KHAN ASAF NAWAZ v. SECRETARY FOR JUSTICE on behalf of COMMISSIONER OF POLICE

DCCJ 5282/2018

[2023] HKDC 605

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5282 OF 2018

------------------------

------------------------

------------------------

JUDGMENT

------------------------

A.  Introduction

1.  On 14 February 2016 at about 1940 hours, Au Chi Shing (“the Deceased”) was found lying motionless on the pavement between Kiu Fat Street and Kiu Wong Street in Tin Shui Wai.   A report to the 999 emergency service was made.   He was taken to hospital and was certified dead at 2029 hours.

2.  An autopsy was performed.  It was concluded that the Deceased died of multiple blunt trauma injuries which were consistent with an assault.

3.  Prior to his death, the Deceased was employed by Guardway Security Guarding Services Limited (“Guardway”) as a dayshift security guard at Wing Sum Construction Site on Kiu Wong Street, Tin Shui Wai (“WS Construction Site”).   WS Construction Site was approximately 150 m (or 1-2 minutes walking distance) from where the Deceased was found.

4.  The plaintiff used to work as a nightshift security guard at WS Construction Site.  He was arrested on 22 February 2016 for murdering the Deceased.   Two days later, he was charged jointly with Nawaz Ahsan (“Ahsan”), Arbaz Muhammad (“Muhammad”) and Nawaz Mohsin (“Mohsin”) for the offence of murder.  The plaintiff is the elder brother of Ahsan and Mohsin.

5.  The plaintiff had been remanded in custody until 13 August 2016 when he was released by the Magistrate upon the prosecution withdrawing the charge against him.

6.  The prosecution of Ahsan, Muhammad and Mohsin proceeded.   Eventually, they pleaded guilty in the Court of First Instance (“the CFI”) to the alternative charge of manslaughter and were sentenced to imprisonment of 10 years, 5 years and 7 years respectively (see [2018] HKCFI 1130).   The subsequent appeal of Ahsan against his sentence was dismissed by the Court of Appeal (see [2019] HKCA 459).

7.  By this action, the plaintiff claims damages, including exemplary damages, against the Commissioner of Police as the defendant for malicious prosecution.   It is his case that the police “wrongfully unlawfully and maliciously charged P with, and prosecuted P for, the serious crime of murder, without reasonable or probable cause, and without any evidential basis whatsoever” and that the police “did not apply to withdraw the prosecution against P until 13^th August 2016, when P had been detained, for an alleged crime which as D was fully aware P had never committed, for around 173 days (from 22^nd February 2016 to 13^th August 2016”.[1]

8.  The defendant, represented by the Secretary for Justice, denies the claim.

B.  The issues

9.  The sole cause of action relied on by the plaintiff is malicious prosecution.

10.  The applicable law is well established.  Both sides accept the correctness of the following statement from Clerk & Lindsell on Torts, 23^rd edition at para 15-13:

“In an action for malicious prosecution the claimant must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him by the defendant on a criminal charge…; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; and fourthly, that it was malicious.  The onus of proving every one of these is on the claimant.”

11.  It is common ground that the first two elements are satisfied,[2]   and the trial focused on whether the prosecution was (a) without reasonable and probable cause and (b) malicious.

12.  In terms of evidence at trial:

(a)  The plaintiff testified and called no witness.

(b)  The defendant called Superintendent Ho of the Hong Kong Police Force (“SP Ho”) to give evidence.   He, then a Senior Inspector of Regional Crime Unit 2B of New Territories North, was the officer-in-charge of the criminal investigation regarding the death of the Deceased.

(c)  There is no dispute over the documentary evidence contained in the trial bundles (“the Bundle”) including, most notably, the investigation report prepared by SP Ho (“the Investigation Report”).

C.  Material evidence

13.  The Investigation Report contains a chronological account of the investigation carried out by SP Ho and his team from February 2016 (when they were tasked with the investigation) to September 2018 (the time of Ahsan’s appeal).  The report is supplemented by other documents in evidence, such as screen capture of CCTV footages at LRT stations, Octopus history enquiry records, statements taken by the police of various witnesses, the facts admitted by Ahsan, Muhammad and Mohsin in the CFI that formed the basis of their convictions and sentences, the transcript of the sentencing hearing in the CFI ([2018] HKCFI 1130) and the Reasons for Judgment of the Court of Appeal ([2019] HKCA 459).

