Lam Wai Ip v. The Secretary for Justice

HCA 2827/2016

[2020] HKCFI 1773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2827 OF 2016

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Before: Deputy High Court Judge MK Liu in Court

Date of Hearing: 6 - 8 & 23 July 2020

Date of Judgment:  30 July 2020

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JUDGMENT

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BACKGROUND

1.In these proceedings, the plaintiff (“P”) sues the defendant (“D”) for malicious prosecution.  P’s claim arises from a set of criminal proceedings (HCCC 383/2014), in which he was prosecuted for the offence of trafficking in a dangerous drug, namely 3 packets of crystalline solid, being 55.27g of methamphetamine hydrochloride (commonly known as “ICE”).  P was acquitted on 25 August 2015 by a jury after trial.

2.The prosecution’s case in HCCC 383/2014 is as follows:

(1)  On 15 May 2014, a team of 8 police officers (collectively “the Officers”) from the Anti-triad Squad of the Kwai Tsing Police District, acting upon police intelligence and armed with a search warrant, laid ambush at the rear staircase outside the premises known as Flat 21A, 1^st Floor, Hang On Tong Building, Hang On Street, Sau Mau Ping, Kowloon (“Flat 21A”). At around 10:20 am, P appeared outside Flat 21A and, as perceived by the Officers, was acting in a furtive manner.  The Officers therefore intercepted P outside Flat 21A, and conducted a search of P’s body.

(2)  3 transparent re-sealable plastic bags containing suspected dangerous drugs were found in the right front pocket of the long sport trousers that P was wearing at the time (“Trousers A”).  The contents of these plastic bags were later confirmed by Government Chemist to contain a total of 55.27g of methamphetamine hydrochloride (“the Drug”).

(3)  P was thereupon arrested and cautioned.  Under caution, P said that the Drug was for his own consumption.  The Officers then took P into one of the rooms (Room D) inside Flat 21A.  P claimed that he resided in that room.  Inside Room D, dangerous-drug-related paraphernalia were found, and a female (whom P claimed to be his girlfriend) was also inside the room at that time.  After searching and carrying out certain routine procedures at the scene, P and the female were brought back to the police station.

3.P does not dispute that he was intercepted and arrested by the Officers outside Flat 21A on 15 May 2014.  In his pleadings and witness statements filed in these proceedings, he denies any dangerous drug being found on his body at the time of the arrest, and he also denies any drug-related paraphernalia being found inside Room D on that date.

4.The crux of P’s case is that Trousers A did not have any pocket, and hence it would not be possible for the Officers to find anything inside the right front pocket of the Trousers.  According to P, the Officers have fabricated evidence to frame him up (“the alleged fabrication”).

5.P did not make any bail application when he appeared in the magistrates’ courts on 11 July 2014 and on 15 July 2014.  P first applied for bail on 22 August 2014 when he appeared in a magistrate’s court but the application was refused.  In all these court hearings, P did not raise the alleged fabrication.

6.P first raised the alleged fabrication on 5 September 2014, when he appeared in the Eastern Magistracy for the committal proceedings.  P’s application for bail in that hearing was refused, and P through his legal representatives consented to the case being committed to the Court of First Instance for trial without holding a preliminary inquiry.

7.Subsequently, P applied to the Court of First Instance for bail on 15 September 2014 and 8 October 2014, but both attempts were unsuccessful.  P remained in custody in the Lai Chi Kok Reception Centre (LCKRC) until his acquittal on 25 August 2015.

8.A pair of trousers was produced as evidence in the trial in HCCC 383/2014.  That pair of trousers no longer had any pocket.  The pouches of the trousers had been cut off, and all the openings had been sewn up.  P was represented by counsel in the criminal trial.  P’s counsel did not make an application for no case to answer.  The trial judge saw fit to leave the case to the jury to decide. P elected not to give any evidence. After hearing all the evidence and the submissions, the jury unanimously found that P was not guilty as charged.

THE PARTIES’ RESPECTIVE CASES

9.When P commenced these proceedings, P named “The Secretary for Justice (on behalf of The Commissioner of Police)” as the defendant.  However, subsequently, P amended his statement of claim and changed the identity of the defendant to “The Secretary for Justice”.   The case as pleaded against D in the Re-Amended Statement of Claim is as follows:

“6. It is the Plaintiff’s case in the criminal proceedings that:-

(a) The Plaintiff never possessed the Three Packets of Ice, the Green Glass Bottle, the Transparent Plastic Bag and the Scale;

(b) He had never made any confession saying that “the dangerous drugs is for my own consumption”;

(c) The pockets that were originally in the Trousers, including the right front pocket were cut away and the openings were sewn together before 15 May 2014; and

(d) There were simply no pockets and no pouches in the Trousers on 15 May 2014.

7. Government laboratory found that:-

(a) There was no fingerprint or fibre of the Trousers on the Three Packets of Ice;

(b) There was no dangerous drugs residue on the Trousers;

(c) There was no control substance contained in the liquid inside the Green Glass Bottle;

(d) There was no DNA and fingerprint on the Green Glass Bottle; and

(e) There is no fingerprint found on the Scale and on the Transparent Plastic Bag.

