Wong Tze Yam v. Commissioner of Police and Another

[English Translation - 英譯本]
HCA 539/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 539 OF 2007

____________

BETWEEN

_____________

Before:  Hon Poon J in Court

Dates of Hearing: 6-10 July 2009

Dates of Supplemental Written Submissions: 30 July and 3 August 2009

Date of Judgment:  11 August 2009

__________________

J U D G M E N T

__________________

Introduction

1.Wong Tze Yam, the plaintiff herein, was a businessman who operated one Family Fitness Agency, which carried on the business of selling fitness products. His younger brother Wong Tze Yuk (王子鈺) assisted him in the business. From October 2006 to October 2008, the business was conducted at rented premises at 3rd floor, 11 Hillier Street, Sheung Wan.

2.In March 2006, the Independent Police Complaints Council (hereinafter “IPCC”) leaked the personal data of 20,000 complainants on the internet. The plaintiff claimed that he was one of those complainants. In December 2006, the plaintiff commenced HCA 2689/2006 against the Commissioner of Police, alleging that he (the plaintiff) had been illegally detained at a certain place of entertainment in Tsim Sha Tsui and claiming damages in tort.

3.Between 21 October 2006 and 4 March 2007, the police on seven occasions stopped and searched the plaintiff and/or his younger brother at different locations. The police demanded him/them to produce his/their identity card(s) and even searched his/their person(s). His/Their personal particulars as set out in the identity card(s) were also recorded in the police notebooks.

Date of incident	Time (approximate)	Location	Involving
1st incident 12/11/2006[1]	11 p.m. ~ 12 a.m.	Outside 35 Gage Street, Central	Plaintiff
2nd incident 2/1/2007	12 a.m.	Outside 11 Hillier Street, Sheung Wan	Wong Tze Yuk
3rd incident 26/1/2007	1:30 a.m.	Outside OK Convenience Store at 254 Des Voeux Road Central	Both brothers
4th incident 8/2/2007	5:30 p.m.	Java Road, North Point	Both brothers
5th incident 24/2/20072	2:35 a.m.	Near Lan Kwai Fong, Central	Wong Tze Yuk
6th incident 27/2/2007	12:35 a.m.	The safety island outside Harcourt Garden, Admiralty	Both brothers
7th incident 4/3/2007	6 p.m.	Outside former Western Law Courts, Pok Fu Lam Road	Both brothers

It should be noted that the 2^nd and 5^th incidents involved only Wong Tze Yuk and have nothing to do with the present claim as the plaintiff has no right to bring an action on his behalf.

4.It would appear from the Statement of Claim that, as the plaintiff had complained to the IPCC and instituted HCA 2689/2006, the police carried out the allegedly unlawful stop and search operations as a revenge on him and his younger brother. At trial, however, the plaintiff clarified that this was not his case. The plaintiff also submitted that the stop and search by the police contravened Articles 6, 8 and 28 of the Basic Law. However, Article 6 concerns the protection of private property rights and has nothing to do with the present case; Article 8 governs the applicability of the laws previously in force in Hong Kong and is not directly relevant to the present case; and Article 28, which serves to protect the freedom of the person of Hong Kong residents, is also not relevant to the present case as the plaintiff is not alleging that section 544 of the Police Force Ordinance3 is unconstitutional.

5.As a matter of fact, the plaintiff’s chief cause of action is that a police officer must have reasonable suspicion against a person before he can ask that person to produce his identity card for inspection or before he can search him in a public place, but on the occasions in question, the police officers had no reasonable suspicion against him and his younger brother but still requested them to produce their identity cards and searched their persons, contrary to section 54 of the Police Force Ordinance. Furthermore, the plaintiff claims that whether such reasonable suspicion exists, a police officer is not allowed to record or collect the personal particulars contained in the identity card of the person intercepted, because such an act contravenes Article 39 of the Basic Law and Article 14 under section 8 of the Hong Kong Bill of Rights Ordinance5 (hereinafter “the Bill of Rights”), both of which provide for the protection of the privacy of citizens, as well as paragraph 2(a) of Data Protection Principle 1 (purpose and manner of collection of personal data) under the Personal Data (Privacy) Ordinance6.

6.The plaintiff asserts that the unlawful acts of the police officers constituted illegal acts of tort including misconduct in public office, unlawful detention, unlawful arrest, property damage and intimidation. The plaintiff says he has suffered harm, including mental distress, as a result of those acts, and he is claiming damages in the sum of HK$1,888,888 against the Commissioner of Police and the Secretary for Justice.

7.In essence, the defence raised by the Commissioner of Police and the Secretary for Justice is that the acts of stopping and searching the plaintiff or the two brothers were done solely in lawful execution of the police officers’ duties and did not constitute any illegal acts of tort, and that the recording of their personal particulars in the police notebooks following a lawful stop and search was neither unconstitutional nor contrary to the Personal Data (Privacy) Ordinance.

