Tang Nin Mun v. Secretary for Justice

HCA006428/1999

HCA 6428/1999

Headnote

Practice and Procedure - Strike out - Causation - Immunity Bar - Civil Claim - Police

A detective constable put inaccurate contents in witness statement signed by the Plaintiff in blank. On the basis of such content a person who attacked the Plaintiff with a knife leaving a wide and deep wound in the abdomen was charged with assault occasioning actual bodily harm. The assailant promptly pleaded guilty and was fined $1,000 only. The police subsequently apologised to the Plaintiff for the conduct of the detective constable. The Plaintiff sues for misfeasance in public office. The Defendant applied to strike out the claim on the ground that there is an absolute immunity bar against claim for conduct, albeit unlawful and malicious, of the police in the course of court proceedings from the investigation stage onwards. Also, the Defendant contended that the Plaintiff could not possibly prove causation.

Held: (1) Immunity does not extend to the investigation stage. English Court of Appeal decision in Silcott v. Commissioner of Police for the Metropolis not followed. (2) Causation is a matter for the jury or judge discharging the function of a jury. A jury decision can be made only after seeing the witnesses and hearing evidence. (3) Application for strike out dismissed with costs.

HCA 6428/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6428 OF 1999

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Coram: Deputy Judge Li in Chambers

Date of Hearing: 23rd November 1999

Date of Handing Down Judgment: 29 November 1999

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J U D G M E N T

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There were two cross summonses before me. The summons by the Plaintiff to amend the Statement of Claim was unopposed and so granted. During the course of the arguments on the Defendant's summons, it was seen fit to re-incorporate Paragraph 8(6) removed from the original Statement of Claim by the amendment. Again, there could be no opposition to the re-amendment and it was granted without further ado. The summons by the Defendant was argued on the basis of the Re-Amended Statement of Claim. At the end of the day, I dismissed the Defendant's summons. These are my reasons.

2.By the summons, the Defendant applied for the (Re-Amended) Statement of Claim to be struck out on the grounds that:-

(a) it discloses no reasonable cause of action; and/or

(b) it is scandalous, frivolous or vexatious; and/or

(c) it is otherwise an abuse of the process of the court.

In reality, the matter turned on whether the Plaintiff has arguable cause of action.

3.The Plaintiff's claim, as pleaded, is for damages including aggravated damages for misfeasance in public office by a detective constable ("the DPC"). Mr. Westbrook, counsel for the Defendant, proceeded on the basis that the Plaintiff can establish all the allegations pleaded. The factual allegations amount to this:-

"(1) On 7 May 1994 the Plaintiff, a hawker, was the victim of an unprovoked, premeditated attack by a neighbouring hawker, (Mr. Ho) with a 30 cm rusty beef knife, causing the Plaintiff

(a) a minor cut wound to the left forearm

(b) a serious stab wound to the abdomen, being 7-8 cm long and 10 cm deep

(2) The Plaintiff underwent immediate emergency surgery for one and a half hours, where internal lacerations to the colon and bowel were located and sutured to stop the internal bleeding.

(3) The Plaintiff stayed in Hospital for 7 days and made an uneventful recovery but has been left with both surgical and stab wound scars.

(4) The DPC was assigned to take statements from the Plaintiff (victim) and his wife, but instead of taking proper statements the DPC attended at the Hospital just before the operation and procured the signatures of the Plaintiff and his wife one several sheets of blank paper; thereafter he filled in the "statement" forms himself and presented them to his Inspector as authentic statements.

(5) The "statements" gave the misleading impression that

(a) the attack was preceded by a dispute between the Plaintiff and his wife and Mr. Ho

(b) Mr. Ho might have thought the Plaintiff was about to attack him and stabbed him first

(c) The knife was small (8-9 cm long).

(6) The DPC fabricated the 2 statements to mislead his team Inspector to lay less serious charges against Ho.

