XCHRX CHAN KWOK WAI v. SECRETARY FOR JUSTICE

HCPI 134/1999

IN THE HIGH COURT OF THE

HONG KONG SPEICAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.134 OF 1999

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R U L I N G

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1. This is an application by the defendant by summons dated 14 December 1999 for an order that the amended Statement of Claim in the present proceedings be struck out on the ground that it is an abuse of the process of the court.

2. In this action, the plaintiff claims for damages as a result of personal injuries sustained by him as a result of assaults and beatings by police officers on 1 and 3 January 1995 when he was in police custody, having been arrested by them on the afternoon of 1 January 1995. It is alleged by the plaintiff that these beatings and assaults at the hands of various policemen, took place during police interviews in the High Street Police Station. Such alleged assaults are, needless to say, denied by the defendant.

3. The relevant background giving rise to this application is as follows. As already stated, the plaintiff was arrested by police on 1 January 1995. Subsequent to that arrest, the plaintiff in the present proceedings was charged with one count of conspiracy to rob and another count of possession of firearms without a licence. In respect of these charges, he was tried with another accused jointly in HCCC90/1995. That trial came before Burrell J in September 1995. The prosecution's case against the plaintiff (being the 2nd accused in that trial) was based wholly on three cautioned statements signed by him. At the start of the criminal trial, a voire dire was held to determine the admissibility of those cautioned statements. For the purposes of challenging the admissibility of those cautioned statements in that criminal trial, the plaintiff alleged in the voire dire that he had been beaten and assaulted by police officers on 1 and 3 January 1995 while he was in police custody. It was also alleged that the cautioned statements came about as a result of those assaults and beatings by police officers. After hearing the evidence adduced in the voire dire, Burrell J ruled that all the cautioned statements made by the present plaintiff be admissible in evidence. A jury was then empanelled for the purpose of the trial proper itself. Before the jury, the same allegations of assaults by police officers as had been canvassed in the voire dire before the Judge were repeated. In his summing up, Burrell J had this to say to the jury concerning the cautioned statements :-

"It is plain, it is not, members of the jury, the prosecution case against both these defendants depends on Exhibits 33 to 37 inclusive, for the 1st defendant; and on Exhibits 42 to 44 inclusive, for the 2nd defendant, that is, the written statements. In fact, I shall elaborate in a moment and tell you that the prosecutions case against both defendants on both counts depend entirely on their statements. It must be clear therefore about a number of matters in relation to those statements."

And also :-

"Secondly, it is the prosecution's case that these statements contain admissions which amount to confessions by each defendant that they are guilty of both charges. It is your job to decide two issues in relation to such confessions. Firstly, you must decide whether or not the defendant actually made the confession. That means you must decide if the words attributed to him are in fact his own words and signed by him as such. Secondly that only if you are sure that he did make the confessions, you consider whether or not what he said was true. In determining that you should take into consideration all the circumstances in which you find it was or may have been made. If for whatever reason you are not sure whether a confession was made or not sure whether it was true, then you must disregard it. If, on the other hand, you are sure both that it was made and it is true, then you may rely on it.

In our case the defence submit that the 1st and 2nd defendants contributed nothing to the contents of the statements. It is their case, which I remind you they do not have to prove, it is for the prosecution to prove their guilt, that the police concocted all the statements based on such information as they had plus their own invention and got each of the defendants to sign their statements and write declarations which appear in them in their own handwriting because they ill-treated, assaulted and tortured them into submission so they wrote and signed in fear, fear of what had happened to them and fear of what might happen to them again if they didn't sign. If you think that is or maybe true, you will acquit the defendants. Before you may convict them, you must be sure it is not true."

4. Having so directed the jury, at the end of the trial the jury acquitted the present plaintiff in the criminal case of all the charges that he faced.

5. The plaintiff now brings the present civil proceedings. The alleged assaults in the present proceedings are the same assaults that were alleged in the voire dire before Burrell J as well as in the criminal trial before the jury in HCCC90/1995.

6. There is no dispute between the parties in relation to these background facts. The point taken by the defendant in this application is that Burrell J, in ruling the cautioned statements of this plaintiff admissible in the voire dire in the criminal case, could only have made that ruling on the basis that he was satisfied beyond reasonable doubt that there had been no assault or any ill-treatment of the plaintiff at the hands of the police officers. That, says the defendant, is a final decision by a court of competent jurisdiction such that the institution of the present civil proceedings by the plaintiff constitutes a collateral attack on a final decision of a court of competent jurisdiction, and is therefore an abuse of the court's process.

7. In so submitting, the defendant relies on the decision of the House of Lords in the case of Hunter v. Chief Constable Of the West Midlands Police and Others [1982] AC 529. In that case, the background facts were very much like the present case with one exception, which is, in Hunter's case the jury convicted Hunter of the criminal charges which he faced whereas in the present case, the plaintiff was acquitted of both counts by the jury.

