Chan Hoi v. The Commissioner of Police and Another

CACV000052/1967

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO.52 OF 1967

(On appeal from O.J. Action No.643 of 1966)

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Coram: Mills-Owens & Huggins JJ.

Date of Judgment: 26 March 1968

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JUDGMENT

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1. The appellant was arrested by a police officer who took from him certain electrical goods claimed to be of the value of $11,202.26. The appellant sued the respondents (who are the Commissioner of Police and the Attorney General, of the Colony respectively) in detinue and conversion. He was unsuccessful in his action and now appeals against the decision of the learned trial judge.

2. No evidence was adduced at the trial by either party, but certain admissions were made by counsel. It is necessary to examine, in some detail the state of the pleadings and the extent to which proof was dispensed with by reason of such admissions. The statement of claim averred that the Commissioner of Police, on the 20th Oct. 1965, through his servants or agents, seized the goods and that they were then in the physical possession of the appellant; that the Commissioner detained the goods despite demand made; and, further, or in the alternative, that he converted them to the use of a third party. The respondents admitted the seizure by the Commissioner through his servants or agents. Paragraph 3 of the defence was as follows -

"3.          If, as is denied, the said goods were in the physical possession of the Plaintiff as pleaded in paragraph 3 of the Statement of Claim, then such physical possession was lawfully terminated and taken out of the Plaintiff by force of law by the First Defendant through his servants and/or agents upon such seizure being made in pursuance of section 45(6) Police Force Ordinance (Cap.232)."

However, the ease was conducted throughout on the basis that the goods were taken out of the physical possession of the appellant.

Paragraphs 4 and 5 of the Defence were as follows -

3. Section 45(6) of the Police Force Ordinance (Cap.232) has since been re-enacted. At the relevant time it was as follows -

"          (6) Where any person is apprehended by a police officer it shall be lawful for such officer to search for and take possession of any newspaper book or other document or any portion or extract therefrom and any other article or chattel which may be found on his person or in or about the place at which he has been apprehended and which the said officer may reasonably suspect of throwing light on the character or activities of such person or his associate: Provided that nothing in this subsection shall be construed in diminution of the powers of search conferred by any particular warrant."

4. Section 48 of the Magistrates Ordinance (Cap.227) - also now re-enacted - took the following form at the relevant time -

"          48. (1) Where any property has come into the possession of the police in connexion with any criminal offence whether committed in the Colony or not, a magistrate may -

5. At the trial, counsel for the appellant said that he was prepared to concede that the appellant had been arrested by a police officer and that the goods had been taken out of his physical possession then or shortly thereafter by the police. With regard to the alleged criminal conviction the learned trial judge held that this was not proved in the proceedings before him; no point is taken by the respondents on the appeal before us that the judge was in error in this respect, and we must therefore assume that there was no offence proved against the appellant in connection with his possession of the goods. It was conceded on behalf of the respondents that he made no admission of unlawful possession or of any offence in respect of the goods.

6. The judgment in the court below contains the following passage -

"The Crown maintains, and counsel for the plaintiff concedes, that the taking into possession by the police of the equipment now in dispute was effected under what was at that time sec.45(6) of the Police Force Ordinance (Cap.232), which sub-section is now repeated verbatim as sec.50(6) of the same Ordinance."

This passage has led to some confusion on the appeal. Counsel for the appellant, who represented him in the court below also, says that he did not intend to concede that the seizure was made in exercise of the statutory powers conferred by the sub-section, but to concede no more than that the seizure was made by a police officer at or about the time of his arrest. Crown Counsel, who also appeared in the court below, says that his understanding was the same as that of the learned judge. With the consent of both counsel we have referred to the following extracts from the judge's notes of what counsel for the appellant said -

"If it will help the defence, I will concede plaintiff apprehended by a police officer and the goods taken out of his possession then or shortly thereafter ........"

