On 1 March 2006, Chan sold and P bought the karaoke business at the Premises. On 13 April 2006, P submitted an application dated 1 March 2016 to the Liquor Licensing Board (“Board”) for transfer/amendment of Chan’s Licence (“Application Form”) with inter alia the following particulars: (a) P’s “hours of duty are: 1900-0900” (07:00pm– 9:00am) and “weekly day-off is: Wednesday”, and (b) P’s referees included the Husband’s younger brother Leung Yiu Cheung (who was P’s counsel in the present action, “Mr Leung”). When P signed the Application Form on/about 1 March 2006, she had not yet carried on business at the Premises, so “Wednesday” as then stated was her expected or tentative weekly day-off. 5.The Board notified the police of P’s application on 19 April 2006, so the police’s Miscellaneous Enquiries Sub-unit (“MESU”), KC Division (“KCDIV”) (“MESU KCDIV”) proceeded with background check on P. The copy Application Form received from the Board was put away in the Pub Police File referred to in paragraph 50 below. On 8 May 2006, P gave a witness statement (“ME Statement”) to MESU KCDIV stating the Pub’s opening hours were 06:00pm–06:00am, and her working hours were 11:00pm–06:00am and “無例假”. P told the police officer she worked at the Pub every day with no day-off after she became the new owner. 6.On 30 May 2006, EPD issued a Noise Abatement Notice to abate music/voice from the Pub that was a source of annoyance by 31 July 2006, and not to exceed standard limits for the following 6 months (“EPD Notice”). The Husband attempted to work out an acceptable noise level with the Residents. 7.On 11 July 2006, P/Husband attended the Board’s open hearing when P’s application for transfer of Chan’s Licence was approved with inter alia the existing condition that “[the] licensee shall personally supervise the premises” (“Personal Supervision Condition”), an additional condition that no karaoke facility shall be played after 11:00pm (“Karaoke Condition”) and a further condition that the Premises’ main door must remain closed after 06:00pm (“Door Condition”). A Licence dated 22 August 2006 and valid up to 17 December 2006 was issued to P. On 21 September 2006, P notified the Board her change of name. 8.There were numerous noise complaints between August 2006 to April 2009 (see items 40-150 of the summary of the 999 Records referred to in paragraph 41 below prepared by Mr Leung (“Leung Summary”)) with over 30 warnings given by the police officers who handled such complaints. On 10 October 2006, EPD reported to the Board (“EPD Memo”) that although the noise assessment in mid-September 2006 did not show violation of the EPD Notice, EPD would conduct further noise assessment when necessary. 9.P applied for Licence renewal for the Pub. The police reported to the Board there were 50 noise complaints since December 2005 mainly due to poor management with Chan/P absent on 22 out of 55 police visits, and Somchai Aengyong (“Somchai”) was arrested/convicted for breach of condition of stay and P was arrested for employing a person not lawfully employable (“P’s Arrest”). The police recommended a short-term 6-months’ Licence with further conditions: (i) the Licensee shall be on duty from 11:00pm to 06:00am except weekly day-off on Tuesday, (ii) no liquor shall be sold/supplied for consumption on the Premises after 03:00am, (iii) the Licensee shall ensure no person consumed liquor on the Premises after 03:00am, and (iv) no music shall be played on the Premises after 03:00am. The conditions in (ii)-(iv) above are referred to below as the “3:00am Conditions”. 10.On 5 December 2006, P/Husband and Mr Leung (as P’s legal representative) attended the Board’s open hearing. The Board’s letter to P dated 20 December 2006 explained it had considered inter alia information/ objections from various parties and submissions by P/Husband and Mr Leung who opposed the 3:00am Conditions, and eventually approved a 6-months’ Licence with the existing and further recommended conditions. 11.P claimed the Pub subsequently closed for business by 03:00am. But there were still noise complaints after 03:00am[3] and complaints by the Residents of loudspeaker karaoke/music from night till dawn.[4] By the end of 2006, the Husband left a note for Lee to contact him if the Pub made noise. Lee called the Husband 10-20 times about excessive noise, and he also made noise complaints to the police. On 17 January 2007, P advised the Board of the Pub’s name-change to Royal Pub. P’s Licence was renewed on 20 March 2007 with the additional conditions in paragraph 9(i)-(iv) above (valid until 17 June 2007) and further renewed on 14 June 2007 (valid until 17 December 2007). 12.On 27 November 2007, P/Husband and Mr Leung (as P’s legal representative) attended the Board’s open hearing. The Board agreed to issue a 6-months’ Licence but refused P’s application to remove all additional conditions. A Licence (valid until 17 June 2008) was issued on 17 December 2007 to P. The Board’s letter dated 17 January 2008 explained it had considered information/objections by various parties. The Board noted there was some improvement, but there was reported breach of the Karaoke Condition on 7 July 2007 and objecting Residents still complained of loudspeaker karaoke/music from night till dawn with gathering of Thais/drunkards outside the Premises at dawn (but P/Husband denied connection between these matters and the Pub). Further, EPD’s recent investigation showing satisfactory noise level would not indicate whether it was acceptable to the Residents. 13.On 10 June 2008, the Board held an open hearing, and approved a 12-months’ Licence to P for the Pub with additional conditions as follows: (a) the Karaoke Condition, (b) the Door Condition, (c) the Licensee shall be on duty on the Premises from 11:00pm to 06:00am except weekly day-off on Thursday, and (d) the 3:00am Conditions. 14.P’s Arrest Somchai was a Thai visitor to Hong Kong subject to the condition he shall not take up employment. On 27 September 2006, WPC4970 Yu Lai Man (“WPC4970”) and WPC1017 Chung Oi Kuen (“WPC1017”) (“WPCs”) took part in an undercover operation at the Pub. As a result, Somchai was arrested for waitering in breach of condition of stay, and the police also made P’s Arrest. Somchai was charged by the Immigration Department (“ImmiDept”). At the trial on 8-9 November 2006 (“Somchai Trial”), the charge was amended to clarify the date of the alleged offence. Such charge in original or amended form (whichever was applicable) is referred to below as the “Somchai Charge”. The WPCs gave evidence; Somchai (whose counsel was Mr Leung), P and Maneesri Chukanya (“Chukanya”) also testified. Somchai was convicted and sentenced. His appeal (“Somchai Appeal”) was heard on 27 June 2007 by DHCJ Toh (as she then was) (“Judge”) who quashed the conviction and ordered a retrial. 15.Noise Summons/Trial On 18 December 2006, information was laid by PC48544 Cheung Chi Man (now sergeant (“Sgt”), “PC48544”) via the police’s OC Summons Office KCDIV (“Summons Office”) before a magistrate of KC Magistrates’ Court (“KC MagCourt”). On 19 December 2006, summons no KCS33505/2006 was issued that between 01:23am and 01:25am on 9 November 2006 P at the Premises in a public place made music that was a source of annoyance to PC48544. It was later amended to clarify the time of the alleged offence. At the summary trial on 26 April 2007 (“Noise Trial”), such amended summons was re-amended to substitute Lee for PC48544. Summons no KCS33505/2006 in its original, amended and re-amended form (whichever was applicable) is referred to below as the “Noise Summons”. PC48544 and Lee gave evidence, but the trial magistrate ruled no case to answer, so the Noise Summons was dismissed and the prosecution was determined. 16.Supervision Summons/Trial On 18 December 2006, information was laid by PC775 Ng Wai Ho (who had since left the police force, “PC775”) via the Summons Office before a magistrate of KC MagCourt. On 19 December 2006, summons no KCS33512/2006 was issued that P being the Licensee of Grow Karaoke where liquor was sold under a Licence contravened the Personal Supervision Condition in that P was found absent during regular licence check on 15 November 2006. It was later amended to clarify the time of the alleged offence. Summons no KCS33512/2006 in its original and amended form (whichever was applicable) is referred to below as the “Supervision Summons”. At the summary trial on 19 April 2007 (“Supervision Trial”), PC775 and assistant secretary of the Food and Environmental Hygiene Department Chan Cheuk Ping gave evidence. The trial magistrate ruled no case to answer, so the Supervision Summons was dismissed and the prosecution was determined. 17.Music Summons On 12 February 2007, information was laid by PC50087 Ko Cho Lai (“PC50087”) of Patrol Sub-unit (“PSU”) 1 KCDIV before a magistrate of KC MagCourt. On 13 February 2007, summons no KCS4363/2007 (“Music Summons”) was issued that P being the Licensee of Grow Karaoke where liquor was sold under a Licence contravened the 3:00am Conditions, ie “即[P]於2007年1月4日0315時PC50087到達[Grow Karaoke],發覺該洒吧正在營業,有顧客並播放音樂”. On 23 March 2007, P pleaded guilty and was fined. P’s appeal (“Music Appeal”) was heard on 21 June 2007 by the Judge who dismissed the appeal. On 13 February 2008, P’s application for leave to appeal to the Court of Final Appeal was dismissed. 18.Mr Leung was P’s counsel for the Noise and Supervision Trials (prosecuted by counsel on fiat) and for the Music Appeal. WSIP28370 Ng Yin Yee Peggy (“WSIP Ng”) was the OC case for the Noise, Supervision and Music Summonses. 19.P claimed (but the Ds denied):
20.P claimed the WPCs fabricated the incident on 27-28 September 2006 being the subject matter of the Somchai Charge and P’s Arrest, PC48544 and PC47421 (collectively, “Noise PCs”) fabricated the 2nd noise incident on 9 November 2006 being the subject matter of the Noise Summons, and PC775 told lies in initiating the Music Summons, which showed P/Pub was targeted for persecution as evidenced by mention of a “watcher” (睇場) by Sgt46400, PC47421 and WSIP Ng (collectively, “Three”) when they uttered threatening words to her, and P further claimed the involved police officers were in a scheme to make her close down her business for not appointing their people as the “watcher”. II. LEGAL PRINCIPLES (a) Malicious prosecution 21.The claimant must prove: (a) institution/continuation of a prosecution that caused “damage”, (b) determination of such prosecution in the claimant’s favour, (c) lack of reasonable and probable cause, and (d) the defendant acted maliciously.[5] Evidence of malice cannot be invoked to dispense with or diminish the need to establish other elements of the tort.[6] 22.Prosecution If a police officer “institutes” proceedings by making a report implicating the claimant in a crime, he will be potentially liable for malicious prosecution even if the actual decision to prosecute is taken by his superior. A police officer may also be liable for malicious prosecution initiated with his authority.[7] A malicious prosecution may also be the wrongful continuance of proceedings,[8] and a prosecutor who carries on a prosecution to procure a conviction after discovering facts that show the prosecution to be groundless will, at any rate if he does not inform the court of such facts, be guilty of malice and will possibly have no reasonable or probable cause.[9] Here, Ds admitted WSIP Ng, PC48544 and/or PC775 were prosecutors, but P still had to establish malice and lack of reasonable and probable cause, so it remained pertinent to consider the actual points when each of them commenced/ended the relevant prosecutions. 23.Lack of reasonable and probable cause The claimant has to prove a negative. A person actuated by malice may have justifiable reason for prosecution,[10] so if the charge is genuine it will not raise inference of belief there is no reasonable or probable cause.[11] Reasonable and probable cause depends upon information and, traditionally, belief of the prosecutor, which means proof that either the prosecutor did not believe the claimant to be guilty or the belief in his guilt was based on insufficient grounds.[12] Recent case law breaks this down into 2 issues: (a) the subjective state of mind of the prosecutor (ie no honest belief in the relevant charge), and (b) the objective adequacy of the evidence (ie circumstances that would lead an ordinarily prudent man to believe in the charge).[13] Sometimes it may be possible to infer absence of an honest belief from lack of reasonable and probable cause, but malice cannot of itself lead to an inference of absence of reasonable and probable cause.[14] 24.On the subjective question, the claimant has to prove the prosecutor did not actually believe in the charge laid against the claimant on facts/circumstances actually present to the prosecutor’s mind and operating on it when he instituted/continued the prosecution.[15] It is not enough to prove the real facts establish no criminality.[16] The question is not whether the prosecutor actually believes in the claimant’s guilt,[17] but rather whether he believes a charge against the claimant is warranted[18] or fit to be tried,[19] which test seems to be more appropriate in an era of public prosecutions. 25.On the objective test, the question of reasonable and probable cause is not the same as whether the prosecutor has evidence as will be legally sufficient to secure a conviction.[20] What matters is whether there is adequate material (including circumstantial evidence) sufficient to make out a prima facie case such as to warrant the charge against the claimant even though it may not be enough in itself to justify a finding of guilt.[21] It is not necessary or appropriate at this stage to consider the possibility that evidence might be excluded at the trial after full legal argument or in exercise of the judge’s discretion nor to investigate the merits or full strength of a possible defence that has been or may be raised[22] as these are matters properly to be left for resolution at trial. It was said in A v State of New South Wales that:
If the prosecutor is mistaken about some matter or fact which, if true, would have given him reasonable and probable cause, the question is whether the mistake was a reasonable one to make. After all, reasonable men can make mistakes.[23] 26.For private prosecutions, it has been said counsel’s advice (however erroneous), if honestly sought and acted upon, affords a good protection,[24] but the better view appears to be counsel’s advice is an important rather than conclusive factor which a reasonable prosecutor is entitled to take into account in deciding whether to initiate or maintain the prosecution.[25] But for public prosecutions, Viscount Simonds in Glinski stated the general principle as follows:[26]
27.Further, even if the police charges, the public prosecution may be conducted by lawyers of the Department of Justice (“DoJ”) or counsel on fiat.[27] The functions of the public prosecutor and the police investigator are separate and distinct[28] even though their roles are interdependent.[29] DoJ is responsible for the conduct of criminal proceedings in Hong Kong,[30] and “[it] is for the Attorney General [now D2] alone to decide whether or not prosecutions shall be instituted in any particular case or class of case, and his responsibility to control and conduct them”.[31] Counsel on fiat (as public prosecutor in contra-distinction to police investigator) apply The Statement of Prosecution Policy and Practice (“Prosecution Statement”), and they exercise independent judgment[32] and utilise a public interest test[33] in making decisions to prosecute.[34] 28.On review of decision to prosecute, the Prosecution Statement draws a distinction between the public prosecutor (eg counsel on fiat) and the reporting department/agency (eg police):
29.Malice The proper motive for a prosecution is a desire to secure the ends of justice. The claimant has to demonstrate the prosecutor intended to subvert the legal process for some improper/extraneous purpose.[36] Where reasonable and probable cause is found, the question of malice becomes irrelevant.[37] But the lack of honest belief as to the case for the prosecution will provide evidence of malice. Halsbury’s Laws of Hong Kong states as follows:[38]
But negligent or incompetent conduct with no element of malice should not be brought under the guise of malicious prosecution as such finding of itself is consistent with the existence of an honest but unreasonable belief. In BT v Crown Prosecution Service, Chadwick LJ said as follows:[39]
As Clayton and Tomlinson, Civil Actions Against the Policeexplains:
(b) False imprisonment 30.False imprisonment is established on proof of the fact of imprisonment and the absence of lawful authority.[41] If a police officer makes a lawful arrest with malicious motive, an action in false imprisonment is not available. But an unlawful arrest is a false imprisonment.[42] Section 50(1) and (1A) of the Police Force Ordinance Cap 232 provide inter alia it shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of an offence whether or not he has seen any offence committed. According to Yeung May Wan & ors v HKSAR[43] that applied O’Hara v Chief Constable of the Royal Ulster Constabulary,[44] the arresting officer should have formed at the time of arrest genuine suspicion that the offence in question has been committed having in mind the material elements of the offence and no more; it falls well short of prima facie proof nor does it require a positive belief.[45] The test is simply whether the objective information available to the arresting officer supports reasonable grounds for suspicion of guilt with no general or absolute rule that he must make all practicable enquiries to confirm/dispel his suspicions before making an arrest.[46] 31.If a police officer arrests the claimant following an accusation made against him by a third party (even if it subsequently proves to be false), unless there are surrounding facts to show the charge is unreasonable, the police officer may have a defence in that he had reasonable grounds to suspect the claimant was guilty of an arrestable offence.[47] Potter LJ in Jarrett v The Chief Constable of West Midlands Police said as follows:[48]
(c) Misfeasance in public office 32.The essence of the tort is abuse of public office. The principles are derived from Three Rivers District Council v Governor and Company of the Bank of England (No 3):[49] (a) the conduct must be that of a public officer exercising power in that capacity, (b) the officer must either intend to injure the claimant by his acts, or knowingly or recklessly act beyond his powers and that the act will probably injure the claimant, (c) damage must thereby be caused to the claimant in circumstances where the public officer knew the act would probably cause damage of this kind. 33.Police officers carrying out police duties are public officers exercising power in that capacity.[50] The official must deliberately engage in conduct he/she knows to be inconsistent with obligations of the office,[51] and the requisite mental element is “malice” so mere negligence is insufficient.[52] Here, P’s case rested on “targeted malice” (ie the official did the act intentionally with the purpose of causing loss to the claimant who was at the time identified or identifiable). The burden of proving malice is a high one: it should only be alleged on the basis of proper evidence, and the facts supporting the allegation of malice should be fully pleaded.[53] Further, the official must have acted in the knowledge that his act would probably injure the claimant, and the official’s intent/knowledge must be directed at the harm complained of or harm of the type suffered.[54] (d) Burden of proof 34.Mr Leung relied on Halsbury’s Laws of England which suggests “[the] burden of proof, in the sense of the burden of adducing evidence is not stationary; when the plaintiff has given such evidence as, if not answered, will entitle him to a verdict, the burden of proof is shifted to the defendant”.[55] This is nothing more than saying the claimant (on whom the legal burden lies) has an evidential burden to adduce sufficient evidence to raise an issue as to the existence or otherwise of a fact in question whereupon the spotlight switches to the defendant to discharge his evidential burden of raising a prima facie innocent explanation, and if that is satisfied the claimant has to establish on proper standard of proof the defendant’s prima facie innocent explanation is to be rejected. 35.If the defendant chooses to adduce some countervailing evidence such that the 2 sides’ versions are contradictory and mutually exclusive, the burden of proof is practically an assessment of the parties’ relative credibility and cogency of evidence/inferences. As said in Clerk & Lindsell on Torts, “[the] issue of whether the defendant had reasonable and probable cause to institute a prosecution …… will normally depend on resolving a conflict of evidence between the claimant and defendant”.[56]Mr Leung cited Amstrad Consumer Electronics Plc v The British Phonographic Industry Limited where Whitford J said as follows:[57]
