EUGENE JAE-HOON OH v. KATE GASKELL RICHDALE

CACV 162/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 162 OF 2003

(ON APPEAL FROM HCA 380 OF 2002)

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J U D G M E N T

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Hon Woo VP:

Introduction

1. This is an appeal from an Order made by Deputy High Court Judge Lam (now Lam J) on 11 June 2003, whereby on the application by the defendant’s summons dated 25 January 2003, he struck out the plaintiff’s statement of claim and dismissed the action, with costs.  The judgment can be found in [2003] 4 HKC 318.

2. This appeal had been heard by two judges of this court, Ma CJHC and Cheung JA, whose views were divided, as reported in [2004] 4 HKC 315.  The plaintiff now applies to reargue this appeal pursuant to section 34B(5) of the High Court Ordinance, Cap 4.

The claim

3. The claim of the plaintiff as pleaded in the statement of claim was one for damages for malicious prosecution that the defendant had allegedly maliciously procured and initiated, and in which she had taken part.  The prosecution was one that had been initiated by an information laid against the plaintiff by a Mr J P F Stone, Assistant Divisional Commander, Crime, Tseung Kwan O Police Station, before a Kwun Tong Magistrate of a charge of common assault on the defendant contrary to common law and section 40 of the Offences Against the Person Ordinance, Cap 212.

4. In fact, three charges were laid against the plaintiff, namely, the said common assault on the defendant, another common assault on Ms Grace Limbauan (“Grace”), and criminal damage of a car.  The magistrate who heard the case for 24 days held that there was no case to answer on the charge relating to the defendant, but convicted the plaintiff on the other two charges.  The plaintiff appealed against the two convictions but that appeal was dismissed on 16 May 2003.

The facts

5. It is necessary to state the facts, albeit briefly, to put the matter in proper perspective.  The incident that gave rise to the three charges arose at about 2 to 3 pm on 9 September 2000. 

6. The defendant and her husband Mr Suzher Yan (“Mr Yan”) were then living with their two younger daughters at House 1A, Man Kung Uk Road, Clearway Bay, whereas the plaintiff and his family were living at House 3F in the same road.  They were in the same neighbourhood.  The defendant had two dogs, which killed the plaintiff’s dog in June 2000.  When Grace, the defendant’s domestic helper, was walking the two dogs on the way home, the plaintiff threw two stones at them, and drove his car towards them.  That was the basis of the assault on Grace.  One of the stones thrown by the plaintiff hit the roof of a car parked at the roadside.  That was the basis of the criminal damage charge.  Grace rushed home and the defendant, Mr Yan and a houseguest of theirs, Mr Yasheng Huang (“Mr Huang”) who was with them at the time, went outside their house and saw the plaintiff there.  It was alleged that the plaintiff assaulted the defendant there and then.  This formed the basis of the common assault on the defendant.  The police was called, and they arrived soon afterwards.

7. The whole incident, starting from the appearance of Grace with the two dogs at the scene up to the arrival of the police, was seen by two persons who had not known the plaintiff, the defendant, Mr Yan, Mr Huang or Grace before.  They were Ms Chiu Ahmad Mustaffa Zara (“Ms Chiu”) and her friend Mr Jonathan Richard Martin (“Mr Martin”), who were seated on the patio at G/F, 3B in the same road.

8. As stated above, the magistrate held that there was no case to answer in respect of the charge of common assault on the defendant.  The plaintiff claimed that this charge was brought by the defendant maliciously, causing him damage in various ways.

The single issue

9. The judge struck out the plaintiff’s claim and dismissed the action, pursuant to Order 18, rule 19 of the Rules of the High Court.

10. There are four ingredients in the tort of malicious prosecution, as identified in para 16-06 of Clerk & Lindsell on Torts, 18^th Ed, which had been accepted by the House of Lords in Martin v Watson [1996] 1 AC 74 and Gregory v Portsmouth City Council [2000] 1 AC 419 as correctly stating the law:

(1)	The defendant was the prosecutor who set the law in motion against the plaintiff;
(2)	The prosecution was determined in the plaintiff’s favour;
(3)	The prosecution was without reasonable and probable cause; and
(4)	The prosecution was maliciously made.

