Sombahamphe Tanka v. The Secretary for Justice on behalf of the Commissioner of Police and Another

DCMP 532/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 532 OF 2012

--------------------------------

--------------------------------

Before: Her Honour Judge H C Wong in Court

Dates of Hearing: 26 September 2012 and 4 October 2012

Date of Judgment: 16 November 2012

---------------------------

JUDGMENT

---------------------------

1.As Mr Sombahamphe Tanka, a Napelese working and living in Hong Kong, stepped out of the Yau Ma Tei MTR Station on his way home at 21:00 hours on 20 December 2009, he was arrested by the police. He was later taken to the Yau Ma Tei police station in handcuffs. The police arrested at the same time two Pakistani men Mr Durez and Mr Imran who were not known to Mr Tanka. (“the two co-defendants”)

2.Mr Tanka claimed his personal belongings including his MTR octopus card were taken away from him at the police station and he was kept in police custody.  At 01:00 hours of 21 December 2009, the police removed his clothes and took body samples from him without informing him the reasons for their action.

3.Mr Tanka further claimed that it was not until the police interviewed him at 21:47 hours on 21 December 2009 that he was told for the first time he was suspected of raping a 15 year old Chinese girl with mild grade mental retardation at a room in the roof top of 20 Tak Cheong Lane, in Yau Ma Tei at 17:00 hours on 20 December 2009.

4.At the police video recorded interview, Mr Tanka denied the offence and told the police he was with his friend Ms Gurung Ganga at the reported time of rape.  He was nevertheless charged with rape and detained in police custody after the interview.

5.On the morning of 23 December 2009, Mr Tanka was brought before principal magistrate Mr Andew Ma at the Kowloon City Magistrate Court, bail was refused due to the seriousness of the offence.  The Magistrate was told Mr Tanka was identified in the street by the victim.

6.On 28 December 2009, the police contacted Ms Ganga and took a witness statement from her, she corroborated Mr Tanka’s alibi. On 29 December 2009, the police obtained Mr Tanka’s octopus card travel records from the octopus company.

7.Mr Tanka and the two co-defendants were brought back to the Kowloon City Magistracy on 30 December 2009, the prosecution informed the Magistrate Mr DI Thomas, Mr Tanka’s octopus card travel records were consistent with his alibi; however, as the police was still waiting for the forensic results, Mr Tanka was not excluded as a suspect.  The prosecution did not oppose bail for Mr Tanka but asked for stringent bail conditions to be imposed.  Despite the opposition by the prosecution of the two co-defendants, Mr Thomas granted bail to Mr Tanka and the other two suspects with the same stringent bail terms.

8.On 26 January 2010, Mr Tanka was informed by the police to attend an identification parade on the next day, Mr Tanka’s solicitors informed the police by letter on the same day that Mr Tanka would not be attending the post-charge identification parade until he received full legal advice.  As it turned out the victim was too emotional on 27 January 2010 for the ID parade to take place.

9.On 3 February 2010, Mr Tanka was brought back to Kowloon City Magistracy when the prosecution asked for further adjournment pending further inquiry and legal advice.  The same stringent bail conditions were imposed on Mr Tanka.

10.Upon Mr Tanka’s review of bail condition application to the High Court on 12 February 2010, the prosecution indicated its intention to drop the charge against Mr Tanka, Mr Justice Wright lifted the bail conditions imposed on Mr Tanka.  At 12:20 hours of the same day, Principal Magistrate Mr Ma ordered the withdrawal of the charge against Mr Tanka.

11.From 14 May 2010 to 22 June 2010, on Mr Tanka’s solicitors’ requests, documents relating to his arrest and charge from the police were sent to his solicitors, Messrs Vidler & Co (“V & Co”).

12.Mr Tanka was granted legal aid to take out proceedings for pre-action discovery as a result of an appeal to the High Court Master on 7 January 2011.  The purpose of the limited grant of legal aid to Mr Tanka was to obtain discovery of further documents to assist legal aid counsel to consider the merits of his case.  Hence, these proceedings were commenced in the District Court for specific discovery of documents the police refused to hand over to Mr Tanka’s solicitors Messrs Vidler & Co.  Mr Tanka intends to institute civil proceedings for unlawful arrest, malicious prosecution, misfeasance in public office and racial discrimination.

