Li Kwok Chi v. Chung Shing Hing

HCA001125/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1125 OF 1970.

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CORAM: Briggs J. in Court

Date of Judgment: 3rd March, 1971.

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JUDGMENT

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1. This is an action for damages for malicious prosecution. It arises out of an incident which resulted in the Plaintiff being tried in the Magistrate's Court for the offence of larceny by a servant on February 18th, 1970 and subsequent days. Of that offence he was acquitted on May 9th, 1970. In January, 1970 the Plaintiff and the Defendant were fellow employees of the Highball Restaurant which is a restaurant and night club situated in Nathan Road, Kowloon. The two parties were both cashiers: the Defendant being the elder and more senior of the two.

2. They worked together in an office, the accounts office, which is on the 5th floor of the building. The court visited the premises during the trial of the action. The accounts office is very small. At one end there is a window overlooking Nathan Road and the public garden opposite. Opposite the window at that time there was a door leading into the general office from which another door leads into a corridor, and to the lifts and other exits. Above the door of the Accounts office is a cupboard which opens out not into the Accounts office, but into the General office. This cupboard has sliding doors. It is about 8 or 9 feet from the floor of the General office and large enough to hold a person.

3. The Accounts office had two metal desks in the Centre. They are of a very common pattern and were back to back. They each contain drawers which have locks. The Plaintiff's desk looked towards the window, the Defendant occupied the other desk. He, the Defendant, had his back to the window and faced the Plaintiff.

4. There were three safes in the office, one was in charge of the Plaintiff, one of the Defendant and the third was in charge of the Shroff of the Restaurant.

5. I was not given a very clear picture of the duties of the parties. But it was not denied that the Defendant had taught the Plaintiff the rudiments of his job and that the Plaintiff was in a sense his assistant. It appears that at any one time large sums of money would be in the possession of the parties. These sums might be retained at least over night in the drawers of the desks of the parties before being locked away in the safes.

6. The Defendant said that he had had occasion to suspect that money was being pilfered from his desk. He therefore devised a trap to catch the thief.

7. On January 24th, 1970 he took home with him all the money of the Restaurant which he had in his possession at that time. It came to some $4,000. At his home he made a list of all the numbers of the notes. Some notes were in United States currency and some were Hong Kong notes. He returned the notes to his drawer later on January 24th, 1970. He had previously bored two spy holes in the side of the cupboard in the General office. And on the night of January 24th at about midnight he climbed into the cupboard and concealed himself. By looking through the holes he had a clear view of his own desk, with the window behind it. He could not however see the desk of the Plaintiff which was immediately below him because of the angle of vision.

8. The Defendant also arranged that his wife and a male cousin who were privy to the setting of this trap should conceal themselves in a room next door to the Accounts Office which was the manager's office. By banging on the wall of the cupboard he could attract their attention and it was agreed that this would be the signal if he saw someone attempting to rifle his desk.

9. At about 1.15 a.m. the Plaintiff entered the Accounts office. According to the Defendant he saw him open one of the drawers of his, the Defendant's, desk and remove some money. The Plaintiff then went round to his own desk when he was lost to the view of the Defendant. The Defendant said the Plaintiff was only there for a few minutes. He left in the ordinary way.

10. Thereupon the Defendant jumped down from the cupboard to the floor. In doing this he injured his back severely.

11. He did not use the pre-arranged signal to his wife and cousin. Though his back was hurting him he managed to get to the manager's office and gave the alarm. He then and there said that he had seen the Plaintiff actually stealing. The wife of the Defendant and the cousin tried to follow the Plaintiff without success.

12. The Plaintiff admits he was in the Accounts office at the time but denies and has always denied that he stole any money. He said that when he left the office that evening he had not completed the day's work. He had an appointment after which he returned to the office to complete his task. He admitted he was only in the office on this occasion for a short time: a matter of minutes.

13. His case is that he was framed by the Defendant and that the whole of the story of the Defendant is a base concoction. Both the Plaintiff and the Defendant gave their account of what actually took place in the Accounts office in very great detail. I do not think that any useful purpose would be served by repeating that detail here. It suffices to say that these accounts tally with the exception of the actual opening of the drawer of the Defendant's desk and the removal of the money. This the Defendant declared to be the truth: this the Plaintiff said was utterly untrue.

