Sumarsih v. Secretary for Justice

DCCJ 2927/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2927 OF 2014

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DECISION

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1.By a summons dated 21 August 2014, the defendant seeks to strike out the plaintiff’s statement of claim in this action on the ground that it discloses no reasonable cause of action.

BACKGROUND

2.The plaintiff was an Indonesian domestic helper employed by a family in Tin Shui Wai.  The plaintiff had been employed by the family since 2009 and had been taking care of their elder daughter since the date when she was born.  In February 2011, the plaintiff’s female employer gave birth to a second daughter (“the baby girl”) and the plaintiff continued to work for them, including looking after the baby girl.  On 6 May 2011, while the baby girl was under the sole care of the plaintiff, she was found to be unconscious.  The baby girl was later certified dead at Tuen Mun Hospital on the same day.

3.In the evening of 9 May 2011, the plaintiff was invited to the Yuen Long Police Station to assist in the investigation of the death of the baby girl.  The interview took place between 2323 hours on 9 May 2011 to 0015 hours on 10 May 2011.  At 0246 on 10 May 2011, the police declared arrest on the plaintiff for the offence of manslaughter.  Under caution, the plaintiff merely answered “understand”.  The plaintiff was then released on police bail but was not allowed to leave Hong Kong.  The family terminated the plaintiff’s employment immediately after she was released on police bail. 

4.Pursuant to the police bail conditions forbidding her to leave Hong Kong, the plaintiff had to apply to the Immigration Department for a visitor’s visa and to renew the visa on a monthly basis since 16 May 2011 in order to be able to remain in Hong Kong.

5.The plaintiff was subsequently charged with one count of manslaughter on 8 June 2012 when she returned to the Yuen Long Police Station to answer the bail.  The police revoked the plaintiff’s bail on that occasion and she was brought in front of a magistrate in the Tuen Mun Magistrates’ Courts on the same day when she was remanded in custody.

6.On 23 August 2012, the baby girl’s mother, who was one of the main prosecution witnesses on the prosecution list, informed one of the investigating officers that she would refuse to attend the Court of First Instance to give evidence against the plaintiff.  According to her, she did not believe that the plaintiff was responsible for the death of the baby girl.  However, a statement to this effect was not taken from the baby girl’s mother when the committal bundle was prepared.

7.On 16 November 2012, the prosecution applied in the Eastern Magistrates’ Courts for the committal of the plaintiff for trial in the Court of First Instance for one count of manslaughter of the baby girl.  The application was granted and the plaintiff was committed for trial.  The prosecution objected to the bail application on that occasion and hence the plaintiff continued to be remanded in custody.  However, the fact that the baby girl’s mother was unwilling to act as a witness against the plaintiff at the trial and the fact that she did not believe that the plaintiff was responsible for the death of the baby girl was never disclosed to the defence or the magistrate at the time.

8.As a result, the plaintiff was detained in Tai Lam Centre for Women from 8 June 2012 until 24 May 2013, when she was granted bail in the Court of First Instance at the pre-trial review hearing.  As part of the bail conditions, she was still not allowed to leave Hong Kong.

9.On 19 April 2013, when another detective constable responsible for the case served the witness summons of the criminal proceedings on the parents of the baby girl, the mother indicated to him again that she would not attend the court to give evidence against the plaintiff based on the same reasons as stated above.

10.However, the fact that the baby girl’s mother had indicated twice that she was not going to attend court to give evidence and that she did not believe the plaintiff was responsible for the death of the baby girl was never related to the plaintiff’s defence team until early July 2013, just a few days before the trial at the Court of First Instance was to commence on 16 July 2013.  Upon the plaintiff’s defence team further enquiries, it was found that the statements of the detective constables responsible for inviting the baby girl’s mother to attend court were only made on 10 July 2013, which was 6 days before the commencement of the trial.

11.On 16 July 2013, at the commencement of the trial, the prosecution offered no evidence against the plaintiff and the manslaughter charge against her was dismissed by the court.

12.Taking into account of the police custody for the first 3 nights from 9 to 11 May 2011, the plaintiff was detained for a total of 354 days before the case was dismissed.

