LEUNG KWOK HUNG v. SECRETARY FOR JUSTICE

[English Translation – 英譯本]

HCA 1124/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1124 OF 2006

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JUDGMENT

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1.  I have given an account of the background of the present case in the Reasons for Decision that I handed down on 10 March 2009 and I will not repeat it here. The plaintiff’s claim for malicious prosecution having been struck out, his present claims centre around the way in which he was treated by the police from 1 to 2 June 2000, from the time he was arrested to the moment before he was escorted to the court. At about 12.59 p.m. on 1 June 2000, the plaintiff was intercepted when he entered the territory through Lo Wu Control Point. At 1.06 p.m. on the same day, the police took over custody of the plaintiff from the Immigration Department. From that moment onwards, the plaintiff was in police custody until 2.38 p.m. the following day when he was brought to the Western Magistracy for mention.

2.  The plaintiff alleges that the police treated him improperly during the said period of custody and infringed upon his civil rights, as a result of which he suffered serious losses. In his statement of claim, he seeks the following relief:

(1) I claim compensation in the sum of eight thousand Hong Kong dollars HK$8000^XX, being the unpaid car rental as per the relevant receipt, such rental having arisen from the present case.

(2) I claim compensation in the sum of three hundred Hong Kong dollars HK$300^XX, being the expense paid on 2 June 2000 for the voluntary lawyer service.

(3) I claim compensation in the sum of one thousand and forty five Hong Kong dollars HK$1045^XX, being the fee paid when I filed the claim with the court by myself.

(4) I claim compensation in the sum of ninety thousand Hong Kong dollars HK$90000^XX, being the loss that I suffer by reason of the price difference in the sale of the watch.

(5) I claim compensation in the sum of ninety thousand Hong Kong dollars HK$90000^XX, being the difference in the credit card interest.

(6) I claim compensation for the loss that I sustain as a result of the closedown of AV Car Rental Co. I take thirty thousand dollars as my median income and arrive at one million and eighty thousand Hong Kong dollars HK$1,080,000^XX, being 3 years’ income.

(7) I claim compensation for my mental loss, physical loss and loss of integrity. On the basis of 3 years’ total income, the amount claimed is one million and eighty thousand Hong Kong dollars HK$1,080,000^XX.

(8) I claim compensation in the sum of four hundred thousand Hong Kong dollars HK$400,000^XX, being the rent (for a term of 10 years) that I paid for my investment in Mainland China.

The total amount of the above items of claim is HK$2,749,345^XX. Expressed in words, it is two million seven hundred and forty nine thousand three hundred and forty five dollars exactly.

3.  In the statement of claim, the plaintiff sets out 4 accusations as follows:

(1) Abuse of judicial process

(a) The bail money was fixed at two thousand dollars, and the party concerned was ordered to raise the money from his friends and relatives. When the money was raised and was being brought to the police station, a plainclothes police officer approached the party concerned, telling him that the bail money had been increased from two thousand dollars to eight thousand dollars.

(b) When the bail money was fixed at eight thousand dollars, the party concerned was again ordered to raise the money from his friends and relatives. When the money was raised and was being brought to the police station, the plainclothes policeman approached the party concerned, telling him that the bail money had been increased from eight thousand dollars to twenty thousand dollars.

(2) FALSE INPRISON (sic)

On the evening of 1 June 2000, I was criminally detained in North Point Police Station without any reason.

(3) Abuse of power

Article 28 of the Basic Law guards against violation of the freedom of the person of Hong Kong residents. When a policeman purports to arrest any person, he must have a suspicion that the person has committed an offence for which he may be sentenced to imprisonment, and such suspicion must not only be genuine but must also be supported by reasonable grounds. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment, but I was unlawfully arrested when I entered Hong Kong. I had not committed any offence. The incident merely concerned a receipt with some discrepancies in the year and was by no means serious in nature. The police took the approach of making an arrest before investigating the matter. Such a high-profile approach was a waste of everyone’s time and resources and was against justice which the law is supposed to uphold.

(4) Malfeasance

According to Police General Orders, whether a suspect is to be handcuffed depends on whether he is likely to escape and whether the policemen and other people are safe in the course of escorting the suspect. Generally speaking, a suspect has to be handcuffed if he is involved in serious crimes, has a tendency to commit suicide or perform violent acts, or has previous records of escape or is likely to escape. I had not committed a serious crime. I had neither any tendency to commit suicide nor a history of violent behaviour, and it was out of the question that I would escape because at that time I had indeed not committed any offence. The police not only handcuffed me but also put an iron chain round my waist and locked it.

4. In the annex to a document called “Reply to the Statements of the Defendant’s Witnesses about the Accusations Put Forward by the Plaintiff”, the plaintiff reiterates his accusations against the defendant in the following terms:

(1) Recklessly and arbitrarily prosecuting the plaintiff

Prosecution was hastily brought against the plaintiff for an offence of using a false instrument when the evidence was so tenuous, when the truthfulness of the statement of the witness Mr. Yeung had not been verified, and when the statements of the two parties had not been challenged.

(2) Abuse of police power

Deliberately subjected the plaintiff to indignity and humiliation before the public, and did not allow the plaintiff (at that time) to put on a hood in a public place such as the concourse of a railway station, which could have protected the plaintiff from being humiliated unnecessarily.

(3) Abuse of judicial process

When [the police] took over custody of the plaintiff, they considered that they had arrested the plaintiff, but the plaintiff was neither cautioned nor verbally informed of the offence that he had allegedly committed. The process was simply pointless.