14.  At the trial, SP Ho gave evidence in line with the Investigation Report.  The plaintiff neither disputed the entries therein nor challenged the documentary evidence in support of it.  I place full weight on the report and the supporting documents.

15.  In their closing submissions, the defence counsel recounted the investigation in four stages.  I basically adopt their scheme in setting out the material information known to the police at each stage of their investigation.

Stage 1: Preliminary investigation and enquiry

(a)  The police recovered evidence from the scene (eg blood stains) and appealed to witnesses in the vicinity for information (eg through questionnaire).

(b)  Preliminary investigation confirmed that the background of the Deceased was clear.

(c)  The autopsy found that the Deceased died of multiple injuries.  There was bleeding in the abdominal cavity and laceration of the liver and right kidney.  The laceration of the liver was such as to cause a subscapular haematoma which had burst and which was the likely cause of the blood to the abdominal cavity.  There were also fractures to the rib cage, some of which were caused by blunt impact trauma when the Deceased had still been alive and as such could have impaired his respiratory movement and further contributed to his death.  There was also a hexagonal mark to the face, which was an inter-dermal bruise caused by a localized blunt trauma.  The multiple blunt trauma injuries were consistent with an assault.

(d)  SP Ho considered it unlikely that the Deceased had been robbed, as the property on the Deceased’s body (including two mobile phones, a gold ring and some cash) had not been taken away.  The investigation therefore focused on what happened at WS Construction Site or after the Deceased had left his workplace.

(e)  The police investigated the nightshift security guard at WS Construction Site who took over the duty from the Deceased and found no grudges between him and the Deceased.

(f)  From a colleague of the Deceased, the police came to know that the Deceased had confronted a foreign nightshift security guard at WS Construction Site before.  The Deceased discovered that the guard had failed to lock up and might even had been absent from guard duty.  The guard warned the Deceased to “watch out” and that the Deceased would be beaten up if a complaint was made to their supervisor.

(g)  The police learnt from Guardway that the Deceased had indeed lodged a complaint against the plaintiff in January 2016.  As a result, the plaintiff was transferred to work in another construction site on Tin Sau Road in Tin Shui Wai (“the Other Construction Site”).  It took the management some effort to resolve the matter as the plaintiff was a bit grumpy.

(h)  The police inspected the occurrence log book at WS Construction Site and found three entries recording the absence of the plaintiff on 22, 23 and 24 January 2016 respectively.  These entries tend to corroborate the Deceased’s complaint against the plaintiff.

(i)  Based on the above, the plaintiff became a person of interest to the police.

Stage 2: Investigation of the plaintiff

(j)  Through examination of the plaintiff’s travel record (per his Octopus card) and CCTV footages at various LRT stations, the police came to know that on 9 February 2016:

(i)    The plaintiff, Ahsan, Muhammed and one Mehmood Tasawar (“Tasawar”) arrived at Hang Mei Tsuen LRT Station at 1836 hours.  Hang Mei Tsuen LRT Station is close to WS Construction Site.

(ii)   The plaintiff then returned to the station at 1850 hours and travelled to Tin Sau LRT Station (arriving at 1913 hours) which is close to his workplace at the Other Construction Site.  The plaintiff should be late for work on that day.

(iii)  Ahsan, Muhammed and Tasawar returned to Hang Mei Tsuen LRT Station at 1854 hours.

According to SP Ho, there was no apparent reason for the plaintiff to go to Hang Mei Tsuen LRT Station which was not near his residence or workplace.  Given the short period of time they remained in the area, it was unlikely that they had gone there for meal or work.  The timing coincided with the time when the Deceased got off work.  The police suspected that they were there to identify the Deceased, to check the route the Deceased took to leave WS Construction Site and to scout around the area to plan for the assault. 

(k)  Upon further investigation, the police learned that:

(i)   One day before the assault (ie 13 February 2016), Ahsan, Mohsin and Tasawar went to Hang Mei Tsuen LRT Station again at 1855 hours.  They later returned to the station at 1910 hours.