13.Based on the aforestated premises, the plaintiff claims that she was wrongfully imprisoned and deprived of her liberty during the above mentioned periods and the defendant, being the Commissioner of Police, was responsible for the wrongful imprisonment.

DISCUSSION

The defendant’s striking out application

14.The defendant’s application herein relies on one ground only, namely, that the plaintiff’s statement of claim discloses no reasonable cause of action.

15.Shortly put, the defendant’s case is that the plaintiff was detained either under the lawful authority of the police (for the period from 9 to 11 May 2011) or the authority of the court (for the period from 8 June 2012 to 24 May 2013) and therefore no wrongful imprisonment ever arose.

16.Ms Poon, government counsel for the defendant, relies on sections 50 & 52 of the Police Force Ordinance, Cap 232 (“PFO”) as the authority to justify the arrest and the detention during the 9 to 11 May 2011 period.  For the period of detention authorized by the court when bail was refused, Ms Poon has not relied on any authority.

The legal framework

17.The defendant’s application for striking out was taken out pursuant to Order 18, rule 19(1)(a) of the Rules of the District Court (“RDC”).  It is trite that no evidence should be admissible on an application under paragraph (1)(a) of this Order: see Order 18, r.19(2).  It is also trite that an order to strike out will only be made in clear and obvious cases by looking at the pleading alone.

18.It has been said that a “cause of action” comprises every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the court: see Read v Brown (1888) 22 QBD 128, per Lord Esher MR at 131.  Further, the “cause of action” has been defined as meaning “simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person”: per Diplock LJin Letang v Cooper [1965] 1 QB 232 at 242. See also §15/1/2 of the Hong Kong Civil Procedure 2015.

19.I agree with His Honour Judge Leung’s observations made in Mushtaq v Secretary for Justice sued for and on behalf of Director of Immigration, unreported, DCCJ 1766 of 2010 (14 November 2014; HH Judge Simon Leung) where the learned judge stated that if one pleads the mere fact of detention and nothing more, and claims damages on such basis, a cause of action in the tort of false imprisonment is said to be not properly made out on pleading.  The reason being that the plaintiff fails to at least put in issue the lawfulness of the detention.  It is not the mere fact of detention but also its lack of justification that constitutes an actionable tort: see §18 of Mushtaq and the cases cited therein.

20.A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered: per Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 WLR 688, CA.  Thus, so long as the statement of claim or the particulars disclose some cause of action, or raise some questions fitted to be decided by a judge or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out: see §18/19/6 of Hong Kong Civil Procedure 2015.  Where a claimant makes a claim for false imprisonment, the burden of proof is on the defendant to justify that imprisonment.  Therefore, the burden of proof is on the defendant to justify the claimant’s arrest or subsequent detention as being lawful.  In this case, it is not disputed by the defendant that the burden to justify the detention as being lawful is on the Commissioner.  A claimant may protect himself from reversing the burden of proof by asserting specifically that those assertions are without prejudice to the burden on the defendant of justifying the imprisonment: see Bullen & Leake & Jacob’s Precedents of Pleadings (17 ed) Vol 1 at §2-22.

Whether a reasonable cause of action has been pleaded in this case?

21.Mr McGowan, counsel for the plaintiff, in his submissions has not cited any authority in support of his case.  Instead, he relies on the pathologist’s evidence as well as the remarks made by Deputy High Court Judge Stuart-Moore at the hearing in the Court of First Instance on 16 November 2013 to say why the charge should not had been brought by the defendant in the first place.  They are of course matters not pleaded by the plaintiff in the statement of claim and therefore I must ignore them when I consider whether the statement of claim should be struck out.

22.In this respect, I would also disregard the evidence in relation to the ex gratia compensation scheme and the correspondence exchanged between the parties on this matter which has been mentioned in the plaintiff solicitor’s affidavit filed in response to the defendant’s application.  Such matters of course should not be taken into consideration in an Order 18, rule 19(1)(a) application.

23.In my judgment, for the 1^st period of detention, namely, from 9 to 11 May 2011, there is no question at all that the plaintiff was lawfully arrested and detained by the police under the power given to them by law: see s50 & 52 of the PFO.  Such imprisonment cannot be dubbed as unlawful: see William Alan Crawley v Attorney-General [1987] HKLR 379 at 384 F-G and Clerk & Lindsell on Torts (21 ed.) §15-23.