36.But where the defendant chooses to leave the claimant’s prima facie case unanswered by not adducing any evidence at all, the court can (if there is reasonable basis) draw inferences from a party’s failure to rebut it.[58] But these observations are predicated upon evidence tending to establish the claimant’s claim having been advanced in the first place, and the absence of any countervailing evidence adduced by the defence. Further, the authorities do not say a court must, as opposed to may, convert such evidence into proof of the claimant’s case in the absence of evidence adduced by the defendant on a particular issue.[59] But here, Ds called the identified police officers impugned by P to give evidence, and their evidence contradicted P’s case. (e) Standard of proof 37.For allegations of malice, fabrication, lies, falsities, fraud, concealment, etc, they must be plainly established and the cogency of the basis relied upon must be assessed by examining the particular factual matrix and by applying the standard of balance of probabilities taking into account 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 would conclude that the allegation is established.[60] III. WITNESSES 38.P herself gave evidence and called Chanahan Wannapha Angel (“Angel”) as her witness. Ds had 8 police witnesses. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the available documentary evidence and the inferences based on inherent probabilities and/or undisputed facts.[61] 39.Ds’ witnesses The police witnesses came from 2 police stations in KC Police District (“KCDIST”), ie KCPS and Hung Hom Police Station (“HHPS”). The WPCs were from HHPS: (a) WPC1017 joined the police in 1998 and was with District Special Duty Squad (“DSDS”) 1 KCDIST between December 2005 and October 2006, and (b) WPC4970 joined the police in June 2005 and was with PSU 4 KCDIV from December 2005 to August 2008. By September 2006, WPC1017 and WPC4907 respectively had 8 years and 1 year 3 months of police experience. 40.The other police witnesses were from KCPS but were attached to MESU, PSU and District Anti-Triad Squad (“DATS”) respectively. WSIP Ng joined the police in 1978 and retired in 2012. From July 2005 to June 2007 she was sub-commander of MESU KCDIV (“MESUC KCDIV”) (which was her 1st posting with MESU) having previously worked in crime units. By 2006 she had close to 30 years’ police experience. 41.PC48544 joined the police in 1988 and became Sgt in June 2007. From May 2006 to June 2007 he was with PSU KCDIV, and then transferred to Ma On Shan Police Station. By November 2006 he had about 18 years’ experience, but had not been trained to work at the Regional 999 Control Centre (“Control Centre”) and/or KC console (“KCRC Console”) or trained to log/handle/understand their computer records (“999 Records”). 42.PC47421 joined the police in 1987. From November 2003 to November 2007 he was with PSU 1 KCDIV, and from December 2007 to May 2008 he was with KC Task Force. He was no longer at KCPS after May 2008. He too had not worked at the Control Centre or KCRC Console, and did not really know how the 999 Records were made. 43.PC775 joined the police in October 1998 and left in 2003/2004 for further studies and other work before re-joining the police in October 2005. He was with MESU KCDIV from March 2006 to March 2007, and left the police force in October 2011. 44.Sgt46400 joined the police in 1986, and became Sgt in 2002 and SSgt in 2011. From February 2004 to February 2007 he was with the Complaints Against the Police Office, and from February 2007 to May 2009 he was at KCDIST. He was attached to DATS KCDIST from September 2007 to May 2009. In 2007 DATS KCDIST comprised inter alia a senior inspector (“SIP”), a SSgt and 3 Sgts, and Sgt46400 was the only one with the nickname Ah Pau (阿豹). In the course of giving evidence, Sgt46400 disclosed/produced his statement given to the ICAC on 14 February 2011 (“Sgt46400’s ICAC Statement”) following report made by P to the ICAC in May 2010. 45.WIP12458 Wu Ka Yun (“WIP12458”) joined the police in 2010, and was MESUC KCDIV in 2012. She did not know the above police officers. 46.Overall impression Angel’s evidence was not significantly material, and did not really feature in Mr Leung’s closing submissions. As for P, I give her full allowance for the fact that giving evidence might be a stressful experience, but it was plain she had little difficulty in understanding the questions put to her by Mr Shum, counsel for Ds, and her testimony gave strong impression of an astute witness attuned to the thrust of such questions. I am unimpressed by P as witness. Some of the elaborations she added at trial were obviously not reliable (eg she attributed misconduct to certain police officers even before they were with KCDIST), and she was not shy in embellishing her evidence (eg her description of what transpired at the Pub on 9 November 2006 was not found in her pleadings or statement evidence). I am persuaded that upon P’s acquittal in the Noise/Supervision Trials and upon her unconditional release from P’s Arrest, her perspective of these events became distorted through the prism of resentment and prejudice, and she had convinced herself of an evil scheme concocted by numerous police officers spanning different police units/stations that targeted her/Pub, which conviction probably strengthened over time and coloured her perception of other events. But P was unable to overcome the overall unreliability/ implausibility of her case. 47.Apart from WIP12458, the police witnesses were closely cross-examined on their recollection of events. They readily agreed they would not have remembered much of routine police work 7-8 years ago, but most could refresh their memory from transcripts of evidence and police records that involved them. I find them to be helpful witnesses who gave their evidence in a fair and measured way with genuine attempts to recall matters. Some parts of their recollection filled gaps in the documentary records, and the further information they provided were largely in response to wide-ranging cross-examination, none of them gave rise to concern over their overall reliability. They were unable to assist on some details which I accept they had truly forgotten, but they were firm on the key points that mattered. At times their evidence was shown to be mistaken or discrepant, and I have approached these matters with caution as P urged me to view their conduct in a dark light, but on the whole I am not persuaded these matters suggested they were dishonest fabricators of evidence with corrupt motive as P would have me believe. IV. PREMISES 48.The front/rear entrances of the Pub were double-doored. The rear door led to a toilet and then to a small “天井” (so described by Lee and PC775) or small lane (so described by P and PC47421). In his statement to the police dated 21 March 2007 (“Lee Statement”), Lee (a Resident familiar with the Building) explained “近樓梯位有一個天井空間位,由地下直通往天台頂部”. I find it was a small open-air recess (where rubbish and/or other odds and ends were placed) that was bounded by building walls with an exit that led to a public road. 49.The interior of the Pub was not partitioned. There was a wet-bar (“Wet-Bar”) to the right of the entrance, and other tables against the left and right side walls. A raised dais was at the back left corner, and a red sofa was at the back right corner. There were 4 loudspeakers. Music/karaoke equipment was at the back. There was a “self-service” placard at the Wet-Bar and notices in Thai writing on the walls, but the police witnesses did not have much impression about them. V. LICENCE CHECKS 50.Problem Bars MESU KCDIV comprised 1 WSIP, 1 Sgt and 3 police constables (“PCs”). On balance I accept there were about 120 liquor-licensed premises in KC area and about 20 odd problematic licensed bars (“Problem Bars”) that had more noise complaints and/or crime incidents requiring frequent police visits and/or licence checks. District Intelligence Squad (“DIS”) would collect intelligence on the Problem Bars for consideration by KC divisional commander (“KCDVC”) at monthly meetings, and KCDVC would direct deployment on areas requiring police attention/visits. On balance I accept the police regarded licensed bars with more noise complaints problematic given the need for police resources and impact on Licence renewal. MESU KCDIV kept police files for the Premises (“Pub Police File”) and other licensed premises. Such files for the Problem Bars had more 999 Records and more Visit Records of Licensed/Unlicensed Premises (“Visit Records”), so MESU KCDIV knew about them even without sight of DIS’ “list” (which essentially was a collation of intelligence materials rather than a paper list). 51.Licence applications When notified of a Licence application made to the Board, MESU KCDIV would interview the applicant, carry out background check via DIS, and MESUC KCDIV would consolidate information and make recommendation to the Board. 52.Routine checks MESU KCDIV carried out routine licence checks on licensed premises usually by 2 PCs with a team in-charge who must be at least a Sgt, so WSIP Ng did not have to lead every MESU licence check. The frequency for routine checks (as determined by KCDVC) varied, say, once every 3-6 months for licensed restaurants, 1-2 times/month for licensed bars but more for the Problem Bars, and there were unplanned licence checks.[62] Late night licence checks did not fit MESU KCDIV’s daytime work hours, so KCDVC had to approve late shift B or shift C duty for MESU routine licence checks that could cover about 10 licensed premises a night, each taking about 10 minutes. Given MESU KCDIV’s assigned strength, KCDVC would delegate some licence checks (not PSU core duties) to PSU KCDIV deployed on late shift B and/or shift C duty, but the team in-charge must be the PSU sub-commander. DATS, DSDS and/or Criminal Investigation Department (“CID”) also carried out licence checks as part of their own crime-related charter. So in 1 night DATS/DSDS could visit certain licensed premises for anti-crime work, PSU could visit for handling 999 call Incident Reports (“IN Reports”) and/or reports to the Duty Officer (“DO”) at the Report Room (“Reports”), and MESU KCDIV could carry out routine licence check. 53.I disagree with the suggestion that MESU/PSU KCDIV carried out 1-2 routine checks/month on all licensed premises so any increase in licence checks for some meant reduction for others. In fact, the frequency of licence checks depended on KCDVC’s instructions on police deployment (which varied with different licensed premises), and sometimes MESU KCDIV even treated joint operation licence checks as routine checks. 54.Joint operations MESU KCDIV might (but not necessarily) engage in joint operations with other crime units, eg force/region-wide Operation Levington, when the involved police units would turn out their teams at the same time to visit different licensed premises (usually giving priority to the Problem Bars). A joint operation police unit could visit 7-9 licensed premises a night, each taking about 10 minutes (but possibly longer for Operation Levington). 55.Visit Records For licence check, a standard-form Visit Record would be completed at the scene for the Licensee/PIC to countersign (with company chop). But PSU beat patrol officers handling IN Reports and Reports would not complete Visit Records. After the licence check, the reporting officer had to ask the DO for a computer-generated report number. Except for sensitive crime investigation, a copy of the Visit Record would be sent to MESU KCDIV. MESU KCDIV also monitored the DO’s computer system for other police visits (eg noise complaints) and actions taken (eg advice, verbal warning and/or prosecution). If there was any criminality, the frequency of routine checks might have to be upgraded. MESU KCDIV would consolidate/compile a police visit summary on licence checks and complaint handling (“Police Visit Summary”) for each licensed premises. MESU KCDIV would forward it to the Licensee and the Board about 2-3 months before Licence renewal together with their recommendations. VI. NOISE COMPLAINTS 56.999 call noise complaints to the Control Centre were handled by beat patrol officers. When an informant made a 999 call noise complaint in KC area, it would be computer-logged as “999K” by an officer on his terminal at the Control Centre. The Control Centre would notify KCRC Console where an officer on his terminal would input data for generation of an IN Report number. Each IN Report had an electronic log (with computer-generated log-entry date/time which was not real-time for the recorded event) and at times a case details report, ie the 999 Records. Usual police handling of a noise complaint is outlined in the paragraph below, but each noise incident would be unique and might be dealt with differently. 57.The PSU sub-commander would work with KCRC Console (that had the shift duty list) to assign a beat patrol officer to take charge of the noise incident. The assigned officer or his partner would “roger” such assignment by police radio handset (“PRH”), and proceed to the scene. He could call KCRC Console by police mobile telephone (“PMT”) for further information (if any), but he might not always get through or he might have arrived before he could. He would notify KCRC Console by PRH of his arrival at the scene. The beat patrol officers would then check whether noise was found. If no, they would inform the PIC no further action would be taken or advise him to keep noise level low as there had been a noise complaint. If yes, they would ascertain whether it matched the complaint, wait a while to see if it was loud/persistent, enter the premises to see if the noise level inside was the same, tell the PIC about the noise complaint, take action accordingly (eg give advice or verbal warning or decide to summons), and record the noise heard and action taken in their police notebooks (“Notebooks”). When they left the scene, 1 of them would report their departure to KCRC Console by PRH. Within reasonable time 1 of them would call KCRC Console by PMT to give a brief report (eg the PIC’s particulars, whether noise was found and what action was taken), but sometimes such report had to be deferred, eg the beat patrol officers had to handle other police work or the line was busy. VII. P’s CASE (a) Licence checks 58.Aqua Snack Bar I find WSIP Ng knew from the Pub Police File the police regarded Aqua Snack Bar as a Problem Bar as there had been many noise complaints and Chan as Licensee had been found absent from the Premises with verbal/letter warnings given. On occasions the Board had approved the appointment of a temporary Licensee for Chan’s absence. Mr Leung complained this was not previously mentioned, but there was nothing sinister since WSIP Ng fairly accepted Aqua Snack Bar was a Problem Bar and there were times when Chan could not explain his absence (see Police Visit Summary on noise complaints for the period from 21 December 2005 to 23 February 2006). 59.March to July/August 2006 Since 1 March 2006, P/Husband worked at the Pub, and P told the customers, her 2 employees and the police officers who came for licence checks she was new owner. Chan as the paper Licensee still attended the Pub. The Visit Records showed that in March/April 2006 Chan was absent only twice (once for his day-off) for 9 licence checks. But after P submitted her application for transfer of Chan’s Licence which the Board notified the police on 19 April 2006, Chan absented himself as evident from the Visit Records for May-August 2006. 60.I find that after 1 March 2006 Chan did not have any temporary Licensee otherwise the PIC would have shown the temporary Licence to the police officers on licence checks.[63] I do not believe Chan who had sold the Pub to P (who by then had submitted the Application Form to the Board and was working at the Pub) would pass over P to appoint another as temporary Licensee. I find Chan was absent because he lost interest in the Pub after the sale, and the Visit Records showed he was on a trip to Switzerland. At trial I refused Mr Leung’s application for specific discovery of documents relating to the Board’s grant of temporary Licence(s) for Chan’s absences especially after 1 March 2006, and reserved my reasons. I am unable to see the relevance of these documents for the period before P first came into the picture on 1 March 2006, and I have found there were no temporary Licenses since that date. 61.On balance I find that pending P’s application for transfer of Chan’s Licence to her (as known to the police on/after 19 April 2006) the police exercised police discretion not to summons Chan for breach of the Personal Supervision Condition noted during licence checks, but the fact remained Aqua Snack Bar was a Problem Bar as explained above. Mr Leung disagreed saying it was WSIP Ng’s “attitude to prosecute each and every breach of licencing condition”. But WSIP Ng and PC775 gave evidence that the police would exercise discretion, and could take no further action (eg when the Licensee was on sick leave) or give advice, verbal warning and/or written warning in lieu of prosecution. Indeed, before P allegedly engaged Ah B Gor (阿B哥) as referred to in paragraph 74 below:
So to bolster her case, P testified some licence checks were unrecorded. I shall deal with this in paragraph 68 below but suffice to note here I reject such assertion. 62.P next claimed that during licence checks after 1 March 2006 when Chan was still the paper Licensee, the police officers would leave soon after speaking with Chan (if present). I find nothing wrong with this as police officers on licence check had to deal with the Licensee (if present) for usually 10 minutes or so. These allegations did not show Chan had any private arrangement with or got better treatment from the police. 63.August 2006 to May 2009 For licence checks during September 2006 to May 2007 shown in the Visit Records, apart from March 2007, there were 4-6 licence checks (including Operation Levington) a month, which was consistent with or perhaps slightly less than the 5-8 licence checks a month from April to August 2006. Mr Leung complained this was at least 2.5 times more than the average of 2 a month (which P attributed to her non-payment of bribes to a “watcher” as middleman for the police). I reject such argument which ignored the fact (which I have found) that the police considered the Pub to be a Problem Bar both before and after P acquired it, and there was similar frequency for licence checks both before and after Chan left the Pub (apart from March 2007). 64.Mr Leung suggested the 22 licence checks in March 2007 (19 licence checks and 4 Operations Levington) demonstrated WSIP Ng was putting pressure on P to plead guilty to the Noise/Supervision Summonses. But a careful study of the Visit Records showed heightened anti-triad concern at that time as evident from the 2 and 4 Operation Levington licence checks by DATS KCDIV in February and March 2007 respectively (whereas from August 2006 to January 2007 there were only 2 Operations Levington on 21 August and 20 December 2006) complemented by multiple PSU licence checks on 18 occasions in March 2007. But as explained in paragraphs 52-53 above, the frequency and police deployment for PSU licence checks were determined by KCDVC and not MESUC KCDIV. 65.WSIP Ng attended 1 MESU licence check on 16 March 2007 but the team in-charge was Superintendent Yip Kwok Kuen. I find such licence check (probably an unplanned one referred to in footnote 62 above) understandable because P appeared before KC MagCourt on 15 March 2007 for the Music Summons, and the magistrate imposed bail conditions that included inter alia P was to stay away from the Pub. In my view, MESU licence check the following day was to check compliance as evident from the Visit Record that stated “法庭唔俾[P]在場……” I do not accept WSIP Ng would manipulate KCDVC to endorse instructions for additional licence checks in March 2007 to pressurise P to plead guilty to the Noise/Supervision Summonses. 66.In April 2007 (ie the very month of the Noise/Supervision Trials), the frequency of licence checks was back to the usual 6 visits consistent with the Pub’s status as a Problem Bar before/after transfer of the Licence to P. In April/May 2007 there was no Operation Levington, and MESU did not carry out licence check at the Pub. The next MESU licence check on 7 July 2007 was led by SIP Yiu Lai Man as the new MESUC KCDIV as WSIP Ng left MESU KCDIV after June 2007. 67.P’s claims P claimed the police targeted her/Pub. After the Licence was transferred to her, the police came a few times to the Pub for licence checks and asked who the “watcher” was. As she was regarded as “uncooperative” for not having one, the police officers came more often and the nature of licence checks changed, eg the police officers required her to turn on all lights, shouted at her (at times with foul language) and her customers, harassed her by surrounding/crowding her, evicted customers from the Pub, and obstructed her from carrying on business. 68.P asked me to infer this from the enhanced frequency of licence checks, but I have found there was not much difference before/after transfer of the Licence to P and the increased licence checks in March 2007 were due to anti-triad concerns. P then tried to say there were unrecorded licence checks without Visit Records, but such allegation never featured in the statement P gave to the ICAC on 6 May 2010 (“P’s ICAC Statement”) or in P’s witness statement dated 14 November 2012 (when she was legally represented). Had the impugned police officers wished to shelter behind unrecorded licence checks to create an illusion of modest frequency, there was no reason for them to record 19 licence checks for March 2007. I find on balance licence checks on the Pub were all documented by the Visit Records signed by the Licensee/PIC. (b) Noise complaints 69.December 2005 to February 2006 The Police Visit Summary submitted to the Board showed 12 IN Reports for noise complaints from 5 December 2005 to 23 February 2006 with no noise found on 3 visits but 7 verbal warnings and 2 advices given on other visits. 70.1 March to July/August 2006 The letters by the Board to P, Police Visit Summary and Leung Summary all showed noise complaints by the public/Residents during this period. The Leung Summary showed increased frequency up to 39 IN Reports for noise complaints from 10 March to 25 June 2006 when Chan was the paper Licensee and P/Husband (new owner) were operating the Pub. P claimed when police officers came to the Pub to handle noise complaints they would have a few words with Chan (if present) in private and then leave, and she blamed the increased frequency of police visits for noise complaints on the police’s targeting of P/Pub. 71.I disagree. The IN Reports for noise complaints were initiated by the public (eg the Residents) and not by the police who could only react by assigning beat patrol officers to handle such complaints. There was no suggestion that the impugned police officers colluded with members of the public in making noise complaints. Leaving aside a few pranks (which on the whole seemed unlikely for most of the noise complaints since P claimed the Husband was on fairly good terms with the Residents), the noise complaints were probably driven by disturbance caused by music/noise that emanated from the Pub/Premises. In raising the noise issue with the Board, MESU KCDIV merely reflected that factually there were more IN Reports for noise complaints at a time when P/Husband practically ran the Pub’s business notwithstanding Chan was still the paper Licensee. I cannot see deliberate targeting of P/Pub. 72.From August 2006 P claimed the Husband approached the Residents to work out an acceptable noise level whereupon the complaints eased, and she was aggrieved the police still raised the noise issue when she applied for Licence renewal. P said she also installed acoustic lining on the walls/ceiling and used rubberbands to hang the loudspeakers, but the police still complained of the noise problem. But on balance I find the noise issue was not resolved. The IN Reports for items 40-64 (except items 46, 54 and 57) of the Leung Summary showed the noise complaints did not cease. Indeed, the public/Residents made 22 noise complaints from 14 August to 7 November 2006 (most of which were by Lee), and P must have been aware of this as she was present on most occasions when the police officers visited the Pub for such complaint handling. The Board’s letter dated 20 December 2006 showed the noise problem persisted. Plainly, the Pub remained a Problem Bar with many noise complaints. EPD also made clear its noise assessment results would not serve to indicate whether or not the noise level was acceptable to the Residents. 