Read the full judgment text of CACV 162/2003 on BabelCite. This Court of Appeal judgment was delivered on 7 October 2005 before Woo VP, Le Pichon JA and Chung J.
Tort – malicious prosecution – whether defendant was the 'prosecutor' – first ingredient of the tort – prosecution brought by police on advice of Department of Justice – defendant merely a complainant and prosecution witness – whether the nexus between defendant's alleged lies and the prosecution was broken by independent exercise of discretion by prosecuting authorities – dogs killed plaintiff's dog – incident on 9 September 2000 at Clearway Bay – three charges laid: common assault on defendant, common assault on maid, criminal damage – magistrate held no case to answer on the assault-on-defendant charge – plaintiff convicted on other two charges – plaintiff's claim for malicious prosecution struck out by Deputy High Court Judge Lam under O.18 r.19 RHC – whether striking out was appropriate – test whether virtually impossible for professional prosecutor to exercise independent discretion – four ingredients of tort of malicious prosecution per Clerk & Lindsell – first ingredient requires defendant to be the prosecutor who set the law in motion – not sufficient to show that prosecution would not have been brought but for the defendant's lies – prosecuting authorities' independent investigation and exercise of discretion severs the nexus – leading cases: Martin v Watson [1996] 1 AC 74, Gregory v Portsmouth City Council [2000] 1 AC 419, Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187, Mahon v Rahn (No 2) [2000] 1 WLR 2150, Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343, Roy v Prior [1971] 1 AC 470, Taylor v Serious Fraud Office [1999] 2 AC 177 – reargument under s.34B(5) of High Court Ordinance (Cap 4) – six witnesses provided statements including two independent witnesses Ms Chiu and Mr Martin – bare allegations of suborning witnesses unsupported by evidence – reargument by Woo VP, Le Pichon JA and Chung J – appeal dismissed – order nisi that plaintiff pay defendant's costs to be taxed if not agreed.
Legal issues: Whether defendant was the prosecutor in a malicious prosecution claim when prosecution brought by police and Department of Justice · Whether the judge erred in striking out the claim under O.18 r.19
Outcome: Appeal dismissed; the plaintiff's claim for malicious prosecution struck out as disclosing no reasonable cause of action.
Cited by 13 cases · Cites 1 case