Main issues

8.The main issues are that, in the 1st, 3rd, 4th, 6th and 7th incident:

(1) Whether the police officers were acting unlawfully in demanding the plaintiff to produce his identity card or even to search his person; and

(2) Whether the police officers were acting unconstitutionally or unlawfully in recording the personal particulars contained in the plaintiff’s identity card.

9.The validity or otherwise of the other causes of action stated in paragraph 6 above depends on whether the police could lawfully invoke section 54(1) or 54(2) of the Police Force Ordinance.

10.I shall start by discussing the legal principles applicable to the two main issues.

Legal principles

(1)     Power to stop and search

11.Section 54 of the Police Force Ordinance provides as follows:

(1) If a police officer finds any person in any street or other public place … at any hour of the day or night, who acts in a suspicious manner, it shall be lawful for the police officer —

(a) to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer;

(b) to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed any offence at any time; and

…

(2) If a police officer finds any person in any street or other public place … at any hour of the day or night, whom he reasonably suspects of having committed or of being about to commit or of intending to commit any offence, it shall be lawful for the police officer —

(a) to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer;

(b) to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed any offence at any time;

(c) to search the person for anything that is likely to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed, or is reasonably suspected of having committed or of being about to commit or of intending to commit; and

(d) to detain the person during such period as is reasonably required for the purpose of such a search.

…

12.According to section 54(1), a police officer may exercise the powers conferred upon him against any person whom he finds to be acting suspiciously. In HKSAR v. Kwan Kin Sum7, Deputy Judge Barnes (as she then was) said:

38. … In relation to someone being found by a police officer to be acting suspiciously, the statute (i.e. section 54(1)) does not require such finding to be reasonable. It seems that the officer may ‘subjectively’ consider someone to be ‘acting suspiciously’.

As I understand it, in the above passage Deputy Judge Barnes was simply quoting the original text of section 54(1) to point out its literal meaning. This is not to say that the police officer could act arbitrarily without regard to the actual circumstances at the material time; otherwise, section 54(1) would be open to abuse.

13.In my view, while it is for a police officer to form a subjective judgment that someone is acting suspiciously, he must have regard to the relevant objective facts ― such as the time, location, circumstances at the scene, and the demeanour, conduct and acts of the person ― and then apply his professional training and knowledge to decide whether the person is acting suspiciously. In other words, a police officer who seeks to exercise the power under section 54(1) must rely on some objective facts as the basis of his conclusion that the person stopped and searched by him has acted suspiciously. Mr. Shum, Counsel for the defendants, has also agreed that this is the correct interpretation of section 54(1).

14.As regards section 54(2), the reasonableness of any suspicion that a police officer has against a person must be determined by reference to the objective facts at the material time8. These facts are similar to those required under section 54(1),  namely the time, location, circumstances at the scene, the demeanour, conduct and acts of the person, and other relevant facts.

15.On the correct interpretation of the Ordinance, when a police officer stops and searches a person:

(1) If he relies on section 54(1), he must have relevant evidence to support his judgment that the person is acting in a suspicious manner.

(2) If he relies on section 54(2), he must have relevant evidence to support the reasonableness of his suspicion of the person.

When I examine the evidence hereinbelow, I will consider whether, in each of the “stop and search” incidents, there was sufficient evidence to enable the police officers to rely on section 54(1) or 54(2).

(2)     Power to record personal particulars shown on identity card

16.Article 39 of the Basic Law provides that:

The provisions of the International Covenant on Civil and Political Rights [hereinafter ‘ICCPR’] … as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

17.Article 17 of the ICCPR provides that:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy … .

2.  Everyone has the right to the protection of the law against such interference … .

18.Similarly, Article 14 of the Bill of Rights provides that:

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy … .

(2) Everyone has the right to the protection of the law against such interference … .

19.In interpreting the provisions of the ICCPR, the court may take into account the established principles of international jurisprudence: see Shum Kwok Sher v. HKSAR9. One of these established principles is that the term “privacy” in Article 17 of the ICCPR has a wide definition which encompasses the identity, such as the name and gender, of a person: see U.N. Convention on Civil and Political Rights CCPR Commentary10. In my view, “personal identity” should also include the unique particulars that serve to ascertain or verify the identity of an individual.

20.The personal particulars set out on the identity card of a citizen, including his/her name in Chinese and English, gender, date of birth and identity card number, can be regarded as unique as well as the most useful pieces of information that can be relied on to ascertain or verify the “personal identity” of an individual. Accordingly, I hold that the personal particulars set out on an identity card form part of the “privacy” of a citizen and are protected by Article 39 of the Basic Law, Article 17 of the ICCPR and Article 14 of the Bills of Rights.

21.Mr. Shum cites the case of Reyntjens v. Belgium11 and submits that the name of a person is not necessarily covered by the term “privacy”. In Reyntjens, the issue before the European Commission of Human Rights was whether the Belgium police had infringed Article 8 of the European Convention of Human Rights by inspecting identity cards and recording information thereon in the absence of a reason. Article 8 provides as follows:

(1) Everyone has the right to respect for his private and family life12, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The European Commission of Human Rights held that the duty of a citizen to carry his/her identity card and to produce it to the police upon demand did not contravene Article 8 because, pursuant to the relevant statutory provisions, an identity card bore only its holder’s name (and, where applicable, his/her spouse’s name), gender, date of birth and residential address. It did not bear any information on the “privacy” of the holder13.

