Pang Yu Him v. Secretary for Justice

DCCJ 5519/2021

[2022] HKDC 1164

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5519 OF 2021

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Before:  His Honour Judge Ko in Chambers (Open to Public)

Date of Hearing:  3 October 2022

Date of Decision: 30 December 2022

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DECISION

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A. Introduction

1.There are two applications before the court.

2.The first one is the defendant’s summons to strike out the Amended Statement of Claim herein (“ASOC”) and to dismiss the action.  The application is opposed by the plaintiff.

3.There is also the plaintiff’s summons for leave to file and serve voluntary particulars of the ASOC as per the draft annexed to the summons (“Particulars”).  According to the plaintiff who is acting in person, the application is prompted by the defendant’s submission that the ASOC is lacking in particulars and so he wants to provide as much particulars as is necessary in regard to the alleged defects.  Counsel for the defendant (Mr Jonathan Kwan and Ms Shirley Lui) oppose the application on the ground that the Particulars contain evidence and submissions which are not necessary for disposing fairly of this action or for saving costs in terms of Order 18, rule 12(3B) of the Rules of the District Court (“RDC”). 

4.It is not the function of particulars to take the place of necessary averments in pleading, nor to state the material facts omitted in order to “fill the gaps” (so to speak) to make good an inherently bad pleading.  The device of “voluntary particulars” must not be used to unilaterally amend or add to particulars or vary the case of a party in a way which the court would not sanction.  If objection is taken, the party concerned must apply for leave to serve the particulars under an order of the court.[1]

5.In the present case, it is not disputed that even if the ASOC is defective, an opportunity to amend the pleading may be given to the plaintiff even though the precise formulation of the amendment is not before the court.[2] At the court’s suggestion, both parties agree to stand over the plaintiff’s summons and consider the Particulars de bene esse for the purpose of the defendant’s summons. 

B. The plaintiff’s case

6.The plaintiff was the first defendant in the criminal case of WKCC 1002/2020 in the Magistrates’ Court.  He was charged with the offence of “Possession of an instrument fit for unlawful purposes and with intent to use for unlawful purpose”, contrary to section 17 of the Summary Offences Ordinance, Cap 228. The instrument concerned was “a device capable of emitting laser ray”. (ASOC, para 1) 

7.On 17 June 2021, the plaintiff was acquitted of the charge after trial. (ASOC, para 2)

8.There are two main protagonists in the claim:

(a)  DPC 7608, the Investigation Officer of the case who testified at the trial; and

(b)  SPC 2031, a prosecution witness at the trial.  Another prosecution witness, SPC 10610, also featured in the ASOC.

9.In relation to DPC 7608, it is said that:

(a)  The defendant owed the plaintiff “a positive and continuous duty of disclosure under common law”. (ASOC, para 5)

(b)  At the pre-trial review held on 30 September 2020, DPC 7608 as the representative of the Police agreed to “produce and procure further statements from the officers who had handled the exhibits in question”. (ASOC, para 6)

(c)  DPC 7608 served a number of police statements on the plaintiff on 9 November 2020 including the statement of SPC 2031 dated 29 October 2020 (“SPC 2031’s Second Statement”) and the statement of SPC 10610 dated 25 October 2020 (“SPC 10610’s Second Statement”). (ASOC, para 7)

(d)  Before the commencement of the trial on 7 April 2021, DPC 7608 confirmed with the plaintiff that “there was no further statement to be disclosed”. (ASOC, para 8)

(e)  At the trial, SPC 2031’s Second statement and SPC 10610’s Second Statement were tendered in evidence pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221 (“CPO”). (ASOC, para 9)

(f)  After the verdict, the plaintiff was made aware in about August 2021 of the fact that SPC 2031 had made an earlier statement dated 16 October 2020 (“SPC 2031’s First Statement”) and SPC 10610 had also made an earlier statement dated 16 October 2020 (“SPC 10610’s First Statement”).  Neither statement was served on the plaintiff.  For ease of reference, SPC 2031’s First Statement and SPC 10610’s First Statement are collectively referred to hereinafter as “Earlier Statements”. (ASOC, para 12)

10.It is the plaintiff’s case that: “Thus, wrongfully and unlawfully, DPC 7608, being a public official entrusted with the powers and duties of a police officer who owed to the Plaintiff a legal duty of disclosure, withheld the disclosure of [the Earlier Statements]…  The said act was committed:-

(a)  with intent to harm or cause loss to the Plaintiff; or

(b)  alternatively, with knowledge that the said act was beyond his powers and would, in the ordinary course of event, harm or cause loss to the Plaintiff; or

(c)      alternatively, with knowledge that the said act was beyond his powers and that he was aware of the risk associated with the resultant injuries that would be caused thereby to the Plaintiff.” (ASOC, para 17)

11.In relation to SPC 2031, it is said that:

(a)  SPC 2031’s First Statement and SPC 2031’s Second Statement are practically the same, and the only material difference between them is the reference number of the exhibit mentioned therein. (ASOC, para 13)

(b)  At the trial, SPC 2031 “maintained under oath that, on 6.3.2020 at 10.00, he had handled only one exhibit” and “rejected the defence’s case (as put to him) that he had, in fact, received 3 exhibits at the time in question.” (ASOC, para 10)

(c)  SPC 2031 “knew or ought to have known of the existence of SPC 2031’s First Statement and SPC 2031’s Second Statement and the contents thereof, and that the evidence he gave in regards to the Criminal Case, or part thereof… was false.” (ASOC, para 16)

12.It is the plaintiff’s case that:

(a)  “Wrongfully and unlawfully, SPC 2031, being a public official entrusted with the powers and duties of a police officer, made, produced and signed [SPC 2031’s First Statement and SPC 2031’s Second Statement] … with knowledge that the said act was beyond his powers and would, in the ordinary course of event, harm or cause loss to the Plaintiff, or alternatively, with knowledge that the said act was beyond his powers and that he was aware of the risk associated with the resultant injuries that would be caused thereby to the Plaintiff.” (ASOC, para 18)

(b)  “Further wrongfully and unlawfully, SPC 2031, being a public official entrusted with the powers and duties of a police officer, gave evidence which he knows to be false or does not believe to be true… with intent to harm or cause loss to the Plaintiff, or alternatively, with knowledge that the said act was beyond his powers and would, in the ordinary course of event, harm or cause loss to the Plaintiff.” (ASOC, para 19)