73.Police discretion More importantly, neither Chan nor P was summonsed for noise annoyance from 1 March to 7 November 2006. The Leung Summary showed there were 59 IN Reports for noise complaints (ignoring items 3, 8, 46, 54 ad 57) during that period, and the police officers either gave advice or verbal warning to the PIC or took no further action. Items 67-150 (except items 90, 97, 102-103, 106, 108 and 150) of the Leung Summary further showed there were many noise complaints after 9 November 2006 until 19 April 2009, but still P was not summonsed. The beat patrol officers who handled such noise complaints repeatedly exercised police discretion to give verbal warning or advice to keep noise down. I am unable to see any concerted effort by police officers of MESU/PSU KCDIV to deliberately target P/Pub by increasing the frequency of licence checks, making unrecorded licence checks, and acting improperly with a view to make P pay bribes through middlemen. (c) P’s claims about watcher (睇場) and bribes 74.But P’s allegations went further. In her witness statement P claimed police officers of DATS KCDIST targeted the Pub after she was acquitted of the Noise/Supervision Summonses in April 2007 by parking a police van outside the Pub and wandering outside the Pub to discourage customers from entering the Pub, but after she engaged Ah B Gor as “watcher” in August 2008 and paid monthly protection fee to Ah B Gor as from October 2008, police officers of DATS KCDIST did not show up anymore and she realised it was due to the “watcher”/bribes. In P’s ICAC Statement, it was also said the licence checks and police visits for noise complaints were reduced from twice a week to once a month. 75.I will deal with this below, but suffice to note here that after August or October 2008 there were certainly more licence checks and other police visits than once a month as P alleged. Further, although the Visit Records did not show DATS licence check (except Operations Levington on 2, 6, 13, 21 March 2007, 31 August 2007, 3 November 2007, 22 November 2007, 18 January and 15 August 2008) from January 2007 to August 2008, DATS turned up at the Pub for DATS licence check on 7 November 2008. At first, P tried to explain this away by saying she only asked around in August 2008 and started to pay protection fee to Ah B Gor on 1 October 2008, but still it did not explain the DATS licence check on 7 November 2008 when she had allegedly paid protection fee for 2 months. P was constrained to concede DATS KCDIV still carried out licence check after she engaged Ah B Gor for which she signed the Visit Record, which in my view undermined her veracity. 76.P alleged she/Pub were targeted by (a) identified police officers from MESU/PSU KCDIV and DATS KCDIST (especially the Three) and the WPCs from HHPS, and (b) unnamed police officers of MESU/PSU KCDIV who carried out licence checks and DATS KCDIST who parked the police van and wandered outside the Pub. She claimed a few 10s to 100 police officers of both plainclothes/uniformed streams were involved. Such allegations were implausible as PSU/MESU licence checks were under KCDVC’s deployment (rather than any manipulation by MESUC KCDIV), there were few anti-triad licence checks other than Operation Levington, and the WPCs from another police station only went to the Pub on inter-department (ie police and ImmiDept) operation. 77.I now turn to P’s specific complaints against the Three. Her impression was Sgt46400 (ie Ah Pau) first threatened her (and did so many times afterwards), then PC47421 threatened her many times, and about 1-2 months after Sgt46400 turned up WSIP Ng also threatened her. (d) P’s complaints against Sgt46400 78.P’s witness statement referred to an occasion (which P testified to be after Chan left the Pub in August 2006 but before 9 November 2006) Sgt46400 said to her “你唔合作,你唔夠我哋玩,我哋好容易玩到你死”. P testified he said similar words to her on several occasions and frequently asked who the “watcher” was, but when P replied there was none “跟住佢就話我玩嘢,跟住佢話「我大把人同你玩」” and/or he said “……佢唔合作，要玩死佢，好易玩死佢，「我哋好多人，好易玩死嘅啫」”. 79.Sgt46400’s ICAC Statement admitted that when he was with DATS KCDIV he visited entertainment establishments (including the Pub) in KC area for licence checks, and he had heard the Pub had many noise complaints necessitating frequent police visits. He recalled the Licensee was a female and the PIC was a fat male in his 40s/50s. Given Sgt46400’s previous visits to the Pub in the course of police work, I find it unsurprising P knew about his nickname that was known to and used by his police colleagues. On balance I do not accept Sgt46400 mentioned his nickname in the course of saying threatening words to P. 80.I reject P’s allegations. Sgt46400 could not have uttered threatening words to P between August 2006 and 9 November 2006 as he was posted to KCDIV only in February 2007, and he became Sgt of DATS KCDIV only since September 2007. P was plainly embroidering her case. Apart from Operation Levington (which was force/region-wide joint operation not dictated by DATS KCDIST alone), the Visit Records showed few DATS licence checks for 2007-2009. I also see nothing untoward in ICAC taking a witness statement instead of an interview record / cautioned statement from Sgt46400 in their investigation. (e) P’s complaints against PC47421 81.P claimed that a uniformed police officer (later known to be PC47421) came to the Pub a few times before 9 November 2006, and told her to close down the business otherwise he would summons her and she would have to pay legal fees until she became bankrupt. These alleged utterances were in the same vein as Sgt46400’s alleged threats, and my rejection of the latter undermined the reliability of the former. On balance I reject P’s allegations. P’s pleadings and/or witness statement did not assert PC47421 (on duty and in uniform) came to the Pub before 9 November 2006 to utter threats. 82.P also complained against PC47421’s misconduct concerning the 2nd noise incident on 9 November 2006 that was the subject matter of the Noise Summons, and his visit to the Pub one evening after 9 November 2006 to utter threats to her. But the 999 Records showed an informant made noise complaint on 7 November 2006, and PC50087 and PC47421 were deployed to deal with such complaint. “PC47421 reported that the PIC of [the Pub] [P] …… was given a verbal warning to reduce the noise making inside the Pub”. If it were PC47421’s intent to utter threats to P and to frame her (and bearing in mind P also impugned PC50087 on the Music Summons), it was inexplicable why PC47421 (who could not have predicted there would be another noise complaint 2 days later and/or he would be assigned to handle such complaint) did not frame a case against P that day and/or summons her for noise annoyance instead of letting her go with a verbal warning. But more of this below. Suffice to state here I reject P’s complaints. (f) P’s complaints against WSIP Ng 83.P said a plainclothes woman police officer from CID (later known to be WSIP Ng) came often to the Pub with others for licence checks in 2006-2008, and on an occasion after Chan had left the Pub in August 2006 but before the noise complaint on 9 November 2006 WSIP Ng spoke to P/Husband about a “watcher” for the Pub, told them “你哋最好執咗間嘢佢,唔係就告到你破產” (similar to what PC47421 said to P) and/or “佢跟住話有咩嘢好嘈吖,你執咗佢喇,如果唔係又畀人告,告死你呀,律師費都唔夠畀呀”, and asked P to sign the Visit Record filled out by a colleague. 84.In fact, WSIP Ng was transferred out of KCDIV after June 2007, and would not have carried out frequent licence checks on the Pub thereafter. On balance I do not accept P’s above allegations. The Visit Records showed that from 1 March 2006 to 30 June 2007 WSIP Ng led MESU licence checks on 12 April, 25 August and 19 December 2006 and 25 January 2007. Chan/Husband signed the Visit Records for the 1st and last of these licence checks, and the 19 December 2006 licence check was plainly after 9 November 2006. Even P herself was unsure whether WSIP Ng uttered threats to her on 25 August 2006. But given Chan was still the Licensee of the Pub before P’s Licence was issued on 22 August 2006, and lead time was required for MESU KCDIV to apply to KCDVC for approval of late shift B or shift C duty for licence checks, it was improbable that such licence check on 25 August 2006 was arranged after WSIP Ng knew Chan had truly left the Pub. Anyway, it was P’s case that the police initially asked her who the “watcher” was, and only later when she was regarded as “uncooperative” that they uttered threatening words. I do not accept WSIP Ng uttered threats to P just 3 days after the issue of P’s Licence. (g) Summary 85.I find on balance P failed to prove any abuse of police power, malice or collusion/scheme by the Three and/or other unnamed police officers of DATS KCDIST and MESU/PSU KCDIV to target P/Pub and cause her injury. Instead, I find these police officers were honestly carrying out their duties within their police powers. VIII. FALSE IMPRISONMENT CLAIM 86.P was arrested on 28 September 2006 for employing a person not lawfully employable, brought to KCPS for investigation, and detained for about 3-4 hours before she was released on bail. P pleaded the WPCs (who copied from each other’s Notebooks) colluded/framed a false case against Somchai by alleging he waitered at the Pub, and she was wrongfully arrested for employing Somchai as a person not being lawfully employable. (a) P’s case 87.P said she/Husband helped in cleaning/clearing tables at the Pub, but they became short-handed when there were more and more regular customers, so the customers got drinks for themselves from the Wet-Bar (where she would leave some buckets of beer if she had to leave the Pub to run errands), and regular customers helped her serve new customers or even collected payment for her. 88.At/about 11:00pm on 27 September 2006, P was at the Wet-Bar cutting some fruit when 2 women (later known to be the WPCs) opened the door, came in to take a look and then left. At about 12:00 midnight P went out for some food. There were 3 more tables of customers when she returned, and she chatted with a customer at table no 3 who gave her money collected from other tables. P saw the WPCs at table no 8 with a bucket of beer. She went out to buy mangoes for customers at table no 10, but 2-3 minutes later she was asked to return to the Pub. The policemen at the Pub told her Somchai (a regular customer whom P knew was a Thai visitor to Hong Kong for pleasure) was arrested. P was also arrested for employing Somchai who was not lawfully employable. They were brought to KCPS. (b) Somchai Trial/Appeal 89.At the Somchai Trial, Somchai testified he visited the Pub for entertainment, and when he walked past the WPCs with a bucket of 6 bottles of beer he greeted the pretty ladies and “我只係講一句beer,即係啤酒,佢就點頭, …… 我就將嗰桶啤酒擺喺檯面,跟住我就開啤酒蓋同埋即係倒啲啤酒 …… 斟完啤酒之後,佢就敲檯表示多謝,我自己咁話no,唔緊要嘅 ……”, and then he returned to his friends to drink beer. Chukanya gave evidence she knew Somchai to be a tourist, and he was sociable/helpful around the Pub. P gave evidence that she did not employ Somchai or ask him to do any work at the Pub which was a self-service bar. 90.Several things are of note. First, despite placards/posters at the Pub stating it was a self-service bar, it was Somchai who placed a bucket of beer on the WPCs’ table and opened/poured for them, so his defence was not total denial as to what happened but one of misunderstanding his gallantry as waitering. Secondly, Somchai confirmed he did not see P (whom he called Pha) inside the Pub that evening (even though he went up to the Wet-Bar). Thirdly, P admitted she cut fruit at the Wet-Bar and went out to buy mangoes that a customer wished to eat. I find on balance cut fruit was served at the Pub on 27-28 September 2006. 91.Mr Leung had no half-time submission. The trial magistrate found the WPCs honest/reliable despite minor discrepancies in their evidence, but held Somchai and his witnesses (including P) were not honest witnesses:
The trial magistrate found Somchai served/poured beer for the WSPs, served other customers, and helped to clear/wipe tables after they paid their bills and left, and said Somchai “斷不會無故替涉案Grow酒吧” do so when he allegedly went to the Pub with friends for drinking/entertainment. He concluded Somchai “在該洒吧接受雜工的僱傭工作，即侍應工作”, and convicted/sentenced him. 92.Somchai appealed, and the Judge held the trial magistrate rightly rejected Mr Leung’s request to recall the WPCs for further cross-examination. The alleged similarities in the contents of the WPCs’ Notebooks were only raised on appeal, the Judge reluctantly quashed the conviction on the basis of Mr Leung’s “原審時準備不足”, and ordered retrial with costs in favour of the prosecution. Given such history, the suggestion that the WPCs copied from each other appeared to be an afterthought argument, and in light of the analysis below I do not find such argument cogent or convincing. (c) Targeting P/Pub? 93.Mr Leung submitted P/Pub were targeted for anti-vice operation with “the arrest of [Somchai] and P and the subsequent prosecution of [Somchai] …… used to impede P’s application for renewal of her liquor licence” as evidenced by the police’s information to the Board of illegal activities and noise complaints at the Pub and recommendation to impose the addition conditions in paragraph 9(i)-(iv) above. P further alleged the police tried to find fault with the Pub, lay a charge on her, and make her pay legal fees until she went bankrupt, and even though the Three were not present on 27-28 September 2006 they had told P they had a lot of people to play with her, so the WPCs involved in the Somchai Charge might have been cooperating with the Three in a wide-ranging scheme against her/Pub to press her to appoint a “watcher”. 94.On balance, I reject these contentions. First, Sgt46400 was not even attached to KCDIV when Somchai/P were arrested on 27 September 2006. Secondly, the undercover operation had nothing to with KCPS’ MESU, DATS and/or PSU teams. The WPCs were stationed at HHPS: WPC1017 belonged to DSDS KCDIST, WPC4970 belonged to PSU 4 KDIV. In fact, WPC1017 had never entered and WPC4970 had never heard of the Pub before. Thirdly, WPC4970 only had a year or so experience as a police officer and it was her 2nd (and last) undercover operation. Her involvement was not pre-planned as she only volunteered for the operation a few days before when her superior canvassed expression of interest. Fourthly, the undercover operation was an inter-department operation between the police and ImmiDept that involved visits by police and immigration officers to various bars/pubs in KC area (including the Pub). Somchai was prosecuted by ImmiDept (not the police), and P reported regularly to Immigration Task Force (not the police) until 16 March 2007 and was unconditionally released by ImmiDept when Somchai’s case was over. Against such background, I cannot see any cogent basis for suggesting the WPCs as between themselves or cooperated with the Three to target P/Pub and/or to cause trouble for P’s Licence renewal. (d) Burden of proof 95.Mr Leung argued (a) the WPCs’ Notebooks were practically identical which showed the WPCs colluded/plagiarised in writing up their Notebooks, (b) this was prima facie evidence of fraud in framing a case against Somchai/P, (c) “[the] evidential burden of disproving collusion and/or plagiarism shifted to WPCs” so Ds had to neutralise such prima facie evidence by giving credible explanation if they could, (d) it was not enough for Ds to call the WPCs to give evidence because (i) their brief witness statements did not expressly deny collusion or explain why they copied from each other and (ii) they should have taken the initiative to explain the irregularities in their Notebooks and not leave it to oral evidence at trial, and (e) so Ds failed to discharge their burden in showing there was no copying and no collusion. 96.I have in paragraphs 34-37 above set out the burden and standard of proof which I shall adopt. I also add the WPCs as factual witnesses gave their own account of what happened on 27-28 September 2006, but they did not have to anticipate P’s case in their statement evidence. It is not the function of witness statements to argue a party’s case or to argue with opposing witness(es) as explained in Hong Kong Civil Procedure 2016:[65]
Here, Ds called the impugned police officers (ie the WPCs) to give evidence, and they denied making false allegations (whether by copied Notebook entries and/or false testimony) against Somchai as fabricated excuse for P’s Arrest. This is wholly different from the cases cited by Mr Leung when the claimant failed to adduce any evidence at all on the relevant subject. In any event, there is no shifting of the legal/persuasive burden for Ds to disprove P’s contentions. 97.It is true there were some minor discrepancies in the WPCs’ evidence, but they were firm on the core matters and not shaken under cross-examination. The events happened and they gave evidence in the Somchai Trial some 7-8 years ago. I am not persuaded the discrepancies were so startling to give rise to concern over their veracity. (e) Going to the Pub 98.Just before the undercover operation, the WPCs were briefed to proceed to the Pub and pose as customers to observe whether there were any unlawful activities. They went by police van, and alighted on the Road to look for the Pub. WPC1017 reported to her superior by telephone. The WPCs approached the Pub twice. Mr Leung criticised their conflicting evidence on the first approach at/about 11:15pm (ie WPC1017 said she entered the Pub but WPC9470 said she did not), which although not a crucial fact, served to show WPC9470 lied because (a) she had no picture of the incident in mind and it was not recorded in the WPCs’ Notebooks, and (b) she had to be consistent with her earlier evidence in the Somchai Trial. 99.Having considered the evidence, I make the following findings. The WPCs walked along the pavement towards the Pub’s door (which was to the right of the pavement) with WPC1017 in front and WPC4970 about ½m behind. WPC1017 did not alert WPC4970 of her intention to push the Pub’s door as they walked towards it, so WPC4970 did not expect WPC1017 to suddenly turn and push the door. For WPC1017, she pushed open the door to enter but immediately left as there were not many customers inside. For WPC4970, WPC1017’s act of pushing the door was so unexpected she only realised it after WPC1017 had pushed the door, but in just a moment WPC1017 turned around to leave such that the outer door was not even completely closed. WPC1017 left WPC4970’s line of vision for about 3-4 seconds. 100.All this happened very quickly, and the above account explained why WPC4970 thought WPC1017 did not push open the inner door (but WPC4970 conceded she could not be sure as she did not know what WPC1017 did during the aforesaid 3-4 seconds). I note the WPCs did not have any prior understanding to enter the Pub together, which was different from what happened at 11:55pm when WPC1017 indicated to WPC4970 to enter the Pub, which lent weight to the above account. 101.Mr Leung made many more arguments:
102.The WPCs continued to walk along the Road, and they talked about observations to be made inside the Pub. WPC4970 had the impression they discussed about paying attention to the number of persons present and the size of the Pub as these matters might affect their personal safety and she had limited knowledge of undercover operations. I do not believe the WPCs lied about this “to neutralize the effect of collusion and plagiarism” in respect of their Notebook records. It was suggested WPC4970 would not have discussed about concern for personal safety as there was no understanding with WPC1017 on any need to observe the number of customers. But WPC4970 did testify they talked about paying attention to the number of persons inside the Pub. At/about 11:55pm, WPC1017 indicated to WPC4970 to enter the Pub, and they did. (f) Inside the Pub 103.There were about 15 customers inside the Pub. WPC1017 knew it was a Thai bar, but WPC4790 did not know. WPC1017 walked to the far end of the Pub, but when she reached the sofa she found it did not provide good observation vantage. WPC4097 recalled WPC1017 was about ½m away from her. WPC1017 said she sat down for a short while and a Thai female speaking punti (later known as Sinlapanisut Phakamat (“Phakamat”)) came up to ask them to sit at table no 8. WPC4970’s impression was that they were standing when Phakamat spoke to WPC1017, but she could no longer remember whether WPC1017 had ever sat on the sofa. 104.It was true WPC1017 in the Somchai Trial said the WPCs sat down on the sofa for a short while, but WPC4970 said in the present trial she did not. As Mr Leung accepted, such minor discrepancy was nothing crucial, and the trial magistrate found minor discrepancies in the WPCs’ evidence did not affect their honesty/veracity. There was no depute the WPCs went to the far end of the Pub and were later asked to sit at table no 8. WPC1017 was telling the truth when she said Phakamat told her someone else was sitting at the sofa because Somchai claimed he and his friends were at the sofa next to the toilet. 105.The WPCs went to table no 8 and sat facing each other. I find on balance Phakamat took their order, WPC1017 ordered beer, Phakamat went to the Wet-Bar and waved to the back of the Pub, a Thai male (later known as Somchai) went to the Wet-Bar and took a bucket of beer to table no 8 and served the WPCs by opening/pouring for them, Phakamat asked for payment, WPC1017 paid, and the WPCs drank their beer. Mr Leung said these were false allegations. But like the trial magistrate, I am unconvinced Somchai gave a bucket of beer to the WPCs and opened/poured for them because he was sociable and they were pretty ladies. Despite the placard at the Wet-Bar to the effect that it was a self-service bar, the WPCs did not serve themselves. I find on balance it was Phakamat who waved for Somchai to collect the beer from the Wet-Bar to serve the WPCs, and he was waitering. 106.The WPCs paid attention to Phakamat and Somchai as they did not appear to be local persons and Somchai served them. On balance I accept the WPCs saw Somchai served food to other customers, poured drink for them, and cleaned up the tables after they settled their bills and left. WPC1017 recalled Somchai brought cut fruit on plates to customers. WPC4907 also saw Somchai brought a plate to customers at the left table behind her who started eating, so she believed it contained food. She also had impression customers at that table settled the bill. Mr Leung argued WPC1017’s payment of the bill before the WPCs started drinking their beer showed customers did not have to pay their bills when they left. I disagree. Although WPC1017 paid for the beer, there was evidence that cut fruit was being served to other customers. Indeed, WPC4970 had impression of food being served to customers, and the customers settled the bill. 107.The WPCs exchanged observations on, say, what Phakamat, Somchai and/or other customers were doing which helped them in their observations. I accept their dialogue was essentially about paying attention to lighting, setting/size and situation/activity inside the Pub. I find that about half an hour after they entered the Pub, WP1017 went to the toilet to report to her superior by mobile telephone on inter alia her observations on Phakamat and Somchai as well as their activities, and she was instructed to continue observation. I also find that afterwards there was not much change with Phakamat and Somchai doing similar work, and some new customers came into the Pub. About an hour after the WPCs entered the Pub, WPC1017 again reported to her superior by mobile telephone. Although Mr Leung complained that WPC1017’s reports were not recorded, I accept the WPCs would only record material matters, eg essential observations of relevant activities inside the Pub, and not such reports. But WPC1017 must have made such reports for the police to time their entry to the Pub. (g) Arrests of Somchai and P 108.At/about 1:10am, Inspector Yung Man Chuen (“IP Yung”), commander of DSDS 2 KCDIST, led his police team into the Pub together with other officers of ImmiDept. WPC4970 made her report to IP Yung. At/about 01:12am, P returned to the Pub. I find on balance it was Phakamat (not P) who was at the Wet-Bar and who greeted the WPCs and took their order. At/about 01:20am, PC34296 arrested Somchai for breach of condition of stay, and PC52809 arrested P for employing a person not lawfully employable. 