(ii)  On the day of the assault (ie 14 February 2016), Ahsan, Muhammad, Mohsin and Tasawar arrived at Hang Mei Tsuen LRT Station at 1819 hours.  Ahsan later boarded a bus at 1848 hours.

As for the plaintiff, he travelled to Tin Yat LRT Station at 1750 hours.  According to SP Ho, the plaintiff attended work exceptionally early on that day, which was inconsistent with his regular travelling patterns.

(l)  Based on the above information, a decision was made to arrest the plaintiff and others.

Stage 3: Arrest and charge

(m)  On 22 February 2016, the plaintiff, Ahsan, Muhammad and Mohsin were arrested.

(n)  Under caution, the plaintiff replied in Cantonese “我無搵人打佢”.[3]

(o)  Ahsan remained silent to all questions put to him.

(p)  Under caution, Muhammad said “我無打人，係另外兩個打”.[4]  When asked if he knew the two who did the beating, he replied “我識”.[5]

Muhammad was interviewed on two separate occasions at the police station.  In the first interview held on the night of 22 February 2016, he said that he and another person met up with Ahsan and Mohsin at an LRT station.  Ahsan and Mohsin told him they were going to beat someone and they went ahead.  He and the other person walked away and went to Yuen Long.  Sometime later, Ahsan and Mohsin joined them and told them they had beaten somebody.  Muhammad claimed he did not know how they beat the old man.

In the second interview held on the evening of 23 February 2016, Muhammad changed his account and said he and the other person had gone with Ahsan and Mohsin to the scene.  They had stood aside watching as Ahsan and Mohsin assaulted the old man.  It did not take much time to do the beating – they slapped and punched and then ran away.  They had not intended to kill him.  He and the other person were told to stand near the road and if someone came they should call out.  Ahsan had given him his (ie Ahsan’s) mobile phone and he was asked to record the beating as a “joke”.  He confirmed he had seen the course of the attack and had heard some screaming.  After the incident, he went with Mohsin to Yuen Long while Ahsan left with the other person.

Following his second interview, the police conducted a crime re-enactment with Muhammad which was videotaped.

(q)  Upon caution, Mohsin said he had never been to the scene.  When he was later interviewed at the police station, he refused to answer question in exercise of his rights.

(r)  Based on the above, the plaintiff was formally charged with murder on the basis that he was a party to a joint enterprise to murder the Deceased.

(s)  The remaining suspect – Tasawar – absconded to Pakistan via Hong Kong International Airport on 26 February 2016.

Stage 4: After laying of the charge

(t)  Examination of the mobile phones seized from the plaintiff, Ahsan, Muhammad and Mohsin revealed that the plaintiff had two phone calls with Muhammad on 9 February 2016 indicating their acquaintance.  There were also frequent phone calls amongst Ahsan, Muhammad and Mohsin on 9, 13 and 14 February 2016.  Some photos confirming their acquaintance were also retrieved.

(u)  At the time of arrest, Ahsan was wearing a pair of brown shoes and in possession of a mobile phone.

(v)  There were two very significant findings from examination of the shoes.  First, there were blood stains on the right side and on the heel.  The DNA extracted from the bloodstains on the shoes were compared to that of the Deceased recovered from the scene.  It was found that they matched by a random match probability of 1 in 118 quadrillion – which for all intents and purposes is a perfect match.  Secondly, the soles of the shoes were examined against the photographs taken of the hexagonal bruise found on the Deceased’s face.  The hexagonal bruise was found to match the pattern design and size of Ahsan’s shoes.

(w)  The mobile phone was sent to the Cyber Security & Technology Bureau of the Hong Kong Police Force for examination.  Two identical video clips of 23 seconds were retrieved from the phone.  Although part of the clip is not very clear, there is a section that clearly shows a person lying on the ground being kicked and stamped on and one can hear someone screaming from the audio recording.

After viewing the video clip, the pathologist gave further opinion as to the amount of force that could have caused the fractures to the ribs and the laceration to the liver and kidney of the Deceased:

(i)    A large amount of force is required to give rise to multiple rib fractures much larger than would be expected from casual body contact such as a bump or push.

