Tam Ping Lam and Others v. Law Hung

HCA001181/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Mayo in Chambers

Date of Judgment: 2nd August, 1973.

Mr. Francis Eddis instructed by Messrs. Edmund Cheung & Co., Solicitors for the Plaintiffs.

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ASSESSMENT OF DAMAGES

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1. I am required to assess damages in this case by virtue of the interlocutory judgment which was entered on the 19th June 1973. All of the relevant facts surrounding this case are summarized in the Statement of Claim which is endorsed on the Writ of Summons. Although there is no specific reference to malicious prosecution in the Statement of Claim, it is quite obvious from the facts which are recited that the damages which are being claimed are for this tort. The Defendant entered an appearance to these proceedings but he did not file a Defence and it was as a result of this that interlocutory judgment was entered against him. I do not think that it would be correct for me to consider in detail whether all of the essential ingredients of this tort are present in this case. The fact that the interlocutory judgment has been entered against the Defendant is sufficient to justify me in assessing the damages.

2. The facts in this case are somewhat unusual. The Plaintiffs and the Defendant were partners in a business venture and it would appear that some dispute arose out of the partnership affairs, and there was an argument on the 27th February 1973 over moneys which were paid by the Defendant to the Plaintiffs in consideration of the severance of his interest in the partnership. Shortly after this the 1st named Plaintiff held a wedding party to celebrate the marriage of the 3rd named Plaintiff to his daughter. Apparently the Defendant was aware of this wedding ceremony and purely out of malice made a complaint to the police that he had been robbed by the Plaintiffs. As a result of the statement made by the Defendant to the police, a party of police officers attended at the wedding reception and first arrested the 2nd named Plaintiff. Later in the evening a second party of police officers attended at the reception and arrested the 1st named Plaintiff who was the host of the party and the 3rd named Plaintiff who was the bridegroom. Apparently this second arrest took place at the conclusion of the wedding reception when the 1st named Plaintiff was shaking hands with all of the guests on their departure. Subsequent to this the Plaintiffs were taken to the Mong Kok Police Station accompanied by Madam Tam Yat King, the bride, where they were all subjected to questioning by the police. The 3rd named Plaintiff was released on police bail the next morning. The other two Plaintiffs were remanded in police custody and did not obtain bail until 3 days after their arrests. They were arrested on the 5th March and were released on the 8th of March. The 1st and 2nd named Plaintiffs were charged with robbery on 7th March 1973. The hearing of the case in the Kowloon District Court was on the 24th April 1973. At an early stage in the proceedings, it became obvious to the trial judge that there was no foundation to the charges and accordingly the 1st and 2nd named Plaintiffs were acquitted. Having regard to the background of this case it does seem to be surprising to me that the police did proceed with this prosecution.

3. In proving damages before me Mr. Francis Eddis, Counsel for the Plaintiffs, produced three police witnesses whose evidence was intended to refer to the circumstances surrounding the arrests of the Plaintiffs and what transpired after the arrests at the Mong Kok Police Station. Mr. Eddis submitted that this evidence would be of assistance to me as it indicated the aggravating circumstances of the matter. I fear that the evidence given by the police officers who appeared before me was not of great assistance as two police officers, Inspectors Lau and Lam and Detective Constable 6751 who apparently assumed important roles during the arrests and inquiries did not appear to give evidence. I understood from Mr. Eddis that he and his instructing Solicitor had encountered difficulty with the Commissioner of Police in ascertaining which police officers should be subpoened to give evidence. I do not, however, think that this is a matter of great importance as I am satisfied from the uncontradicted evidence that the overall circumstances of this case were serious. Indeed, it would require an exercise of the imagination to think of a worse case of malicious prosecution. Having briefly dealt with the facts in this case, I will now attempt to deal with the question of the amount of damages which should be awarded. Unfortunately there are very few cases available for guidance to me. None of the case law I could find on the subject of malicious prosecution dealt with the question of the quantum of damages which should be awarded or give any guidance on how such damages should be assessed. Mr. Eddis invited me to consider damages for malicious prosecution in a similar way to damages for libel. Such an approach seems to be reasonable. Such an analogy was drawn in the case of Wiffen v. Bailey ^(1). The main justification for such an approach is that both torts cover the position where there has been an affront to the character of the Plaintiff. Mr. Eddis then cited to me the case of Tsui Man Yeuk v. Ling Ai Ming and others ^(2). In that case Scholes J. awarded Madam Tsui Man Yeuk $30,000 as general damages in respect of a libel which was published in the defendants newspaper. The article in question contained a number of unpleasant implications including one that the Plaintiff was the proprietress of a bawdy house. I would observe at this juncture that three different chinese newspapers carried reports of the Plaintiffs' arrests. One of these reports was exhibited to me and it is clear from the report that the publicity which attended this prosecution was of a highly unpleasant nature and must have discomforted the Plaintiffs. Mr. Eddis did not cite any other cases to me. I have attempted myself to undertake research into the quantum of damages which are payable in defamation cases. Although I have said that an analogy can be drawn between defamation and malicious prosecution cases, I am doubtful of the extent to which reliance can be placed on damages which have been awarded in defamation cases as each case depends so largely on its particular circumstances. I am satisfied that the present case is a serious case and that I should award the Plaintiffs substantial damages. I do, however, consider that I must take into consideration the financial circumstances of the parties. All three Plaintiffs attended at the hearing and it was my impression that all of them could be said to occupy a fairly humble station in the community. I do not have any details of their financial circumstances. It would seem, however, that any moneys which are awarded to them will make a considerable impression upon their financial position. I asked Mr. Eddis to let me have any information available to him concerning the financial circumstances of the Defendant. It appeared from the evidence which was used in the criminal proceedings in the District Court that the Defendant is a poultry farmer and enjoys an income of between $2,000 to $3,000 per month. Although this is a serious case, I do think that the penalty which is imposed against the Defendant should not be excessive. Bearing in mind all relevant factors, I consider that the appropriate sum of damages to be awarded against the Defendant is $25,000.00. The question, then, arises as to how these damages should be apportioned between the three Plaintiffs. Mr. Eddis informed me that the Plaintiffs had agreed amongst themselves that a fair proportion would be for the 1st and 3rd named Plaintiffs to both receive double the amount of the 2nd named Plaintiff. I consider this proposal to be reasonable as the 1st and 3rd named Plaintiffs were the host and bridegroom respectively at the wedding reception which was disrupted as a result of the malicious prosecution. Although the 3rd named Plaintiff was released shortly after his arrest it must have been particularly humiliating for him to be arrested at his wedding reception and to spend his first night after the wedding with his new bride in police custody. As to the 2nd name Plaintiff, although he is a clansman of the 1st named Plaintiff he would not have been so directly humiliated by the outrage. For the reasons I have given I award the 1st named Plaintiff $10,000, the 2nd named Plaintiff $5,000 and the 3rd named Plaintiff $10,000. Costs are awarded to the Plaintiffs. There will be a certificate for Counsel.

4. Dated this 2^nd day of August, 1973.

Representation:

Mr. Francis Eddis instructed by Messrs. Edmund Cheung & Co., Solicitors for the Plaintiffs.

(1) (1915) 1 K.B. 600

(2) H.K.L.R. 1965 page 7.