109.P claimed (a) P’s Arrest was wrongful as Somchai/she were framed, (b) she was taken to KCPS where the police took her fingerprints without taking any statement from her, (c) she was locked in a cell for about 3-4 hours later before she was released on payment of bail money, (d) subsequently she gave a statement to the ImmiDept, and (e) she reported to Immigration Task Force every month until Somchai’s case was over. 110.The WPCs did not arrest/detain P as P’s Arrest was effected by PC52809. Given Somchai’s condition of stay (which would have been easily ascertainable from his passport or ImmiDept’s data record), the WPCs’ reports to IP Yung on their observations inside the Pub provided cogent basis for suspecting Somchai was unlawfully waitering in breach of condition of stay. P was the owner/Licensee of the Pub, and even the WPCs knew she was the PIC before the police left the scene. So there was sufficient basis for the arresting officer to reasonably suspect Somchai was working for P as owner/ Licensee of the Pub even though the WPCs did not know about P when they were undercover. P premised the False Imprisonment Claim on the WPCs’ alleged false allegations and collusion, and she should not be allowed to expand her challenge without Ds having the opportunity to call other involved officers to give evidence. 111.Mr Leung cited R v Ip Po Fai[66] and 香港特別行政區訴柳志惠[67] which held that working at a place per se was not employment as a common understanding should exist between the employer and employee before an inference of an employment relationship could be raised, and argued there was no justification to arrest P since Somchai denied he did any work at the Pub when he was arrested. But Somchai’s denial was rejected by the trial magistrate and this court. I also refer to paragraphs 30-31 above which explained that genuine suspicion did not require prima facie proof or positive belief, so authorities on elements for proof of guilt would not take the matter further. I find that at the time of P’s Arrest there were reasonable grounds for the arresting officer to form genuine suspicion that P employed Somchai who was not lawfully employable and to arrest P, and there was nothing to show the charge by the WPCs was unreasonable.[68] 112.Mr Leung suggested that on the WPCs’ evidence the police should have arrested Phakamat (who directed Somchai to serve the WPCs) for aiding and abetting Somchai’s offence and not P who was not involved. The WPCs’ Notebooks showed Phakamat had a Hong Kong identity card, so it was probable she could work in Hong Kong. Since P rather than Phakamat was the Pub’s owner/Licensee, it was improbable for Phakamat to employ Somchai even though she might have taken on duties as manager/waiter. It was therefore unsurprising for Phakamat to be identified as P1 in the WPCs’ Notebooks. 113.P was brought to KCPS, and shortly thereafter investigation was handed over to ImmiDept who charged/prosecuted Somchai. An immigration (not police) officer interviewed P with the assistance of a Thai interpreter and took a statement from her, but she chose not to answer questions put to her. I disagree Ds hided such statement (which was not a police document). When it arose out of cross-examination, DoJ quickly procured it from Immigration Task Force to provide to Mr Leung. Further, it was Immigration Task Force (not the police) that required P to report regularly until she was eventually released. There was no plea/evidence that ImmiDept was party to any police scheme to target P/Pub. In all circumstances and taking into account the analysis of the WPCs’ Notebooks below, I am satisfied P’s Arrest, her detention at KCPS and her regular reporting to Immigration Task Force were lawful, and there was no false imprisonment. (h) WPCs’ Notebooks 114.Mr Leung submitted the WPCs copied the contents of their Notebooks from each other to frame a case against P/Pub. 115.Post-recordings The WPCs’ Notebook entries were post‑recordings. WPC1017 said hers were made at KCPS after 2:15am, but she forgot to specify they were post-recordings and mistakenly marked 7 real-time entries in the left margin. WPC4970 said she made post-recording in the police van for the entry at 01:10am for IP Yung’s entry into the Pub, and at KCPS for the entry at 02:20am for what happened inside the Pub. Mr Leung submitted that WPC1017’s aforesaid error was improbable for she must have known she should mark the time for the post-recording, and she tried to cover up by saying she did not bring her Notebook with her into the Pub 116.It appeared from Mr Leung’s submissions that P contended WPC1017 copied from the contents of WPC4970’s Notebook (see also P’s allegations that the error “我向” in WPC1017’s Notebook for the 01:10am entry that “由[IP Yung]帶隊進入上址調查於是我向[initials]由WPC4970向主管報告……” was due to copying from the contents of WPC4970’s Notebook, and that WPC1017 had a more elegant style of writing save for description of events inside the Pub which was a mixture of elegant and colloquial wordings similar to WPC4970’s record). 117.I disagree WPC1017 copied from WPC4970’s Notebook. I find it unconvincing WPC1017 who was more experienced and attached to DSDS KCDIV would want to copy from WPC4970 who was unfamiliar with DSDS’ mode of operation and had never given evidence on undercover operations. It also made sense for the WPCs to leave their Notebooks in the police van when they posed as customers on covert undercover operation, so the WPCs necessarily made post-recordings. Further, WPC1017 would not have copied from WPC4907’s Notebook otherwise she would not have omitted to specify it was a post-recording. So WPC1017’s error did not affect the reliability of her Notebook records. 118.Tables Mr Leung submitted although both WPCs recorded 11 tables in their Notebooks, the police sketch had 8 tables with the numbering stopping at 10. This was never raised in the Somchai Trial or in the pleadings and/or statement evidence herein, and the WPCs were not cross-examined on this. Anyway, the WPCs when inside the Pub discussed their observations on the Pub’s layout/setting, but they could not remember details of their exchange. I am unable to draw adverse inference against them on how they counted the tables. 119.Size of the Pub Mr Leung submitted the WPCs must have copied from each other since their Notebooks similarly recorded the Pub was about 250 sq ft in size. 120.WPC4970 explained she drew a comparison with her home, which was a 4-person public housing unit in Fung Tak Estate in Wong Tai Sin. When she accompanied her mother to pay rent, she heard her mother and the estate management staff say it was about 500 sq ft. So WPC4970 used her home with 500 sq ft “活動空間” and its partitioning (living room about 280 sq ft and 2 bedrooms about 60 and 40 sq ft) to assess property size. 121.Mr Leung submitted WPC4970’s description of the size, layout and partitioning of her home were absurd and improbable, but there was no countervailing evidence. He then complained about WPC4970’s failure to ascertain whether 500 sq ft was her home’s gross or net area. But this was irrelevant because WPC4970 merely used her home for rough comparison without detailed measurements of either her home or the Pub. Mr Leung doubted whether WPC4970 (as she claimed) focused on the size of the Pub’s internal seating area rather than its entire area. WPC4970 frankly confessed her inexperience in failing to include the other areas, but Mr Leung suggested this was alarming because she would not have said it was a mistake if she genuinely focused on the Pub’s seating area. But WPC4970 only meant that retrospectively it was a mistake to focus on the seating area, and with more experience now she would have paid attention to other areas. Mr Leung suggested she would not have gained experience because she did not take part in any further undercover operation. But surely as a PSU police officer she would be called upon to estimate property size as part of general police work rather than just for undercover operation. 122.Mr Leung suggested WPC4970 in fact referred to the entire Pub when she testified in the Somchai Trial that the Pub was 250 sq ft. But it appeared she was cross-examined on whether she could see the entire Pub from where she sat, and she said she could see the centre of the Pub where customers were seated with tables on both sides but not the back of the Pub where the toilet was. She was plainly focusing on the seating area where the tables were. WPC4970 did not make up her evidence. 123.As for WPC1017, she explained 250 sq ft was the approximate size of the seating area and not the entire Pub which should be about 700-800 sq ft. When she used her 500 sq ft home for comparison, she thought the Pub’s seating area was smaller because her home had partitions/rooms. But upon reviewing the police sketch/photographs and comparing her home’s 3-seater sofa with the sofa shown in the photographs, and with better experience now in assessing size, she realised at trial she erred in her original assessment of 250 sq ft. Mr Leung found such “active admission” of having made a mistake (not mentioned in WPC1017’s witness statement) dubious. But such confession was only elicited under cross-examination at trial because Mr Leung asked her to consider the size of the courtroom to which she said “如果我而家諗番起” the Pub must have been larger than her estimation. I am unable to read such confession in any sinister light. 124.On balance I find the WPCs’choice in using their homes (which happened to be 500 sq ft) for comparison understandable as their homes were probably the most comparable objects in terms of size, and I accept their frank admission of error in size estimation. But Mr Leung went further to suggest collusion amongst police officers at trial in that PC47421/ PC48544 gave evidence that the Pub was about half of the courtroom and it was about 500 sq ft (about 18ft x 30ft), but the WPCs “somehow” had knowledge of this and tailored their evidence by confessing their earlier size estimations were wrong, thus “[in] other words, these police officers are also working together on the evidence for this trial”. This is a very serious allegation akin to perverting the course of justice, and for the reasons explained above and below, I firmly reject any suggestion that the 4 police officers colluded for the purpose of the trial. As Mr Leung frankly accepted, the WPCs’ explanations were not volunteered in-chief but elicited by his cross-examination (which choice of questions the WPCs as witnesses could hardly dictate). 125.Raised dias Both WPCs described the raised dais at the back of the Pub as “小型舞台”. WPC4970 said there was music equipment on about 2/5 of the raised dais, and she felt it was a dancing area. WPC4970 estimated the “小型舞台” (a bit smaller than 1/5 of her home) was about 30-40 sq ft. I fail to see how the common description amounted to collusion. Mr Leung did not cross-examine WPC1017 on the subject to afford her the opportunity to address such specific criticism. The WPCs discussed the setting/layout of the Pub during the undercover operation, so it was unsurprising they coined the same description. I also disagree WPC4970 lied because a raised dias of about 30-40 sq ft could not have been 1/5 of her home (ie about 100 sq ft). But such error (which I accept to be a mistake rather than any deliberate lie) was consistent with her then inaccuracies in using her home to estimate size. 126.APs Mr Leung submitted there was no logical reason why the WPCs described P as AP1 and Somchai as AP2 when Somchai committed the primary offence of breach of condition of stay and P did not turn up until 01:12am, which showed the undercover operation was aimed at framing P. I have explained why such operation was not framed to target P/Pub. I find it implausible for the WPCs to manipulate police colleagues in an inter- department operation to arrest P with a view to target P/Pub. Anyway, the WPCs were still at the Pub when Somchai and P were arrested, and their Notebook entries were post-recordings, so I see nothing foul in their referring to P and Somchai as AP1 and AP2 in their post-recordings. 127.Details Mr Leung criticised the WPCs for failing to record the tables Somchai cleaned/wiped, he brought food to and he collected payment from. I agree with the WPCs they had recorded the essential nature of Somchai’s waitering work they observed although WPC4970 fairly accepted in retrospect that her record could have been bettered with some more detail. But given the essential observations recorded in their Notebooks and the transcript of their evidence in the Somchai Trial, I accept the WPCs were able to refresh their memory, and WPC4970 confirmed she had a fairly good impression as this was her 2nd undercover operation (the 1st one was soon after she became a police officer but she did not have to give evidence as witness). Mr Leung also criticised the WPCs for failing to record other details, but I am not persuaded their Notebook entries fell short of proper record of the essential facts that mattered. There was much ado about the similarities of the Notebook recordings, but it must not be forgotten the WPCs observed the same events that unfolded before them inside the Pub. It did not, in my view, speak of malicious motive or corrupt collusion. (i) Further arrest/detention? 128.I now turn to P’s previous allegation concerning her alleged further arrest which, in my view, demonstrated her overall unreliability. Paragraph 11 of P’s Statement of Claim endorsed on the writ of summons issued on 7 May 2011 (“SoC”) as verified by her statement of truth alleged that a few weeks after P’s Arrest “the police of [KC]” without any reason/ cause unlawfully arrested her once again (“Further Arrest”), and pursuant thereto she was detained and falsely imprisoned (ie locked in a cell) “in the police station” for about 4 hours. At that time, there were no solicitors on the record acting for P, but P’s friend Law Lai Lan (“Law”) certified she had translated the SoC and statement of truth to P. 129.But the SoC was in fact prepared by the Husband’s barrister friend known to P only by his surname (“Barrister”). P claimed she/ Husband had tea with the Barrister and some other persons to discuss the then intended present action. P told the Husband all she knew including her arrest, and the Husband gave documents to the Barrister and met him many times to discuss the SoC. P herself met the Barrister 3-4 times, and he discussed the case in detail with her. The Barrister and Law explained the contents of the SoC to P before she verified/signed the same. So P all along had legal advice and the contents of paragraph 11 of the SoC had been explained to her. 130.On 28 June 2011, DoJ sought further and better particulars of the SoC. Law introduced P to P’s former solicitor Mr Wong. P met Mr Wong and showed him relevant documents. Mr Wong asked her to clarify matters in the SoC. On 8 July 2011, Mr Wong’s firm (ie P’s former solicitors) filed Notice to Act on P’s behalf. On 19 July 2011, P’s former solicitors gave the further and better particulars sought. But nothing was done about paragraph 11 of the SoC even though P had formal legal representation. A year later, Ds served WIP12458’s witness statement dated 12 November 2012 which revealed there was no record of the Further Arrest and consequent police detention. 2 days later on 14 November 2012, P applied to amend the SoC by removing paragraph 11 of the SoC, and the Amended SoC was filed on 21 November 2012. P was constrained to admit at trial she was arrested only once (ie P’s Arrest). 131.P could not satisfactorily explain her initial allegations of the Further Arrest and police detention (especially with such particularity), and her continued maintenance of such allegations notwithstanding legal advice/ representation. P suggested the Barrister might have misunderstood her, but paragraph 11 of the SoC was explained/translated to her twice by the Barrister and Law, and she could not explain why she verified it and not ask for it to be corrected. P then tried to say a few weeks after P’s Arrest she went to ImmiDept where she was placed in a room for a few hours, and she blamed her lawyers for mistaking ImmiDept’s interview room for police cell in a police station, but still this could not explain why she verified paragraph 11 of the SoC when it must have been explained/translated to her that she was brought to a police station and not to ImmiDept’s offices. I do not believe P when she claimed she did not know the difference between an immigration officer and a police officer at that time. This clearly demonstrated P’s preparedness to make up allegations to bolster her case, and she was constrained to withdraw such allegations only when she was confronted with irrefutable countervailing evidence, which spoke ill of her veracity. (j) Summary 132.For the above reasons, I am satisfied P’s Arrest and her subsequent detention at KCPS for 3-4 hours were lawful and justified. On balance, I accept the WPCs’ account (and reject Somchai’s and P’s account) as to what happened on 27-28 September 2006. Although P had to report regularly to the Immigration Task Force, this was pursuant to acts/decisions by immigration and not police officers, and I accept there were reasonable grounds to require P to answer bail until resolution of the Somchai’s case. In my view, the False Imprisonment Claim fails. IX. SUPERVISION SUMMONS/TRIAL (a) P’s case 133.P claimed the Supervision Summons was a malicious attempt to frame a case against her for breach of the Personal Supervision Condition to press her to employ the police’s people as “watcher” or otherwise to finish her off. Mr Leung submitted even before the Supervision Summons WSIP Ng/PC775 knew P was entitled to regular/fixed weekly day-off, so WSIP Ng must have known she had to ascertain whether 15 November 2006 was P’s day-off before initiating any prosecution and she would have known it was so had she asked P or checked the Pub Police File, but she did not, so there was no reasonable and probable cause for the Supervision Summons. 134.I have found there was nothing sinister in the exercise of police discretion not to summons Chan for breach of the Personal Supervision Condition after 1 March 2006, and the police did not target P/Pub after P became the Licensee. In my view, (a) PC775 and WSIP Ng honestly did not think P had any regular/fixed weekly day-off and/or 15 November 2006 was her day-off, and (b) there was no malice on their part in initiating and/or proceeding with the Supervision Summons. (b) Licence check on 15 November 2006 135.At/about 09:50pm on 15 November 2006, Sgt48884, PC48326 and PC775 carried out MESU licence check on the Pub. PC775 had been to the Pub a few times previously for licence checks. Chief Inspector (“CIP”) Lo Kai Wah was the team in-charge. WSIP Ng did not fill out or sign the Visit Record, which was signed by “Team i/c”. P as Licensee was absent. The police was told she had gone to Thailand, and Sgt48884 decided to summons her for breach of the Personal Supervision Condition. WSIP Ng said previous warnings had not been effective so there was understanding that enforcement action would be taken if P was again found absent, which in my view explained why Sgt48884 decided to summons P on the spot. (c) Police investigation 136.P went to Thailand on 15-21 November 2006. Upon her return, MESU KCDIV asked her attend KCPS. On 25 November 2006, PC775 took an interview record from P with a Thai interpreter (“Interview Record”), and also took copies of her passport. P was cautioned, and she knew by then she would be summonsed for breach of the Personal Supervision Condition. There was no dispute as to the voluntariness of the Interview Record. 137.P explained she returned to Thailand on 15-21 November 2006 to visit her mother who was ill, and the Board told her she need not notify them if she were out of Hong Kong not exceeding 3 months, but she did not say 15 November 2006 was her day-off because at that time she was focused on her return to Thailand, did not even recall 15 November 2006 was a Wednesday, and did not think about regular day-off. On balance, I find P left Hong Kong (and absented herself from the Pub) for a whole week without the Board’s permission (which she thought was unnecessary), so she was not bothered whether any of those 7 days was her day-off. (d) Laying information 138.Since P was admittedly absent on 15 November 2006 and on that day left Hong Kong for a week without notifying the Board, PC775 thought she was in breach of the Personal Supervision Condition. He thought P should have applied to the Board for authorising a temporary Licensee for her temporary absence not exceeding 3 months,[69] and the Board would usually grant such authorisation. But no temporary Licence was shown during the licence check (and Chan Cheuk Ping later confirmed there was none). 139.PC775 knew a Licensee usually had weekly day-off, but such Licensee could also choose not to have any day-off. From the Pub Police File, he read the Application Form and the subsequent ME Statement made after P acquired the Pub and actually started to work there, which he believed the Board had considered when approving transfer of the Licence for the Premises to P. 140.Mr Leung doubted PC775’s evidence that he considered the ME Statement for it was uncertain how the prosecution could rely on such uncautioned statement at the eventual trial to contradict what was stated in the Application Form. But at this formative stage the relevant question was not the admissibility of evidence at trial but the facts/circumstances that operated on PC775’s mind when he filled out Section A of the Report Form referred to in paragraph 143 below. It was hardly surprising that PC775 as reporting officer reviewed these documents from the Pub Police File, but it would be inappropriate at this stage to consider any exclusion of evidence after legal argument or in exercise of the magistrate’s discretion or to investigate into the merits of possible defence that might be raised. I accept PC755’s evidence that at that time he thought both the Application Form and ME Statement “有機會會用得著嘅”. After all, there was no dispute as to the voluntariness of both the Interview Record and ME Statement and/or the accuracy of their contents. 