(ii)   The liver is protected by the rib cage and a large amount of force is required to result in the extensive laceration to the liver much larger than would be expected from casual body contact.

(iii)  The right kidney is protected by the ribs and back muscles.  A moderate amount of force would be required to produce a laceration larger than would be expected from casual body contact.

(iv)  Generally kicking and stamping could result in severe internal injuries and lead to death.  Kicking and stamping could cause the fractures to the rib cage which in turn could cause serious injury to the internal organs such as lacerations to the liver and kidneys.

(v)   The video clip showed stamping on the Deceased’s body.

(vi)  As the rib cage is a stiff structure a compressive force to one side can be transmitted to the opposite side which is resting against a hard surface such as the ground.  A stamp on the outer right side could cause fractures on the left by transmission of the compressive force.

(vii) The multiple fractures of the ribs and the lacerations to the liver and kidney could have been the result of the stamping with feet as shown in the video.

(x)  A material witness – the girlfriend of Tasawar – surfaced.  She recalled that on 14 February 2016, she met up with Tasawar in Mongkok at about 1300 hours and they went to Yuen Long.   They were later joined by Ahsan, Mohsin and Muhammad (whom she called “Waheed”) in Yuen Long Plaza.  Ahsan and Mohsin told her that their elder brother had been complained against by a colleague at work (whom they referred to as “the old man”) and was furious.  Ahsan and Mohsin went to assault the old man because of that, and Tasawar and Muhammad accompanied them out of loyalty.  She remained in Yuen Long to wait for Tasawar and did not know if Ahsan and Mohsin’s elder brother was involved in the assault.  Upon his return at about 1900 hours, Tasawar told her that Ahsan and Mohsin had assaulted the old man with fists whilst Muhammad recorded the attack for fun.

(y)  Subsequent to their arrest, the plaintiff, Ahsan, Muhammad and Mohsin were all remanded in Lai Chi Kok Reception Centre.  Whilst on remand, they were entitled to receive visitors but the meetings and conversations which took place would be recorded as per the warning notice posted on the walls.

On 7 March 2016, the plaintiff told a visitor:

“Yes he [Muhammad] is detained separate.  Ask Safder to send Sunny [the legal representative of the plaintiff, Ahsan and Mohsin] to meet him, and make his statements changed.  I don’t know what he has been telling in the police station.”

“I have sent him message through the visitors and he agree that whoever we want he will give the statement.  Ask Sunny to go get statement from him that they [Police] have made him give the statement and he never said anything like this.”

On 1 March 2016, Ahsan told a visitor words to the effect that they had not intended to kill – they just kicked and punched him and it was a mistake.  He also referred to another person who had been there as having left Hong Kong for Pakistan.  He referred to the making of the video and that Muhammad had implicated them.

On 4 March 2016, Ahsan told his visitor that he had only hit twice or thrice.

On 1 and 4 March 2016, Muhammad repeated much of what he said during the second video recorded interview to a visitor, confirming that the fourth person was standing with him when Ahsan and Mohsin carried out the beating.  He referred to making the video recording, that the beating occurred in a deserted area on 14 February and that they had kicked the man’s face and lower ribs.

16.  It is SP Ho’s evidence that prior to the investigation he was not acquainted with the plaintiff and had not dealt with any criminal case involving him.  He verily believes that he and his team had discharged their duties properly, diligently and professionally.  The mere fact that the charge against the plaintiff was withdrawn as per legal advice of the Department of Justice (“DOJ”) did not mean there had been no reasonable and probable cause to prosecute or that the prosecution had been malicious.

D.  Issue 1: Whether the prosecution was without reasonable and probable cause?

D1.  The plaintiff’s argument

17.  It is common ground that “reasonable and probable cause depends on the information and, traditionally, the belief of the defendant … In Herniman v Smith, the House of Lords approved the definition of reasonable and probable cause by Hawkins J in Hicks v Faulkner:

‘An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.’

