Wong Chi Fung v. Secretary for Justice

HCSA 29/2018

[2018] HKCFI 2318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 29 OF 2018

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 26574 OF 2017)

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Before: Deputy High Court Judge Leung in Chambers

Date of Hearing: 3 October 2018

Date of Decision: 16 October 2018

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DECISION

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1.In the course of removing, amongst others, the claimant from a public procession on 1 July 2017, the police handcuffed the claimant in the police vehicle until he was escorted to the duty officer of the police station. The claimant claims that the use of handcuffs on him in the absence of arrestamounted to battery and false imprisonment. He filed his claim in the SmallClaims Tribunal (“the Tribunal”) against the Secretary for Justice, on behalf of the Commissioner of Police, for damages and exemplary damages. The Tribunal dismissed his claim after trial. He now seeks leave to appeal.

The incident

2.In the morning of 1 July 2017, the claimant and other protesters, consisting of about 30 people, embarked on a public procession in the vicinityof the Wanchai branch of China Travel Service (Hong Kong) Limited.  Soon they became surrounded and outnumbered by counter-demonstrators.  The two camps yelled slogans at each other, and there was pushing between the two camps.

3.The counter-demonstrators apparently targeted the claimant anda few prominent figures in the procession party.  Some also fought their way into the procession party and attempted to damage the prop-coffin prepared for the procession.  In the heat of the moment, cases of assault and criminal damages were reported, and some of the counter-protestors were arrested.

4.Dozens of police officers on site attempted to separate the two camps by forming a “human wall” but to no avail.  Also in view of the growing number of the counter-demonstrators, the police decided to remove the protestors from the scene with a view to their protection and restoration of public peace and order.  The claimant and the other prominent figures in the procession party were removed from the scene and escorted to board police vehicles.  There is no dispute that this was against the wish of these protestors.

5.Amongst these prominent protestors removed, two of them, including the claimant, were handcuffed on account of their alleged violent struggle.  In the case of the claimant, he was handcuffed after he has been escorted to board a police vehicle.  The claimant remained handcuffed until his arrival at the police station.  The claimant was brought before the duty officer of the police station, when the handcuffs were removed.

6.On 8 July 2017, the claimant filed his claim for damages for trespass to person (battery and false imprisonment) and exemplary damages.  The police defended their move at the material time as an exercise of their power and use of reasonable force to prevent a breach of the peace.

7.On 4 July 2018, the deputy adjudicator dismissed the claim with costs after trial.

8.After obtaining the written reasons of the deputy adjudicator’s decision (effectively the transcript of the hearing), the claimant filed his application for leave to appeal on 27 July 2018.

Application for leave to appeal

9.Section 28(1) of the Small Claims Tribunal Ordinance, Cap 338 (“the Ordinance”) provides that any party aggrieved by a decision of the Tribunal may apply for leave to appeal on any ground involving a question of law alone or on the ground that the claim was outside the jurisdiction of the Tribunal.

The grounds

10.The claimant seeks leave to appeal against the Tribunal’s decision on the following grounds:

(1) The deputy adjudicator erred in law by holding that the police,without lawfully arresting the claimant for any criminal offence,had the right to use handcuffs on the claimant.

(2) The deputy adjudicator erred in law by holding that the claimant’s action amounted to a breach of the peace when the police did not arrest him for any criminal offence, let alone form any reasonable suspicion that the claimant has committedany criminal offence including offences under the Public Order Ordinance, Cap 245.

(3) Even if the use of handcuffs was not unlawful, the deputy adjudicator erred in law by holding that the police’s continued use of handcuffs on the claimant for the entire escort journey to Wan Chai Police Station was justifiable, necessary and proportionate.

Ground (1)

11.In gist, the claimant argues that as a matter of law, the police have no right to use handcuffs unless and until there is (lawful) arrest.  By his written submissions, Mr Tam, who appeared with Mr Lau for the claimant, submitted that there is clear case law to that effect, and he relied heavily on Leung Kwok Hung v Secretary for Justice [2009] 4 HKLRD 247 at §§62 – 63.