141.On balance I accept the interplay between the Application Form and the subsequent ME Statement led PC775 to think P did not have hard and fast weekly day-off on Wednesday. These documents were made for and considered by the Board in respect of P’s application for transfer of Chan’s Licence to her. It must have been obvious from the Application Form (ie the initial application) that Wednesday was put forward as the proposed day-off, and from the ME Statement (made after the Application Form) there was actually no regular day-off after P started to work at the Pub. The Pub Police File would also have P’s Licence that did not specify any regular/weekly day-off,[70] and nothing in the Interview Record suggested there was any regular Wednesday day-off. 142.Whilst PC775 fairly accepted in retrospect it would have been better to formally check with the Board whether it had approved any regular day-off for P as Licensee and he was careless in not having done so, looking from his standpoint on evaluation of information then known to him, he must have assumed the subsequent ME Statement that reflected the actual situation of P already operating the Pub would prevail. On the subjective question, I accept PC775 honestly believed P did not have regular Wednesday day-off and a summons for her absence from the Pub on 15 November 2006 was warranted. Even on the objective question, there was adequate material to make a case such as to warrant the Supervision Summons irrespective whether it would justify a finding of guilt. Even if I am wrong, it was merely PC775’s mistaken appreciation of the interplay between the Application Form and ME Statement, which mistake was a reasonable one to make in the circumstances. But even I am again wrong and PC775’s belief was unreasonable in that he should have clarified this with the Board, it was at worst negligent/incompetent conduct under honest belief. In any event, it was Sgt48884 who decided to prosecute P. There was no malice on PC775’s part such that it could be said he desired/intended a prosecution for purpose(s) other than the ends of justice. 143.On such basis, PC775 as reporting officer filled out Section A of the Police report for the compilation of information to be furnished to a Magistrate for the Issue of a Summons (“Report Form”) on 30 November 2006. In light of the aforesaid findings, it is unnecessary for me to deal with Mr Shum’s suggestion that PC775 could not have been a prosecutor. But it remained pertinent to consider PC775’s role/involvement as such. I find that after completing Section A of the Report Form and submitting it to WSIP Ng, he was only a prosecution witness, and did not have carriage of the prosecution of the Supervision Summons. 144.WSIP Ng as supervisory officer completed Section B of the Report Form on 4 December 2006 by recommending “Summons” and adding in manuscript “[previous] warnings by police showed useless as deft ignored the warning & continued absence with no justified grounds”. In recommending that information be laid for the Supervision Summons, WSIP Ng considered P’s passport and her explanation in the Interview Record as well as the Police Visit Summary, but she did not review the Application Form even though she had the Pub Police File. 145.On the Interview Record, WSIP Ng considered there was no satisfactory reason for Pub to carry on business on 15 November 2006 being the 1st day of P’s week-long absence from Hong Kong, especially when P could have applied for appointment of a temporary Licensee. WSIP Ng felt a Licensee should personally supervise the licensed premises, which P could not do if she was away from Hong Kong for a week. P’s Licence and the Interview Record did not dispel such belief, and WSIP Ng felt there was sufficient prima facie basis to justify prosecution for breach of the Personal Supervision Condition. 146.WSIP Ng also considered the Police Visit Summary that showed P was absent during police visits despite previous warnings, which led her to annotate Section B of the Report Form as aforesaid and to recommend prosecution rather than warning letter. I note Police Visit Summaries were submitted to the Board for P’s application for transfer of Chan’s Licence to her, and for P’s application for Licence renewal. The Board’s letter dated 20 December 2006 to P (see also the Police Visit Summary at T3/1089-1092) supported WSIP Ng’s impression that the Licensee was found absent for about half of the police visits:
Items 39-72 of the Police Visit Summary (TB3/1095-1099) submitted to the Board for the open hearing for Licence renewal on 5 December 2006, which would have been available to WSIP Ng when she completed Section B of the Report Form on 4 December 2006, showed that between 16 August and 15 November 2006 there were 34 police visits and the Licensee was absent on 7 occasions. WSIP Ng felt such background supported her recommendation to prosecute P. 147.WSIP Ng said there were verbal and written warnings, but Mr Leung complained that Ds failed to disclose the warning letters, which he said demonstrated WSIP Ng’s assertions were false. I disagree. WSIP Ng could not remember whether the warning letters were before or after the Supervision Summons, but they would be quite irrelevant to WSIP’s recommendation to prosecute if they were issued afterwards, so there was little basis to say Ds’ discovery was incomplete. I shall proceed on the basis that no written warning was issued against P from 22 August to 15 November 2006. For verbal warnings, Mr Leung submitted they were irrelevant as they were given to the PIC and not to P personally. Obviously, the police officers on licence checks could only give verbal warnings to the PIC and not to P who was absent. But if P as Licensee put forward a PIC (sometimes the Husband) to stand in for her, she should ensure the PIC report to her on Licence-related matters, including police visits and actions taken. And of course, P as Licensee must have known she had to comply with the Personal Supervision Condition. 148.So WSIP Ng considered there was sufficient justification to lay information for the Supervision Summons. In my view, she had honest belief in the relevant charge. The only criticism that I could see, and WSIP Ng was quick to accept, was that she was not comprehensive enough to review the Pub Police File at that stage which would have led her to consider the Application Form and ME Statement. I accept her explanation that she was then unfamiliar with licensing-related matters, and it was the 1st time she laid information for a summons for breach of the Personal Supervision Condition. But even if she had been careless, it was honest incompetence and did not justify any inference of malice. Given my analysis of PC775’s considerations in completing Section A of the Report Form, it would not have taken P’s case much further even if WSIP Ng had opportunity to review the Application Form and ME Statement. On balance I do not agree WSIP Ng recommended prosecution because she wanted to play P to death or to cause P to waste legal fees to resist the summons to be issued and to pay penalty/fine until the Pub closed down and P became bankrupt. (e) Noise/Supervision Summonses 149.SIP27504 So Hon Yiu completed Section D of the Report Form on 4 December 2006 with comment to “proceed” with “Summons (return to OC Summons Office)”. The Summons Office completed Section F by recording that information was sent to KC MagCourt on 5 December 2006. The Noise and Supervision Summonses were issued on 19 December 2006 and returnable on 18 April 2007. Mr Leung submitted that since Ds did not offer explanation which should be within their knowledge, they failed to adduce evidence to neutralise the inference that the information for such summonses were forwarded to KC MagCourt on the same day for the purpose of giving the magistrate hearing such summonses a bad impression of P, and therefore there was malice on the part of the Three. There is no merit to such argument since Section F of the Report Forms for both summonses clearly showed the police’s Summons Office forwarded information to KC MagCourt on 10 November and 15 December 2006 respectively, and WSIP Ng was not involved in the Report Form for the Noise Summons. Sgt46400 and PC47421 were not involved in the Report Forms for both summonses. It was KC MagCourt that issued the 2 summonses on 19 December 2006 and scheduled the common hearing on 18 January 2006. P was seeing shadow in every corner when there was none. (f) Before the Supervision Trial 150.On 17 March 2007, P’s solicitors wrote to DoJ and the police for discovery of all materials, used or unused, in relation to the Supervision Summons. WSIP Ng for KCDVC replied on 2 April 2002 enclosing inter alia the amended summons, brief facts, Interview Record and Police Visit Summary (from July and December 2006 in TB1/157-160), but not the ME Statement. In my view, WSIP Ng at that time did not have in mind (and therefore did not deliberately hide from P) the Application Form and ME Statement. I find she was struck by the fact that P left Hong Kong on 15 November 2006 for a whole week without any temporary Licensee, so regular/weekly day-off for just 1 day in a week was not on her mind. 151.Mr Leung submitted the brief facts which asserted P admitted the offence under caution demonstrated WSIP Ng’s determination to secure a conviction against P, but the Interview Record in fact gave exculpatory explanation for P’s absence from the Pub on 15 November 2006 (ie there was no need to inform the Board if she was away from Hong Kong for less than 3 months) which was her way of saying she had not contravened any rules/regulations. But Mr Leung did not identify what rules/regulations would excuse P from notifying the Board for temporary absence not exceeding 3 months, which appeared contrary to regulation 24 of the Dutiable Commodities (Liquor) Regulations Cap 109B (“Reg24”). In my view, WSIP Ng thought P’s explanation did not hold water, and honestly believed P’s acknowledgment that she had left Hong Kong (and hence could not have been at the Pub) on 15 November 2006 to be an admission. 152.Shortly before the Supervision Trial, WSIP Ng gave instructions for obtaining a statement from Chan Cheuk Ping. By this time, WSIP Ng had sight of PP775’s statement dated 29 March 2007 and the ME Statement. I find on balance her thinking then was that without any regular/ weekly day-off mentioned in P’s Licence, ME Statement and/or Interview Record, P as Licensee could not choose whichever day she liked for day-off, and since P was away from Hong Kong for a whole week, it was not a question of regular/weekly day-off (being only 1 day in a week), so WSIP Ng was more concerned with obtaining a statement from Chan Cheuk Ping to explain the importance of the Licensee being personally present to manage the licensed premises, and the need for a temporary Licensee if he/she had to leave Hong Kong. I find WIP Ng did not deliberately choose to ignore the issue of regular/weekly day-off with a view to secure a conviction against P. 153.I disagree with Mr Leung’s suggestion that such late collation of necessary evidence meant that without Chan Cheuk Ping’s evidence the Supervision Summons would have failed which in turn meant there was insufficient evidence to commence prosecution against P in the first place, so WSIP Ng must have assumed P would not contest the Supervision Summons. The existence of reasonable and probable cause at the moment of charging is not determined by showing there were further enquiries that could have been made or there would be further evidence that had not been crystallised. Anyway, I have found WSIP Ng honestly believed there was sufficient basis to charge, and she meant for Chan Cheuk Ping to deal with the significance of the Personal Supervision Condition rather than the “Wednesday” day-off issue. 154.On 17 April 2007, PC3897 obtained a statement from Chan Cheuk Ping who explained the background of a Licence application and the standard licensing conditions (including the Personal Supervision Condition). He referred to Reg24 which stipulated that in case of the Licensee’s illness or temporary absence, the Board could authorise a temporary Licence for a period not exceeding 3 months. P did not apply to authorise any such temporary Licensee for her absence from 15 to 21 November 2006, which meant she would be in breach of the law if the Pub carried on business during the period. (g) Supervision Trial 155.Mr Leung submitted there was malice on the part of WSIP Ng as demonstrated by her persistence with the Supervision Summons even though she knew or ought to have known there was no chance to succeed. It was said since Chan Cheuk Ping’s statement mentioned “根據以上法例,持牌人……每週可放取……一天例假……”, any reasonable prosecutor would have known the prosecution must be terminated unless the day of the alleged offence did not fall on the Licensee’s weekly day-off, so even if WSIP Ng were so reckless in failing to read the Pub Police File, she should have known by then she must terminate the prosecution. Mr Leung suggested WSIP Ng did not do so because she was actuated by malice against P, and there was no reasonable and probable cause to continue the Supervision Summons/Trial. 156.Chan Cheuk Ping’s statement was obtained 2 days before the Supervision Trial, and a copy was faxed to P’s solicitors the day before trial not by the police but by DoJ’s Prosecutions Division (KC MagCourt Prosecutions Office). Plainly, the Supervision Summons by then had come under the aegis of DoJ and counsel on fiat as public prosecutor whilst WSIP Ng remained as the OC case and the police as the “reporting department” under the Prosecution Statement. But as seen in the paragraph below, counsel on fiat who must have reviewed the evidence found it sufficient to proceed with the Supervision Summons/Trial. 157.I accept on balance WSIP Ng was not in the courtroom for the Supervision Trial because the OC case was not required to be present for the summary trial of a summons of such nature, but she was present in court at the latter part of the Noise Trial, which probably explained why P recognised her from her presence in the courtroom. Anyway, the prosecution of the Supervision Summons passed into the hands of counsel on fiat, and he pressed on with the Supervision Summons/Trial. So vis-à-vis WSIP Ng as prosecutor, it is difficult to say there was no reasonable and probable cause. 158.PC775 gave evidence at the Supervision Trial but was not cross-examined. Under cross-examination, Chan Cheuk Ping checked his file and produced the Application Form that stated P’s weekly day-off was Wednesday. Mr Leung made a half-time submission on the basis that 15 November 2006 (Wednesday) was P’s weekly day-off. After a short adjournment, counsel on fiat told the trial magistrate he had taken instructions, and applied to amend the Supervision Summons by expanding it into several summonses for breach of the Personal Supervision Condition on 16-21 November 2006 respectively. But the trial magistrate refused the proposed amendment, and acquitted P with no case to answer. Counsel on fiat opposed P’s application for costs by suggesting P brought suspicion upon herself by not stating in the Interview Record her weekly day-off was Wednesday, but the trial magistrate eventually ordered costs to P. 159.Mr Leung submitted counsel on fiat must have sought instructions from WSIP Ng (OC case) for the proposed further amendment of the Supervision Summons, but I am unable to discern from the transcript of proceedings that counsel on fiat took instructions from the OC case. Rather, the trial magistrate particularly asked counsel on fiat whether he had taken “legal advice” and “instruction”, and it was hardly likely for counsel on fiat to seek “legal” guidance/advice from the OC case. I bear in mind the Prosecution Statement that counsel on fiat is subject to general directions of the Director of Public Prosecutions in the exercise of his prosecution function (see footnotes 27-28 above). Mr Leung next suggested counsel on fiat’s confirmation to the trial magistrate there was no evidence to show the Pub was open for business on 16-21 November 2006 must have come from the OC case. But this was not a necessary inference: it could equally be evident from prosecution file available to counsel on fiat and/or a quick word with PC775 present in court would have elicited such answer. In any event, I find WSIP Ng (who was not in the courtroom) was unaware of developments in the Supervision Trial until PC775 reported to her after such trial. 160.Mr Leung complained that counsel on fiat persisted with the prosecution even though he knew the application to amend was futile and the prosecution could not succeed. But there was no suggestion the police could have overridden counsel on fiat’s independent conduct of the Supervision Trial, and no plea Ds would be vicariously liable for counsel on fiat’s failings (if any). But even if counsel on fiat did discuss with WSIP Ng (which I disagree), she was entitled to rely on legal advice by counsel on fiat on whether to put forward and how to structure the proposed further amendment of the Supervision Summons. There was no evidence that counsel on fiat departed from the Prosecution Statement which required him to exercise independent judgment and utilise a public interest test in making decision to continue prosecution. Whilst he may consider the views of the reporting department, it was his responsibility to decide whether or not to proceed/continue and/or to proceed on amended charge. 161.By that time, Chan Cheuk Ping had given evidence and the Application Form had been adduced. There were no other potentially exculpatory matters not made known to counsel on fiat or the trial magistrate, and yet counsel on fiat found it sufficient to maintain the prosecution, make the amendment application and resist Mr Leung’s half-time submission and application for costs. I am not satisfied WSIP Ng maliciously and without reasonable and probable cause continued the prosecution to secure a conviction against P for the purpose of pressing P to employ their people as “watcher”. 162.But Mr Leung suggested it was misleading for counsel on fiat in concealing the police’s possession of the copy Application Form in the Police Pub File (since the OC case was MESUC KCDIV) and resisting costs on the basis that P brought suspicion on herself, and in failing to disabuse the trial magistrate’s misunderstanding that the police did not know which day was P’s day-off and had to check with the Board. But there was no evidence counsel on fiat had access to the Pub Police File, and it was probable he was not aware of the Application Form before Chan Cheuk Ping referred to it in evidence, especially in view of (a) counsel on fiat’s dialogue with the trial magistrate on whether the police should check with the Board for information on day-off, and (b) my finding that WSIP Ng (OC case) had not considered the Application Form. I have found WSIP Ng was not involved in the Supervision Trial until PC775 reported to her after the trial. (h) After the Supervision Trial 163.After P’s acquittal, the trial magistrate queried PC775 about police investigation into the matter of P’s day-off. PC775 referred to the ME Statement in which P stated she did not have regular day-off, but agreed he/police did not seek clarification from the Board. The trial magistrate was dissatisfied with the police investigation, and asked PC775 to reflect his concern to PC775’s superior. Mr Leung suggested PC775’s reference to the ME Statement was specious because the prosecution never intended to rely on the ME Statement (otherwise counsel on fiat would have relied on it to resist P’s half-time submission), and PC775 played on the trial magistrate’s unfamiliarity with MESU’s functions/documents to evade telling the trial magistrate the police had the Application Form and ME Statement so there was no need to check with the Board. Mr Leung submitted PC775 was dishonest at least when he gave explanation to the trial magistrate on 19 April 2007. On the other hand, Mr Shum complained it was P who took advantage of the ambiguity in P’s tentative statement in the Application Form that Wednesday would be her weekly day-off to confuse the trial magistrate into thinking there was actually a regular/fixed weekly day-off and thereby concluding there was no case to answer. 164.I have found PC775 did consider the interplay between the Application Form and ME Statement in coming to the view that P did not have regular weekly day-off before he completed Section A of the Report Form, so it was logical for him to mention the ME Statement when queried by the trial magistrate. Although the police did not rely on the ME Statement in the prosecution because WSIP Ng was struck by what she believed to be P’s impropriety in leaving Hong Kong for a whole week (including 15 November 2006) without any temporary Licensee, it did not affect PC775’s own understanding and his retrospective acceptance that it would have been useful to have the Board’s direct clarification (even though he understood from the interplay between the Application Form and ME Statement there was no regular day-off). 165.As to whether P actually had any regular Wednesday day-off in November 2006, there was more pertinent evidence before this court than before the trial magistrate. P gave evidence and was cross-examined. On balance I am inclined to hold there was no regular day-off on 15 November 2006 in that (a) the reference to Wednesday day-off in the Application Form was at best tentative, (b) the reference to no regular day-off in the ME Statement was the reality after P started to work at the Pub, (c) upon considering all circumstances the Board approved transfer of Chan’s Licence to P, but did not expressly spell out any regular day-off in P’s Licence, (d) P was at work at the Pub on 18 October 2006 (Wednesday) and she was absent on leave on 18 September 2006 (Monday), (e) upon P’s Licence renewal Tuesday (and later Thursday) was expressly specified as P’s day-off and (f) P’s testified that when she gave the Interview Record to the police on 25 November 2006 she was not thinking of 15 November 2006 being her day-off. 166.I find on balance the prosecution was not groundless nor made maliciously to target P/Pub, and I am satisfied PC775 and WSIP Ng prosecuted the Supervision Summons/Trial in execution of police work in a faithful manner. In the circumstances, the Malicious Prosecution Claim concerning the Supervision Summons/Trial fails. X. NOISE SUMMONS/TRIAL (a) Parties’ respective case 167.On 8 November 2006, PC48544 reported for shift C duty that commenced at 11:00pm. His superior SIP Yung Chi Keung, sub-commander of PSU 1 KCDIV, gave a briefing. PC48544 was originally assigned to partner PC48288 and PC58544 “on duty MP Car 3”, but was re-assigned to partner PC47421 for beat patrol 6, 7 and 8. 