(4) Abuse of police power

When the plaintiff was being escorted from Lo Wu to the Central Police Station, the plaintiff was not only handcuffed, but was also bound at the waist by an iron chain.  The plaintiff was not a criminal who had committed a serious crime but was treated as such, so that the police could achieve their unreasonable objective of suppressing the plaintiff.

(5) Abuse of judicial power

After the first decision fixing the bail money at $2,000 was made, a friend of the plaintiff’s meant to take the money to the police station to bail out the plaintiff.  But even before he set off, he received a phone call from the plaintiff, telling him that the bail money had been changed to $8,000.  The police did not have sufficient reasons for increasing the bail money all of a sudden, nor did they explain why they did so.

(6) Abuse of judicial power

When, on the second occasion, the plaintiff’s friend took $8,000 to bail out the plaintiff, the police again unreasonably increased the bail money from $8,000 to $20,000.  The police once and again increased the bail money unreasonably, with the intention of increasing it to an amount which the plaintiff would be unable to pay.  This was tantamount to blackmail.

(7) Unlawful detention of the plaintiff

Only when the plaintiff’s family was ready to take $20,000 to the police station to bail out the plaintiff did the police decide to deny the plaintiff bail and to immediately detain him for no reason.  He was put behind bars in wholly unreasonable circumstances.

(8) Using a false instrument

The Commissioner of Police is accused of using, on 29 June 2006, a false instrument, namely an instrument mailed (in fact personally delivered) by Chan Hoi Cheung, a Government Counsel at the Civil Litigation Unit of the Department of Justice, to the plaintiff Leung Kwok Hung, with the intention of inducing the plaintiff Leung Kwok Hung to accept the instrument as genuine and, by reason of so accepting it, to do or not to do some act prejudicial to the plaintiff Leung Kwok Hung.  This exhibit is listed on p.22 of Part 3 of the Reply to the Defendant’s Defence.

5. As mentioned above, the allegation of malicious prosecution and claim item (2) were struck out by me on 2 March 2009. I did so for the reasons set out in the Reasons for Decision which I have already handed down.

6. The plaintiff alleges that the mailing of the letter to him by a Government Counsel at the Civil Litigation Unit of the Department of Justice (hereinafter “Government Counsel”) constituted using a false instrument. This allegation relates to a complaint about criminal matters and cannot be dealt with in the present civil action. Furthermore, having read the letter, which is dated 29 June 2006 and sent by the Department of Justice to a Mr. Leung Kwok Hung, whose address was Room 1704, Ching Chung House, Cheung Ching Estate, Tsing Yi, I fail to see how the letter is “false” within the meaning of section 69 of the Crimes Ordinance. Perhaps at one stage the Government Counsel mistook Mr. Leung Kwok Hung for the plaintiff of the present case, but this does not mean that the Government Counsel committed the offence of using a false instrument.

7. I now proceed to consider and adjudicate on the other allegations made by the plaintiff. For this purpose, I shall follow the chronological order in which the events took place.

Process of the arrest

8. PC 46518 gave evidence that at 1 p.m. on 1 June 2000 he was instructed to go to the arrival hall at Lo Wu Control Point to handle the taking over of the custody of a target person. When he arrived at the scene, immigration officers showed him some confidential papers which indicated that the target person Leung Kwok Hung was involved in a Central Police Station case of using a false instrument. Then, at 1.06 p.m. he declared to the plaintiff that he was under arrest in respect of a Central Police Station case of using a false instrument, case number CRN00004982. He said that the plaintiff at that time took out a pen and a piece of paper and wrote down the details of and information on the arrest. PC 46518 then conducted a search on the plaintiff and, after the search, returned the plaintiff’s property to him and took him to Lo Wu police post, where a report was made to the duty officer.

9. PC 46518 also made a detailed record of the arrest in his notebook.

10. The plaintiff denied that at the time of the arrest the police officer told him the offence for which he was being arrested. He alleged that when he asked the police officer why he arrested him, the officer answered that he did not know. The plaintiff did not know what the charge against him was until he was brought to the court.

11. However, under cross-examination, the plaintiff did not seem to be very sure about whether the police officer had told him he was under arrest because he was suspected to have committed an offence of using a false instrument which the Central Police Station was investigating. He appeared to have mixed up caution with the reason for the arrest. He also said that even if PC 46518 had told him the arrest was in respect of a case of using a false instrument, he would not know the particulars thereof.

12. In this regard, having assessed the evidence, I consider the evidence of PC 46518 more reliable and credible. I see no reason why he should withhold the reason for the arrest from the plaintiff. On the other hand, it is possible that the plaintiff paid no heed to what the police officer told him about the reason for arrest. As the plaintiff did not understand what it was when the police officer referred to “a Central Police Station case of using a false instrument, case number CRN00004982”, he still did not understand why he was arrested even after he heard that reason. As a result, he might perceive that the police did not inform him of the reason for his arrest at the time of the arrest.

13. Although I am satisfied that at the material time PC 46518 did declare to the plaintiff that he was under arrest for a Central Police Station case of using a false instrument, case number CRN00004982, I still have to consider whether the declared reason for the arrest, as stated in the evidence of the police officer, met the legal requirements of a lawful arrest.

14. Article 28 of the Basic Law of the Hong Kong Special Administrative Region provides that: “The freedom of the person of Hong Kong residents shall be inviolable. No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment.”

15. Article 5 of the Hong Kong Bill of Rights Ordinance, Cap. 383 of the Laws of Hong Kong, confers on the people in Hong Kong the following protections regarding the liberty and security of person, including: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” (Article 5(1)), and: “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” (Article 5(2))

16. Article 5(5) further provides that: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

17. Arrested person enjoy similar protections under the common law: see R v Chan King Hei [1995] 1 HKCLR 288, p. 293; HKSAR v Ip Kenneth [2006] 2 HKLRD 433, p. 441, para. 26.