12.In Leung Kwok Hung, the police declared arrest of the plaintiff at Lo Wu Control Point and escorted him in handcuffs and an iron waist chain to the police station by police officers in a police vehicle.  The plaintiff claimed damages for, amongst other things, unlawful arrest and detention. The claimant complained that he should not have been treated that way because he had not committed any serious offence, had no tendency to commit suicide, had no history of violent behavior and could not possibly have escaped.

13.It was in the abovementioned context of the case that Lam J (as the Vice President then was) said in the judgment:

“ 62. In the course of arresting a person and escorting the arrested person, the police can use reasonable measures and force to prevent the arrested person from escaping. If, however, those measures and force exceed what is reasonably necessary,the police may be required to pay compensation to the arrested person. There are cases in which law enforcement authorities were ordered to pay compensation to arrested persons by reason of unreasonable use of handcuffs: see Crawley v A-G [1987] HKLR 379; 霍兆榮 訴 廉政公署 (unrep., CACV 112/2000).

63. On the foregoing analysis, until the taking of the cautionedstatement from the plaintiff, the police had not sufficiently informedhim of the reasons for his arrest.If follows that when the plaintiff was being conveyed to Central Police Station, the arrest made by the police still failed to meet the legal requirements.  The detention of the plaintiff during that stage and related measures, including the use of handcuffs and a chain, were civil wrongs, because the police had no right to use any force against the plaintiff, including the use of a chain or handcuffs, before they put the plaintiff under lawful arrest.  Accordingly, the plaintiff is entitled to compensation in this regard.”

14.One should also note what the learned Judge continued to say:

“ 64. In any event, taking into account the circumstances at that time, including …., even if I did not find the arrest in question fell foul of the law, I would still hold that the use of a chain by the police during the journey from Ta Kwu Ling Police Station toCentral Police Station went beyond what was reasonably necessary. The police are therefore liable to pay compensation to the plaintiff.”

15.What the court said in Leung Kwok Hung was in the context ofwhether and, if yes, what measures and force the police can use in arresting a person.  If the arrest was unlawful, it followed that any measure or use of force that amounts to detention would be unjustified and must be excessive. In case of a lawful arrest, the measure and force that could be used should still not exceed what is reasonably necessary, and use of handcuffs is not a must. This case stands as authority of these principles.

16.I therefore do not agree with Mr Tam’s reading of Leung Kwok Hung as an authority for the proposition that the police have no right to use handcuffs unless in the case of (lawful) arrest.

17.The deputy adjudicator explained in his reasons (at §24) that the case of Leung Kwok Hung cited by the claimant in support of his claim was not applicable as this was not a case of use of handcuffs in making arrest of the claimant.  Brief as that may seem, it cannot be said that the deputy adjudicator’s observation was wrong.

18.It is common ground that the police handcuffed the claimant in the course of their exercising of the power to prevent a breach of the peace arising out of the conduct of the claimant since his being removed from the scene of the demonstration.  The context of the present case indeed differs from Leung Kwok Hung as discussed above.

19.Likewise, contrary to what Mr Tam submitted, it is not a question of whether a person who was unlawfully arrested ab initio but lawfully arrested subsequently (as in Leung Kwok Hung) should be better off than a person who was not arrested at all (as the claimant), insofar as the use of handcuffs is concerned.  As discussed, even in case of lawful arrest and the escort of the arrested person, use of handcuffs is not a must but only if this is reasonably necessary to effect the arrest or to prevent the arrested person from escaping: see Leung Kwok Hung at §62.

20.As to the power to take reasonable steps to stop the person who was breaking or threatening to break the peace from doing so, the deputy adjudicator (at §23 of his reasons) referred to Albert v Lavin [1982] AC 546 at 565A–C and the Hong Kong case of Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797 at §25.

