Leung Chun Fu v. Commissioner of Police

HCA 395/2023

[2025] HKCFI 2675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 395 OF 2023

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BETWEEN

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D E C I S I O N

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Introduction

1.This is the Plaintiff’s appeal against the decision of Master Matthew Leung made on 13 November 2023, ordering inter alia that the Plaintiff’s Statement of Claim (“SoC”)  indorsed on the Writ of Summons filed on 15 March 2023 be struck out on the ground that the SoC disclosed no reasonable cause of action. 

2.The Plaintiff’s claim is basically that, by reason of the Defendant’s maladministration (including inaction and/or delay)  in handling the reports submitted by the Plaintiff to the Hong Kong Police Force (“HKPF”)  and the Complaints Against Police Office (“CAPO”), the Plaintiff had suffered loss and damages. 

3.The Plaintiff claims against the Defendant for an unliquidated amount consists of “General Damage for the hurt and distress suffered by the Plaintiff”, “Loss of Earnings counting from the date of the Plaintiff’s report to CAPO”, and “Future Loss of Earnings”. 

4.By a summons dated 21 April 2023 (“Strike Out Summons”), the Defendant applied to strike out the SoC pursuant to O.18, r.19 of the Rules of the High Court, Cap.4A (“RHC”), on the grounds that it (a)  discloses no reasonable cause of action; (b)  is scandalous, frivolous or vexatious; and/or (c)  is otherwise an abuse of the process of the Court, and to dismiss the action. 

5.On 13 November 2023, after hearing the parties, Master Leung struck out the SoC on the ground that it disclosed no reasonable cause of action and dismissed the action. 

The Plaintiff’s claim

6.Paragraph 1 of the SoC states that the Plaintiff has submitted several reports to the HKPF and CAPO from 2020 to 2022 concerning the Plaintiff’s allegations that he has been suffering from various attacks and disturbances. 

7.Paragraph 2 of the SoC states that “there are concerns on Defendant’s Maladministration (including Inaction and/or Delay)  on handling those Reports”. 

8.From paragraph 3 to 17 the Plaintiff set out the “e-reports” and emails submitted by him to the HKPF, CAPO and the Chief Secretary for Administration, and their respective replies to him.  The subject matters of the “e-reports” and emails concern the alleged “attacks and disturbances” on the Plaintiff by others and the investigations by the police of them. 

9.Paragraph 18 pleads basically that, by reason of the Defendant’s said maladministration, the Plaintiff suffered loss and damages, and the “Particulars” given under the paragraph are those heads of damages mentioned in Paragraph 3 above herein. 

10.Paragraph 19 states that “The only claim the Plaintiff has made against you is for an unliquidated amount of money”. 

11.The whole SoC consists of the above mentioned 19 paragraphs. 

Discussion

12.The SoC did not specify the course of action of the Plaintiff’s claims.  In his skeleton submission filed for this appeal, the Plaintiff submitted that his claims are based on negligence.  However, there has been no particulars of negligence given in the SoC or in his skeleton submission. 

13.Mr Cheung, Government Counsel for the Defendant, submitted that the police do not generally owe the victims or witnesses involved in criminal investigative work any civil duty of care.  In Liu Mei Huei v Government of the HKSAR [2016] 2 HKLRD 249, the Court of Appeal had the following to say:

“62. As far as the broad principles are concerned, it is correct for the plaintiff to say that the Police Force and public servants might have to be liable in tort under the common law for their acts of negligence. However, just because the Police Force or public servants had been negligent in performing their statutory duties is not sufficient to render them liable for negligence under the common law. It is also necessary for the claimant to show that the circumstances of the case were such that they owed him/her a duty of care under the common law…He must satisfy the three-part test laid down in Caparo Industries Plc v Dickman [1990] 2 AC 605: (1)  The harm the claimant suffered was a reasonably foreseeable consequence of the defendant’s negligence; (2)  There existed between the claimant and the defendant a relation of sufficient proximity; and (3)  It was fair, just and reasonable to impose the duty of care the claimant claims to have existed on the defendant.

63. Besides, in cases where the police are accused of having been negligent in the investigation of crimes and the apprehension of a criminal, whether or not they should owe the victim a duty of care also involves public policy considerations. In Hill v Chief Constable of West Yorkshire, the House of Lords held that the police owed the victim who was killed by a serial killer no duty of care not only because she was only a member of public who had no relationship of proximity with the police but also because of public policy considerations. In p.63, the House of Lords opined that once a duty of care had been imposed, when the police were executing their duties, they might become defensive to protect themselves in order to avoid legal liabilities. This is not in the public interest. Moreover, once the police are dragged into litigation, they will have to divert the time and resources that should have been used on performing their duties to deal with the litigation. Further, in this kind of litigation, the court will have to examine some of the internal police policy decisions, but it is not appropriate for the court to judge whether such policy decisions are reasonable or not. The House of Lords therefore held that the police should be exempted from being held liable for civil negligence in respect of the acts they performed for the purpose of investigating and suppressing crimes on the ground of public policy. This principle will hereinafter in this judgment be referred to as the core principle of Hill’s case.

64. In Brooks v Commissioner of Police for the Metropolis, the House of Lords examined the legal developments that had taken place since Hill, including some decisions of the European Court of Human Rights. Although the five members of the House of Lords did not endorse the full breadth of what Hill had laid down, they all agreed that the core principle of Hill’s case had remained unchallenged in the UK domestic jurisprudence and in European jurisprudence. They held that as a matter of public policy the police generally owed no duty of care to victims or witnesses in respect of their activities when investigating crimes and suppressing them. Admittedly, the House of Lords did not rule out that in some exceptional circumstances, the police might owe them a duty of care.

