Chan Nam and Another v. Attorney General

HCA003382/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 3382 OF 1973

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Coram: Briggs, C.J.

Date of Judgment: 28th February 1975.

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JUDGMENT

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1. Originally, the plaintiffs brought this action against "The Commissioner of Police, Royal Hong Kong Police Force". The Commissioner is not a corporation sole and it is not possible to bring an action against an office. The correct defendant in actions of this nature is "the Attorney General" by virtue of the provisions of the Grown Proceedings Ordinance. Accordingly, I allowed the title of the action to be amended by substituting "The Attorney General" as the defendant.

2. On May 17th, 1973, Chief Inspector Scott of the Royal Hong Kong Police Force was authorized to enter the first floor of 85 Tung Choi Street in order to search those premises for the purpose of discovering whether those premises were a common gaming house. The authorization was issued under section 16(1) of the Gambling Ordinance.

3. The Chief Inspector, together with a party of police searched the premises with no result. It was noticed that the windows of the storey above, namely, of the second storey of 85 Tung Choi Street were painted in the same manner as those on the first floor and that the air-conditioners on each floor were of the same type. The Chief Inspector, therefore, proceeded to the second floor as he thought it likely that the two floors were inter-connected.

4. A member of the police party knocked on the front door of the second floor. It was opened by a person who is now known to be the second plaintiff. A police officer announced the identity of the police party and immediately the second plaintiff slammed the door shut.

5. The Chief Inspector then received a report from a police officer, a member of the police party, who had been stationed in the rear of the building. It was apparent that persons inside the premises were throwing articles out of the windows onto a roof adjacent to the premises. The slamming of the door in the faces of the police coupled with this report made the Chief Inspector suspect that some offence was being committed inside the premises. I accept the evidence that the police identified themselves to those inside the premises and that the door was slammed in their face.

6. Mr. Scott gave orders that the back door of the premises was to be broken down and the premises to be entered by force.

7. This was done and the police party entered. They found abundant evidence inside that the premises were being used as the offices of a gambling syndicate or some such concern.

8. The two plaintiffs and one other man were found on the premises. They were arrested and a large amount of money and other articles which were found on the premises, in safes and elsewhere, were taken away by the police.

9. The two plaintiffs were charged with keeping a common gaming house and the third man who was arrested at the same time was charged with playing in a common gaming house.

10. When the three men were brought before the court the Crown offered no evidence on the ground that the police had no authority to enter the premises under the Gambling Ordinance. The charges against the three persons were therefore dismissed.

11. The solicitor who was acting on their behalf, immediately asked for the return of the property seized to the two plaintiffs and the third person.

12. The magistrate refused to make such an order but instead ordered the property to be retained by the police pending the establishment of the rightful claimant. This order was made under s.102 of the Criminal Procedure Ordinance. The magistrate made this order as there was no evidence before him of the relationship of the three persons to the property.

13. The property consists of over one hundred and fifty items. These consist of a large number of individual sums of money totalling about $230,000, a large number of watches and rings and other articles of jewellery and all the paraphernalia which one would expect to find in the offices of a gambling establishment. The list shows that it was a flourishing concern.

14. The plaintiffs claim the return of this property and allege that it has been wrongly converted by the Crown.

15. Certain matters are common to both parties. It is agreed that the premises were not a common gaming house and that no gaming was in progress there at the time of the police raid. It is also agreed that the premises were the offices of a "company" called the Happy Company which carried on the business of gaming elsewhere than on the premises. It is also agreed that the police found four safes on the premises. They also found the keys of only two of them, the other two safes were forcibly broken into on the orders of the police.

16. The first point to decide is what was the status or position of the two plaintiffs. After their arrest and while they were in custody the plaintiffs each made a long uncautioned statement. The first plaintiff said his position at the premises was that of a watchman and that his duties were to assist the second plaintiff in looking after the office. He also said he had nothing to do with the money or accounts. He admitted that the police had found a bunch of keys on his person when they raided these premises, but said that these had been given to him temporarily by the second plaintiff.

