Lai Hing Tong v. Attorney General
Read the full judgment text of HCA 7145/1988 on BabelCite. This High Court CFI judgment.
1. This is a disturbing case. The Plaintiff is a man now in his mid-thirties. He has never been convicted of any criminal offence. But in December 1978, the Police erroneously made a record to the effect that he had been convicted, on the 16th of that month, of the offence of assault occasioning actual bodily harm. And this error did not come to light until May 1997.
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HCA007145/1988 1988, No. A7145 ------------------------- H E A D N O T E ------------------------- This was an action for damages against the Crown for negligence on the part of the Police in making an erroneous record to the effect that the plaintiff had been convicted of a criminal of fence when, in truth, he had not. It was HELD that:-
OBSERVATIONS on the proper approach to (i) the costs of proceedings transferred from the District Court to the High Court when less than the District Court's monetary jurisdiction limit is awarded; (ii) the costs of the hearing in the District Court (before the transfer) rendered abortive by such transfer; and (iii) resort to letters in the "Calderbank form" when a payment into Court could have been made. 1988, No. A7145 IN THE SUPREME COURT OF HONG KONG HIGH COURT --------------------- BETWEEN
-------------------- Coram: Bokhary, J in Court Dates of hearing: September, 12, 13, 14, 18, 19, & 21, 1989 Date of delivery of judgment: September, 21, 1989 ----------------------- J U D G M E N T ----------------------- 1. This is a disturbing case. The Plaintiff is a man now in his mid-thirties. He has never been convicted of any criminal offence. But in December 1978, the Police erroneously made a record to the effect that he had been convicted, on the 16th of that month, of the offence of assault occasioning actual bodily harm. And this error did not come to light until May 1997. 2. The Plaintiff brings these proceedings against the Crown in the tort of negligence. Shortly stated, his case is that, as a result of the erroneous record, he has, over the years, lost three jobs and suffered injury to his feelings. 3. Negligence on the part of the Police is admitted by the Defendant. It is also admitted that one of the three jobs was lost as a result of such negligence. The rest of the claim is denied. 4. In light of the admission of negligence, it is not essential for me to deal with how the error came to be made. But, in light of the natural public concern over what has happened, I consider it desirable to do so. 5. From the material before me, this is how the error came about : On December 15, 1978, the Plaintiff was arrested by the Police. On December 17, 1978, he was released without being charged with, let alone convicted of, any offence. However, on December 16, 1978, between his arrest and his release, the Police mixed up his particulars, which had come into their hands as a result of his arrest, with those of another man. That other man, whose name is Fung, had been convicted on December 16, 1978, of assault occasioning actal bodily harm. As a result of the mix-up, the conviction was entered against the name of the innocent Plaintiff instead of that of the guilty Mr Fung. 6. As I have said, the error only came to light in May 1987. What happened was that an application on the part of the Plaintiff for a watchman's permit had run into difficulty as a result of the' erroneous record. He was invited to, and attended, an interview at the Licensing Office at Police Headquarters on May 26, 1987. There, after a considerable measure of initial confusion and talking to cross-purposes, the Plaintiff learned of the erroneous record; and it began to dawn upon the Police that a terrible mistake may have been made. 7. The Police must have satisfied themselves fairly quickly that the record was indeed erroneous. I say so because within a few days of the interview the Plaintiff was issued with a watchman's permit. 8. I turn now to the two jobs which the Plaintiff alleges, and the Defendant denies, were lost as a result of the erroneous record negligently made. These, as pleaded by the Plaintiff, are: one as the administration manager of a company based in Macau by the name of Yau Heng construction and Investment Company Limited; and one as the sales manager of a Hong Kong firm by the name of Tak Kam Engineering Company. 9. In seeking to prove that he lost those two jobs as a result of the erroneous record, the Plaintiff relies in the case of each- job on two matters. 10. The first matter is what he says had been said to him when he was asked to resign by Yau Heng in early 1980, and when he was dismissed by Tak Kam towards the end of that year. The Plaintiff said in the witness-box that on each occasion he was in effect accused of having fallen foul of the criminal law and of having suppressed that fact from his employer. 11. The second matter is constituted by the inferences which Mr Merry, on behalf of the Plaintiff submits should be drawn from the broad circumstances which emerge from the Plaintiff's evidence, if accepted. In the case of each job, the Plaintiff's evidence is to the effect that he was doing well in a good position when he was suddenly asked to resign in one instance and dismissed in the other. In the case of Yau Heng, his evidence is to the effect that the company had sought banking licences and that, as a result, senior employees were subjected to some sort of vetting. In the case of Tak Kam, his evidence is to the effect that the firm sold, among other things, bullet-proof-vests, and that the testing of those vests involved the use of Police facilities. Such use involved, in turn, the vetting of key members of the firm's staff, including himself. The argument is that in each instance the vetting had probably led to the erroneous record being drawn to the Plaintiff's employer's attention, and that, as a result, his resignation was demanded in one instance, and he was dismissed in the other. 