This test requires a finding as to the subjective state of mind of, in most cases, the police officer responsible (ie no honest belief), and an objective consideration of the adequacy of the evidence (ie the circumstances are such that they would lead an ordinary and prudent man to believe in the charge).”[6]

18.  Whilst the plaintiff’s counsel maintained in closing argument that there was “no evidence against P for the crime of murder before, during and/or after 24^th February 2016, that is the day when P was charged with and prosecuted for the Charge by D”, he conceded that: “Mr Ho’s oral evidence given on Day 2 confirmed that he believed in the Charge to be warranted, and that there is a lack of evidence showing D’s lack of honest belief in the Charge.  As such, it is safely conceded that the subjective test is not met.”[7]

19.  On the objective aspect of the test, he basically took five points:

(1)  The plaintiff was nowhere near the alleged crime scene and there was nothing to disprove the plaintiff’s alibi.[8]

(2)  The plaintiff did not know the Deceased.[9]

(3)  No further evidence against the plaintiff was uncovered after his arrest.[10]

(4)  There was no prima facie case against the plaintiff in the charge of murder on a joint enterprise basis.[11]

(5)  The police did not inform the DOJ of “the complete lack of evidence of P planning or taking part in a joint enterprise to murder the Deceased to make out a prima facie case to warrant the Charge” until 11 August 2016, just two days before the charge was withdrawn.[12]

20.  As I understand, these points are related:

(a)  By the first, second and fourth points, the plaintiff is arguing that there was inadequate evidence to arrest and charge him in the first place.

(b)  The third and fifth points are built on the validity of the above contention in that if there was adequate evidence to arrest/charge the plaintiff then (i) it would not matter if the police thereafter found no further incriminating evidence against him and (ii) there would be nothing for the police to inform the DOJ.

D2.  Discussion

21.  According to para 15-45 of Clerk & Lindsell on Torts: “In Coudrat v Revenue and Customs Commissioners, the Court of Appeal stated that when considering whether to charge a suspect there must be prima facie admissible evidence of each element of the offence.”

22.  The plaintiff was arrested for and charged with murder.  The particulars of the charge alleged that he committed the offence jointly with Ahsan, Muhammad and Mohsin.[13]

23.  According to Specimen Direction 64, murder is committed when a person unlawfully kills another and, at the time of doing so intends either to kill that other person or to cause that other person grievous bodily harm.

24.  On the law of joint enterprise, the Court of Final Appeal (“the CFA”) recently elaborated in HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at para 52 that:[14]

“The basic form (which Lord Hoffmann called ‘the plain vanilla version of joint enterprise’) – BJE – involves the co-adventurers simply agreeing to carry out and then executing a planned crime.  It is taking part in this criminal joint enterprise that makes all participants guilty as principals, whoever the actual perpetrator(s) of the actus reus might have been.  Such liability is independently based on each defendant’s participation in the joint criminal enterprise with the requisite mental state to constitute the offence relevant to the defendant in question.”

25.  Thus at the criminal trial of the plaintiff, apart from proving the commission of the murder which was the subject of the joint agreement, the prosecution would also need to establish that the plaintiff shared the intention to commit the offence and took some part in committing it.

26.  From the material evidence recounted above, it is beyond dispute that the Deceased was assaulted on 14 February 2016 and he died as a result.   

27.  It is unlikely that the Deceased was robbed.  The ferocity of the attack is more consistent with a targeted revenge attack than casual body contact.

28.  The severity of the injuries suffered is testament to the intention of the assailants to at least cause really serious bodily harm to the Deceased. 

29.  Amongst those arrested, the plaintiff is the only one with a motive to harm the Deceased.  There is evidence that the plaintiff bore a grudge against the Deceased for the latter’s complaint that led to his transfer out of WS Construction Site.  There is no indication that Ahsan, Muhammad or Mohsin even knew the Deceased before.  The only link they had with the Deceased was the rancour of their brother or friend.

30.  The reconnaissance prior to the attack (on 9 and 13 February 2016) is telltale sign of a joint plan or agreement to commit the offence.  And the plaintiff’s participation on 9 February 2016 is evidence of his taking part in the joint enterprise.

31.  In my view, the circumstances at the time of the plaintiff’s arrest were such that they would lead an ordinary and prudent man to believe in the charge.