11. The only issue between the parties for the purpose of the striking out application and this appeal related to the first ingredient: whether the defendant was the prosecutor.  It will be noted that the prosecution was brought by the police and the Department of Justice, while the defendant was a person who provided information and witness statements to the police and gave evidence before the magistrate.  The crux of the judge’s decision was that it was impossible for the plaintiff to prove that the exercise of the discretion by the police on the advice of the Department of Justice to lay the prosecution against plaintiff had been so affected or compromised by the information provided by the defendant to the police so as to make the defendant responsible for the prosecution, even assuming that the defendant had told an untruth to the police or had withheld information from them and that she did that with malice against the plaintiff.

The grounds of appeal

12. The grounds of appeal are of very limited scope and revolve around whether the judge was correct in making the decision that he did.  The 1^st ground alleges that the judge erred in his application of the law relating to striking out in that he failed to consider properly or at all whether the defendant had discharged the burden of proof in satisfying the court that it was impossible for the plaintiff to show at trial that she was the prosecutor for the purpose of the tort of malicious prosecution. 

13. Apart from alleging that the judge had reversed the burden of proof, the 2^nd ground alleges that he erred in various aspects, namely,

(a)	He made the wrong finding that “it is not sufficient to establish such nexus” even if it could be shown “that had the witness told the truth, the prosecution would not be brought”;
(b)	He failed to appreciate or give due weight to the significance and/or impact of the defendant’s lie to the police, the importance of the defendant being both the only victim and the principal prosecution witness, and the degree to which she had tainted and/or influenced the police in their so-called independent evaluation and/or investigation;
(c)	He was wrong in not finding that the defendant had failed to show it was impossible for the plaintiff to succeed at trial by proving that he would not have been prosecuted even though the police had other evidence from other witnesses; and
(d)	He erred in not holding that the defendant had failed to show that it was impossible for the plaintiff to establish at trial that the defendant’s deliberate lie had sufficiently tainted and/or influenced the police and/or the Department of Justice such that its/their decision to prosecute could no longer be said to be independent and/or untainted.

The law

14. It is convenient to deal first with the law on this limited scope of whether the defendant was the prosecutor, that applies to the situation where the alleged malicious prosecution was brought not by the complainant himself, but by the prosecuting authorities, such as the present case. 

15. My task in this regard is much alleviated by the judgments of Ma CJHC and Cheung JA.  While they did not agree in their conclusions, their recitation of the law differed little.

16. Assuming that the defendant had lied to the prosecuting authorities as a result of which the prosecution was brought against the plaintiff, the following factors or tests, which may be overlapping, are applicable in determining whether the defendant should be held responsible for the prosecution:

(a)	Whether the defendant’s lies and the circumstances of the case were such that it became virtually impossible for the prosecuting authorities to exercise any independent discretion or judgment as to whether or not to prosecute the plaintiff.
(b)	Where it is shown that the prosecuting authorities were able to and did exercise an independent discretion or judgment in investigating the case and in the decision to prosecute the plaintiff, the nexus between the lies and the prosecution is broken and the defendant will not in the circumstances be held to be the prosecutor.
(c)	In considering whether the nexus is broken, it is necessary to consider whether the offence alleged against the plaintiff was exclusively within the knowledge of the defendant – in a “one on one” situation, and if it was, then it becomes virtually impossible for the prosecuting authorities to exercise any independent discretion or judgment.
(d)	In a more complex case, where there was other evidence apart from the defendant’s against the plaintiff, the test as to whether the nexus is broken is the same, but the circumstances will need to be examined more cautiously to see if the prosecuting authorities had conducted investigations and critically appraised the evidence before them in reaching the decision to prosecute.

17. These factors, as summarised above, can be discerned from paras 16-23 in Ma CJHC’s judgment and paras 37-43 and 61-66 of Cheung JA’s judgment in [2004] 4 HKC, at pp 321-327, 331-333, and 336-337, after they had analysed Martin, Gregory, Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343, Commercial Union Assurance Company of New Zealand Ltd v Lamont [1989] 3 NZLR 187 and Mahon & Anor v Rahn & Ors (No 2) [2000] 1 WLR 2150.

18. There may be a divergence of views regarding the extent of the influence that a defendant’s lies must have on the prosecuting authorities for their decision to lay the prosecution before the defendant can be regarded as the prosecutor.  On behalf of the plaintiff Mr Lee SC submits that insofar as the prosecution would not have been brought but for the defendant’s lies provided to the prosecuting authorities, the defendant must be treated as the prosecutor.  I do not agree.  It is necessary for the court to examine all the evidence and the circumstances of the case to decide whether the nexus had been broken.  The defendant’s lies might well have been a factor considered by the prosecuting authorities in reaching their decision to prosecute, but it does not necessarily follow that the decision could not have been made independently of the lies after investigation and appraisal of all the materials before them, so as to constitute a breaking of the nexus between the lies and the decision.