(7) The police failed to make proper enquiries as to the medical condition and treatment of the Plaintiff and instead immediately charged Mr. Ho on the basis of a handwritten medical chit which was misread as "cut wound on left forearm and cut wound on left side of abdomen"

(8) Mr. Ho was charged the next day (Sunday, 7 May 1994) without legal advice with

(a) S.19 wounding for the cut forearm, and

(b) Assault occasioning actual bodily harm for the "cut" to the abdomen.

(9) 2 days later on 9 May 1994 Mr. Ho appeared in court, pleaded guilty and was immediately sentenced to

(a) $1,000 fine, and

(b) 2 month's imprisonment, suspended for 12 months.

(10) If the case had been properly investigated, the (b) charge should have been one of S.17 Wounding with Intent, which the Magistrate has no jurisdiction to hear or deal with; the District Court would presumably have dealt more severely with Mr. Ho.

(11) On 8 August 1995 (i.e. 11/4 years later) the Plaintiff lodged a complaint with CAPO that the DPC did not take proper statements and the police did not conduct a thorough investigation, leading to the wrong and minor charges being preferred against Mr. Ho.

(12) On 12 June 1998 CAPO wrote to the Plaintiff saying that his complaint was substantiated by their investigation and apologising for the DPC's conduct. No disciplinary proceedings were instituted because the DPC had left the Police force in August 1995."

4.Liability allegedly arose in the following manner:-

"8(4) Alternatively, the DPC acted wither on the basis of malice or with knowledge of the unlawful nature of the action and the probability of injury to the Plaintiff.

(5) Alternatively, contrary to his duty to detect crimes and offences under section 10(b) of the Police Ordinance Cap 232 ("the Ordinance") and to his obligation under section 26 thereof to carry out his duties honestly, faithfully, diligently and without fear or favour to any person and with malice or ill-will towards none, the DPC, a police officer of over 20 years of service, had abused his police power in fabricating evidence in a criminal investigation and perverting the course of justice.

(6) Alternatively, the Defendant is vicariously liable for the conduct of the DPC which clearly was conducting in the course of his duty i.e. making enquiry to ascertain the true facts of the wounding case."

5.The loss and particulars stand in the Re-Amended Statement of Claim as follows:-

"10. In the premises, the Plaintiff has suffered from mental anguish and distress over the injustice done to him by the malicious or unlawful acts of DPC 11829.

11. Medical examination reveals that the Plaintiff has suffered from depressive illness as result of his grievances.

Particulars

The Plaintiff suffers from anxiety attacks caused by dreaming of the attack upon him and the fear of further attack: together with fear for the safety of his wife and daughter. He suffers from difficulty in sleeping and is moved to tears when he observes his wound scar. He is pre-occupied with every detail of the incident, the behaviour of the Police and the denial of justice he has suffered. At times he suffers from ideas of suicide. His illness manifests itself in his depressed moods, anxiety, insomnia, lack of drive, sexual impairment, social withdrawal, lack of self-confidence in decision making together with irritability.

12. By reason of the matters aforesaid, the Plaintiff suffered loss and damages.

Particulars

The Plaintiff's depressive illness has caused significant impairment in his psychological, social, sexual and occupational functions which has caused significant changes to the patterns of his daily life. His presently diagnosed mental disability is assessed at or about 30%: while his present loss of earning capacity is assessed at or about 40%."

6.Mr. Westbrook accepted that there is the actionable tort of misfeasance of public office. The problems for the Plaintiff's claim, so counsel contended, are causation and immunity bar.

Causation

7.Assuming that the DPC did an act which he knew he had no power to do (i.e. obtaining signatures on blank pieces of paper and filling in inaccurate contents later), counsel questioned, can it be said that it was probable that the Plaintiff suffered damage as a result, i.e. nervous shock and/or psychiatric illness brought on by his grievance at the improper investigation and/or inadequate sentence passed on his attacker?