32.  Turning to the plaintiff’s first point (his absence at the scene and alibi) and fourth point (no evidence of joint enterprise), it is the defendant’s pleaded case that the plaintiff “could be liable for the death of the deceased by participating in a joint enterprise to kill and/or inflict serious bodily harm on the deceased, without being present at the crime scene…”.[15] 

33.  The CFA has explained in Sze Kwan Lung v HKSAR (2004) 7 HKCFAR 475 at para 36 that:

“Usually all the participants are present when the crime is committed.  But in Osland’s case McHugh J said at p 350 that ‘[w]here the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other’s acts and the case for doing so is even stronger when they are at the scene together.’ That indicates that presence is not invariably essential.  Indeed, as the High Court of Australia pointed out in McAuliffe v R (1995) 183 CLR 108 at p 114, their Honours had held in Johns v R (1980) 143 CLR 108 that it is not necessary for a party to be present at the scene of a crime to be acting in pursuance of a common purpose with others who were present.  In their joint judgment in Osland’s case Gaudron and Gummow JJ said (at pp 329-330) that the reasoning in McAuliffe’s case ‘would appear not to require presence at the scene of all parties to the continuing common purpose if the criteria specified in that reasoning otherwise are satisfied.’”

34.  Thus it is not necessary as a matter of law that the plaintiff must be present at the scene when the Deceased was attacked before he could be held liable for the murder.  Likewise, the so-called alibi of the plaintiff (that he was somewhere else at the time of the attack) is a red herring and of no significance.  By way of example, the CFA upheld the murder conviction in HKSAR v Chan Kam Shing (2016) 19 HKCFAR 640 in circumstances where “[t]here was no evidence that the appellant had been present during the attack on the deceased or that he had himself done any act causing injury or death of the deceased.”[16] 

35.  The essence of joint responsibility for a criminal offence is that each defendant shared a common intention to commit the offence and played his part in it, however great or small, so as to achieve that aim.  As said before, one can infer from the reconnaissance on 9 and 13 February 2016 that there was a joint plan or agreement to attack the Deceased.  The words “plan” and “agreement” do not mean that there has to be any formality about it.  Although in some cases there may have been discussion and planning, an agreement to commit an offence may in other cases arise on the spur of the moment.  Nothing need be said at all.  It can be made with a nod and a wink, or a knowing look, or it can be inferred from the behaviour of the parties.[17]  The plaintiff’s participation in the reconnaissance on 9 February 2016 is evidence that he shared the intention to commit the offence and took some part in committing it.  The prosecution is entitled to rely on circumstantial evidence when deciding whether to charge a suspect.[18]   It is therefore wrong for the plaintiff to think that there was no prima facie evidence of joint enterprise against him.

36.  The plaintiff’s second point is based on his evidence at trial that he did not know the Deceased.  That fact was neither pleaded in the SOC nor mentioned in the plaintiff’s witness statement.  It is most suspicious – to say the least – that more than 7 years after the incident, the plaintiff alleged for the first time that he in fact did not know the Deceased.  In any event, his evidence in court is contradicted by (i) the unchallenged evidence from Guardway of the Deceased’s complaint against the plaintiff and (ii) the plaintiff’s own statement under caution.  I therefore reject the plaintiff’s evidence that he did not know the Deceased.

37.  Given my ruling that there was adequate evidence to arrest and charge the plaintiff in the first place, the third point (that there was no further evidence to implicate the plaintiff after he was charged) is neither here nor there.

38.  In any event, further evidence did come to light after his arrest that tended to link him to the crime:

(a)  the phone call record and other evidence that connected him with the other assailants;

(b)  the forensic evidence and Muhammad’s evidence that implicated Ahsan and Mohsin.  As said before, there was no other reason for Ahsan and Mohsin to attack the Deceased apart from avenging for their brother;

(c)  the evidence of Tasawar’s girlfriend that confirmed the underlying reason of the attack; and

(d)  the plaintiff’s instruction to his visitor to ask Muhammad to change his evidence.