168.It was P’s case that the noise incident in the early hours of 9 November 2006 (“Early Hours”) was fabricated, ie “PC48544 and others manufactured the Noise Summons” because “PC48544 belonged to PSU, which worked closely with MESU in [KCPS]. WSIP Ng wanted to prosecute P until she went bankrupt, PC48544 rendered assistance ……”, and WSIP Ng’s only objective was to persecute P and obtain a conviction to get P to employ their people as “watcher”. Mr Leung submitted the Noise PCs lied in saying they heard loudspeaker music outside the Pub,[71] and PC48544 (with PC47421’s assistance) fabricated the 2nd Visit in the paragraph below. 169.It was Ds’ case that in the Early Hours (a) Lee made a 999 call noise complaint against the Pub (“1st Complaint”), (b) KCRC Console assigned PC47421 to handle the 1st Complaint, (c) the Noise PCs heard annoying loudspeaker music outside and inside the Pub, (d) PC48544 gave verbal warning to P and then the Noise PCs left (“1st Visit”), (e) Lee made another 999 call noise complaint against the Pub (“2nd Complaint”), (f) KCRC Console assigned a Noise PC to handle the 2nd Complaint, (g) the Noise PCs heard annoying loudspeaker music outside and inside the Pub, (h) PC48544 told P she would be summonsed for noise annoyance and then the Noise PCs left (“2nd Visit”), and (i) PC48544 completed Section A of the Report Form for the Noise Summons. (b) General observations 170.First, P claimed the Noise PCs colluded to fabricate a case for the Noise Summons. I have rejected P’s allegations against PC47421 that he came to the Pub on various occasions before 9 November 2006 to utter threatening words. Such conclusion undermined P’s present allegations which also involved PC47421. 171.Secondly, Mr Leung submitted that PC48544 pre-planned the Noise Summons even before the 1st Visit to assert Lee was unwilling to give particulars/information (even though Lee was actually willing to assist) so as “to create a reason for initiating proceedings against P with [PC48544] himself as the victim” and witness for the eventual Noise Trial as evidenced by Section A of the Report Form that PC48544 as reporting officer filled out and by the lack of police effort to seek the Lee Statement until quite close to the Noise Trial when, contrary to the police’s earlier assumption, it appeared P would contest the Noise Summons. 172.I find it improbable the Noise Summons was pre-planned. On 9 November 2006, PC48544 was scheduled for other duties and was only lately re-assigned to partner PC47421 on beat 6, 7 and 8. There was no evidence that the Noise PCs or WSIP Ng manipulated SIP Yung (responsible for PSU 1 KCDIV) and/or KCDVC (responsible for overall police deployment at KCPS) to put the “colluding” Noise PCs together on the relevant beat route. Further, as explained in paragraph 82 above, had there been any pre-planning to fabricate a noise incident against P/Pub to support a summons to persecute P, it was quite inexplicable why PC47421/PC50087 (both of whom were impugned by P) did not seize the opportunity on 7 November 2006 to do so, and merely gave verbal warning to P “to reduce the noise making inside the Pub”. This was reinforced by the implausibility of predicting that a lay informant would make another noise complaint against the Pub 2 days later and that PC48544 would be at the right time and place to be assigned to handle such complaint. It is even more implausible for the Noise PCs to predict how any lay informant (including Lee) would make his noise complaint and what particulars he would give, especially when 999 calls were made to the Control Centre outside the control of beat patrol officers or WSIP Ng. 173.Thirdly, P denied any loudspeaker music could be heard outside the Pub, and suggested the Noise PCs’ evidence otherwise was fabricated. But despite such denial it was not as if the noise incident was fictitiously conjured for manufacturing the Noise Summons. After all, Lee living upstairs did complain of noise disturbance in the Early Hours in the Lee Statement[72] and in his testimony at the Noise Trial,[73] and the 999 Records did log the 1st and 2nd Complaints that he made. 174.In fact, apart from the late amendment to paragraph 8(t) of the RASoC allowed by my Decision (No 2) handed down today (“New Averment”), the RASoC merely averred that:
There was no plea that Lee colluded/cooperated with the Noise PCs and/or the police to allege noise disturbance in the Early Hours and/or to make the 2nd Complaint to facilitate fabrication of the 2nd Visit and manufacture of the Noise Summons. Mr Leung initially suggested to the trial magistrate Lee was a troublesome person who would complain even if there was no noise disturbance, but he did not put/suggest to Lee at the Noise Trial he fabricated the noise disturbance which Lee said he suffered. 175.I have found the Pub’s sound insulation measures and EPD’s noise assessment results did not eradicate noise disturbance emanating from the Pub. Mr Leung referred to some 999 Records which showed that on certain occasions the beat patrol officers did not hear any sound outside even when music was played inside the Pub, but these were different days and the Leung Summary equally showed occasions when music/noise were heard outside the Pub. The letters by the Board to P also confirmed the public/Residents complained of noise disturbance emanating from the Pub. There was no reason for Lee to take the trouble to falsity noise disturbance when he was eventually prepared to give the Lee Statement and testify at the Noise Trial. I also note that since April 2006 he had made quite a few noise complaints not only to the police but also to EPD and District Councillor. 176.When Lee testified at the Noise Trial, he said he made the 1st Complaint because he was disturbed by noise from the Pub in the Early Hours. Such noise quietened down after a while but shortly afterwards it became annoying again so he made the 2nd Complaint. This complemented Ds’ case that the Noise PCs heard annoying loudspeaker music during the 1st noise incident but the music was turned down during the 1st Visit, and they heard annoying music again when they returned to the Pub to deal with the 2nd noise incident. If there was no music/noise audible outside the Pub as P claimed, Lee’s 1st and 2nd Complaints (which he did make and the Control Centre did log) would be inexplicable. Lee’s genuine noise complaints lent credence to Noise PCs’ evidence (which on balance I accept) of hearing annoying loudspeaker music outside and inside the Pub for the 1st and 2nd Visits. 177.Mr Leung tried to downplay this by insinuating Lee was party to the police’s alleged scheme:
I reject such contentions. As said, there was no plea that Lee planned/ cooperated with the Noise PCs to manufacture his noise complaints but made mistakes when implementing such plan, and P should not be allowed to slip in such contentions now. 178.Mr Leung then cast suspicion on the 1st and 2nd Complaints, saying the police made use of such double complaints (and consequent double police visits to the Pub) to justify the Noise Summons. But I cannot see how the Noise PCs could have predicted a lay informant would make 2 noise complaints against the Pub in the Early Hours. Anyway, double or even triple noise complaints a night were not unheard of.[74] 179.Fourthly, the New Averment suggested PC48544 (with PC47421’s assistance) fabricated the 2nd Visit, but neither of them was assigned to take charge of the 2nd noise incident and they did not go to the Pub a 2nd time. Mr Leung submitted the 999 Records only showed the 1st Visit which contradicted PC48544’s Notebook entries, so PC48544 must have manufactured his report to KCRC Console logged at 01:57am on both the 1st and 2nd Visits:
180.The 999 Records showed PC47421 was released from the 1st noise incident (logged at 00:59am) before the Control Centre received Lee’s 2nd Complaint (logged at 01:20am), so when KCRC Console was notified of the 2nd Complaint (logged at 01:21am), it would have been its standard duty to assign a beat patrol officer to take charge. But it was P’s case that (a) there was no record at all in the 999 Records in respect of (i) assignment of any beat patrol officer (including the Noise PCs) to take charge of the 2nd Complaint and/or (ii) reports on the arrival and departure of any beat patrol officer (including the Noise PCs) at the Pub for the 2nd time, and (b) no police officer other than the Noise PCs went to the Pub in the Early Hours, which contentions if taken to their logical conclusion necessarily meant KCRC Console failed to assign any beat patrol officer to deal with the 2nd Complaint. In my view, there was no plausible reason why KCRC Console would have failed to do so for a whole half hour until the next log at 01:57am when (1) it had been notified of the 2nd Complaint (logged at 01:21am) and (2) it knew PC47421 had been released from the 1st noise incident (logged at 00:59am) and/or why SIP Yung who was working with KCRC Console and monitoring his unit’s police work did not correct this lacuna. 181.Significantly, officers on terminals at KCRC Console went on to log “…… ANOTHER REPORT MADE TO 999K AGAIN, PC48544 THEN ATTENDED SCENE AGAIN ……” (01:57am) and “PC48544 REPT THAT POLICE ARRIVED AT AA AGAIN ……” (02:11am). Again following the logic of P’s case, it would have been most strange that not having assigned any beat patrol officer to take charge of the 2nd Complaint (and hence not expecting any beat patrol officer to turn up at the Pub again to handle the 2nd Complaint), KCRC Console complacently logged reports by PC48544 (who to their knowledge had not been assigned to handle the 2nd Complaint) on investigation/action in respect of the 2nd Complaint and 2nd Visit, and then even more complacently closed the incident without question, especially when there was no plea that officers at KCRC Console were party to any police scheme to target P/Pub. 182.Looking at the 999 Records in the round against the contents of PC48544’s reports to KCRC Console, the evidence of P and the Noise PCs, and Lee’s statement and testimony, the only sensible conclusion (and I so find) was KCRC Console did assign a Noise PC to handle the 2nd Complaint, and the Noise PCs did go to the Pub a 2nd time and made the 2nd Visit, which was why KCRC Console logged PC48544’s reports at 01:57am and 02:11am, and then closed the incident. I also find that the former log record was a conflated record, but more of that below. 183.In my view, the implausibility of P’s allegations could not be salvaged by P’s broad suggestion that PSU KCDIV and MESU KCDIV both handled licence checks so the Noise PCs manufactured the Noise Summons to facilitate WSIP Ng’s improper motive to prosecute P until she went bankrupt. After all, PSU licence checks were done on deployment by KCDVC and not MESUC KCDIV. 184.Fifthly, the evolution of P’s own positive case on events that transpired in the Early Hours was enlightening. As seen in paragraph 174(a) above, the RASoC merely addressed the situation if Lee’s allegations were accepted by the court. So apart from the New Averment brought up in closing submissions, P did not plead any positive case as to the events in the Early Hours, but instead pleaded in paragraph 8(l) of the RASoC an incident “[at] about 0100 hours” “[on] an evening after 9th November 2006” (my emphasis) when PC47421 and another police officer visited the Pub and stayed for a long time with PC47421 saying threatening words to P and the other police officer wandering around, and both causing disturbance/ annoyance to the customers thereby making them leave the Pub. 185.Interestingly, P pleaded in the SoC (verified by statement of truth) that such subsequent incident happened at/about 01:00am on 10 December 2006, but when WIP12458’s witness statement dated 12 November 2012 irrefutably confirmed PC47421 was on leave on 10 November 2006, P promptly sought leave to amend the SoC to delete reference to 10 November 2006. In fact, P said at trial she could not even remember whether such incident happened before or after she went to Thailand on 15 November 2006 and/or before or after she received the Noise/Supervision Summonses. P tried to blame her error on the confusion caused by the Three in coming to the Pub many times to say similar threatening words. But in my view P could not have been mistaken in view of significant events that happened over those few days, ie she gave evidence at the Noise Trial on 8 November 2006, the police visited the Pub in the Early Hours, and Somchai was convicted during the day on 9 November 2006. On balance I find P erred because the incident in paragraph 8(l) of the SoC was made up and untrue. I also come to the same conclusion for P’s unpleaded allegations of many similar subsequent visits to the Pub by PC47421 who said similar threatening words but did not stay as long. If there was any truth to such allegations, P would not have omitted such plea as it was an essential element of her case that she was persistently persecuted. 186.Even though P was shy about what transpired at the Pub in the Early Hours, she started to weave a positive case under cross-examination by alleging that :
None of these matters were put to PC48544 at the Noise Trial, pleaded in the RASoC or stated in P’s witness statement, and in my view they bore hallmark signs of recent invention. On balance I reject P’s such averments. 187.Still further, P relied on a late plea (by the New Averment) that the Noise PCs did not make the 2nd Visit. This slow metamorphosis of P’s claim gives pause for concern, especially when P herself must have known all along what transpired at the Pub in the Early Hours. Although this was put to PC48544 at the Noise Trial, it was not an assertion P relied upon in this action until its revival at trial, and I find no credible justification for its belated resurrection. 188.Turning to the events in the Early Hours, against the above background, I find Noise PCs’ account reliable. There were some discrepancies, but none so startling as to give rise to concern. I am also unable to read too much into the “differences” between PC48544’s Notebook entries and the 999 Records. (c) 9 November 2006 189.According to the 999 Records, (a) the 1st Complaint was a 999 call by a male person with contact/caller number (logged at 00:49am), (b) the Control Centre input data for creation of an IN Report under normal condition (logged at 00:50am), (c) the noise incident was referred to KCRC Console for handling, (d) KCRC Console assigned PC47421 to be in charge (logged at 00:50am) (but PC48544’s Notebook recorded that at 00:54am PC47421 was instructed (via PRH) to look into the 1st Complaint), and (e) data was sent to the computer system to generate a IN Report number for “COMPLAINT NOISE” against the Pub by a male informant with contact/ caller number but without information as to location (logged at 00:51am). 190.Lee said at the Noise Trial he left his surname and telephone number when he made the 1st Complaint. There was no reason to disbelieve him since he consistently left his surname and telephone number when making noise complaints before 9 November 2006 and even shortly thereafter.[75] But the officer on the terminal did not record his surname, which plainly was KCRC Console’s and not Noise PCs’ problem. This demonstrated a lax and unsteady approach by the officer on the terminal at KCRC Console as further reflected in the discussion below (even though the gist of the log records remained clear), which did not reflect on the veracity of the Noise PCs who had no control on how their communications with KCRC Console would be logged. I find on balance KCRC Console failed to log Lee’s surname and failed to tell PC48544 the informant’s particulars/ information when PC48544 called. 191.At 00:53am KCRC Console logged “PC47421 arrived” in the 999 Records. PC48544’s Notebook recorded the Noise PCs arrived outside the Pub at/about 00:56am. PC47421 reported their arrival to KCRC Console. PC48544 heard strong loudspeaker music that he found annoying, and he waited for 1-2 minutes to confirm it was persistent. It was recorded in PC48544’s Notebook at “0056” that he heard “喇叭音樂聲另人煩擾”. I find on balance that even though there were other entertainment establishments nearby, PC48544 did hear such annoying loudspeaker music in a relatively quiet environment without daytime city/street sounds, which noise prompted Lee to make the 1st Complaint. 192.I find on balance that:
193.Mr Leung made much play on the entries in the 999 Records and in PC48544’s Notebook on report to KCRC Console for the 1st noise incident, the 2nd Complaint and 2nd Visit, which I summarise below:
194.Mr Leung submitted the 999 Records did not log (a) any assignment of a Noise PC to handle the 2nd Complaint and/or (b) any incoming PRH calls by the Noise PCs that reported on their arrival at and departure from the Pub, so the 2nd Visit was made up and untrue. Further, it was said PC48544’s report logged at 01:57am in the 999 Records for the 1st noise incident should have ended with his verbal warning to P, but it was not so recorded (ie the log only stated P agreed to reduce noise) and it even touched on the 2nd Complaint/Visit. Mr Leung submitted PC48544 could not have anticipated the 2nd Complaint/Visit in his report on the 1st noise incident, hence such report was manufactured and the “so-called noise complaint on 09.11.2006 was a fabrication”. 195.The Noise PCs denied any fabrication, and on balance I find they made the 2nd Visit pursuant to the 2nd Complaint. As explained in paragraphs 180-183 above, there was no plausible reason why KCRC Console and/or SIP Yung failed to assign any beat patrol officer to deal with the 2nd Complaint, and I find a Noise PC was assigned even though there was no individual log of such assignment in the 999 Records. After all, it was not so long ago the Noise PCs dealt with the 1st Complaint, and KCRC Console must have known PC47421 was just released and the Noise PCs were still in the vicinity. Indeed, PC47421 confirmed this was the usual practice even though he did not know whether such repeat assignment had to be logged by KCRC Console. Given PC47421 had been released from the 1st noise incident and a Noise PC was assigned to handle the 2nd Complaint, I further find on balance the Noise PCs did call KCRC Console by PRH to report their arrival at the Pub for the 2nd Visit even though there was no independent log of such report in the 999 Records. But I cannot ignore the fact that the officers on the terminals at KCRC Console who made the logs at 01:57am and 02:11am squarely recorded reports by PC48544 that the Noise PCs handled the 2nd Complaint and made the 2nd Visit. 196.On balance I have come to the conclusions in the above paragraph given (a) my rejection of P’s case as what transpired at the Pub in the Early Hours, (b) the implausibility of KCRC Console making the log records at 01:57am and 02:11am if it did not assign any beat patrol officer to take charge of the 2nd Complaint and/or was unaware such assigned beat patrol officer had arrived at the scene to deal with the 2nd noise incident, and (c) the contents of such logs that expressly referred to the 2ndComplaint/Visit. 197.I accept usual individual logs on assignment to handle and arrival at scene for the 2nd Complaint/Visit were not seen in the 999 Records. The Noise PCs were not at the KCRC Console and were unversed in its work, so I need to consider their surmises in this respect when they accept they actually did not know why the log records were made in this way. But I note there was just about 20 minutes between the logs for the 2nd Complaint (01:20am) and PC47421’s release from the 1st noise incident (00:59am). PC48544 could not remember when he reported to KCRC Console on the 1st noise incident after the 1st Visit. But even if he did so fairly soon, it would be quite close in time to the 2nd Complaint in view of understandable time lag between event happening and log record. On Ds’ case there was a flurry of activity at KCRC Console during this small time window,[80] and PC47421 explained that the officer on the terminal might not be able to make timely logs on a busy night with many incoming calls. 198.Taking the whole circumstances into account, including my finding that a beat patrol officer must have been assigned to deal with the 2nd Complaint, my further finding that the quality of the log exercise at KCRC Console was less than desirable that night, and the contents of the log record that touched on both the 1st and 2nd Visits, I find on balance that in the flurry of activity as aforesaid and in the comfort that the same officers who handled the 1st noise incident would also handle the 2nd noise incident, it was KCRC Console that did not individually record the calls made by a Noise PC to “roger” instructions and to report arrival, and instead KCRC Console deferred until 01:57am to make a conflated record of these communications together with PC48544’s report on the 1st noise incident, which was not due to any omission or fabrication on the part of the Noise PCs who made contemporaneous entries in their Notebooks. 199.This explained why the conflated log record at 01:57am in the 999 Records dealt with matters concerning both the 1st Visit and stated “PC48544 then attended the scene again”, which was also consistent with PC48544’s Notebook entries that recorded the Noise PCs entered the Pub for the 2nd time at about 01:25am and did not leave until 02:00am. But by deferring the recording to 01:57am and conflating the log records, the fullness of the events was not recorded as evidenced by “…..” at the end of the log record. Nonetheless, the gist of the log record at 01:57am was clear, ie PC48544 had reported to KCRC Console on police investigation and action taken for the 1st noise incident, and after PC47421 had been released the Noise PCs returned to the Pub again to deal with the 2nd Complaint. 200.However, Mr Leung submitted the time generated/recorded in the 999 Records and PC48544’s Notebook held sinister connotations. He started off by saying comparable entries for the 1st noise incident showed PC48544’s watch was 4 minutes faster than KCRC Console’s computer clock:
Mr Leung argued that at 01:20am on PC48544’s watch (which would have been 01:16am on the computer clock) he would not have been able to anticipate Lee’s 2nd Complaint at 01:20am on the computer clock, which it was said amounted to clear evidence of fabrication of the 2nd noise incident. 201.Mr Leung did not cross-examine PC48544 on this at all. In my view, Mr Leung read too much into minor time differences in log/record entries when both were not instantaneous records. The computer clock was not real-time for the logged event, and much depended on exactly when the officer on the terminal made the log, which in turn would be influenced by a host of factors pertaining to the incident (eg the aforesaid flurry of activity at about the time of the 2nd Complaint) and/or extraneous matters (eg busy night with many incoming calls). Bearing in mind this was a repeated noise complaint which must have excited some attention, it was equally possible that upon receipt of such complaint the Control Centre took steps to inform KCRC Console before its officer made the relevant logs, and that KCRC Console immediately informed a Noise PC (who previously handled the 1st Complaint and expected to be in the vicinity) to take charge without even recording it. I also note that unlike other entries in his Notebook, PC48544 was able to make an immediate record because at precisely 01:20am he had his Notebook open before him for making record in relation to a street obstruction matter. I find Mr Leung’s interpretation of the logs/records (which still did not address the lacuna in P’s case of not having any police officer deal with the genuine 2nd Complaint that was made and logged) unlikely in the totality of the evidence. 202.Hence, I find on balance that for the 2nd Complaint/ Visit:
203.PC48544 said that during the 2nd Visit he received a call from SIP Yung who gave background information that no music shall be played at the Pub after 11:00pm, but he just made a record of it in his Notebook, just as he simply recorded P’s response of “亞Sir,我已揾咗律師上訴,佢話可以播音樂”. PC48544 did not really understand SIP Yung’s information or P’s response. 204.Mr Leung submitted this was a fabrication (because there was no such licensing condition and no appeal) designed to be P’s admission of playing music during the 2nd Visit. In my view, SIP Yung must be referring to the Karaoke Condition (albeit somewhat incorrectly as the condition prohibited karaoke facility rather than music after 11:00pm). P also confirmed she did appeal against the Karaoke Condition because it significantly affected the Pub’s business (since the Pub’s Thai customers usually got off work at 11:00pm and they could not use the karaoke facility). P confirmed she was notified of the Karaoke Condition and her right of appeal by the Board’s letter dated 18 August 2006, and she believed she lodged an appeal to remove the Karaoke Condition.[81] In such context, P’s response to PC48544 made sense in that she gave evidence that she appealed against the Karaoke Condition, but such condition only prohibited karaoke facility but not music. This went some way to show the Noise PCs were assigned to deal with the 2nd Noise Complaint and did make the 2nd Visit. 205.Mr Leung argued the suggestion that Lee was unwilling to give information was false because he gave his full name, identity card number and full address to the Control Centre when he made a noise complaint on 13 May 2007 (ie after the Noise Trial), and the purpose of such falsity was to make PC48544 victim/witness for prosecuting P for noise annoyance. But the 999 Records prior to 9 November 2006 showed Lee consistently only left his surname and telephone number and not his full particulars when he made noise complaints. As far as PC48544 was concerned, I accept he did not have Lee’s full details, but he never hided the fact he was able to communicate with Lee by telephone. I am not persuaded there was any concealment. 206.I note discrepancy between Lee’s evidence at the Noise Trial that a police officer telephoned him after the 1st Noise Complaint and PC48544’s evidence that he called Lee after the 2nd Noise Complaint. But there was no fabrication as both noise complaints were logged in the 999 Records and both Lee and PC48544 were firm on 1 telephone conversation between Lee and the police. On the whole I prefer the evidence of PC48544 since there was some uncertainty in Lee’s evidence. Lee could not remember whether there was any telephone conversation with the police after the 2nd Complaint, and as he provided the Lee Statement 4 months after the noise incident I am persuaded he was probably mistaken as to the timing of the call. (d) Report Form 207.Back at KCPS, PC48544 as reporting officer filled out Section A of the Report Form for the Noise Summons. Notwithstanding Mr Shum’s submissions otherwise, PC48544 was the prosecutor for initiating the laying of information before a magistrate of KC MagCourt for issuing the Noise Summons. But after he completed Section A of the Report Form, he became a prosecution witness. 208.Mr Leung submitted the police deliberately did not obtain a statement from Lee because PC48544 was determined to be victim/witness (as he assumed P would not contest the Noise Summons to be issued). On balance I find PC48544 did not even know at that time whether the informant for the 1st and 2nd Complaints were the same person and he did not have the informant’s full name, but as he himself felt annoyed by the music noise heard outside/inside the Pub he could be a witness to prove such facts. He stated the facts/events known to him in Section A of the Report Form, and left it to his superior to decide on any further investigation/action to be taken. Further, he did not hide any information, and he set out Lee’s mobile telephone number in the Report Form. 209.In my view, PC48544 at that time thought the Pub was a public place and was unaware of the police’s internal guidelines that no prosecution could be brought against a commercial place arising from noise generated therefrom (“Public Place Point”) (and he only later learned of such guidelines and the definition of public place under the Noise Control Ordinance Cap 400 (“NCO”)). Although he had experience of laying information for summons for noise annoyance before 9 November 2006, such summonses were undefended and he did not realise the Pub/Premises did not come within the meaning of public place under the NCO. Given such unawareness and my findings above as to what transpired at the Pub for the 2nd noise incident, I accept PC48544 honestly believed there was sufficient material to warrant the charge, and there was no malice on his part. At best, he was mistaken and I find it was not an unreasonable mistake bearing in mind PC48544 knew members of the public could enter and patronise the Pub. 210.Sgt 22185 Lee Tak Ming of PSU 1 KCDIV as supervisory officer completed Section B of the Report Form on 9 November 2006 and recommended to issue summons. SIP27504 So Hon Yiu completed section D on 10 November 2006 to “proceed” and recommended “Summons (return to OC Summons Office)”. The Summons Office completed section F by recording that information was forwarded to KC MagCourt on 10 November 2006. (e) WSIP Ng 211.WSIP Ng was not involved in laying information for the issue of the Noise Summons, so she was not yet a prosecutor at this stage. I find she became involved in the prosecution of the Noise Summons after P appeared before a magistrate at KC MagCourt on 18 January 2007 to plead not guilty. 212.Mr Leung queried why the police did not obtain a statement from the independent victim Lee to strengthen the prosecution case, and suggested the police only began to collate proper evidence after P’s solicitors wrote to DoJ and the police on 17 March 2007 for discovery of all materials, used or unused, regarding the Noise Summons (which plainly indicated P’s intention to resist the Noise Summons). I disagree. In fact, P pleaded not guilty on 18 January 2007, so the police must have expected a contested trial. In my view, what happened was WSIP Ng (OC case) considered PC48544 (albeit not the lay victim) as prosecution witness could give evidence on the music noise he heard and on whether it was annoying, and there would be sufficient proof if his evidence accepted. As explained in paragraph 25 above, the absence of reasonable and probable cause is not demonstrated by showing there were further enquiries that could have been made before a charge was laid. In my view, other than the Public Place Point which I shall return below, viewing the matter from the standpoint of WSIP Ng’s evaluation of the strength of the then available materials,[82] there was sufficient material to justify the charge even on the uncorroborated statement by PC48544. 213.Anyway, the police eventually traced Lee who finally gave the Lee Statement dated 21 March 2007 to verify his noise complaints against the Pub including those made in the Early Hours. On 3 April 2007, WSIP Ng on behalf of KCDVC sent to P’s solicitors inter alia the amended Noise Summons, brief facts of the case, copy extract of PC48544’s Notebook and Police Visit Summary. On 23 April 2007, MESU KCDIV sent a copy of the Lee Statement to P’s solicitors. Given my findings on the 1st and 2nd noise incidents, there is no merit to the suggestion that the brief facts that matched PC48544’s Notebook entries were inconsistent with the 999 Records. 214.P alleged WSIP Ng knew or ought to have known that even if the facts alleged by PC48544 were accepted by the court they would not have constituted an offence. Presumably this referred to the Public Place Point. Mr Leung suggested WSIP Ng should have known of the police internal guidelines referred to in paragraph 209 above, so she could not have any honest belief that P would be guilty of the Noise Summons, but if she did, it would be gross ignorance of the law which showed lack of reasonable and probable cause and enabled inference to malice to be drawn. 215.WSIP Ng explained her previous experience was in crime investigation, and this was her 1st summons for noise annoyance under the NCO. She frankly accepted her review of the case was insufficiently comprehensive, and it was only later that she realised the Public Place Point. On balance I accept WSIP Ng honestly believed the Pub/Premises were a public place. It was plainly a mistake but a reasonable one as she knew members of the public could enter and patronise the Pub. As WSIP Ng said, the 1st and 2nd Complaints were genuine and the Noise PCs responded to such Complaints and reported to their PSU superior by the Report Form according to established procedure, so the laying of information for the Noise Summons and its subsequent prosecution was not made maliciously. (f) Noise Trial 216.P claimed WSIP Ng (OC case) persecuted her by proceeding with the Noise Trial which took place on 26 April 2007, ie about a week after dismissal of the Supervision Summons on 19 April 2007. The prosecution was by counsel on fiat. WSIP Ng was present at the latter part of the Noise Trial when the Public Place Point was brought up. 217.Counsel on fiat called Lee and PC48544 to give evidence, and then applied to amend the Noise Summons that the noise was a source of annoyance to Lee and PC48544. This was opposed, but the trial magistrate eventually allowed Lee to be named as victim. I cannot see how such application (which the trial magistrate allowed) amounted to any persecution and/or malice when Lee actually gave evidence at the Noise Trial to verify the noise annoyance to him and also the 1st and 2nd Complaints. The trial magistrate considered a noise summons would usually name the lay victim, so counsel on fiat agreed to remove PC48544’s name from the Noise Summons to which Mr Leung had no objection. In fairness to the defence, Lee was re-called for Mr Leung’s further cross-examination. The application for such further amendment of the Noise Summons was not instigated by the police but by counsel on fiat who under the Prosecution Statement exercised independent judgment in deciding whether to proceed on amended charge, and who in her submissions to the trial magistrate drew a clear distinction between her own stance and the police’s earlier approach:
I disagree the amendment application was actuated by malice on the part of WSIP Ng to maintain the prosecution to persecute her/Pub. Quite simply Lee had given evidence, and counsel on fiat considered it more appropriate to name him as the person annoyed by the noise. 218.Mr Leung raised the Public Place Point at half-time submission. P complained that counsel on fiat failed to terminate the prosecution even when conviction was unlikely, and resisted the half-time submission by trying to find other ways to secure a conviction against P. In the end, the trial magistrate ruled there was no case to answer, and ordered the prosecution to pay costs to P. Mr Leung submitted that counsel on fiat must have taken instructions from WSIP Ng and it was wrong of her to ask counsel on fiat to proceed when obviously the Noise Summons would fail. He contended that even though the Noise Trial was a week after P’s acquittal of the Supervision Summons, it appeared WSIP Ng did not learn her lesson, and still pursued the Noise Summons against P which plainly demonstrated her malice. 219.It was true that WSIP Ng was in court when the Public Place Point was brought up, but it as a legal issue. It was for counsel on fiat to consider how to answer that legal point. As shown in the Prosecution Statement, counsel on fiat was to exercise independent judgment in deciding whether to drop charge even though he/she might have discussed with the reporting department. Here, it was counsel on fiat’s submissions on law that did not find favour of the trial magistrate, and I am unable to discern any malice on the part of counsel on fiat merely from failed argument in law. Anyway, P did not plead Ds were vicariously liable for any failings of counsel on fiat if any. Still further, WSIP Ng gave evidence (and on balance I accept) counsel on fiat did not explain to her the Public Place Point vis-à-vis the Pub/Premises, and had she been told the police would not have agreed to continuation of the prosecution. In my view, WSIP Ng was entitled to rely on the counsel on fiat’s legal advice in resisting the half-time submission, and it could not be said the Noise Summons was maintained by WSIP Ng without reasonable and probable cause. By that time, all factual matters had been made known to counsel on fiat, the defence and the trial magistrate, and I cannot see any malice on the part of WSIP Ng. The outstanding issue was a legal one which was very much in the hands on counsel on fiat. 220.In all circumstances, P’s Malicious Prosecution Claim in respect of the Noise Summons/Trial fails. I am not surprised WSIP Ng felt bad about the dismissal of the Noise Summons as there was in fact noise annoyance and Lee was troubled to attend KC MagCourt to give evidence. I disagree with the suggestion she was disappointed because there was no conviction to make P pay legal costs and fine until she went bankrupt. (g) Photographing Lee 221.WSIP Ng said that over lunch during the Noise Trial Lee reported to the police by telephone the Husband photographed his face with a mobile telephone inside a court lift. He was advised to make a formal report at KCPS. Since taking photographs within the court precincts was prohibited especially as it involved a witness, WSIP Ng informed counsel on fiat who in turn informed the trial magistrate. But P said this was a false allegation against the Husband because the Noise Summons was dismissed. I disagree. According to a case details report, Lee actually turned up at KCPS on the following day to make a formal report about the incident on 26 April 2006 and Lee added that at 09:54pm on the same day he received a telephone call with male voice who claimed to be a Mr Leung, the proprietor of the Pub, who wanted to talk to him. Lee claimed he was frightened, so he made report to the police. Since Lee actually made a report to the police, the incident could not have been fabricated by WSIP Ng or other police officers as revenge for dismissal of the Noise Summons. The CID took over the investigation. On 21 May 2007 the Husband was arrested for contempt of court, but was eventually released unconditionally on 14 August 2007. XI. MUSIC SUMMONS 222.According to PC50087’s Notebook, at 03:10am on 4 January 2007 he was instructed by KCRC Console to deal with a noise complaint against the Pub. He arrived at 03:15am but did not hear any music/noise outside. When he entered the Pub, it was open for business and music was played in breach of the 3:00am Conditions. At 03:30am PC50087 told P about such breach, and she replied “我知道，但係音樂好細聲唔嘈”. He said he would apply for a summons in respect of such breach, and P countersigned his Notebook record. At 03:45am PC50087 left the Pub. It was further recorded in his Notebook that “該持牌條件由[WSIP Ng]發出”, ie the licensing conditions set out in paragraph 9(i)-(iv) above under the Licence with validity period from 18 December 2006 to 17 June 2007. 223.On the same day, PC50078 filled out Section A of the Report Form for the Music Summons. Sgt22185 Lee Tak Ming as supervisory officer and SIP So Hon Yiu filed out Sections B and D respectively. The Summons Office completed Section F upon sending the information to KC MagCourt on 10 January 2007. The Music Summons was issued on 13 February 2007. On 15 March 2007, P pleaded not guilty and the Music Summons was adjourned for trial on 7 June 2007. The magistrate was informed of the pending Supervision/Noise Summonses, and imposed bail conditions that P was to stay away from the Pub and not to leave Hong Kong. 224.P had arranged to visit her mother in Thailand who was ill, but had to cancel the trip because of the bail conditions. She consulted a lawyer who advised she could apply to the Court of First Instance to vary her bail conditions but there was no guarantee of success, but the penalty for the offence (usually a fine) would be less than the legal costs for such application. P claimed that after discussion with the Husband, she felt constrained to plead guilty so the Pub could stay open for business and she could visit her mother as soon as possible. On 15 March 2007, P wrote to KC MagCourt stating she had received legal advice and decided to plead guilty. The Music Summons was rescheduled for hearing on 23 March 2007 when P admitted the brief facts (which referred to the 3:00am Conditions and went on to describe the events on 4 January 2007 largely as recorded in PC50087’s Notebook). P was convicted on her own plea and fined $5,000. 225.11 days later on 3 April 2007, P filed Notice of Appeal against such conviction. On 21 June 2007, P’s appeal was heard by the Judge. Mr Leung who appeared for P submitted P’s guilty plea was not voluntary as she wanted to return to Thailand to visit her mother who was ill and to have the Pub open for business as soon as possible. But the Judge considered P had opportunity to seek legal advice and to reconsider before she pleaded guilty. Mr Leung next submitted P did not apply to vary her bail conditions because she did not want to waste costs, but the Judge said quite often defendants could apply on their own with no waste of legal costs. The Judge found P “是有經過深思熟慮才認罪” as a matter of expedience, and dismissed the appeal. P applied for leave to appeal to the Court of Final Appeal, but on 13 February 2008 such application was dismissed as it disclosed no reasonable grounds for leave to appeal. 226.In the present action, P claimed the Music Summons was fabricated. She said she was at the Pub on 4 January 2007, and saw a police car parked outside. At/about 02:00am she was about to close for business, but there were a few customers who had not finished their drinks, so she turned down the music volume. At/about 03:00am she went to the Wet-Bar to switch off the lights, but as she turned around she saw police officers alighted from the police car to enter the Pub. They said they would prosecute her, and did not listen to her explanation that she was closing down. 227.On balance, I reject P’s allegations. First, none of these matters were raised in P’s appeal against conviction. Surely, the police’s false accusation for the Music Summons must have been a fundamental reason to dispute the guilty plea and should have featured in the appeal, and I reject P’s thin suggestion that she left it to Mr Leung to address the Judge, especially when P claimed the Music Summons was the latest incident in a string of false accusations (ie P’s Arrest, the Noise Summons and the Supervision Summons) and unlawful disturbance by the police (especially by the Three). Yet she never mentioned these matters either to the magistrate at KC MagCourt or through Mr Leung to the Judge. 228.Secondly, given P’s assertion that the Music Summons was fabricated and she was advised she could apply to vary her bail conditions, I find it surprising she did not took such course (which she could have done herself as she did before KC MagCourt for the Music Summons) and instead pleaded guilty to the Music Summons. In my view, P pleaded guilty and admitted the brief facts because the prosecution case was true. P tried to suggest her letter dated 15 March 2007 was prepared for her by the Husband, but I find she made a conscious/informed decision to plead guilty. 229.Thirdly, 4 January 2007 was not the only occasion of noise complaints after 03:00am. The 999 Records showed there were other similar noise complaints,[83] and music/karaoke were played inside the Pub when police officers went to the Pub to handle such noise complaints. On balance I am unconvinced by P’s claim that she was just listening to audio Buddhist prayers in a low tone. 230.Fourthly, I reject P’s suggestion that she had to plead guilty otherwise with her bail conditions the Pub could not carry on business. But P admitted that even before she went to court she had applied to the Board for leave of absence to return to Thailand to visit her mother who was ill. According to the Visit Record on 18 March 2007 (ie before P pleaded guilty), it was noted “Remarks: 法庭於2007-03-07出order判咗梁姓男子[ie Husband]為酒吧持牌人(請閱背頁)” and “持牌人已提出申請,並由酒牌局向他發出許可證管理該酒吧,生效日期由2007-03-07開始” (my emphasis), so even before the 1st hearing for the Music Summons on 15 March 2007 the Husband was already the temporary Licensee. There was further authorisation for the Husband to be the temporary Licence from 16 to 25 March 2007 (see the Visit Records for PSU and Operation Levington licence checks on 21 March 2007). 