21.In Lavin, a plain-clothed police officer sought to prevent the defendant from boarding a bus upon seeing him attempting to do so by pushing a number of people standing in the bus queue.  A struggle took place, and the officer pulled the defendant away from the queue.  The officer revealed his identity and warned the defendant to stop struggling or arrest would be made.  The defendant did not believe the officer and hit him several times.  In respect of the assault of the officer in the execution of his duty, the defendant was arrested.  For the present purpose, the focus however is on what the court in that case said about the police officer’s intervention into the defendant’s conduct immediately prior to the arrest.

22.On appeal from the magistrates, Hodgson J accepted that it was a well-established principle that to detain a person against his will without arresting him was an unlawful act and a serious interference with a citizen’s liberty.  However, his Lordship continued to say (at 553A):

“ It is however clear law that a police officer, reasonably believing that a breach of the peace is about to take place, is entitled to take such steps as are necessary to prevent it, including the reasonable use of force….If those steps include physical restraint of someone then that restraint is not an unlawful detention but a reasonable use of force. …”

23.On further appeal, the House of Lords (per Lord Diplock) also had this to say (at 565A):

“ … to the well-established principle referred to by the learned judge there is an equally well-established exception, not confined to constables, that is applicable to the instant case. It is: that every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a citizen who is a constable, it is a duty of imperfect obligation.”

24.In Chan Hau Man, the police, to start with, took measures to protect the safety of the demonstrators from the growing number of hostile counter-demonstrators.  Apprehending an imminent breach of the peace and the safety of the demonstrators, onlookers and the police officers present,the police eventually decided to remove the demonstrators from the scene in a police van.  The demonstrators were later taken to a police station and left after an hour.  Like the present case, there was no question of arrest of the demonstrators.  One of the demonstrators so removed subsequently sought judicial review of the decision to remove them, criticizing that as a move interfering with their freedom of speech and demonstration.

25.Andrew Cheung J (as the Chief Judge then was) set out the legal principles on the power to keep the peace (at §§21 – 36), including what the court in Albert v Lavin (above) explained.  Specifically, his Lordship explained (at §§27 – 34) that the law allows a police officer to take steps against those who are about the breach the peace and, in exceptional circumstances, those who are not.  As to what steps to take, his Lordship said (at §25):

“ If a police officer (or indeed any citizen) reasonably apprehends that a breach of the peace is ‘imminent’ (or ‘about to occur’), his duty is to take reasonable steps to prevent it. And once that stage is reached, but not before, all the various options—arrest and detention, restraint, warning, etc—become available and the officer can choose the option or combination of options that best fits the circumstances (Laporte at pp.134–135 para.62, p.136 para.66).”

26.Therefore, contrary to what Mr Tam submitted, I see nothing wrong about §23 of the deputy adjudicator’s reasons, which fairly recited the above principles in respect of the power to prevent breach of the peace and the various options that are open to be adopted towards that end depending on what the circumstances of the case reasonably call for at the material time.  In Chan Hau Man, his Lordship also emphasized (at §§66 and 68) that the action taken should be nothing more than is necessary and appropriate.

27.The claimant argues that even if a police officer, reasonably believing that a breach of the peace is imminent, is entitled to take such steps as are necessary to prevent it, and even if those steps in appropriate cases will include (in addition to arrest) detention, restraint and warning, etc, the availability of these options does not mean the police are allowed to circumvent the requirement of having to make a lawful arrest before using handcuffs on an individual.  In other words, and for instance, handcuffs maynot be used for the purpose of restraint or detention without arrest in any event. 

28.For such further qualification of the exercise of the power with reference to the use of handcuffs, Mr Tam borrowed support from the Police General Orders (§29‑05) as recited in William Alan Terence Crawley v AG [1987] HKLR 379 at 386H–J.