……

Malicious Prosecution

10. The police had fabricated evidence and framed the Plaintiff up, wrongfully arrested him and malicious prosecuted him, particulars as follows:-

Particulars

(a) The Plaintiff was returning to the Premise at around 10:22 a.m. on 15 May 2014;

(b) The police intercepted the Plaintiff when the Plaintiff pulled out his key to open the door of Flat 21A. The police took away the keys;

(c) The Plaintiff was taken by the police to the Rear Staircase. The police asked the Plaintiff to open his shoulder bag and the police took a look inside, seeing some money;

(d) The Police then took the Plaintiff back to 2^nd Floor of Hang On Mansion, Sau Mau Ping. The Plaintiff found the door of Flat 21A had already been opened. The Plaintiff was taken inside Flat 21A and to the hallway leading to the Premise. The Plaintiff found the door of the Premise had already been open. His serious girlfriend was sitting on the sofa inside the premise;

(e) Two policemen in the hallway showed the Plaintiff a bag containing various items such as the Scale;

(f) The Police then demanded the Plaintiff to admit possession of dangerous drugs and threatened the Plaintiff that if he did not make admission, they would arrest the Plaintiff’s girlfriend. The Plaintiff refused to make admission;

(g) The Police then searched the Premise. Nothing extraordinary was found during the search in the Plaintiff’s presence;

(h) The Plaintiff was never in possession of the Three Packets of Ice, the Green Glass Bottle, the Transparent Plastic Bay and the Scale;

(i) The Three Packets of Ice could not have been found inside any pockets of the Trousers as alleged by the Police and the Prosecution because the Trousers simply had no real pockets and no pouches at the material times;

(j) The pockets that were originally in the Trousers, including the right front pocket were cut away and the openings were sewn together well before 15 May 2014;

(k) The Green Glass Bottle, the Transparent Plastic Bag and the Scale were never inside the Premise;

(l) The search warrant that the police obtained targeted the entire Flat 21A, not just a specific room or against a specific person. But the police only searched the Plaintiff and the Premise; and

(m) The Police arrested the Plaintiff, charged him and later gave evidence in the criminal proceedings against the Plaintiff.

11. The Plaintiff raised the issue as pleaded in paragraph 10(i) herein as early as 5 September 2014 to a Magistrate at the Eastern Magistrates’ Courts during a hearing after the committal bundle had been served on him and he had found out the police’s allegations against him in details on the case papers contained in the committal bundle.

12. Notwithstanding that under the Prosecution Code a prosecutor must be satisfied that the evidence demonstrates a reasonable prospect of conviction and must take into account the rights of the accused including the right to freedom under Article 5 of the Hong Kong Bill of Rights Ordinance, Cap. 383 in determining whether to continue a prosecution, the prosecution nonetheless decided to continue to prosecute the Plaintiff and object to the Plaintiff’s bail applications despite the fact that they were aware of the said issue as pleaded in paragraph 10(i) above which had been raised by the Plaintiff to the Magistrate.

12A. Further, the Police continuously gave untrue evidence in the criminal proceedings against the Plaintiff despite the fact that they were aware of the matters pleaded in paragraphs 6 and 7 herein.

13. The police fabricated the evidence against the Plaintiff. The conduct as particularized in paragraphs 10 to 12A of the above amounts to an abuse of process of the court by wrongfully setting the law in motion without any reasonable and probable cause.

14. The conduct of the police as particularized in paragraphs 10 to 13 specifically intended to injure and harm the Plaintiff and/or the police acted intentionally being aware that it would in the ordinary course directly cause loss and harm to the Plaintiff which is the type of loss and harm complained hereof. The criminal proceedings was instituted and/or carried on maliciously causing the Plaintiff to be wrongfully detained for 468 days and suffers monetary and other loss.

15. The police was clearly acting within the scope of their employment as servants of the Government.  The Government is therefore vicariously liable to the police’s conduct.”

10.D’s case is that the Officer’s evidence is true and there has been no fabrication as alleged by P.

THE ISSUES

11.The cause of action relied upon by P is malicious prosecution.  The law on malicious prosecution has been recently summarized by G Lam J in Chin Kam Chiu v FTI Consulting Inc and Others[1], in which the learned judge said:

“27. The elements of the tort of malicious prosecution have been set out in Clerk & Lindsell on Torts, 22^nd ed., §16‑12, in a passage approved by the House of Lords in Martin v Watson [1996] 1 AC 74, 80C and Gregory v Portsmouth City Council [2000] 1 AC 419 and the Court of Appeal in Eugene Hae-Hoon Oh v Kate Gaskell Richdale [2005] 4 HKC 28, §10:

‘In action of malicious prosecution the claimant must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the claimant.’” (Emphasis added)

12.Accordingly, in order to succeed in an action of malicious prosecution, the claimant must prove all the 4 elements. The burden of proof is on the claimant.  If liability is established, the only remedy which the court may grant to the claimant is an award of damages[2].

13.In these proceedings, it is common ground that the criminal proceedings have been determined in P’s favour.  The issues to be determined are as follows:

(1)  whether the remaining 3 elements in malicious prosecution have been established by P; and

(2)  if liability is established, what should be the quantum of damages.

14.In respect of the 1^st element in malicious prosecution, counsel for D submits that P is suing the Officers for malicious prosecution, but the Officers are not the prosecutor in HCCC 383/2014.  In other words, P has sued the wrong persons.  On this point alone, P’s claim must fail.  Having considered counsel’s submissions in detail, with respect, I am unable to agree.

(1)  As mentioned in the above, P has amended the identity of the defendant in these proceedings.  After the amendment, the identity of D is the Secretary for Justice (“the SJ”), not SJ on behalf of the Commissioner of Police.  SJ is the head of the Department of Justice, which has the authority to control all the criminal prosecutions in the HKSAR[3].  It would be correct and proper for P to name SJ as the defendant in his claim founded on malicious prosecution.