18. To put it simply, the law requires a police officer who makes an arrest to have reasonable suspicion and, when he declares arrest, to inform the arrested person there and then of the reasons for his arrest.

19. In the Reasons for Decision that I handed down previously, I delved into the issue of whether the police had sufficient evidence to prosecute the plaintiff for using a false instrument. Even though the plaintiff did not give a cautioned statement when he was arrested by PC 46518 on 1 June 2000, the police had by that time already taken a witness statement from Mr. Yeung. Therefore, at the time of the arrest, the police did have reasonable grounds for suspecting that the plaintiff had committed the offence of using a false instrument.

20. As far as the declaration of the reasons for arresting a person is concerned, in the English Court of Appeal case of Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155, Clarke LJ, having considered the relevant cases, laid down the following test: “The question is thus whether, having regard to all the circumstances of the particular case, the person arrested was told in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest.” (para. 26 of the judgment)

21. In paragraph 27 of his judgment, Clarke LJ emphasized that the arresting officer who declared the arrest had to tell the arrested person not only the essential legal grounds for the arrest, but also some essential factual basis for the arrest. And in paragraphs 34 and 35 of his judgment, Clarke LJ made it clear that law enforcement officers were not required to give the arrested person detailed particulars of the case at the time of the arrest because it was not practicable to do so, and that whether law enforcement officers had given adequate grounds for an arrest would depend on the facts of each particular case.

22. Furthermore, in paragraphs 30 and 31 of his judgment, Clarke LJ pointed out that the adequacy (or otherwise) of the grounds given by the arresting officer had to be assessed objectively, and that whether the arresting officer himself was sufficiently conversant with relevant information was not material to this objective assessment.

23. In Taylor, a police constable arrested a boy aged 10 and, at the time of the arrest, told the boy that he was being arrested because of suspected involvement in a violent disorder on 18 April 1998 at Hillgrove Farm. The Court of Appeal held that the constable had given adequate reasons for the arrest.

24. This can be compared with another English Court of Appeal case, Murphy v Oxford (unreported) 15 February 1985, Court of Appeal (Civil Division), transcript No. 56 of 1985. In that case, Liverpool police officers arrested the plaintiff and, at the time of arrest, told him that he was being arrested on suspicion of burglary in Newquay, but no mention was made of the date or location of the offence. The arrest was held to be unlawful by the English Court of Appeal. In that case, the Liverpool police obtained the information from a telegram by the Newquay police. Similarly, in the present case, the information available to the Lo Wu police post depended on the confidential communication that the police sent to the Immigration Department, and hence the information available to PC 46518 at the time of the arrest would have been limited. However, as Clarke LJ pointed out in paragraph 31 of his judgment in Taylor, how reasonably the police acted in communicating with one another had no bearing on the question of whether the reasons given for an arrest complied with the legal requirements:

Thus the question here was whether, viewed objectively, the claimant was told enough. As I see it, the answer to that question is the same whether PC McKenzie knew that the claimant was suspected of throwing stones or not. How reasonably the police acted in communicating with one another seems to me to be irrelevant to the answer to the question.

25. Mr. Ip for the defendant submits that, in the circumstances of the present case and taking into account the fact that at the material time PC 46518 was only instructed to take over custody of the target person and that he was armed with very little factual information, it would have been sufficient for him to inform the plaintiff at the time of the arrest of the offence which he was suspected to have committed and the case number. Mr. Ip cites the following authorities in support of his submission: Clarke v Chief Constable of North Wales Police (unreported) 5 April 2000, Court of Appeal; Abbassy v Commissioner of Police [1990] 1 WLR 385; R v Kulynycz (1970) 55 Cr App R 34.

26. With respect, I cannot accept this submission. Nor do I consider that the authorities cited by Mr. Ip serve to support his argument. As a matter of legal principle, when considering whether the reasons for an arrest given by a police officer are adequate, the court must take into account the situation in which the arrested person is placed. The following principles about the legal requirement concerning the giving of reasons for an arrest can be derived from the relevant authorities:

(1)     Under the common law, an individual enjoys freedom of the person and is entitled to protect his freedom of the person until he knows in substance why this freedom should be restrained. As Viscount Simon said under proposition (4) in his judgment in Christie v Leachinsky [1947] AC 573 at pp. 587 to 588:

The requirement that he should be so informed does not mean that technical or precise language need be used.  The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.

(2)     If the reasons given by the law enforcement officer are not sufficient to justify an arrest, the arrested person can resist the arrest in an appropriate way: see Christie v Leachinsky [1947] AC 573, per Lord Simonds at p.591; Abbassy v Commissioner of Police [1990] 1 WLR 385 at p. 392 per Woolf LJ;

(3)     Having been informed of the reasons for his arrest, the arrested person has the opportunity to provide an explanation, in order that he will not be unjustifiably accused.  If the suspicion held by the law enforcement officer is dispelled after the arrested person has given an explanation, the officer cannot proceed with the arrest for the same reason. Sedley LJ made the following observations in Clarke v Chief Constable of North Wales Police, 5 April 2000:

The whole point of the law is that the citizen must be told what the constable suspects he has done wrong. It does not have to be done in any technically precise way, but … it must convey to the individual enough to show that the arrest is lawful … If the suspect has a [fool proof explanation], he may be able to dispel the suspicion to the extent of rendering it no longer reasonable and the arrest therefore no longer lawful.

See also Christie v Leachinsky [1947] AC 573 per Viscount Simon at p. 588; per Lord Simonds at p. 592, “Arrested with or without a warrant the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moment’s delay, take such steps as will enable him to regain it.”

