Wong Tze Yam v. Lee Ming Kwai, Dick and Another

CACV 244/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 244 OF 2009

(ON APPEAL FROM HCA NO.2689 OF 2006)

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BETWEEN

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Coram: Hon Yuen JA, Hon Kwan JA and Hon Barnes J in Court

Date of Hearing: 8 September 2010

Date of Judgment: 27 September 2010

JUDGMENT

Hon Yuen JA:

1.I agree with the judgment of Kwan JA.

Hon Kwan JA:

2.This is an appeal lodged by the plaintiff Mr. Wong Tze-yam.  On 12 August 2006, the police carried out a licence-check and anti-crime operation in a disco in Tsimshatsui, in the course of which the police officers did not allow the plaintiff or other guests to leave the premises.  The plaintiff claimed that a police officer scratched and injured his shoulder.  On 4 December 2006, he issued a writ of summons against the Commissioner of Police, claiming damages in tort, exemplary damages and aggravated damages.  The amount claimed was $1,888,888.  The case was heard before Chung J in August 2009 and lasted 4 days.  On 18 September 2009 judgment was handed down in favour of the defendant.  The plaintiff was ordered to pay the defendant’s costs, which was assessed to be a fixed sum of $460,000.

3.In this case the plaintiff relied on 3 causes of action: trespass to the person, false imprisonment and nuisance.  Chung J found that none of them was established and he dismissed all the plaintiff’s claims.  The notice of appeal given by the plaintiff is only directed against the judgment about false imprisonment.  He does not appeal against the dismissal of the causes of action concerning trespass to the person and nuisance.

4.The plaintiff has also given up his claim for the $1,888,888 damages.  He only asks this court to order the defendant to pay him $1 as nominal damages and part of his costs at the trial.

5.The plaintiff was not represented at the trial; he is not represented during the appeal either, while the defendant is all along represented by Mr. Shum, instructed by the Department of Justice.

Facts of this case

6.The main facts about which the parties did not dispute were set out in paragraph 4 of Chung J’s judgment:

“ (1) At about 1 a.m. on 12 August 2006, the plaintiff and his friends arrived at the place in question to seek entertainment.

(2) The entrance and exit of the place was on the ground floor of the building in which the place was situated. Upon entry into the place, the plaintiff was ushered to one of the seats in the hall on the 3^rd floor.

(3) Before the police came, the plaintiff and his friends danced and chatted in the place.

(4) At about 2.45 a.m., the police came and entered the place to carry out what is commonly known as “licence-check”.

(5) 20 to 30 police officers entered the place, inside which there were 500 to 600 guests.

(6) In the course of this operation, the lights in the place were turned on and the music being played was stopped.

(7) In the place the police inspected the identity cards of some of the people present, and checked the articles put on the tables and the chairs by some of the people present.

(8) This operation finished at about 4.25 a.m. and the police left the place at the same time.”

7.Chung J stated that although the record submitted by the defendant showed that the plaintiff was one of the people at the scene who had produced their identity cards, the plaintiff did not claim during the trial that the police demanded him to do so; and that he said in his witness statement that no one had demanded him to produce his identity card and no one had searched him.

8.Chung J found that the evidence of the 5 witnesses called by the defendant (3 were police officers of the rank of inspector, while the others were respectively the security supervisor and the vice-manager of the place in question) was reliable.

9.In paragraph 9, there is a summary of the evidence given by the police officers as follows:

“ (1) The police officers who carried out the operation in the small hours on 12 August 2006 were officers of the Organized Crime and Triad Bureau, the Kowloon West Regional Anti-Triad Squad and the Police Tactical Unit of the Kowloon Region.

(2) The purposes of the operation were:

(a) to inspect the place in question to see whether there were any violations of the licence issuing conditions relating to the liquor licence and the place of public entertainment licence.

(b) “anti-crime”, that means to inspect the place in question to see whether any crimes involving dangerous drugs and/or involving violence resulting from drunkenness had been committed or were likely to be committed.