13.“As a result, … the Plaintiff suffered loss and damage arising from the unfairness and prejudice against him in the course of the Criminal Case, and the additional legal costs and disbursements therefrom incurred.”  According to the particulars provided, the plaintiff assessed that he had incurred additional legal costs and disbursements totaling HK$21,000. (ASOC, para 20)

14.In this action,

(a)  The plaintiff is claiming against the defendant for (i) “[t]he said sum of HK$21,000.00”, and (ii) “[e]xemplary damages in the sum of HK$500,000.00 or alternatively in the amount as this Honourable Court thinks fit”. (ASOC, the prayer)

(b)  The cause of action relied on by the plaintiff is “misfeasance in public office on the part of the police officers…, namely, DPC 7608 and SPC 2031, in the course of their employment [for which] the Defendant is vicariously liable...”. (ASOC, para 21)

15.In his affidavit filed in opposition to the defendant’s summons, the plaintiff exhibited, inter alia, the documents he received from the prosecution by way of pre-trial discovery, including the Investigation Report of DPC 7608,[3] the witness statement of DPC 11361[4] and the witness statement of Assistant Clerical Officer 88593 (“ACO 88593”).[5] 

16.He deposed to in his affidavit that:

(a)  DPC 7608 could not have genuinely believed that the Earlier Statements were not relevant to his case because (i) DPC 7608 knew that the criminal prosecution against Mr Chan[6] is relevant to his case and had acted accordingly in disclosing unused prosecution materials, and (ii) DPC 7608 was aware of his requests for materials relating to the chain of evidence. (Plaintiff’s affidavit, paras 11 and 18)

(b)  On 7 April 2021 prior to the commencement of the trial, he approached DPC 7608 to enquire whether there was any further discovery, to which DPC 7608 replied “咪俾哂你哋”.  DPC 7608’s reply was made “with malice, either targeted or otherwise, or alternatively with reckless disregard as to the resultant injuries”. (Plaintiff’s affidavit, paras 23-26)

(c)  All along, the paper trail showed there were three exhibits that had been stored and handled together, and it was highly improbable that SPC 2031 would have handled less than three laser pointers at the material time.  He verily believed that the content of SPC 2031’s Second Statement was not true and SPC 2031 had handled three laser pointers on 6 March 2020. (Plaintiff’s affidavit, paras 28-29)

He was misled by DPC 7608’s reply.  Had the Earlier Statements been disclosed, he would not have agreed to tender SPC 2031’s Second Statement and SPC 10610’s Second Statement under section 65B and would have made a no case submission upon the conclusion of the prosecution’s case. (Plaintiff’s affidavit, para 26-27)

(d)  It had been his tactical decision to admit SPC 2031’s Second Statement under section 65B and leave the issue to submission.  He later seized the opportunity to cross-examine SPC 2031 when SPC 2031 was called by the prosecution. (Plaintiff’s affidavit, paras 30-31)

He cross-examined SPC 2031 “without knowledge of [the Earlier Statements] and/or contents thereof; and that the impugned question was formulated on the basis of [SPC 2031’s Second Statement]” and his belief that SPC 2031 had handled three laser pointers on 6 March 2020. (Plaintiff’s affidavit, paras 32-33)

(e)  SPC 2031 “produced two statements, practically identical in content and format, for use against two accused in separate trials.”  The plaintiff “cannot imagine what legitimate reason could exist to allow for such an arrangement” and verily believed that SPC 2031 had produced the statements “with malice, either targeted or otherwise, or alternatively with reckless disregard as to the resultant injuries.” (Plaintiff’s affidavit, paras 35-36)

(f)  SPC 2031 knew of the existence of his two statements but “denied the question put to him with malice, either targeted or otherwise, or alternatively with reckless disregard as to the resultant injuries.”  Had SPC 2031’s First and Second Statements been disclosed, the plaintiff would have “challenged and disputed the credibility of [SPC 2031] to the fullest extent, and … made a submission of ‘no case to answer’ upon the conclusion of the Prosecution’s case.” (Plaintiff’s affidavit, paras 37-38)

C. The defence case

17.On 11 November 2019 at about 0650 hours, police officers intercepted the plaintiff, Mr Chan Chun-kit (“Mr Chan”), Mr Kwok Cheuk-yin (“Mr Kwok”) and Ms Helen Leung (“Ms Leung”) in Mongkok.  Laser pointers, amongst other things, were found on the plaintiff, Mr Chan and Mr Kwok.  Protective gears, amongst other things, were also found on Ms Leung.  The four of them were arrested. (Defence, paras 3-5) 

18.After investigation and upon legal advice,

(a)  the plaintiff (as the first defendant) and Mr Kwok (as the second defendant) were each charged with one count of “Possession of an instrument fit for unlawful purposes and with intent to use for an unlawful purpose” in the Magistrates’ Court in the case of WKCC 1002/2020;

(b)  Mr Chan was charged with one count of “Possession of an instrument fit for unlawful purposes and with intent to use for an unlawful purpose” in the Juvenile Court in the case of WKCC 700013/2020; and

(c)  no charge was laid against Ms Leung. (Defence, para 6)

19.For reference purposes, the Police assigned the exhibit number 10 to the laser pointer seized from the plaintiff (“No 10 Laser Pointer”), whereas the laser pointer seized from Mr Chan was assigned the exhibit number 22 (“No 22 Laser Pointer”). (Defence, para 7)

20.In early October 2020, DPC 7608 requested the police officers who had handled No 22 Laser Pointer to produce witness statements for Mr Chan’s case in the Juvenile Court.  Consequently, SPC 2031 produced SPC 2031’s First Statement and SPC 10610 produced SPC 10610’s First Statement respectively to give an account of their handling of No 22 Laser Pointer. (Defence, paras 8, 10.1, 11.1, 27.1 & 28.2)

21.On 22 October 2020, DPC 7608 requested the police officers who had handled No 10 Laser Pointer to produce witness statements for the plaintiff and Mr Kwok’s case.  Consequently, SPC 2031 produced SPC 2031’s Second Statement and SPC 10610 produced SPC 10610’s Second Statement respectively to give an account of their handling of No 10 Laser Pointer. (Defence, paras 9, 10.2, 11.2, 27.2 & 28.1)

22.On 9 November 2020, SPC 2031’s Second Statement and SPC 10610’s Second Statement were served on the plaintiff through his legal representatives together with other documents.  Admittedly, SPC 2031’s First Statement and SPC 10610’s First Statement (ie the Earlier Statements) were never served on the plaintiff. (Defence, paras 12, 21 & 26)

