Robert Sandeman Lamb v. A.D. Monkhouse

ORIGINAL JURISDICTION

ACTION NO. 77 of 1947

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Coram: H.W.B. Blackall, CJ

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JUDGMENT

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1. There were originally three defendants to this action viz : the late Governor (Sir Mark Young, G.C.M.G.), the Attorney General (Hon. J.B. Griffin, K.C.) and the Immigration Officer (Mr. A.D. Monkhouse) and the plaintiff claimed damages under four heads:- (a) for having been brought under arrest from Shanghai to Hong Kong, (b) for being kept in police custody in Hong Kong, (c) for having a false charge brought against him, and (d) for being falsely imprisoned in Stanley Gaol. The action against the first and second parties has since been discontinued and all the claims save the last have been abandoned.

2. The events that led to the plaintiff's detention at Stanley are shortly these. During the recent war certain British subjects in Shanghai aided the enemy by broadcasting on the German station. Among these were the plaintiff and two men named Gracie and Johnson, and the question of prosecuting these collaborators was taken up on the cessation of hostilities. It was at first proposed that all three should be tried in Hong Kong. So far as Gracie and Johnson were concerned this presented no difficulties and they have since been convicted under No. 27 Defence Regulation, 1940. It transpired, however, that the evidence against the plaintiff was confined to acts committed prior to the abrogation of extraterritoriality in China (20th May, 1943) so the courts of this Colony would have no jurisdiction to deal with him, although he could be tried in England for treason committed abroad, as was done in the case of another of that tribe - the notorious "Lord Haw-Haw."

3. In view of the foregoing, it was decided by the authorities in Hong Kong that Gracie and Johnson should be brought here for trial and Sub-Inspector MacAdie of the Hong Kong Police was sent to Shanghai to act as escort. Before his departure, the legal position was fully explained to this officer by the Attorney General and he was specifically instructed not to have anything to do with the plaintiff. On arriving in Shanghai he communicated these instructions to H.B.M.'s Consul General and thereafter he confined himself to investigating the charges against Gracie and Johnson and collecting evidence against them. Arrangements were then made for the transport of these persons and certain German witnesses to Hong Kong by H.M.A.S. Warramunga.

4. If no more than this had been done, the present action would never have arisen. But for some reason, not disclosed in evidence, it was decided by someone in authority that the plaintiff should also be despatched to Hong Kong and he was placed on board the Warramunga with the others on 17th February, 1974. Whoever was responsible for this decision it certainly was not the Hong Kong Government or any of its officers, for it was taken in opposition to their wishes and against the Attorney General's advice; and it was only on the 20th February that the Police in Hong Kong learned for the first time that the Warramunga (which was to arrive that day) had the plaintiff among her passengers. When she did arrive it was found that those who had sent him had omitted to forward any accompanying communication explaining why he had been transferred to Hong Kong and what was to be done with him. The Naval authorities were therefore asked if they would keep the plaintiff on board, but they were unwilling to do this and required all passengers to be disembarked forthwith.

5. This placed the Hong Kong authorities in an embarrassing position, for the local courts had no jurisdiction to try the plaintiff, although it is clear from the testimony of the German witnesses taken "de bene esse" in this case that there was evidence to support a charge under the Defence Regulation mentioned. The Hong Kong Government had however heard from official sources that the plaintiff might be sent to the United Kingdom to be put on trial for treason. In these circumstumces they were somewhat reluctant to allow him unrestricted entry into the Colony, and legal advice was sought as to whether any grounds existed for restricting his movements. This step was adversely criticised by counsel for the plaintiff, but this court prefers to adopt the view of Lord du Parcq in Christie and Morris vs. Leachinsky (53 T.L.R. at p. 238), and sees no impropriety in an immigration officer making use of his powers under section 14 of the Immigration Control Ordinance (No. 32 of 1940) if the circumstances afford justification in law for his so doing, even if the real or principal motive is to prevent the escape from justice of the person so detained.

6. I now proceed to deal with certain submissions of counsel upon Ordinance No.32 of 1940. The long title runs as follows:-

"An Ordinance to regulate the entry and departure of persons into and out of the Colony, to prohibit the entry of undesirable immigrants and to confer various powers in connexion therewith."