See further, Abbassy v Commissioner of Police [1990] 1 WLR 385 at p. 391; Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155 at para. 21.

27. It can be seen from the above that the legal requirement that a person under arrest must be informed of the reasons for his arrest is an important measure to safeguard the freedom of his person. He will be provided with certain basic information which will enable him to consider what steps he can take in response. For this purpose, the legal requirement is such that a person under arrest should be informed of the basic facts which constitute the accusations against him.  In Christie v Leachinsky [1946] KB 124 at p.147, Lawrence LJ said that the arrested person was entitled to know

                        The facts which are said to constitute a crime on his part.

This proposition was endorsed by Lord Simonds in the House of Lords: see [1947] AC 573 at p. 593. This principle was also adopted by Woolf LJ in Abbassy v Commissioner of Police [1990] 1 WLR 385 at pp. 391-2.

28. For the same reasons, in Fox, Campbell & Hartley v United Kingdom (1990) 13 EHRR 157 at p. 170 para. 40 the European Court of Human Rights construed Article 5(2) of the European Convention on Human Rights in the following way:

Paragraph (2) of article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This protection is an integral part of the scheme of protection afforded by article 5: by virtue of paragraph (2) any person arrested must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness …

29. The English Court of Appeal adopted the same standard in Taylor: see [2004] 1 WLR 3155 at paras. 26, 27.

30. However, this standard is not an absolute standard.  In Christie v Leachinsky [1947] AC 573 at pp. 587-588, Viscount Simon referred to some exceptions (paragraphs (2), (3) and (5)) and went on to say:

There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code …

I shall discuss hereinbelow whether the present case can be regarded as an exception.

31. Under the common law, if the arrested person already knew the reasons for his arrest before he was arrested, or if he himself created a situation which made it practically impossible to inform him of the reasons for his arrest, then even if the police officer at the time of arrest did not tell him why he was being arrested, the arrest was still lawful (HKSAR v Ip Kenneth [2006] 2 HKLRD 433). However, these exceptions do not apply in the present case because prior to his arrest the plaintiff had no knowledge whatsoever that the police were looking for him. He did not know why he was being arrested, and he did not create a situation which made it practically impossible for the police officers to inform him of the reasons for his arrest.

32. In addition, if the reasons for the arrest as declared by the police officer together with the objective circumstantial factors which existed at the time of the arrest enabled the arrested person to know the essential facts which constitute the accusations for which he was arrested, then the law would not deprive the arrest of its lawfulness merely because the police officer did not enumerate these circumstantial factors in his declaration of arrest. This is exactly what happened in Abbassy v Commissioner of Police [1990] 1 WLR 385: see p. 394. Another example is Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155 at para. 36.

33. In Clarke v Chief Constable of North Wales Police, although Sedley LJ was the dissenting judge, the general principles that he put forward met with approval by the other two judges. That they arrived at opposite conclusions is a matter of application of the legal principles to the facts of the case.  Brooke LJ’s opinion, with which Sir Christopher Staughton concurred, was that in the circumstances of that case,

I am of the clear opinion that Mrs Clarke would have understood perfectly well that the police were arresting her for a serious offence in connection with the possession of a controlled drug for which they had the power to arrest her.

34. In the present case, however, I cannot find any objective circumstantial factor through which the plaintiff became aware, before he was cautioned by DPC Chan Chi Ming (陳志明) at Central Police Station, that his arrest was in respect of the A18 invoice. By the time when he was cautioned by the DPC, the plaintiff had been detained by the police for approximately 5 hours (including the duration of the escort journey). During this period of time, the plaintiff was totally unaware of the essential facts relating to the offence of which he was accused.

35. In my view, the standard on the giving of reasons for the arrest, as laid down by the English cases referred to above, is applicable to the present case. The question which I have to consider can be framed in the following terms: in light of the circumstances at the time of the plaintiff’s arrest in the arrival hall in Lo Wu, had the arresting officer told the plaintiff in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest?

36. The sentence uttered by PC 46518 in declaring arrest did indicate the essential legal ground for the arrest, namely suspicion that the plaintiff was involved in a case of using a false instrument. But the sentence did not convey to the plaintiff the essential factual grounds for his arrest. The reference to the arrest being connected with Central Police Station case CRN00004982 could not enable the plaintiff to know what events led to his arrest. A case number certainly did not mean anything to him. The police officer did not tell him when and where the offence in question was committed or what document was involved. Mr. Ip submits that the reason for the arrest given by the police officer was sufficient in enabling the plaintiff to know that he was involved in an actual case, and that the accusation justified the exercise by the officer of the power of arrest under section 50(1)(a) of the Police Force Ordinance.  In light of my foregoing analysis of the requirement as to the declaration of reasons for the arrest, I do not agree that the officer’s declaration in question was sufficient. The information given by the officer was simply not enough to give the plaintiff any opportunity to provide an explanation.

37. The person and personal freedom of an individual are protected by the constitution. Therefore, as Sedley LJ pointed out in paragraph 58 of his judgment in Taylor, where a law enforcement officer is depriving a person of his personal liberty, that person is entitled to know the reasons thereof. This reflects the basic respect that should as a minimum be shown for the dignity of an individual.

38. I appreciate that PC 46518 had no malice towards the plaintiff and that he was not provided with adequate information to enable him to clearly inform the plaintiff of the essential factual grounds for his arrest. Nevertheless, the arrest in question did fail to comply with the legal requirements, and I therefore hold that the arrest made in the arrival hall in Lo Wu was unlawful.