23.On 7 April 2021, Mr Kwok pleaded guilty to the charge against him whereas the plaintiff pleaded not guilty and proceeded with his trial in the Magistrates’ Court.  The plaintiff was acquitted on 17 June 2021 after trial. (Defence, paras 13-14)

24.Responding to the plaintiff’s allegations against DPC 7608, the defendant avers that:

(a)  DPC 7608 did not have any conversation or contact with the plaintiff on 7 April 2021 prior to the commencement of the trial. (Defence, para 22)

(b)  DPC 7608 honestly believed without malice that the Earlier Statements, which concerned Mr Chan’s case in the Juvenile Court, were not relevant to the plaintiff’s case.  It was not foreseeable that non-disclosure of the Earlier Statements would cause any harm, loss or injury to the plaintiff.  Consequently, they were not disclosed to the plaintiff. (Defence, paras 29 & 31)

25.Responding to the plaintiff’s allegations against SPC 2031, the defendant avers that:

(a)  SPC 2031 was exercising his lawful duties in making and signing SPC 2031’s First Statement for Mr Chan’s case and SPC 2031’s Second Statement for the plaintiff’s case respectively.  Before he was requested to make SPC 2031’s Second Statement, he had already made SPC 2031’s First Statement. (Defence, para 32)

(b)  SPC 2031 did not give false evidence at the plaintiff’s trial.  At the trial, he was giving evidence in relation to No 10 Laster Pointer only.  Even if SPC 2031’s evidence was inaccurate (which is denied), it was not made with intent or knowledge to harm or cause loss to the plaintiff. (Defence, paras 24, 30 & 33)

26.The defendant denies liability (Defence, paras 35 & 38) and avers that:

(a)  There was no unfairness or prejudice in the plaintiff’s trial. (Defence, para 34.1)

(b)  There was no mentioning of the evidence of SPC 2031 or SPC 10610 in the Magistrate’s reasons in acquitting the plaintiff. (Defence, para 34.2)

(c)  The additional legal costs and disbursements claimed by the plaintiff would have to be incurred regardless of the impugned conducts of the officers.  Such costs were not foreseeable as a result of any misconduct or misfeasance on the part of the defendant, his agents or employees. (Defence, paras. 34.4-34.5)

(d)  The plaintiff did not apply to the Magistrate for costs following his acquittal.  Even if the plaintiff had suffered any additional legal costs and disbursements (which is denied), he should have applied for it under the Costs in Criminal Cases Ordinance, Cap 492 (“CCCO”) instead of claiming it subsequently in this civil action. (Defence, para 34.6)

27.DPC 7608 and SPC 2031 each filed an affirmation in support of the defendant’s summons.

28.DPC 7608 deposed to in his affirmation that “本人在關鍵時刻真誠地認為 [the Earlier Statements] 與原告人無關，因此並沒有向原告人披露 [the Earlier Statements]。” (DPC 7608’s affirmation, para 20)

29.SPC 2031 deposed to in his affirmation that he had been told that the plaintiff and Mr Chan would be tried separately and so made two witness statements. (SPC 2031’s affirmation, paras 7-10)

30.He denied having given false evidence in the plaintiff’s trial.  He referred to the transcript of the trial and said that the scope of his examination-in-chief and cross-examination was confined to No 10 Laser Pointer seized from the plaintiff. (SPC 2031’s affirmation, paras 15-24)

D. Relevant legal principles

D1. Striking out

31.The defendant’s application is made pursuant to Order 18, rule 19 of the RDC.  The specific grounds relied on by the defendant are: (a) the ASOC discloses no reasonable cause of action; (b) the ASOC is frivolous; and (c) the ASOC is an abuse of the process.[7] Before turning to the argument, it is apposite to reiterate some basic principles of striking out.[8] 

32.It is only in plain and obvious cases that the court should exercise its summary powers to strike out any pleading without a trial.  The pleading must be unarguably bad, the claim obviously unsustainable and it must be impossible (not just improbable) for the claim to succeed before the court will strike it out. 

33.There should be no trial upon affidavit.  Disputed facts should be taken in favour of the party sought to be struck out.  The jurisdiction should not be exercised if it requires a minute and protracted examination of the documents and facts of the case in order to see whether the plaintiff really has a cause of action.  Nor should the court decide difficult points of law in striking out proceedings because summary dismissal would deprive the court of hearing full argument. 

34.A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered.  No evidence shall be admissible on an application under this ground.  So long as the statement of claim or the particulars disclose some cause of action, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. 

35.A proceeding is frivolous when it is not capable of reasoned argument, without foundation or when it cannot possibly succeed.

36.The process of the court must be used bona fide and properly and must not be abused.  The court will prevent the improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.

D2. Misfeasance in public office

37.The only cause of action relied on by the plaintiff is the tort of misfeasance in public office.  

38.Both parties cited the leading authorities of Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 and Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324 in argument. In the latter case (at p 329H), Ribeiro JA (as he then was) summarized the law thus:

“An action for misfeasance in public office involves the allegation that a public officer acted in bad faith and dishonestly abused his powers, knowing that the plaintiff was likely in the ordinary course to suffer injury of the type actually suffered as a result of the officer’s unlawful conduct.”

39.And His Lordship cautioned (at p 329I): “These are grave allegations that, in fairness to defendants, must be supported by pleaded facts which, if proved at trial, are capable of establishing liability.”  Similar sentiment was expressed by the Court of Appeal recently in Wilmes Franz Josef v Coroner, West Kowloon Court [2022] HKCA 949 at para 26.

40.The argument focuses on two aspects of the tort in particular – the mental element and the requirement of material damage.  I shall elaborate on them in the discussion below.

E. Discussion

41.More particularly, the defendant has submitted that:

(a)  The ASOC discloses no reasonable cause of action in that the plaintiff has failed to plead or particularise: (i) how DPC 7608 and SPC 2031 had the requisite state of mind to constitute the tort; (ii) how DPC 7608 and SPC 2031 could have foreseen that the impugned conduct would cause loss to the plaintiff in terms of additional legal costs and disbursements; and (iii) any material damage as a result of the impugned conduct. 

(b)  The ASOC is frivolous in that the allegation that SPC 2031 gave evidence which he knew to be false or did not believe to be true is bound to fail.