Later he said -

It is unfortunate that confusion should arise on a point which might have proved crucial to the determination of the case. Counsel for the appellant relies on an implied joinder of issue on paragraph 3 of the defence (see R.S.C. Order 18 r.14), and on the limited nature of his first 'concession' which did not extend to admitting that the goods were seized in the circumstances in which, under the terms of the sub-section, goods may be seized; that is to say he did not admit that the goods were seized 'in or about the place at which (the appellant) has been apprehended', nor that the goods were goods which 'the said officer may reasonably suspect of throwing light on the character or activities of (the appellant) or his associate'. Had the matter rested there, it would, I think, be clear that the facts implicit in paragraph 3 of the defence remained in issue. But when counsel for the appellant went on to found an argument on the terms of the sub-section, without making it clear that he was not departing from the terms of his first admission, then, as I think, a different situation arose. I have considered whether the difficulty should be met by allowing additional evidence to be called; but there are well-known objections to such a course being adopted (see Sanders v. Sanders⁽¹⁾). What must finally weigh against the appellant is that it was not made a ground of appeal that the judge was in error on this aspect of his judgment. In all the circumstances I have come to the conclusion that it must be taken to have been tacitly admitted on behalf of the appellant that the facts underlying the sub-section were not in issue.

7. I turn then to the substance of the appeal, which may perhaps be best introduced by a reference to paragraph 735 of 29 Halsbury, roading as follows -

"735. Dispossession without consent. An act whereby a possessor of goods is deprived of his possession without his consent may be legally justifiable or wrongful according to circumstances. It is rightful or justifiable, for example, when the true owner retakes them from a trespasser, or when the taking is authorised by law, for example, in a case of public necessity or as being for the true owner's benefit, or in case of bankruptcy, execution, or distress. It is wrongful when the taking amounts to a trespass for which there is no justification. Where physical possession unaccompanied by a right to possession is lawfully divested, the former possessor has not the right of recovery which belongs to a person in actual possession."

The last sentence of this passage, which is based on Buckley v. Gross⁽²⁾, virtually sums up the case put forward by the respondents both here and in the court below. The appellant, as the respondents say, was relying on his former physical possession of the goods; he was not claiming to be the owner of the goods. On the other hand the respondents were not claiming that the third party (an electricity company) to whom they delivered the goods was the true owner, and were not therefore, relying on jus tertii. The case for the respondents is that upon the goods being seized by the police officer, under the sub-section, the appellant's possession was lawfully divested; being unable to show title, he became placed in the position of one who is unable to prove a right of possession, a right to immediate possession of the goods accordingly the police were justified in disposing of the goods or, at least, committed no wrong as against the appellant by so doing.

8. It is clear that in order to maintain an action for conversion, the plaintiff must have the right to possession and a right of property in the goods at the time of the conversion (Jarvis v. Williams⁽³⁾). But possession carries with it a right of property to the extent that, as against a wrongdoer, possession is title (Jeffries v. Great Western Railway⁽⁴⁾; Armory v. Delamirie⁽⁵⁾ As Pollock and Wright (Possession in the Common Law) say, at pp.147-8 :-

"Merely physical possession, as such, involves no rights, but it is one of the most general and long-settled rules of law that a person who is in apparent possession has all the rights remedies and immunities of a possessor as against strangers. He cannot be disturbed except by another person who is able to show a present right to the possession. More than this, he has as against a mere stranger and wrongdoer the same remedies as if he had the right to the possession, and he can as against the stranger maintain trover or detinue as well as trespass or theft, and in general the stranger who violates his possession cannot justify the violation by showing that the possession was without title, or even by showing that it was wrongful, unless he further shows not only that a third person was entitled to the possession but that he the stranger acted with the authority of the third person. If however a mere actual possession of a thing acquired wrongfully or existing without right is once lawfully devested, and the thing comes lawfully into the possession of another person, the former possessor cannot recover it from him, for wherever a plaintiff has to rely on right to possession as distinguished from actual possession he must prove his right or the defendant may disprove it.".

In the present case, there is no proof or admission that the appellant's physical possession was acquired wrongfully or without right. Neither is it so asserted by the defence. It must therefore be assumed that, at the time of the seizure, he was lawfully in possession of the goods, not necessarily however as the true owner.