12. Those then are the two matters relied upon by the Plaintiff : what he says was said to him; and even ignoring that, the inferences which it is submitted on his behalf are to be drawn from the broad circumstances which emerge from his evidence. 13. I will come straight to the point. Having seen and heard him in the witness-box, I formed a very poor impression of the Plaintiff's reliability. I do not accept any of his testimony upon which the two matters relied upon depends. Apart from one former colleague of his from his Yau Heng days, whose evidence did not carry the Plaintiff's case any further, the Plaintiff did not call anyone from Yau Heng or Tak Kam. In the result, I am left with no reliable evidence as to the terms of his employment with, how well or badly he did in the service of, or how he came to leave, either concern. 14. Even if I accepted the Plaintiff's evidence on the two matters in question, which I do not, I would not find that he lost either job as a result of the erroneous record. As to the first matter, what he says was said to him when Yau Heng demanded his resignation and when Tak Kam dismissed him is hearsay. It is not evidence as against the Defendant. As to the second matter, I do not think that even if the broad circumstances were as alleged by the Plaintiff, they would support the inferences urged on his behalf. 15. Because I have no reliable evidence as to the terms on which he was employed by Yau Heng or Tak.Kam, or as to how well or badly he was serving either, I would not have felt able to award the Plaintiff very substantial damages in respect of the loss of either job even if I found that he had lost the same as a result of the erroneous record. "Doing the best I could" and practically "plucking a figure out of the air", as it is sometimes put, I would have been disposed to make an award of $5,000.00 in respect of each of those two jobs lost as a result of the erroneous conviction. In the result, however, as I have indicated, and I do not find that either was so lost. 16. This brings me to the third job which the Plaintiff says that he lost as a result of the erroneous record. In the case of this job, it is plain that he lost it as a result of the erroneous record. The Defendant admitted as much. This job was as a security guard with Guardforce Ltd, a well-known security company. The Plaintiff joined Guardforce in November 1983. They were able to take him on as a security guard without his holding a watchman's permit. But they could not, and would not, continue to so employ him unless he promptly applied for, and obtained, such a permit. He duly applied for one; but his application was turned down. It was turned down because the Police wrongly believed, as a result of the erroneous record, that he had a criminal record. As a result of his failure to obtain a permit, the Plaintiff was dismissed from his position with Guardforce with effect from December 24, 1983. 17. Together with over-time pay, the Plaintiff used to earn $1,570.00 per month from his job with Guardforce. For Guardforce he worked at night. During the day he had another job. His day-time job was with a firm trading under the style of Kam Shing Co. Kam Shing operated a petrol station in Aberdeen Harbour serving the fishing vessels operating from there. His job with Kam Shing was, to use his expression, that of "counter attendant". He was with Kam Shing from March 16, 1983, to May 1, 1985, earing $1,800.00 per month. The iob with Kam Shinq was, according to him, one at which he was able to catch a good deal of sleep. 18. It emerged from the cross-examination by Mr Saw, for the Defendant, of a Mr Lai, Guardforce's personnel and training manager called by the Plaintiff, that Guardforce had a policy - written into their contracts with their employees - that their employees were not permitted to work other jobs, and that they would be dismissed if they did. This apart, it is no more than commonsense that there was a limit to how long the Plaintiff could go on working close to 24 hours a day, 6 days a week, as he was doing with Guardforce and Kam Shing. 19. In the course of the argument, I suggested to both counsel that the proper approach was this: One should not debar a plaintiff from recovering in respect to the loss of a job merely because he could, and would, have been summarily dismissed from that job if his employer had known that he was working another job. However, that fact constituted a hazard which had to be taken into account: and the way in which it was to be taken into account was to reduce the multiplier in arriving at the award for the loss of the job. As I understood them, both counsel were in agreement with that approach, although Mr Saw contended that the claim in the present case was so surrounded by uncertainty that no award, or at most a nominal award of say one dollar, should be made in respect of the loss of the job here in question. That, in my judgement, is going too far, It is not disputed that the Plaintiff was owed a duty. Still less is it suggested that the duty was not breached. The Plaintiff has, in my judgment, suffered loss which is real and capable, although not easy, of quantification. Giving the matter the best consideration I can, I arrive at an award of $5.000.00, representing something slightly in excess of three month's wages with Guardforce, to compensate him for the loss of the job with them. 20. This leaves damages for injured feelings. Mr Saw conceded that such damages are recoverable in cases such as this one. However, he takes here the same point he took in regard to the loss of the Guardforce job, namely, that the circumstances surrounding the claim are so uncertain that no award, or no more than a nominal award of say one dollar, should be made. Once again, I reject the argument. 