22.The European Commission of Human Rights did not explain why the personal particulars on an identity card were not “privacy” information. As I stated above, “personal identity”, one of the key elements of “privacy”, should include the unique particulars that can be used to ascertain or verify the identity of an individual, such as the particulars set out in an identity card. Therefore, I do not intend to follow the decision in Reyntjens.

23.In my view, before the police can record in their notebooks the personal particulars on the identity card of a person intercepted by them, two basic requirements must be satisfied:

(1) What they do is prescribed by law – see Article 39 of the Basic Law; and

(2) What they do will not constitute unreasonable/arbitrary or unlawful interference – see Article 17 of the ICCPR and Article 14 of the Bill of Rights.

24.In respect of the “prescribed by law” requirement, the plaintiff first submits that there must be statutory provisions which expressly empower the police to record the personal particulars set out on the identity card of a person intercepted by them.  There being no such express provisions in section 54 of the Police Force Ordinance, what the police did was, the plaintiff submits, not prescribed by law.

25.Section 10 of the Police Force Ordinance provides that:

The duties of the police force shall be to take lawful measures for —

…
preventing and detecting crimes and offences;

…

What constitutes “lawful measures” depends on the circumstances of the case.

26.As stated above, in lawfully exercising the power under section 54 of the Police Force Ordinance to stop and search a person, a police officer must either consider that the person is acting suspiciously or reasonably suspect that the person has committed, is about to commit or intends to commit a crime. In other words, the person intercepted by the police has either acted suspiciously or has caused the police to reasonably suspect that he has committed, is about to commit or intends to commit a crime. Under such circumstances, a police officer can rely on section 54 and demand the intercepted person, a suspect, to produce his identity card for inspection so that the police can verify his identity and the relevant personal particulars. Although this will interfere the “privacy” of the intercepted person, it is a necessary and lawful measure “for preventing and detecting crimes and offences”. In my view, when the police officer goes on to record in his notebook the personal particulars of the suspect as shown on his identity card, it is also a lawful measure “for preventing and detecting crimes and offences” provided that it satisfies the requirement of not constituting an “unreasonable interference”.

27.The plaintiff also submits that “prescribed by law” requires the relevant legal provision to express clearly and sufficiently the scope of the power in question and to be accessible to the public so that they can regulate their behaviours accordingly: see Leung Kwok Hung v. HKSAR14.

28.As stated above, sections 54 and 10(b) of the Police Force Ordinance clearly provide that a police officer can record in his notebook the personal particulars shown on the identity card of a person if and only if he finds the person acting suspiciously or harbours reasonable suspicion against him. The statutory provisions are open to the public, who can certainly regulate their behaviours accordingly.

29.For the above reasons, the “prescribed by law” requirement has in my judgment been satisfied.

30.As for the “unreasonable/arbitrary or unlawful interference” requirement, the term “unlawful” means that no interference can take place except as envisaged by the law, and that the legislation in question must comply with the provisions, aims and objectives of the ICCPR: see The International Covenant on Civil and Political Rights, Cases, Materials and Commentary,at paragraph 16.0815.  The aim of sections 54 and 10(b) of the Police Force Ordinance is to prevent and detect crimes, but those provisions also govern the use of the relevant police powers. This type of provisions, which seek to strike a balance between the need to maintain peace and order and the need to guard against the abuse of police powers, is indispensable in a civilized region such as Hong Kong. The provisions in question are certainly in compliance with the provisions, aims and objectives of the ICCPR.

31.As for “unreasonable/arbitrary”, the term means that the interference in question must be reasonable in the particular circumstances of a given case, and reasonableness implies that any interference must be proportional to the end sought and be used for the sole purpose of achieving that end: see The International Covenant on Civil and Political Rights, Cases, Materials and Commentary,at paragraph 16.1216. The undisputed evidence in the present case is that the personal particulars recorded by the police officers do not go beyond the names, dates of birth and identity card numbers of the intercepted persons. These particulars are the most basic information needed for ascertaining or verifying the identity of a person. Recording such basic information is proportional to the purpose of preventing and detecting crimes. The evidence also shows that the information is merely recorded in the police notebooks and not put to any other use. This shows that the making of such records in the police notebooks is no more than a measure for the purpose of preventing and detecting crimes, and the interference that it causes to the “privacy” of the intercepted person is, it can be said, minimal.

32.For the above reasons, I hold that the requirement of not causing “unreasonable/arbitrary or unlawful interference” has also been satisfied. 

33.In my judgment, following the lawful stop and search of a person pursuant to section 54 of the Police Force Ordinance, the recording in the police officer’s notebook of the name, date of birth as shown on the identity card and the identity card number of that person pursuant to section 10(b) does not contravene Article 39 of the Basic Law, Article 17 of the ICCPR or Article 14 of the Bills of Rights.