14. The Plaintiff reported the matter to the Police through his wife on that same morning. Lam Chun Wah a police constable arrived at the Restaurant to make investigations.

15. The notes in the drawer of the Defendant were checked against the numbers which had been taken down the previous day by the Defendant. It was found that three notes were missing. This was in the presence of the constable.

16. The Defendant or some one at the Restaurant informed the Constable of the name and address of the Plaintiff who was of course suspected of theft.

17. The constable told the court that he did not accept the complaint of the Defendant and his wife as being true, he was investigating the matter and decided to interview the Plaintiff.

18. After the constable left there was a further check and it was found that there were 3 $10 notes of U.S. currency missing. These were in addition to the three notes previously discovered to be missing. So there were 6 notes missing in all. 3 10 dollar notes and 1 5 dollar note in U.S. currency and two $100 notes in Hong Kong currency.

19. After checking the notes at the Restaurant the Defendant went to the Queen Elizabeth Hospital where he was X-rayed. The Hospital authorities suggested that he should be hospitalised, but he refused and returned home. He was still in pain and told the court that this continued for a considerable time.

20. Late that morning at about 9 a.m. the constable took the Plaintiff to the police station for questioning. He regarded him as a suspect. He telephoned to the Defendant and he and his wife also came to the police station where the Defendant told the police that a further three notes were found to be missing.

21. Constable Lam together with the Defendant and the Plaintiff, accompanied by a police party, went to the Restaurant on the same day at about 5 p.m. The constable was one of a party of investigating police under the authority of Inspector Isa who was in charge of the investigation.

22. An examination was undertaken not of the Defendant's drawer: but of the Plaintiff's drawer. In this were discovered three notes the numbers of which were on the Defendant's list. They were three $10 notes of United States currency.

23. The fact that these notes were found in the Plaintiff's desk convinced the Constable that the complaint made by the Defendant was reliable. He told the court that he was present when the notes were discovered being outside the door of the Accounts office, in the General office, when this took place. He said that the Plaintiff had handed his keys to the police when he was at the Police Station. The key was given to the Plaintiff at the office and the Plaintiff opened the drawer, his desk drawer. Inside was found the three notes: the discovery being made by another policeman, who, incidentally was not called as a witness in these proceedings. Constable Lam there and then arrested the Plaintiff and cautioned him.

24. The Plaintiff denied this. He said that everything that the constable had said in his evidence was a pack of lies. Not only had he been framed by the Defendant but in addition the police assisted in that frame up.

25. He said he the Plaintiff was present in the Accounts office and the constable and several other policemen were also there when the drawer of his desk was opened.

26. When cross-examined the Plaintiff did not admit that notes had been found in his drawer which bore numbers on the lists made by the Defendant. He admitted that the police had said this in the Magistrate's Court and that they had gone further and said that he, the Plaintiff looked surprised, and, later frightened. He admitted that the Police also said that he, the Plaintiff had tried to make a run for it, to escape.

27. So far as this aspect of the case is concerned no direct evidence was given. No witness before me said that the Plaintiff tried to run away. The Plaintiff however said that he did not run away or try to do so. He received an injury to an eye. He was he said beaten up not by Constable Lam but by another policeman. He said that the police said they had found stolen banknotes in his drawer and when he denied that he was responsible they assaulted him first closing the office door. He insisted that Constable Lam had not arrested him and certainly had not cautioned him. Indeed he said he had never been cautioned at all.

28. It is a great pity that there was not more evidence, direct evidence, as to this part of the case. Certainly there was further evidence available.

29. I heard the witnesses give evidence and I have no hesitation in believing the testimony of No. 4496 Constable Lam. He was an independant witness and gave his evidence in a frank and convincing manner.

30. I also heard the evidence of the Plaintiff and Defendant. Where this evidence conflicts I much prefer that of the Defendant to that of the Plaintiff. The Defendant's story was coherent and I accept it as being the truth.