(3) According to the previous records or information kept by the police and according to the experience of the police officers who led and directed the operation that day, the crimes mentioned in paragraph (2)(b) frequently happened in the place in question and other similar places.

(4) The police had obtained the consent and cooperation of the people in control of the place and/or the licensee of the place before they entered to carry out the operation.

(5) In order to facilitate the carrying out of the operation mentioned in paragraph (2), at the time the staff members of the place in question turned on the lights and stopped the music which was being played.

(6) Through the broadcasting system the staff members of the place in question informed the guests that the police were going to carry out “licence-check” and asked them to return to their seats, to get their identity cards ready for producing them to the police and not to make any loud noises.

(7) In the course of carrying out the operation, the police officers inspected the identity cards of some of the people present, and checked the seats of the people present to see if there were any traces of taking dangerous drugs.

(8) All the plainclothes police officers who carried out the operation displayed their police warrant cards.

(9) None of the police officers who carried out this operation used any foul language.

(10) In the course of this operation, the police officers arrested several people in the place.  Later, 3 of these people were charged with possession of dangerous drugs and another one was charged with assaulting a police officers, resisting arrest and obstructing a police officer in the due execution of his duty.  These people were subsequently convicted.”

10.In paragraphs 11 and 15 of the judgement, there was a summary of the evidence of the security supervisor of the place in question.  His evidence was that the operation was carried out by a team of uniformed police officers and plainclothes police officers.  All the plainclothes police officers put on vests in dark colour with the characters 警察 (police) printed on them and all displayed their police warrant cards.  When the operation was underway, the plaintiff wanted to leave but the security supervisor and the police officers asked him to return to his seat.  The plaintiff was unhappy and demanded to see the officer-in-charge and he pointed his finger at [a] police officer.  [The] police officer touched the plaintiff’s left shoulder lightly to indicate to him that he could follow the police officer to go to see the officer-in-charge, but the plaintiff suddenly pushed away the police officer with his hand and stepped back.  The security supervisor saw that the plaintiff’s face was covered in redness.  He believed that he had drunk alcohol, so he explained to the police officer that he might have drunk too much alcohol. After that, the plaintiff made no further demand to see the officer-in-charge and he was not willing to go with the police officer; therefore the police officer went to handle other matters.  In the course of these events, the police officer did not show any ill will.  The plaintiff did not make any complaint to the security supervisor that he was assaulted or his clothes were dirtied.

11.The vice-manager gave evidence that in the course of the operation, he stood in the hall and assisted the police.  At the time there were 500 to 600 guests at the scene. He did not see any dispute between any guest and the police officers, and no guest ever made any complaint to him.

12.Both the vice-manager and the security supervisor confirmed that the police had obtained the consent of the person who was in control of the place in question before they entered the place to carry out the operation.

13.Chung J heard the evidence of the plaintiff and his witnesses and rejected their evidence.  In his notice of appeal and his skeleton argument, the plaintiff only raised certain legal arguments concerning false imprisonment but did not put forward any ground or argument to argue against the findings of fact made by the learned judge.  I agree with Mr. Shum’s submission that the plaintiff’s grounds of appeal should be considered on the basis of the findings of fact made by the learned judge.

Plaintiff’s grounds of appeal

14.The plaintiff’s grounds of appeal can be summarized as follows:

(1)   The detention of the plaintiff by the police on that night for the reason that they were carrying out licence check constituted a restriction imposed on his personal freedom.  The trial judge erred in following the decision made by the U.K. House of Lords in R (on the application of Gillan & Anor) v. Commissioner of Police for the Metropolis and Anor. [2006] UKHL 12, because in Hong Kong there is no legislation similar to the U.K. Terrorism Act 2000. Moreover, after Chung J handed down his judgement, on 12 January 2010 the European Court of Human Rights overturned the decision made by the House of Lords (Gillan & Quinton v. The United Kingdom, Application No. 4158/05).

(2)   The government has a legal duty to provide sufficient grounds to support any restriction on the human rights protected by the constitution and enjoyed by the citizens. The trial judge erred in finding that the conduct of the police did not contravene Articles 28 and 39(2) of the Basic Law or Article 5(1) of the Hong Kong Bill of Rights.