The Documents the plaintiff seeks to discover

13.The documents the plaintiff seeks disclosure from the defendant are set out in paragraph 1 of the Originating Summons.  They are as follows:-

(1) (a) Police notebook entries in relation to the investigation of KCCC 6595 of 2339 of all police officers (except the note books already supplied to the plaintiff namely DSPC 23460, SGT 11463, SPC 47364) including but not limited to WPC 4285, PC 58224, PC 54849, PC 2647, SGT 45226, PC 10101, DPC 51577 (“police notebook”);

(b) All witness statements taken in relation to the investigation of KCCC 6595 of 2009, including the statements of both police and civilian witnesses (except the statements of SGT 11463, SPC 47364, Ms Gurang Ganga whose witness statements have been provided to the plaintiff) including but not limited to the complainant female X, the informant Lee Sai Kit, WPC 4285, PC 58224, PC 54869, PC 52645, PC 2647, DPC 51577 (“witness statements”);

(c) Record of interview and or statements under caution and any other statements of the two co-defendants of KCCC 6595 of 2009, namely Naeem Durez (‘D1’) and Rana Arif Sheikh Mohommad Imran (‘D2’) (“co-defendant documents”)’

(d) Medical report and/or examination report by Dr Andy Lam, the pathologist who examined the complainant (“forensic documents”);

(e) Witness statement and/or examination report of SEO of Government Laboratory Mr Mak CH (“forensic documents”);

(f) Copies of ‘999’ call records with transcripts and corresponding response calls by police, regarding the alleged rape report and the arrest and investigation of D1, D2 and the plaintiff in KCCC 6595 of 2009 (“999 documents”);

(g) Details of discreditable conduct including but not limited to disciplinary records of police witnesses of KCCC 6595 of 2009 (“unused materials”);

(h) Details of unused materials that were not intended for use in the prosecution of D1, D2 and the plaintiff in KCCC 6595 of 2009 (“unused materials ”);

(i) Police investigation report of KCCC 6595 of 2009 (“Police investigation report”);

(j) Copy of the police report and/or file submitted to the Department of Justice, recommending/seeking legal advice which led to the charge of rape in respect of D1, D2 and the plaintiff (“police reports”).

(“the requested documents”).

14.Mr Deng, counsel for the plaintiff, informed the court, the plaintiff will not be pursuing for the purpose of the present proceedings, class 1(g) details of discreditable conduct of police witnesses.

The Plaintiff’s claim

15.It is the plaintiff’s case that the documents already disclosed to the plaintiff were insufficient to support his intended action against the police, he required the relevant documents to pursue his action.  He claims the requested documents are directly relevant to his claim.

16.Mr Tanka claims that the requested documents would be able to disclose that the police:

(a) had falsely arrested him without reasonable informed suspicion;

(b) had falsely arrested him in spite of his giving a reasonable explanation dispelling the suspicion against him;

(c) wrongly handcuffed him, even if he was lawfully arrested, he posed no flight risk and was co-operative throughout;

(d) maliciously prosecuted him and/or had committed misfeasance in office in that they recklessly failed to investigate his alibi defence which he disclosed to the arresting officer immediately on his arrest, and/or discriminated him because of his race in that the police failed to provide equal services because of his race.

17.Mr Deng, counsel for Mr Tanka, submitted that all requested documents except class 1(g) are directly relevant to issues arising or likely to arise in the proceedings and are necessary for the fair disposal of the case and for saving costs for the purpose of pre-action proceedings.

18.He further submitted that the specific documents set out in the ‘list of privileged documents’ filed by the 1^st Defendant on 3 September 2012 pursuant to my order of on 31 July 2012 (‘the LPP list’) are directly relevant to issues arising or likely to arise in the proceedings and necessary for the fair disposal of the case.  Mr Deng indicated Mr Tanka will not be seeking disclosure of documents Nos 28 to 30, 38, 41 to 43 in the LPP list.

19.Mr Deng argued that none of the classes of documents sought specifically or generally attract legal professional privilege though in specific circumstances they may attract public interest immunity, however, the defendants have not raised it in their objection to disclosure.

Direct relevance

20.Mr Deng submitted that the classes of documents sought and the specific list of further documents are directly relevant to each of the intended claims.

21.Mr Deng asserted that if the police had checked Mr Tanka’s travel record on his octopus card seized from him on his arrest and contacted his alibi witness Miss Gunga soon after his detention or checked the MTR CCTV security footage showing his whereabouts at the relevant time he would have been released at an early stage.  Unfortunately, the police only obtained his octopus card record on 29 December 2009 and Miss Gunga was only contacted on 25 December 2009, and a statement was taken from her on 28 December 2009.

22.Mr Tanka claimed he was not told the reason for his arrest when he was stopped by the police and handcuffed.  He was formally charged of the rape offence on 22 December 2009, detained in police custody after his arrest and brought before the Principal Magistrate Mr Andrew Ma on 23 December 2009.  No reasonable steps were taken to check out his alibi or his octopus travel records on 21 December 2009.

23.At the hearing before the Principal Magistrate Mr Ma, the prosecution, at the request of the police, asked for adjournment of the case for the police to conduct further investigation and for legal advice and bail was opposed due to the seriousness of the offence.  Mr Tanka claimed the Magistrate was misled by the police due to the police’s failure to investigate his alibi.

