Fok Siu Wing v. Independent Commission Against Corruption

FAMV000009/1998

NOT FOR CIRCULATION
FAMV No. 9 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 1998 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 814 OF 1998)

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Date of Hearing: 8 June 1998

Date of Determination: 8 June 1998

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D E T E R M I N A T I O N

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Mr Justice Bokhary, P.J.:

1. This is the determination of the Appeal Committee in this application for leave to appeal to the Court of Final Appeal. The application arises in the following way.

2. Some years ago this applicant, Mr Fok Siu Wing, was arrested by the Independent Commission Against Corruption ("the ICAC") on suspicion of corruption offences. Two charges were brought against him. One was of soliciting an advantage. The other was of accepting an advantage. He was tried before a Magistrate. The Magistrate acquitted Mr Fok on the soliciting charge, but convicted him on the accepting charge. Mr Fok then appealed to the High Court against that conviction. And his appeal succeeded. The conviction was quashed: with the judge hearing the appeal saying that he had "a lurking doubt". That was in late 1995.

3. On 21 August 1997 Mr Fok started a civil action in the High Court against the ICAC. Throughout such civil litigation he has acted in person. He now acts in person before us.

4. His Statement of Claim reads as follows:

"(1) There had been falsification of charge(s) and making of unfounded accusations.

(2) I had been kept in custody without any proof of crime, had been inflicted with ferocity on my neck an injury that might kill and had been forced to own up to the falsified charge(s).

(3) There had been outraging of human rights, using of violence strictly prohibited in law and taking by force of me one photograph which depicts an insult to my personality.

(4) The Independent Commission Against Corruption had made use of unwarranted charge(s) to harm me and my whole family. As a result, I have been out of work for almost three years; I might even become unemployed for the rest of my life. A serious wound had been caused to such an exceptionally unfortunate family and all members of the family hence are mentally hurt to the extreme. The court is therefore requested to order an award of exemplary damages against the Independent Commission Against Corruption in the sum of two million Hong Kong dollars."

That amounts to a pleading of two causes of action: malicious prosecution and assault.

5. The ICAC applied for the striking out of Mr Fok's Statement of Claim and the dismissal of his action. They contended that his

Statement of Claim disclosed no reasonable cause of action. And they contended that his action was frivolous, vexatious and an abuse of process.

6. Their application succeeded before a Master. The Master's decision was upheld on appeal to a Judge in Chambers.

7. Mr Fok wanted to appeal to the Court of Appeal. But he found himself out of time for doing so. Subject to an extension of time granted by a single judge of the Court of Appeal or the Court of Appeal itself, he had to serve his notice of appeal not later than 14 days after the Judge in Chambers dismissed his appeal from the Master.

8. The Judge in Chambers did that on 25 November 1997. About three months later, on 24 February 1998, Mr Fok took out an application for an extension of time for appealing to the Court of Appeal against the dismissal by the Judge in Chambers of his appeal against the Master's decision.

9. On 11 March 1998 that application for an extension came before a single judge of the Court of Appeal. He dismissed it.

10. Mr Fok then renewed such application before the Court of Appeal itself on 30 April 1998. On that day the Court of Appeal granted an extension of time for appealing against the striking out of the Statement of Claim only in respect of the assault claim, but not in respect of the malicious prosecution claim. The Court of Appeal handed down its reasons on 29 May 1998.

11. Shortly stated, the Court of Appeal thought along these lines. There was no point in granting an extension in respect of the malicious prosecution claim. Why? Because there were no reasonable grounds of appeal against the striking out of that claim. Why? Because the Statement of Claim did not begin to plead the element of malice i.e. improper motive, which is one of the essential ingredients of the tort of malicious prosecution. As far as the claim in assault is concerned, however, there was room for reasonable argument to the following effect. The Judge in Chambers had mistakenly taken the pleaded allegation of assault as confined to the time when ICAC personnel had photographed Mr Fok following his arrest. In fact that allegation encompasses other incidents. And whether or not it is viable was a reasonable question to raise in the Court of Appeal.

12. Mr Fok now seeks leave to appeal to the Court of Final Appeal against the Court of Appeal's decision to refuse an extension in respect of the malicious prosecution claim.

13. We have considered Mr Fok's points. The question comes to this: is there any reasonable chance that the Court of Final Appeal will differ from the view taken by the Court of Appeal in regard to the malicious prosecution claim? In our view, the answer is "No". Accordingly we refuse leave to appeal to the Court of Final Appeal.

Representation:

Applicant in person.

Mr Simon K C Lam (instructed by the Department of Justice) for the Respondent.