Leung Kwai-yu v. Police Sergeant 1615 Wong Kam-yiu and Others

HCA002349/1972

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

ACTION NO. 2349 OF 1972

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Coram: Trainor J. in Court

Date of Judgment: 28 June 1973

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JUDGMENT

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1. This is an action for damages for assault and malicious prosecution.

2. The plaintiff, who is the sub-manager of the Yick Lee Drum Factory Ltd. which carries on business at No. 46-48, Cherry Street, Kowloon, alleges that on the 7th December 1971 at his place of business he was assaulted by the first and second defendants, both police officers, and that subsequently they maliciously and without reasonable cause or excuse prosecuted him for obstructing a police officer in the performance of his duty. The proceedings which ensued were dismissed by the magistrate who heard the case without calling on the defence.

3. The case of the plaintiff was as follows:

4. On the 7th December the plaintiff was in his office in the factory at about 12.45 p.m., during the break for lunch, watching television with one LI Ho. The office is on the first floor and a flight of stairs leading from the ground below ends at the office. He heard a noise of people running up the stairs and four men and a woman, all in civilian attire, rushed in to where he was. The first defendant was one of those people and he shouted 'Don't move. Don't make any noise". The plaintiff said he replied pretty loudly "What's the matter ? What's the matter ?" He said no one answered and four of the five, without more ado, ran through the office, into a workshop on the same floor and from there to another workshop on the next floor. The plaintiff said the second defendant remained with him and said "I told you not to make a noise. You have made a noise" and caught him by the back of the shirt collar and the left arm. He said in this position he was walked around on the first floor and then taken to the second floor. There, he said, he saw the rest of the party and a number of his firm's fokis. Two of the fokis, MOK Fok and PAK Hing were handcuffed to each other by the first defendant. The plaintiff said the first defendant said to him "I told you not to make noise yet you did so" at which time the second defendant put his arm around the plaintiff's neck. He said that someone said to handcuff him whereupon a handcuff was taken off PAK Hing and put on the plaintiff's wrist leaving him handcuffed to MOK Fok. He said the first defendant then said "You people will admit to gambling", and that when plaintiff denied he had been gambling the first defendant struck him several blows on the chest and slapped his face. The plaintiff said the second defendant then intervened and announced that unless there was an admission of gambling he would give them a "white powder", which plaintiff understood to mean that a dangerous drug would be "planted". He said the second defendant tried to put his hand into his, the plaintiff's, pockets but that he pressed against his pockets and prevented him. He said that the second defendant then punched him several times and when he put up his hands to defend himself the second defendant put his hands into the plaintiff's pockets and squeezed his testicles causing considerable pain. He said he crouched down whereupon he was "kneed" in his private parts.

5. After this, the plaintiff said, he was taken to the front part of the second floor where he saw Madam YEUNG Hon-kuen, the manager of the firm who is, in fact, his aunt. He said he told her of the assault and she told, or asked, the second defendant not to assault the plaintiff. He said that the second defendant told her he would, and proceeded to do so. A person in a red sweater ordered the handcuffs to be removed from the plaintiff and MOK 'Fok, and the party who had first rushed into the premises left taking MOK Fok and a number of fokis with them.

6. When they had gone, the plaintiff and his aunt had a discussion and as a result it was decided that the plaintiff would report the assault to the police. He, his wife and Madam Yeung left in the chauffeur driven factory car and went to Mongkok Police Station where they arrived about 2.30 p.m. No one else went in the car. On arrival, the plaintiff said, they went to the Report Room where they met the first defendant who asked them "What's the matter with you people ?" and took them to a room marked "Reception Room". In the room the first defendant asked why they were there. The plaintiff said he told him he was there to make a report, though he did not say about what. He said the defendant did not look too happy at this and told the plaintiff and his aunt to wait. He said this defendant returned about an hour later and said to Madam Yeung "This is no place for ladies, go home" and that when she left said to the plaintiff "Now I am going to charge you with obstructing the police. Bail $300. In default go to gaol". The plaintiff said he was then taken to where the fokis were but they were released on depositing a sum of $30. He said that as a result of a request to a European police officer he was taken by a police officer to be medically examined. He said he was brought back to the police station but as he had not $300 he was kept in custody until about 7.00 p.m. when the money was brought to him by his wife.

