LEUNG KWOK HUNG v. SECRETARY FOR JUSTICE

[English Translation - 英譯本]

CACV 123/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 123 OF 2009

(ON APPEAL FROM HCA NO.1124 OF 2006)

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BETWEEN

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JUDGMENT

Hon Cheung JA (giving the judgment of the Court):

Plaintiff’s claim

1.  The plaintiff alleged that on 1 June 2000 the police unlawfully arrested him, that after the arrest the police abused their power in that they did not let him put on a hood to conceal his identity and on the way when they were escorting him to a police station, they not only secured his hands with a pair of handcuffs, but also fastened an iron chain round his waist.  He also alleged that the police did not allow him bail and that was an abuse of their office.  He complained that the police infringed upon his civil rights, as a result of which he suffered serious losses; and he claimed against the Secretary for Justice for compensation of around $2,800,000.

2.  The case was heard before Mr. Justice Johnson Lam.  Before the trial began, Lam J granted the defendant’s application and struck out parts of the plaintiff’s Statement of Claim.  At the trial, Lam J held that the plaintiff had been unlawfully arrested by the police and that the arrest and related actions taken by the police against the plaintiff at the material time were civil wrongs, because the police had no power to use any force against the plaintiff, including chaining him up or handcuffing him, before they lawfully arrested him. Lam J thus held that the plaintiff was entitled to compensation in this regard.  However, he also held that the unlawful arrest did not continue up to the end of the period of custody.  Lam J awarded compensation in the sum of $25,000 to the plaintiff and ordered that each party was to bear his own costs.  The plaintiff appeals against the judgment.

Facts

3.  The facts were that the plaintiff, a Hong Kong resident, came back to Hong Kong from the Mainland on 1 June 2000. He was stopped by a police constable at the Lo Wu Control Point and arrested for the offence of Using a False Instrument.  In the afternoon of the same day, the plaintiff was escorted to Ta Kwu Ling Police Station for temporary custody.  At the material time the police constable did not let him put on a hood.  Later, the plaintiff was escorted to Central Police Station.  In the evening of the same day, the plaintiff was escorted to North Point Police Station and was held in custody there.  At about 2:25 p.m. on 2 June 2000, the police formally charged him with Using a False Instrument.  In the afternoon of that day, the plaintiff was escorted to appear at Western Magistracy.  The magistrate adjourned the case to 16 June for a further mention and granted the plaintiff cash bail $300.  On 16 June 2000 the police decided not to prosecute the plaintiff and the Court dismissed the charge of Using a False Instrument against him.

Reason for the arrest

4.  The plaintiff was arrested by the police for the following reason: On 22 June 1996, a traffic accident happened, which involved a private car belonging to the plaintiff and a police vehicle.  The plaintiff filed a claim with the District Court, claiming against the driver of the police vehicle involved in the accident and the Commissioner of Police for compensation.  One of the items of compensation was car rental in the sum of $8,000.  The Commissioner of Police filed a defence through the Secretary for Justice.  On 28 July 1999, solicitors acting for the plaintiff submitted to Ms. Rickie Chan, who was a government counsel of the Civil Division of the Department of Justice, an invoice (no. A18) to support the plaintiff’s claim for compensation in respect of the car rental. The invoice was purported to be issued by the J & C Limousine Service Company (“J & C”) on 26 August 1996.  From the records kept by the Business Registration Office, government counsel discovered that on 26 August 1996 J & C had not yet been registered, so they suspected that the invoice was a false instrument.  On 9 December 1999, the Secretary for Justice referred the matter to the police for investigation.  On 6 April 2000, the police questioned Yeung Man Hong [transliteration of 楊萬康]the proprietor of J & C and took a statement from Mr. Yeung on the same day.

5.  According to the findings made by Lam J, at 1 p.m. on 1 June 2000 a police constable 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 the police constable arrived at the scene, immigration officers showed him a confidential document, which indicated that the “target person” was involved in a case of Using a False Instrument being handled by the Central Police Station, and that the “target person” was the plaintiff.  The police constable declared to the plaintiff that he was under arrest because he was involved in a Central Police Station case of Using a False Instrument, case number CRN00004982.  At that time the police constable took out a pen and a piece of paper and wrote down the details and information about the arrest of the plaintiff.  Then he escorted him to Lo Wu police post and made a report to the duty officer.

