Attorney General and Others v. Ho Shek-kwan

CACV000055/1979

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Coram: Huggins, J.A., Yang and Zimmern, JJ.

Date of Judgment: 4 February 1980

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JUDGMENT

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Huggins, J .A.:

1. An important issue arose in this case as to the legality of an arrest without a warrant. The 2nd, 3rd and 4th Defendants are officers in the Independent Commission Against Corruption. They received information from a taxi driver that the Respondent, a police constable, had solicited and accepted a bribe as an incentive not to proceed with a prosecution for some minor offences. They questioned the taxi driver very closely and, as a result of the answers he gave, believed that the Respondent had committed the offence. Thereupon they decided to arrest him and subsequently did so. The Respondent sued for damages for wrongful arrest, assault and false imprisonment.

2. It was not in dispute that the offence reported to the Independent Commission Against Corruption was an arrestable offence: what was alleged was that the officers could not reasonably suspect that the Respondent was guilty of it, because they did not make proper enquiries before making the arrest. It was contended before the learned trial judge that it was not enough merely to question the taxi driver: enquiry should also have been made (a) of one or more other police officers who had been connected with the complaints of offences committed by the taxi driver and (b) of the Respondent himself. The trial judge correctly held that he had to take an objective view and then went on:

"I do not find the suspicion as strong against the constable as the three officers found it. Bearing in mind the criticisms that have been made of the plausibility of the story, it seems to me that any officer on that story should have been minded to tread warily. He should have made as many enquiries as he possibly could. In the present circumstances I would not have expected him to enquire from the other officers of the station, but I would have expected him to enquire from the constable himself. My view is particularly influenced by the failure to make first enquiries as to what the constable had to say or what matters he might be able to produce by way of evidence."

On behalf of the Appellants it is submitted that in the circumstances of this case it was a misdirection to say that enquiry ought to have been made of the Respondent. The judge's view appears to have been based in large measure upon Dumbell v Roberts 1944 1 All E.R. 326 and it is important to understand what was the true ratio decidendi of that case. The plaintiff had been stopped by the police and questioned concerning a bag which he was carrying and which contained 14 lbs. of soap flakes. Soap flakes were rationed and the officers, not being satisfied with his explanation as to how he came to be in possession of so large a quantity of soap flakes, arrested him for unlawful possession contrary to s.507(1) of the Liverpool Corporation Act 1921. They did not seek to ascertain from the plaintiff his name and residence. The power conferred by s.513 of the Act to arrest without a warrant for this offence depended upon the constable's not knowing, and having been unable to ascertain, the suspect's name and residence. In an action for damages for false imprisonment the trial judge disregarded the requirements of s.513 and held that there was reasonable ground for suspicion of felony such as would justify the arrest at Common Law. On appeal it was held that the police had from first to last purported to act only under their statutory powers and that, the conditions under s.513 not being fulfilled, the arrest was unlawful. Further it was held that even if they had purported to arrest the plaintiff in the exercise of their Common Law powers and had pleaded justification, there was no reasonable ground for suspicion of felony. It was in this context that Scott, L.J. said at p.329A:

"The police are not called on before acting to have anything like a prima facie case for conviction; but the duty of making such inquiry as the circumstances of the case ought to indicate to a sensible man is, without difficulty, presently practicable, does rest on them; for to shut your eyes to the obvious is not to act reasonably. In the present case not only did the police fail to carry out sect. 513(1), but, in my opinion, they failed to make such inquiry from either the plaintiff himself or those at the garage as would entitle them to think they had reasonable grounds for suspicion either under sect. 507 or at common law."

In other words Scott, L.J. was of opinion that the mere carrying of 14 lbs. of rationed goods was not reasonable ground for suspicion of felony. That was a view on the facts of the case. Goddard, L.J. did not express any opinion on this aspect of the argument and the court laid down no general principle which could assist us here. In particular the case is no authority for the proposition that in a case such as that before us there can be no lawful arrest unless the suspect is first asked for his explanation.