7. The plaintiff said that when he saw the European officer he complained that he had come to make a report but he found himself being charged with obstructing a police officer instead. He said the only consoluation he got was the answer "I know. I know". He said no details were recorded of his complaint.

8. The plaintiff said that when he was released from Mongkok Police Station he immediately walked to Kowloon City Police Station where he made a report which was duly recorded in detail, though so far as he knew, no action was ever taken on it.

9. The plaintiff said that the charge against him of obstruction was joined with one of gambling against the fokis but on counsel's application his case was tried separately. He said the second defendant gave evidence and the first was offered for cross-examination and at the end of the prosecution evidence the learned magistrate dismissed the case.

10. The plaintiff gave evidence that he had to pay $4,500 to his legal advisers and $210 as medical expenses.

11. LI Ho who is a clerk with the plaintiff's firm gave evidence which, so far as it went, corroborated the plaintiff's story. He said he was watching television with the plaintiff in the office on the 7th December, 1971 when several persons in civilian clothes ran up the stairs. He said that one of this party said "Don't move. Don't make a noise". He said that one man held the plaintiff by the collar and led him to the rear of the premises and then they went upstairs. He said that only one person spoke to the plaintiff and that was to the extent of two sentences. He said no one spoke to him, the witness. He also stated that the plaintiff, his wife and Madam Yeung came down from the second floor about 10 minutes after the police party and fokis had gone and left in the Mercedes car belonging to the company. He, LI Ho remained.

12. Madam Yeung, an elderly lady and manager of the firm for which the plaintiff is sub-manager, gave evidence. She said she arrived at the factory about 1.00 p.m. and as a result of what she heard went upstairs and saw her nephew, the plaintiff, handcuffed to MOK Fok. She said she asked the second defendant why this was so and was told by him that he was cheeky. She said she asked why was he assaulted and she told the court "He hit him to show me and said : 'you haven't seen anything yet. You should see teddy boys in the police station'" She said her nephew was doubled up and complaining. She said the handcuffs were removed from him and the police left. She said she suggested that she and her nephew should go to a hospital or a police station and after about twenty to twenty-five minutes they, with plaintiff's wife, drove to Mongkok Police Station. She said when they set out there was no police vehicle at the factory. The witness said that at the police station she and the plaintiff went to the Report Room where they were asked why they were there, and then they were taken to a small room. She said they sat there for about an hour during which time people, and the second defendant in particular, kept coming in and out. She said eventually the second defendant said there was nothing for her to do and to go home. This she did.

13. MOK Fok gave evidence of three men and a woman coming on the 7th December, 1971 to a part of the Yick Lee Drum Factory where he and some fellow workers were relaxing during the lunch break. He said he was handcuffed to one, PAK Hing, by the first defendant but that later the handcuff was taken off PAK Hing and attached to the plaintiff. He said he saw the second defendant twist the plaintiff's arm and saw the first defendant punch him in the chest. He said he heard the first defendant saying "Either you admit to gambling or I will give you a white powder." He said that subsequently the handcuffs were removed and he with others, not including the plaintiff, were taken to Mongkok Police Station and were released about an hour later on the deposit of $30.

14. PAK Hing gave similar evidence. He said he saw the plaintiff being "kneed" in his private parts. Both of these witnesses said that at the time they were put into the police vehicle they did not see the factory car.

15. The plaintiff's wife too gave corroborative evidence. She said she went to the police station with the plaintiff and his aunt and as a result of what the first defendant said she went home to get $300 to deposit as bail. She further said she went with her husband to Kowloon City Police Station when he was released from Mongkok.