24.On 30 December 2009, Mr Tanka and the two co-defendants were brought back to the Kowloon City Magistrate Court where the Magistrate, Mr Thomas, was informed that based on Mr Tanka’s octopus card record, there is a possibility he might not be at the scene of the alleged rape, the prosecution did not oppose bail but asked for stringent bail terms be imposed.  In spite of Mr Thomas’s enquiry if Mr Tanka would be included in the proceedings, the prosecution persisted and told Mr Thomas that Mr Tanka was indentified by the victim in the street and the police was still waiting for forensic results.  Consequently, stringent bail terms were imposed on Mr Tanka including $20,000 cash bail, surrender of all travel documents, requirement to reside at his given address and report twice a week to police and not to contact any prosecution witnesses.

25.At the 3 February 2010 hearing before the Principal Magistrate Mr Ma at Kowloon City Magistracy, the prosecution failed to withdraw the charge against Mr Tanka but applied to adjourn the hearing to 3 March 2010 for ‘completion of further inquiry and legal advice”.  Mr Tanka’s bail condition was changed to cash bail $5,000, prohibition from leaving Hong Kong and to surrender all travel documents.

26.Mr Tanka applied on 3 February 2010 to Mr Justice Wright in the High Court for review of conditions of bail, it was heard on 12 February 2010.  The bail terms were lifted after the prosecution informed Mr Justice Wright the charge against Mr Tanka would be withdrawn.  In the afternoon of 12 February 2010, the case was brought before the Principal Magistrate Mr Ma at Kowloon City Magistracy, the charge against Mr Tanka was formally withdrawn by the prosecution with costs because of insufficient evidence.

27.The issues in Mr Tanka’s intended action are:-

(i) whether there was sufficient evidence for the police to form a reasonable suspicion before arresting Mr Tanka for rape on 20 December 2009?

(ii) Should Mr Tanka be handcuffed when he had agreed to assist in the investigation and there was no flight risk to justify unreasonable force and assault on him?

(iii) Whether there was sufficient evidence for the police to form reasonable suspicion before Mr Tanka was charged on 22 December 2009?

(iv) Whether there was sufficient evidence for the prosecutor to object to bail before Principal Magistrate Mr Andrew Ma on 23 December 2009?

(v) Whether there was sufficient evidence for the prosecutor to request strenuous bail conditions?

(vi) Whether there was sufficient evidence for the prosecutor to maintain prosecution against Mr Tanka for 2 months until 12 February 2010 before the charge was withdrawn against Mr Tanka?

(vii) Whether the police acted with reckless untargeted malice and/or racially discriminated against Mr Tanka?

28.The documents supplied to Mr Tanka’s solicitors Messrs Vidler & Co (V & Co) were:-

(i) movement record of Mr Tanka;

(ii) videotape record of interview of Mr Tanka on 21 December 2009;

(iii) witness statement of Ms Gurung Ganga;

(iv) police notebook and witness statement of SGT 11463 who interviewed the informant Mr Lee;

(v) police notebook and witness statement of SPC 47364, the arresting officer; and

(vi) police notebook of DSPC 23460, the officer who brought Mr Tanka to the interview room at Yau Ma Tei Police Station on 21 December 2009 and cautioned him.

The Law

29.The plaintiff’s application is made under s 47A of the District Court Ordinance Cap 336 and Order 24 r 7A of the Rules of District Court section 47A of the District Court Ordinance provides that:

“47A. Power of the Court to order disclosure, etc of documents before commencement of proceedings

(1) A person who appears to the Court to be likely to be a party to subsequent proceedings may apply to the Court for an order for discovery of documents against a person who is likely to be a party to the proceedings and who has in his possession, custody or power documents directly relevant to an issue arising out of the claim.

(2) The application is to be made in accordance with rules of court.

(3) The Court may order the person, if it appears to it that the person is likely to have or to have had in his possession, custody or power any directly relevant documents-

(a) to disclose whether those documents are in his possession, custody or power; and

(b) to produce the documents in his possession, custody or power to the applicant or, on the conditions specified in the order-

(i) to the applicant’s legal adviser;

(ii) to the applicant’s legal advisers and a medical or other professional adviser of the applicant; or

(iii) if the applicant has no legal adviser, to a medical or other professional adviser of the applicant.

(4) For the purposes of subjections (1) and (3), a document is only to be regarded as directly relevant to an issue arising out of a claim in the anticipated proceedings if-

(a) the document would be likely to be relied on in evidence by any party in the proceedings; or

(b) the document supports or adversely affects any party’s case.”