39. Another exception provided for under the common law is that although objectively speaking, a law enforcement officer has taken reasonable measures and steps to declare to the arrested person the reasons for his arrest, the information has not been effectively conveyed to the arrested person because, for example, he is aurally handicapped or does not understand the Chinese language: see Tims v John Lewis [1951] 2 KB 549, [1952] AC 676; Wheatley v Lodge [1971] 1 WLR 29. However, under such circumstances, after the arrested person is taken to a police station, the law enforcement officer must, as soon as possible, use an effective method (such as arranging for the provision of a hearing aid or an interpreter) to inform the arrested person of the reasons for his arrest.

40. The plaintiff herein of course had neither aural problem nor any difficulty in understanding the Chinese language. In light of Viscount Simon’s observation in Christie v Leachinsky that there might well be other exceptions, I have considered whether the principles set out in the above cases can be extended to the circumstances of the present case so as to lower the legal standard required of a police officer who was instructed to take over the custody of a target person. In this connection, I have paid particular attention to the judgment of Woolf LJ in Abbassy at p. 392.

Whether or not the information which is given is adequate has to be assessed objectively having regard to the information which is reasonably available to the officer. Thus, for example, in dealing with a deaf person it will be sufficient if the arriving constable has done what a reasonable person would have done in the circumstances: see Wheatly v Lodge [1971] 1 WLR 29.

Woolf LJ seemed to have drawn from the judgment in Wheatley the conclusion that the adequacy or otherwise of the reasons for the arrest given by the police had to be assessed on the basis of the information which was reasonably available to the officer concerned.

41. At first glance, on the one hand Woolf LJ said that the adequacy or otherwise of the reasons for an arrest had to be assessed objectively, but on the other hand he said that the information available to the officer concerned was also relevant to the assessment. Does this suggest that an arresting officer who does not have sufficient information on the offence can give an obscure reason for the arrest? If this were the position adopted by Woolf LJ, then it would lend support to Mr. Ip’s submissions (see paragraphs 25 and 36 above).

42. However, I do not think this is the position taken by Woolf LJ. In paragraph 30 of his judgment in Taylor, Clarke LJ referred to Woolf LJ’s observations and then said:

The person arrested is either told enough or he is not.

Then he said, in paragraph 31:

Thus the question here was whether, viewed objectively, the claimant was told enough. As I see it, the answer to that question is the same whether [the arresting officer] knew that the claimant was suspected of throwing stones or not. How reasonably the police acted in communicating with one another seems to me to be irrelevant to the answer to the question.

43. If the “information which is reasonably available to the officer” referred to by Woolf LJ in his judgment meant the information on the relevant offence/charge, then the aforesaid remarks made by Clarke LJ would contradict what Woolf LJ said, and the reference to Woolf LJ’s judgment by Clarke LJ in paragraph 30 would be highly paradoxical. Obviously, Clarke LJ’s understanding of that particular sentence was that it referred to information obtained by the officer on other matters, and as pointed out in paragraph 31, Woolf LJ’s emphasis was on whether or not the reasons given for an arrest were adequate had to be assessed objectively.

44. This can be illustrated by the facts in Taylor. At first instance, the judge held that, as the police constable could have reasonably obtained more information on the offence, she should have been able to give more detailed reasons in declaring the arrest, and on that basis the arrest was not lawful. On appeal, the Court of Appeal held that the judge erred in law in assessing the adequacy or otherwise of the reasons for the arrest on the basis of what information on the offence was reasonably available to the officer concerned (see paragraphs 29 to 31 of the judgment).

45. In paragraph 59 of his judgment in Taylor, Sedley LJ made it clear that what the arresting officer himself knew about the offence could not be a criterion of the assessment:

… the sufficiency of the words in no way depends on what is known to the arresting officer …

And in paragraph 60 he referred to the objective nature of the assessment:

The question of sufficiency has to be answered objectively; but one aspect of objectivity is the circumstances of the arrest …

46. If the law allowed the standard required of the giving of reasons for an arrest be lowered where the arresting officer himself did not have sufficient knowledge of the offence, then as a matter of logic it would follow that an arresting officer who knew nothing about the offence would not have to give any reason for the arrest. This is plainly not the law and cannot be a correct interpretation of the law. In R v Kulynycz (1970) 55 Cr App R 34, the Court of Appeal, while holding that the arrested person had been sufficiently informed at the police station of the reason for his arrest, also concluded that it was inadequate when in the street the arresting constable, who knew nothing about the offences, merely told the arrested person that he was suspected to be involved in certain offences committed in King’s Lynn (see p. 37).

47. In my view, the “information reasonably available to the officer” referred to by Woolf LJ means the information available to the officer in the objective circumstances at the time of arrest. This is why he held in Abbassy that, on the basis of the circumstances surrounding the arrest and the process of the arrest, the jury might possibly have concluded that, simple as it was, the “unlawful possession” reason given by the arresting constable was adequate.  This is completely in line with the judgment of Clarke LJ in Taylor.

48. Given that the legal requirement of giving reasons for an arrest is laid down for the purpose of protecting the basic human right of freedom of the person, the law should not lightly lower the requisite standard just for the convenience of law enforcement officers.

49. The defendant has not adduced any evidence to show that it is impracticable to require a law enforcement officer who is instructed to take over the custody of a target person to provide the essential factual grounds for the arrest. It is for the officer in charge of a case, who is responsible for uploading information on the interception and arrest of a suspected person onto the computer, to provide adequate information to enable frontline arresting officers to make a lawful arrest. I find it difficult to understand why the duty officer of Ta Kwu Ling Police Station did not obtain specific information on the case from Central Police Station, as a result of which the plaintiff was detained for 5 hours without knowing why. As Clarke LJ pointed out in paragraphs 34 and 35 of his judgment in Taylor, the law does not require the police officer to provide detailed particulars of the case at the time of arrest. In the circumstances of the present case, no one would insist that the police officer who declared arrest had to tell the plaintiff that the accusations against him were based on Mr Yeung’s statement and the business registration of J & C. I am further of the view that at the time of arrest, the officer did not have to tell the plaintiff why the document was suspected to be false, nor did he have to tell him how he had used the document.