16. Both defendants gave evidence. The first, a Police Sergeant, said that on the day in question he went to the factory in a party of five led by an Inspector Chan which included the second defendant. He said the party entered the building at Cherry Street and went to an office where the plaintiff was sitting. He did not see anyone else there. He said that when the party entered the plaintiff stood up and asked what was the matter. He said the Inspector produced his warrant card and an authorisation issued pursuant to Section 16(1) of the Gambling Ordinance. On this, he said, the plaintiff said that there was no gambling there that day, but the Inspector told him that nevertheless they had to do their duty and make a search, and told the plaintiff not to move or make a noise and directed the second defendant to remain and watch him. He said he and the rest of the party went to the second floor, where, he saw a number of people squatting on the floor, and the party approached slowly. He said when they were near them a shout "Police! Scram!" was heard from the floor below. He said those squatting got up and ran but some seven were caught. He said that shortly after the second defendant arrived with the plaintiff and said that it was the plaintiff who had shouted and that he, the second defendant, had "verbally cautioned him for obstructing a police officer in the execution of his duty". To this, he said, the accused said "I did not gamble. You can arrest me for anything".

17. The first defendant said that the second defendant told the plaintiff not to make noise and not to move around but the plaintiff kept twisting and trying to shake off the second defendant. The plaintiff, he said, was very excited and "very dissatisfied." He said the second defendant told the plaintiff that if he did not stop moving around he would be handcuffed. He said the plaintiff continued to move around whereupon the second defendant produced his handcuffs and, with the aid of the first defendant, handcuffed him. He was then made to squat. The plaintiff and the fokis were later taken to the front of the building and the women police constable sent to summon transport. While there Madam Yeung and the plaintiff's wife arrived and Madam Yeung asked why the plaintiff was handcuffed. The Inspector, he said, asked her who she was. He said that Madam Yeung said she was the plaintiff's mother. (It was denied in their evidence by Madam Yeung and the plaintiff that she ever said any such thing. She is in fact an aunt by marriage). The Inspector, the first defendant said, told her that the plaintiff had been told not to move and not to struggle but he did and therefore he had to be handcuffed. The defendant said that the plaintiff was very excited and said "I did not gamble. Why do you always have to arrest me". (An interesting observation as the plaintiff had never been arrested before.) Madam Yeung, according to the first defendant then said : "My son is very nervous. He gets excited easily. Take the handcuffs off him, I can guarantee he will not cause trouble" upon which the Inspector directed the handcuffs to be removed.

18. About this time police transport arrived and, the first defendant said, the party, the seven fokis and the plaintiff were told to go down to it. The plaintiff said he did not want to travel in the police car but the Inspector said he must. At this Madam Yeung intervened and said that the plaintiff was very frightened and that there would be trouble if he had to travel with the police, and asked if he could travel in the company's car. The Inspector consented to this and instructed the first defendant to remain with the plaintiff and his "mother". He said that they all went down to the road and the plaintiff, his wife and a child carried by the wife, Madam Yeung and LI Ho got into a Mercedes car. He said the police transport set off with the fokis and the police party followed by the Mercedes and he, the first defendant, brought up the rear in his own car.

19. The first defendant denied that he assaulted the plaintiff at Cherry Street and said he did not see anyone else do so. He further denied that the plaintiff was handcuffed to MOK Fok.

20. At the police station, the first defendant said, the plaintiff and his party went in and he followed. When he went in he said he saw the plaintiff sitting in the Report Room and said to him "You are one of the prisoners come with me". He said he took the plaintiff to the Duty Sergeant and told him of the offence. He said that on the instructions of the Duty Sergeant he took the plaintiff to the Detention Room, where he handed him over to the police officer in charge and went to his office. He said he had no further conversation with the plaintiff then, and that when he left him in the Detention Room the seven fokis were also there. Madam Yeung had remained in the Report Room.

21. The first defendant said that about ten minutes later he returned with a police constable to finger-print the plaintiff. He said the plaintiff refused to be finger-printed, saying he had not gambled, and he was taken to an investigation room. He said Madam Yeung was there because when he went to get the plaintiff she "just followed". The first defendant said that the plaintiff persisted in his refusal to be finger-printed but finally consented when he was told it was police practice to finger-print persons charged with obstructing the police. At this time, the first defendant said, there was a European police officer in the Report Room but he did not have any conversation with the plaintiff.