(3)   The Dutiable Commodities Ordinance, Cap. 109 did not confer on the police officers any power of detention.  There was no evidence that on that night the plaintiff was suspected of having violated any provisions of this Ordinance, and there was no way for him to be aware of the contents of the licence conditions.  The trial judge erred in finding that the police, in investigating whether in the place in question there was any violations of the licence conditions, had lawful authority to require the people present to remain there for a reasonable length of time.

(4)   There was no evidence that on that night the police reasonably believed or suspected that the plaintiff would be charged with or was guilty of any offence for which a person could be sentenced to imprisonment or any offence at all, or that he had committed, was about to commit or was intending to commit any offence; nor was he found to be acting in a suspicious manner.  Therefore, the trial judge erred in finding that the police could lawfully detain the plaintiff by virtue of sections 50(1), 54(1) and (2) of the Police Force Ordinance, Cap. 232.

15.In his skeleton submission, the plaintiff prayed in aid a number of Hong Kong and foreign authorities, legal provisions, international treaties and legal textbooks.  I have considered the relevant cases and authorities.  I will not refer to or discuss every one of them.

16.I will deal with these grounds in the order set out above.

1^st ground of appeal

17.In Gillan, the House of Lords, having scrutinized Article 5(1) (the provision about the prohibition against deprivation of liberty of the person1) and Article 8 (the provision about the respect for private life2) of the European Convention on Human Rights, held that the provisions about stop and search in the U.K. Terrorism Act 20003 did not contravene Article 5(1) or Article 8 of the Convention.  The European Court of Human Rights overturned the judgment of the House of Lords concerning Article 8.  It considered that the relevant provisions clearly amounted to an interference with the right to respect for private life, that they did not comply with the requirements of Article 8(2), and that the interference was not “in accordance with the law”. The European Court of Human Rights held that it was not necessary to examine the appellants’ complaints relating to Article 5(1).

18.The relevant provisions in the European Convention on Human Rights are similar to Article 28 of the Basic Law and Article 5(1) of the Hong Kong Bill of Rights which the plaintiff relies on.  In paragraph 33 of the judgment, Chung J remarked that the legal principles adopted by the U.K. court about how to interpret the provisions of the Convention and about how to strike a balance between the implementation of anti-terrorist measures on one hand and the protection of personal freedom of movement and private life on the other hand should be applicable to the adjudication of relevant issues in the present case.  From the next paragraph, i.e. paragraph 34, of the judgment, it can be seen that he just used this authority as reference material to assist him to decide how to apply basic legal principles to the facts of the present case.  I do not think that he relied on an inappropriate authority.

19.It appears that the main purpose of Chung J’s citing the judgment of the House of Lords was the following.

20.In paragraphs 24 and 25 of the judgment of the House of Lords, the House considered the principle and guideline laid down in two relevant authorities (Guzzardi v. Italy (1980) 3 EHRR 333; HL v. United Kingdom (2004) 40 EHRR 761) as to how to determine whether there has been a “deprivation of liberty” within the meaning of Article 5(1) of the Convention.  The starting point must be the concrete situation of the individual concerned and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question.  The House of Lords held that if a person was stopped and searched for just a relatively brief period, then in the absence of special circumstances, such a person should not be regarded as having been confined or kept in custody, that he was only detained in the sense of kept from proceeding or kept waiting, and that it did not amount to “deprivation of liberty”.

21.Although the European Court of Human Rights did not make any decision as to whether Article 5(1) of the Convention was violated, in paragraph 56 and 57 of its judgment it observed that Article 5(1) was concerned with “deprivation of liberty”, not mere “restrictions on liberty of movement”; such restrictions were governed by Article 2 of Protocol No. 4 of the European Convention on Human Rights, which has not been ratified by the United Kingdom.  The European Court of Human Rights was of the view that the difference between “deprivation of liberty” and “restriction on liberty” was merely one of degree and not one of substance.  In that case, although the length of time during which the appellants were stopped and searched did not exceed half an hour, during this period they were entirely deprived of any freedom of movement.  They were obliged to remain where they were and submit to the search and if they had refused, they would have been liable to arrest, detention at a police station and criminal charges.  These elements of coercion, according to the European Court of Human Rights, were indicative of a deprivation of liberty within the meaning of Article 5(1).