30.Order 24 r 7A (1) and (3A) provides:-

“7A. Application under section 47A or 47B(1) of the Ordinance (O 24 r 7A)

(1) An application for an order under section 47A of the Ordinance for the disclosure of documents before the commencement of proceedings shall be made by originating summons (in Form No 10 in Appendix A) and the person against whom the order is sought shall be made defendant to the summons.

(3A) In the case of a summons under paragraph (1), paragraph (3)(b) shall be construed as if for the word “relevant”, there were substituted the words “directly relevant (within the meaning of section 47A of the Ordinance)”.

31.24/7A/A of the Hong Kong Civil procedure 2012 at p 556 states:

“24/7A/A Scope and operation of rule under CJR – This rule has been enlarged by the CJR to cover all actions and not merely personal injury actions and the following commentary must be read accordingly.

The new r 7A(3A) limits the scope of documents of which pre-action discovery against a likely party may be sought (s 41 of the Ordinance) to those which are “directly relevant” and applies the definition contained in s 41(2) of the Ordinance:

“… a document is only to be regarded as directly relevant to an issue arising or likely to arise out of a claim in the anticipated proceedings if –

(a) The document would be likely to be relied on in evidence by any party in the proceedings; or

(b) The document supports or adversely affects any party’s case.”

Applications under s 42 of the Ordinance are not subject to this restriction, thus the documents discoverable against a non-party remains governed by Peruvian Guano.

However, the entirety of this rule must now be read subject to the qualification introduced by O 24, r 8(2) that:

“No order for the disclosure of documents shall be made under section 41 or 42 of the Ordinance, unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

32. Order 24 r8 further provides:-

“Discovery to be ordered only if necessary (O 24, r8)

8. (1) On the hearing of an application for an order under rule 3 or 7 the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

(2) No order for the disclosure of documents shall be made under section 41 or 42 of the Ordinance, unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

33.It is incumbent on the plaintiff to show the requested documents are “directly relevant” to an issue or issues in the anticipated action the plaintiff intended to take out against the defendant and the documents would likely be relied on in evidence (s 47A(4)) and the disclosure is necessary for disposing fairly of the cause of action or saving costs (Order 24 r 8(2)).  It is not disputed the defendants has the documents in their possession, custody or power except those that did not exist such as witness statements of PC 52645, SGT 45226, PC 58202, PC 10101 and the transcript of the video recorded interviews of the two co-defendants.

DISCUSSIONS

The arrest

34.s 50(1) & (2) of the Police Force Ordinance Cap 232 provides that :

“(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.”

……

(2) If any person who may lawfully be apprehended under subsection (1) or (1B) forcibly resists the endeavour to arrest him or attempts to evade the arrest, a police officer or other person may use all means necessary to effect the arrest.”

35.Mr Deng submitted that documents relating to Mr Tanka’s arrest are directly relevant, and classes (a) and (b) ie police notebooks and witness statements of police officers and civilian witnesses are within the category of documents required in order to find out the facts and evidence leading to the police’s arrest of Mr Tanka.  Whether the female rape victim did make a street identification of Mr Tanka and the two co‑defendants that led to Mr Tanka’s arrest and the witness Mr Lee’s police statement would also be relevant on the same basis as he was with the victim about the time the street identification was made and when the police EU car arrived.

36.I agree the police and civilian witnesses’ statements and police note book records leading to the arrest are directly relevant to the intended action.  Evidence on the circumstances of Mr Tanka’s arrest would also be directly relevant for Mr Tanka alleged he was not cautioned or told the reason when he was arrested and handcuffed even though he was co‑operative and posed no flight risk.  The defence had  agreed to disclose the witness statements of WPC 4285, PC 58224 and PC 54869.  However, the 1^st defendant confirmed on affidavit it never had in his possession, custody or power the witness statements of PC 52645, SGT 45226, PC 58202, PC 10101 and the witness statements or the transcripts of the video recorded cautioned interviews of the two co-defendants of the rape case.  Clearly, the 1^st defendant would not be able to produce documents he never had.

Police investigation

37.As Mr Tanka’s octopus card and his other properties were seized from his person and he had also given the telephone number and name of his alibi witness Ms Gurung Ganga to the police, the disclosure of the statements of the police officers who interviewed the witnesses and suspects and those who took part in the investigation of his case would be relevant to the intended action.  The documents including the police record of exhibits seized and investigations done based on the exhibits would also be directly relevant.

The two co-defendants’ Witness Statements

38.Mr Tanka claimed he did not know the two Pakistani co‑defendants, neither did they know him.  If that is the case, their police statements would disclose whether they admitted to police if they knew Mr Tanka and whether Mr Tanka took part in the crime.  For this reason, the class 1(c) documents concerning their knowledge of Mr Tanka are relevant directly.  Mr Ng, Counsel for the Defence, submitted that a summary of what the two co-defendants said under caution was set out in the ‘Allegation of Facts’, it is therefore not necessary to disclose their caution statements.  I disagree, they should be disclosed if they are directly relevant to the intended action, I shall allow a censored version of the documents to protect the identity of the female victim and/or other innocent persons.