22. The second defendant told the court that as soon as the police party entered the office of the plaintiff on this occasion the plaintiff said "You're here again". He said the Inspector in charge of the party revealed his identity and took some documents from his pocket which he showed to the plaintiff saying he had search warrant. To this the plaintiff replied "You don't search; there are no gamblers today". The second defendant the Inspector told the plaintiff to stay where he was and not to make noise and told this defendant to remain with him. The Inspector then went into the inner premises with the rest of the party. A moment after they left, the defendant said, the plaintiff took two steps forward and shouted "Police.' Scram .'". The defendant said he rushed forward and put his arms around the plaintiff locking his hands at the front of plaintiff's chest and told him not to shout or he would arrest him. He said the plaintiff tried to shout again and he put his hand over the plaintiff's mouth. He said the plaintiff used his two hands to remove the defendant's hand from his mouth. The defendant said he then heard a scurrying on the second floor (he and the plaintiff were below on the first) and the plaintiff, who was being held by the back of the pants and shoulders started to struggle and tried to hit the defendant with his elbow. He said he commenced to push the plaintiff to bring him to the Inspector but he resisted. He said that there was a struggle and he told the plaintiff that he would arrest him for obstructing the police in the course of their duty. He said he pushed the plaintiff to the second floor where the Inspector was. He said he had to push him all the way up and had to use force. He said he brought the plaintiff to the Inspector and told him that the plaintiff was the person who had shouted and that he had arrested and verbally charged him. He said the plaintiff said "You police can do anything" and commenced to twist and turn. The defendant said he warned him that if he did not keep quiet he would be handcuffed. He said the plaintiff refused so, with the assistance of the first defendant, he handcuffed him. He said the plaintiff was excited and was told to squat. This he did and he seemed to quieten down. The defendant said the plaintiff and the other fokis were then taken to the front of the building and Madame Yeung and the plaintiff's wife carrying a baby, arrived. He said Madame Yeung asked why was the plaintiff handcuffed. He said the Inspector asked her who she was and she said she was the plaintiff's mother. She was told that the defendant had been very noisy and had to be handcuffed. According to this defendant "the mother" then said "Don't scare him. He is very easily scared. Release him" and the Inspector directed this defendant to do so. He said he was instructed to take all eight, the seven fokis and the plaintiff, down below but before he could do so he heard the mother say to the Inspector "He's very nervous he can't travel in the police van". He said before replying the Inspector told him, the defendant, to take the fokis down below. He said he saw the Inspector, the Sergeant (the first defendant), the plaintiff, his wife and "mother" come down and, he saw the Inspector watch them get into a private car and the Sergeant get into his own car. The Inspector then got into the vehicle in which were the fokis. The second defendant denied that he had at any time during this operation punched the ppaintiff, slapped his face or squeezed his testicles.

23. The defendant said that at the police station, having reported to the Duty Officer he and the other members of the police party took the seven fokis to the Detention Room. He said he did not then see the plaintiff. He said he left the Detention Room but returned 12 - 13 minutes later when he saw the plaintiff there. The defendant said that he made an entry in his notebook, told the plaintiff of his offence, cautioned him and asked him to sign the entry in the notebook. He did not say what the entry in his notebook was or its purpose but I might say, parenthetically, that it occurs to me as odd that this police constable should in the circumstances approach the accused in this way. I can only assume that he intended to convey that he had in mind inviting the plaintiff to make a statement. It seems, as I said, odd that this police constable should approach the plaintiff for a statement. After all what had this officer to learn from the plaintiff. However, the plaintiff refused to sign and the defendant did not see him again.

24. This defendant gave evidence in the prosecution of the plaintiff for obstruction.

25. Inspector Chan who led the party to the factory gave evidence. He said that on arrival he saw only the plaintiff in the office on the first floor. He said he immediately approached him showed his warrant card and an authorisation issued pursuant to the Gambling Ordinance and told the plaintiff he had come to execute the authorisation. He said the plaintiff stood up and extended his arms and said "There is no one gambling today". The witness said that he told the plaintiff that he was there in the performance of his duty, not to obstruct and to be quiet. He said he told the second defendant to look after the plaintiff so that he, the Inspector, could carry on without interruption, and with the rest of the party went to the second floor. There, he said, he saw ten or twelve men squatting in a circle holding cards. He said he led the party quietly forward to arrest them when suddenly he heard two loud shouts "Police! Escape! Police! Escape!" He said that on this the men stood up and ran but his party succeeded in arresting seven. He said the first defendant seized thirteen cards and some cash. He said he instructed one of his party, a woman police constable, to summon transport and at the same time saw the second defendant coming up the stairs with one hand on the plaintiff's shoulder and the other in the waist band of his pants. The second defendant, the witness said, reported that it was the plaintiff who had shouted "Police! Escape!" The plaintiff, he said, was struggling and shouting loudly that he was not one of the gamblers and why should he be arrested. He said the second defendant told the plaintiff not to struggle or he would be handcuffed to make him calm down. The plaintiff continued to struggle and the second defendant, helped by the first defendant handcuffed him. He said the plaintiff then calmed down a little. The witness denied that the plaintiff was handcuffed to anyone else.