34.Paragraph 2(a) of Data Protection Principle 1 under the Personal Data (Privacy) Ordinance provides that personal particulars must be collected in a lawful manner. As stated above, the lawful interception of a person by the police pursuant to section 54 of the Police Force Ordinance and the subsequent recording in the police notebook of the particulars of that person as shown on the identity card pursuant to section 10(b) are aimed at investigating and preventing crimes. It is of course lawful to collect personal data in this way

35.In the present case, if the police officers could properly invoke section 54 of the Police Force Ordinance in stopping and searching the plaintiff, then the recording in the police notebooks of his name, date of birth and identity card number as shown on his identity card did not constitute an interference with his privacy. At the end, therefore, the key issue is: in each of the stop and search incidents, was there sufficient evidence to enable the police to invoke section 54(1) or 54(2)?

36.I will now examine the evidence adduced by both parties.

Evidence

37.The plaintiff and his younger brother testified in court. Their evidence is by and large the same.

38.The following nine witnesses were called by the defence:

Incident	Witnesses
1st incident	PC 54107 Wong Shing Chung (黃盛中)
3rd incident	PC 58904 Tam Kwai Yong (譚溎鏞)
4th incident	PC 51635 Mak Chi Man (麥志文), Station Sergeant 23770 Ho Chun Chiu (何振超)
6th incident	PC 34474 Tang Hin Fung (鄧顯峰), Station Sergeant 22731 Sum Yik Man (岑易民)
7th incident	PC 1697 Lee Gong Tai (李恭泰), Sergeant 48112 Ho Wai Ming (何偉明), Senior Inspector 90056 Luk Hoi Ho (陸海豪)

Two or more police witnesses testified in relation to the 4^th, 6^th and 7^th incidents, and their evidence is essentially concordant.

39.The parties gave diametrically opposite accounts of what actually happened in each stop and search incident. It follows that the findings of fact depend on the credibility of the witnesses. Having considered all the evidence carefully, I am of the view that all the police witnesses are veracious and reliable, but the plaintiff and his younger brothers are not. I accept the evidence of the police witnesses; where the evidence of the plaintiff and his younger brother differs from that of the police officers, I accept the latter.

40.The plaintiff complained that during the brief court adjournments on 8 and 9 July, Mr. Shum discussed the evidence with the police officers who were and might be giving evidence. The defence explained that Mr. Shum was merely informing those officers who would not be called that they would not be required to give evidence17. I accept this explanation.

41.I will now examine the incidents one by one.

(1)     The 1st  incident

42.The plaintiff said:

1.      At about 12 o’clock on or about 21 October 2006, I left the fitness products company which I owned as sole proprietor and which was located in Sheung Wan. I then went to the vicinity, i.e. Lan Kwai Fong, on foot to attend a party. When I walked past 35 Gage Street, I was stopped by a police officer of the Police Tactical Unit (PTU). The officer indicated that I had to produce my Hong Kong identity card and undergo a search of my person. I produced my Hong Kong identity card and handed it to the officer, who then said that he had to write down my personal particulars, including my name and Hong Kong identity card number, in his police notebook. I refused to let him do so. He also said that he suspected I had dangerous drugs on me and that he had to conduct a search on my person pursuant to section 54 of the Police Force Ordinance, Cap. 232, but I also refused to let him do so. I then argued with the PTU officer. Having been detained for 10 minutes, I was let go, and [I] believe he had neither collected my personal particulars nor conducted a search on my person. I was detained and guarded for approximately 10 minutes before I was let go.

43.According to PC 54107,

3.     At 0007 hours on 12 November 2006, when PC 478 and I were patrolling along Gage Street, I saw a male outside 36 Gage Street walking towards us. Upon seeing us, the man suddenly went behind a vehicle and then walked out of the rear of the vehicle and hurried away. He was acting suspiciously. We went up to intercept him and then told him that he was suspected to be possessing dangerous drugs. We demanded him to show his identity card and undergo a search of his person. He then showed me his identity card for inspection. I checked the information on the identity card against the information in the Nominal Index Computer System and also conducted a search on his person, but nothing was found. So I recorded his particulars in my notebook. The whole incident lasted two minutes, from 0007 to 0009 hours, in the course of which no dispute arose. …

4.      In November 2006, we were often assigned to patrol in Central/Sheung Wan and Lan Kwai Fong. We were particularly concerned with problems in that area such as drug abuse and possession as well as misbehaviours arising from drunkenness.

44.I accept the evidence of PC 54107 and hold that he could rely on section 54(2) of the Police Force Ordinance to intercept the plaintiff, demand that he produce his identity card for inspection, and search his person. The officer could also record in his notebook the name, date of birth and identity card number as shown on the plaintiff’s identity card.

(2)     The 3rd incident

45.The plaintiff said:

2. At about 1:35 a.m. on 26 January 2007, when I was reading the newspaper outside an OK Convenience Store in Des Voeux Road Central, which was in the vicinity of the fitness products company which I owned as sole proprietor and which was located in Sheung Wan, I was stopped by a plainclothes police officer. The officer asked me to produce my Hong Kong identity card for his inspection. After we produced our Hong Kong identity cards for his inspection, he stretched out his arms to block our way and detained us outside the store. He said he suspected that we were ‘both possessing instruments for stealing’ and we had to be detained and subjected to a body search. Then one after the other, two uniformed police officers approached us. The five of us had a heated argument. Eventually, a uniformed officer insisted on recording my personal particulars in his police notebook despite my refusal to let him do so. But no body search was carried out on us. We were not allowed to go until we were detained and guarded for 15 minutes or so.

46.I will not recite the evidence of the plaintiff’s younger brother, who has given a similar account of what happened.

47.PC 58904 said:

3.      From about 0125 to 0220 hours on 26 January 2007, members of Emergency Unit Vehicle EU2 (including me and Sergeant 45246, SPC 49580, PC 3433, SPC 17230) were conducting an anti-burglary operation. At that time, Sergeant 45246 and SPC 17230 stayed on board to perform other duties, whereas SPC 49580 (in uniform) led me (in plain clothes) and PC 3433 (in uniform) to patrol along Connaught Road West, Wing Lok Street and Bonham Strand East. At about 0150 hours, I found two men outside the OK Convenience Store at the junction of Des Voeux Road Central and Hillier Street looking around. Upon seeing us, the two men immediately turned around to leave. I then approached them, revealed my police identity and showed them my police warrant card. I also demanded them to undergo a body search as I suspected that they had committed the offence of ‘going equipped for stealing’. They challenged my power and refused to be searched. I explained to them again the reason for the search and the authority for conducting the search. Eventually they let me search them. The search was completed at about 0154 hours. The two men’s names are Wong Tze Yam and Wong Tze Yuk. …

48.During cross-examination, PC 58904 added that when he saw the plaintiff and his brother, they looked towards the direction of his back and then left hurriedly. He turned round and saw the two uniformed police officers who were on duty with him. Then he immediately went up to stop the plaintiff and his brother. He also emphasized that he was the only one who stopped and searched them and that the two uniformed officers were simply on guard by the side.

49.I accept the evidence of PC58904 and hold that he could rely on section 54(2) of the Police Force Ordinance to stop and search the two brothers, demand them to produce their identity cards and conduct searches on their persons; and that he could also record in his notebook their names, dates of birth and identity card numbers as shown on their identity cards.

(3) The 4^th incident

50.The plaintiff said:

3. At around 5:35 p.m. on 8 February 2007, after Wong Tze Yuk and I left the fitness product shop in Sheung Wan that I ran as sole proprietor, we were intercepted by a uniformed police officer in Java Road near North Point Road. The officer said that he saw us ‘loitering’ while we were outside a furniture shop watching furniture. He told Wong Tze Yuk and me to produce our Hong Kong identity cards for his inspection. After we produced our Hong Kong identity cards for his inspection, the officer suddenly touched my rear trousers’ pockets with his hand. We pushed him away and a heated argument ensued. He demanded to conduct searches on our persons. We asked to be let go, but the officer refused and, despite Wong Tze Yuk’s and my refusal and in the absence of our permission, forcibly collected our personal particulars [by recording them] in his police notebook. We said that the officer had no lawful authority to stop and search us or collect our personal particulars in a public place, but the officer paid no heed to us. Eventually a Station Sergeant arrived and said that the whole thing was a ‘misunderstanding’.

My Hong Kong identity card and that of Wong Tze Yuk were detained and kept in custody for approximately 45 minutes before we were let go, but no body search was conducted on us.

51.I will not recite the evidence of the plaintiff’s younger brother, who has given a similar account of what happened.

52.According to PC 51635:

3.         At about 1745 hours on 8 February 2007, when I was patrolling along Java Road near North Point Road, I saw two men coming up in my direction. Something seemed to be protruding underneath their clothes at the waist area and they were both acting furtively. Then I went up to intercept them and said that they were suspected to be possessing contrabands. I demanded them to produce their identity cards and undergo a body search. They refused to cooperate and challenged my authority. PC 53565, who was by my side, assisted me by explaining to the two men the powers of the police. Following our repeated explanations, the two men finally produced their identity cards, but they refused to be searched on the spot or at North Point Police Station. They insisted that the searches had to be carried out inside Police Headquarters. In the meantime, the two men raised a hue and cry at the scene and shouted that they were being violently treated by the police. A number of passers-by gathered around and watched. I warned them that if their behaviours breached the peace and caused obstruction to others, they were liable to be arrested for disorderly conduct. At about 1755 hours, the two men (or one of them) called the console by dialing 999, alleging that they were being violently treated by the police. PC 53565 and I informed CAR10 and asked for assistance. At about 1806 hours, Station Sergeant 23770, Station Sergeant 855 and PC 52662 arrived at the scene to enquire about the incident. Station Sergeant 23770 made enquiries with the two men, whereas Station Sergeant 855 made enquiries with PC 53565 and me. PC 52662 gathered information from those in the vicinity who might have witnessed the course of the event. At about 1825 hours, Station Sergeant 23770 explained to the two men the relevant powers of the police and the procedures of lodging a complaint against the police. The two men indicated that they were very familiar with the procedures of lodging a complaint against the police but had no complaint or dissatisfaction over the incident. Believing that the incident arose from a misunderstanding, Station Sergeant 23770 let the two men go. The two men’s names are Wong Tze Yam and Wong Tze Yuk. …

53.In his testimony, PC 51635 added that before the reinforcement vehicle arrived, he had already recorded in his notebook the identity card particulars of the plaintiff and his brother. He also said that subsequent to the incident, Station Sergeant 23770 had told him that a person who was indeed possessing illegal items on his person would not have acted in the way that the two brothers did to attract the attention of passers-by.

54.Station Sergeant 23770 said:

3. At about 1755 hours on 8 February 2007, I was notified by PC 51635 and PC 53565 of Sub-unit 2 of Emergency Unit Vehicle EU9 that two men were refusing to cooperate when they were intercepted at the junction of North Point Road and Java Road and that the two officers needed on-the-spot assistance from Emergency Unit Vehicle EU10. We arrived at the scene at 1806 hours. Station Sergeant 855 made enquiries with PC 51635 and PC 53565, PC 52662 collected information in the vicinity of the scene, and I made enquiries with the two men. After making enquiries, I came to understand that the abovementioned police officers had intercepted the two men and demanded them to produce their identity cards and undergo a search, but the two men were not satisfied with the reason given for the interception and purported search. Accordingly, I explained our authority and procedures again to the two men, and they seemed to be satisfied with my explanation. Then I explained to them that if they had any dissatisfaction, they could lodge a complaint in accordance with specified procedures. They said they were very familiar with the procedures for lodging complaints against police officers but they had no dissatisfaction and complaint in respect of this particular incident. I believed the incident arose from sheer misunderstanding, so I let the two men go. Subsequently, PC 52662 reported to me that two citizens witnessed the course of the incident and had provided information. … The two men’s names are Wong Tze Yam and Wong Tze Yuk.

55.In his testimony, Station Sergeant 23770 explained that after he arrived at the scene and listened to the report by PC 51635, he formed the initial view that the plaintiff and his brother were suspicious. However, having observed the behaviours of the two brothers and talked to them, he decided that his suspicion was unfounded because someone who indeed had illegal articles on him would not have acted that way. It followed that there was no need to conduct searches on the two brothers’ persons. By misunderstanding, he referred to the misunderstanding that the plaintiff and his brother had over the powers of the police.

56.I accept the evidence of the two police officers. The judgment formed by Station Sergeant 23770 upon his arrival at the scene did not negate the reasonable suspicion that PC 51635 previously harboured against the two men.

57.In my judgment, PC 51635 was entitled to rely on section 54(2) of the Police Force Ordinance to intercept the two brothers, demand them to produce their identity cards for inspection and conduct searches on them. He could also record in his notebook their names, dates of birth and identity card numbers as shown on their identity cards.

(4) The 6^th incident

58.According to the plaintiff: 

4. At about 12:35 a.m. on 27 February 2007, Wong Tze Yuk and I were on our way back to the fitness product shop that I ran as sole proprietor. When we were on the safety island outside Harcourt Garden in Admiralty, we were intercepted by a uniformed police officer. The officer said that pursuant to section 54 of Police Force Ordinance, Cap. 232, he was demanding us to produce our identity cards for his inspection. He also said that as a robbery took place inside Harcourt Garden earlier on and he saw us talking while we were walking, he had reason to suspect that we were involved in what he called the ‘robbery’ and that we had the intention to rob. The three of us had another heated argument.

Despite my repeated refusal, the uniformed officer insisted on collecting my personal particulars [by putting them down] in his police notebook.  We were detained and guarded for about 30 to 40 minutes on the pedestrian safety island before we were let go, but no body search was conducted on us.

59.I will not recite the evidence of the plaintiff’s younger brother, who has given a similar account of the incident.

60.PC 34474 said:

3. At about 0038 hours on 27 February 2007, when I was patrolling along Harcourt Road with PC 52596, I saw two men walking along Harcourt Road in a westbound direction and casting a look at Harcourt Garden from time to time. When they were approximately 15 metres from us, they appeared nervous. As I suspected that they had committed a robbery in the vicinity, I intercepted them and told them the reason for my suspicion. They answered that they had just been to the Central Police Station to make a report. Then I demanded them to produce their Hong Kong identity cards so that I could make a record thereof, but they refused to cooperate. Although I had explained to them the powers of the police, they still refused to cooperate. I then sought reinforcement. At about 0500 hours, Sergeant 22731 arrived at the scene and explained to the two men again the powers of the police. They finally produced their identity cards for me to make a record thereof. When I returned their identity cards to them, they said they intended to lodge a complaint in relation to the incident and requested us to take them to the Water Front Police Station. We acceded to their request and took them to the Water Front Police Station at about 0105 hours. But then they indicated that they would not lodge a complaint and left on their own. The two men’s names are Wong Tze Yam and Wong Tze Yuk. …

61.During cross-examination, PC 34474 said that Wong Tze Yuk claimed that he had just left the Police Headquarters after making a report there and quickly displayed a document which bore the chop of a police station, but PC 34474 was not absolutely sure whether the claim was true; and that he still had doubts about the plaintiff’s identity because he had not produced his identity card.

62.Station Sergeant 22731 said:

3. At about 0050 hours on 27 February 2007 (I was then attached to Uniform Patrol Sub-unit 4 of the Water Front Station), I arrived at Harcourt Road to assist PC 34474 and PC 52596 in a case involving identity card inspection. Upon my arrival, I enquired of PC 34474 about what happened. I came to know that he had earlier intercepted two men (later known to be Wong Tze Yam and Wong Tze Yuk, hereinafter called ‘the two men’) at the above location and demanded them to produce their identity cards but they had refused to do so. I explained the situation to the two men, who then produced their identity cards for inspection and recording by PC 34474. At this juncture, the two men said that they had to complain about this incident and requested us to take them to the Water Front Police Station. At 0105 hours, when we arrived at the Water Front Police Station, the two men said they did not intend to complain any more, and then they left on their own …

63.Under cross-examination, Station Sergeant 22731 denied having ordered PC 34474 to “copy” the personal particulars of the plaintiff and his younger brother as shown on their identity cards despite their protest. The Sergeant further explained that although he had not recorded in his notebook the details of what happened, he had a vivid recollection of the incident because only one such incident had ever occurred during his attachment to the Water Front Police Station.

64.I accept the evidence of the two police officers and hold that PC 34474 was entitled to rely on section 54(1) of the Police Force Ordinance to intercept the plaintiff and his brother, to demand them to produce their identity cards for inspection, and to record in his notebook their names, dates of birth and the identity card numbers as shown on their identity cards.

(5) The 7^th incident

65.The plaintiff said:

5. At about 6 p.m. on 4 March 2007, after my younger brother Wong Tze Yuk and I participated in the Standard Chartered Hong Kong Marathon, we left the fitness product shop in Sheung Wan that I ran as sole proprietor. We then walked towards a restaurant to join our family for dinner. On our way there and after we crossed the pedestrian crossing at the traffic lights in Pok Fu Lam Road near the former Western Magistracy, we were again intercepted by a uniformed police officer of the Police Tactical Unit (PTU). The officer demanded us to produce our Hong Kong identity cards for inspection. I asked him why he wanted to inspect our Hong Kong identity cards and he, PC 1697, said that he was relying on section 54 of the Police Force Ordinance, Cap. 232 ― he claimed that he saw us ‘looking around’ before crossing the road and hence considered us to be ‘acting suspiciously’, and therefore he invoked section 54(1) of the Police Force Ordinance, Cap. 232 and demanded us to produce our identity cards for his inspection. We had a vigorous argument. Then four PTU sergeants arrived at the scene one after the other, and at last a senior inspector of the PTU arrived. One of the sergeants said that we were ‘playing tricks’ and threatened to charge us with the offence of ‘obstructing a police officer in the execution of his duty’ if we refused to be searched. Wong Tze Yuk and I were taken against our wishes to the Western Police Station where a search was conducted on us. We were allowed to leave only after we and our Hong Kong identity cards were detained and put in custody for 35 minutes.

66.I will not recite the evidence of the plaintiff’s younger brother, who has given a similar account of what happened.

67.PC 1697 said:

3. At about 1814 hours on 4 March 2007, when PC 4713 and I were patrolling along Pok Fu Lam Road, I found two men standing outside 2A Pok Fu Lam Road and looking around. When I looked at them, they appeared nervous and covered their jeans pockets with their hands. As they were acting suspiciously, we intercepted them. I explained to them the reason for intercepting them (i.e. they were suspected to be possessing dangerous drugs) and the authority upon which we could conduct body searches on them. But the two men challenged our authority and refused to produce their identity cards or undergo a search. Thereafter, Sergeants 48112 and 33105 arrived at the scene to assist us. Sergeant 33105 explained our suspicion and powers to the two men again. He asked them to cooperate and gave them a verbal warning. Following the explanation given by Sergeant 33105, they finally produced their identity cards but still refused to be searched. Subsequently, Senior Inspector 90056 arrived at the scene. The two men challenged our authority again. Following further explanation given by Senior Inspector 90056, they agreed to be searched but insisted on having the searches done inside a police station. At about 1827 hours, the two men left the scene with us. We arrived at the Western Police Station at 1831 hours. Inside the police station, one of the two men was searched by PC 4713 and the other by me. The search was completed at 1836 hours and no illegal items were found. The two men left the police station at about 1838 hours. Their names are Wong Tze Yam and Wong Tze Yuk. …

68.Sergeant 48112 said:

3. At about 1825 hours on 4 March 2007, Sergeant 33105 and I arrived at the location outside 2A Pok Fu Lam Road to assist PC 1697 and PC 4713 in a case. Upon arrival, I was given to understand that earlier on PC 1697 and PC 4713 had tried to stop and search two Chinese men at the scene but they refused to cooperate. Sergeant 33105 then explained the situation to them, but they still refused to cooperate. Senior Inspector 90056 arrived shortly afterwards and gave the two men an explanation again. They requested that the body searches be conducted inside a police station. At 1827 hours the two men returned to the Western Police Station with us. Upon arrival at 1831 hours, I assisted PC 4713 in searching one of the men.  The case came to an end at 1838 hours. …

69.According to Senior Inspector 90056:

3. At about 1825 hours on 4 March 2007, I arrived at Pok Fu Lam Road to assist in a ‘stop and search’ case. Upon arrival, I saw PC 1697, PC 4173, Sergeant 48112 and Sergeant 33105 there with two men.  After enquiries, I came to know that earlier on the police found the two men acting suspiciously and hence went up to check their identity cards and search their persons, but the two men refused to cooperate. Despite repeated explanations, they still refused to be searched. I then explained to them again the suspicion that the police had and their authority. The two men finally agreed to be searched but requested that the searches be conducted inside in a police station. We then left the scene with them. We arrived at the Western Police Station at 1831 hours. Nothing unusual was found on the two men upon search. The two men left at 1838 hours. Their names are Wong Tze Yam and Wong Tze Yuk. …

70.I accept the evidence of the three police officers and hold that PC 1697 could rely on section 54(2) of the Police Force Ordinance to intercept the plaintiff and his brother, demand them to produce their identity cards for inspection and search them. He could also record in his notebook the two persons’ names, dates of birth and identity card numbers as shown on their identity cards.

(6) Other tortious acts

71.In my judgment, in each of the incidents in question, as the police officer(s) could lawfully rely on section 54(1) or 54(2) (as the case may be) of the Police Force Ordinance, none of the other alleged tortious acts as mentioned in paragraph 6 above is established.

Conclusion

72.For the above reasons, I hold that in each of the incidents in question, the police officers were lawfully executing their duties. Therefore, all of the plaintiff’s claims fall to be dismissed.

73.Costs are to be dealt with pursuant to the usual principle, i.e. the winning party is to be awarded costs. The defendants have asked for costs in the sum of HK$584,366, with the costs of the Government Counsel in charge of the case calculated at the rate of HK$3,500 per hour. The plaintiff argues that the defendants did not have to engage counsel in private practice, but I disagree. There is nothing improper in engaging counsel in private practice to handle cases of this kind. The plaintiff also submits that the fees of the Government Counsel are to be assessed by reference to his salary, but again I disagree. It is a common and well-established practice to determine the fees of Government Counsel by reference to the fees charged by counsel in private practice: see Hong Kong Civil Procedure 2009, Vol.1, paragraph 62/App/5118.

74.Having considered the facts of the case, the legal issues involved, the factual disputes and the defendants’ bill of costs, I assess the defendants’ reasonable costs at HK$500,000. In accordance with Order 62 Rule 9(4)(b) of the Rules of High Court, I hereby order the plaintiff to pay to the defendants costs in the sum of HK$500,000.

The Plaintiff in person, present.

Mr. Edward Shum, instructed by the Department of Justice, for the 1^st and 2^nd Defendants.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.

[1] In his Statement of Claim, the plaintiff pleaded that the first incident happened on or about 21 October 2006. At trial, however, he said he might have made a mistake about the date and  he accepted the defence’s statement that the incident happened on 12 November 2006.

2 In his Statement of Claim, the plaintiff pleaded that the fifth incident happened on 18 February 2007. At trial, however, he admitted that it was a typographical mistake and that the date of the incident should be 24 February 2007.         

4   i.e. The provision which confers upon the police the power to carry out a stop and search operation (including search of the person).

3   Laws of Hong Kong, Cap. 232.

5      Laws of Hong Kong, Cap. 383.

6      Laws of Hong Kong, Cap.486.

7       [2005] 3 HKLRD 830, at 837.

8   See the judgment by Deputy Judge Barnes in Kwan Kin Sum, at 837, paragraph 43.

9       (2002) 5 HKCFAR 381, at 401, paragraph 59.

10     2nd Revised Edition, pages 385 to 386.

11     (1992) 73 DR 136.

12     The concept of “private life” is similar to that of “privacy” in Article 17 of the ICCPR: See U.N. Convention on Civil and Political Rights, CCPR Commentary, at page 385.

13     At 152.

14        (2005) 8 HKCFAR 229, at 250 to 252, paragraphs 25 to 29.

15    At page 481: “The term ‘unlawful’ means that no interference can take place except in cases envisaged by the law. Interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the [ICCPR].”

16    At pages 482 to 483: “The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims, objectives of the [ICCPR] and should be, in any event, reasonable in the particular circumstances. … The [Human Rights Committee] interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.”

17     For details, see the letter dated 22 July 2009 from the Secretary for Justice to the court

18     At page 1014.