231.Mr Leung in his closing submissions submitted that “[although] the incident on 04/01/2007 was not so much a fabrication, the prosecution was done with malice” (my emphasis). But the Music Summons was not a fabrication (which contradicted P’s case), so the police was justified in the prosecution of the Music Summons irrespective of any alleged malice. Mr Leung submitted PC50087’s Notebook showed WSIP Ng gave instructions to prosecute P and to initiate the Music Summons, hence malice could be inferred. I disagree. This was a PSU (not MESU) visit to the Pub for handling noise complaint. PC50087’s Notebook showed WSIP Ng advised the terms of the licensing conditions for the Pub/Premises. The Report Form made clear WSIP Ng was not involved in initiating the Music Summons, and she was the OC case because it concerned licensing matters. I am not satisfied there was any misfeasance/malice by any police officer for the Music Summons. XII. AFTERMATH (a) Police visits 232.P claimed that after Chan’s Licence was transferred to her in August 2006 until she engaged triad “watcher” Ah B Gor in 2008, various police officers including the Three came to the Pub many times to disturb her and her customers and to utter threatening words. But as evidenced by the Board’s letters to her dated 20 December 2006 and 17 January 2008, she never told the Board about such misconduct or the false prosecutions against her even when the police recommended additional licensing conditions (which P claimed seriously hurt her business) and later opposed her application to remove them. I am unconvinced by P’s excuses that she left it to the Husband and Mr Leung to address the Board. Indeed, I have rejected P’s similar allegations for the period before 9 November 2006, her False Imprisonment and Malicious Prosecution Claims, and her allegation of increased PSU/MESU licence checks following her acquittal of the Noise/ Supervision Summonses. On balance I also reject P’s claim that during licence checks after April 2007 the police officers said threatening words to P, scolded and/or searched the customers, and responded by saying “差人做緊嘢,你收聲” when the customers spoke up. (b) Other incidents 233.On 29 August 2007, the Husband was suddenly attacked by Thai males who used hard object to strike his head/face. The police crime message noted P told the police (which she confirmed at trial) Thais were causing problems but she did not know the attackers. No arrest was made. On 29 October 2007, a male person was observed leaving the Premises and was assaulted by 5-6 persons with glass bottle. P did not remember this, but accepted she had seen some fighting/wounding incidents at the Pub around that time (though it was not often). (c) Ah B Gor 234.P’s case P claimed that after the Noise/Supervision Trials a police van was parked outside the Pub for several hours a night, and police officers would wander around to deter potential customers from entering the Pub by saying there was or would be trouble inside (and they would do this even in P’s presence when she went outside to have a look, and they even said to P “而家玩死你,睇你點”). Since P said the police van was parked outside the Pub for about a month and was still there after Leung’s attack, it would have been in/about mid-2007. P claimed the Pub’s business deteriorated with loss suffered as a result. 235.P further claimed that by August 2008 she/Husband thought of closing down the Pub, but wanted to test whether their troubles would cease if they employed the police’s people as “watcher”. P asked around, and Ah Ngit (who used to be a Thai helper at the Pub) suggested she should approach Ah B Gor. P claimed in/about mid-2008 Ah B Gor came to the Pub to say he was “老新” (which the Husband told P was a triad society) and he would protect the Pub if P paid him $3,000/month. He left his telephone number for P to call him if there was trouble. P promised to pay protection fee to Ah B Gor, and on the 1st day of each month as from October 2008 until April 2009 she paid $3,000 to Ah B Gor’s assistant Keung Gor (強哥). After P started to pay the protection fee, police officers from DATS KCDIV did not go to the Pub for licence checks anymore and the overall frequency of licence checks was reduced (and the police officers were nicer to her during police visits), which P claimed demonstrated Ah B Gor was the person the police wanted P to employ as “watcher”. 236.P said that at the end of 2008, about 3-4 police officers of DATS KCDIV (including Sgt46400) came to the Pub. Sgt46400 asked P whether she had paid the protection fee, and told her he knew she paid $3,000/month to Ah B Gor with whom he had tea a few days ago. He asked her to tell Ah B Gor he had been to the Pub before he left without filling out any Visit Record. P told Ah B Gor about this, and Ah B Gor said he was aware of it. P claimed she/Husband lost confidence in the police and did not want to continue the business. No one was interested to take over the Pub because (P thought) it was known the police had disturbed the Pub. So in April 2009 the Pub simply ceased business. 237.Discussion Ds (especially Sgt46400) denied P’s allegations. In paragraphs 67-68 and 74-76 above, I have rejected P’s allegations about increased frequency of licence checks before P engaged Ah B Gor as well as cessation of DATS visits and reduced frequency of licence checks afterwards, which seriously undermined P’s case above. 238.As regards Ah B Gor, P pleaded she employed Ah B Gor “upon the advice of a friend”, and gave particulars that this was Ah Ngit who used to be a Thai helper at the Pub. But in the earlier P’s ICAC Statement, P said that in mid-2008 “[P]經[Grow Karaoke]附近的泰國餐館的泰國朋友(名字已不記得及沒有聯絡)介紹,稱一個叫B哥的人,收左保護費後可……避免有人到[Grow karaoke]生事”. P tried to explain away the difference by saying her friend at a Thai restaurant merely told her Ah B Gor looked after his/her restaurant, and it was Ah Ngit who introduced her to and arranged the meeting with Ah B Gor. P claimed that even though she paid Ah Ngit wages for working as helper at the Pub, she did not have his identity card particulars, and she lost his telephone number when the Pub ceased business. 239.On balance I do not accept P’s allegations about Ah Ngit, her unidentified friend and Ah B Gor. There was no reason to engage Ah B Gor given my findings there was no police misconduct or false accusations against P. P claimed she gave detailed information about these matters to the ICAC officers, but strangely there was no mention of Ah Ngit in P’s ICAC Statement, and even more strangely P did not realise such statement was inaccurate/incomplete when it was read back to her. I also do not believe P would have been comfortable in employing Ah Ngit as helper and paying him wages for his services without taking down his full particulars after the experience of Somchai’s arrest. Further, P could not explain why she did not tell DoJ she had the telephone numbers of Ah B Gor and Keung Gor when they asked for particulars of Ah B Gor. (d) P’s ICAC Statement 240.P claimed the Husband wanted to and did make a report to the ICAC, and she gave P’s ICAC Statement on 6 May 2010. At first, P claimed the Husband briefed the ICAC at length about P’s complaints against the police, showed them relevant documents, and gave a lengthy statement, so when she gave P’s ICAC Statement she essentially answered questions put to her by the ICAC officer who only wanted to hear about the matters canvassed therein. But P later claimed she went to the ICAC 3 times, and at the 1st and 2nd meetings gave the ICAC officers detailed narrative accounts of all happenings concerning at the Pub (including misconduct by the Three and the WPCs) and answered their questions whilst they made notes. P then back-paddled to say she did not meet any ICAC officer for the 1st meeting. 241.On such basis, P could not satisfactorily explain why P’s ICAC Statement did not mention the alleged misdeeds of PC47421, WSIP Ng and the WPCs and/or P’s Arrest (apart from brief mention that police handling of the Noise/Supervision/Music Summons was unfair) when the ICAC officer read such statement to her and told her she could add to it as she wished before she signed it. I find the allegations in P’s ICAC Statement unreliable. Anyway, the ICAC investigation was concluded on 13 June 2011 as no evidence of corruption was revealed. On balance, I reject P’s claims that she engaged Ah B Gor and paid protection fee to him and/or the impugned police officers (including the Three) received any advantage/bribe from Ah B Gor. The Misfeasance in Public Office Claim therefore fails. XIII. DAMAGES 242.P’s claims fall to be dismissed, and it is unnecessary and indeed inappropriate for me to deal with the issue of damages. But for completeness, I shall make some general observations on the evidence. P’s claims for damages are summarised as follows:
243.In my view, even if P proved her claims, the damages claimed would have been excessive. The documents for establishing the Pub’s profits were thin, and did not support it would have consistently achieved profits of $35,000/month for the whole period of P’s claim. Most of the Pub’s customers were Thais who finished work at/about 11:00pm, so the Pub’s peak hours were 11:00pm–4:00am (Monday to Friday) and 11:00pm– 06:00am (weekend and public holidays). The Karaoke Condition imposed in August 2006 adversely affected the Pub’s business as it meant its Thai customers could not sing karaoke at the Pub after 11:00pm. The situation worsened when the 3:00am Conditions were imposed in mid-December 2006. The Pub was not allowed to sell liquor or play music during its busiest period after 03:00am to 06:00am. Indeed, at the Board’s open hearing on 5 December 2006, the Husband and Mr Leung submitted that “[the] turnover of the premises could not support the business when the liquor selling hours should be stopped after 03:00am”. But in imposing the Karaoke and 3:00am Conditions, the Board took into account all circumstances/factors (eg complaints by the public/Residents, submissions by District Councillor, etc) and not just the police’s information/recommendations, and the Board maintained these licensing conditions even after P’s unconditional release from P’s Arrest and P’s acquittal of the Noise/Supervision Summonses. So it was doubtful whether the Pub’s business deterioration could be laid at the police’s door. I also note the attack on Leung and the further wounding incident in 2007, and P’s confession to the police that Thais were causing problems and there had been some fighting/wounding incidents would have been extraneous factors that contributed to the Pub’s decline. 244.In any event, I am not persuaded P would be entitled to recover full loss of the Pub’s profits. P was 31 years old at the time of the alleged torts, and 41 years old at the time of trial. She was totally silent on what work she did during the intervening years. But she previously worked as a cook in a Thai restaurant at Gold Coast, and claimed to be experienced in the hospitality business. There was no reason why she could not have returned to some gainful employment. Although P claimed she was distressed by the alleged torts, there was no evidence she suffered any physical abuse or any recognisable psychiatric illness, and even Mr Leung accepted her condition was not permanent. No medical evidence was adduced. 245.There was strong debate between Mr Leung and Mr Shum as to whether exemplary damages and aggravated damages would have been appropriate. But in light of my findings on liability, it is unnecessary for me to resolve this debate. XIV. CONCLUSION 246.P’s claims are dismissed. There is no reason why costs should not follow event. I grant a costs order nisi that P shall pay costs of the action (including all costs reserved if any) to Ds, and P’s own costs to be taxed in accordance with Legal Aid Regulations.
Mr Kelvin Leung, instructed by Li Kwok & Law, for the plaintiff Mr Edward Shum, instructed by Department of Justice, for the 1st and 2nd defendants [1] see Kimmy Suen King-on v Attorney General [1987] HKLR 331, 333 [2] see Cox v Ministry of Justice [2016] UKSC 10 paras 15-31 [3] see items 73-74, 111, 118, 122, 125, 130, 131 and 144 of the Leung Summary [4] see paragraph 12 below [5] see Clerk & Lindsell on Torts21sted para 16-09 at pp 1182-1183, Clayton and Tomlinson, Civil Actions Against the Police 3rd ed para 8-011 at p 353, and Pathak Ravi Dutt v Sanjeev MaheshwariCACV129/2014 (unreported, 14 December 2015) [6] see Clerk & Lindsell on Torts21sted para 16-09 at pp 1182-1183 [7] see Clerk & Lindsell on Torts21sted para 16-26 at pp 1193-1194, and Stevens v The Midland Counties Railway Company and Lander (1854) 10 Ex 352, 356 [8] see Clerk & Lindsell on Torts21sted para 16-27 at p 1194, and Moon v Towers (1860) 8 CB (NS) 611 [9] see Clerk & Lindsell on Torts21sted para 16-27 at p 1194, Clayton and Tomlinson, Civil Actions Against the Police 3rd ed para 8-070 at pp371-372, and Tims v John Lewis & Co Ltd [1951] 2 KB 459, 472 [10] see Williams v Taylor (1892) 6 Bing 183, 186 [11] see Glinski v McIver [1962] AC 726, 762 [12] see Mitchell v John Heine and Son Ltd (1938) 38 SR (NSW) 466, 469 (see also oft-cited definition by Hawkins J in Hicks v Faulker (1878) 8 QBD 171, and Clerk & Lindsell on Torts21sted para 16-37 at pp 1199-1200) [13] see Clerk & Lindsell on Torts21sted para 16-37 at pp 1199-1200 [14] see Glinski at p 744 [15] see Glinski at p 770 [16] see Clerk & Lindsell on Torts21sted para 16-38 at pp 1200-1201 [17] see Tempest v Snowden [1952] 1 KB 130, 135, 137 and 139-140 [18] see Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343, 382 and Glinksi at pp 658 and 766-767 [19] see Coudrat v Revenue and Customs Commissioners [2005] EWCA Civ 616 para 41 [20] see Clerk & Lindsell on Torts21sted para 16-39 at p 1201 [21] see Clayton and Tomlinson, Civil Actions Against the Police 3rd ed para 8-048 at pp 365-366, Coudrat at para 46, Glinski at p 759, and A v State of New South Wales (2007) HCA 10 at para 56 [22] see Glinski at p 745 (see also Coudrat at para 42 and in that case it was held that even though evidence of guilty knowledge was not strong, the fact it might be refuted or explained at trial need not be taken into consideration at the moment of charging, and the police officers were entitled to take into account evidence which they believed would become available but which had not yet been crystallized into the form of a statement – see para 52) [23] see Clerk & Lindsell on Torts21sted para 16-43 at p 1203 [24] see Glinski at pp 745 and 759 citing Ravenga v Mackintosh (1824) 2 B & C 693, 697 [25] see Clerk & Lindsell on Torts21sted para 16-45 at p 1204, and Abbott v Refuge Assurance Co Ltd [1962] 1 QB 432, 448 and 450 [26] see Glinski at pp 744-745 and p 759-761 (per Lord Denning) [27] see para 3.2 of the Statement of Prosecution Policy and Practice (“Prosecution Statement”) that provides counsel who prosecute on fiat are subject to the general direction of the Director of Public Prosecutions in the exercise of their prosecution function, and such statement is provided for guidance to all those who conduct public prosecutions, whether or not on fiat [28] see para 6.1 of the Prosecution Statement: “…… [The prosecutor] acts independently of those responsible for the investigation. Whilst the prosecutor may consider the views of the investigator where appropriate, in the end it is the responsibility of the prosecutor to decide whether or not to proceed” (my emphasis) [29] see paras 6.2-6.3 of the Prosecution Statement [30] see para 1 of the Prosecution Statement [31] see Cheung Sou-yat v R [1979] HKLR 630 and paras 2.4-2.5 of the Prosecution Statement [32] see paras 2.5, 4.3-4.5, 5.1 and 6.1 of the Prosecution Statement [33] see paras 2.5, 7.1 and 9 of the Prosecution Statement [34] P in paragraphs 8(o), (p), (v), (w), (x) and (y) of the RASoC admitted the applicability of the Prosecution Statement to counsel on fiat for the Noise and Supervision Summonses/Trials [35] see Clerk & Lindsell on Torts21sted para 16-54 at pp 1210-1211 that refers to Clifford v Chief Constable of Hertfordshire Constabulary [2008] EWHC 3154 paras 48-50 where Cranston J held that the police may still be regarded as prosecuting an offence for the purpose of tort liability even if, after charge, they transfer the prosecution to an independent prosecutor because the police retains a duty to inform the independent prosecutor of matters that became known and that were relevant to the prosecution, so the question will be whether the conduct of the police, in terms of what they have done or omitted to do in relation to the independent prosecutor, satisfies the component of the tort [36] see Steven at para 356 [37] see Halsbury’s Laws of Hong Kong 2nd ed 2012 Vol 47 para [380.358] at p 681 [38] 2nd ed (2012) Vol 47 at pp 682-683 [39] [1997] EWCA Civ 3000 (16 December 1997) per Chadwick LJ at p 10 (also per Judge LJ at p 8) (see alsoClerk & Lindsell on Torts21sted para 16-56 at pp 1211-1212) [40] 3rd ed paras 8-071 – 8-072 at pp 372-373 [41] see Clerk & Lindsell on Torts 21st ed paras 15-23 – 15-24 and 15-26 – 15-27 at pp 1104-1006 and R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19, 42 [42] see Clayton and Tomlinson, Civil Actions Against the Police 3rd ed para 4-049 – 4-050 at p 157 [43] (2005) 8 HKCFAR 137 [44] [1997] AC 286 [45] see Jarrett v Chief Constable of West Midlands Police [2003] EWCA Civ 397 (14 February 2003) para 31 [46] see Clerk & Lindsell on Torts 21st ed para 15-69 at pp 1129-130 [47] see Yeung May Wan & ors at pp 167-168 [48] [2003] EWCA Civ 397 (14 February 2003) para 28 [49] [2003] 2 AC 1 [50] see Three Rivers District Council at p191, and Tso Yung (represented by Wah Po Hing, next friend) v Cheng Yeung Hing & anor HCPI1509/2000, DHCJ Fung (as he then was) (unreported, 26 February 2003) para 72 [51] see Estate of Manish Odhavji, deceased & ors v Woodhouse & ors (2003) SCC 69 (5 December 2005) para 28 [52] see Clayton and Tomlinson, Civil Actions Against the Police 3rd ed paras 11-014 – 11-015 at pp 469-470, and Carter & ors v The Chief Constable of the Cumbria Police [2008] EWHC 1072 (QB) paras 30-32 [53] see Clayton and Tomlinson, Civil Actions Against the Police 3rd ed paras 11-027 – 11-028 at pp 474-475 and Tang Nin Mun v Secretary for Justice [2000] 2 HKC 749, 755 [54] see Tang Nin Mun at pp 752-754 [55] 2nd ed (2012) Vol 47 para [380.357] at p 680 [56] 21st ed para 16-33 at p 1197 [57] [1986] FSR 159, 204-205 [58] see R v Inland Revenue Commissioners & anor, Ex parte TC Coombs & Co [1991] 2 AC 283, 300 and Amstrad at p 205 (see also Gibbs v Rea [1998] AC 786 and Clerk & Lindsell on Torts 21st ed para 16-33 at p1197) [59] see discussion in DBS (Hong Kong) Ltd v Sit Pan Jit HCA382/2009 (unreported, 2 April 2015) paras 33-35 (upheld on appeal in CACV91/2015 (unreported, 10 June 2016) para 88) [60] see In re H & ors (Minors) (Sexual Abuse: Standard of Proof) [1996] AC56, 5863 (and also HKSAR v Lee Ming Tee & anor [2004] 1 HKRD 513, 532-535, Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, 440-441, Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576, 601-602, and News Cleaning Services Company Limited v Watson Environment Management Limited HCA2244/2009, G Lam J (unreported, 14 June 2013) paras 39-45) [61] see Star Glory Investment Ltd v Kai Tua (H.K.) Technology Ltd & ors HCA3523/2002 (unreported, 13 August 2005) para 12 (see also Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, 494, and Hua Tyan Development Ltd v Zurich Insurance Co Ltd [2012] 4 HKLRD 827, 835) [62] eg MESU KCDIV might arrange a licence check on an evening following an occurrence of fighting, loud noise, drug seizure, prostitution or sale of alcohol to underaged persons [63] eg the Visit Records dated 18 March 2007 and 18 January 2008 that recorded the Husband was the temporary Licensee with effective date/period of such licence [64] Mr Leung suggested the police fraudulently tampered with this Visit Record by adding the notation for verbal warning (when the Police Visit Summary (TB3/1099) showed no further action was taken) in order to falsely support WSIP Ng’s allegation that verbal warnings had been given prior to the Supervision Summons, but I am unable to come to such conclusion in the absence of (a) specific evidence on the paper trail of this Visit Record, (b) any evidence as to the circumstances of this visit by unidentified PSU officers and (c) any cross-examination of PC775 who prepared the Police Visit Summary, or to infer any malice on the part of WSIP Ng given that (i) P was actually absent on leave on Monday rather than Wednesday (as suggested in the Application Form), and yet (ii) the police did not issue any summons against P for her absence [65] Vol 1 para 38/2A/6 at p 806 (see also Zebra Industries (Orogenesis Nova) Ltd v Wah Tong Paper Products Group Ltd HCMP436/2013, G Lam J (unreported, 12 February 2015) para 13) [66] HCMA1201/1995, Patrick Chan J (as he then was) (unreported, 10 April 1996) [67] HCMA302/2003, DHCJ Maggie Poon (as she then was) (unreported, 26 June 2003) [68] see Davidson v Chief Constable of North Wales & anor [1994] 2 All ER 597, 602 [69] see regulation 24 of Dutiable Commodities (Liquor) Regulations Cap 109B [70] in contra-distinction to subsequent Licences issued to P which expressly spelt out Thursday or Tuesday as P’s regular day-off (see paragraphs 9 and 13 above) [71] P claimed the Pub’s noise reduction measures (eg concrete walls and double-doors) provided sound insulation, the open-air recess outside the rear entrance had no effect on any noise, even loud music was inaudible outside the Pub if the doors were not opened, and EPD confirmed there was no noise issue after 31 July 2006 [72] Lee also stated he was disturbed by noise from the Pub since April 2006 because “近樓梯位有一個天井空間位，由地下直通往天台頂部，噪音主要由天井位向上傳出，時間絕大部份由晚上午夜時份開始，直至凌晨六時左右，噪音包括卡拉OK音樂聲及有人唱歌聲”, and Lee could feel the vibration of low and heavy music when he sat on the sofa (which even occurred during day-time on Sundays) [73] Lee also claimed there was noise disturbance almost every night, but sometimes he could fall sleep if he was too tired; at first he contacted EPD but later found it convenient to make 999 call noise complaints to the police to get them resolve the noise issue for him [74] see noise complaints identified by footnotes 4-9, 16, 18-19 and 22 of the Leung Summary [75] see 999 Records for items 16-22, 24-26, 32, 35-3639-41, 43, 45, 47-49, 52, 55-56, 58-62, 67-68 and 71-72 of the Leung Summary [76] P denied this, and suggested the Noise PCs knew of these matters because they had been to the Pub before and her identity card showed it was first issued in 1991, but I find on balance P as a Thai Licensee operating a Thai bar was familiar with licence checks and police visits so she took the initiative to assure the police officers of her understanding of punti [77] it was not PC48544’s practice to make record before he acted, but he found it convenient for this occasion as he was making record in his Notebook and intended to give the verbal warning immediately [78] PC48544 usually copied the CCC and drew a sketch for record but not because he wanted to summons P for noise annoyance [79] PC48544 erred when he said at the Noise Trial he copied down P’s particulars and drew the sketch during the 2nd Visit, and he realised such error upon review of his Notebook [80] ie PC48544 reported by PMT to KCRC Console on the 1st noise incident, the Control Centre notified KCRC Console of the 2nd Complaint, KCRC Console assigned a Noise PC to take charge of the 2nd noise incident, KCRC Console gave such Noise PC information on the informant and the 2nd Complaint, KCRC Console received incoming call from a Noise PC reporting arrival within 3 minutes (see entries for 01:20am and 01:23am in PC48544’s Notebook), and KCRC Console gave the IN Report number to the Noise PCs [81] see also the letter by the Board dated 20 December 2006 which noted the Husband and Mr Leung submitted that P did not accept the Karaoke Condition [82] see MacCionnaith v Chief Constable of the Royal Ulster Constabulary [2003] NIQB 53 at para 49 [83] eg noise complaints at 6:07am on 10 March 2007, 03:38am on 27 November 2008, 04:11am on 23 December 2008, 04:33am on 4 January 2009, 04:56 and 05:53am on 25 January 2009, 04:08am on 1 March 2009, 03:43am on 20 March 2009, and 03:02am on 25 March 2009 |
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