It is relevant to bear this in mind in construing its provisions. The first point is whether the plaintiff was in possession of a valid travelling document on the day of his arrival. On that evening he was interviewed by Sub-Inspector Kriloff and said "I have no passport or any other identity papers, all my papers together with my birth certificate were lost when I went into internment camp. I have no money or any valuables either with me or anywhere else." The plaintiff's evidence differed slightly from this, for he says he mentioned having had an identity certificate which was in his flat at the time of his arrest, but he had no idea where any of his papers were.

7. Sub-Inspector Kriloff had however been specifically instructed to find out whether the plaintiff was in possession of a passport or other identity papers or money, and moreover he wished to establish the plaintiff's nationality in connection with enquiries into his activities in Shanghai. It is very unlikely therefore that he would have omitted to enter in the note he made at the time, a reference to such a material document as an identity certificate. Apart from this, I regard Sub-Inspector Kriloff as a more reliable witness than the plaintiff and I accept his evidence on this point.

8. Following this interrogation, Sub-Inspector Kriloff's notes of the plaintiff's replies were submitted to the defendant, who, having taken legal advice, decided to issue an Order under section 14(1) of the Ordinance, directing that the plaintiff be detained at Stanley Prison pending an opportunity to remove him from the Colony. It was contended by Mr. Bernacchi that Stanley Prison is not a suitable place of detention within the meaning of section 14(1) and he referred to the doctrine of "ejusdem generis". But the sub-section provides that "the person may be detained at the depot or other suitable place of detention." The genus is therefore a place in which persons can be detained and it cannot be denied that Stanley Prison is such a place. Evidence was given that the depots established under section 14 are not at present available for the purpose of the Ordinance, and I am satisfied on the facts that Stanley Prison was not only a suitable, but the most suitable place in which the plaintiff could be detained. I may here say that both the plaintiff and his legal advisers on more than one occasion expressed their appreciation of the courtesy which the plaintiff received from all concerned from the beginning until the end of his detention.

9. Upon the signing of the detention order on 21st February, the plaintiff was transported to Stanley where the order was formally read over to him on the same afternoon. During his stay there, he was accorded special treatment and had ready access to his baggage, but he apparently made no attempt to search for his identity certificate until about the 8th March, when he found it. This fact was at once notified to the defendant who took immediate steps to order his release, but as a week-end intervened, the plaintiff's release was not actually effected until the 10th March.

10. It is contended by Mr. Bernacchi that inasmuch as the plaintiff had an identity certificate in the baggage that accompanied him, he was in possession of it within the meaning of section 9 on 20th February although he was not then aware of the fact, and had not declared it when questioned about it that day. Now "possession" is a word of wide connotation, its meaning largely depending upon the context in which it is used, and the legislature must be presumed to have been aware of the procedure commonly followed by Immigration Officers i.e. that passengers are required to have their travel documents readily available for inspection, failing which they are not allowed to land. But if the plaintiff's interpretation were adopted, an Immigration Officer would not feel justified in refusing permission to land to a person who could not produce his passport or even to one who declared he had none, unless and until a thorough search had been made of every piece of such passenger's baggage on the off-chance that a travel document might be discovered among it. Such an interpretation would defeat the object of the Ordinance and render it unworkable. In my view therefore, the word "possession" should be construed as meaning actual and immediate possession, and I hold that the Immigration Officer was entitled to treat the plaintiff as a person who had landed without a valid travel document.

11. The next question to be considered is whether the plaintiff contravened the terms of section 9 for having landed without the permission of the Immigration Officer. In support of his contention that there was no contravention, Mr. Bernacchi pointed out that hordes of Chinese aliens are allowed to enter the Colony without let or hindrance and without even going through the formality of applying for permission. He argued from this that there could be no obligation upon a British subject to obtain permission. If the execution of the Ordinance is being dispensed with in the manner described, this would seem to be contrary to a constitutional principle enshrined in the Bill of Rights, but it is not an issue before this Court. The question simply is whether an immigrant, irrespective of race, is required under the terms of the Ordinance to obtain permission before landing in the Colony.