(2)  There are pleas against the prosecution in [10(i)], [12], and [14] of the Re-Amended Statement of Claim.

(3)  I note that there are allegations against the police at various places in the Re-Amended Statement of Claim.  However, P is not saying that the police or the Officers are the prosecutor.  P is not only making allegations against the police.  He has also made allegations against the prosecution, and he has named the SJ as the defendant in these proceedings. P is saying that the SJ is the prosecutor in P’s claim founded on malicious prosecution.  In my view, P has pleaded a case of malicious prosecution against the SJ.

15.As to the 3^rd and the 4^th elements, in Chin Kam Chiu, G Lam J said:

“36. …… The fact that Chin was acquitted did not in itself mean that there was no basis at all to prosecute him. After all, the judge ruled there was a case for him to answer. In Williamson v Attorney General of Trinidad and Tobago [2014] UKPC 29 at §14, Lady Hale said:

“ On the question of reasonable and probable cause, or the lack of it, a prosecutor must have ‘an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed’: Hicks v Faulkner (1878) 8 QBD 167, 171 per Hawkins J, approved by the House of Lords in Herniman v Smith [1938] AC 305, 316 per Lord Atkin.  The honest belief required of the prosecutor is a belief not that the accused is guilty as a matter of certainty, but that there is a proper case to lay before the court: Glinski v McIver [1962] AC 726, 758 per Lord Denning.”

37.  ……  A good working definition of malice in this context has been said in Williamson at §11 to be this:

“ What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law — an ‘illegitimate or oblique motive’. That improper purpose must be the sole or dominant purpose actuating the prosecutor.”” (Emphasis added)

16.I would now turn to the evidence to see whether the 3^rd and the 4^th elements are proved by P.

THE EVIDENCE

17.P has given evidence at the trial to support his claim.

18.D has called the following 5 witnesses to give evidence at the trial:

(1)  Chui Ming Wai (“Chui”)

(2)  Mok Ting Chung (“Mok”)

(3)  Chan Wai Hang (“Chan”)

(4)  Ng Chi Wai (“Ng”)

(5)  Wong Kai Cheuk (“Wong”)

19.D has filed a witness statement of Lo Kwok Kin (“Lo”) dated 12 October 2017, but D has not called Lo to give evidence at the trial.  Lo is an officer in the Hong Kong Police Force.  In his witness statement, he made an estimation as to the value of the Drug and mentioned the modus operandi of drug traffickers.  Since D has not called Lo to give evidence at the trial, I attach no weight to the matters said in this witness statement.

20.In P’s written final submissions, P has annexed some without-prejudice correspondence passing between P and D thereto.  The said correspondence is the communication between P and D for the purpose of discussing to resolve the dispute in these proceedings by an alternative way, and therefore should not be disclosed to the court.  I have completely ignored the said correspondence in my consideration and the said correspondence has no impact on any part of my judgment at all.

Evaluating evidence - the principles

21.In respect of evaluating the evidence given by witnesses, a valuable guidance can be found in Hui Cheung Fai and another v Daiwa Development Limited^[4], in which DHCJ Eugene Fung SC said:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) ……

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: e.g. Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

22.See also Lee Fu Wing v Yau Po Ting Paul [2009] 5 HKLRD 513, in which DHCJ Au (as he then was) said:-

“53. In assessing the credibility of a party’s case on a particular issue, I accept the submissions of [counsel] that the Court should take into considerations the following:-

(1) Whether the party’s case is inherently plausible or implausible.

(2) Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable.

(3) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility.

(4) The demeanour of the witnesses.”

23.The court would approach the self-serving statements made by a witness with circumspection, but would give considerable weight to the statements made by him which are against his interest. See Wong Tak Yue v Kung Kwok Wai & Another (No 2)^[5]:

Per Li CJ[6]:

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.” (Emphasis added)

Per Litton PJ[7]:

“Here, the appellant has come nowhere near establishing adverse possession. He unequivocally declared that at all times he was ready willing and able to pay rent to the owners, and did not do so only because no one came along on behalf of the landlords to collect rent. Whether his acts and declarations in the course of the 1980 court proceedings amounted to an acknowledgment of the owners’ title in terms of s.23(1), or fell short of that, the fact remains that he had no intention to exclude the owners.” (Emphasis added)

Per Ching PJ[8]:

“I need only add that there can be no better evidence of the intention of an occupier of land than his express declaration against his own interest.” (Emphasis added)

24.The aforesaid principle is not limited to adverse possession cases but has a general application.  See 章晶歷 v 吳聯模 and Another [2020] HKCFI 359, [17].

P

25.D has produced the criminal record of P, and P admits that he has a criminal record.  However, in assessing the credibility and reliability of P’s evidence, I place no weight on P’s criminal record and the criminal record has not in any way affected my assessment of P’s evidence.

26.In his evidence, P said that some time before the incident on 15 May 2014, he bought 3 pairs of trousers at a low price.  The 3 pair of trousers were of the same style and of two different colours.  All these trousers had pockets.  After wearing them for a few times, the pockets were torn.  At one time, his part-time domestic helper discovered that the pockets in one pair of trousers were torn and took the initiative to repair the trousers.  The domestic helper took away the trousers and returned the trousers to P at a later time.  When the domestic helper gave the trousers back to P, P saw that all the pockets had been cut away.  On 15 May 2014, he wore this pair of trousers to go out to have breakfast and to do some grocery shopping.  When he returned to Flat 21A, he was intercepted and arrested by the police.  At that time, he was wearing a pair of trousers with no pocket.

