Fok Siu Wing v. Independent Commission Against Corruption
Read the full judgment text of FAMV 9/1998 on BabelCite. This Court of Final Appeal judgment was delivered on 8 June 1998 before Chief Justice Li, Bokhary PJ, Nazareth NPJ.
Civil procedure – application for leave to appeal to the Court of Final Appeal – extension of time to appeal to the Court of Appeal – striking out of statement of claim – test for whether statement of claim discloses reasonable cause of action – whether pleading frivolous, vexatious or abuse of process – tort of malicious prosecution – essential ingredients including malice and improper motive – assault – in person litigant – exemplary damages – ICAC investigation and arrest – quashing of prior criminal conviction – Applicant Mr Fok Siu Wing was arrested by the Independent Commission Against Corruption on suspicion of corruption offences, charged with soliciting and accepting an advantage, convicted by a Magistrate on the accepting charge, and successfully appealed to the High Court which quashed the conviction in late 1995 citing a lurking doubt – Applicant thereafter commenced a civil action against the ICAC in the High Court on 21 August 1997, with his statement of claim pleading two causes of action, malicious prosecution and assault, and seeking HK$2 million in exemplary damages for alleged falsification of charges, unfounded accusations, custody without proof, infliction of injury, forcing of confession, outrage of human rights, use of prohibited violence and taking by force of an insulting photograph – The ICAC applied to strike out the statement of claim as disclosing no reasonable cause of action and as frivolous, vexatious and an abuse of process – A Master granted the application, and on appeal a Judge in Chambers upheld the decision on 25 November 1997 – Applicant applied for an extension of time to appeal to the Court of Appeal, which was dismissed by a single Court of Appeal judge on 11 March 1998 – The Court of Appeal renewed the application on 30 April 1998 and granted an extension of time only in respect of the assault claim, refusing it for the malicious prosecution claim; reasons were handed down on 29 May 1998 – Court of Appeal found there were no reasonable grounds of appeal in respect of malicious prosecution because the statement of claim did not begin to plead the element of malice or improper motive, an essential ingredient of the tort, while the assault claim raised a reasonable question as to whether the Judge in Chambers had wrongly confined the pleaded allegation of assault to the time of post-arrest photography when it in fact encompassed other incidents – First issue: whether there is any reasonable chance that the Court of Final Appeal would differ from the Court of Appeal's view that the malicious prosecution claim disclosed no reasonable cause of action and that no extension of time should be granted – Held: No – The Appeal Committee refused leave to appeal to the Court of Final Appeal – Applicant was in person; the Respondent was represented by Mr Simon K C Lam, instructed by the Department of Justice
Legal issues: Whether leave to appeal to the Court of Final Appeal should be granted on the refusal to extend time in respect of the malicious prosecution claim
Outcome: Leave to appeal to the Court of Final Appeal refused
|
FAMV000009/1998 NOT FOR CIRCULATION 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) _____________________
_____________________
Date of Hearing: 8 June 1998 Date of Determination: 8 June 1998 _____________________________ D E T E R M I N A T I O N _____________________________ 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:
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. |
Further hearings and rulings under FAMV 9/1998