(c)  The ASOC is an abuse of the process in that the plaintiff should have applied for costs following his acquittal in the criminal trial instead of subsequently claiming for it in a civil action, and that the present claim amounts to a collateral attack on the finding of the Magistrate that the plaintiff had acted in a very suspicious manner on 11 November 2019.

E1. Mental element

42.The first two points taken by the defendant (para 41(a)(i) and (ii) above) relate to the mental element of the tort.

43.As Ribeiro JA observed in Tang Nin Mun, the House of Lords in Three Rivers held that the state of mind that must be established on the part of the public officer allegedly liable for misfeasance in public office is subjective.  There are three variants, namely where the officer (a) specifically intended to injure the plaintiff (“targeted malice”), (b) knew that, in the ordinary course, injury to the plaintiff would follow even though that was not his purpose (“untargeted malice”), or (c) was recklessly indifferent as to whether or not his actions would cause the injury (“reckless untargeted malice”).[9] The plaintiff has deployed all three labels in argument.    

44.Lord Steyn elaborated in Three Rivers (at p 192B) that one of the unifying features of the tort is the element of an abuse of public power in “bad faith”.  Targeted malice “involves bad faith in the sense of the exercise of public power for an improper or ulterior motive.”[10] In untargeted malice, “a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff.  It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”[11]  And “reckless indifference to consequence is as blameworthy as deliberately seeking such consequences”.[12]

45.In the latter part of the judgment in Three Rivers, Lord Hobhouse provided the following guidance on pleading bad faith in an action for misfeasance in public office:

“The tort of misfeasance in public office is a tort which involves bad faith and in that sense dishonesty. It follows that to substantiate his claim in this tort, first in his pleading and then at the trial, a plaintiff must be able to allege and then prove this subjectively dishonest state of mind. The law rightly requires that questions of dishonesty be approached more vigorously than other questions of fault. The burden of proof remains the civil burden – the balance of probabilities – but the assessment of the evidence has to take account of the seriousness of the allegations and, if that be the case, any unlikelihood that the person accused of dishonesty would have acted in that way. Dishonesty is not to be inferred from evidence which is equally consistent with mere negligence. At the pleading stage, the party making the allegation of dishonesty has to be prepared to particularise it and, if he is unable to do so, his allegation will be struck out.”[13]

46.Recently, the Court of Appeal struck out the statement of claim in an action for misfeasance in public office for failure to properly plead the mental element:

“As the judge said, there was no pleading of the mental element or of the factual basis forming the requisite mental element on the part of the Coroner, or of the damage or harm caused to the plaintiff. … But if he chooses to sue the Coroner for the tort of misfeasance in public office, the legal position is that to sustain such a claim, there must be a proper pleading credibly alleging that in essence the Coroner ‘acted in bad faith and dishonestly abused his powers, knowing that the plaintiff was likely in the ordinary course to suffer injury of the type actually suffered as a result of the [Coroner’s] unlawful conduct’.”[14]

47.The first point taken by the defendant is that the plaintiff has failed to plead or particularise the requisite state of mind of the officers.

48.To recapitulate, the plaintiff’s claim encompasses three complaints with the following states of mind alleged:

(a)  DPC 7608 withheld disclosure of the Earlier Statements with targeted malice, untargeted malice or reckless untargeted malice. (ASOC, para 17)

(b)  SPC 2031 made two witness statements with untargeted malice or reckless untargeted malice.[15] (ASOC, para 18)  

(c)  SPC 2031 gave evidence which he knew to be false or did not believe to be true with targeted malice or untargeted malice.[16] (ASOC, para 19)

49.Apart from invoking the labels, the plaintiff has provided no elaboration on the alleged state of mind of the officers.  Specifically, there is nothing to explain:

(a)  Insofar as the plaintiff is relying on targeted malice, what was the improper or ulterior motive alleged of the officers and why?

(b)  Insofar as the plaintiff is relying on untargeted malice, why it is alleged that the officers did not have an honest belief that he was acting lawfully?

(c)  Insofar as the plaintiff is relying on reckless untargeted malice, why it is alleged that the officers acted with reckless indifference?

50.In response, the plaintiff refers to paras 4-8, 15 and 17 of the ASOC[17] in relation to DPC 7608 and maintains that “the facts as pleaded is capable of supporting the inference that DPC 7608 acted with the requisite mental element.”[18]  He argues that “[a]t the very least, the ASOC is capable of establishing that DPC 7068 was aware and had subjective knowledge of the Plaintiff’s request for documents relating to the chain of evidence”,[19] and “it is, at a minimum, probable that his omission or act was a deliberate disregard of his duty of disclosure, with knowledge that it would in the ordinary course of event harm or cause loss to the Plaintiff.”[20] 

51.In relation to SPC 2031, the plaintiff refers to paras 10, 12, 13, 16, 18 and 19 of the ASOC and submits that “at a minimum, the facts pleaded in the ASOC, when taken as its highest as is needed in the context of a striking-out application, is entirely capable of establishing the tort on the part of SPC 2031.”[21]

52.With respect, the pleaded facts only set out the factual circumstances upon which the tort was allegedly committed. They do not go to the officers’ state of mind at the material time.   

53.The defendant is entitled to know the case he has to meet at trial.  If the plaintiff is going to invite the court to infer bad faith on the part of the officers, he has to plead the primary facts which he will rely on to justify the inference.  At trial, the court will not allow proof of primary facts which have not been pleaded.  If what is pleaded is equally consistent with mistake, negligence, incompetence, unintended fault or omission, then that is not sufficient and the pleading is liable to be struck out.[22]

54.What the plaintiff is trying to say in terms of his complaint against DPC 7608 is that the officer deliberately withheld the Earlier Statements from him to hinder his defence at the criminal trial. 

55.The plaintiff has further pleaded in paragraph 3(b) of the Particulars that:

“DPC 7608 as Investigation Officer produced an Investigation Report entitled ‘回報有關處理証物 ‘雷射筆’ 的事項” [to the defence] wherein he reported in detail the handling of the exhibits in question”.

56.The Investigation Report covered the chain of evidence of all three laser pointers seized on 11 November 2019, including:

(a)  on 6 March 2020, “DPC 11361 向旺角警署證物室提取 EXH.10,22,35”; and

(b)  on 3 April 2020, “DPC 11361 將 EXH.10,22,35 交予旺角警署證物室保管”. 