27.In my view, P’s evidence is an untruthful on various material aspects:

(a)   If there is any truth in the fabrication alleged by P, P would have made a complaint against the Officers as soon as practicable.  However, when he was taken back to the police station after being arrested, he did not make any complaint to the Duty Officer.

(b)  Further, he did not raise any complaint against the police in all his court appearances until 5 September 2014.

(i)    According to P’s case as pleaded, the criminal case against him is a complete fabrication.  On the date of his arrest, no drug was found on his person and in his residence.  There is no reason for P not raising the alleged fabrication in all his court appearances before 5 September 2014.

(ii)   Under cross-examination, P said that he first became aware of the prosecution’s allegation (ie the Drug was found in the right front pocket of Trousers A, “the Right Front Pocket Allegation”) during the court hearing on 15 July 2014, when he vaguely heard the prosecution mentioning this (he said he was not paying full attention at the time).  He however did not raise the matter with the duty lawyer representing him on that date, nor did he mention it to the numerous persons who paid him legal visits during the period from 17 July 2014 to 18 August 2014.  He said that he had taken the advice from other inmates in LCKRC and decided to keep quiet and waited for the documents in the committal bundles.  In my view, this explanation is unconvincing. 

(iii)  As said in the above, from P’s perspective, with or without the Right Front Pocket Allegation, the case against him is a complete fabrication.  No drug was found on his person and in his residence on 15 May 2014.  The police have framed him up.   P should raise his complaint against the police as soon as practicable.  After being arrested on 15 May 2014, P appeared in the court on 17 May 2014, 11 July 2014, 15 July 2014.  P did not make any complaint concerning the alleged fabrication in all these hearings.

(iv)  The committal bundles were served on him on 20 August 2014.  However, P also did not make any complaint concerning the alleged fabrication on 22 August 2014.  At [10] of his witness statement, P said that he wanted to raise the alleged fabrication in the hearing on 22 August 2014, but the court did not allow him to say anything for he was not represented by a lawyer in the hearing.  Later, at [10] of his supplemental witness statement, he said that in that hearing the court only allowed him to say whether he had any bail application.  All these are not true.  As shown in the transcripts, in the hearing on 22 August 2014, the court asked P whether he would proceed with the bail application, and did not stop P from raising any other matter with the court. In fact, after dealing with the bail matter, the court asked P about some CCTV recordings, and P said that he wanted to have the CCTV recordings as evidence. Thereafter, the court specifically asked P whether there was any other matter, and P said that there was nothing further.

(c)   In my view, there is no satisfactory explanation as to why P did not make any complaint concerning the alleged fabrication at any time before 5 September 2014.  The veracity of P’s case, including the truthfulness of the alleged fabrication, is in doubt.

(d)  In his witness statements[9], P repeatedly said that cash of HK$14,910 was found in the shoulder bag (斜揹袋) that he was carrying at the time of his interception and arrest outside Flat 21A.  This is consistent with D’s case[10]. However, while P was giving evidence under cross-examination, P changed his evidence and said that he only had about HK$3,000 to HK$4,000 on his person at the time of his arrest, and the remaining of the sum of HK$14,910 was not found in his shoulder bag but was found inside Room D.

(e)  In my view, as to the amount of cash found inside his shoulder bag at the time of his arrest, what has been said by P under cross-examination is untrue.  P’s witness statement and supplemental witness statement were prepared by P’s solicitors when P was legally represented in these proceedings.  These 2 witness statements are in Chinese.  P has put his signatures thereon to verify the truthfulness and the correctness of the matters mentioned therein.  P has also confirmed the truth of the contents of these witness statements under oath in his evidence in chief.  The sudden change of his evidence in the cross-examination is inexplicable.  The only explanation is that P was trying to change his evidence and was not telling the truth under cross-examination.

(f)  ;As to when he bought Trousers A, in [6] of his affirmation dated on 22 February 2018, P said that Trousers A were bought by him a few years before his arrest, and the trousers had been worn for several years.  However, in [2] of his supplemental witness statement dated 14 June 2018, he changed the time of purchase to one year odd before his arrest.  Under cross-examination, he was unable to explain the discrepancy between his affirmation and his supplemental witness statement.  P claimed that the version in the supplemental witness statement should be the correct version.  He said that his lawyers had made a mistake in drafting the affirmation, and he did not treat the affirmation as a serious document.  In my view, P has tried to change his evidence in his supplemental witness statement to make his case more credible.  In his supplemental witness statement, P was claiming that Trousers A were of poor quality, and all the pockets were torn after the trousers being worn for one or two times[11].  P said so in his supplemental witness statement for it would not be probable for P to keep and to wear a pair of trousers of poor quality for several years.

(g)  P claimed that before being arrested on 15 May 2014, he was running a business of computer maintenance and upgrading.  He had many customers (at one time he had 45 to 50 customers), and he had an income of about HK$20,000 each month. However, save and except some bank statements showing that cash was deposited into P’s bank account from time to time, there was no other documents in support of his alleged business.  In my view, if there is any truth in his claim, there must be some business records, for example, the documents recording the orders placed by the customers, the documents recording the progress of each job, the documents recording the amounts due from and the amounts paid by the customers.  The alleged business is a business involving many customers.  It is inherently improbable that he could run the alleged business without all these records.  I refuse to accept that he was running the alleged business before the incident on 15 May 2014.