22.There is a difference of opinions between the House of Lords and the European Court of Human Rights as to what constitutes “deprivation of liberty”.  This court is not bound by either of these two judgments.  I notice that the comments about “deprivation of liberty” made by the European Court of Human Rights are more likely to be obiter dicta, because the European Court of Human Rights clearly said that it would not make any determination concerning Article 5(1).  In the present case, whether the conduct of the police constituted “deprivation of liberty” is not of much actual significance.  Article 28 of the Basic Law provides protection in the form that “Arbitrary or unlawful …… deprivation or restriction of the freedom of the person shall be prohibited”, while the protection afforded by Article 5(1) of the Hong Kong Bill of Rights is that “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”.  If the police operation on that night is regarded as “deprivation of the freedom of the person”, the plaintiff can rely on both the Basic Law and the Hong Kong Bill of Rights. Otherwise, he can only invoke the protection against “restriction of the freedom of the person” provided by the Basic Law but cannot rely on the Hong Kong Bill of Rights.

23.In this case, the police entered the place in question at 2:45 a.m..  The plaintiff stated in the statement of claim that he left sometime between 3:10 a.m. and 3:20 a.m., without encountering any further obstruction.  The period for which he was detained was about half an hour.  According to the plaintiff’s witness statement, during this period he had not been searched or asked to produce his identity card.  Chung J in paragraph 34(1) of his judgment made the finding that when the police were carrying out the operation, what the police required the people present at the scene (including the plaintiff) to do was only to wait until the operation was over before they could leave, and the time required for the operation was relatively short; therefore it should not be regarded that at the material time the individuals at the scene had been subjected to “arrest, detention or imprisonment” as specified in Article 28 of the Basic Law, or any of these treatments had been imposed on their freedom of movement.  I believe that this finding is correct.

24.Chung J did not make any finding as to whether the plaintiff’s freedom of the person was “deprived ” as referred to in the Basic Law and the Hong Kong Bill of Rights, or “restricted” as referred to in Article 28 of the Basic Law.

25.I accept the plaintiff’s submission that owing to the police operation, on that night his freedom of the person was subjected to “restriction” within the meaning of Article 28 of the Basic Law.  When I discuss the 2^nd ground of appeal, I will consider whether the restriction imposed on the plaintiff’s freedom of the person was a violation of the Basic Law.

26.As for the question whether he had been “deprived” of his freedom of the person within the meaning of the relevant provisions, I am inclined to agree with the opinions expressed by the House of Lords.  What actually happened was that the plaintiff was only required by the police to wait until the operation finished before he could leave the place.  During this period of time, he had told a police officer that he wanted to see the officer-in-charge and the police officer agreed to take him to the officer-in-charge, but he declined to go with the police officer.  Furthermore, the vice-manager of the place said that if, in the middle of a licence-check, a guest asked to be allowed to leave, a staff member would tell the police for them to decide whether they would grant the request.  As far as he knew, if there was such a request, generally there would not be any problem.  Even if the criterion of the European Court of Human Rights is adopted, putting aside the relatively short period for which the plaintiff was required to stay at the scene to wait for the completion of the licence-check, in the actual circumstances of this case the element of coercion did not clearly exist.  It does not appear to me that the operation carried out by the police constituted a “deprivation” of the plaintiff’s freedom of the person.

2^nd ground of appeal

27.In order to understand this ground better, I set out the text of the relevant provisions.

28.It is laid down in Article 28 of the Basic Law that:

“The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.”

29.Article 39 of the Basic Law provides that:

“The provision of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administration 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.”