21. Another point of Mr Saw's which I reject is this one : He says that the Plaintiff has obviously advanced a bogus claim. The proper view for me to take, urges Mr Saw, is that from the outset, or almost the outset, the predominant thing in the Plaintiff's mind was how to take advantage of the erroneous record to bring an inflated claim, rather than any feeling of outrage, distress or anything of that kind. It is true that I have awarded nothing to the Plaintiff in respect of his claim in regard to Yau Heng or Tak Kam, and that his claim in respect of the former was pitched as high as a little over 4 million. However, despite the skill with which Mr Saw developed the point, I reject it. The evidence does not warrant so serious a finding against the Plaintiff. So the point fails on the facts. Moreover, as a matter of law, my duty to see that a party receives his due equals my duty, to see that he does not receive more than it. 22. Mr Merry accepts that awards in respect of injured feelings should be-to use the expression used by Mr Justice Peter Pain in Archer v. Brown [1985] 1 Q.B. 401 at p. 426F - "moderate". Of course, what is moderate in any given case must depend on the circumstances of that case, although - as a matter of general approach - the need for moderation guides the court in every case. 23. Here the claim is pitched very high. Although he declined to bind his client to any particular limit, Mr Merry suggested a range from $10,000,00 to $150,000.00 in the present case. 24. The extraordinary thing in this case is that until he came to court and heard it from me, the Plaintiff's father flatly refused to believe that the record was erroneous. However, so transparently honest a figure did the father cut in the witness- box that Mr Saw declined to challenge his veracity when he professed his belief, until I disabused him of it, that it was impossible that the authorities would ever have recorded a conviction in error. 25. The Plaintiff's wife, from whom he is now estranged, also gave evidence as to her belief in the accuracy of the record. According to her, she believed that the record was accurate from the time when she learned of it in mid-1987 until some time last year. She was cross-examined as to the truth or that. Having seen and heard her in the witness-box, I formed an unfavouarble view of her reliability; and I reject her evidence as to her belief. 26. In the event, I do not regard so extraordinary a belief as that held by the father and asserted by the wife as foreseeable. I do not think, therefore, that any contribution that any such belief might have made to the injury to the Plaintiff's feelings can be taken into account. As to the attitude of the Plaintiff's father, I would add this: It seems that the break-up of the Plaintiff's marriage, which I am unable on the evidence to attribute to the erroneous record, led to the child of the marriage, a young daughter, being left in the care of the Plaintiff's parents with little support, financial or otherwise from the Plaintiff or his wife. This, on the father's evidence, which I accept, added to the strain on the relations between the Plaintiff and his parents. It would be difficult, therefore, to isolate and assess the strain placed on such relations by the father's belief that the record was accurate, or by any such belief on the part of the Plaintiff's mother. 27. Be all of this as it may, I am satisfied that the Plaintiff did suffer considerable injury to his feelings. The experience at the Licensing office on May 26, 1987, must have been a very distressing one for him. It is true that he must have received some comfort from the officers attitude towards the end of that episode that a mistake may well have been made and that the matter would be straightened out if it had. Some further comfort must have come when a watchman's permit was issued to him within a few days. Nevertheless, a written apology and acknowledgment of the inaccuracy of the record was not forthcoming until the letter written to the Plaintiff on behalf of the Commmissioner of Police on December 18, 1987, half a year after the interview at the Licensing Office. 28. Taking the whole of the circumstances into account, the award at which I arrive at in respect of the injury to the Plaintiff's feelings is one of $25,000.00. 29. The total award to the Plaintiff is therefore $3.0,000.00, made up of a sum of $5,000.00 to compensate him for the loss of his job with Guardforce and $25,000.00 to compensate him for the injury to his feelings. 