28.P has made 2 significant admissions against his interest in his evidence:

(1)  The New Trousers Episode

Under cross-examination, P mentioned the following out of his own motion.  He said that on 15 May 2014, after being arrested by the police outside Flat 21A, the police took him into Room D.  Inside Room D, a police officer[12] suggested to him that he should have a shower and get changed.  P did so.  After having a shower and after changing his clothing (including his trousers), the police officers took him to the police station.  The pair of trousers worn by him when he left Flat 21A was not Trousers A but was another pair of trousers (“Trousers B”).

(2)  Despite his denials in the pleading[13] and in his witness statement[14], P admitted under cross-examination that the green bottle and the plastic bags found by the police in Room D were his, and that the green bottle was used for consuming “ICE”.

29.Since P’s evidence is untruthful on various material aspects, save and except the aforesaid admissions made by P which are against his interest, I refuse to accept P’s evidence.  As to the admissions made by P, I attach full weight to these admissions.  Being arrested by the police for the offence of trafficking in a dangerous drug certainly would not be a daily encounter and must be a material event in one’s life.  In my view, there is no plausible reason suggesting that the admissions made by P were mistakenly made.

Chan

30.Chan is DPC 8503.  He was the officer who intercepted P and searched his body outside Flat 21A.  He said that he found the Drug inside the right front pocket of the trousers worn by P.  He arrested and cautioned P.  He made a post record of all these in his police notebook, but P refused to sign on the police notebook to confirm the record.  Chan was not a member of the team to which the other officers involved in the incident on 15 May 2014 belonged, but was assigned to help the other officers that day because of his criminal investigation experience.

31.Under cross-examination, Chan insisted that when he intercepted and searched P outside Flat 21A, P was wearing a pair of trousers with pockets.  Chan said that before the criminal trial, when he seized a pair of trousers in the LCKRC on 17 October 2014, he realized that the pair of trousers seized by him was different from the pair of trousers worn by P at the time of the arrest.  Although the two pairs of trousers were of the same style (sport trousers) and the same colour (blue), the pair of trousers seized by him in LCKRC no longer had any pocket.  All the pockets had been cut away.  The trousers worn by P at the time of the arrest had pockets.  The trousers identified by Chan in the criminal trial were the trousers seized by him in LCKRC.

32.P asked Chan that at the time of the arrest, the pockets at the front of P’s trousers were open on the top or at the side, Chan said he could not remember.  P also put to Chan that inside Room D, a police officer suggested to P that P should take a shower and get changed, and P did so.  Chan disagreed.

33.Having read the transcripts of the criminal trial, Chan’s evidence given in this case as summarized in [31] above is consistent with his evidence given in the criminal trial.  In order to decide whether Chan’s evidence should be accepted, a crucial question is whether there is a reasonable explanation as to why the pair of trousers appeared in the criminal trial was different from the pair of trousers worn by P at the time of the arrest.  In my view, the reasonable explanation is the New Trousers Episode provided and admitted by P in his own evidence.

34.I note that the New Trousers Episode has been put to Chan and Chan disagreed.  However, at the time of the trial in this case, the incident on 15 May 2014 is an event occurred more than 6 years ago.  Over the past 6 years, being a police officer, Chan would have handled many cases.  In the absence of any written record, it would not be possible for Chan to remember every detail of what happened on 15 May 2014.  Notwithstanding Chan’s denial of the New Trousers Episode, I find that the New Trousers Episode did occur.

35.I am of the view that Chan is a straightforward and forthcoming witness.  Subject to what I have said in [34] above, I accept his evidence.

Ng

36.Ng is PC 13455.  He said that he intercepted P outside Flat 21A together with DPC 8503.  Ng witnessed the search of P by DPC 8503, as well as the finding of the Drug in the right front pocket of P’s trousers.

37.Under cross-examination, P did not ask Ng any question and only put 2 matters to Ng, ie (1) the Drug was not found from the right front pocket of P’s trousers, and (2) the New Trousers Episode.  As to these suggestions, Ng disagreed.

38.Ng has recorded the finding of the Drug from the right front pocket of P’s trousers by DPC 8503 in Ng’s statement dated 19 May 2014.  I accept his evidence.  For the reason set out in [34] above, notwithstanding Ng’s denial of the New Trousers Episode, I find that the New Trousers Episodes did occur.

Mok

39.Mok is PC 8554.  He approached P outside Flat 21A with DPC 8503 and PC 13455, and stood guard while the latter officers intercepted and searched P.

40.Under cross-examination, P only asked questions on one matter.  P put to Mok that outside Flat 21A, after DPC 8503 declaring arrest, DPC 8503 immediately handcuffed P.  A police officer then took out some keys from P’s shoulder bag and then used the keys to open the iron gate and the wooden door of Flat 21A. Mok disagreed.  Mok said that it was P who took out the keys from his shoulder bag and used the keys to open the iron gate and the wooden door of Flat 21A.

41.Mok has recorded in his statement dated 16 May 2014 that it was P who took out the keys from the shoulder bag and used the keys to open the iron gate and the wooden door of the Flat 21A on 15 May 2014.  In my view, the identity of the person taking out the keys from the shoulder bag and using the keys to open the iron gate and the wooden door is not a material issue in the criminal trial and in these civil proceedings. There is no reason for Mok to make up a story on this point. I accept Mok’s evidence. 

Chui

42.Chui is Sgt 33645.  He arrived at outside Flat 21A after P was intercepted, searched and arrested by DPC 8503, PC 13455 and PC 8554. Chui executed the search warrant and brought P into Room D for a search. He also countersigned the notebook of DPC 8503 after P refused to sign the post record contained therein.