39.  In his fifth point, the plaintiff’s counsel referred to footnote 35 in the unreported judgment of Martnok Thanradee v Commissioner of Police and Secretary for Justice, HCA 789/2011, 14 July 2016 and argued that:

“25.  … even if the police, having considered all the evidence gathered during their investigation before the Charge being laid on 24^th February 2016 came to the subjective view that there was a reasonable and probable cause, by the time of the statements were given by [Tasawar’s girlfriend] on 25^th February 2016 and 2^nd March 2016, the police ought to be aware of the complete lack of evidence of P planning or taking part in a joint enterprise to murder the Deceased to make out a prima facie case to warrant the Charge.

26.  Since there has been a lack of reasonable and probable cause.  The police has a duty to inform the Department of Justice of the fact that there were still no evidence against P in relation to the Charge.

27.  However, the police only obtained legal advice from the Department of Justice on 11^th August 2016, 2 days before the hearing of the Charge on 13^th August 2016 where the Charge was withdrawn by D.”

40.  Two observations should be made. 

41.  First, that footnote[19]   referred to an earlier edition of Clerk & Lindsell (the 21^st edition dated 2014).  In the current edition (the 23^rd edition dated 2020), it is noted at para 15-60 that:

“In Clifford v Chief Constable of Hertfordshire Constabulary, at first instance, Cranston J accepted the claimant’s argument that having launched the prosecution, the police in that case retained a duty to inform the CPS [Crown Prosecution Service] of matters that became known and that were relevant to the prosecution.  As such, the police may still be regarded as ‘prosecuting’ the offence for the purposes of tort liability even if the prosecution is transferred to an independent prosecutor.  This applies whether it is the police, or the prosecutor, who lays the charges.  The question will be whether the conduct of the police, in terms of what they have done or omitted to do in relation to the independent prosecutor, satisfied the components of the tort.  These aspects of the decision in Clifford were not followed by Mitting J in Rees v Commissioner of Police of the Metropolis, on the basis that they were not consistent with decisions regarding witnesses and whether they could be treated as ‘the prosecutor’.  Mitting J suggested that ‘it cannot be that the police become a prosecutor … merely because after charge they fail to forward some non-trivial information to the CPS relevant to the prosecution’.  It was possible that if the police deliberately suppress information which would reveal to the CPS that the prosecution had become baseless, that may suffice for the police to be treated as prosecutor; but that would need to be tested in a case where it arose.  An appeal from the decision of Mitting J was upheld, but did not consider this point, since the police officer was considered to be ‘the prosecutor’ … The decision of Mitting J in Rees was applied in Coghlan v Chief Constable of Cheshire Police, expressing caution about the comments in Clifford and striking out a claim for malicious prosecution against police officers on the basis that they were not prosecutors.

Whether the withholding of a report from the CPS (and indeed from the investigating officer) might in the right circumstances form the basis of an action for malicious prosecution was raised in the case of Alford v Chief Constable of Cambridgeshire, but the Court of Appeal found it unnecessary to give an answer since there was in any event reasonable and probable cause for the prosecution, even … [the report that had been withheld] would not have tipped the balance even if made known.”

Thus, the legal basis of the plaintiff’s argument (the first instance decision in Clifford) has been doubted in subsequent authorities. 

42.  Secondly, I do not agree that the evidence of Tasawar’s girlfriend has the effect argued.  Whilst she did not give positive evidence as to the plaintiff’s involvement, she confirmed that the underlying reason for Ahsan and Mohsin to attack “the old man” was to avenge their brother.  Ahsan and Mohsin did not know the Deceased before.  It would not be possible for them to carry out the attack without the plaintiff identifying the Deceased to them.

43.  For the above reasons, I reject the points taken by the plaintiff and find that there was reasonable and probable cause for the prosecution right from the beginning.

E.  Issue 2: Whether the prosecution was actuated by malice?

E1.  The plaintiff’s argument

44.  The plaintiff stated in his witness statement: “I believe that D prosecuted me with the ulterior motive of injuring me, and/or to detain me and thereby pressurize me, my relatives and my friends into giving more information to the Hong Kong Police Force, including but not limited to the information which may incriminate other people, against my wishes and will.”^[20]

45.  In his closing submissions, the plaintiff’s counsel argued that:

“31.  … by 13^th August 2016, there was still no evidence to make out a prima facie case to prosecute, hence the Charge was being withdrawn.  This can only mean that there has been no evidence to make out a prima facie case to prosecute P since 24^th February 2016.