999 call record

39.The ‘999’ call recording and transcript are also relevant documents on the victim’s identification of the 3 suspects including Mr Tanka.  The record would review what the victim told the ‘999’ service that led to Mr Tanka’s arrest.

Malicious Prosecution / Misfeasance in office

40.In the case of Tang Nin Man v Secretary of Justice [2000] 2 HKLRD 324 the plaintiff and his wife were seriously wounded in an unprovoked attack by X who was only charged with and convicted of relatively minor offences because of the fabricated evidence of the investigating police officer.  When the plaintiff later discovered it, he developed a psychiatric condition.  Central to the issue in the case was what constituent mental element on the part of a public officer established the tort of misfeasance in public office and whether this mental element could be established upon the plaintiff’s pleaded case.  The Court of Appeal dismissed the action holding that there were no realistic prospect of establishing that the constable was subjectively aware that his fabrication of the evidence would, in the ordinary course, lead to the plaintiff suffering the psychiatric disorders.  Applying the case of Three Rivers District Council v Bank of England (No.3) [2000] 2 WLR 1220, Riberio JA (as he then was) held at p 328 F-I :

“It is therefore established that “subjective recklessness on the part of a public officer in acting in excess of his powers is sufficient” (per Lord Steyn). This is a state of mind involving “recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not” (per Lord Steyn); or “reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce” (per Lord Hutton, citing Brennan J in Northern Territory of Austrialia v Mengel (1995) 69 ALJR 527 at p 546); or “…‘conscious disregard for the interests of those who will be affected by’ the exercise of the power” (per Lord Millett, citing Blanchard J in Garrett v A-G [1997] 2 NZLR 332 at p 349).

As Lord Steyn’s speech makes clear, the plaintiff must come within the ambit of the offending public officer’s intent, knowledge or recklessness in two ways. First, the officer must have acted “in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member”. Secondly, the officer’s intent or knowledge “must be directed at the harm complained of, or at least to harm of the type suffered by the plaintiffs.”

41.In the Tang Nin Man case, the Court of Appeal did not make any ruling on the applicability of the immunity issue.  Ribeiro JA (as he then was) said at p 331 A-F referring to the House of Lords case of Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 :

“As Lord Hoffmann pointed out, "the core of the principle of immunity from suit is not in doubt" (at p 207). The question which he identified (at p 208) was "whether the immunity extends more generally to statements made to or by investigators for the purposes of a criminal investigation." He held that its protection enabled investigators "to exchange information, theories and hypotheses among themselves and to put them to other persons assisting in the inquiry without fear of being sued if such statements are disclosed in the course of the proceedings." However, Lord Hoffmann excluded from such protection statements "wholly extraneous to the investigation - irrelevant and gratuitous libels ......" (at p 215). He drew an important distinction as follows :-

As the policy of the immunity is to encourage freedom of expression, it is limited to actions in which the alleged statement constitutes the cause of action. ...... the immunity does not apply to actions for malicious prosecution where the cause of action consists in abusing legal process by maliciously and without reasonable cause setting the law in motion against the plaintiff. It does not matter that an essential step in setting the law in motion was a statement made by the defendant to a prosecuting authority or even the court: see Roy v Prior [1971] AC 470.

It is in this area that Lord Hoffmann saw room for debate as to where precisely the lines have to be drawn :-

Actions for defamation and for conspiracy to give false evidence plainly fall within the policy of the immunity and actions for malicious prosecution fall outside it. In between, there is some disputed ground. In Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 Drake J held that it precluded reliance on the statement in an action for negligence in which it was alleged that a carelessly prepared post mortem report had led to the plaintiff being unjustifiably arrested and charged with murder. I express no view on this case, which I think might nowadays have been decided on the ground that the defendants owed the plaintiff no duty of care. There is also some dispute over whether it applies to the emergent tort of abuse of public office.”

42.The law on immunity is by no means clear and is subject to debate, but the dictum of Lord Hoffmann above suggested in cases of defamation and conspiracy to give false evidence would be covered by the policy of immunity but not for an action on malicious prosecution.  In any event, as the defence is not relying on the policy of immunity from disclosure, and as one of the issue in the intended action is malicious prosecution, the police and civilian witness statements on arrest and investigation are discoverable evidence, save for documents not in the defendant’s possession, custody or power.  According to the defence’s Sheung Chun Kit Jacky’s affidavit of 12 April 2012, the witness statements of PC 52645, SGT 45226, PC 58202, PC 10101 and the written statement or transcripts of the video recorded interviews of the two co-defendants of the rape case are not in the 1^st defendant’s custody, power or possession.  The defence did not mention the witness statements of PC 2647, who arrested Mr Durez, and DPC 51577, and the officer who accompanied Mr Tanka pending his recorded interview, their statements are directly relevant to the action for they related to the investigation.