29.Crawley was a case of execution of a warrant of arrest issued by the magistrate on the plaintiff for failure to attend court.  The plaintiff wastaken to the police station, where he refused bail and asked to be taken to the magistrate.  Whilst arrangements were being made to transport him to the court, he was detained in a cell for 20 minutes.  He was then handcuffed and taken to the magistracy, where he was further detained before being taken before the magistrate.  After completion of the bail documents, he was released.  About 8 minutes were spent at the magistracy.  He was quiet and sane throughout.  He claimed damages for false imprisonment and assault relating to the use of handcuffs.  The court found that the plaintiff’s detention was not unlawful.  The issue that is relevant to the present case was the consideration of the use of handcuffs.

30.Hunter J first set out the appropriate test governing the use of handcuffs under the common law (at 385 – 386):

“ [Citing Leigh v Cole(1853) 6 Cox CC 329:]

‘First, with respect to handcuffing, the law undoubtedly is, that police officers are not only justified but they are bound to take all reasonable requisite measures for preventing the escape of these persons they have in custody for the purpose of taking them before the magistrates; but what those reasonable measures are must depend entirely upon circumstances, upon the temper and conduct of the person in custody, on the nature of the charge, and a variety of other circumstances which must present themselves to the mind of any one. As to supposing that there is any general rule that everyone conveyed from the police station to the magistrate’s court is to be handcuffed, seems to me to be an unjustifiable view of the law, and one on which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him,and taking him thus publicly through the streets. On the other hand, it is necessary to take proper precautions in conveying a person in custody to be dealt with by the magistrates; and you must say whether, looking at all the circumstances of the case, the defendant used unreasonable precautions in this case, or used unnecessary measures to secure the safe custody of the plaintiff.’

So that is the test. You look at all the circumstances of the case and ask yourself whether reasonable precaution or unreasonable precautions or unnecessary measures are taken. … [Citing R v Taylor (1895) 59 JP 393:] ‘handcuffing was only justifiable when reasonable necessity existed. If it were resorted to in the absence of such necessity, the party so treated might bring an action to recover damages for such a grievous indignity.’

[Citing Lindley v Rutter (1981) QB 128:]

‘…This is not to say that there can be no standing instructions.  Although there may always be special features in any individual case. the circumstances in which people are takeninto custody are capable of being categorised and experiencemay show that certain measures, including searches, are primafacie reasonable and necessary in a particular category of case.  The fruits of this experience may be passed on to officers in the form of standing instructions.  But the officerhaving custody of the prisoner must always consider, and be allowed and encouraged to consider, whether the special circumstances of the particular case justify or demand a departure from the standard procedure either by omitting whatwould otherwise be done or by taking additional measures.’”

31.Hunter J then turned to the Police General Orders (§29‑05) that Mr Tam sought to rely on:

“ (4) A police officer shall not use handcuffs on a person unless such action is clearly necessary; and

(5) Circumstances in which use of handcuffs is appropriate are as follows:

(a) when arresting a person who is violently or likely to become violent;

(b) when arresting a person who is likely to attempt to escape; and

(c) to restrain a violent suspected insane person.

Before using handcuffs, a police officer shall make a value judgment based on the foregoing considerations and the particularcircumstances of the case.  He may subsequently be asked to justify his action in this regard.”

32.Pausing here, I think it is clear that the court in Crawley considered the question of use of handcuffs in the context of an arrest being made.  I should also point out that during the hearing, Mr Tam acknowledged the uncertainty as to whether the above provisions of the Police General Orders were the prevailing version at the material time in the present case.  In the absence of proposed ground of appeal on the basis of any failure of the Tribunal to investigate into this aspect, both the claimant and this court would have to proceed on the basis of these being the provisions relied on by him for the purpose of the present application.

33.On the basis of these provisions of the Police General Orders, §(4) of them contains the general instruction while §(5) sets out three specific situations in which use of handcuffs would be appropriate.  Properly read,the latter applies without prejudice to the generality of the former.  Indeed,the reference to the “foregoing considerations” in the paragraph following these two paragraphs must apply to both paragraphs. This would also align with the reality, as the use of handcuffs may not be called for to effect an arrest but may become necessary as a result of the conduct of the person under detention at any stage after the lawful arrest—a situation covered by the general instruction under §(4), not §(5).