12. In further support of his argument on this point, Mr. Beracchi invited comparison between section 6 and 9. In the former, it is expressly provided that no passenger under inspection may land "without the permission of the Immigration Officer", whereas section 9 merely provides that "the Immigration Officer may, in his discretion, refuse permission to land." He submitted that the inference to be drawn from this is that if the legislature had intended that permission was obligatory under section 9, it would have said so in plain terms. There is force in this argument and I was attracted by it in the course of the hearing. But after careful consideration. I am unable to adopt it. It is true that where in the same statute and in relation to the same subject matter different terminology is used, it is presumed the alteration has been made intentionally. But this is only a prima-facie presumption, and there are other factors that have to be taken into consideration. Section 14 (read in conjunction with section 9) is one giving powers of arresting or detaining persons in circumstances in which at common law no power of arresting or detaining would exist. It is the duty of the court in construing sections of this nature to balance the two conflicting principles, the one that the liberty of the subject is to be duly safeguarded, the other that the expressed intention of the legislature to give powers of arrest beyond those existing at common law should not be too narrowly construed. (Barnard v. Gorman 1941 3 A.E.R. at 51).

13. Moreover, a statute has to be construed as a whole, regard being had to its scheme and a court will, if necessary, extend the letter of the law to prevent evasion. Now, the plaintiff's construction would, it seems to me, open the door to evasion for if it were adopted, an undesirable immigrant who surreptitiously got ashore without passing the Immigration Officer, could not be dealt with under section 14. It is true that under section 9 an Immigration Officer may refuse permission to an immigrant to remain after landing, but this would not bring him within the terms of section 14, for upon Mr. Bernacchi's construction he would not have been refused permission to land, nor would he have landed in contravention of the Ordinance. Neither is the refusal of permission to remain after landing, a ground for dealing with an immigrant under section 14(1). The construction that the plaintiff invites the Court to place on section 9 would therefore, in my view, be repugnant to the general purview of the Ordinance and where the language is ambiguous, a construction which would lead to that result should not be adopted. Now, the word "refuse" is defined in the Oxford Dictionary as "to decline to give or grant; to deny (something asked) to a person" and Mr. Lonsdale argues that the use of this word indicates an intention that permission should be sought and that the words "refuse permission" envisage a request coupled with a rejection. I think this is a reasonable construction but putting it at the lowest, it is one that can be adopted without violence to the spirit or language of the section, and since it is in conformity with the scheme of the Ordinance as a whole, the Court should adopt it in preference to the other.

14. It was further submitted by Mr. Bernacchi that inasmuch as the plaintiff was taken ashore under arrest and never asked permission to land, he cannot be said to have been refused permission to do so. This proposition is not supported by Rex v. Governor of Brixton Prison, Ex parte Lannoy (58 T.L.R. 350). In that case, a deportee from Sierra Leone was taken ashore in England under arrest without his asking for leave to land. The deportee alleged that the Immigration Officer did not inform him that leave to land was refused, but the Court held that these details were of no importance since in one way or another it was clear that leave had not been granted and that being so, his detention was lawful.

15. After a careful consideration of the Ordinance as a whole, it appears to me therefore that very cogent reasons could be adduced in support of the defendant's original plea of justification.

16. But in his amended Statement of Defence, the defendant admitted paragraph 6 of the amended Statement of Claim (which alleged that the defendant without lawful authority caused the plaintiff to be imprisoned at Stanley from 21st February until 10th March) and proceeded to set out in mitigation facts which had previously been pleaded in justification. Grown Counsel explained that he did this because of the decision in Christie and Morris v. Leachinsky (supra) in view of which he felt that the delay in communicating the detention order to the plaintiff could not be justified. He submitted however that damages could be claimed only in respect of the period between the time of the plaintiff's arrival at Stanley and the reading of the order or alternatively from the signing of the order until its terms were made known to him.