43.P asked Chui the questions as set out in [40] above.  Chui disagreed with P and said that it was P who took out the keys from his shoulder bag and used the keys to open the iron gate and the wooden door of Flat 21A. Chui’s evidence is in line with what he has said in his statement dated 24 July 2014.   I am of the view that the identity of the person taking out the keys from the shoulder bag and using the keys to open the iron gate and the wooden door is not a material issue in either the criminal trial or these civil proceedings.  There is no reason for Chui not to tell the truth on this point.  I accept Chui’s evidence.

Wong

44.Wong is the Principal Officer of the Correctional Services Department (“CSD”).  He mentioned the practices of handling private clothing items of Person in Custody (“PIC”) adopted by CSD. Wong said the following in his evidence:

(1)  At all material times, after PICs’ breakfast time, CSD officer(s) would gather PICs (around 20 to 30 persons in each lot) in LCKRC who are due for court appearance and place them inside a common room of a size around 5 meters x 4 meters (the “Common Changing Room”).  Their private clothing would be handed to them by CSD officer(s) and they would all change inside the Common Changing Room in the presence of one to two CSD officer(s).  Whilst the CSD officer or officer(s) are tasked with maintaining order and monitoring the PICs (which include the detection of irregularities), CSD officer(s) are not specifically tasked to prevent swapping of PIC’s private clothing in the Common Changing Room and the procedure adopted is not foolproof to avoid all possible irregularities.

(2)  Upon return from the court, the PICs would be searched.  They would then undress individually in the presence of one or two CSD officer(s) in a searching booth.  After getting changed, their private clothing would be checked against the computer-generated list prepared at the time of their admission into LCKRC (“the Inmate Clothing List”).  The Inmate Clothing List sets out the brief descriptions of the private clothing including the nature of the attires and their colour.

(3)  PICs serving custodial sentence in LCKRC would have access to the place where private clothing are kept and would take them out to the laundry room while PICs assigned to work in the laundry room would be responsible for washing clothes including private clothing of PICs.  The laundry room is equipped with sewing tools/machine for minor necessary repairs of PICs’ prison/private clothing.  PICs working in the laundry room might mend such clothing with these items inside the laundry room upon request with prior approval of CSD senior officers.  It is worth mentioning that all these procedures are under round-the-clock supervision of CSD officer(s). 

45.Wong’s evidence is not challenged by P.  I accept Wong’s evidence.

LIABILITY

46.Based upon the evidence accepted by this court, I find that the New Trousers Episode mentioned and admitted by P did occur. The pair of trousers worn by him when he was taken to the police station on 15 May 2014 is not the pair of trousers worn by him when he was intercepted and searched by the police outside Flat 21A on that date.  I also find that Trousers A had pockets.  On 15 May 2014, when P was intercepted and searched by the police outside Flat 21A, the police did find 3 packets of substance (suspected to be a dangerous drug at that time) from the right front pocket of Trousers A worn by P.  I further find that the pair of trousers produced as an exhibit in the criminal trial is Trousers B.

47.I am aware of the fact that the New Trousers Episode was only revealed by P while he was giving evidence in the trial of this case, and no one would know that episode before that.  At the time of deciding to lay a charge of trafficking in a dangerous drug against P, the prosecution did not know the New Trousers Episode.  I have considered in these circumstances, whether it would be possible to hold that D is liable to P for malicious prosecution.

48.I am not aware of any authority directly on the point.  In Clerk & Lindsell on Torts (22^nd Edition), the learned authors said at §16-53:

“It has been said that if, in an action of malicious prosecution, it be found as a fact that the claimant was guilty of the offence charged, the absence of reasonable and probable cause is thereby negated even though the defendant did not believe him guilty. On the other hand, where the jury found in effect that the claimant had been guilty of obtaining money by false pretences, but that the defendant at the time when he prosecuted did not believe that the claimant had intended to defraud, the judge directed a verdict for the claimant. Although this seems more in accordance with the principle that reasonable and probable cause depends, not on the actual facts, but upon the facts of which the prosecutor had knowledge or believed on reasonable grounds to exist, it is obvious that a claimant whom the jury considers really guilty, even if he is entitled to a bare verdict, cannot well be entitled to more.”

49.In this case, I am of the view that P’s claim based upon malicious prosecution cannot succeed in any event by reason of the New Trousers Episode.  The root of P’s claim is the alleged fabrication.  In the light of the New Trousers Episode, I have ruled that the alleged fabrication is untrue.  In the circumstances, it would not be fair and just to hold D liable to the malicious prosecution claimed by P.

50.Even putting aside the New Trousers Episode, I am of the view that the decision to prosecute P for trafficking in a dangerous drug cannot be said as having no reasonable and probable cause and cannot be said as a decision with malice.  There has been clear evidence from the police officers that the 3 packets of substance were found inside the right front pockets of P’s trousers when P was intercepted and searched by the police.  When P was brought to the police station on 15 May 2014, the pair of trousers worn by P was not immediately seized by the police.  The pair of trousers was only seized as an exhibit by the police inside LCKRC on 17 October 2014.  All the pockets of the pair of trousers seized by the police had been cut off and the openings were all sewn up.  The prosecution was of the view that the police’s evidence was true, and the trousers had been somehow tempered while P was detained inside LCKRC. Obviously, the prosecution took the view that the correctness of this prosecution theory should be a matter to be determined by the criminal court.

