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HCA000392/1981
The Plaintiff sued for damages for wrongful arrest by the police.
The defence pleaded grounds upon which the arresting officer reasonably suspected that the Plaintiff was a member of a Triad society. These grounds included:-
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"(b) |
the Plaintiff's association with a number of people who were known or suspected as being members of a Triad society;" |
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"(d) |
the Plaintiff's general reputation of being a member of the San Yee On Triad Society in the rank of office bearer;" |
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The Plaintiff appealed against the Registrar's refusal of his application for further and better particulars of these grounds.
The particulars requested of (b) were the identities of all the Plaintiff's alleged triad society associates; all facts relied upon whereby such associates were suspected of being triad members; the identity of the triad society the associates were members of.
The particulars requested of (d) were every overt act and material fact relied upon in alleging the Plaintiff's reputation of being an office bearer of the San Yee On Triad Society.
Subsequent to the Registrar's decision, an affidavit was filed, sworn by the 2nd Defendant, the police officer who made the arrest. This stated that the particulars requested would require the divulgence of information which would prejudice police investigations into triad activities and some cases pending trial. Also possible physical danger to witnesses could be caused.
In Neilson v. Laugharne (1981) 2 W.L.R. 537, a case on the discovery of documents, Lord Denning, M.R. at 544 said :-
"This modern development shows that, on a question of discovery, the court can consider the competing public interests involved. The case is decided by the court holding the balance between the two sides. One of them is asserting that, in the interest of justice, the documents should be disclosed. The other is asserting that in the public interest they should not be disclosed. Confidentiality is often to be considered. So is the need for candour and frankness. So is the desirability of co-operation. Or any other factors which present themselves. On weighing them all the judge decides according to which side the balance comes down."
| Held: |
(1) |
The principles enunciated by Lord Denning on discovery are applicable to the application for further and better particulars in the present case; |
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(2) |
The particulars requested generally fall within the function of particulars and would facilitate the Plaintiff's preparation for trial; |
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(3) |
The withholding of the particulars would be in the public interest; |
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(4) |
In this case the public interest outweighs the Plaintiff's interest. |
| IN THE HIGH COURT |
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1981 No. 392 |
| BETWEEN |
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LAU Biu |
Plaintiff |
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and |
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The Attorney General |
1st Defendant |
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Kenneth James Taylor |
2nd Defendant |
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Coram: Mr. Commissioner Gittins, Q.C., in Chambers
Date of Judgment: 15th July, 1981
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JUDGMENT
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1. The Plaintiff's claim is that he was wrongfully arrested, handcuffed and brought to the police station without reasonable or probable cause while he was dining at a restaurant at 2.30 a.m. on 5th December 1980, and he claims damages therefor.
2. Paragraph 2 of the Defence admitted the arrest and its circumstances. It went on to plead
"The Plaintiff was informed by the said Detective Constable that he was being arrested on suspicion of being a member of a Triad society and that he was required to return to Kowloon City Police Station for further inquiries. Further it was reasonably suspected by the 2nd Defendant that the Plaintiff had committed perjury at a Triad society trial which was completed on the 3rd December 1980 at Court No. 2 North Kowloon Magistracy."
3. Paragraph 3 of the Defence
"denied that the Plaintiff was arrested without reasonable or probable cause and that his arrest and subsequent detention was in any way unlawful".
4. Paragraph 7 of the Defence is in the following terms:-
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7. |
The grounds upon which the 2nd Defendant reasonably suspected that the Plaintiff was a member of a secret society were as follows:- |
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| (a) |
evidence from a police officer that the Plaintiff was present with others at his gymnasium on about 24th December 1980 when Triad punishment was meted out to one Tak Tsai; |
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| (b) |
the Plaintiff's association with a number of people who were known or suspected as being members of a Triad society; |
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| (c) |
the Plaintiff's presence on 5th December 1980 at the said Restaurant togehter with Tam Man and Poon Wing Wah; |
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| (d) |
the Plaintiff's general reputation of being a member of the San Yee On Triad Society in the rank of office bearer; |
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| (e) |
the fact that the Plaintiff gave false evidence in the trial referred to in paragraph 2 above." |
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5. The Plaintiff applied by summons for further and better particulars of paragraphs 2, 7(a), 7(b), 7(c), 7(d) and 7(e) of the Defence.