43.As to class 1(d) & (e), they are medical and examination reports and statements of Mr C H Mak and Dr Andy Lam, they do not relate to the arrest.  The medical examination and DNA report would presumably support and confirm the police’s subsequent withdrawal of the charge against Mr Tanka at a later stage, I see no direct relevance to the intended action. 

Class 1(i) & (j)

44.Class 1(i) & (j) are the police investigation report of KCCC 6595/2009 and copy of the police report and/or file submitted to the Department of Justice, recommending or seeking legal advice which led to the charge of rape in respect of all 3 defendants.  The reason Mr Tanka is seeking discovery of these documents is to show whether the police had misled the prosecution and if the prosecution had considered all the relevant matters in giving its advice.

45.The defence claims that the decision to prosecute Mr Tanka maliciously or with reckless untargeted malice is without basis and ill-founded, and asserts that such documents are covered by legal professional privilege and therefore not disclosable.

Legal professional privilege

46.Mr Ng, Counsel for the Defence, submitted that all of the class 1(a) – (e), (i) & (g) documents are protected under legal professional privilege.

47.Mr Ng referred to the judgment of Moore-Bick J in the case of Goodridge v Chief Constable of Hamshire [1999] 1 WLR 1558 where the plaintiff who was a suspect in a murder investigation in which the chief suspect had been the victim’s business associate brought an action for damages for malicious prosecution.  The evidence against the plaintiff was entirely circumstantial and no charges were brought against him after the investigation concluded.  He was arrested again and put in custody after a fresh investigation in the murder was taken up by another police team.  The case against him was discontinued later by the crown prosecution service for insufficient evidence.  The plaintiff claimed the police had no genuine belief in the case against him and had proceeded with it in order to pressurize him into implicating the chief suspect.  He applied under RSC ord 24 r 11 for disclosure of reports and correspondence passing between the police and the Director of Public Prosecution during investigations and a report sent to the police complaints authority after he was charged with a view to use them as evidence of the police’s state of mind at the relevant time.  The police objected on grounds of legal professional privilege and public interest immunity.  Moore-Bick J allowed the application for production of the documents to the extent of permitting the court to examine the document with a view to release to the plaintiff.

48.Moore-Bick J held at p 1562 F-H :

“It is a curious fact that the question whether legal professional privilege attaches to communications of this kind between the police and the Director of Public Prosecutions appears not to have been raised in any previous case. Legal profession privilege is, of course, well established, and covers confidential communications between a client and his lawyer for the purposes of obtaining legal advice. Once it attaches (and the privilege, of course, is that of the client not of the lawyer) it remains in existence until it is waived.

The existence and nature of the privilege has been considered recently in the case of Reg v Derby Magistrates’ Court, Ex parte B [1996] A C 487 where one can find, in the speech of Lord Taylor of Gosforth C J, an explanation of the history and nature of the privilege and the policy which underlies it. This authority contains, if it were needed, a strong statement of the importance of legal professional privilege, applying not only in civil but in criminal proceedings as well.

Two questions arise in the present case. Does such privilege attach to the communications passing between the police and the Director of Public Prosecutions in this case? And, if so, has that privilege been lost?”

49.He further said in p 1564 F-H :

“In view of the fact that one of the functions of the Director of Public Prosecutions is to give advice to the police when they consider it appropriate to ask for it, I should be unwilling to say, on the basis of the material before me, that the relationship of client and lawyer cannot arise between the police and the Director of Public Prosecutions in an appropriate case. It seems to me that the statutory provisions which govern the relationship between them are such as might make it appropriate for the police to seek the advice of the Director of Public Prosecutions on matters with which they are concerned, in such circumstances as would make it appropriate for the request for advice, and any advice given in response to that request, to attract the protection of legal professional privilege. But the question none the less arises whether those circumstances exist in this case.”

50.In the Hong Kong Court of Appeal case of Citic Pacific Ltd v Secretary for Justice [2012] 2 HKLRD 701 Hartman JA held at p 414 para 48-52 :-

“48. While privilege may have had its origins as a rule of evidence founded in public policy, today it is recognised as a substantive legal right of particular importance to the due and just administration of justice.  Lord Hoffmann has described it as “a fundamental human right”: R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 at 606, a description cited with approval in a number of subsequent cases: see Phipson on Evidence 17 ed., [23‑06].  That it is regarded as a fundamental human right in Hong Kong is witnessed by art. 35 of the Basic Law.

49. As a fundamental human right, privilege must, and does, guarantee the same measure of protection in criminal as well as civil matters; art. 35 makes no differentiation.