DPC 11361’s statement to the like effect was disclosed to the plaintiff.  The statement of ACO 88593 was also disclosed, from which the officers from the Property Office who had dealt with DPC 11361 on 6 March 2020 and 3 April 2020 respectively could be identified.  That was how, according to his affidavit, the plaintiff was able to put to SPC 2031 in cross-examination that SPC 2031 had handled three laser pointers on 6 March 2020 instead of one. 

57.Since DPC 7608 had in effect disclosed the contents of the Earlier Statements to the plaintiff in terms of his Investigation Report, there is no realistic prospect of the plaintiff establishing bad faith on the part of DPC 7608.

58.Turning to the complaint regarding SPC 2031 making two witness statements, the plaintiff provided the following particulars in paragraph 4 of the Particulars:

“(b) Having regard to the high degree of resemblance of the two statements produced by SPC 2031, and the fact that the said statements were handwritten, and the contents of the two statements in general, the Plaintiff will invite the Court to infer that he was aware of the existence of the said two statements and the content thereof; and

(c) Further having regard to the shared subject matter of the said two statements and the fact that the two were produced separately and the fact that the said two statements were handwritten, and the contents of the two statements in general, the Plaintiff will invite the Court to infer that he made, produced, and signed the said two written statements with the state of mind as pleaded above.”

59.The plaintiff argues that “the manner in which [SPC 2031] produced two almost identical witness statements as opposed to combining the two, or properly producing the latter one as a supplemental statement to the earlier one, serves to support a reasonable and proper inference that he did so knowing that, in the ordinary course of event, it would cause harm and loss to the Plaintiff in the form of unfairness and/or prejudice arising from the Trial.”[23]

60.In my view, the particulars and arguments advanced by the plaintiff do not show that the making of the two statements by SPC 2031 was unlawful.  As Lord Hobhouse emphasised in Three Rivers (at p 230 E):

“The relevant act (or omission …) must be unlawful. This may arise from a straightforward breach of the relevant statutory provisions or from acting in excess of the powers granted or for an improper purpose.”

There is no hope of the plaintiff establishing that the officer was subjectively aware that his act was unlawful. 

61.As to the complaint that SPC 2031 gave evidence which he knew to be false or did not believe to be true, the plaintiff elaborated in paragraph 5(b) of the Particulars that:

“Having regard to the particulars and the matters as pleaded under paragraph 18 [of the ASOC], in particular to his knowledge as regard the said two statements, and the fact that he gave evidence in relation only to his statement dated 29 October 2020 but not to his statement dated 16 October 2020 despite the questions which he was asked pertained to matters which both of his said statements are concerned with, the Plaintiff will invite the Court to infer that he gave evidence which he knows to be false or does not believe to be true as pleaded above with the state of mind as pleaded above.” (underline added)

62.So, the plaintiff is contrasting SPC 2031’s evidence with the questions asked.  The defendant submits that the plaintiff’s case (underlined above) is based on a misreading of the transcript and is bound to fail.  This will be discussed in Section F below.  If the defendant is correct, then there is no hope of the plaintiff establishing subjective knowledge on the part of SPC 2031 that his evidence was false or might not be true.

63.Given the above, there is no hope of the plaintiff establishing bad faith on the part of the officers in all three aspects of his claim.

64.Turning to the defendant’s second point (para 41(a)(ii) above), the plaintiff takes exception to the defendant’s use of the word “foreseen”.  He refers to Lord Hobhouse’s instruction in Three Rivers not to use “foreseen” or “foreseeable” in elaborating the tort and submits that “foresight, per se, is not an absolute requirement in terms of averment in the pleadings.”[24] 

65.This is what Lord Hobhouse said (at p 231H):

“The use of the words foreseen or foreseeable is to be avoided. They are concepts borrowed from the law of negligence. This tort concerns deliberate acts. Thus in the first limb the criterion is having a specific purpose, a different concept from foresight. In the second limb the concept is acting intentionally with the knowledge that the act will have a particular consequence in the ordinary course. This is like foresight but represents rather a state of mind which colours the intentional or deliberate act.”

66.As I understand, the defendant is not using the word in the sense it is used in the law of negligence.  Rather, he is complaining that the plaintiff has failed to state the basis upon which the officers were said to have acted “with the knowledge that the act will have a particular consequence in the ordinary course” which is consistent with Lord Hobhouse’s instruction.

67.As Ribeiro JA pointed out in Tang Nin Mun (at p 328I):

“As Lord Steyn’s speech makes clear, the plaintiff must come within the ambit of the offending public officer’s intent, knowledge or recklessness in two ways. First, the officer must have acted ‘in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member’. Secondly, the officer’s intent or knowledge ‘must be directed at the harm complained of, or at least to harm of the type suffered by the plaintiffs.’” (underline added)

68.In Tang Nin Mun, the plaintiff and his wife were stabbed and seriously wounded in an unprovoked attack.  The investigating officer fabricated evidence that the attack was provoked and that the injuries were not so serious and, as a result, the assailant was only charged with and convicted of relatively minor offences. When the plaintiff discovered that the course of justice had been so perverted, he suffered mental distress and developed a psychiatric condition.  He brought an action for damages for psychiatric injury and pecuniary loss resulting from the tort of misfeasance in public office.

69.Notwithstanding its sympathy for the plaintiff, the Court of Appeal ruled (at p 329J):

“In the present case, there is quite plainly no realistic prospect of the plaintiff establishing that the constable was subjectively aware that his fabrication of the evidence would, in the ordinary course of events, lead to the plaintiff suffering psychiatric disorders of the type of which he complains. We do not therefore consider that the action should be allowed to continue.”

70.In this action, the plaintiff has pleaded two remedies: (a) HK$21,000 additional legal costs and disbursements incurred; and (b) exemplary damages.  As Kwan JA explained in William Allan v Messrs Ng & Co (a firm) and Another [2012] 2 HKLRD 160 at paras 52-55, the rationale for exemplary damages is not to compensate but to punish.  It is only if the compensatory award is inadequate to punish the defendant for his outrageous conduct that exemplary damages should be awarded to mark the court’s disapproval of such conduct and to deter similar conduct in future.  Thus, the only harm complained of by the plaintiff is the additional legal costs and disbursements incurred. 

71.I shall examine the claim of HK$21,000 in more detail in the next section.  For present purpose, it may be noted that there is nothing to show that the officers were subjectively aware that their impugned conduct would, in the ordinary course of events, lead to the plaintiff suffering additional legal costs and disbursements.

72.In summary, there is no proper pleading of the mental element of the tort and the Particulars do not save the ASOC.