17. Objection was taken to this submission on the ground that the defendant, by his pleadings, had admitted false imprisonment over the whole of the period 21st February to 10th, March and he could not therefore plead justification for any part of it. As to this, it is well settled that in mitigation of damages a defendant cannot go into evidence which, if proved, would constitute justification. But where the facts are admitted, I am not aware of any authority which precludes the court, when assessing damages, from considering to what extent, if any, the plaintiff's detention was unlawful. If the court were satisfied that upon a proper construction of the law the plaintiff either had suffered no legal wrong at all or one much less than the defendant had admitted, it would be a manifest absurdity that the court should nevertheless be bound to award him damages based upon an erroneous view of the legal position, merely because the defendant had been wrongly advised.

18. Let us now examine the decision in Leachinsky's case. The respondent was arrested without warrant by a Police officer on suspicion of having committed a criminal offence and without being informed what the real charge was. The proceedings against him were subsequently withdrawn. Now it is a general rule that where a constable arrests without warrant, he should at the time state on what charge the arrest is made. In the present case, however, it is clear from the detention order and other evidence that it was at no time intended to prefer any charge against the plaintiff and that he was merely being detained pending an opportunity of removing him from the Colony. Further in Leachinsky's case, there was no power to arrest him without a warrant for the offence with which he was charged. But a person who comes within the provisions of section 14 of Ordinance 32 of 1940 may lawfully be placed in detention with the consent of the Immigration officer. For this and other reasons, I am disposed to think that Leachinsky's case is distinguishable from the present one.

19. In view, however, of the course adopted by the defence, I will assume for the purposes of this case that it does apply and proceed to consider how far it carries the plaintiff Leachinsky succeeded in his claim for false imprisonment for the period between his arrest and the time he was remanded in custody by a magistrate. But his further claim in respect of his detention while under remand did not succeed, for it was held that any liability of the Police ended when the stipendiary's order was made, the remand being the action of the magistrate for which the Police could not be held responsible. Applying this "ratio decidendi" to the present case, it appears to me that even if the delay in communicating the order was unlawful, any illegality in that regard was cured once the terms of the detention order were made known to the plaintiff, and from that point onwards he was held under a valid order, the contents of which were known to him. It was suggested in the course of the hearing that the proper course would have been to release the plaintiff before the reading of the order and re-arrest him immediately after. I see no reason why this pantomime should have been gone through and in any case, as Lord Simonds observed in Leachinsky's case, the difference between being arrested on one side of the door or the other is unsubstantial, so the rule of "de minimis" would apply.

20. What then should be the measure of damages for the very brief period intervening between the making of the order and its notification to the plaintiff? Lord du Parcq in the same case speaks of "the omission to tell a person who is arrested at, or within a reasonable time of, the arrest with what offence he is charged." Can the time that elapsed in the present case between the making and the reading of the order be regarded as unreasonable? I do not think so. And what actual damage did the plaintiff sustain by the postponement of reading the order until his arrival at Stanley? I cannot see that it made any practical difference whether the order was read before or after. Another circumstance that should, I think, be taken into consideration is that the plaintiff largely contributed to his detention by his own acts and omissions: in the first place by declaring that he had no travel documents and in the second by delaying to look for them until 8th March. The defendant stated that if the plaintiff had produced his emergency certificate on 21st February, he would not have ordered his detention, and this is borne out by the fact that when the certificate was eventually brought to his notice, he at once ordered the plaintiff's release. It may be noted further also that it was open to the plaintiff to have appealed to the Govarnor-in-Council under section 19 but he did not avail himself of this right. Lastly, the Hong Kong Government has (somewhat quixotically) disbursed more than $1700 for the plaintiff's board and lodging since his release to enable him to take the present proceedings against itself. I say this because although the action is nominally against certain officers, the real defendant is the Government of Hong Kong, as is shown by the foregoing fact and the course of the negotiations that took place.

21. Having carefully considered all the circumstances of this rather peculiar case, I have come to the conclusion that in view of the defendant's admission of liability, there should be a verdict for the plaintiff, but I consider he is entitled only to nominal damages which I assess at $100. As the plaintiff discontinued his claim against two out of the three defendants and abandoned three out of four of the heads of his claim, there will be no order for costs.