34.These led to Hunter J’s conclusion on the applicable principle (at 387A):

“ So both these general statements of law and the terms of that Chapter in the Police Regulations, all say the same thing. Every case must be considered on its own particular merits.”

35.Insofar as the applicable principle is concerned, all the law says is that handcuffs should not be used unless this is necessary and appropriate in a given situation, depending on the circumstances, whether or not an arrest is being made.  No authority lends support to the claimant’s proposition that the right to use handcuffs does not exist unless and until (lawful) arrest is being or has been made.

36.During the hearing, Mr Tam also emphasized that only the police have handcuffs.  However, I do not see how this affects the application of the abovementioned principles.  As mentioned, the power and duty to prevent breach of the peace falls on the police as well as the citizens.  There is no basis to assume that handcuffs as a tool must be available, even in the case of a police officer, at the very moment of taking the necessary step to prevent breach of the peace.  For the purpose of argument, Mr Tam, when asked during the hearing, suggested that use of a rope to restrain or to detain a person in such circumstances would equally be unjustified in the absence of (lawful) arrest.  I have difficulty in accepting that as a proper application of the principles mentioned above.

37.All considered, whilst this ground of appeal involved a point of law, I am not satisfied that it is arguable.

Ground (2)

38.This ground is an appeal against the adjudicator’s finding that the claimant was in breach or threatened to breach the peace immediately prior to his being handcuffed.  In respect of what happened immediately before the use of the handcuffs, the deputy adjudicator was unequivocal in his decision to reject the evidence of the claimant and to prefer the evidence of the defence witnesses.

39.Section 28(1)(a) of the Ordinance (above) refers.  Mr Tam accepted that the findings of fact of the Tribunal are generally immune fromchallenge, unless such is perverse or irrational or where there was no evidence to support the findings or the findings were based on reference to irrelevant matters or failure to regard to relevant matters.

40.Mr Tam sought to highlight the inherent probability of the circumstances portrayed by the testimony of the various police officers before the Tribunal.  The deputy adjudicator in §§11 – 27 of his reasons, which was the transcript of what he actually said in court, set out his assessment of the evidence and the credibility of the respective witnesses in some detail.  He was quite entitled to draw his conclusion in accepting the evidence of the defendant’s witnesses and in unequivocal terms rejecting the evidence of the claimant in respect of what happened immediately prior to his being handcuffed.  This included the police officer’s evidence that the claimant persisted in his struggle regardless of the police officer’s demand that he should calm down after they have boarded the police vehicle.  The deputy adjudicator was equally entitled, in the light of what he found to be the fact at the material time, to conclude that the police reacted by using the handcuffs on the claimant as being reasonable and necessary in the circumstances.

41.I am not satisfied that the proposed challenge against the factual findings of the Tribunal in this respect has any merit.

Ground (3)

42.This ground focuses on the continued use of handcuffs on the claimant for the entire escort journey from the scene to the police station.

43.The case law discussed above requires the police to consider and to exercise judgment in respect of the necessity and appropriateness of the measure taken depending on the circumstances of the case.  Where a police officer is restraining someone to prevent a breach of the peace, he must release him as soon as the restrained person no longer presents a danger to the peace: see Albert v Lavin (above) at 553B–C.  In the context of an arresthaving been made, use of handcuffs on the detained person who is calm anddid not resist or threatened to harm himself or the persons around him would not be justified: 霍兆榮 訴 廉政公署 CACV 112/2000 (23 June 2000).  Whilst the use of handcuffs might be justified, the justification for their continued use might cease after the subject of detention has calmed down and posted no more threat to the peace.