26. The witness said everyone then went to the front of the building and a woman, claiming to be the plaintiff's mother, and another, with a baby on her back, arrived. He said "the mother" asked why was the plaintiff handcuffed and was told that he had obstructed the police and that he had been warned by the police constable about struggling with him. On hearing this, the witness said, "the mother" said the plaintiff was a very excitable young man (he is 28 years of age) and easily lost his temper and asked that the handcuffs be removed because as she was present he would calm down. During all this time, the Inspector said, the plaintiff kept on shouting, nevertheless he told the second defendant to release him. The second defendant did, and the plaintiff quietened down.

27. Transport having now arrived, the witness said they all proceeded down. When they arrived at the first floor "the mother" asked that the plaintiff be not conveyed in the police van because he would get excited "by sitting in a van in which there were uniformed police". The witness continued "After a guarantee that the plaintiff would remain calm and go in the private car I conceded". He said they all went down to the street and proceeded in vehicles to Mongkok Police Station: the plaintiff in a white car preceded by the police transport and followed by the first defendant in his private car.

28. At the police station, the witness said, he led the party and seven prisoners to the Report Room. There he reported the arrest of seven people for gambling and another, who was being escorted by the Sergeant, for obstructing the police. He said he told the Duty Officer, Inspector Ronald, the facts - the plaintiff was not present - and then took the seven to the Detention Room on the instruction of the Duty Officer. He then went to his office to type out a report as is the usual procedure. While there, he said the first defendant came and said he had brought in the plaintiff. The witness said he went and checked and saw the plaintiff in the Detention Room with the other seven. He said he also saw "the mother" outside the Report Room but could not remember if the wife was there. He said he had nothing to do with the plaintiff after that.

29. This witness said he first learned the name, address, and occupation of the plaintiff after arrival at the police station. He said that while the plaintiff and the seven fokis were in the Detention Room these details were obtained from all, but he did not say by whom. He did say, however, that he had nothing to do with the Assistant Duty Officer in connection with this case and did not give him any details. The Assistant Duty Officer, who gave evidence, said he did and as a result he entered them.

30. The witness concluded his direct evidence by saying that he did not see the defendants assault the plaintiff and that any force used was the minimum necessary to enable the police perform their duty. He said that until he left the police station at 5.00 p.m. he did not know of any complaint by the plaintiff.

31. An Inspector Ronald who was the Duty Officer gave evidence but he was very vague. At one time he said it was he fixed bail for the plaintiff at $300, but he then discovered that the plaintiff was released on bail at 18.34 hours some two hours after this officer went off duty. He did however produce the report book in which he had made a very brief entry, "made a counter-allegation and sent to Queen Elizabeth Hospital for medical treatment". He also said, which is I think of some importance, that the plaintiff arrived in the police station some time after the arrival of the seven fokis. He said the plaintiff came in by the front door, the fokis by the back.

32. It is quite clear that even allowing for the lapse of time since this incident took place there are large areas of the evidence in which there is no room for error. One side or the other is lying. Either the plaintiff shouted "Police! Escape!", or words to that effect, or he did not. Either he was handcuffed to Mok Fok or he was not. No lapse of time could obfuscate facts like those. Either the plaintiff was punched on the chest, slapped on the face and hit on the testicles or he was not. Either he, as a prisoner, travelled with his aunt in the Mercedes which was in procession between the police van and the car driven by the first defendant or he did not. Either the Inspector produced the authorisation issued under the gambling ordinance or he did not.