51.In my view, while the evidence gathered by the prosecution before the criminal trial may not be sufficient to secure a criminal conviction, it cannot be said that the evidence does not show a prima facie case against P.  The fact that all the pockets of the trousers seized by the police in LCKRC on 17 October 2014 had been cut off and all the openings had been sewn up is something requiring an explanation.  That there is a prima facie case against P in the criminal trial is supported by the fact that the counsel representing P in the criminal trial did not apply for no case to answer after the close of the prosecution case.  In the light of all these, it cannot be said that the prosecution did not have an honest belief that there was a proper case to lay before the criminal court.  It also cannot be said that the dominant purpose of the prosecution was a purpose other than the proper invocation of the criminal law.  I do not regard the decision to prosecute P for trafficking in a dangerous drug is a decision without reasonable and probable cause and with malice.

52.In my judgment, on any view, P must fail on liability.

QUANTUM

53.For the sake of completeness, I would set out my opinion on quantum in the paragraphs below.

54.P claims the following:

(1)  General and Aggravated Damages: HK$1,000,000

(2)  Exemplary Damages: HK$1,000,000

(3)  Loss of Earnings: HK$1,301,500.80

(4)  Special Damages: HK$150,000

General and Aggravated Damages

55.The leading case on assessment of damages for malicious prosecution and false imprisonment is Thompson v Commissioner of Police of the Metropolis,in which Lord Woolf said[15]:

“While there is no formula which is appropriate for all cases and the precise form of a summing up is very much a matter within the discretion of the trial judge, it is suggested that in many cases it will be convenient to include in a summing up on the issue of damages additional directions on the following lines. …

(1) It should be explained to the jury that if they find in the plaintiff’s favour the only remedy which they have power to grant is an award of damages. Save in exceptional situations such damages are only awarded as compensation and are intended to compensate the plaintiff for any injury or damage which he has suffered. They are not intended to punish the defendant.

(2) As the law stands at present compensatory damages are of two types. (a) Ordinary damages which we would suggest should be described as basic; and (b) aggravated damages. Aggravated damages can only be awarded where they are claimed by the plaintiff and where there are aggravating features about the defendant’s conduct which justify the award of aggravated damages. (We would add that in the rare case where special damages are claimed in respect of some specific pecuniary loss this claim should be explained separately.)

(3) The jury should be told that the basic damages will depend on the circumstances and the degree of harm suffered by the plaintiff. …

…

(8) If the case is one in which aggravated damages are claimed and could be appropriately awarded, the nature of aggravated damages should be explained to the jury. Such damages can be awarded where there are aggravating features about the case which would result in the plaintiff not receiving sufficient compensation for the injury suffered if the award were restricted to a basic award. Aggravating features can include humiliating circumstances at the time of arrest or any conduct of those responsible for the arrest or the prosecution which shows that they had behaved in a high handed, insulting, malicious or oppressive manner either in relation to the arrest or imprisonment or in conducting the prosecution. Aggravating features can also include the way the litigation and trial are conducted. …

(9) The jury should then be told that if they consider the case is one for award of damages other than basic damages then they should usually make a separate award for each category. (This is contrary to the present practice but in our view will result in greater transparency as to the make up of the award.)

…

(10) … In the ordinary way, however, we would not expect the aggravated damages to be as much as twice the basic damages except perhaps where, on the particular facts, the basic damages are modest.

(11) It should be strongly emphasised to the jury that the total figure for basic and aggravated damages should not exceed what they consider is fair compensation for the injury which the plaintiff has suffered. It should also be explained that if aggravated damages are awarded such damages, though compensatory are not intended as a punishment, will in fact contain a penal element as far as the defendant is concerned.

…” (Emphasis added)

56.In McGregor on Damages (20^th Edition), the learned authors said at §44-013:

“Torts involving malicious abuse of process fall into that general category where the manner in which the tort is committed may lead to aggravation or mitigation of the damage, and hence of the damages. In the past the few cases have not gone into this but reliance could be placed on analogies from such torts as false imprisonment and defamation. Now we have Thompson v Commissioner of Police of the Metropolis, where the guidance that should be given to the jury was set out in great detail by the Court of Appeal. On the side of aggravation of the damage Lord Woolf MR, delivering the judgment of the court, said that aggravating features can include humiliating circumstances at the time or any conduct of those responsible for the prosecution which shows that they had behaved in a high-handed, insulting, malicious or oppressive manner in conducting the prosecution; they include also the way the litigation and trial are conducted. On the side of mitigation of the damage, evidence of the claimant’s bad character should be admissible. Advice of counsel that the now defendant should have proceeded with his prosecution would also go in mitigation, but it will generally go further than this and bar the claimant’s action entirely by furnishing the now defendant with reasonable and probable cause for prosecuting.” (Emphasis added)

57.Accordingly, apart from general damages, whether aggravated damages should be awarded would depend on the one hand on whether there are aggravating features which would result in the claimant not receiving sufficient compensation for the injury suffered if the award is restricted to a basic award, and on the other hand on whether there are mitigating factors such as the claimant’s bad character.

58.In assessing the award for malicious prosecution, the awards for false imprisonment can be considered as there are common compensatory elements in these two kinds of torts, namely loss of liberty, damage to reputation, humiliation, shock, injury to feelings and so on which can result from the loss of liberty[16].

