Secretary for Justice v. Brian Alfred Hall

HCMP1201/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1201 OF 2008

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BETWEEN

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Before : Hon Yam J in Chambers

Date of Hearing : 16 November 2009

Date of Decision : 16 November 2009

Date of Handing Down Reasons for Decision : 4 December 2009

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REASONS  FOR  DECISION

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1.The defendant herein applied for leave to institute proceedings against the Secretary for Justice for misfeasance of offence by some officers of the Correctional Services Department (“CSD”).

2.The defendant’s application was made as a consequence of a successful appeal in the Court of Final Appeal on 8 July 2009 in respect of Mr Hall’s criminal conviction of assaulting certain CSD officers. The appeal was allowed on the ground of certain previous inconsistent statements of two CSD officers, Mr Ho Kwok Keung (“Ho”) and Mr Tung Hung Tak (“Tung”).

3.A search warrant was executed against the defendant’s cell at Stanley Prison on 30 July 2009. Certain items were seized.

4.On 26 October 2009, the defendant was arrested for the offences of “Perverting the Course of Justice” and “Uttering Forged Documents”. The police are now seeking advice from the prosecution division of the Department of Justice in respect of the on-going criminal investigation.

5.The Secretary of Justice as the plaintiff herein applied before me to adjourn the defendant’s application for leave to institute proceedings sine die with liberty to restore.

6.Mr Wesley Wong, Government Counsel, appearing for the plaintiff submitted that when a defendant in a civil action faces parallel criminal proceedings arising out of the same subject matter, the court has the discretion to stay the civil action pending the determination of the criminal proceedings. The test is whether it is just and convenient that the plaintiff’s ordinary rights of having his civil claim processed and heard and decided should be interfered with (see Jefferson Ltd v Bhetcha [1979] 1 WLR 898, per Megaw LJ. at p.905C-D; followed in Petroliam Nasional Berhad & Others v Tan Soon Gin [1990] 1 HKLRD 4, per Cons Acting CJ at p.8A-B.)

7.Mr Phillip Ross, counsel for the defendant Mr Hall, opposed the application on several grounds. He further applied for an order to cross-examine two deponents namely, Mr Fung Hing Nam (“Fung”), a senior inspector of the Hong Kong Police and Mr Cheung Wai Sun, Patrick (“Patrick Cheung”), Senior Assistant Director of Public Prosecution of the Department of Justice, on their affidavits.

8.In respect of Mr Fung, Mr Ross submitted that in his affirmation filed on 9 November 2009, he said in paragraph 17 that the police have taken a number of witness statements from a number of CSD officers, all of them confirmed that they were not the author of any of the documents mentioned therein. But those documents did not include the two purported statements made by the aforesaid Mr Chan Kong Sang (“Mr Chan”), the Assistant Commissioner and Mr Siu Chi Wing (“Mr Siu”), the Superintendent of CSD.

9.However I am afraid that was the misreading of the affirmation of Mr Fung. Paragrpah 17 only dealt with those documents as listed in paragraph 16 of the affirmation namely, FHL-10 to 13. It did not deal with the internal notice purportedly signed by Mr Chan and Mr Siu dated 12 June 2003. That notice was specifically dealt with in paragraph 9 and marked as FHL-2. Paragraph 17 encompassed all the officers not limited to those mentioned in paragraphs 15 and 16. In other words, the officers who said that they were not the author of the aforesaid documents included Mr Chan and Mr Siu.

10.In any event there is no useful purpose to cross-examine Mr Fung who has obtained information by the statement submitted by Mr Chan and Mr Siu and the main question is whether Mr Chan and Mr Siu are right in saying that they were not the authors of the purported internal notice.

11.In respect of Mr Patrick Cheung, Mr Ross submitted that for the information supplied to this court through Mr Matthew Leung in an ex parte hearing on 4 August 2009, Mr Leung related that his information was that Mr Cheung decided not to raise the allegation of forgeries simply on the ground that he did not want to alert Mr Hall in respect of the police investigation. Later on in Mr Cheung’s affidavit filed on 9 November 2009, he listed other grounds for deciding not to inform the Court of Final Appeal that there was an allegation of forgery from officers of the CSD. Mr Cheung mainly relied on what he considered to be not enough evidence by then to raise a case of forgery and the statements appeared to him on their face to be genuine. He was therefore eager to uphold the presumption of innocence on the part of the defendant.

12.Similarly even when Mr Leung on the information of Mr Cheung, appeared to be inconsistent in any way, it has no bearing on the application to institute the present proceedings at all. What counsel was thinking at the time when he appeared before the Court of Final Appeal is not relevant to whether Mr Hall should be given leave to institute the present proceedings.

13.For the aforesaid reasons I refused Mr Ross’s application to cross-examine Mr Fung and Mr Cheung on their affidavits, pursuant to Order 38, rule 2.

14.Lastly, Mr Ross complained that the defendant was arrested and he was not given police bail or the police did not even consider granting him bail. He was not brought before a magistrate within 48 hours after his arrest.

15.However the defendant was not yet charged and therefore has to be taken before a magistrate. When the defendant was arrested, he was still serving his sentence in respect of another offence. Therefore there is no point for the police to consider granting him any police bail for the time being. Mr Wong for the plaintiff assured me that once Mr Hall has been charged he will be taken before a magistrate and the issue of bail will be considered there and then.

16.For the aforesaid reasons I consider that it is just and convenient that Mr Hall’s intended proceedings should be stayed pending the determination of the criminal proceedings. I consider this issue as a question of case management (see Kwan J, as she then was, in Tan Man Kou v Chime Corporation Limited, unreported,HCMP4146/2001, 11 March 2005 at paragraph 14).

Conclusion

17.For the aforesaid reasons, I order in terms of the plaintiff’s summons dated 9 November 2009 for staying the defendant’s application.

Mr Wesley Wong, DPGC of the Department of Justice, for the Plaintiff

Mr Phillip Ross, instructed by Messrs Massie & Clement

(assigned by DLA), for the Defendant