44.The claimant raised this argument during the hearing at the Tribunal, and cross-examined the police officer in this respect.  Mr Tam submitted that the deputy adjudicator erred in accepting the police officer’s explanation for the continued use of the handcuffs until they reached a safe venue for their removal.  Mr Tam questioned the police officer’s basis for perceiving the risk that the claimant would repeat what he did prior to his being handcuffed after he has been handcuffed and seated on board the police vehicle, when the police officer admitted in his evidence that the claimant had stopped resisting shortly after he was handcuffed and seated at the rear of the police vehicle.  There was nothing to suggest that the claimant has notremained calm and quiet since then.  Further, there were other police officerson board on the police vehicle when it embarked for the police station.  Therewas no evidence suggestive of such risk that the claimant, if un-cuffed, would harm the personal safety of himself or other persons on board the police vehicle, at any stage of the journey to the police station.

45.The question involved the judgment on the part of the police officer in the circumstances prevailing at the material time.  The case law discussed above requires the consideration of the reasonableness and necessity of the police’s decision to be assessed objectively.  Whether or not the deputy adjudicator has subjected the evidence, of both the claimant and the police, in this respect to objective test involves a point of law.

46.In my view, the deputy adjudicator has clearly carried out an objective assessment of the necessity and reasonableness of the continued use of handcuffs on the claimant.  Contrary to Mr Tam’s submissions, the deputy adjudicator did not take into account merely the police officer’s evidence as to his observation about the claimant’s expression of discontent about his removal from the procession and the handcuffs on him on board the police vehicle (§28 of his reasons).  The deputy adjudicator objectively considered the police officer’s assessment and judgment in the circumstances of the case, including (i) the risk based on his observation of how the claimant conducted himself during the entire process of his removal from the procession up to his boarding the police vehicle (§29 of his reasons); and (ii) how long the journey to the police station, and thus the duration of the claimant’s being handcuffed, was expected to take[1].

47.The deputy adjudicator then concluded (at §31 of his reasons):

「 事實上，經小心觀察何警員的證供，及他當時所面對的環境情況，本席認為，在何警員的意識中，直至他把申索人帶到警署內的值日官前，申索人再做出危害自己或他人安全的風險實在未能解除。本席認為，基於上述的分析，何警員當時所作出的判斷是有合理的基礎所支持的。其中，本席認為，在本案的背景下，申索人早前所做出破壞社會安寧的行為是一項重要的證據，合理地支持何警員當時的判斷。除非有足夠的條件改變，客觀地看該風險是會合理地繼續存在的。明顯地，沒有證據顯示申索人當時對警方不滿的看法有所改變，另外，一個人是需要一段時間，由激動的情緒狀態冷靜下來。再加上，警署內的值日官前有足夠的警員在場，客觀而言，這亦可令申索人不敢輕舉妄動，再做出如早前般危害到自已或他人安全的行為。在這方面，根據何警員的證供，他為申索人戴上手銬後直至他為申索人解除手銬整個期間，他都有認真考慮到何時為申索人解除手銬，因為如上所述，他清楚明白到使用手銬對申索人的影響。何警員亦說到，他選擇在值日官前替申索人解除手銬，若有任何突發情況出現，警署內亦有足夠人手控制，他亦可得到支援。何警員在回答法庭的提問時亦說到，在灣仔警署的停車場下車時，在車道上會有車經過，並非安全的地方為申索人解除手銬。事實上，申索人同樣沒有貿疑何警員這方面的證供。本席亦留意到，由停車場下車行至值日官的路程，只須短暫的時間。經綜合觀察本案所有證據後，本席信納何警員的證供，並裁斷他本人有就在何時、何地應為申索人解除手銬作出合理的獨立判斷。」

48.The deputy adjudicator has carried out an objective assessment of the decision making process of the police officer in respect of whether and, if yes, when and where it was safe and appropriate to free the claimant of the handcuffs, and he was entitled to conclude that the decision of the police officer survives the objective test in the circumstances of the case.  Once this is established, whether or not another tribunal may have come to a different conclusion does not afford an arguable ground of appeal.

Disposition

49.Leave to appeal is refused.  I make no order as to costs.

50.I thank Mr Tam, with Mr Lau, for his assistance.

Mr Jeffrey Tam and Mr Andrew Lau, instructed by Ho, Tse, Wai & Partners, for the claimant (applicant)