Article 5(1) of the Hong Kong Bill of Rights provides that:

“Liberty and security of person

(1) Everyone has the right to liberty and security of person.  No one shall be subjected to arbitrary arrest or detention.  No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

30.As far as this ground is concerned, strictly speaking, it is not necessary to consider Article 5(1) of the Hong Kong Bill of Rights because, as stated above, the police did not “arrest” or “detain” the plaintiff, nor did they “deprive” him of his liberty.

31.As pointed out by Mr. Shum, the fact that the foregoing provisions provided protection against infringement upon freedom of the person does not mean that Hong Kong residents enjoy absolute freedom of the person; it means that there is prohibition against “arbitrary” or “unlawful” deprivation or restriction of the freedom of the person and against “arbitrary” arrest or detention, and that no one shall be deprived of his liberty “except on such grounds and in accordance with such procedure as are established by law”.

32.In another appeal involving the plaintiff (Wong Tze Yam v. Lee Ming Kwai, Dick, Commissioner of Police and Secretary for Justice, CACV 199/2009, 23/7/2010, paragraph 47), this Court held that the court should assess any restrictions on the freedoms enjoyed by Hong Kong residents in the perspective of reasonableness and proportionality.

33.In paragraphs 30 and 31 of the judgment of Wong Tze Yam v. Lee Ming Kwai, Dick, Commissioner of Police and Secretary of Justice [2009] 5 HKLRD 826, Poon J made the following analysis of the words “arbitrary” and “unlawful” used in Article 14 of the Hong Kong Bill of Rights and Article 17 of the International Covenant on Civil and Political Rights:

“30. As for the “unreasonable/arbitrary[1] 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 16.08. 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 16.12.”

34.I find that the above analysis is also applicable to the identical words used in Article 28 of the Basic Law and Article 5(1) of the Hong Kong Bill of Rights.

35.In paragraph 30 of the judgment, the learned judge found that the purposes of the police operation that day included carrying out inspection for the prevention of crimes. According to the previous records or information kept by the police and according to the experience of the police officers who led and directed the operation that day, crimes involving dangerous drugs and crimes involving violence resulting from drunkenness frequently happened in the place in question and other similar places.  This was sufficient to cause the police to reasonably suspect that some of the people present at the scene “had committed or were about to commit or intended to commit” certain offences (wording used in section 54(2) of the Police Force Ordinance).  Owing to the fact that there were 500 to 600 people at the scene at the material time, when the police were considering whether they should exercise the powers conferred by sections 54(1) and (2), they could require the people present to remain there for a reasonable length of time.

36.As regards the findings of fact in this case, the operation which the police carried out on that night was truly for the purpose of preventing and detecting crimes, arising from the need to maintain peace and order and based on reasonable suspicion. The police thereafter arrested several people, 3 of whom were later charged with possession of dangerous drugs, while another one was charged with assaulting a police officer, resisting arrest and obstructing a police officer in due execution of his duty; all of them were convicted subsequently.  I accept Mr. Shum’s submission that any restriction imposed during the police operation on the freedom of the person was proportional to the end sought and that what the police did was reasonable, in that only the minimum interference with the freedom of the person had taken place.  With respect to the provisions in the Police Force Ordinance which the police relied on, such provisions complied with the principle of legal certainty because before a police officer can exercise the powers conferred by these provisions, certain clear requirements must be met. For instance, he must have reasonable suspicion or he must have found someone acting in a suspicious manner.  Such powers cannot be exercised arbitrarily. These are safeguards against abuse of police power.

37.The plaintiff’s allegation that the defendant had violated Articles 28 and 39 of the Basic Law, and Article 5(1) of the Hong Kong Bill of Rights are not substantiated.

3^rd ground of appeal

38.The plaintiff contended that there was no evidence that he was under suspicion of having violated any provisions of the Dutiable Commodities Ordinance, Cap. 109, and that this Ordinance did not give the police any power of detention.