8.I note first of all that Mr. Allman-Brown and Mr. Westbrook could not agree on the standard of the test to be applied in this case to determine causation and the fault alleged to be the cause of damage. Leaving aside these arguments which are for a trial judge, the exercise to determine causation (whether the test is reasonable foreseeability, direct consequence, proximity or probability) is an inherently daunting one.

9.In Stapley v. Gypsum Mines Ltd. [1953] A.C. 663, Lord Porter at 676 lamented:-

"Causation is always a difficult topic. One is but using a commonplace if one repeats that many causes have some place in the sequence of events which lead to a result, or follows Lord Shaw in saying that "causation is not a chain, but a net": Leyland Shipping Co. Ltd. v. Norwich Union Fire Insurance Society Ltd. The question always is how far back is one justified in going or how wide a net must one envisage."

Lord Reid at pp. 681-682 explained,

"To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it. "A jury would not have profited by a direction couched in the language of logicians, and expounding theories of causation, with or without the aid of Latin maxims": Grant v. Sun Shipping Co. Ltd., per Lord du Parcq. The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two to more as having jointly caused the accident. I doubt whether any test can be applied generally. .....

Dale's fault was one of omission rather than commission, and it may often be impossible to say that, if a man had done what he omitted to do, the accident would certainly have been prevented. It is enough, in my judgment, if there is a sufficiently high degree of probability that the accident would have been prevented. I have already stated my view of the probabilities in this case, and I think that it must lead to the conclusion that Dale's fault ought to be regarded as having contributed to the accident."

Lord Asquith in the same case, at pp. 687 observed,

"Courts of law must accept the fact that the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act diverge. To a philosopher - a term which I use in no disparaging sense, for what is a philosopher but one who, inter alia, reasons severely and with precision? - to a philosopher, the whole legal doctrine of responsibility must seem anomalous. To him, if event C could not occur unless each of two previous events -A and B - had preceded it, it would be unmeaning to say that A was more responsible for the occurrence of C than was B, or that B was more responsible for its occurrence that was A. The whole modern doctrine of contributory negligence, however, proceeds on the contrary assumption. If not there would be no question of apportionment. But the fission between law and strict logic goes deeper than that. For I am persuaded that it is still part of the law of this country that two causes may both be necessary pre-conditions of a particular result - damage to X - yet the one may, if the facts justify that conclusion, be treated as the real, substantial, direct or effective cause, and the other dismissed as at best a causa sine qua non and ignored for purposes of legal liability. This is a doctrine affirmed by your Lordships' House, and not, in my view, displaced by the Law Reform (Contributory Negligence) Act, 1945. On the contrary, the words "as the result of" in section 1 of that statute impliedly preserve the doctrine, the assertion of which your Lordships have more than once coupled with an admonition that, if the conditions for its application occur, a judge sitting alone should assume the mantel and the mentality of a jury, and should take what is called a "broad common-sense view," in deciding whether one of the causes (there may be two or twenty) is the "real" causes."

10.Of course in Stapley v. Gypsum Mines Ltd. their Lordships were concerned with a negligence claim which involved the foreseeability test. But that is not the point. The point is that the question of causation is one for the jury or the trial judge donning the mantle of the jury.

11.Mr. Westbrook seems to think that I should apply the "probable" test to the alleged facts assuming the same to be proven. It is not that I cannot meet such intellectual challenge or that I want to shrink from responsibility. The difficulty is that the decision is one for the jury or a judge discharging the function of a jury. A jury decision should be made only after seeing the witnesses, not on the basis of agreed facts or record of the evidence. This is so whatever the test to apply. It is inherent in the nature of jury decisions that they may differ on the same facts without being perverse. See Lewis v. Carmarthenshire County Council [1953] 1 W.L.R. 1439 at 1445,

"I confess that, for myself, I have entertained very considerable doubts, which have not been altogether resolved, as to the defendants' liability for negligence in this case. I cannot help feeling that in all the circumstances which existed at the time almost super-human vision would have been required to enable Miss Morgan to appreciate the likelihood of the little boy David leaving the classroom with his companion, crossing the school grounds, which were forbidden territory to them, passing through the main gate and occasioning an accident in this street, more especially as the evidence disclosed no parallel or even similar incident having ever occurred at the school before. However, in an action such as this, an action founded upon negligence, in which the judge had the advantage of seeing the witnesses, something more than doubt is necessary to justify the appellate court, or any member of an appellate court, in interfering with the judge's finding." (per Romer L.J.)