3. The second case upon which Mr. Eddis has relied is Shaaban v Chong Fook-kam 1970 A.C. 942, but, with respect, that seems to me to be of no greater assistance to him, for the Judicial Committee of the Privy Council held that on the facts reported to the police there was there, also, no reasonable ground for suspicion that the plaintiff had been guilty of an offence for which he could be arrested: all they had been told was that a piece of timber had fallen off a trailer which was being towed behind a lorry driven by the plaintiff and that the timber had smashed through the windscreen of his car, killing one passenger and injuring another. This could have happened without the plaintiff's being criminally responsible. Of course, interrogation of the plaintiff before his arrest might have established reasonable suspicion of criminal responsibility but that does not mean that, if the police had had evidence which they thought credible and which suggested that the plaintiff had been driving recklessly, he could not lawfully have been arrested until he had been given an opportunity to tell his story.

4. In the present case the judge was satisfied that the officers honestly believed what the taxi driver told them, but he nevertheless found them to have acted unreasonably. Whether there was reasonable cause for suspicion was a question of law to be decided upon the facts found: McArdle v Egan (1934) 150 L.T. 412. As I understand him, the judge thought that it was not reasonable for the police to believe the report of the taxi driver, because, in the absence of other evidence, it would be "very much a case of one man's word against another". No authority has been cited to us for the proposition that it can never be reasonable to arrest a person without a warrant where the only information against him is that of a single witness. It is true that it has been held that a constable is not justified in apprehending a person without a warrant on suspicion of having received stolen goods where the only evidence he has against such person is a statement from the thief (see Isaacs v Brand (1817) 2 Stark. 167), but this decision of Lord Ellenborough was based upon the fact that the thief was an accomplice. Under s.22 of the Prevention of Bribery Ordinance a person giving a bribe is not on that account to be regarded as an accomplice. Here the officers of the Independent Commission Against Corruption were at pains to satisfy themselves that the taxi driver was a credible witness. His story was not implausible and they seem to me to have trod sufficiently warily. It is said that the questions he was asked and the answers he gave did not tend to dispel the possibility that he was motivated by malice, but an experienced interrogator does not need to put questions directly as to motive to ascertain whether a report is true or false.

5. There has been some discussion whether the reasonable suspicion which would justify an arrest under s.10(1) of the Independent Commission Against Corruption Ordinance and the reasonable suspicion which would justify a search under s.10C(1)(a). An argument that there is a distinction between them has been based upon the more serious consequences of an arrest, but in my view that is to confuse the reasonableness of the arrest and the reasonableness of the suspicion which provides the basis for a lawful arrest. It really needs no authority to establish that the existence of a legal right to make an arrest does not in every case give moral justification for an arrest: there is always a residual discretion whether to exercise the legal right. However, the point was made very clear in Attorney General v Chow Sau-sing 1966 H.K.L.R. 220 at p.226.

6. Emphasis has been placed upon the judge's finding that "the sole object of the arrest was to see what [the Respondent's] words were. The officers wanted to get him, as they called it, into an interview situation". In the absence of malice (which was expressly negatived by the learned judge) I do not see that the object of the arrest could have any bearing upon its legality, although it would be very relevant to the proper exercise of the discretion to use an established right to make an arrest. However, one must distinguish clearly between the object of the arrest and the reason (or ground) for the arrest. In Reg. v Houghton 1978 The Times, June 23 no reason was given for the arrest: the officer merely said: "You are being detained". In evidence he said the reason for the arrest was to enable the police to make further enquiries. That was not a sufficient reason. It does not follow that, if Houghton had been arrested for a sufficient reason (namely reasonable suspicion of the commission of an arrestable offence), further enquiries might not have been a proper object of the arrest. I will assume that the learned trial judge in our case was justified in finding that the sole object of the arrest was to enable the police to make further enquiries. There was not necessarily anything wrong in that. A person may be arrested upon reasonable suspicion even though the evidence is not such as to raise a prima facie case, so that further enquiries will often be required.

7. With all respect to the learned judge I think the officers of the Independent Commission Against Corruption had reasonable cause for their suspicion that the Respondent was guilty of an offence and that the arrest was lawful.

Yang, J.:

8. I agree.

Zimmern, J.:

9. I agree.

4th February 1980.