Chan Sze-shing v. Attorney General and Another

CACV000006/1980

Wrongful arrest and false imprisonment - police constable arrested by Independent Commission Against Corruption for offence under s.4 of Prevention of Bribery Ordinance - constable joined squad members of which had recently received a bribe - constable failed to report invitation by another member of squad to falsify his notebook - mere possibility of guilt not the same thing as a reasonable suspicion of guilt - arrest not justified.

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Coram: Huggins and Leonard, JJ. A. and Addison, J.

Date of Judgment: 19 August 1980

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JUDGMENT

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Huggins, J. A. :

1. The issue on this appeal is whether the 2nd respondent Defendant had reasonable cause to arrest the appellant Plaintiff. The Plaintiff was and is a police constable in the Royal Hong Kong Police Force and the 2nd Defendant an officer of the Independent Commission Against Corruption. The arrest took place on 14th October 1977 for an offence contrary to s.4 of the Prevention of Bribery Ordinance alleged to have been committed on a date in May 1977. The 2nd Defendant was then acting upon the instructions of his senior officers and had no warrant from a magistrate.

2. The Independent Commission Against Corruption first became aware of the possibility that an offence had been committed when Mr. Tso Wai-yan received on 7th June 1977 a report from a sergeant of the Criminal Investigation Department who was referred to throughout the trial as "Sergeant X". The following day Sergeant X made a long statement in writing. It appeared that Sergeant X had been involved in the investigation of a wounding case and had eventually received information from one Tang that four named persons had been party to the offence. One of these had been arrested, charged and convicted upon his own plea, but the other three could not be found. One of those others was named Ma Sui-ming. A Detective Sergeant Chan Kwok-shing had then come to see Sergeant X. He told him that Ma Sui-ming was his friend and asked him to give Ma a chance. Sergeant Chan suggested that they meet over dinner to discuss the matter, but nothing was arranged. When Tang was later questioned concerning the whereabouts of Ma Sui-ming, he (Tang) was said to have asked "In a very astonishing manner, 'Was it said that you had settled things so that he won't be arrested? Was it said that his home people had given you $2,000. They also said that the sergeant surnamed X had settled the matter. ... I feel quite surprised that you are now asking me things about Ma Sui-ming'". Later again Sergeant X and a party of police went to Ma Sui-ming's house and enquired whether Ma had returned home. His mother replied "Was it said that it was all cleared and there would be nothing? Is it not sufficient to arrest just one?". The following day a detective police constable said to Sergeant X that Sergeant Chan Kwok-shing had sent him with a message to the effect that he (Chan) hoped Sergeant X would give Ma Sui-ming a chance and that he (Chan) "would have a dinner together with [Sergeant X's] squad". One day after that Sergeant Chan spoke to Sergeant X on the telephone and said: "Ma Sui-ming is a relative of mine. He (Ma) is now helping me do something. I hope you will give him a chance and let him go this time. Some day in the near future .... I will invite your squad to dinner". Ma Sui-ming was arrested on 9th June and an entry was made in the Tsz Wan Shan Police Station to the effect that four police constables (including the Plaintiff) had reported that they had effected an arrest at 1925 on 9th June 1977 outside the Man Lin Theatre. On 10th June 1977 Sergeant X informed Mr. Tso Wai-yan of this entry. Ma Sui-ming made a statement in writing to the Independent Commission Against Corruption on 28th June in which he said that he had been arrested by two police officers, one of whom was named "Tsoi", at the time and place recorded in the police station. He denied knowledge of any payment of $2,000 to a policeman as a reward for not arresting him. On 9th July 1977 Ma made a second statement to the Independent Commission Against Corruption. This was inconsistent with his first statement in that it admitted that to his knowledge $2,000 had been paid to Sergeant Chan pursuant to a promise made by Ma's mother to pay that sum "as an inducement so that he would not arrest me but settle the matter for me ....". The second statement further recorded how Sergeant Chan had arranged a fake arrest of Ma at Sergeant Chan's quarters at Cheung Sha Wan Police Station by two men, one of whom was named "Choi". Ma Sui-ming explained that he had not mentioned these matters in his first statement because his mother "told me not to say anything about those facts, because she did not want to involve Chan Kwok-shing." However, he had now decided to tell the truth. In August Ma Sui-ming retracted the second statement.

3. It is conceded by counsel for the Plaintiff that there was evidence which might have justified the arrest of Sergeant Chan and Tsoi Sui-ping (Detective Police Constable 789), but he submits that there was none to justify the arrest of the Plaintiff. He contends that, even if they regarded Ma's second statement, which had been retracted, as reliable, the sum total of the evidence against the Plaintiff was that he had reported an arrest which was shown to have been faked and to have been effected at another place than that reported and that in June he was a member of a squad which in May was said to have received a sum of money as a bribe. It is common ground that he had not been a member of the squad in May. Mr. Eddis submits that the truth of the matter is to be found in the evidence of the 2nd Defendant where he said that the predominant purpose of arresting the Plaintiff and the other members of the squad was "to make further enquiries which would include interview" and in the evidence of Mr. Batty, the 2nd Defendant's superior, where he agreed that there would be insufficient evidence to charge the Plaintiff unless he made a confession.

4. For the Respondents it was argued that there was reasonable ground for suspicion that $2,000 had been paid to Sergeant Chan as a bribe and that in the ordinary course of affairs it was reasonable to infer that the Appellant had received some of that money, for there was credible evidence that his report concerning the arrest of Ma Sui-ming was untrue.

5. With respect I think the most that can fairly be said is that there was reasonable suspicion that the Plaintiff might have received some of the money paid to Sergeant Chan. It was not necessary to have enough evidence to justify charging him, but a mere possibility of guilt is not the same thing as a reasonable suspicion of guilt. Accordingly I would allow the appeal and enter judgment for the Plaintiff.

6. The judge said that if the Plaintiff had succeeded before him he would not have been prepared to award more than a nominal amount of damages. In so deciding he was much impressed by his finding that the Plaintiff was the author of his own misfortune in that, although he had been approached by Detective Police Constable Tsoi Sui-ping to falsify his notebook, he had made no report: he thought that, if a report had been made, it was unlikely that the Appellant would ever have been arrested. For my part I do not think this consideration is quite as important as the judge took it to be, for the fact remains that there was no ground for the arrest. The Plaintiff is entitled to real damages, but I think they should be quite modest. I would propose a figure of $2,500.

Leonard, J. A. :

7. I agree and have nothing to add.

Addison, J. :

8. I agree and likewise have nothing to add.

19th August 1980.

Representation:

Eddis (Johnson, Stokes & Master) for Appellant.

Graham (Legal Department) for both Respondents.