Judgment of Lam J

6.  Lam J said he believed that on that day when the police constable arrested the plaintiff, the constable did tell the plaintiff the reason for arresting him was that he was involved in a Central Police Station case of Using a False Instrument, but even so he still had to consider whether the reason for the arrest declared by the police constable to the plaintiff at that time met the legal requirements of a “lawful arrest”.  Lam J pointed out that at the time of the arrest of the plaintiff Mr. Yeung had already given a witness statement to the police, so the police did have reasonable grounds for suspecting that the plaintiff had committed the offence of Using a False Instrument.  However, Lam J held that what the police constable told the plaintiff when he put him under arrest, namely the plaintiff was suspected of being involved in a case of Using a False Instrument, did not meet the legal requirements.  The police constable should have told the plaintiff clearly the essential factual grounds for his arrest.  The reason for the arrest given by the police constable at the time of arrest could not enable the plaintiff to clearly understand what events led to his arrest.  The case number uttered by the constable did not have any real meaning to the plaintiff.  The constable did not tell the plaintiff when and where the offence in question was committed or what document was involved.  The reason for the arrest which the constable told the plaintiff did not contain any information which could have afforded the plaintiff an opportunity to provide an explanation. Therefore Lam J held that the arrest of the plaintiff in the arrival hall in Lo Wu was an unlawful arrest.  Six hours after the plaintiff was arrested, in the Central Police Station a DPC took a cautioned statement from him.  The DPC clearly explained to him in detail the reasons for his arrest and recorded them in the cautioned statement.  The plaintiff indicated to the DPC that he understood the allegations made by the police against him and he gave an explanation to the DPC about matters concerning the invoice.  Lam J held that the unlawful arrest of the plaintiff became lawful from that moment onwards.

Ground of appeal

7.  The ground of appeal put forward by the plaintiff is that “an unlawful arrest can never become a lawful arrest”.  We do not agree with this proposition.

Protections under the law

8.  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”.

9.  Article 5 of the Hong Kong Bill of Rights in the Hong Kong Bill of Rights Ordinance, Cap.383, Laws of Hong Kong provides the following protections concerning the liberty and security of person of the people in Hong Kong:

1) “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)) .

2) “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)).

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

Unlawful arrest became lawful arrest

10.  Owing to the fact that the plaintiff was not told of the charge against him at the time when the police constable arrested him in the arrival hall in Lo Wu, Lam J held that the plaintiff was unlawfully arrested by the police at that time.  The Secretary for Justice did not appeal against this holding.

11.  Arrest is a continuing act.  It starts from the moment when the person concerned is taken into custody and continues up to the moment when he is released.  In this process, even if at the moment when the plaintiff was taken into custody he was not aware of the charge against him, but if at a later time he was informed of the reasons for his arrest and had the opportunity to make an explanation, then from that moment onwards the arrest was lawful, see: Lewis and another v. Chief Constable of South Wales Constabulary [1991] 1 All ER 206.  For the above reasons, we agree with Lam J’s holding that 6 hours after the plaintiff was unlawfully arrested, the arrest became lawful.

Matters about the hood

12.  Lam J accepted the explanation given by the police constable, i.e. after the plaintiff was put under arrest he did not request to put on a hood, and the situation 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”.  It was for these reasons that the police did not let the plaintiff put on a hood.  The plaintiff said that he did not request to put on a hood because at that time the police constable did not tell him in advance where he was going to be escorted, so that he could not ask the police constable in time to let him put on a hood. Our view is that even if that is true, it does not follow that the police constable intended to humiliate him, so that he did not conceal his identity and deliberately let the public see how he was being escorted away.

Matters about bail

13.  Lam J accepted the evidence of the police constable, i.e. 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 constable then relayed the message to the plaintiff.  Lam J also accepted the constable’s evidence that he did not mention any bail money figures to the plaintiff, nor did he repeatedly vary the bail conditions.  This is a finding of fact.  We do not see any error on the part of Lam J in making this finding.

Police constable induced the plaintiff to plead guilty

14.  The plaintiff alleged that the police constable had repeatedly told him that the offence he committed was not a serious crime and that if he pleaded guilty he would not be sentenced to imprisonment or even be fined.  Lam J found that he did not believe that the constable had said these things to the plaintiff.  Lam J held that in any event, the plaintiff did not plead guilty before the Court and hence did not suffer any damage.  We agree with Lam J’s holding.

Using a false instrument

15.  The allegations made by the plaintiff against the Secretary for Justice included the following:

“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.”

16.  Lam J dealt with this allegation in the following way:

“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 was 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 that 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.”