17. The second plaintiff in his statement to the police said much the same thing. He said he was a watchman or office boy and kept a key of the safe which contained the wage packets of the employees of the concern. It was this key he had left with the first plaintiff. He said he had nothing to do with the gaming side of the business or the accounts.

18. Each of the plaintiffs gave evidence in court. Each said that the statements which they had given to the police were a pack of lies: and were only made because they were frightened. They told a different story from that which they related to the police.

19. The first plaintiff, in his examination-in-chief said he was in charge of the money of the company and accountable to the company therefore. He said the keys of one safe and the doors to the premises were found on him; and that he had had all the safe keys but that he had thrown three of them away at the time of the police raid because she was afraid. One key was found on the floor by the police.

20. In cross-examination he said that the owner of the company and the property found in the safes was one CHU Wong. He heard a member of the police party identify himself as a police officer at the time of the raid. The second plaintiff was his (the first plaintiff's) assistant though he had been in the employment of the company before the first plaintiff joined. In answer to one question, he said that he was acting as "the accountant", though he did not admit this in his statement to the police. He also said, and said more than once, that he was employed there by CHU Wong to guard the money. He said that when one Cheng, another employee of the company, deposited in or removed a sum of money from a safe Cheng would tell him the amount.

21. Finally, he said in answer to a question from the court that when money was deposited or taken out of the safes when he was there he entered the amounts as notes on pieces of paper which were there. No such pieces of paper were produced.

22. The second plaintiff in his examination-in-chief said that his job was to control the money coming in and going out when the first plaintiff was not present. He was his assistant. He also said they claimed the money because they were responsible to Chu Wong, their employer. He denied that he had opened the door of the premises. In cross-examination he said if the action was successful they would retain the property for Chu Wong, though they had no idea where Chu Wong was. He himself owned none of the property found on the premises. He said that he would bank money in the safe when it came in and that he entered this in a book. He went so far as to say that the first plaintiff kept a ledger of such payments which together with certain entries of sums which he paid out were also there. He also said he acted as a watchman and that that was the chief part of his job.

23. Though the first plaintiff said that he entered sums of money on pieces of paper and that the notes were there on the premises: and the second plaintiff referred to a ledger and also to notes of payments which were, he said, in the safes, yet no note or ledger or account book was identified. This is surprising because the list of property taken from the premises includes various notebooks, account books and loose accounts. Nothing would have been easier for the plaintiffs to show the court the notes and the entries made by them in such books, if any such entries had been made. It is true that the property referred to in the exhibited list was not in court but it was available, and the plaintiffs could have easily produced the ledger and notes at any time.

24. On each occasion the plaintiffs told the story that best helped their case. To the police they wished to minimize their connection with the Happy Company. Before this court they wished to maximize their connection. The first plaintiff was not an impressive witness. His bare assertion which was unsupported by any evidence except that of the second plaintiff, was that he was as he said "the man in charge of the money of the company". Previously he had denied this to the police. The second plaintiff was even more unimpressive and, in addition, he told a very foolish lie when he said he did not hear the evidence of the first plaintiff as he was out of court at the time. This was not true. When he was challenged he quickly said he was hard of hearing. This witness's evidence went much further than that of the first plaintiff and in particular he said that the part played by the first plaintiff was greater than the first plaintiff admitted to himself. I do not think that the plaintiffs were witnesses of truth.

25. In my view the plaintiffs were the servants of Chu Wong, their employer and were employed as watchmen of these premises. Their duty was to guard the safes and all the paraphernalia necessary to run a gaming house or stall which was on the premises. I will deal with the question of the sums of money which, according to the plaintiffs they handled on the company's behalf later.

26. In order to maintain an action for conversion, the plaintiffs must show that they have a proprietary interest in the goods alleged to have been converted. That this is so is shown by the case of Jarvis v. Williams⁽¹⁾, where a quotation from Halsbury's Laws was expressly approved. It reads thus:-

"In order to maintain an action of trover or detinue, a person must have the right of possession and a right of property in the goods at the time of the conversion or detention;"

The facts in that case were very different from those in the present case but the statement quoted above is good law. The bare physical possession of the goods in question without any proprietary right is not enough to found an action of trover or detinue.

27. Subject to what I have to say hereafter, in my view on the facts of this case the plaintiffs were the employees of Chu Wong or the Happy Company. Though they had physical custody of the property with which we are concerned they did not have legal possession thereof. By no stretch of the imagination can they be said to have had possession in the legal sense of the various packets of cash (including what are called 'wage packets'), the pawn tickets, the fan tan markers, dice, some 74 watches etc. All these goods were legally in the possession of the employers of the plaintiffs. They were in the plaintiffs' custody for their employers: the legal possession was with the latter not the former. This case is similar to R. v. Watts⁽²⁾. No question of bailment arises here. The owner of the goods, said by the second plaintiff to be Chu Wong, retains the legal possession though the plaintiffs were then guarding the property.

28. What Cockburn, C.J. called "the bare naked possession" of the plaintiffs (Buckley v. Gross⁽³⁾) would have been sufficient against a wrongdoer. But the police do not hold these goods as wrongdoers. They hold them as a result of an order lawfully made under s.102 of the Criminal Procedure Ordinance.

29. It was urged on behalf of the plaintiffs that the original possession of the police was unlawful because the seizure was obtained by acts of trespass. I do not think that that matters. It is the possession of the police now that matters. And the police have possession of the property at this moment of time by virtue of the magistrate's order.

30. The relevant part of section 102 of the Criminal Procedure Ordinance reads as follows:-

then, whether or not the offence was committed or appears to have been committed in Hong Kong, a court may dispose of such property in the manner provided in this section.

31. In the present case the property was before the court in connexion with the offence of keeping a common gaming house, which offence had not been committed.

32. The plaintiffs say they are "entitled to" this property. This must mean that they have a right, a legal right, an enforceable proprietary right to it. They have shown no such right.

33. Another point was made on behalf of the defendant. The plaintiffs said that the Happy Company ceased to function as from the date of their arrest, about two years ago. And they had not seen Chu Wong since that time and were not aware of his present whereabouts. Any contractual relationship between the plaintiffs and this company or Chu Wong has long since come to an end. The legal position, whatever it was, of the plaintiffs has changed and what they must show is that they have a present entitlement to the property.

34. The plaintiffs themselves say that the owner of the property is Chu Wong. This is not a case of the defendants setting up a jus tertii, which of course they are not allowed to do. But it is distinctly odd that an ex employee can come to court announcing that he is entitled to property which he admits is owned by another. I should have thought that the proper course would have been to join Chu Wong.

35. One aspect of the case has given me some anxiety. The plaintiffs each said that they had received certain sums of money on behalf of Chu Wong or the Company. If that is so, I think they were bailees of such sums for Chu Wong or the Company.

36. It is for the plaintiffs to satisfy the court that they are entitled to the property or to some of it Their case was that they were entitled to all the property as custodians thereof. But it was never their case that they had received possession of all the property - including, for example, the furniture and safes - as bailees for the Company The evidence was that they would take certain sums from the safe and place certain sums in the safe. How many such sums there were I have not been told, nor was any specific sum of money referred to. None of the amounts have been identified. For success in an action for detinue, it is necessary that the property alleged to have been converted be identified. The plaintiffs have not proved this part of their claim.

37. I might perhaps mention that both counsel referred to the case of Chan Hoi v. The Attorney General⁽⁴⁾ In my view that case is distinguishable on its facts from the present case. There was no court order made and it seems that the parties agreed that legal possession of the goods was vested in the appellant.

38. There must therefore be judgment for the defendant with costs.

Representation:

A. Zimmern (Hastings & Co.) for Plaintiff.

R. J. Johnson c.c. for Crown/Defendant.

(1) (1955) 1 All E.R. 108.

(2) (1850) 2 Den.21 p.30.

(3) 3 B. & S. 566, 572.

(4) (1968) H.K.L.R. 126.