9. The question is whether a seizure under the Police Force Ordinance has any incidence in law on the possession of the person from whom goods are seized. There is a well-known general principle that statutes which encroach upon the rights of the subject, whether as regards person or property, are subject to a 'strict' construction. (A.G. for Canada v. Hallett & Carey Ltd.⁽⁶⁾). The power of seizure, although expressed by the sub-section as a power to take 'possession', is open to be construed as a power to take into custody; a justified (but only justified) form of detention. It is plainly a power for a limited and temporary purpose, and it would be strange if it were intended to affect civil rights, except to the extent that the police officer making the seizure is, so long as he is acting under the sub-section, afforded protection against an action for trespass in respect of the seizure and detention. It is questionable whether a statutory power of such a nature, resting as it does on the mere suspicion of an individual police officer, can operate to defeat the legal rights of the possessor. The act of seizure under the sub-section is an administrative, not a judicial act; there is no right or duty in the police officer, or his superiors, to determine, in the sense of decide, civil rights; sec.48(1) (a) of the Magistrates Ordinance provides a process for that purpose. Either, it may then be said, the person from whom goods are seized under the sub-section retains legal possession throughout, temporarily losing mere physical control, or his possession is suspended until the purpose of the seizure ends. The act of disposal to a third party would itself demonstrate that the purpose of the seizure was satisfied. If, either, the possessor never loses legal possession, or such possession revests in him once the purpose of the seizure is satisfied, an act of disposal would, as respects him, be a conversion.

10. Counsel for the appellant puts his case alternatively in the terms that the individual police officer becomes a statutory bailee upon making a seizure under the sub-section. If indeed, such a seizure does give rise to a form of bailment, then certain consequences would follow, in my view. Upon the completion of the purpose of the seizure the officer became a bailee at the will of the possessor (see Manders v. Williams⁽⁷⁾). The act of disposal would serve to demonstrate that the purpose of the seizure was at an end consequently the appellant would have had a right to immediate possession at the moment of disposal of the goods; having such a right he may claim in conversion. Moreover, if the individual officer became a bailee by virtue of the seizure he is estopped from denying the title of his bailor. His superiors could be in no better position. On the termination or achievement of the purpose for which the sub-section endows him with a power of seizure, the duty of the officer as a bailee is to return the goods to the person from whom he seized them, or to seek a court order, or to interplead if he is faced with conflicting claims. But I doubt that it is a case of statutory bailment. Pollock and Wright, at p.160, say -

"It seems that those persons who are designated by Story 'quasi-bailees for hire,' viz. captors, revenue officers who have made a seizure, prize agents, officers of courts, and salvors, are not bailees for the purposes either of the common or of the statutory criminal law of England unless by virtue of some agreement"

11. Another aspect of the matter is that the statutory power of seizure may be said to be vested in the individual police officer who exercises the power conferred by the sub-section, and it is so argued on behalf of the appellant. It may be said to be inferred from the circumstances of the present case that the disposal of the goods to the electricity company was the act not of the police officer himself but of his superiors. But it may also be said to be inferred that he acted as directed by his superiors, or that they acted on his behalf being clothed with such rights (if any) as he possessed. These considerations are of no real importance having regard to the circumstances in which the case is presented, as it appears to me. By suing the respondents the appellant has identified them with the police officer; that is how I take the position to be, having regard to the terms of the statement of claim.

12. In dealing with the matter of the taking of possession under authority of law, Pollock and Wright at p.144, say -

13. Winfield on Tort (7th Ed. p.383) states the position as follows -

"Where trespasses are justified or excused by the law, as distinct from any permission given by the person injured, a doctrine inherited from the technicalities of the older law is applicable - trespass ab initio. It covers all kinds of trespass, whether to land, to goods or to the person, and it may be thus stated. If one who is entitled by law to do an act abuses his authority to do it, he is said to be a trespasser ab initio; his act is reckoned as unlawful from the very beginning, however innocent his conduct may have been up to the moment of the abuse."

Passages in Holdsworth H.E.L., vii 498-501 Elias v. Pasmore⁽⁸⁾. Canadian Pacific Wine Co. Ltd. v. Tuley⁽⁹⁾; and Harvey v. Pocock⁽¹⁰⁾, bear out that the doctrine applies to the case of abuse of legal authority in relation to goods. It is this aspect of the case which influences me most in coming to the conclusion that the appeal must succeed. The act of disposal of the goods was not justified by law; it was an abuse of the statutory power of seizure and detention conferred by the sub-section. The respondents cannot be heard to say that they were not acting under that statutory power. That is the very basis of their defence. I doubt that they could have justified the seizure at common law and they have not attempted to do so. The appellant is entitled to succeed also, in my opinion, on the ground that the sub-section confers merely a power of seizure and detention. Taking possession in the sub-section means seizing and detaining - taking into custody or control, in my opinion. It does not operate to divest the possessor of his rights as such. Buckley v. Gross⁽²⁾ was a different case in that a judicial act, the order of a magistrate, intervened. Likewise in R. v. Lushington, Ex parte Otto⁽¹¹⁾. No doubt the sub-section is intended to expand the powers vested in the police at common law, whereunder they are entitled to seize, as potential evidence, documents or goods in respect of which an offence has been or is suspected to have been committed (see Dillon v. O'Brien and Davis⁽¹²⁾). The section is obviously intended to confer wider powers, extending the power of seizure, as it does, to documents or goods tending to throw light on the character or activities of the person arrested or his associate (sic). But it is surely not the case that a power intended for such a purpose should prejudicially affect proprietory or possessory rights, in the absence, that is to say, of express enactment or necessary intendment. The duty of the police, as I see it, on the conclusion of the purpose for which a seizure is made, is either to return the goods to the person from whom they were seized or to seek an order of a magistrate under section 48 of the Magistrates Ordinance (Cap.227) - the equivalent of the Police (Property) Act, 1897, or, as I have said, if there are conflicting claims to interplead.