24.For the 2^nd period of detention under the sanction of the court, ie from 8 June 2012 to 24 May 2013, it is clear that the plaintiff will have no redress towards the act of a judicial officer.  A judicial act follows in the ordinary course of procedure from an order given by a judicial officer in the exercise of his function is exempted from any liability. For such an act there is no remedy in trespass against the party initiating the proceedings: see Clerk & Lindsell on Torts (21 ed.) §15-44. 

25.It is a well established principle in law that where the opinion and judgment of a judicial officer are interposed between the charge and the imprisonment, the party making the charge is not liable for false imprisonment: See Austin v Dowling [1870] LR 5 CP 534; Meering v Graham-White Aviation Co. (1920) 122 LT 44 at 559, though it may found a claim for malicious prosecution: See Holtum v Lotun (1834) 6 C&P 726; Lock v Ashton (1848) 12 QB 871.  Therefore, a police officer will cease to be liable for the false imprisonment of a claimant after the claimant has been remanded in custody: Bullen & Leake & Jacob’s Precedents of Pleadings (17 ed) Vol 1 at §2-06.

26.In Manley v Commissioner of Police for the Metropolis [2006] EWCA Civ 879; [2006] Po LR 117; (2006) 150 SBLB 889 where the English Court of Appeal was asked to review a low award of basic damages where the jury had not awarded aggravated or exemplary damages.  In that case, the claimant had been wrongfully detained in custody for some five months pending trial in circumstances where the criminal and civil juries had both found the officers had lied.  However, the claim in that case was based on the wrongful arrest and malicious prosecution by the police which resulted in the false imprisonment.  It is not based on the refusal of bail by a competent court.

27.In Calix v Attorney General of Trinidad and Tobago [2013] UKPC 15; [2013] 1 WLR 3283, Privy Council at [23], Lord Kerr stated that “although a judicial act precludes liability in false imprisonment, it does not relieve the prosecutor of liability in malicious prosecution: the prosecutor remains liable for the damage caused by his setting the prosecution in motion – see Lock v Ashton (1948) 12 QB 871 (116 ER 1097).”

28.In this case, the plaintiff’s claim is based on the fact that the police had concealed a material fact to the court from the date when they found out about the mother’s intention in August 2012.  The plaintiff argues that had they informed the court of this matter, then most likely there would not be a refusal of the bail or continuation of the refusal.  Hence, the argument seems to be that as it is the police who had set the prosecution in motion in the first place, they would be liable if they failed to inform the defence or the court that there was a material change in the circumstances for the refusal of bail. 

29.Although I have a great deal of sympathy for the plight of the plaintiff and what she must have had endured during that long period of detention, after mature consideration, I have to reject the submissions put forward on her behalf by counsel for the following reasons:-

(1) Based on the above cited principles of law, the plaintiff has no redress against the judicial officer or the prosecutor (in this context including the police) for a claim in false imprisonment;

(2) The plaintiff’s claim, if any, will lie in the wrongful arrest and/or malicious prosecution made by the police which would require clear and cogent evidence;

(3) The element of “unlawfulness”, which is one of the essential ingredients for the tort of false imprisonment, has been conspicuously missing from the statement of claim, particularly in relation to the 2^nd period of detention sanctioned by the court; and

(4) It is not at all clear whether even if the police had informed the defence or the court about the mother’s intention, the court would necessary grant her bail as there are a number of other considerations the court had to take into account.

30.Thus, as a matter of law, I have to accept that the statement of claim has failed to disclose a reasonable cause of action.

CONCLUSION

31.In conclusion, for the aforestated reasons, I find the plaintiff’s claim herein discloses no reasonable cause of action.  I would therefore make an order in terms of §§1-2 of the defendant’s summons herein. 

32.I also make an order nisi that the plaintiff to pay the defendant’s costs of this application, such costs to be taxed if not agreed. The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations. The order nisi will become absolute after 14 days in the absence of any application to vary the same.

Mr James H M McGowan, instructed by Boase, Cohen & Collins assigned by the Director of Legal Aid, for the plaintiff

Ms Carmen Poon, Government Counsel of Department of Justice, for the defendant