33. There is no room for error on facts such as these and I have to choose between the two stories.

34. To take the last point first, the authorisation was it produced?

35. The inspector in charge of the party, Inspector Chan, said that when he went into the plaintiff's office in the factory he immediately produced and showed his warrant card and the authorisation to the plaintiff and told him they were there to execute the authorisation. Both defendants said they saw the authorisation produced. The way the second defendant put it was "I also saw the Inspector take out some documents to show him".

36. When the second defendant was being cross-examined he confirmed saying this and said he heard the Inspector say "I am Inspector Chan there is my warrant card". On further cross-examination he said he only said he saw "a little white". He was referred to his evidence in the Magistrate's Court and asked if he had said this : "I did not see the Inspector produce the gambling authorisation and show it to the defendant ...... If he had done so I would have seen it". In reply he said: (a), that he had said he did not have a clear view; (b), that he had not said in the court below what was then put to him; and (c), denied that he had said it, adding "It is a long time ago. I have not a clear recollection". The first defendant conceded in cross-examination that the second defendant was in a position to see the authorisation if produced. The plaintiff had emphatically denied that an authorisation was shown to him by the Inspector. Indeed he denied that the Inspector ever spoke to him.

37. How was the plaintiff handcuffed?

38. The plaintiff said he was handcuffed to Mok Fok. The defendants said he was not. They said he was under arrest for obstructing the police and was warned that if he did not cease struggling in the hands of the second defendant he would be handcuffed to restrain him. The first defendant said the plaintiff was very excited - very dissatisfied - and was twisting, trying to get out of the second defendant's hold and maybe escape. The second defendant said that in the office below when he caught the plaintiff and put his hand over his mouth to stop him shcuting the plaintiff was twisting and tried to "elbow" him. He said that when he took the plaintiff upstairs to where the Inspector was he, the defendant, began to get tired and having again warned the plaintiff to be quiet he, with the assistance of the first defendant, handcuffed both hands of the plaintiff when he refused. In cross-examination he added another reason for handcuffing - to prevent the plaintiff from escaping. It was then put to the second defendant that according to the record of proceedings in the Magistrate's court he had there said the plaintiff never tried to escape, to which he replied "It seems to me I did not say that". He was then questioned about being pushed and finally in answer to me he said the plaintiff did not push him nor try to run away. The court at that stage adjourned to the next day.

39. On the next day the cross-examination was resumed as follows:

40. The Inspector said the plaintiff was struggling when he saw him brought up to the second floor by the second defendant. In cross-examination he described this as swinging his arms; trying to get away from the second defendant; and shouting and trying to escape.

41. This witness said he directed the handcuffs to be removed from the plaintiff as a result of the observations of the plaintiff's "mother".

42. Was the plaintiff arrested but allowed travel as a prisoner in a private car in convoy to the police station?

43. The evidence of the Inspector was that at the time they left the factory he did not know the name, address or occupation of the plaintiff but at the request of the "mother", who said the plaintiff would get excited again if he had to sit in the police vehicle in which there were uniformed police, he permitted him to travel in the private car. He said when they arrived at the police station he did not see the private car. He said he went in with the seven fokis and reported to the Duty Officer their arrest for gambling and also the arrest of the plaintiff for obstructing the police. He said he did not see the plaintiff but after a short time the first defendant came and reported he had brought him in. In cross-examination he was asked if the interval was about 15 minutes and he said no - 8 or 9. The witness was then asked about his evidence in the Magistrate's Court and asked if he had said there: "when I got back to the police station and reported the defendant was with me. He was taken straight into the report room". He did not arrive 15 minutes later". Further cross-examination on this point ensued to which the Inspector replied that he could not remember but finally agreed that he did not see the plaintiff being taken to the report room.

44. Did the plaintiff shout "Police! Escape!" or words to that effect?

45. The plaintiff emphatically denied this; but the defendants were equally emphatic that he did so, as was the Inspector.

46. It was common case that the learned magistrate who heard the obstruction charge against the plaintiff carried out an experiment in the factory. He, with all concerned went to the factory and the second defendant was told to call out from where the plaintiff was alleged to have done so while the magistrate listened at: (1) the place where the fokis were arrested; and (2) the place where the Inspector was when he alleged he heard the shout.