31. It was urged on behalf of the Plaintiff that the Defendant's story was inherently improbable. Mr. Lee pointed out that the Defendant did not explain how the Plaintiff opened the drawer of the Defendant's desk nor how it was relocked. For it was found to be locked when the first investigation into the notes was made.

32. I do not think that such a criticism of the evidence of the Defendant is tenable. He explained all that he saw. His vision was necessarily restricted, the spy holes which I saw are small. He could not have seen the hands of the Plaintiff at the drawer of the desk because of his line of vision.

33. It was also suggested that the Defendant had deliberately not given the alarm the pre-arranged signal to his wife and cousin because the Defendant did not want to catch the Plaintiff, since he knew that no stolen money would be found upon him.

34. I reject this. The Defendant gave a credible explanation of his conduct in this respect. He said that he was astounded and deeply hurt that the thief should turn out to be the Plaintiff who was his colleague with whom he had worked for so many years in such close association and whom he never suspected.

35. If the Plaintiff is correct and the whole scheme was a plot on behalf of the Defendant to cover up mistakes in the Defendant's account, why were not the books of the Restaurant produced to prove just that. Considering the amount of cash available the sum of money pilfered was very small. If such a sum was missing is it credible that such as elaborate charade would have been set in motion? To my view the answer is no.

36. On the other hand it is very suspicious that the Plaintiff should go back to the office at such a late hour: merely to do a few minutes work which could very well have been done at the commencement of the following day's work.

37. I did not think the Plaintiff was a convincing witness. He was too ready to blame others and certainly I do not believe the answers he gave to questions asked him about the behaviour of the police.

38. In my view the most damning piece of evidence against the Plaintiff is the discovery of three of the missing notes in the drawer of his desk.

39. There has been no explanation for this. Nor could there be.

40. I am satisfied that the Defendant gave the correct version of what occurred and I accept that version unreservedly.

41. If a person sees some one stealing from his drawer it is his duty to inform the police. And that is what the Defendant did in this case. He had every reasonable and probable cause to make such a report. I can find no evidence that he was actuated by malice but even if he were it would be immaterial since all he was doing was reporting to the police what he had witnessed.

42. The Plaintiff therefore cannot succeed in his claim.

43. There are other matters deserving of comment in this case.

44. The whole record of the proceedings in the Magistrate's Court were put in as an exhibit in these proceedings. This included the reasons given by the Magistrate in writing for his verdict of acquittal.

45. These reasons are not evidence in favour of the parties in these proceedings. However they were referred to by Counsel more than once. But they must be ignored. And in coming to my conclusion in this case I have ignored them.

46. The authority for this is the old case of Barker v. Angell⁽¹⁾ and the case of Hilbert v. Charles⁽²⁾.

47. Another point is this.

48. The case in the Magistrate's Court took what I hope is an unusual course. It covered a period of more than three months but only lasted seven days. The main issue in those proceedings as in the present case was the credibility of the parties. The course the trial took made the task of the Magistrate unnecessarily more difficult. And it may well be that this is reflected in the ultimate result of the case.

49. The record of proceedings was exhibited for two reasons and for two reasons only. It proved that the Plaintiff had been acquitted. In addition portions of the testimony of certain witnesses were put to witnesses called before me in their cross-examination to test their credibility. Apart from that no reliance has been placed upon it.

50. A very interesting question was canvassed during the trial namely whether the Defendant can be said to be the prosecutor in this case. I deliberately leave this unanswered. I have already found that I believe the evidence of the Defendant and that closes the case.

51. One last word. The Plaintiff gave particulars of special damage in his statement of claim and inter alia claimed $9,400 as legal expenses. Two separate firms were concerned, I was not told why. Though it may be too late, I draw the attention of the Plaintiff to Section 67 (2) of the Legal Practitioner's Ordinance.

52. There must be judgment for the Defendant with costs.

Representation:

Martin Lee (L.S. Shum & Co.) for Plaintiff

Patrick Woo (P.C. Woo & Co.) for Defendant

Judgment read in Court

(1) 1841 2 M and Rob 371

(2) 1860 2 F & F 126