50. On the other hand, I do think that at the time of arrest the officer should have told the plaintiff that the offence which he was suspected to have committed was in respect of the use of the J & C invoice dated 26 August 1996. On the facts of the present case, although knowledge of this essential ground for his arrest might not have enabled the plaintiff to offer any explanation on the spot which could result in his immediate release, at least he would have known for what specific matter he was detained. This is his right under The Basic Law of the Hong Kong Special Administrative Region.

51. Mr. Ip submits that a law enforcement officer may find it difficult to grasp what the essential facts of a suspected offence are. I can only define what they are in relation to the present case because, as indicated by the English authorities, the answer to this question turns on the facts of the particular case. As stated above, the case law has also made it clear that the arresting officer is not obliged to give the arrested person detailed particulars of the suspected offence, but the officer must provide some factual information on the crime so that the arrested person is aware of the basic factual grounds for his arrest. In the present case, information on the case number and the name of the suspected offence was of no assistance whatsoever to the arrested person.

52. Mr. Ip cites R v Kulynycz (1970) 55 Cr App R 34. That case concerned the jurisdiction of the Quarter Sessions, which was confined to dealing with persons lawfully apprehended in that district, and the issue on appeal was whether an arrest which was unlawful ab initio could subsequently become lawful upon sufficient reasons for the arrest being given. The Court of Appeal answered the question in the affirmative. It was beyond doubt that, by the time the case came to be tried, the defendant was already aware of the charge against him, and hence at the time of trial he was in lawful custody and the Court certainly had jurisdiction over him. As regards the Court of Appeal’s decision on the sufficiency of the information given in the police station, I think that the more recent cases referred to above contain more in-depth discussion of the relevant principles and are more helpful to me in adjudicating upon the present case.

53. The fact that the arrest made in the arrival hall was unlawful does not mean that the police had never lawfully arrested the plaintiff. After the plaintiff was taken to Central Police Station, DPC Chan Chi Ming clearly told the plaintiff the detailed reasons for his arrest and recorded them in the cautioned statement that he (the DPC) took from him. It is apparent from the explanations about the A18 invoice that the plaintiff gave in the cautioned statement that he understood the events pertaining to the offence which the police suspected him to have committed. Applying the principle in Lewis v Chief Constable of the South Wales Constabulary [1991] 1 All ER 206, the arrest became lawful from that moment on.

Failure to allow the plaintiff to put on a hood

54. Under cross-examination, the plaintiff initially said that in the course of being escorted from the police post in Lo Wu to the police vehicle, he asked a police officer why he was not allowed to put on a hood. Upon further cross-examination, he conceded that he had not requested to put on a hood.

55. PC 54373, who was responsible for escorting the plaintiff at that stage, gave evidence that at that time the plaintiff did not request to put on a hood. No arrangement was made for the plaintiff to put on a hood because the case at that time was not such as to render it necessary for the apprehended person to put on a hood for fear of premature exposure of his identity.

56. According to the guidelines issued by the police, a hood is used in order to avoid premature exposure of the identity of the detained person, which may prejudice a fair trial. For example, the mass media may take photographs of that person and the prosecution witnesses may see his face before going through an identification parade.

57. I agree that in the circumstances of the present case, the police had no duty at that time to arrange for the plaintiff to put on a hood. I also accept the police officer’s evidence and find that the plaintiff at that time did not make any request for a hood.

Use of handcuffs and iron chain on the way from Ta Kwu Ling Police Station to Central Police Station

58. The plaintiff gave evidence that when he was being escorted from Ta Kwu Ling Police Station to Central Police Station, he was not only handcuffed but was also bound at the waist by an iron chain. The plaintiff contended that the police unreasonably treated him as a criminal who had committed a serious offence. He said that he should not have been so treated because he had not committed any serious offence, had no tendency to commit suicide, had no history of violent behaviour and could not possibly have escaped.

59. On this matter, the Secretary for Justice called PC 52450, one of the police officers who escorted the plaintiff at that time, to give evidence. However, as the incident happened back in 2000, the notebook of this officer was destroyed before the plaintiff filed his claim and relevant records were nowhere to be found, as a consequence of which this officer could not recall what happened that day. He could only speak from his experience and say that, given the long distance between Ta Kwu Ling Police Station and Central Police Station and the need to ensure that the suspect in the vehicle could not escape or harm himself or the police officers in the vehicle, he believed that on that day at least handcuffs would have been used to make sure everyone was safe. He could not remember whether an iron chain was put round the plaintiff’s waist.

60. According to the evidence of Inspector Wong Chung Kong (黃頌剛), another witness called by the Secretary for Justice, it was for the sergeant responsible for escorting the plaintiff at that time to decide whether he should be handcuffed and chained up. Police record shows that the sergeant in charge at that time was Sergeant 12647, who resigned in August 2002. The Secretary for Justice has tried in vain to locate him and call him as a witness.

61. In this regard, I accept the plaintiff’s evidence. I find that he was handcuffed and chained up in the course of the journey from Ta Kwu Ling Police Station to Central Police Station.