The judge’s decision

19. The foundation of the judge’s decision was that it was the police on the advice of the Department of Justice that took the decision to prosecute the plaintiff.  There was nothing to show that the decision to prosecute was not independent or competent, which was based on the independent and detailed investigation made by the police and the advice of the Department of Justice.  Whatever lies told by the defendant to the police, assuming they were lies for the purposes of the application to strike out, so the judge held, could not have compromised or influenced the decision of the police and the Department of Justice in bringing the prosecution.  While there were allegations made by the plaintiff that the police was duped by what the defendant had told them and that the police was lazy, incompetent, gullible, and not independent etc, no concrete evidence of any sort in support was alluded to in the plaintiff’s lengthy affidavit consisting of 71 pages. 

20. The judge refused to accept that insofar as the defendant had lied to the police, which was assumed for the present purposes, she should be regarded as the person who brought the prosecution in a suit of malicious prosecution.  He said:

“	55.	… In my view, a plaintiff must also show that such information had a significant impact on the exercise of the discretion by the prosecuting authority.”
“	63.	Mr Lee [counsel for the plaintiff] said that at the trial of this action the Plaintiff intended to cross-examine the Government counsel who decided to prosecute the Plaintiff. He would be asked whether charge would still be laid against the Plaintiff if the Defendant had told the police that she was not assaulted by the Plaintiff. With respect, I do not think this line of cross-examination assists the Plaintiff. Even assuming that the Government Counsel answers that question by saying the charge in question would not be laid, for the reasons given … above this court cannot conclude from such an answer that the Defendant was the prosecutor. The same tactic could be adopted by every acquitted person in respect of his claim for malicious prosecution against every material witness in the criminal prosecution. If this court entertains this argument in the present case, the absolute immunity conferred on a witness by Taylor v Serious Fraud Office [1999] 2 AC 177 and the rationale behind it could be easily frustrated.
	64.	It is important not to lose sight of the fact that the essence of an action for malicious prosecution was the abuse of legal process by maliciously and without reasonable cause setting the law in motion. Although the furnishing of a statement could be an essential step in that direction (see Roy v Prior [1971] 1 AC 470), it does not follow that the court should lightly conclude that a statement given by a complainant to the police set the criminal prosecution into motion. In my judgment, it is not sufficient to establish such nexus by simply showing that had the witness told the truth, the prosecution would not be brought. The nexus can only be established by showing that the lies told by the witness had set the prosecution into motion.
	65.	I also need to consider whether it is possible for the Plaintiff to establish at the trial that the Defendant’s evidence had prejudiced the exercise of independent judgment of the Department of Justice. In my judgment, it is not sufficient to show that the authority had taken the evidence of the Defendant into account. Such a test can be met in respect of almost every statement furnished by a witness. The threshold must be much higher. A plaintiff relying on this argument has to establish that the discretion of an independent and professional prosecuting authority had been prejudiced to the extent that it could properly be regarded as negating such discretion.

21. The judge also rejected the plaintiff’s allegation that it was the defendant who procured or suborned the other witnesses called by the prosecution in proving the charge of assault on the defendant, based on which the plaintiff wished to establish that the defendant was the prosecutor.  The judge said:

“

67.

For reasons already given above, I also reject the assertion of the Plaintiff in Paragraph 8(6) of the Statement of Claim that the Defendant caused or procured untrue and/or tainted evidence tendered by other witnesses to persuade the police to prosecute him. The Plaintiff has not been able to produce a single piece of evidence to substantiate that allegation. Nor can I find anything from the transcripts on the cross-examination of these witnesses to justify such an inference.”

22. In my judgment, the judge had correctly analysed the law and applied it to the facts.   

23. I am not persuaded that the judge had applied the wrong burden of proof as alleged on behalf of the plaintiff.  There was ample evidence before the judge that the police had made very detailed investigations of the incident and they obtained impartial legal advice of the Department of Justice to lay the charges.  On the other hand, the plaintiff had adduced no contradicting evidence save making bare allegations against the prosecuting authorities, the defendant and witnesses connected with her.