39.It is true that the relevant provisions of the Dutiable Commodities Ordinance do not give a police officer the power to detain anyone.  However, sections 6(n), (o), (p) and (q) provide that the Chief Executive in Council may by regulation provide for the following matters: the issue, suspension and revocation of liquor licences, the regulation of premises in respect of which a liquor licensed is granted, the regulation of the sale and supply of liquor to minors and the regulation of the employment and presence of minors on licensed premises.  By virtue of these provisions, the Dutiable Commodities (Liquor) Regulations were enacted.  Regulation 31 provides that any police officer may enter at any hour of the day or night every part of any premises or place in respect of which a liquor licence is in force.  A police officer is charged with the duty to take lawful measures for preserving the public peace and preserving order in assemblies for public amusements.  Part of his work is to inspect premises in respect of which a liquor licence is granted to ensure that the people concerned obey these legal provisions and fulfil the licence conditions.

40.In paragraph 28 of the judgement, relevant evidence was quoted which showed that licence conditions could include: (a) restriction on the number of people that can be accommodated in the licensed premises; (b) restriction on the lower limit of the age of the people to whom alcoholic beverages can be sold; and (c) restriction on selling alcoholic beverages to persons who are already drunk.  The learned judge considered that in order to carry out investigation effectively, it was necessary for the police to make enquiries of the people present at the scene.  The focal point had never been whether the plaintiff had contravened any provisions of the Dutiable Commodities Ordinance.  The fact that the plaintiff had no opportunity to check and read the content of the licence is irrelevant.

41.Chung J found that just for investigating whether there was any breaches of the licence conditions in the place in question, even without other purposes, the police already had lawful authority to require the people present at the scene, including the plaintiff, to remain there for a reasonable length of time.  He was undoubtedly correct.

4^th ground of appeal

42.The plaintiff alleged that the learned judge erred in finding that the police could detain him by invoking the Police Force Ordinance, Cap. 232.

43.The relevant provisions are set out below:

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

(a) preserving the public peace;

(b) preventing and detecting crimes and offences; … …

(g) preserving order in public places and places of public resort, at public meetings and in assemblies for public amusements, for which purpose any police officer on duty shall have free admission to all such places and meetings and assemblies while open to any of the public;”

“ 50 (1) It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of —

(a) any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment;”

“ 54 (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; … …

(2) If a police officer finds any person in any …… 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.”

44.As stated before, the evidence which the learned judge accepted was that the purposes of the police operation that day included to carry out inspection for preventing crimes.  According to previous records or information kept by the police, they had reason to suspect that some of the people present in the place in question might “have committed or were about to commit or intended to commit” (wording used in section 54(2)) certain offences.  Owing to the fact that at the material time there were as many as 500 to 600 people at the scene, when considering whether the powers conferred by sections 54(1) and (2) should be exercised, the police could require the people present to remain there for a reasonable length of time.  The learned judge also found that taking into account the manner in which the police carried out the operation and the time they needed for the operation, even if the people present at the scene (including the plaintiff) could be regarded as having been “stopped” or “detained” (wording used in sections 54(1) and (2)), the operation was still a lawful operation covered by sections 54(1) and (2).  I agree with his finding.

Conclusion and costs

45.None of the plaintiff’s grounds of appeal is established.  The appeal shall be dismissed.

46.Turning now to the costs of the trial, I notice that in an earlier appeal lodged by the plaintiff (CACV 199/2009), the Court of Appeal reduced the amount of fixed costs assessed by the trial judge from $500,000 to $300,000.  The number of the days of hearing of the present case, like that case, is 4 days, and the same solicitor and the same counsel represented the defendant.  I have taken part in the hearing of that appeal too.  I do not think that there is any difference between these two cases in terms of complexity.  Therefore, in my view, the costs assessed by Chung J in the form of a fixed sum should likewise be reduced from $460,000 to $ 300,000.

47.I have heard the submissions of the two parties as to the costs of this appeal.  The rule is that the plaintiff, being the losing party, shall pay the defendant’s costs.  I have considered the defendant’s statement of costs, to which the plaintiff made no response.  I assess the defendant’s costs to be a fixed sum of $65,000.

Hon Barnes J:

48.I agree with the judgment of Kwan JA.

The Plaintiff (Appellant), acting in person, present.

Mr. Edward Shum, instructed by the Department of Justice, for the Defendant (Respondent)

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