62. In the course of arresting a person and escorting the arrested person, the police can use reasonable measures and force to prevent the arrested person from escaping. If, however, those measures and force exceed what is reasonably necessary, the police may be required to pay compensation to the arrested person. There are cases in which law enforcement authorities were ordered to pay compensation to arrested persons by reason of unreasonable use of handcuffs: see William Alan Terence Crawley v Attorney General, HCA 4675/1985, 13 November 1986; Fok Siu Wing (霍兆榮) v Independent Commission Against Corruption CACV 112/2000, 23 June 2000.

63. On the foregoing analysis, until the taking of the cautioned statement from the plaintiff, the police had not sufficiently informed him of the reasons for his arrest. It follows that when the plaintiff was being conveyed to Central Police Station, the arrest made by the police still failed to meet the legal requirements. The detention of the plaintiff during that stage and related measures, including the use of handcuffs and a chain, were civil wrongs, because the police had no right to use any force against the plaintiff, including the use of a chain or handcuffs, before they put the plaintiff under lawful arrest. Accordingly, the plaintiff is entitled to compensation in this regard.

64. In any event, taking into account the circumstances at that time, including the plaintiff’s earlier dialogue with and his attitude towards the police, the distance of the escort journey, the offence which the plaintiff was suspected to have committed, his previous record, and the fact that the police conveyed the plaintiff by using a police vehicle instead of public transport and that three police officers (including the driver of the police vehicle) were responsible for escorting the plaintiff, I hold that while the use of handcuffs can be regarded as reasonable, the use of chain cannot. In other words, even if I did not find that the arrest in question fell foul of the law, I would still hold that the use of a chain by the police during the journey from Ta Kwu Ling Police Station to Central Police Station went beyond what was reasonably necessary. The police are therefore liable to pay compensation to the plaintiff.

Refusal to grant bail

65. The plaintiff was taken away from Ta Kwu Ling Police Station at 4.43 p.m. on 1 June 2000 and arrived at Central Police Station at about 6.17 p.m. on the same day. From 6.32 p.m. to 8.15 p.m., DPC 22636 took a cautioned statement from the plaintiff.

66. At 7.50 p.m., Inspector Richardson, who was in charge of the plaintiff’s case, gave instruction that the plaintiff be detained until the following day when he was to be brought to the court.

67. The plaintiff claims that after the cautioned statement was taken, DPC 22636 discussed with him about bail and allow him to telephone his friends and relatives to ask them to bring money to the police station to bail him out. The plaintiff says that the DPC initially suggested that $500 was needed as bail money, but then increased the figure to $2,000, and then to $8,000, and finally to $20,000. When the plaintiff managed to contact his nephew and ask him to bring $20,000 to the police station to bail him out, the DPC informed him that the police had decided to refuse him bail.

68. The plaintiff called three witnesses to testify that they had been asked by the plaintiff to make arrangements to bail him out. His nephew Mr. Tam gave evidence that the plaintiff telephoned him and asked him to take $20,000 to Central Police Station to bail him out but later told him he did not have to do so because the police had refused to grant bail.

69. On the other hand, in his testimony DPC 22636 denied having mentioned the various bail money figures. He denied that he had repeatedly varied the bail conditions. He agreed that the plaintiff had asked him whether he could get bail, but his evidence was that he told the plaintiff that the decision was not to be made by him but by his superior. After he had taken the cautioned statement, his superior instructed him that the plaintiff was to be denied bail because he did not have a fixed place of residence in Hong Kong. The DPC then relayed the same message to the plaintiff.

70. The plaintiff’s case is that he had told the DPC a number of his addresses in Hong Kong, and hence the police had no reason for not granting him bail.

71. DPC 22636 agreed that in the course of taking the cautioned statement, the plaintiff gave him an address at Sau Mau Ping Estate and he informed Inspector Richardson of the same. The DPC denied that the plaintiff had given him other addresses in Hong Kong. He said that after he informed Inspector Richardson of the above, the Inspector maintained his decision to refuse bail.

72. In my view, in dealing with the plaintiff’s claim in respect of the refusal to grant bail, two distinct questions must be considered. The first question is whether the inspector’s refusal to grant bail was reasonable; the second question is whether, being aware of the inspector’s decision to refuse bail, DPC 22636 proceeded to discuss with the plaintiff about the bail money and repeatedly increase the amount of the bail money in order to fool the plaintiff.

73. Based on the computer record of the police, I find that at 7.50 p.m. the inspector decided not to grant bail to the plaintiff for the reason that he had no fixed place of residence in Hong Kong. At that stage, the information available to the inspector included: the plaintiff provided a residential address in Shenzhen to the officers in the Report Room when he arrived at Central Police Station; prior to the arrest, on 7 April 2000 the police went to the address stated in the annual return of AV Limousine Services Limited which the plaintiff filed with the Companies Registry, and on 17 May 2000 they went to the address in Ma Mei Ha, Fanling which the plaintiff registered in relation to his mobile phone, but they could not find him at either of those addresses. The police also checked the plaintiff’s travel records, which showed that he left Hong Kong on 30 March 2000. It was only on 1 June the same year when he entered the territory from Lo Wu that the police were able to arrest him. Although using a false instrument was not an offence involving violence, upon conviction the plaintiff might be sentenced to imprisonment. In these circumstances, I take the view that the inspector could reasonably refuse bail.

74. Subsequently, the DPC informed the inspector of the plaintiff’s address at Sau Mau Ping. However, in light of the fact that the address provided by the plaintiff in the Report Room was an address in Shenzhen and that he was not in Hong Kong in the two months preceding the day of the arrest, the inspector had reasons to believe that the plaintiff’s Sau Mau Ping address was not his fixed place of residence. Therefore, it cannot be regarded as unreasonable for the inspector to maintain his decision not to grant bail.