8. The defendant relied generally on the judgment of Lord Diplock in Hunter's case but in particular to one passage at page 542 which reads :-

" The fact that the whole matter of the circumstances in which the confession was obtained was gone into a second time before the jury and that the jury, in view of the judge's direction to them, must clearly also have been satisfied beyond reasonable doubt that Hunter's account of the assaults upon him by the police was a fabrication does not affect the finality of the judge's ruling, though it would exacerbate the public scandal to the administration of justice that would be involved if Hunter, by changing the form of the proceedings to a civil action, were to be permitted to set up in that action the same case that must have been decided against him not only once but twice, even though technically it was only the first of those decisions that eventually qualified as the final decision against him by a competent court upon the very question that he seeks now to raise."

9. The defendant relied upon this passage of Lord Diplock's judgment to argue that once a judge in a criminal trial has ruled the statements to be admissible in evidence (thereby rejecting the allegations of assaults), at the end of the trial, assuming the trial judge did not in any way alter or review that ruling of his, that would be a final decision of a court of competent jurisdiction. This, the defendant says, would be so irrespective of the verdict brought back by the jury.

10. On the other hand, the plaintiff submits that what was said in the judgment in Hunter's case by the House of Lords was said in the context to the facts of that case which is fundamentally different from the present case because the plaintiff in the present case was acquitted by the jury after trial. Therefore, it is not appropriate to apply what was said in Hunter's case to the present case. Secondly, the plaintiff submits that Burrell J's ruling in the voire dire cannot be a final decision in the light of the jury's acquittal at the end of the trial.

My decision

11. A court ought to be slow to strike out a statement of claim and dismiss an action as frivolous and vexatious or an abuse of the court's process unless it is clear that that is the proper course to be taken.

12. The issue which I have to decide for present purposes can be summed up in the words of Lord Halsbury in the case of Reichel v. Magrath [1889] 14 AC 665 at 668 where he says :-

"... 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 to be permitted by changing the form of the proceedings to set up the same case again."

13. I have to ask myself has the question been disposed of by the earlier criminal proceedings. In other words, did the acquittal of the jury leave open the question whether the present plaintiff had been assaulted by police officers as he alleged - a question which was decided against the present plaintiff by Burrell J in the voire dire proceedings.

14. Quite apart from the passage of Lord Diplock's judgment relied upon by the defendant and which has been cited above, there are other passages in the judgment of the House of Lords in Hunter's case which points in a direction different from that argued by the defendant in the present case. One such passage, also from Lord Diplock and also at page 542 of Hunter's case, read as follows :-

"... But his ruling became final when the trial ended with the return of the jury's verdict of guilty and the pronouncement by the judge of the mandatory sentence of life imprisonment. Bridge J thereupon became functus officio. His ruling that the confession was not obtained by the use of violence by the police, as Hunter had alleged, could thereafter only be upset upon appeal to the Court of Appeal (Criminal Division)." (my underlining)

15. The first point that should be noted from what was said in this cited passage is that the present plaintiff could not, even if he had wished to challenge the ruling of Burrell J in the voire dire, have launched an appeal since he was acquitted at the end of the day by the jury of all the charges that he faced. Secondly, these words indicate that the ruling by the trial judge only became final with the return of the jury's verdict of guilty. This was not the situation in the present case.

16. I have also been referred to a ruling by Keith J (as he then was) in the case of The Queen and Chu To Chung, HCCC368/1994. That case concerned a retrial after the defendant's conviction had been quashed on appeal. In the initial trial, a voire dire was held to determine the voluntariness of cautioned statements. The trial judge in the initial trial found as a fact that the admissions were made voluntarily. The grounds of appeal did not include a challenge to the judge's findings of fact on the voire dire. The conviction was quashed on grounds which were unrelated to those findings in the voire dire. In those circumstances and on the retrial, Keith J (as he then was) held that a second voire dire must be embarked upon at the retrial. Accepting that the judge's reasoning for so holding was based on the decision in R v. Watson [1980] 1 WLR 991, nevertheless that ruling indicates that where a conviction has been quashed on appeal, the ruling by the trial judge at the initial trial on a voire dire that admissions allegedly made by a defendant to police officers were admissible in evidence "is not a decision which has the characteristics of the kind of finality which would justify the invocation of the doctrine of abuse of process".

17. Accordingly, I have come to the conclusion that on the facts of the present case where the jury has acquitted after trial, that acquittal leaves open the question of assault alleged by the present plaintiff such that it is not an abuse of court's process for the plaintiff to commence the present civil proceedings. Put in a different way, by reason of the jury's acquittal at the end of the day, the decision of Burrell J in the voire dire proceedings is one which has not "the characteristics of the kind of finality which would justify the invocation of the doctrine of abuse of process", to borrow the words of Keith J in the case of Chu To Chung.

18. In arriving at this conclusion, I share the view expressed by Mr Mok for the plaintiff that what was said in the judgment in Hunter's case has to be read in the context of the facts as they were in that case.

19. Accordingly, the application by the defendant to strike out is dismissed with costs.