E2. Material damage

73.In para 20 of the ASOC, the plaintiff provided the following particulars of his claim of HK$21,000:

Particulars of Additional Legal Costs and Disbursements Incurred
Preparation for hearing of 8.4.2021 – 5 hours	HK$700.00 x 5 = HK$3,500.00
Preparation for closing submission: Considering Prosecution’s evidence (including those of SPC 2031 and SPC 10610) – 3 hours
HK$700.00 x 3 = HK$2,100.00
Written closing submission (16 pages)	HK$7,000.00
General care and conduct – 2 hours	HK$700.00 x 2 = HK$1,400.00
Legal research re Chain of Evidence – 10 hours	HK$700.00 x 10 = HK$7,000.00
Subtotal:	HK$21,000.00

74.The defendant submits that the above would have to be incurred anyway and “the plaintiff has not pleaded the damages suffered by him as a result of [the impugned conduct] to render the cause of action actionable.”[25]

75.As I see it:

(a)  The plaintiff would have to prepare for the hearing on 8 April 2021 anyway as that was the second day of the trial on which DPC 7608 and SPC 2031, amongst other prosecution witnesses, testified.  The fact that DPC 7608 had withheld the Earlier Statements should mean fewer papers to peruse and less preparation.  The plaintiff only became aware of SPC 2031’s First Statement (being one of the Earlier Statements) after the trial.  He could not have been vexed by the thought that SPC 2031 had made two witness statements when he was preparing for the hearing.  And SPC 2031 allegedly gave false evidence at the hearing, after the plaintiff had already done the preparation.

(b)  As the plaintiff was not aware of the Earlier Statements when he prepared for his closing submission, neither the withholding of the Earlier Statements by DPC 7608 nor the making of two witness statements by SPC 2031 should have any bearing on the costs of preparation.  Given his intention to challenge the chain of evidence, he would have to consider the prosecution’s evidence on the chain including those of SPC 2031 and SPC 10610 anyway in preparation of his closing submission. 

(c)  Solicitors sometimes charge for general care and conduct for the time spent on supervising junior solicitors and other unqualified persons during the course of legal proceedings.[26] The plaintiff was not legally represented at his criminal trial.  There is no basis for him to charge for general care and conduct.

(d)  As the plaintiff only became aware of the Earlier Statements after the trial, his first two complaints would not have given rise to any need for legal research.  And any legal research on chain of evidence would have been prompted by his intention to challenge the chain as opposed to SPC 2031’s evidence.

76.The plaintiff has made no submission to justify his claim of HK$21,000.  Instead, he advanced the following arguments:

(a)  He prays in aid the statement of Holt CJ in Ashby v White (1703) 1 Smith’s LC (13th ed) 253 at p 273 that “[i]f the plaintiff has a right, he must of necessity have a means to vindicate and maintain it” and argues that the tort of misfeasance in public office should be actionable per se.  Insofar as the House of Lords rejected Holt CJ’s statement in Watkins v Secretary of State for the Home Department [2006] UKHL 17 on policy grounds, he says different considerations should apply in Hong Kong.

(b)  Apart from additional legal costs and disbursements, he also claims (i) “loss and damage arising from the unfairness and prejudice against him in the course of the Criminal Case” and (ii) exemplary damages.

On (i), he likens his case to a claim of malicious prosecution and argues that damage (such as to his reputation, citing Mohamed Amin v Bannerjee [1947] A.C. 322) should be presumed.  He says he should be entitled to nominal damage even if his claim is not readily quantifiable. [27]

On (ii), he relies on Kuddus v Chief Constable of Leicestershire [2001] UKHL 29 for the proposition that exemplary damages can be awarded even where no special damage is shown.[28] Insofar as Kuddus is inconsistent with the subsequent decision of the House of Lords in Watkins, Kuddus has not been overruled.

77.I should start by noting that the House of Lords dealt with two issues in Watkins.[29] On the issue of whether proof of damage is a necessary ingredient of the tort, the House noted that proof of special damage had consistently either been expressly recognized or assumed as an ingredient of the tort in earlier authorities and said that a rule which had represented the law for over 300 years should not be disturbed without compelling reasons for doing so.  Competing policy considerations were urged upon the House.  On the one hand, “[t]here is an obvious public interest in bringing public servants guilty of outrageous conduct to book” (at para 8).  On the other hand, “the primary role of the law of tort is to provide monetary compensation for those who have suffered material damage rather than to vindicate the rights of those who have not” (at para 9).  After due consideration, the House held that the rule should continue (at para 26).

78.In its deliberation, the House took into account Holt CJ’s statement in Ashby v White.  Lord Bingham did not accept that as reliable authority for the proposition that the tort is actionable per se (see para 23).  Lord Rodger recounted the peculiar circumstances of Ashby v White and said that the statement did not bear the weight that the Court of Appeal had placed upon it (see paras 49-57).  The other Law Lords agreed with Lord Bingham and Lord Rodger.  Thus, the House was unanimous in rejecting Holt CJ’s statement and in holding that the tort is not actionable without proof of special damage.

79.The plaintiff has advanced no alternative policy consideration in his bid to argue otherwise.  The courts in Hong Kong have consistently applied Watkins.  In 梁國雄 訴 律政司司長, unreported, HCA 1124/2006, 31 March 2009, at para 76, Lam J (as he then was) ruled that the plaintiff there could not be granted any civil remedy in respect of his claim based on misfeasance in public office because he had not suffered any damage as a result of the alleged misfeasance. More recently, Coleman J explained at first instance in Wilmes v Coroner, West Kowloon Court [2021] HKCFI 462 at para 67:

“where damage has not been pleaded, there does not seem to me to be a pleading of what harm was suffered by [the plaintiff] as a result of [the defendant’s] act, and how [the defendant] had a subjective intent to cause such harm. I do not think that it is sufficient for there to be some suggested implicit pleading of damage or harm. The alleged harm must be precisely identified, so that there might be a pleading that the precisely identified harm was intended or within the knowledge of [the defendant].”

There is no reason for me to depart from these authorities.

80.The second issue considered in Watkins was whether exemplary damages could be awarded even where no material damage was shown.  And the House of Lords ruled “the tort is never actionable without proof of material damage” (at para 27).  As Lord Bingham explained in the preceding paragraph:

“That exemplary damages may be awarded where a compensatory award is insufficient to mark the court’s disapproval of proven misfeasance in public office, and deter repetition, is, as already noted, accepted. But the policy of the law is not in general to encourage the award of exemplary damages, and I would not for my part develop the law of tort to make it an instrument of punishment in cases where there is no material damage for which to compensate.”