50. In B and Others v Auckland District Law Society and Another (cited in para 24 above), Lord Millett not only stated that the privilege is the same whether the proceedings are civil or criminal but said that, save in cases where the privileged communication is itself a means of carrying out a fraud, privilege is ‘absolute’.  It is therefore the position that privilege is not to be balanced against competing public interests no matter how compelling they may be: one such interest being the apprehension and prosecution of criminals.

51. That being the case, it seems to me to be inherently contradictory to say that privilege, although a fundamental human right unassailable to competing issues of public interest, may nevertheless be lost in criminal matters without any intention on the part of the holder, indeed on no more than a whim of fate; that is, by accident or inadvertence, or even (at the outer extreme) by the surreptitious conduct of a third party. I do not accept that the Basic Law affords such frail protection.  I am satisfied that, in both civil and criminal matters, privilege is not lost unless there is evidence that it has been intentionally waived by the holder of that privilege.

52. Evidence of the intention to waive privilege may be inferred from all the circumstances.  However, as a constitutionally guaranteed right, a “condition on which the administration of justice as a whole rests”: R v Derby Magistrates’ Court, ex parte B (cited above), that waiver will not lightly be inferred.”

51.In the Court of First Instance of the Citic Pacific Ltd v Secretary for Justice [2012] 3 HKLRD G1 judgment, Wright J adopted the position on legal professional privilege of the House of Lords in the case of Three Rivers District Council and ors v Bank of England (No.6) (HL) [2004] 3 WLR 1274.  Wright J held that legal professional privilege (“LPP”) comprised of (a) litigation privilege, and (b) legal advice privilege.  That litigation privilege attached to documents brought into existence for the purpose of actual or contemplated litigation.  That litigation must be a real likelihood rather than a mere possibility, and the document had to indicate that the dominant purpose of obtaining the legal advice was in contemplation of that litigation.

52.Lord Scott in Three Rivers DC v Bank of England (No 6), in fact, went further, he held at para 27-28 p 1283-1284 :

“27. Fourth, legal advice privilege has an undoubted relationship with litigation privilege. Legal advice is frequently sought or given in connection with current or contemplated litigation. But it may equally well be sought or given in circumstances and for purposes that have nothing to do with litigation. If it is sought or given in connection with litigation, then the advice would fall into both of the two categories. But it is long settled that a connection with litigation is not a necessary condition for privilege to be attracted : see, eg, Greenough v Gaskell (r833) I M & K 98, I02 – I03, per Lord Brougham and Minet v Morgan (1873) LR 8 Ch App 36I. On the other hand it has been held that litigation privilege can extend to communications between a lawyer or the lawyer’s client and a third party or to any document brought into existence for the dominant purpose of being used in litigation. The connection between legal advice sought or given and the affording of privilege to the communication has thereby been cut.

28. So I must now come to policy.  Why is it that the law has afforded this special privilege to communications between lawyers and their clients that it has denied to all other confidential communications?  In relation to all other confidential communications, whether between doctor and patient, accountant and client, husband and wife, parent and child, priest and penitent, the common law recognises the confidentiality of the communication, will protect the confidentiality up to a point, but declines to allow the communication the absolute protection allowed to communications between lawyer and client giving or seeking legal advice.  In relation to all these other confidential communications to the law requires the public interest in the preservation of confidences and the private interest of the parties in maintaining the confidentiality of their communications to be balanced against the administration of justice reasons for requiring disclosure of the confidential material.  There is strong public interest that in criminal cases the innocent should be acquitted and the guilty convicted, that in civil cases the claimant should succeed if he is entitled to do so and should fail if he is not, that every trial should be a fair trial and that to provide the best chance of these desiderata being achieved all relevant material should be available to be taken into account.  These are the administration of justice reasons to be placed in the balance.  They will usually prevail.”

53.In the Canadian case of R v Campbell [1999] 1 RCS 565, the court held at p 567 :

“The RCMP must be able to obtain professional legal advice in connection with criminal investigations without the chilling effect of potential disclosure of their confidences in subsequent proceedings.  Here, the officer’s consultation with the Department of Justice lawyer fell squarely within this functional definition, and the fact that the lawyer worked for an “in-house” government legal service did not affect the creation or character of the privilege.  Whether or not solicitor-client privilege attaches in any of these situations depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought and rendered.”

54.In the present case, in an earlier correspondence the Secretary for Justice exchanged with V & Co, the Secretary for Justice identified the documents over which LPP are asserted, they were :

(i) class 1(h) unused materials not intended for use in the prosecution in KCCC 6595/2009;

(ii) class 1(i) Police investigation report of KCCC 6595/2009; and

(iii) class 1(j) police investigation report and file submitted to the Department of Justice, seeking or recommending legal advice which led to the charge of rape against D1, D2 and the plaintiff.