59.In this case, if liability is established, I would award general as well as aggravated damages to P.  In considering the amount of general damages, the fact that P has been detained for more than 1 year and 3 months (from 15 May 2014 to 26 August 2015) has to be taken into account.  Further, if D is liable to P for malicious prosecution, that would mean that the alleged fabrication is proved.  In that event, P would have suffered humiliation and shock as a result of the alleged fabrication. His feelings would have been injured.  According to him, his girlfriend also broke up with him because of the criminal case.  To take into account all these, I am of the view that aggravated damages should be awarded.  However, in assessing the quantum of the aggravated damages, I would take P’s criminal record into account.  The criminal record is evidence showing that P cannot be said as a man having an unblemished character, and this would be a mitigating factor in assessing the quantum of damages.  

60.With all these in mind, having considered the relevant authorities[17], I would say that the appropriate award for general and aggravated damages should be HK$250,000.

Exemplary Damages

61.The purpose of exemplary damages is not to compensate but to punish.  Exemplary damages are additional to an award which is intended to compensate a claimant fully for the loss he has suffered, both pecuniary and non-pecuniary.  They are a remedy of last resort and would only be awarded if and only if the compensatory award is inadequate to punish the respondent for his outrageous conduct.  Awards of exemplary damages are governed by a principle of moderation and restraint.  In contrast with the particularly large awards of exemplary or punitive damages encountered in some common law jurisdictions, it has not been the policy of courts in Hong Kong to make such awards of exemplary damages[18]. 

62.In my view, if the alleged fabrication is proved, no doubt that would be a serious misconduct on the part of the police. If D is liable for this, I am of the view that there should be an award of exemplary damages showing the court’s disapproval of such misconduct.  However, the court should act with restraint and the award should be moderate.  Having considered the principles set out by the Court of Appeal in Allan v Ng & Co (a firm) and the cases summarized in the appendix to that judgment, if liability is established in this case, I would make an award of exemplary damages of HK$50,000.

Loss of earnings

63.P claims that he has suffused a loss of more than HK$1.3 million under this head by reason of the following:

(1)  He was working as a computer maintenance technician before the incident on 15 May 2014, earning about HK$18,000 each month.  He could not work and had no income from 15 May 2014 to 25 August 2015, during which he was in custody.

(2)  After his acquittal and release on 25 August 2015, he would need 3 months to find a job.

(3)  As a result of the detention for more than 1 year and 3 months, he had lost his business network and could not be a computer maintenance technician again.  P only had a low level of education and did not have any other skill, and hence he would only be able to find an alternative occupation with a lower monthly income of HK$7,176.

(4)  As a result of all these, the loss suffered by him under this head until the trial in this case would be more than HK$1.3 million.

64.In my judgment, there is no convincing documentary evidence proving that P was working as a computer maintenance technician earning about HK$18,000 per month before the incident on 15 May 2014.  Since P has not adduced satisfactory evidence to prove this point, his claim under this head must fail.

65.Further, if P was really working as a computer maintenance technician before 15 May 2014, there is no reason why he could not do the same job again after his release on 25 August 2015.  He might need some time to rebuild the business network, but there would not be anything preventing him to be a computer maintenance technician again.  In my view, in any event, P’s claim under this head has been exaggerated.

66.I would not award any sum to P under this head.

Special Damages

67.P claims 2 items under this head:

(1)  Food fees of HK$100,000 incurred by him during the detention period 

(2)  Loss of his personal belongings

68.As to the food fees, P claims that he ordered private meals while he was in custody and as a result he has incurred expenses.  P has produced some receipts in support of this claim.  The total of these receipts is HK$62,508.

69.While P was giving evidence, P admitted that the daily amount spent by him on food before his arrest was in fact more than the daily amount spent by him on food while he was in custody.  That being the case, it cannot be said that P would not incur the food fees now claimed by him but for the detention.  In any event, P would need to spend on food every day. Had the detention never occurred, the food fees incurred by P from 15 May 2014 to 25 August 2015 in fact would have had been more.  There is no causation between the detention and the food fees now claimed by P.  The food fees claimed by P cannot be allowed in any event.  As to the hardship suffered by P as a result of the detention, that has been compensated by the general and aggravated damages set out in the above.

70.As to the loss of personal belongings, as revealed under cross-examination of P, P’s personal belongings actually were not lost.  Under cross-examination, P said that after being released, he discovered that one Ms Kam (who was the tenant signing the lease of Room D with the landlord) had given his personal belongings inside Room D to others.  His television set had been given to his friend called “Yiu Yiu”, and his two laptop computers had been given to Yiu Yiu’s daughters.  P did not see fit to ask Yiu Yiu to return these electrical appliances.  His headphone had been given to his former girlfriend.

71.In my view, all these items cannot be described as items lost.  No compensation ought to be paid to P for P’s acts of generosity towards others (in not asking his friends to give him back his properties).  I would make no award under this head.

Total

72.For the reasons above, if liability is established, I would award general and aggravated damages in the sum of HK$250,000, and exemplary damages of HK$50,000.  No further sum would be awarded to P.  There would be interest on the awarded sums at 2% pa from the date of the writ until the date of this judgment.

73.However, since I have ruled against P on liability, P’s claim must be dismissed.

DISPOSITION

74.In my judgment, P has failed to establish the malicious prosecution pleaded against D.  I dismiss P’s claim.

75.Costs should follow the event.  There be a costs order nisi that costs of these proceedings (including all costs reserved, if any) be paid by P to D, to be taxed if not agreed.  As P was on Legal Aid for a period of time in these proceedings, there be an order that P’s own costs be taxed in accordance with the Legal Aid Regulations.

76.I thank the parties for the assistance provided to the court.

The plaintiff appeared in person

Mr Simon K C Lam, instructed by the Department of Justice, for the defendant