65. Later, in Smith v Chief Constable of Sussex Police, the House of Lords once again examined the core principle of Hill’s case. Four of the members (with Lord Bingham dissenting)  endorsed the principle of the judgment in Brooks and reiterated that when deciding whether the police had to bear a duty of care, public policy was an important consideration. The majority decision of the case affirmed the core principle of Hill. It held that considering the question in the light of public policy and the collective interest of the society, no duty of care should be imposed on the police in their activities to investigate and suppress crimes for the reason that to do so would encourage defensive policing and divert manpower and resources from their function of suppressing crimes and apprehending criminals. The four members did not endorse the liability principle Lord Bingham propounded. However, they did not deny that beyond investigating and suppressing crimes (that is, outside the scope defined in the core principle of Hill’s case), the police might have to bear a duty of care while pointing out that it would only be in very exceptional circumstances…

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70. In our view, the principles in the decisions of Brooks and Smith and the core principle of Hill are applicable parts of the common law of Hong Kong. In view of the public policy consideration referred to in both cases, the police do not generally owe the victims or witnesses involved in criminal investigative work any civil duty of care.” (Underline added)

14.These principles represent the law of negligent investigation in Hong Kong. 

15.The Plaintiff submitted that there exists sufficient proximity between him and the police in that there were numerous communications between them.  As observed by Master Leung, the Plaintiff has misunderstood the meaning of sufficient proximity.  It is not measured by the number or frequency of communications between the parties but whether the negligence of one party would lead to a reasonably foreseeable consequence suffered by another. 

16.As disclosed from paragraphs 3 to 17 of the SoC, the contents of the Plaintiff’s emails and “e-reports” focused primarily on the delay on the part of the police on the investigation of the Plaintiff’s allegations of his being attacked or disturbed.  Apart from the complaint of delay, including the delay of updating the Plaintiff of the progress of the investigations, there is no mention of any act of negligence on the part of the police.  There is also no mention of how the alleged delays related to his alleged sufferings. 

17.In my view, what was pleaded in the SoC could not be sufficient in any way to sustain a course of action of negligence on the part of the Defendant.  There can be no duty of care in law established from the pleaded facts in the SoC.  No particulars of negligence can be identified. 

18.Although it is not relied on by the Plaintiff, Mr Cheung also made submission on the course of action of misfeasance in public office.  As submitted by Mr Cheung, an abuse of power in bad faith is a necessary element for this course of action.  In the SoC, the Plaintiff did not allege bad faith on the part of the handling police officers, nor did he allege that they had dishonestly abused their powers. 

19.Madam Justice Au-Yeung summarised the principles on striking out applications under O.18, r.19 RHC in Thapa Kamala v Tong Ming-Kay & Ors[1]as follows[2]:

“24. It is only in plain and obvious cases that the Court would consider striking out a claim. There should be no trial upon affidavit. Disputed facts are taken in favour of the party whose pleading is sought to be struck out. The claim under attack must be obviously unsustainable, the pleadings must be unarguably bad and it must be impossible, not improbable, for the claim to succeed. Even if a case only has a slim chance of success, this is not sufficient for striking out. See Hong Kong Civil Procedure 2021, Vol 1, §18/19/4.

25. 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. Where an application to strike out pleadings involves a prolonged and serious argument, the court should as a rule decline to proceed with the argument unless, in the rarest of cases, he not only harbours doubts about the soundness of the pleading and considers it likely that he may reach the conclusion that the pleading should be struck out, in that the ultimate issue is quite simple, but is also satisfied that striking out the pleading would obviate the necessity for a trial or will so substantially cut down or simplify the trial as to make the risk of proceeding with the hearing sufficiently worthwhile.” See Hong Kong Civil Procedure 2021, Vol 1, §18/19/4.

26. A reasonable cause of action means one with some chance of success when only the allegations in the pleading are considered: Hong Kong Civil Procedure 2021, Vol 1, §18/19/5. No evidence is admissible on an application for strike-out on the ground that the statement of claim discloses no reasonable cause of action: Order 18, rule 19(1)(a).

27. A proceeding is frivolous when it is not capable of reasoned argument, without foundation or cannot possibly succeed. Where the claim is on its face so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of process. A proceeding is vexatious when it is oppressive and/or lacks bona fides. See Yifung Properties Ltd v Manchester Securities Corp, HCA 1341 &1359/2014, 19 October 2015, §§12-14, Au-Yeung J.

28.  Abuse of process connotes that the process of the court must be used bona fide and properly and must not be abused.  The court will summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.  See Hong Kong Civil Procedure 2021, Vol 1, §18/19/9.”

20.In my view, this is a plain and obvious case that this court should exercise its jurisdiction to strike out the SoC for it discloses no reasonable cause of action. 

Disposition

21.For the above reasons, the Plaintiff’s appeal is dismissed.  The orders of Master Leung do stand.  

22.Costs should follow the event.  The Costs of the Defendant in this appeal shall be borne by the Plaintiff summarily assessed at $9,000.  This is a costs order nisi and will become absolute unless any party applies to vary within 14 days. 

Plaintiff Acting in person

Mr CHEUNG Siu Fung, Gabriel, Government counsel of Department of Justice for the Defendant