81.By “material damage”, His Lordship meant financial loss or physical or mental injury, including recognised psychiatric illness but not distress, injured feelings, indignation or annoyance (see para 7).

82.As said before, the tort is not actionable without proof of special damage and the plaintiff does not seek to defend his claim of HK$21,000.

83.There is no attempt on his part to bring his unparticularised claim for damages for unfairness and prejudice within the definition of material damage recited above.  The parallel that he tries to draw between his case and a claim based on malicious prosecution is unwarranted.  The essential elements of the tort of malicious prosecution have been set out in para 32 of Thapa Kamala.  In the present case, first, all the impugned conducts came after the initiation of the criminal prosecution against the plaintiff.  It could not be validly said that they were instrumental in setting the law in motion.  Secondly, there is no plea that the prosecution was without reasonable and probable cause.  In fact, the Magistrate ruled there was a case for the plaintiff to answer.[30] Thirdly, there is no plea that the prosecution was “malicious”.  Insofar as the plaintiff is inviting the court to infer malice, he has not pleaded anything from which malice may be inferred.

84.The plaintiff cited Mohamed Amin for the proposition that general damage to reputation may be presumed. But that was peculiar to the tort of malicious prosecution, for the House of Lords explained (at p 330):

“The action for damages for malicious prosecution is part of the common law of England … As long ago as 1698 it was held by Holt CJ in Savile v Roberts (1698) 1 Ld Raym 374 that damages might be claimed in an action under three heads, (1) damage to the person, (2) damage to property, and (3) damage to reputation, and that rule has prevailed ever since.”

In the present case, the cause of action relied on by the plaintiff requires proof of material damage as discussed earlier.

85.On the claim for exemplary damages, the plaintiff’s reliance on Kuddus is also misplaced.  It was held in Kuddus that exemplary damages could in principle be awarded where misfeasance in public office was established.  It fell on Watkins to clarify that the tort of misfeasance in public office is never actionable without proof of material damage.  There is no inconsistency between Kuddus and Watkins. 

86.Thus, the defendant is right that the plaintiff has not pleaded any material damage to constitute the tort.

87.For all the above reasons, the ASOC should be struck out as it discloses no reasonable cause of action.

F. Whether the ASOC is frivolous?

88.Here, the defendant submits that the plaintiff has misread the transcript and the allegation that SPC 2031 gave evidence that he knew to be false or did not believe to be true at the criminal trial is bound to fail.

89.In response, the plaintiff argues that:

(a)  The transcript in evidence is incomplete and does not give a full picture of SPC 2031’s evidence.  He says he cross-examined SPC 2031 in English but “the original questions asked in English is nowhere to be found in the relevant part of the transcript.”  “There is no suggestion that SPC 2031 either did not understand English, or that he was answering only to the version of questions as interpreted by the interpreter. There is also no evidence that the relevant translations were without error.” “[A]bsent the original English version, it would be most unsafe to draw any conclusion to any degree of certainty using only the Punti version as to any belief which SPC 2031 purports to hold.”[31]

(b)  The defendant’s reading of the transcript is not the only reasonable construction.  “[T]he scope of the Plaintiff’s cross-examination of SPC 2031 was clearly upon the transaction of exhibits between SPC 2031 and DPC 11361” which was appreciated by the Magistrate.[32] This resonances with paragraph 5(b) of the Particulars (see para 61 above).

90.The transcript of the whole trial is at pp 92-256 of Bundle B.  I note from the transcript that:

(a)  At the beginning of the trial (at 99L), the plaintiff confirmed that he was conversant in both spoken (or Punti) and written Chinese.

(b)  The plaintiff elected to speak English (at 93R).

(c)  The Magistrate decided (at 99S-100A) to conduct the trial in Chinese with the assistance of a Chinese/English interpreter.

91.At the trial,

(a)  The plaintiff was wary of mistranslation. That was why he objected to the production of the Chinese translation of the English report of the prosecution expert (Chief Inspector Chan) at 100A-J of the transcript.

(b)  The Magistrate and the interpreter were vigilant in ensuring that the translation was accurate.  By way of example, see (i) the exchanges during the plaintiff’s cross-examination of PC 24931 at 126I-127M of the transcript, (ii) the exchanges during the plaintiff’s cross-examination of DPC 7608 at 161H-P of the transcript, and (iii) the exchanges during the plaintiff’s cross-examination of DPC 11361 at 178A-G of the transcript.

92.Notwithstanding his complaint, the plaintiff has not pointed out any inaccuracy or inadequacy in the translation. As demonstrated above, he was quite capable of picking up any mistranslation and raising it with the Magistrate at the trial.  The fact that there is no such record in the transcript is telltale sign that he was satisfied with the translation.  If he did not spot any mistranslation then, there is no means for him to do it now.  The vigilance of the Magistrate and the interpreter is the added assurance that the translation was regular.

93.The plaintiff has clarified that he is not taking issue with the examination-in-chief, and his complaint rests solely on his cross-examination of SPC 2031:[33]   

“被告人盤問

問1: 喺供詞當中呢你話喺2020年3月6號1000時嘅時候喇，你就將一支同本案有關嘅鐳射筆交咗畀11361嘅，係咪?

答1: 係，冇錯。

問2: 咁喺你供詞第3 段喇，你話佢拎咗支鐳射筆個目的就係拎佢去政府化驗所嗰度作檢測--檢驗嘅，係咪?

答2: 係。

問3: 係咪偵緝警員11361咁樣同你講㗎?

答3: 佢會出示一張由佢案件主管發出個memo。

問4: 你有睇過嗰張memo 嘅?

答4: 係。

問5: 咁跟住呢你就將就係一支鐳射筆喇就交咗畀11361嘅，係咪?

答5: 啱。

問6: 咁佢向你指出其實你嗰日係畀咗3支鐳射筆畀佢嘅，係咪呀，你同唔同意?

答6: 唔對，不對。

官: 當日當刻呀你講緊?

被告人: Yes-- No further question.

MR CHONG: 冇覆問呀，唔該。

官: 證人，畀完口供可以離開，唔該哂。” [34]

(underline and Q&A numbers added)

94.It is no longer disputed by the plaintiff that the examination-in-chief was confined to the officer’s handling of No 10 Laser Pointer as per SPC 2031’s Second Statement. 