24. Ma CJHC also analysed the facts of this case establishing the breaking of the nexus under six heads in para 27 of his judgment, at pp 327-329 of the report.  It would be verbose to reiterate those facts here.  I agree with Ma CJHC’s analysis and with his conclusion at 327F-H that

“… it is clear on the evidence (even at this stage) to conclude that however much the defendant may have lied about the assault …, the prosecuting authorities … did exercise an independent discretion or judgment on the decision to prosecute the plaintiff. In short, the nexus between the defendant and the prosecution of the plaintiff was severed by the intervention of the police and the Department of Justice. It is in my view not reasonably arguable that the defendant’s lie has somehow made it ‘virtually impossible’ for the independent exercise of discretion or judgment by the prosecuting authorities in the present case.”

25. I wish only to mention the significant fact that there were at least six persons, namely, the defendant, Mr Yan, Mr Huang, Grace, Ms Chu and Mr Martin, who had provided statements to the police about the incident.  Ms Chu and Mr Martin were witnesses who were totally independent of the plaintiff and the defendant and their respective families.  Apart from Grace, the remaining four persons, excluding the defendant, bore witness to the alleged assault on the defendant.  In fact, the statements of Mr Yan and Mr Huang alleged that they were also assaulted by the plaintiff.  However, only the three charges, mainly based on the evidence of the six persons, were laid against the plaintiff who had also told the police his own version of the incident and alleged that he was assaulted and falsely imprisoned.  The police were aware of the animosity between the families of the plaintiff and the defendant.  These circumstances, coupled with the fact that the plaintiff had on several occasions maintained in his affidavit that he had witnesses of his own and there were many people who saw the incident, make it plain that the police and the Department of Justice must have made their decision to prosecute after critically considering all the materials, and not merely relying on what the defendant had told them.  This is only resonant of what the plaintiff had himself apparently accepted in para 65 of his affidavit, where he stated:

“I verily believe that the police would not have prosecuted solely based on the story given by her [the defendant’s] closely connected people, i.e. Yan, Huang and Limbauan [Grace].”

26. The plaintiff also attempted to show that the defendant was the prosecutor through his allegation repeated many times that she had procured or suborned independent witnesses to tell lies to implicate him of the charge of common assault on her.  I have examined the plaintiff’s affidavit and agree with the judge that there is not a scintilla of evidence in support of this bare allegation.  It is plain that this alleged nexus between the defendant’s acts or omissions and the prosecution of the plaintiff for establishing the necessary ingredient of the claim that the defendant was the prosecutor cannot be proved at trial. 

Conclusion

27. For the above reasons, I consider that none of the grounds of appeal has any substance.  I agree with the judge and Ma CJHC that the plaintiff’s claim is doomed to failure.  I would dismiss the appeal with an order nisi that the plaintiff pay the defendant’s costs, to be taxed if not agreed.

Hon Le Pichon JA:

28. I agree that this appeal falls to be dismissed for the reasons given in the judgment of Woo VP.  I should however like to add a few observations on the main argument advanced by Mr Lee SC on behalf of the plaintiff.

29. As I understand it, the crux of Mr Lee SC’s submissions was that at the striking out stage, the defendant cannot show that it would be impossible for the plaintiff to discharge his burden at trial that she was the prosecutor.  It was said that the extent to which the lie led to the prosecution was fact-sensitive as was the related question, namely, whether the prosecuting authorities exercised an independent judgment in deciding to prosecute so as to sever the nexus between the lie and the prosecution.  The argument advanced was that those are questions of fact and therefore cannot be resolved at the striking out stage but only at trial.  Mr Lee was at pains to emphasize that ‘independent’ in that context must mean ‘not dependent on the defendant’s lie’.

30. Whilst in general questions of fact cannot normally be resolved at an interlocutory stage, it is not a rigid and immutable rule.  Ultimately, each case must turn on its own individual facts.  If the case were a ‘one on one’ situation as in Martin v Watson [1996] 1 AC 74 where in practical terms the information supplied compelled the bringing of the prosecution, I would agree that an application to strike out would not succeed.  But the present case is not within Martin v Watson.  The question which arises in the present case is whether it would be impossible for the plaintiff to demonstrate at trial that “the intelligent exercise” by the police and the Department of Justice “of the discretion to prosecute was impossible”.  This test I derive from the following passage in the judgment of Richardson J in Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 at 199, ll. 9-13:

“To proceed on the premise that whenever it emerges that false information was given to the police the intelligent exercise of the discretion to prosecute was impossible, does not reflect the ordinary performance of the New Zealand police of their important responsibilities.”