12.Moreover, the proper test to apply and whether the test to apply requires a higher standard is a matter of law. Law does not have to be pleaded. I cannot and have not heard all the arguments on the proper law. I cannot, in dealing with whether the Re-Amended Statement of Claim may stand, decide the law and thus usurp the function of the trial judge or the judge who may be properly concerned with preliminary issues of law. For all I know, the judge rightly concerned with the legal issues may decide that the test to apply is other than those canvassed by the parties.

13.The Defendant chose to take out an Order 18 rule 19 summons. The White Book (1999 Edition) p.348 has this to say about the correct approach,

"18/19/6 Exercise of powers under this rule - It is only in plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 Q.B. 86 at 91 (Mayor, etc., of the City of London v. Horner (1914) 111 L.T. 512, CA). See also Kemsley v. Foot [1951] 2 K.B. 34; [1951] 1 All E.R. 331, CA, affirmed [1952] A.C. 345, HL. It cannot be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action (Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, CA). If there is a point of law which requires serious discussion, an objection should be taken on the pleadings, and the point set down for argument under O.33, r.3 (Hubbuck v. Wilkinson [1899] 1 Q.B. 86 at 91).

Where an application to strike out pleadings involves a prolonged and serious argument, the Court should, as a rule decline to proceed with the argument unless it not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out would obviate the necessity for a trial or substantially reduce the burden of preparing for a trial, and therefore, where the Court is satisfied, even after substantial argument both at first instance and on appeal, that the defence does not disclose a reasonable ground of defence, it will order it to be struck out (Williams & Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd. [1986] A.C. 368; [1986] 1 All E.R. 129 HL)."

The Plaintiff's case may be somewhat novel, but it is not plainly nor obviously untenable. Whilst I may adjourn questions of law to a later hearing for arguments under Order 33, I do not think it is appropriate to adjourn a jury question. This simply is a case for trial.

14.Counsel for the Defendant also said that leading textbooks (e.g. Clerk & Lindsell on Torts) show how difficult it can be to recover damages for mental shock/illness even for those who directly witness horrific events: see e.g. McFarlane v. E.E. Caledonia Ltd [1994] 1 Lloyd's Rep. 16 where the plaintiff's claim for psychiatric illness as a result of witnessing the Piper Alpha oil rig fire in which 164 people died, failed. Well, I say difficulty cannot be equated with impossibility; otherwise the courts would not have to wrestle with the difficulty in the first place.

Public Policy

15.Mr. Westbrook contended that there exists a fundamental rule of law that:-

"no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice". Per Kelly C.B. in Dawkins v. Lord Rokeby (1873) L.R. 8 Q.B. 255"

Therefore, the Plaintiff is barred from suing by this immunity rule. Mr. Allman-Brown countered that the immunity rule, on the face of it, does not apply in this case because the Plaintiff was neither a party nor a witness in the criminal proceedings.

16.Not to be outdone, Mr. Westbrook relied on Silcott v. Commissioner of Police for the Metropolis, the Times 9th July 1996. There, Simon Brown L.J. after adverting to the said immunity rule, held that,

"Protection must extend to the preparation of evidence equally as to its presentation ... I see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, a police officer verballing an accused; nor between, say, an officer planting a brick or drug on an accused so that someone else with give truthful evidence of having found it, and an officer giving false evidence that he himself found such a brick or drug.