30. Before concluding this judgment, I wish to express my expectation, which I am sure is shared by the general public, that everything practicable will be done, if it has no t already been done, to review the accuracy of the criminal records maintained by the Police, and to improve procedures so as to prevent the recurrence of any error such as the one with which this case is concerned. 31. I will now hear counsel on the question of interest and costs. [submissions thereon] 32. As far as interest is concerned, counsel felt that given time they would probably be able to reach agreement. I make an order, therefore, that the question of interest be adjourned, and that the parties be at liberty to restore this case for the purposes of arguing the question of interest, and that they be equally at liberty to communicate to the court, by way of a joint letter from them, any agreement reached in regard to interest. If such an agreement is communciated to the court, an order in regard to interest will be made in accordance with such agreement unless I see some difficulty; in which case I will invite counsel to appear before me for the matter to be dealt with then. I make that caveat, not because I anticipate any difficulty, but because I consider it a wise precaution. 33. This still leaves the question of costs to be determined. This case was transferred to this court from the District Court where it was commenced by the Plaintiff. The transfer was made pursuant to the powers contained in section 39(2) of the District Court Ordinance, Cap. 336, which sub-section reads:-
34. In the course of the proceedings before him, the learned District Judge, as a result of the way the Plaintiff's claim was formulated and presented, expressed doubts as to whether the District Court's jurisdiction would enable it to award all that would be recoverable if the Plaintiff were right in the way in which he put forward his claim in regard to damages. These expressions of doubt by the learned District Judge resulted in an application by the Plaintiff that the matter be transferred to this court. But, as was recognised by counsel even after launching the application and before it was determined, it was not really a matter for a Plaintiff to apply for transfer. 35. The learned District Judge also correctly recognised that it was a matter to be dealt with of his own motion if at all. Quite rightly in my judgment, he treated the Plaintiff's summons seeking transfer as an invitation to him to exericse his powers under the sub-section to which I have made reference. 36. In ordering a transfer, he said that he considered such a course appropriate under, as he put it, "both limbs" of the sub-section. This must mean that not only did he proceed on the basis that the jurisdiction of the District Court was insufficient to award all that might have been found to be due but also that, having regard to the nature of the claim and relief sought, the proceedings might be more conveniently heard and determined in the High Court. It seems to me that if the learned District Judge took that latter view as well, he would probably have ordered a transfer whether or not the Plaintiff applied. 37. This case is at least highly unusual. It is fervently to be hoped that it is in fact unique. 38. In all the circumstances, the learned District Judge would not have been wrong, in my judgment, in transferring it solely on what I suppose he would describe as the "second limb" of the sub-section. In those circumstances, it would be right, in my judgment; that the Plaintiff be awarded costs in this court on this court's scale rather than on the District Court's scale; and I so award him costs in this court. As far as the proceedings in the District Court which have proved abortive are concerned, I have come to the conclusion that the fairest course would be to make no order as to costs. In arriving at the order which I have made as to costs, I have taken into account everything urged by both counsel, to whom I am indebted in regard to these supplementary matters as well as to the case as a whole. 39. I should mention that there was drawn to my attention a letter dated September 16, 1988, from the Defendant to the Plaintiff's solicitors. The letter is in the "Calderbank form"; and, as coincidence would have it, it offers precisely the sum which in the result I have awarded, namely, $30,000.00. This sum was offered in full and final settlement of the Plaintiff's claim; but it was left open only until mid-day on that following day, the 17th. 40. As it was open to the Defendant to make a payment into court, I do not think that he is entitled to rely on the letter in the Calderbank form. In fairness to Mr Saw who appeared before me. I think I should make two observations : First of all the decision to write a letter in the Calderbank form as opposed to making a payment into court was not in his hands. The case was being dealt with by another counsel at the time. Mr Saw only came into this case ten days before it was opened before, me. Secondly, I should say that Mr Saw very properly did not seek to rely on the letter to defeat the Plaintiff's claim for costs after the offer. He only urged me to take it into account as part of the background. I have given this letter due consideration; and having done so, I have arrived at the order as to costs which I have announced, which is that the Plaintiff should have the costs in this court on this court's scale and that there should be no order as to costs in the District Court.
Representation: Mr M. Merry instructed by Messrs Boase and Cohen for the Plaintiff Mr D.G. Saw, Senior Crown counsel, for the Defendant |
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