14. But, even if the effect of the sub-section was to transfer possession in law, as opposed to authorising mere lawful custody or power of detention, the appellant was entitled to succeed, in my view. The possession acquired by the police was for a strictly limited purpose and consequently for a limited period. Their act in disposing of the goods to a third party was the clearest evidence that the purpose had been achieved or that possession under the sub-section was no longer required. If they were bailees the bailment ipso facto determined, or at best, became a bailment at the will of the appellant who therefore had a right to immediate possession at the time of their wrongful act of disposal of the goods to a third party, a third party who laid no claim of title to the goods and who does not therefore have a title in right of which the police may, whether with or without his authority, defend the claim made against them. If it is not a case of bailment, but of legal possession passing to the police for a limited period, then equally, in my view, upon the determination of that period the plaintiff had a right to immediate possession by virtue of his former possessory right, good against the whole world except the true owner. At most, as I see it, his former possessory right, implying in itself a proprietory right, was merely suspended pending the continuance of the statutory rights of the police. In the absence of anything in the sub-section denoting an extinction of the plaintiff's rights those rights must be deemed to continue unaffected except to the strictly limited extent that they were affected by the powers conferred on the police by the sub-section. When the police held on to the goods after the object of seizure was achieved or became impossible, or, at least, when they disposed of the goods without authority to a third party, there was an interference with the plaintiff's possessory right and his, presumed, proprietory right and consequently a conversion.

15. For the foregoing reasons I would allow the appeal, with costs here and in the court below. Ordered that judgment in court below. set aside and judgment entered for the appellant in sum claimed, namely, $11,202.26, in conversion.

26th March 1968.

Representation:

Bernacchi Q.C. & Asome (instructed by D'Almade Remedios & Co.) for appellant.

Cooke (Senior Crown Counsel) for both respondents.

(1) (1882) 19 Ch. D. 373.

(2) (1863) 3 B. & S.566

(3) (1955) 1 All E.R. 108

(4) (1856) 5 E. & B. 802

(5) (1722) 1 Stra. 505.

(6) (1952) A.C.427, 450.

(7) (1849) 4 Exch. 339.

(8) (1934) 1 K.B. 164.

(9) (1921) 2 A.C. 417

(10) (1843) 11 M. & W. 740; 12 L.J. Ex. 434.

(11) (1894) 1 Q.B. 420

(12) (1887) 16 Cox C.C. 245

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 52 OF 1967.

(On Appeal from O.J. Action No.643 of 1966)

(On Appeal from O.J. Action No.643 of 1966)

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Coram: Mills-Owens & Huggins, JJ.

Date of Judgment: 26 March 1968

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JUDGMENT

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Huggins, J.:

16. I agree, but in so far as we are differing from the learned judge (to whom we are indebted for a typically careful and lucid judgment) I will endeavour to set out my reasons shortly.

17. In these days the importance of pleadings is often not sufficiently appreciated and I venture to think that the parties were unwise to go to trial in this case upon the pleadings as they stood. The appellant alleged his own "physical possession" at the time of the seizure but not his right to possession at the date of the alleged tort. He then set up a detention by the police after demand made. He did not allege that the detention was wrongful nor was the date of the demand stated. Paragraph 6 of the defence on the other hand expressly denied that the police had unlawfully detained the goods. The respondents denied in both para.2 and para.3 the appellant's physical possession. Paragraph 2 was ordered to be struck out but that order seems not to have been complied with. In any event there was apparently no order that the words "as is denied" in para.3 be struck out, although counsel had indicated that this was the intention. Had both these parts of the defence being struck out it may well be that the general denial in para.7 was a sufficient denial of the appellant's possession but I will assume that the physical possession of the appellant was in fact admitted. The respondents denied converting the goods to the use of a third party and alleged a lawful detention. If the appellant had pleaded a demand subsequent to the disposal of the goods to the third party that might have been a sufficient plea in detinue, but as it is I am of opinion that there was no sufficient plea and I need not consider whether the appellant had a sufficient interest upon which to found in detinue.

18. That leaves the claim in conversion. It appears to have admitted by counsel for the respondents in the court below "that the goods have been handed over to an electricity company not a party to this action". There were two alternative defences raised. The first was that the physical possession of the plaintiff was lawfully terminated on 20th October 1965 by seizure under the statute. There followed an allegation of the conviction of the appellant and of the refusal of the magistrate to make an order for the return of the goods to the appellant, but I have not been able to understand how any of this could have been relevant to the appellant's claim. The second defence was that under the statute the police themselves acquired a possessory title unimpeachable by all except the true owner. In the argument it appears also to have been alleged that the true owner was somebody other than the appellant, but this was not alleged in the pleadings and as I understand it the respondents conceded both that they were unable to prove the title of the third party and that they did not sue under the authority of the third party.

19. Now it is clear that in order to maintain an action for conversion the plaintiff must have the right to the immediate possession of the goods and not merely a property in reversion and that the right to possession must exist at the date of the alleged conversion. In the present case we must consider whether such a right existed either by virtue of its having been retained by the appellant even after the seizure or by virtue of its having revested in him upon disposal of the goods by the police.

20. Counsel for the respondents sought to argue that the effect of a seizure by the police under s.50(6) of the Police Force Ordinance is at once to divest the previous possessor of both his actual physical possession and all right to possession and to vest in the police all that possessory right formerly enjoyed by the previous possessor. As I read the judgment the learned judge did not decide the question whether the police acquired themselves a possessory title but based himself upon the appellant's lack of any sufficient interest, holding that the police became "bailees for the unascertained true owner". He probably approached the matter in this way because the main argument for the appellant before him was that the police were "statutory bailees" for the appellant and that the appellant retained a sufficient interest whereon to found the action.

21. I start with what must be treated in the event as the agreed fact that the appellant was a person in possession who could, at law, be lawfully dispossessed only by one who showed that he was the true owner and who therefore had a better right to possession. The appellant's possession was good against the whole world other than such true owner. The seizure under the statute undoubtedly gave to the police at least the actual physical custody of the goods. This necessarily deprived the appellant of that same actual physical custody and of the right to such physical custody so long as it was required for the purposes contemplated by the sub-section. The appellant concedes that so long as the goods were required for the purpose of "throwing light on the character or activities of (the person apprehended) or his associate" the police were entitled to physical custody but, since custody was an interest less than possession, he says that the seizure was not incompatible with the retention of possession by him. That nothing more than custody was given was borne out by the judgment in the R. v. Justice of County Louth⁽¹⁾ where the court had to construe the words "where any property has come into possession of the police" in s.1(1) of the Policy Property Act 1897. At p.193 Lord Chief Justice Cherry said:

"The wording of that section is very wide, and was intended to deal not with any question as to the property in the goods, but with the actual possession of them. It was intended to relieve the police of the custody of goods which had come into their possession in discharge of their duty, leaving unsettled any question of ownership."

But, says counsel for the respondents, the legislature has not used the word "custody" but "possession" and must be presumed to have meant what it said. Then, since there cannot be a double possession as distinct from a joint possession, the taking of possession by the police necessarily had the result that the appellant lost possession and the right to require that possession be immediately given back to him.