17.  The appellant submitted that Lam J considered only section 69 of the Crimes Ordinance, but he overlooked section 73.  Section 69 of the Ordinance defined the meaning of a false instrument, while section 73 defined the meaning of using a false instrument.  Our view is that even though Lam J did not specifically mention section 73 in paragraph 6 of his judgment, in fact he had dealt with the provision.  In any event, the Secretary for Justice sent the letter only after the plaintiff filed the Writ of Summons on 25 May 2006. Therefore this event could not be a cause of action.

Quantum

18.  The plaintiff claimed the following 8 items of compensation:

(1) “I claim compensation in the sum of … HK$8,000, 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 … HK$300, being the expense paid on 2 June 2000 for the voluntary lawyer service”;

(3) “I claim compensation in the sum of … HK$1,045, being the fee paid when I filed the claim with the court by myself”;

(4) “I claim compensation in the sum of … HK$90,000, 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 … HK$90,000, being the difference in the credit card interest”;

(6) “I claim compensation for the loss that I sustained as a result of the closedown of AV Car Rental Co.  I take thirty thousand dollars as my median income and arrive at … HK$1,080,000, 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 … HK$1,080,000”;

(8) “I claim compensation in the sum of … HK$400,000, being the rent (for a term of 10 years) that I paid for my investment in Mainland China”.

19.  Lam J’s decision in respect of each of these items was as follows:

“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 barred 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 parts 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 (item 7) 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.”

20.  The plaintiff only appeals against the decision regarding items (4), (5), (6), (7) and (8) of his losses.  We do not detect any error on the part of Lam J in his decision regarding these items.  The plaintiff simply failed to provide sufficient and reasonable evidence to support his claim.

21.  The plaintiff pleaded for exemplary damages against the defendant in respect of his losses, but was refused by Lam J.  Bearing in mind that Lam J held that the present case did not involve abuse of police power, although the reason for the arrest which the police constable told the plaintiff did not comply with the legal requirements, no abuse of power or authority of office in any way was involved in this case. Therefore, Lam J’s decision is correct.

Fresh evidence in the appeal

22.  The plaintiff asks this Court to accept 3 documents as fresh evidence in the appeal.  The first document is his statement given to the Complaints Against Police Office.  Its content is about whether the police had told him that he could be granted bail but at the same time deliberately increased the bail amount, so that in the end he could not be bailed out.  The plaintiff said that in this statement he provided the names, addresses and telephone numbers of 2 witnesses who could support his case.  However, subsequent to that the police never asked him for any information about these 2 witnesses and did not make any inquiries of these 2 witnesses, with the result that they did not have the opportunity to confirm whether the account given by the plaintiff was true.  The second document was about business dealings between the plaintiff and J&C before 1 April 1997, which serves to prove that Mr. Yeung lied when he said that before that day he did not know the plaintiff and that he had no business dealing with the plaintiff’s company.  The third document is a record which shows that before the aforesaid day there were already business dealings between J&C Company and the plaintiff.

23.  We do not think that these fresh documents meet the requirements concerning reception of fresh evidence by an appellate court in an appeal.  The reasons are: the plaintiff failed to justify why he could not produce these documents at trial, and these documents would not have an important influence on the decision made.

1) Concerning the matters about bail, the plaintiff called 3 witnesses to prove that in that evening he had contacted them and asked them to make arrangements for bailing him out.  The finding made by Lam J was that he did not consider that these witnesses could prove the plaintiff’s allegations that the DPC had mentioned bail money figures to him and repeatedly increased these figures.  Lam J found that these witnesses could only prove that in that evening the plaintiff telephoned his friends and relatives and asked them to bring money to the police station to bail him out.  However, it was not mentioned in their evidence that the police had suggested lesser amounts of bail money.  One of the witnesses heard about this matter from a friend called Jimmy Leung, who had not been called as a witness.  The plaintiff did not explain why he did not call Jimmy Leung to testify.  This Jimmy Leung was one of the witnesses mentioned by the plaintiff in his statement.

2) As for matters concerning business dealings between the plaintiff and J&C, Lam J in his judgment dated 10 March 2009, which dealt with the striking out of part of the claims in the plaintiff’s Statement of Claim, stated in no uncertain terms that the invoice involved in that case was a false instrument.  Lam J also held that even if what the plaintiff said in the cautioned statement about the business dealings between he and J&C were true, that still could not rebut the allegation that the document in question was a false instrument.

24.  For the above reasons, we do not accept such fresh evidence.

Conclusion

24.(sic)        We dismiss the appeal and order that the plaintiff shall pay the costs of this appeal.