CHEUNG KWOK KUEN v. WONG CHUN HUNG alias WONG BING

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HEADNOTE

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                Res judicata- abuse of process. Defendant was convicted on charge of throwing corrosive fluid. Issues of self-defence and accident raised but rejected by trial Judge using criminal standard of proof. Victim's claim for damages in civil proceedings resisted by a statement of defence which raised the same issues. No fresh evidence or allegation that the criminal conviction was obtained by improper means. Held that defendant could not again raise a defence which had been already rejected by a competent court in other proceedings.

                Judgment for plaintiff for damages to be assessed.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. By an endorsee the plaintiff herein claims damages against the defendant for an assault on him which toot: place on the 24th of March 1986 at Lok Ma Chau.

2. On the 15th of February 1986 an application was made by the plaintiff, under Order 14, for interlocutory judgment, Damages to be assessed. The ground relied on was that as the only issue between the parties had already been decided against the defendant in criminal proceedings the defendant was estopped from denying his liability, to attempt to do so was an abuse of the process of the Court and the plaintiff was entitled to judgment.

3. The application was heard by Master Chan who ordered that the defendant be granted leave to defend the action conditional however on an amount to be assessed by a master being paid into Court. The plaintiff new appeals against that decision.

Background

4. On the 24th of February 1986 the plaintiff came to the defendant's premises at Lok Ma Chau together with 2 ether men. It is not in dispute that an argument broke out. and there was then violence. It is also not in dispute that the defendant was carrying a bottle containing 5% sulphuric acid and some-of this came onto the face and hands of the plaintiff, causing him severe pain and some scarring.

5. Police investigations followed-and the defendant was charged with the offence of throwing corrosive fluid with intent and was tried in the Fanling District Court. On the 12th August 1986 he was convicted of that offence by Deputy District Judge Hen and was bound ever in the sum of $2,000 and ordered to pay costs of $1,000. He did not appeal against. that conviction, which is perhaps not surprising in view of the penalty imposed.

6. The trial Judge's notes of proceedings have been exhibited though unfortunately he apparently has never prepared a formal statement of his reasons for verdict. It is however the plaintiff's case that the defences raised at the trial- that either the throwing of the acid was a pure accident or that it was done in self defence were specifically considered by the Judge and were rejected, the Judge using the criminal standard of proof of "beyond reasonable doubt". That being so it is argued that the matter has been considered by a Court of competent jurisidiction, and finding has been made, using a burden of proof more favourable to the defendant than it would be in these proceedings if they went to trial. The defendant is estopped from challenging that finding and to allow him to do so is an abuse of the process of the Court. That being the only defence raised it cannot succeed and the plaintiff is entitled to interlocutory judgment.

7. A defence has been filed and has been amended. That amended defence states that no admission is made of the conviction and that in any event such conviction is irrelevant to these proceedings. Two positive defences are put forward. One is that the defendant was acting in defence of himself and his property and "intended to use no more force than reasonably necessary". The other defence was that "the spilling of corrosive fluid was an unfortunate accident which went beyond the control of the defendant".

8. A certificate from the Commissioner of Police that the defendant was convicted in the Fanling District Court on the 12th August 1986 of the offence of throwing corrosive acid with intent has been exhibited. It does not state the date on which the offence was committed but it is clear the conviction was in relation to the incident which is the subject of this claim.

Decision

9. The plaintiff relies on the doctrine of estoppel and the decision in McIlkenny v. Chief Constable of West Midlands and Another^(l) which went to the House of Lords under the name Hunter v. Chief Constable of West Midlands and Another⁽²⁾ where the decision of the Court of Appeal was confirmed. That was the case more widely known as "the Birmingham Bombers" and has recently once again been before the House of Lords but on issues of fact not law. There the plaintiffs were convicted of murder, the Crown relying heavily on confession statements which were admitted in the criminal proceedings after a trial within a trial. There was no doubt that those confessions were vital to the prosecution. At the trial within a trial the police officers, in whose custody the plaintiffs were placed, gave evidence denying any sort of maltreatment; the plaintiffs gave evidence to the contrary in respect of. injuries which they had undoubtedly received at some stage before their final appearance in the Magistrates Court. The matter was fully canvassed and argued over a period of some 8 days before the trial Judge, Bridge, J. who found that the confessions were voluntary and admissible. He gave full reasons for that decision. The same attack was made on the confessions where the trial proceeded before the jury but the plaintiffs were convicted. McIlkenny and Hunter then brought civil claims alleging against the police the identical assaults that had been canvassed before Bridge, J. on the voir dire and again before the jury at the criminal trial. The defendants moved to have the statements of claim struck out and the action dismissed, either under Order 18 Rule 19 or in the inherent jurisdiction of the Court, on the grounds that it was an abuse of the process of the Court. The plaintiffs sought to rely, inter alia, on statements made by prison officers, denying assault, which had been made available to the plaintiffs at their trial but not used, and on what was claimed to be fresh evidence from a Dr. Paul, but which could also have been called.