47. The first experiment was carried out with the magistrate at the place where the Inspector said he was when he heard the shout. The learned magistrate heard nothing. The second defendant was told to shout again and was heard faintly but defence counsel pointed out that the second defendant had taken up a position closer to the magistrate. He was instructed to shout from the original position and was heard, but faintly. When the shout was again repeated with the magistrate at the place where the fokis were arrested nothing was heard.

48. An effort was made to explain why the experimental shouts were not heard, or only heard faintly, by the fact that when the experiment was carried out that there had been a change in the contents of the rooms and, in addition, the factory was in operation while at the time of the alleged offence it was not. It was pointed out that the attention of the magistrate had not been drawn to the changed conditions. The second defendant was asked had he pointed this out to counsel andhe said he did not have time to do so as he could not get near him. When the Inspector was asked he said he and the second defendant had pointed out to Crown Counsel that the conditions were different. However, the attention of the court below was not drawn to the alleged change in conditions.

49. It must strike one that it would be most unusual if the noise were such as to drown, or practically drown, the shout from below that the learned magistrate who conducted the experiment and who, apparently, was so attentive to detail did not notice it.

50. As to the assault on the plaintiff, he certainly suffered some injury. Dr. KWOK Po-wong who examined him at 3.30 p.m. found a bruise 2" x 3" on the anterior aspect of the chest wall. He also found a mild tenderness over the right lower quadrant. The injury he said was consistent with a blow from a clenched fist.

51. In cross-examination he said that the plaintiff was moaning. So far as the tenderness was concerned, he said he ascertained this not only from the plaintiff's account but also as the result of palpation. He said it would require more than a mild blow to cause the bruise but a blow from a fist was not the only possible cause. He said the injuries were, relatively, minor and that the following day he would not expect to find any effect other than a mild tenderness. He said the bruising could have been caused by the plaintiff being held by someone who had his arms around him, depending on the force used. The doctor said he examined the plaintiff's testicles, although no complaint was made, but found no injury. He told me that if there had been substantial pressure on the testicles he would have expected a residue of pain.

52. It is between these two stories that I have to decide.

53. In endeavouring to ascertain where the truth lies I can only have recourse to my own observation of the witnesses and an examination of the evidence, in particular as to way it was given, its consistency and how it stood up under cross-examination.

54. So far as the plaintiff is concerned I considered him to be a placid, inoffensive person of whom the epithet "simple" used by Inspector Ronald was not inapt. I considered him to be a witness of truth and reliability. He gave his evidence, I thought, with clarity, without hesitation and convincingly. He did perhaps at times show some signs of quiet indignation but if his story were true, that was in no way surprising. His story was consistent throughout and was not seriously shaken throughout a rigorous cross-examination. In addition his behaviour throughout was consistent. Just as in cases involving indecency a court or jury can get a lot of assistance from a complaint made at the earliest opportunity so can assistance be derived in this case from the plaintiff's complaint and subsequentlbehaviour. He said that after a discussion with his aunt subsequent to the departure of the police party he went to the police station at Mongkok to complain. That he did complain is evidenced by the brief entry made by Inspector Ronald. The plaintiff maintained that not getting any satisfaction, immediately on being released, he went to Kowloon City Police Station and complained there. That was largely unchallenged. I say "largely unchallenged" because of a question put by counsel for the defendants:

That was the only effort made to challenge the allegation of the complaint and no witness made any attempt to deny such a complaint was made.

55. I considered the evidence of LI Ho to be truthful and cross-examination did nothing to alter my belief. MOK Fok's evidence was on the whole truthful and reliable, I thought, as was that of PAK Hing.

56. I did have some doubts about the evidence of the plaintiff, MOK Fok and PAK Hing concerning the twisting of and kneeing the plaintiff in the testicles having regard to the medical evidence. The doctor said that the plaintiff did not complain about his testicles but nevertheless he examined them. The plaintiff maintained both in direct examination and cross-examination that he did. I find it difficult to understand why the doctor would of his own accord have examined the plaintiff's testicles if the only complaint was of pain in the lower chest area. However, being satisfied that the plaintiff was a truthful witness on all other matters I see no reason to disbelieve him on this, even though I consider that with regard to the force used and the pain caused, and indeed his injuries generally, he did exaggerate. The doctor may well have forgotten the complaint after the long interval.