In my judgment, Drake J. was correct in Evans to have held that the immunity covers all conduct that can fairly be said to be part of the investigatory and, I would add, preparatory process. To Lord Williams' submission that there is no public interest in protecting those who create false evidence or, for that matter, those who destroy sound evidence, I would answer that that misses the essential point: the public interest is in the protection of those who might otherwise be falsely accused of such conduct."

Mr. Allman-Brown sought to distinguish that case from the present one on the facts. In the English case, the civil claim for malicious prosecution and misfeasance of public office alleged that two police officers fabricated confession statements against the plaintiff therein for use at his criminal trial for murder. The plaintiff was acquitted by the jury despite the police evidence. In the present case, there was no trial.

17.Taking the easy way out, I suppose one can say that since there are arguments, coming from experienced counsel, on whether Silcott applies to the present case, there is an arguable cause and for that reason the Plaintiff's case should not be struck out.

18.Again, Mr. Westbrook urged me to grab the bull by the horn and hold that the immunity rule as extended by the English Court of Appeal in Silcott operates as an absolute bar.

19.I fully accept that the immunity rule is good law for the Hong Kong Special Administrative Region because it is based on sound policy consideration. Parties and witnesses must enjoy privilege and immunity from suit for what they say or do in the ordinary course of any proceeding in a court of justice. On the other hand, Mr. Allman-Brown was correct to point out that neither the Plaintiff nor the DPC was a party or witness in the criminal proceedings against Mr. Ho. I am not prepared to extend the application of the immunity rule to potential witnesses or peripheral parties. This is because the rule by nature offends the very purpose of the law which is to enable people to obtain remedy and relief. The rule may be allowed the most restrictive scope of operation only. The rule cannot be extended without further justification. To draw an analogy, counsel on his feet in court is entitled to absolute privilege but that privilege is lifted the moment counsel walks away from the precincts of the court. For another analogy, legislators are protected by privilege during debates in the legislative chamber but that privilege does not cover deliberations elsewhere. I cannot see why a person who is no more than a potential witness or peripheral party behaved outrageously and maliciously may claim better protection than that available to legislators and counsel.

20.It is therefore a foregone conclusion that, in my view, with all due respects, the English Court of Appeal in Silcott was too ready to throw a protective blanket around rogue policemen. The public interest to protect those who might be falsely accused of misfeasance upheld by Simon Brown LJ is based on the unjustified assumption that the courts are unable to discern false accusations. It is perhaps no accident that the Silcott judgment did not find its way into the official reports. I do not believe I am bound by the decision of the English Court of Appeal. In so far as the English Court of Appeal based its decision on public policy or public interest, I would like to think that the courts of the Hong Kong Special Administrative Region are just as capable of deciding what is best for this jurisdiction as a matter of public policy or public interest. The public policy or public interest for the Hong Kong Special Administrative Region should be, in my humble opinion, to have the doors of justice wide open for cases alleging blatant perversion of justice to be pursued.

21.Both grounds relied upon by Mr. Westbrook found no favour with the court, the Defendant's summons was dismissed.

22.Mr. Allman-Brown asked for costs to be paid forthwith and certificate for two counsel for the Plaintiff. Mr. Westbrook objected to payment forthwith and did not think two counsel were justified. Specifically on payment forthwith, counsel for the Defendant advised me that the Court of Appeal has recently indicated that an order for payment of costs forthwith amounts to a penalty which may be inflicted only sparingly.

23.The question of penalty costs prompted counsel for the Plaintiff to point out that this summons to strike out has the effect, even if unintended, of an attrition exercise. The matter is in my discretion. I think justice is better served by ordering payment of costs of the summons to the Plaintiff forthwith. The matter does involve an important question of law - the applicability of the Silcott extension. It is fit for two counsel and I so certify.

Representation:

Mr. Andrew Allman Brown leading Victor Luk instructed by M/s Donald Yap, Cheng & Kong for the Plaintiff

Mr. Simon Westbrook assigned by Department of Justice on behalf of the Commissioner of Police

Remarks: