Wong Tze Yam v. Tang King Shing, Commissioner of Police and Another

CACV199/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 199 OF 2009

(ON APPEAL FROM HCA539 OF 2007)

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Coram: Hon Cheung JA, Hon Yeung JA and Hon Kwan JA

Date of Hearing: 8 July 2010

Date of Judgment: 23 July 2010

JUDGMENT

Hon Yeung JA (giving the judgment of the Court):

Background

1.In December 2006, the appellant Mr. Wong Tze Yam (“Mr. Wong”) commenced a civil action at the High Court (HCA 2689/2006) claiming damages against the Commissioner of Police (“the Commissioner”) on the cause of action that he had allegedly been illegally detained by police officers at a certain place of public entertainment in Tsim Sha Tsui.

2.Mr. Wong alleged that the Commissioner took revenge on him and his younger brother Wong Tze Yuk (“younger brother”) because of the incident mentioned above. Between 12 November 2006 and 4 March 2007 a number of police officers, on 5 occasions, stopped and searched him or his younger brother and him in the streets.  The police officers searched their persons, demanded them to produce their identity cards and recorded in the police notebooks their personal particulars as set out in their identity cards.

3.Mr. Wong complained that the police officers should not have any reasonable suspicion against him or his younger brother, but they demanded them to produce their identity cards and searched their persons, and by doing so they violated section 54 of the Police Force Ordinance.  Mr. Wong also asserted that whether or not any reasonable suspicion existed, a police officer was not allowed to record or collect the personal particulars of a person stopped and searched. Mr. Wong alleged that what the police officers had done contravened Article 39 of the Basic Law and Article 14 of the Hong Kong Bill of Rights Ordinance (“Bill of Rights”), both of which provided for the protection of the privacy of citizens, as well as paragraph 2(a) of the Data Protection Principle 1 (purpose and manner of collection of personal data) under the Personal Data (Privacy) Ordinance (“Personal Privacy Ordinance”).

4.In 2007, Mr. Wong filed another claim with the Court of First Instance of the High Court (HCA539/2007) for damages against the Commissioner and his representative the Secretary for Justice (“the Secretary”).  The amount of damages which Mr. Wong claimed against the Commissioner and the Secretary was HK$1,888,888.

5.On 11 August 2009, Mr. Justice Jeremy Poon of the Court of First Instance dismissed Mr. Wong’s claim and ordered him to pay costs fixed in the sum of $500,000.

6.Mr. Wong now appeals to this Court against Poon J’s decision.

7.The undisputed facts were that Mr. Wong or Mr. Wong and his younger brother were stopped and searched by police officers at the following times and locations:

Time and date		Location	Person stopped and searched
I.	11p.m. – 12 a.m., 12 November 2006	Outside 35 Gage Street, Central	Mr. Wong
II.	1:30 a.m., 26 January 2007	Outside OK Convenience Store at 254 Des Voeux Road, Central	Mr. Wong and his younger brother
III.	5:30 p.m., 8 February 2007	Java Road, North Point	Mr. Wong and his younger brother
IV.	12:35 a.m., 27 February 2007	Safety Island outside Harcourt Garden, Admiralty	Mr. Wong and his younger brother
V.	6 p.m., 4 March 2007	Outside former Western Magistracy, Pok Fu Lam Road	Mr. Wong and his younger brother

8.The position of the Commissioner and the Secretary was that the stopping and searching of Mr. Wong or Mr. Wong and his younger brother 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 the personal particulars of a citizen by a police officer in his notebook following a lawful stop and search of the citizen was lawful, constitutional and did not contravene the Personal Privacy Ordinance.

Evidence given by the parties

9.Both Mr. Wong and his younger brother gave evidence about what happened when they were stopped and searched by the police officers.  Different police officers were involved in these 5 occasions of stop and search.  They were respectively: 1^st occasion: PC 54107 Wong Shing Chung; 2^nd occasion: PC 58904 Tam Kwai Yong; 3^rd occasion: PC 51635 Mak Chi Man and Station Sergeant 23770 Ho Chun Chiu; 4^th occasion: PC 34474 Tang Hin Fung and Station Sergeant 22731 Sum Yik Man; 5^th occasion: PC 1697 Lee Gong Tai, Sergeant 48112 Ho Wai Ming and Senior Inspector 90056 Luk Hoi Ho. All these police officers gave evidence about how they stopped and searched Mr. Wong and his younger brother.

10.The evidence given by the parties in respect of these 5 occasions was as follows:

1^st occasion

Mr. Wong’s evidence:

“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.”

PC 54107’s evidence:

“3. At 0007 hours on 12 November 2006, when PC 478 and I were partrolling 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 misbehaviors arising from drunkenness.”

2^nd occasion

Mr. Wong and his younger brother’s evidence:

“2. At about 1:35 a.m. on 26 January 2007, when I was reading 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 persona 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.”

PC 58904’s evidence:

“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. ……”

3^rd occasion

Mr. Wong and his younger brother’s evidence:

“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.”

PC 51635’s evidence:

“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. ……”

Station Sergeant 23770’s evidence:

“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 refused 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 or 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.”

4^th occasion

Mr. Wong and his younger brother’s evidence:

“4. At about 12:35 nighttime 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 the 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 note[book].  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.”

PC 34474’s evidence:

“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. ……”

Station Sergeant 22731’s evidence:

“3. At about 0050 hours on 27 February 2007 (I was then attached to Uniform Patrol Sub-unit 4 of the Water Front Police 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 I learnt that their names are 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 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. ……”

5^th occasion

Mr. Wong and his younger brother’s evidence:

“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, a uniformed police constable of the PTU, 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.”

PC 1697’s evidence:

“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. ……”

Sergeant 48112’s evidence:

“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. ……”

Senior Inspector 90056’s evidence:

“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 andSergeant 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 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. ……”

Findings made by the trial judge

11.As far as factual issues are concerned, Poon J found that all the police officers were honest and reliable, but Mr. Wong and his younger brother were not. Therefore, where the evidence of Mr. Wong and his younger brother differed from that of the police officers, Poon J rejected their evidence and accepted the evidence of the latter.

12.Poon J found that on all the 5 occasions of stopping and searching Mr. Wong or Mr. Wong and his younger brother, the police officers were lawfully exercising their powers under section 54(1) or 54(2) of the Police Force Ordinance.  Poon J found that the police officers had the power to stop and search Mr. Wong and his younger brother, to demand them to produce their identity cards for inspection, and to record in the police notebooks their names, dates of birth and identity card numbers as shown on their identity cards.

13.Poon J carefully set out the relevant legal principles and made his findings according to these principles.

14.Poon J found that the personal particulars set out on the identity card of a citizen, including his name, gender, date of birth and the identity card number were unique and were the most useful information that could be relied on to ascertain or verify the “personal identity” of an individual and that therefore the personal particulars set out on an identity card formed part of the “privacy” of a citizen and were protected by Article 39 of the Basic Law, Article 17 of the International Covenant on Civil and Political Rights (“ICCPR”) and Article 14 of the Bill of Rights.

15.However, Poon J found that when a police officer, by exercising his powers under the Police Force Ordinance, stopped and searched a citizen and recorded in his notebook the personal particulars on the identity card of the person so stopped and searched, what he did was prescribed by law and did not constitute unreasonable, arbitrary or unlawful interference, so that there was no contravention of Article 39 of the Basic Law, Article 17 of the ICCPR or Article 14 of the Bill of Rights, and the requirements laid down in the Personal Privacy Ordinance were satisfied.

16.Poon J also found that after a police officer lawfully stopped and searched a citizen by exercising his powers under section 54 of the Police Force Ordinance, he could, by virtue of section 10(b), record in his notebook the personal particulars as shown on the identity card of the person stopped and searched by him. This was because the purpose of his doing so was to detect and prevent crime, and the act was therefore lawful and constitutional.

17.Poon J carefully considered the circumstances surrounding the 5 occasions on which the police officers stopped and searched Mr Wong or Mr. Wong and his younger brother, and came to the conclusion that there was sufficient evidence for the police officers to invoke section 54(1) or 54(2) of the Police Force Ordinance, so that what they did, including the recording in their notebooks the names, dates of birth and identity card numbers of Mr Wong and his younger brother after searching them, was done for the reasonable execution of their duties and did not contravene the Basic Law, the ICCPR, the Bill of Rights or the Personal Privacy Ordinance, and that therefore they did not constitute any illegal tortious act.  Poon J gave judgment against Mr. Wong, dismissed all his claims and ordered him to pay costs fixed in the sum of $500,000.

Grounds of appeal

18.In his Notice of Appeal, Mr. Wong complained that Poon J did not sufficiently assessed the credibility and reliability of the witnesses, and as a result he made erroneous findings as to the facts.  Mr. Wong emphasized that Poon J did not explain why he concluded that he and his younger brother were not honest and reliable witnesses, but ruled that all the police officers were honest and reliable.  Mr. Wong said that the conclusion reached by Poon J showed that he was biased.

19.Mr. Wong asserted that Poon J misinterpreted the meaning of the relevant provisions of the Police Force Ordinance, and therefore he wrongly found that the police officers’ stopping and searching him and his younger brother, the recording in the notebooks their names, dates of birth, identity card numbers and other information did not contravene Article 39 of the Basic Law, Article 17 of the ICCPR or Article 14 of the Bill of Rights.

20.Mr. Wong submitted that Poon J failed to consider sufficiently or failed to consider at all the principles concerning the rule of law and that he, just based on a simple bill of costs, ordered him to pay $500,000 costs, without analyzing the legal issues and factual disputes involved in the case. Mr. Wong said that he did not have sufficient time to object to the bill of costs prepared by the Commissioner and the Secretary.

21.Mr. Wong insisted that the police officers wrongly recorded in their notebooks his personal particulars and those of his younger brother in contravention of the Basic Law, the ICCPR, the Bill of Rights and also in violation of the Personal Privacy Ordinance, and that therefore he was entitled to claim for damages against the Commissioner and the Secretary.

22.When Mr. Wong made submissions to this Court in accordance with his “Skeleton Arguments (Open)”, he made some changes in his position.  He did not complain about Poon J’s findings of fact any more, and he no longer insisted that the police officers’ stopping and searching him and his younger brother was unlawful and unconstitutional.  Mr. Wong just maintained that the recording of his personal particulars and those of his younger brother by the police officers during or after stopping and searching them was against the Basic Law, the Bill of the Rights and the ICCPR, and was at variance with the Personal Privacy Ordinance.  Mr. Wong stressed that one of the purposes of the police officers’ stopping and searching them, including detaining him and his younger brother, was to obtain the information contained in their identity cards and to record the information in their notebooks.  Mr. Wong submitted that such acts were devoid of any legal basis.

23.Mr. Wong protested that he and his younger brother were Hong Kong permanent residents and should be entitled to the protection afforded by the Basic Law and the Bill of Rights, and should not be lightly deprived of such protection. Mr. Wong was of the view that even though section 54 of the Police Force Ordinance authorized a police officer to stop and search any suspicious character and to demand that he produce proof of his identity for inspection, it did not give power to the police officer to record the particulars on the identity card of the person so stopped and searched.

24.Mr. Wong was adamant on the point that after the enactment of the Bill of Rights, the Legislative Council did not make any law which gave power to a police officer to collect the personal particulars of a citizen stopped and searched by him. Section 10(b) of the Police Force Ordinance, which Poon J invoked, was not clear enough on this point to satisfy the “prescribed by law” requirement to restrict the rights and freedoms enjoyed by Hong Kong residents, including the right to protection of the privacy of their personal data .

25.Mr. Wong prayed in aid a number of Court of Final Appeal judgments, including Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, HKSAR v Ng Kung Siu and Lee Kin Yun (1999) 2 HKCFAR 469, Ng Ka Ling and Anor v Director of Immigration (1999) HKCFAR 49, Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229 and Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 to support his position.  Mr Wong asserted that the protection afforded to a citizen for his basic human rights should be all encompassing, and that these rights should be interpreted generously so as to give effect to the rights of an individual to the full; that on the other hand, restrictions imposed on the rights should be narrowly interpreted; and that it was incumbent on the Government to provide sufficient reasons to justify any measure which restricted human rights.

26.Mr. Wong pointed out that neither the Commissioner nor the Secretary provided any reason and/or evidence to show that the recording of the personal particulars of a person stopped and searched was in any way reasonably connected with any lawful purpose.  Mr. Wong also expressed his views on the present level of human rights, the present condition of the rule of law and the present relationship between the Judiciary and the Government in Hong Kong, which served as the conclusion of his Skeleton Arguments.

Respondent’s position

27.Mr. Edward Shum, for the Commissioner and the Secretary, submitted that the learned judge had found that the police officers’ stopping and searching Mr. Wong and his younger brother was lawful, and that therefore the only issue to be resolved was whether it was unconstitutional or an encroachment on the two persons’ privacy for the police officers to record in the notebooks the personal particulars contained in their identity cards.

28.Mr. Shum stressed that the relevant provisions in the Police Force Ordinance complied with the “prescribed by law” requirement in Article 39 of the Basic Law, and that the recording of the particulars of a person stopped and searched was not unreasonable or arbitrary, but was only minimal interference

with the “privacy” of the person stopped and searched, and so there was no contravention of the Basic Law, the ICCPR or the Bill of Rights.

29.Mr. Shum argued that the purpose of recording in the police notebook the personal particulars of a person stopped and searched was to detect and prevent crimes, therefore it was within the exemption under section 58 of the Personal Privacy Ordinance.

30.Mr. Shum put forward an alternative argument, namely that the personal particulars contained in the identity card of a citizen did not form part of the “privacy” of the citizen, and so Poon J’s finding made in respect of this issue was wrong.  Even if such information was information concerning “privacy”, in order to strike a proper balance between the interests of the society and the privacy of the individual, it was reasonable to allow a police officer to record in his notebook the particulars contained in the identity card of a citizen after he stopped and searched that citizen.

Discussion

31.Article 39 of the Basic Law provides that the ICCPR is applicable in Hong Kong. Article 17 of the ICCPR and Article 14 of the Bill of Rights stipulate that [Translator’s note: the English versions of these two provisions are identical]:

“(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 …”

32.The learned judge found that the personal particulars set out on the identity card of a citizen formed part of the “privacy” of the citizen and should be protected by Article 17 of the ICCPR and Article 14 of the Bill of Rights.  Mr. Shum disagreed and he stressed that the European Commission of Human Rights had never made any decision that “privacy” included the name of a person, and that in Reyntjens v Belgium (Application No. 16810/90) 73 D.R. 136, it was clearly held that the complainant’s identity document bore only his name, date of birth and other personal particulars but did not bear any information about the “private life”[1] of any individual.

33.If the respondent in an appeal is aggrieved by a decision made at the trial and desires the Court of Appeal to vary the decision, he must give a respondent’s notice and lodge a cross-appeal in accordance with Order 59 rule 6(1) of the Rules of the High Court. Otherwise, it is not necessary for the Court of Appeal to grant any remedy or relief.

34.Neither the Commissioner nor the Secretary has given any respondent’s notice in respect of Poon J’s decision.  In the circumstances of this case, we do not think that we should exercise our discretion to deal with the respondent’s allegation that Poon J had made a wrong decision.

35.The right to protection of “privacy”-related information which a citizen enjoys is not a right which is absolutely free from any interference.  When it is reasonable and lawful to do so, law enforcement agencies, including the police force, are empowered to take certain actions, notwithstanding such actions violate the principle of protection of “privacy”.  It is for this reason that Article 17 of the ICCPR and Article 14 of the Bill of Rights stipulate only that no one shall be subjected to “arbitrary or unlawful interference with his privacy”, and that Article 39 of the Basic Law provides that “The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.”

36.Poon J in his judgment correctly pointed out that sections 54(1) and (2) of the Police Force Ordinance expressly provide that under certain specifically defined circumstances a police officer has the power to stop any person who has aroused his suspicion and demand that he produce proof of his identity for inspection.  The wording of sections 54(1) and (2) of the Police Force Ordinance is clear.  Even if they are interpreted in the narrowest sense, they still confer power on a police officer, in circumstances specified in the provisions, to stop a person who has aroused his suspicion and to demand that the person produce proof of his identity for inspection.

37.As a matter of fact, section 54 of the Police Force Ordinance was amended and became as it is now after the Bill of Rights came into force in 1991.  The purpose of the amendment was to ensure that a police officer’s stopping and searching a suspicions character and demanding that he produce proof of his identity for inspection did not contravene any provision which protects human rights.

38.Taking into account the importance of preventing and detecting crimes, and the disturbance caused to a person by stopping and searching him and demanding that he produce proof of his identity for inspection, the restrictions imposed by section 54 of the Police Force Ordinance on the protection for privacy-related personal data are clearly reasonably connected with and proportional to the end sought, so that they meet the requirements laid down in R v Sin Yau Ming [1992] 1 HKCLR 127.  Mr. Wong actually raised no more objection in this respect.

39.Mr. Wong’s position was that even if it was lawful and constitutional for a police officer to stop and search a person who aroused his suspicion and to demand that the person produce proof of his identity for inspection, it did not follow that the police officer had the power to record in his notebook the personal data of the person whom he stopped and searched.  Mr. Wong argued that inspection of proof of identity after stopping and searching someone and the recording of information were two different procedures.  Mr. Wong even insisted that one of the purposes of a police officer’s stopping and searching a suspicions character was to collect the personal data of that person.

40.We do not agree with Mr Wong’s argument.  A police officer is a member of a disciplinary force and is required to strictly observe disciplinary rules and regulations. In order to ensure that the police officers will carry out their duties properly and that how they behave when carrying out their duties can be examined where it is necessary to do so, all police officers must make detailed record of events which happened when they were carrying out their duties.  There are multiple purposes for doing this.  It can protect the police officers and can help them, when necessary to do so, to refresh their memory of what happened in the execution of their duties.  It is also for the protection of the interests of the citizens, for it can ensure that the police officers will not abuse their powers when they were performing their duties.  The notebooks which the police officers use to record the details of how they discharge their duties are one of the specified articles of equipment that, under the Police Force Ordinance, should be provided to police officers.

41.As pointed out by Mr Shum, the Law Reform Commission had scrutinized the amended section 54 of the Police Force Ordinance.  The Commission not only considered that the provision did not contravene the Bill of Rights, they even made the following recommendation:

“We have concluded that there should be a power to carry out random identity card checks. However, as a safeguard against abuse of the power, we believe that a requirement should be imposed on the police to keep a written record of any ID checks. This would make it possible to monitor the exercise of the power to carry out random identity card checks and, where necessary, it would enable disciplinary action to be taken in the event of abuse of those powers.”

42.We agree that to record in the notebook the information contained in the proof of identity of the person stopped and searched is just the exercise of part of the powers conferred on a police officer by section 54 of the Police Force Ordinance.  It is a reasonable extension of such powers and is a necessary and reasonable step.  This step, just like stopping and searching a suspicious character and demanding that he produce proof of his identity for inspection, is constitutional and lawful.

43.Had there been any information which shows that the police officers’ recording the information contained in the identity cards of the persons stopped and searched by them was a result of any ulterior motive or purpose in addition to the purpose of making a record of what had happened, then the outcome may have been different.  However, there is no information which shows that this did happen. Mr. Wong did not make such allegation, nor did he produce any evidence to substantiate such allegation.  We do not need to consider what the outcome would have been if such thing did happen.

44.We must emphasize that the workload of a police officer is heavy and the duties he needs to carry out are many.  A police officer, when required to act as such, shall be deemed to be on duty, regardless of where he is and what time it is. A police officer is a member of a disciplinary force and his conduct is governed by disciplinary rules and regulations.  If a police officer cannot make written record of details about how he carries out his duties, he will be seriously hampered in his work and his efficiency will surely decrease.  This is certainly not a desirable phenomenon in a civilized society.

45.Poon J found that the information, namely the names, dates of birth and identity card numbers of the persons which the police officers recorded after they stopped and searched those persons in accordance with the Police Force Ordinance was the most basic information needed for ascertaining or verifying the identity of a person, and that recording such information was proportional to the purpose of preventing and detecting crimes.  Poon J stressed that the evidence showed that the police officers’ recording such basic information of the persons stopped and searched, like stopping and searching the persons who aroused their suspicions, was solely for preventing and detecting crimes.  The information was not put to any other use.  The interference that was caused to the “privacy” of the persons stopped and searched was minimal.  These findings made by Poon J are reasonable and correct.  We agree with them.

46.Poon J correctly stated in paragraph 34 of his judgment that “Paragraph 2(a) of Data Protection Principle 1 under the Personal Data (Privacy) Ordinance provides that personal data must be collected in a lawful manner. … 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.”

47.The stopping and searching of the two Mr. Wong and the recording of the information on their identity cards by the police officers had a sound legal basis and were done as “prescribed by law”.  Judging the legal provisions in the perspective of reasonableness and proportionality, they do not infringe upon the “privacy” protected by the Basic Law, the ICCPR and the Bill of Rights.

48.We have carefully considered the judgment given by Poon J and we approve his judgment.  When a police officer stops and searches a citizen and records in his notebook the name, date of birth and other information contained in the citizen’s identity card, there is no contravention of Article 39 of the Basic Law, Article 17 of the ICCPR or Article 14 of the Bill of Rights, and such acts satisfy the requirements in the Personal Privacy Ordinance.

49.Poon J found that each of the 5 occasions of stopping and searching Mr. Wong or Mr. Wong and his younger brother was lawful action taken by the police officers in accordance with section 54(1) or 54(2) of the Police Force Ordinance when the officers felt suspicious of them.

50.Mr. Wong complained that Poon J accepted the police officers’ evidence but rejected the evidence given by him and his younger brother.  He accused Poon J of being biased.

51.General speaking, the Court of Appeal will not disturb findings of fact made in the lower court, because the trial judge had the opportunity to hear and observe the demeanor of the witnesses when they were giving evidence.  The Court of Appeal will not reverse the findings of fact made by the trial judge and replace them by its own, unless it considers that the findings of fact in question are not supported by the evidence or are inconsistent with the documentary evidence produced at the trial.  (See Ting Kwok Keung v. Tam Dick Yuen and Ors (2002) 5 HKCFAR 336).

52.Poon J had the opportunity to observe how the witnesses of the two sides gave evidence.  The police officers concerned had no motive for framing Mr. Wong. Mr. Wong’s allegations against the police officers have no objective basis. Poon J was entitled to accept the police officers’ evidence and reject the evidence given by Mr. Wong and his younger brother.

53.We uphold Poon J’s decision to dismiss Mr Wong’s claim against the Commissioner and the Secretary.

54.As a general rule, the losing party in a civil case has to pay the opposite party’s costs.  There are no exceptional circumstances in this case.  Poon J is entitled to order Mr. Wong to pay the costs of the Commissioner and the Secretary.  However, we have reservations about the decision made by Poon J summarily that the costs should be $500,000.  This case is not too complicated and the hearing finished within 4 days.  We have considered and analyzed the Statement of Costs submitted by the Commissioner and the Secretary.  We can determine the reasonable amount of the Commissioner and the Secretary’s costs on the same footing as Poon J.  We think that the reasonable amount should be $300,000, instead of $500,000.

55.We dismiss Mr. Wong’s appeal, but reduce the costs payable by him to the Commissioner and the Secretary from $500,000 to $300,000.

56.We also order that Mr. Wong shall pay the costs of this appeal.  Having considered the Statement of Costs of the Commissioner and the Secretary and relevant factors, including our decision that the costs of the first instance hearing shall be reduced, we fix the costs of the appeal at $50,000.

The Appellant/Plaintiff, acting in person, present.

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

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.