10. There were two main issues in the Court of Appeal. One was whether, the evidence having been available in the criminal trial, it was an abuse of process to new try to use it to in effect attack the finding of Bridge J. in the voir dire and the verdict of the jury. All members of the Court of Appeal (Denning MR, Goff L.J. and Sir George Baker) were of the opinion that it was. On the narrower issue of whether "issue estoppel" arose Golf L.J. considered that it did not and dissented from the majority view to the contrary. The point taker there was that the parties to the criminal trial were the Crown and the plaintiffs but in the civil claim it was the plaintiffs and certain police officers, albeit that the Crown was responsible in damages for their actions.

11. In both the Court of Appeal and the House of Lords the dicta of A.L. Smith L.J. in Stephenson v. Garnett⁽³⁾ was cited and approved. He said "The Court ought to be slow to strike out a statement of claim or defence and dismiss an action as frivolous and vexatious, yet it ought to do so when as here, it has been shown that the identical question sought to be raised has already been dealt with by a competent Court".

12. The House of Lords (Lord Diplock) also approved the words of Halsbury L.C. in Reichel v. Magrath⁽⁴⁾ "I think it would be a scandal to the administration of justice, if, the same question having been disposed of by one case, the litigant were permitted by changing the form of the proceedings to set up the same case again".

13. The defendant here argues that Section 62 of the Evidence Ordinance, which provides for evidence of a criminal conviction being admitted in civil proceedings, does not provide that such evidence shall be conclusive and this application seeks to read it that way. The section simply allows the fact that one of the parties has been convicted to be put before the Court, to be considered along with the other evidence.

14. As a general proposition I have no doubt that is correct. The conviction in itself is not conclusive. Fresh evidence, not available at the trial of the criminal charge, may have become available. Denning M.R. in McIlkenny at 237 says that the effect of the conviction can be avoided if the defendant can prove it was obtaianed by fraud or collusion (The Duchess of Kingston's case⁽⁵⁾). Here however a defence has been filed and has been amended. There is no such allegation of fraud or collusion nor is it claimed that fresh evidence not available at the trial will be called. It was suggested by Mrs Yew that the defence could be re-amended to include further allegations, such as contributory negligence. I am unable to see how such a plea could be raised to counter a plea of deliberate assault and consider I must take the pleadings as I find them, in the absence of any affidavit suggesting that there will be further amendment. The affidavit sworn by the defendant raises only the pleas of selfdefence and accident which, it is clear from the Judges notes, were fully considered at his trial. in Mills v. Cooper⁽⁶⁾ Diplock L.J. said:

"That doctrine, so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings had since become available to him."

Goff L.J., while disenting in McIlkenny on the legal doctrine of issue estoppel, as he considered there was no privity between the parties in both actions, was of the same view as Denning M.R. and Sir George Baker as regards the alternative claim of abuse of the process of the court. That view was upheld in Hunter. I have no doubt that is correct and I should follow it. I am satisfied therefore that there is no defence now available to this claim.

15. The appeal is allowed and there will be judgment for the plaintiff for such amount of damages as shall be assessed by a Master.

16. There will be an order nisi that the defendant pay the plaintiff's costs. The plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.

(1)    [1980] WLR 227 (Court of Appeal)

(2)    [1981] 3 AER 727

(3)    [1980] 1 DB 677 at 680

(4)    14 Appeal case 665 at 668

(5)    1775-1802 AER 630

(6)    [1967] 2 QB 459 at 468