57. I do not intend to dwell at length on the evidence for the defence. I found it to be unsatisfactory, to say the least of it, vague and contradictory. I think that this is established from some of the incidents in the cross-examination of the first and second defendants and the Inspector to which I have referred.

58. I have given a lot and lengthy consideration to the evidence of this case and I accept the evidence of the plaintiff as being a true account of what took place and reliable on the material facts.

59. I hold that the defendants assaulted the plaintiff as alleged.

60. As to the claim for malicious prosecution I find that there were no grounds whatever for prosecuting him. I do not believe that he shouted out "Police! Scram!" or anything similar. He did, as he admitted, protest loudly to the second defendant (indeed his loud protestations may have irritated the second defendant, though this was never alleged) but that is a far cry from obstructing the police in the exercise of their duty. Had the point been raised I might have had to consider whether or not it was a reasonable ground for the second accused thinking that the plaintiff's loud voice was intended to frighten off the alleged gamblers but it was not raised. It is perhaps of some interest that the case against the seven fokis was dismissed.

61. The events which culminated in the plaintiff being prosecuted in the Magistrate's Court commenced when the second defendant took charge of the plaintiff in his office and then brought him up to the second floor of the factory. The next incident was when the first defendant met the plaintiff in the police station and asked him what was the matter and when the plaintiff said he was there to make a report ordered him into a room where he was left, with Madam Yeung, for about an hour. This was followed by the return of the first defendant who having told Madam Yeung to go home said "Now I am going to charge you with obstructing the police. Bail $300, in default go to gaol". The final event was when the second defendant gave evidence against the plaintiff and the first was offered for cross-examination and the Magistrate dismissed the charge without calling on the defence.

62. I have no doubt that that the first and second defendants acted maliciously - had malus animus. To start off with, I am satisfied that the plaintiff was never told that he was under arrest but might travel to the police station in the Mercedes motor car between the police vehicle containing the fokis and the car driven by the first defendant. Moreover, though it is largely incidental, I am satisfied that there were not five or six persons in the Mercedes as alleged by the defence but only the plaintiff, his wife, his aunt and the driver. I believe that the first defendant when he met the plaintiff at Mongkok Police Station and realised he was there to complain about what had happened at the factory decided to take pre-emptive action. I am satisfied from the way the first defendant, having sent Madam Yeung home, offered bail to the plaintiff, and that the plaintiff was detained until he got the money about 7.00 p.m. (from his wife who had to go home to get it) to deposit as bail rather than offer to accept his recognisance with. if necessary, his aunt as surety, clearly indicated a spiteful disposition by the first defendant. In my opinion it was highly improper to demand a monetary deposit. The overall picture, and the fact that on a groundless charge the second defendant gave evidence against the plaintiff as he did indicates that he too acted spitefully and maliciously.

63. I find that the first two defendants instituted and carried on the proceeding against the plaintiff without reasonable or probable cause and that they did so maliciously.

64. The only thing remaining is the question of damages. These are claimed under two headings but as they are so closely interlocked I propose to treat the damages as a single issue. I allow the special damages claimed for medical attention and legal fees. This amounts to $4,748.

65. In calculating the general damages I have taken into consideration not only the pain and suffering (which I consider to have been relatively slight and was such as should not have caused the plaintiff to be absent from work the next day) caused by being struck but also the attendant humiliation of being pushed around and handcuffed to one of the fokis. I consider the sum of $4,000 to be appropriate compensation for the assault and the malicious prosecution.

66. The defendants in this case were clearly acting within the scope of their employment as servants of the Crown. That being so the Crown is liable for their acts and by virtue of the Crown Proceedings Ordinance the Honourable the Attorney General was joined as a defendant.

67. The effect of my judgment is that the defendants are liable, jointly and severally, to the plaintiff in the sum of $8,748. The plaintiff is also entitled to his taxed costs.

Representation:

Mr. Ming Huang (Alexander Tsang & Co.) for Plaintiff

Mr. Evans, C. C. for Defendants