Richardson J went on to say this (at ll. 31-32):

“One should never assume that tainted evidence persuaded the police to prosecute.”

I would observe that there is nothing in Richardson J’s judgment to suggest that there could not have been an intelligent exercise of the discretion to prosecute if the prosecution happened to fail.  They are separate issues.

31. It is convenient to summarize what the plaintiff needs to establish at trial to succeed in his claim for malicious prosecution.  The fact that the prosecution would not have been brought but for the defendant’s lies is not a sufficient basis in law for treating the defendant as prosecutor.  See Commercial Union at 196, ll. 24-25.  Nor is it sufficient simply to show that the defendant had lied or supplied false information to the police.  The correct test is set out in the judgment of Brooke LJ in Mahon & Anor v Rahn & Ors (No.2) [2000] 1 WLR 2150 at para 269:

“In a simple case it may be possible to determine the issue quite easily by asking these questions. (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?”

I therefore agree with Ma CJHC at para 21of his judgment that it is not sufficient for the plaintiff to satisfy one or more of the three situations postulated by McMullin J in Commercial Union at 207-208 in order to succeed in his claim.  The three situations posited by McMullin J are not to be read disjunctively as is clear from test adumbrated in the Mahon case cited above.  It follows that at the trial it would be incumbent on the plaintiff to show that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment.  So, for the purposes of the striking out, the defendant has to show that it would be impossible for the plaintiff so to do.

32. It is important to bear in mind the circumstances of the present case.  In each of the leading cases on the subject of malicious prosecution reviewed in the judgment below as well as the judgments of Ma CJHC and Cheung JA, the subject matter of the relevant investigation was a single incident or matter.  The present case is markedly different.  The events that occurred between 2pm to 3pm on 5 September 2000 gave rise to no less than 7 complaints.  Those comprised the assault on the maid, criminal damage to the car, alleged assaults by the plaintiff on the defendant, her husband and Mr Huang, an alleged assault on the plaintiff and a claim by the plaintiff that he had been falsely imprisoned.  Whilst each complaint had to be investigated, they arose out of the same sequence of events and each complaint involved the plaintiff.  In reality, there was an investigation into the events that gave rise to the several complaints rather than 7 separate and unrelated investigations.  Put differently, the investigation into the alleged assault on the defendant was part of a larger investigation and at the conclusion of that investigation which, by all accounts, was detailed and extensive, a view was taken as to whether prosecutions should be brought and, if so, in respect of which complaints.

33. Against such a backdrop, it would be wrong and artificial to view the decision to prosecute the plaintiff in respect of the alleged assault on the defendant in isolation.  The fact that prosecutions were brought in respect of only 3 of the 7 complaints is telling: it speaks to the exercise of a discretion by the authorities.  Of the 5 alleged instances of assault, prosecutions were brought only in respect of the alleged assaults on the maid and on the defendant.  It can hardly be coincidental that charges were laid in respect of those where there were independent witnesses (Ms Chiu and Mr Martin) and not in respect of the other three where there were no such witnesses.

34. Both Ms Chiu and Mr Martin were unrelated to the maid, the plaintiff and the defendant and their respective families.  Absent evidence that they had been suborned to give false evidence, there is no basis upon which a court could proceed other than that they were truly independent witnesses.  Whilst the plaintiff’s affidavit contains allegations that the defendant had suborned independent witnesses to support her complaint, as the Vice-President observed in paragraph 26 of his judgment, they are but bare allegations unsupported by any evidence.  As such, those allegations must be ignored in the present exercise.

35. True it is that at the trial both Ms Chiu and Mr Martin accepted that the defendant had her back to them and in that sense their view of the actual physical contact between the plaintiff and the defendant was blocked.  But a distinction needs to be made between an investigation that in one critical respect was deficient or one that could have been more thorough and the intelligent exercise of the discretion to prosecute based on what with the benefit of hindsight was an imperfect investigation.  The fact that a prosecution fails at the end of the day does not mean that there had not been and could not have been an intelligent exercise of the discretion to prosecute. 

36. I would add that I do not agree with Mr Lee that ‘independent’ must mean ‘not dependant on the defendant’s lie’.  Such a definition is unhelpful because in reality it is the ‘but for’ test in another guise.

Hon Chung J:

37. I agree with the judgments of Woo VP and Le Pichon JA.