95.The plaintiff followed the same vein in his cross-examination.  He should be referring to SPC 2031’s Second Statement (喺供詞當中呢 and 咁喺你供詞第3 段喇) and No 10 Laser Pointer (一支同本案有關嘅鐳射筆 and 支鐳射筆) in Q1 and Q2, as he was not aware of SPC 2031’s First Statement back then and SPC 2031’s Second Statement was only concerned with No 10 Laser Pointer in relation to the plaintiff’s case.  

96.The officer therefore focused on his handling of No 10 Laser Pointer in A1 and A2.  And it was in fact stated in SPC 2031’s Second Statement that he gave No 10 Laser Pointer to DPC 11361 on 6 March 2020.[35] There is no basis for the plaintiff to doubt the truthfulness of A1 and A2.

97.The plaintiff later put to SPC 2031 that the officer had handled three laser pointers on the day in question (Q6) and the officer denied (A6).  Prior to asking Q6, there was no indication that the plaintiff was changing the context of his cross-examination.  In those circumstances, it was not surprising for the officer to carry on answering A6 in terms of No 10 Laser Pointer and SPC 2031’s Second Statement.    

98.So, the plaintiff’s statement in para 5(b) of the Particulars that “despite the questions which he [ie SPC 2031] was asked pertained to matters which both of his statements are concerned with” and his submission to the like effect is not supported by the transcript.

99.The fact that the Magistrate appreciated the change in context does not mean the officer was lying or did not believe in his answers.  Earlier on in the proceeding, the witness statement of DPC 11361 had been read into evidence in pursuance of s 65B of the CPO[36] (in the absence of SPC 2031) and so the Magistrate was aware of the evidence that DPC 11361 had received three laser pointers from the Property Office on 6 March 2020.  Neither the plaintiff nor the counsel-on-fiat sought to clarify with SPC 2031 after the Magistrate queried the plaintiff (當日當刻呀你講緊?).  As SPC 2031 gave no further evidence after the Magistrate’s query, there is no basis for the plaintiff to say that SPC 2031 either gave evidence that he knew to be false or did not believe to be true.

100.This aspect of the plaintiff’s claim is bound to fail and the part of the ASOC associated with it should be struck out.

G. Whether the ASOC is an abuse of process?

101.Lastly, the defendant submits that:

(a)  Insofar as the impugned conducts have caused the plaintiff to incur additional legal costs and disbursements, such costs form part of the defence costs of the criminal trial.  Following his acquittal, the plaintiff could have applied to the Magistrate for costs under the CCCO but he did not do so.

(b)  Given her finding that the plaintiff had acted suspiciously, the Magistrate would not have granted the application even if the plaintiff had applied for costs.

(c)  By subsequently claiming his defence costs in this civil action, the plaintiff is usurping the function of the Magistrates’ Court and the present claim amounts to a collateral attack on the Magistrate’s finding.[37]

102.In response, the plaintiff argues that “the damage claimed in the ASOC does not stem from the Trial per se, but was a result of the conduct of the officers.  The difference, in the Plaintiff’s submission, is that the former is awarded against the Prosecution, whereas the ASOC is concerned with tort committed by the officers for which the Defence’s liability is only vicarious.”[38]

103.In my view, the plaintiff’s submission should be rejected.  Under section 3(1)(c) of the CCCO, where a magistrate dealing with a summary offence or any offence summarily dismisses the information or complaint or acquits the defendant, the magistrate may order that costs be awarded to the defendant. 

104.In Secretary for Justice v N [2013] 1 HKLRD 130 at para 25, Macrae J (as he then was) reiterated:

“It must be remembered that there is no general right to costs in criminal cases. The CCCO delineates in specific terms the particular circumstances in which a costs order might be made in criminal proceedings. If a party to proceedings cannot bring himself within a particular section of that Ordinance, he cannot obtain an order for costs.”

105.However the plaintiff wishes to look at his claim, it is clear from the particulars provided that it forms part of his defence costs in the criminal case.  The jurisdiction to award him costs following his acquittal fell on the Magistrate.  By not applying to the Magistrate but subsequently claiming for it in this civil action, the plaintiff is indeed usurping the function of the Magistrate and the ASOC should be struck out for abuse of process.[39]

106.Furthermore, according to the transcript the plaintiff was acquitted because the Magistrate was not satisfied beyond reasonable doubt that (a) the laser pointer adduced in evidence was the one seized from the plaintiff, and (b) the laser pointer examined by the prosecution expert was the one seized from the plaintiff.  The Magistrate made no reference to the evidence of DPC 7608 or SPC 2031 in her reasons.

107.More importantly, the Magistrate ruled:

“無疑，綜觀事發日期、時間、地點、事發前曾有堵路情況及被告人背包內發現的物品，儘管控方沒有提出證據，但眾所周知，事發當日有人發動「大三罷」，本案就發生在連串社會暴力示威高峰期，事發時被告人在清晨時分攜帶着與一般暴力示威者用以掩藏身份、抵抗警察相類的物品走到曾經發生堵路情況附近的街道，並帶備一支雷射筆，一見到警車，便低頭急步離開，被告人的行為十分可疑 …”.[40]

108.As the Court of Final Appeal reiterated in HKSAR v Chan Kam Ching [2022] HKCFA 13 at para 8:

“Upon an acquittal, the court normally makes a costs order in favour of the accused unless there is a positive reason for departing from that rule. Most frequently, such a reason is found to exist where the accused has brought suspicion on himself or herself, leading to the prosecution.”

109.In the circumstances, I agree with the defendant that the Magistrate would not have granted the application even if the plaintiff had applied for his defence costs.

H. Conclusion

110.For the above reasons, the ASOC should be struck out on the grounds that it discloses no reasonable cause of action, is frivolous and is an abuse of process, and the action should be dismissed. The plaintiff’s summons has become academic and should also be dismissed.

111.Both parties agree that costs should follow the event.  I therefore order the plaintiff to pay the defendant’s costs in this action including the costs of both summonses and all reserved costs, to be summarily assessed if not agreed.

112.For the purpose of summary assessment, I direct the defendant to submit a statement of costs within 28 days from the date of this judgment (giving time to the parties to agree on quantum) and the plaintiff to submit a concise statement of his objections, if any, within 14 days thereafter.  The summary assessment will be conducted on paper within 3 months after the close of the parties’ submissions.

The plaintiff appeared in person

Mr Jonathan Kwan and Ms Shirley Lui, instructed by the Department of Justice, for the defendant