75. As the inspector’s decisions to detain the plaintiff and not to grant bail were not unlawful, the plaintiff would in any event be detained until 2 June 2000 when he was to be brought to the Western Magistracy. DPC 22636 had no power to overturn the inspector’s decisions.

76. For the above reasons, the plaintiff cannot be granted any civil remedy in respect of his claim that DPC 22636 put forward various amounts of bail money. This is because the plaintiff did not suffer any damage as a result. Under the common law, a plaintiff claiming compensation for misfeasance in public office must prove that he has suffered damage as a result of the misfeasance on the part of the public officer concerned: see Watkins v Secretary of State for the Home Department [2006] 2 AC 395.

77. On the question of whether DPC 22636 in fact repeatedly offered bail to the plaintiff and increased the bail money figure, I do not consider that the witnesses called by the plaintiff can prove his allegation. Those witnesses can only prove that in the evening of 1 June 2000 the plaintiff telephoned his friends and relatives and asked them to bring money to the police station to bail him out. Two of the witnesses, namely Lai Siu Fong (黎少芳) and Tam Po Ka (譚保家), only said that the plaintiff told them the police required that $20,000 be put up for bail, and Tam Po Ka further said that the police later refused bail. But neither of them mentioned that the police had suggested lesser amounts of bail money. The evidence of the third witness Ho Yik Ho (何亦豪) is immaterial because all he can prove is that he received one telephone message and that he heard about the other matters from a friend called Jimmy Leung, who had not been called as a witness. The plaintiff has not explained why he did not call Jimmy Leung to testify.

78. I fail to see any motive for DPC 22636 to repeatedly increase the amount of the bail money. In this regard I accept his evidence and reject the plaintiff’s allegation. I do not believe that the DPC fooled the plaintiff in the alleged way.

79. There can be a number of explanations as to why the plaintiff telephoned his friends and relatives and asked Mr. Tam to bring $20,000 to the police station to bail him out. It might be based on the plaintiff’s own conjecture about bail money, or perhaps he might have misunderstood what DPC 22636 or other police officers said. It is not necessary for me to make any speculation because in any event, on the above analysis, the plaintiff has not suffered any damage which can form the basis of a claim for compensation.

80. Nor do I believe that the plaintiff had told DPC 22636 his other addresses in Hong Kong. On his own evidence, none of those addresses in Hong Kong was his fixed place of residence. Therefore, even if he had indeed informed the police of those addresses, it would not affect my conclusion that the inspector’s decision to refuse bail was reasonable.

Did the DPC repeatedly induce the plaintiff to plead guilty?

81. In his testimony, the plaintiff also mentioned that DPC 22636 had repeatedly told him that his case did not concern any serious matter and that if he pleaded guilty he would not be sentenced to imprisonment or even be fined.

82. DPC 22636 denied having said these things.

83. I do not believe that the DPC had said these things, because they were not consistent with the decision of the police to detain the plaintiff.

84. In any event, the plaintiff did not plead guilty before the court and hence did not suffer any damage. Applying the legal principle mentioned above, this matter does not form a cause of action for any civil remedy.

Quantum

85. Among the items of compensation claimed by the plaintiff, item (1) is for $8,000 in respect of car rental. The plaintiff had withdrawn the relevant claim in another action for damages arising from a traffic accident, and he is debarred from making the same claim in another action. Furthermore, no cause and effect relationship exists between this item of claim and the cause of action herein. Therefore, this item cannot be allowed.

86. Item (2), i.e. expenses in respect of legal fees, has been struck out.

87. The fee for filing the claim forms part of the costs of the present case and shall be dealt with in the costs order to be made by the court.

88. Item (4) concerns the loss which the plaintiff allegedly suffered due to price difference in the sale of the watch/watches. The plaintiff has not adduced any reliable evidence to establish the loss due to price difference, and I cannot see how it can be said that this so-called loss due to price difference was caused by the police. As discussed above, at the time of the arrest, there was sufficient evidence to support a reasonable suspicion which in turn justified the arrest.

89. Items (5), (6) and (8) are simply unfounded. The plaintiff does not have any evidence to prove his losses in these areas or the extent of such losses, and again I fail to see how these so-called losses arose from police action. The plaintiff alleges that his company closed down because his business competitors told his customers that he had been arrested. I have found that the police had sufficient reasons to arrest him at that time, and the police should not be made liable for the conduct of other people. Furthermore, the police subsequently decided not to offer any evidence in the prosecution against the plaintiff, and it is open to him to rely on this to rebut what his competitors said.

90. For these reasons, these items of claim are not established.

91. Concerning the alleged mental loss, physical loss and loss of integrity, the plaintiff claims a sum of $1,080,000 which is calculated on the basis of his income for 3 years. There is a total lack of objective evidence from the plaintiff to prove the alleged annual income. And I do not see why the police action can be said to have led to the plaintiff’s loss of income for 3 years. Nor has the plaintiff adduced any medical evidence to prove that he suffered from any mental disorder or displayed any medical symptom, and I cannot find anything in his testimony which indicates what physical loss he has suffered.

92. In respect of those items of the plaintiff’s claim which I have allowed, having considered the facts of the present case and the relevant authorities, including Leung Kwai-yu v Attorney General, HCA 2349/1972, 28 June 1973; Crawley v Attorney General,HCA 4675/1985, 13 November 1986; and the judgment dated 6 February 2003 in Fok Siu Wing v Independent Commission Against Corruption,CACV 247/2002, I hold that the plaintiff shall be awarded compensation in the sum of $25,000 together with interest thereon at 2% per annum from 25 May 2006 until payment.

93. I do not consider it appropriate to award punitive damages in the present case.

94. In view of the fact that neither party is wholly successful, I make an order nisi that each party shall bear his own costs herein.