22. If "possession" meant the same thing in every context the argument of counsel for the respondents would be unanswerable, but it does not, and in my view counsel for the appellant are right when they say that s.50(6) must not be construed more widely than is necessary to achieve the manifest intention of the legislature and, in particular, the subject must not be deprived of a vested right unless there is a clear intention so to deprive him. Here it would not be necessary that the possession given to the police should be of the same nature and quality as the possession previously enjoyed by the appellant. There is no need to consider here the precise limits of that possession. Even granted that the legislature intended the police to have more than the "custody" to which Lord Chief Justice Cherry referred I cannot believe that the legislature ever contemplated that the police should have the power to take goods from a person who had a possessory title and to destroy his title without any judicial intervention. That would be the negation of the Rule of Law. In my view therefore the appellant must have retained sufficient right to possession to enable him to sue the police for any wrongful dealing with the goods. By conveying the goods to a third party the police have conclusively demonstrated that they no longer require them for the purpose for which they were seized. By such conveyance they clearly, in my view, dealt with the goods in a manner which was never contemplated by the legislature and which was wrongful. The wrongfulness of the conveyance was appreciated by the learned trial judge and it was, I think, only his opinion that the appellant no longer had a possessory interest which prevented him from giving a remedy In so far as the learned judge based that conclusion upon Buckley v. Gross⁽²⁾ I think with respect that he was in error. He expressed the view that the phrase "taken from him by force of law" in the judgment of Chief Justice Cockburn was equally appropriate to a taking of possession under s.50(6) of the Police Force Ordinance. The statute 2 & 3 Vict. Cap. 71, with which that case was concerned, authorised a magistrate to order delivery of goods to the rightful owner, if he could be found, and if he could not to make such order as to him should seem meet. There it was held that the legislature did intent to divest the previous possessor of all his rights but that was done only by the judicial act of the magistrate. In the present case the police did not, as they might have done, apply for a comparable order under s.48(1) (a) of the Magistrate Ordinance.

23. If it be wrong to say that the appellant retained a right to possession even after the seizure by the police that is not an end of the matter for even if the interest acquired by the police was possession in the fullest sense it was a possession limited in duration. It was given to the police, as we have seen, for a specific purpose and could not lawfully be continued under the section after that purpose had been fulfilled. It seems to me that any dealing with the goods beyond what was required for the carrying out of that purpose must have been wrongful. The way in which the argument was put before us was that the police became statutory bailees of the appellant Attractive as this approach is in some ways I have been a little diffident about adopting what seems to me to be a novel concept, especially as bailment properly so called depends upon a contract express or implied. It is true that the bailor does divest himself of possession and of his entire right to possession. It is of the essence of bailment that possession is transferred to the bailee and that the bailor retains only a right of property. Thus if the bailee is wrongfully dispossessed by a third party the bailee can sue by virtue of his right to possession but the bailor must sue by virtue of his right of property: Manders v. Williams⁽³⁾. Assuming for a moment that the police were bailees it seems to me to be doubtful whether, if a wrongdoer had dispossessed them, the appellant had a sufficient right of property to found an action against the wrongdoer, although the police could found upon their right to possession: the appellant's "right of property" would be based upon a possession which he had surrendered, albeit under compulsion of statute Nevertheless as against the police the appellant would, subject to the necessary pleading, have been entitled to rely on estoppel if the police sought to set up the title of a third party: Ex parte Davies In re Sadler⁽⁴⁾. No such jus tertii was set up. Only so long as the police held the goods lawfully under the authority of s.50(6) would they have in their own right a good defence against the appellant. But all this is rather beside the point because the pleadings do not allege a bailment, they do not allege determination of a bailment nor is there any mention of estoppel.

24. I approach the matter in this way. The police took possession by authority of the statute and then wrongfully parted with possession to a third party. It follows from the passage in Wright on Possession at p.144 which my Lord has cited that, even if the respondents are correct in their contention that the appellant was wholly divested of his possession, when the police, by disposing of the goods to the third party, abused the authority of the statute the appellant became entitled to treat that authority as never having existed. If the authority had never existed the appellant would not have been divested of possession and he would have been able to sue by virtue of his possession There would be no need for him to claim by virtue of some proprietary right as was suggested by counsel for the respondents, who then sought to rely on the judgment of Mr. Justice Crompton in Buckley v. Gross⁽²⁾.

25. For the foregoing reasons I do not agree with the conclusion to which the learned judge found himself driven. In my view the appellant retained sufficient possession throughout to entitle him to sue and even if that be wrong he clearly had sufficient possession at the material time. A fortiori the police themselves never acquired a possessory title and I would allow the appeal.

26th March, 1968.

Representation:

Bernacchi Q.C. & Asome (instructed by D'Almada Remedios & Co.) for appellant Cooke (Senior Crown Counsel) for both respondents.

(1) (1916) 50 Irish Law Times 191

(2) (1863) 3 B. & S.566.

(3) (1849) 4 Exchequer 339.

(4) (1881) 19 Ch. D. 86.