6. The Registrar dismissed the application and the Plaintiff has appealed to the Court against the refusal.
7. At the hearing of the appeal Plaintiff's counsel informed the court that he was only appealing on the Registrar's refusal on his application for further and better particulars of paragraphs 7(b) and (d) which are as follows:-
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Under Paragraph 7(b) of the Defence: |
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Of the allegation that 'the Plaintiff's association with a number of people who were known or suspected of being members of a triad society'. |
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i. |
Identify each and every person that it is alleged is a known or suspected member of a triad society with whom it is alleged the Plaintiff is said to have associated. |
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ii. |
Specify the reasonable or probable cause of the said persons being 'suspected' of being members of a triad society, particularising each and every material fact and overt act relied upon. |
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iii. |
Specify and identify by name which 'triad society' it is alleged the said people were members of. |
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Under paragraph 7(d) of the Defence: |
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Of the allegation that:- |
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'the Plaintiff's general reputation of being a member of the San Yee On triad society with the rank of office bearer' |
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i. |
Specify every overt act and material fact from which the Defendant rely in alleging the Plaintiff is generally reputed to be an office bearer of the San Yee On Triad Soceity." |
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Counsel for the Plaintiff cited the 1979 Supreme Court Practice 18/12/2 where it is stated that
"the function of particulars is to carry into operation the overriding principle that the litigation between the parties .... should be conducted fairly, openly and without surprise"
and that this function includes the requirement:-
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(1) |
to inform the other side of the nature of the case they have to meet as distinct from the mode in which that case is to be proved; |
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(2) |
to prevent the other side from being taken by surprise at the trial; |
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(3) |
to enable the other side to know what evidence they ought to be prepared with and to prepare for trial; ...." |
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8. The Defendants' grounds for resisting the application are:-
| (1) |
That as the Plaintiff pleaded that he was unlawfully arrested, the onus was on him to prove this. |
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I think that the short answer to this point is that a citizen is entitled not to be arrested, and if he is, then the authority must show there was reasonable and probable cause. However, nothing turns on this point in this appeal. |
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| (2) |
That the rules of pleading require the pleading to contain only the material facts relied upon in the Defence and not the evidence by which they are to be proved, and that these rules have been complied with. |
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| (3) |
That the requested particulars require the identification of Crown witnesses in a prosecution involving triad members, that such witnesses will be put in physical danger and there would be a very great possibility of them being interfered with. Also that police investigations could be prejudiced. |
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9. In support of ground (3), paragraph 4 of the 2nd Defendant's affidavit states:-
"4. In relation to the plaintiff's request for further and better particulars under paragraph 7(b) and (d), the information necessary to provide further and better particulars is in each case contained in police files graded secret. These files relate to an operation called 'Idbies' which involves investigation into triad activities. These investigations are still under way and I am of the view that if information in those files was now released to the plaintiff it would prejudice the investigations and also a number of cases pending trial. In other cases individuals do not know they are under investigation. I am concerned if information was given to the Plaintiff by way of further and better particulars under paragraph 7(b) and (d), some of these individuals may learn of the investigations being carried out."
10. The 2nd Defendant is a Detective Inspector of the Royal Hongkong Police.
11. In Neilson v. Laugharne(1), a case on the discovery of documents, Lord Denning, M.R. at 544 said:-
"This modern development shows that, on a question of discovery, the court can consider the competing public interests involved. The case is decided by the court holding the balance between the two sides. One of them is asserting that, in the interest of justice, the documents should be disclosed. The other is asserting that in the public interest they should not be disclosed. Confidentiality is often to be considered. So is the need for candour and frankness. So is the desirability of co-operation. Or any other factors which present themselves. On weighing them all the judge decides according to which side the balance comes down."
12. I am of the opinion that the same principles are applicable to the application for further and better particulars in the present case.
13. The particulars applied for under paragraph 7(b) require the disclosure of the identities of persons known to be or are suspected of being triad members, the reasons for such persons being so suspected, and the identification of the triad society.
14. While the particulars requested could be said to fall within the functions of particulars and would facilitate the Plaintiff's preparation for trial, I hold that the withholding of such would be in the public interest and this would outweigh the submission on behalf of the Plaintiff.
15. As to the particulars applied for under paragraph 7(d) I am of the opinion that the disclosure of police information on TANG Man and POON King-wah likewise would be undesirable in the public interest.
16. The appeal is dismissed
17. Costs in the cause
18. Certificate for counsel
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(S. V. Gittins) |
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Commissioner of the High Court |
Representation:
Mr. J. Bleach (Poon & Sum) for Appellant/Plaintiff
Mr. P. Graham, crown counsel for Respondents/1st and 2nd Defendants
(1) (1981) 2 W.L.R. 537
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