Thus, the Plaintiff claims the Secretary for Justice had indicated LPP would not be claimed over the remaining requested documents.

55.At the beginning of the hearing of the present application, I granted leave to the defence to file the 2^nd affidavit of Sheung Chun Kit Jacky sworn on 11 July 2012.  Mr Sheung claimed that the documents under class 1(a) to (e), (h) to (j) came into existence for the dominant purpose of collecting evidence and/or seeking legal advice from the prosecutions Division or the Department of Justice in relation to the criminal prosecution of the rape case in KCCC 6595/2009 (the rape case), therefore, LPP applies to these ‘privileged’ documents.  That the defence is entitled to do so in spite of the earlier communication with V & Co.  I accept that the court would not lightly infer waiver of privilege of documents of communication between the police and the Department of Justice.  Whether the documents are protected from disclosure under LPP depends on the dominant purpose they came into existence.

56.Mr Sheung further deposed that investigation of the rape case is still ongoing and though the main culprit has been arrested, no charge had been laid against him pending further investigation and advice from the Prosecution Division.

57.It is extremely surprising that a serious crime that took place close to 3 years ago would still be under investigation. Should the police fail to apprehend the true culprit in a crime or should the victim fail to pursue the prosecution, and an innocent person had been wrongly arrested, charged and put in custody for a period of time whether maliciously or recklessly, in such a case, protection of the innocent person’s interests and right has to be balanced against the administration of Justice.

58.Had the trial of the rape case already taken place, I would have no hesitation in allowing the disclosure of the documents or at least the majority of the documents requested.  Unfortunately, the trial of the rape case has not taken place and the documents under class 1(a) to (f) have not been disclosed at trial and released into the public domain. 

59.The present case is similar to the Goodridge case, except that the documents requested in the Goodridge case were the reports and correspondence between the police and the DPP, it was not known if the communications and reports were sent to the DPP under the provision and requirement of the Prosecution of Offences Act 1979 or documents seeking the legal advice of the DPP analogous to a client approaching his solicitor for legal advice.  Consequently, the court in that case ordered the documents requested to be disclosed to the court for it to consider the purpose they were sent to the DPP with a view of releasing them to the plaintiff.

60.The position of the Crown Prosecution Service in the UK is different from the Hong Kong Department of Justice, for the police in the UK has authority to take up prosecutions.  In Hong Kong, the Secretary for Justice is entrusted with the duty and discretion of conducting the prosecution of all offences at the magistracy under s 12 of the Magistrates Ordinance and the DPP is delegated with the power of the Secretary for Justice.  In the present case, the defence claims that the dominant purpose of the documents coming into existence was for collecting evidence and/or for seeking legal advice from the Prosecution Division.  Mr Sheung did not distinguish which of the documents were generated for collecting evidence and which for seeking legal advice.  I do not accept that all of the evidence collected were generated for seeking legal advice, that all are “privileged” documents.

61.It is in the public interest that in civil cases, the claimant should succeed if he is entitled to and fail if he is not and in criminal cases, the innocent should be acquitted and the guilty convicted. It is also in the public interest that the court should protect the private interest of the parties by maintaining the confidentiality of their communications with their legal advisers, but this has to be balanced against the reasons against disclosure of documents on grounds of administration of justice.  In my opinion, the evidence collected during investigation and documents prepared for seeking legal advice should be treated differently.  Clearly, class (a) to (c) and (f) were generated at and after the complaint by the victim to the police and in the course of police investigation, they were not generated for the purpose of seeking legal advice.  Therefore, they are not protected under the policy of immunity in malicious prosecution actions.  For this reason, I would allow the disclosure of these documents to the plaintiff. As to documents in class 1(i) and (j), I believe they were documents prepared for the advice of the Prosecution Division and are therefore ‘privileged’ documents protected under LLP.

62.For the aforesaid reason, I am satisfied the disclosure of the documents under para 1(a) to (c) and (f) are necessary for the fair disposal of the case and would save costs particularly if they should disclose a lack of merits in the plaintiff’s intended action.  I grant an order allowing the disclosure to the plaintiff of para 1(a) to (c) & (f) of the plaintiff’s summons with the exception of the witness statements and interview transcripts that the police do not have in its possession or custody and item numbers 28 to 30, 38, 41 to 43 of the LPP list.

Costs

63.I grant a cost order nisi of the application to the plaintiff to be taxed if not agreed, wiq             th certificate for counsel.  The plaintiff’s own costs to be taxed in accordance with legal aid regulations.

Mr Earl Deng, instructed by Vidler & Co, assigned by Director of Legal Aid, for the plaintiff

Mr Stanley Ng, instructed by Department of Justice, for the 1^st and 2^nd defendants