32.  The only plausible conclusion is that when D prosecuted P with no evidence to make out a prima facie case, the ulterior motive of D ought to be something other than to have P convicted of the Charge.

33.  Regarding D’s ulterior motive of injuring of P and thereby pressurizing P and his relatives and friends to give more information to the police, while P during cross-examination on Day 1 gave oral evidence to the effect that the word ‘injuring’ in the Statement of Claim may be a typo and that there was a misunderstanding, P did not go as far as to retract what he stated in paragraph 35 of his witness statement…

34.  Regarding D’s ulterior motive of detaining P and thereby pressurizing P and his relatives and friends to give more information to the police, P gave oral evidence that Mr Sajid Abdul, P’s co-worker at [the Other Construction Site], who was being interviewed by the police on 23^rd February 2016 at 01:00 hour, out of fear of the police, did not attend Court as a witness.

35.  It is not disputed that P’s relatives (brothers to be precise), [Ahsan] and [Mohsin] were kept in custody since their arrest on 22^nd February 20167.  As inferred from the fact that [Ahsan] and [Mohsin]’s inability to provide any evidence of P having formed any agreement, be it expressed or implied, with the other defendants in TMCC 545/2016 to attack the Deceased with intent to kill or to cause grievous bodily hard, [Ahsan] and [Mohsin] ought to know P has been innocent all along.

36.  By keeping P in custody, [Ahsan] and [Mohsin] could have been pressured into giving more information to the police which may incriminate P and/or other defendants in TMCC 545/2016.

…

38.  … By not obtaining legal advice from the Department of Justice until 11^th August 2016, 2 days before the hearing of the Charge on 13^th August 2016 where the Charge was withdrawn by D, there is a furtherance of the malice of D to injury and/or detain P and thereby pressurizing P and his relatives and friends to give more information to the police.”

E2.  Discussion

46.  According to para 15-57 of Clerk & Lindsell on Torts: “The proper motive for a prosecution is, of course, a desire to secure the ends of justice.  If a claimant satisfies a jury, either negatively that this was not the true or predominant motive of the defendant or affirmatively that something else was, he proves his case on the point.”

47.  The burden in proving some other motives for the prosecution is high.  As the Court of Appeal recently reiterated in Lam Wai Ip (see footnote 6 above) at para 6(4): “to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an ‘illegitimate or oblique motive’ and that improper purpose must be the sole or dominant purpose actuating the prosecutor.”

48.  In my view, the plaintiff’s argument is inconsistent with the concession made (see para 18 above).  Given SP Ho’s evidence that “he believed in the Charge to be warranted” (which the plaintiff accepts), it is difficult if not impossible for the plaintiff to argue that there were some other “sole or dominant” purposes for the prosecution.

49.  The circumstances of this case is very different from that of Rees v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587.  As noted in para 15-57 of Clerk & Lindsell on Torts:

“In Rees v Commissioner of Police for the Metropolis it was concluded that honest belief in the guilt of the claimant does not negate the existence of malice.  The judge had ruled that the senior investigating officer’s preparation of the prosecution case was tainted by illegality of a serious kind (an intention to pervert the course of justice).  This finding was sufficient to render him malicious: ‘He knowingly put before the decision-maker a case which he knew was significantly tainted by his own wrongdoing and which he knew could not be properly presented in that form to a court.’ To find that there was no malice in such a case would be ‘a negation of the rule of law.’”

The plaintiff is not alleging in this case that the prosecution was tainted by any illegality.

50.  Turning to the ulterior motives alleged by the plaintiff, first, the starting premise of the argument (there must be other ulterior motive as there was no prima facie case against the plaintiff) is destroyed by my ruling on Issue 1.   

51.  Secondly, at the trial the plaintiff disavowed his pleaded case that the police had prosecuted him in order to injure him.[21]  He attributed the use of the word “injuring” in his pleading and witness statement to typographical error and misunderstanding. 

52.  Thirdly, the submission that the plaintiff was detained so as to pressurize his friends and relatives to incriminate him is not supported by evidence.

(a)  It is not disputed that the plaintiff’s co-worker (Mr Sajid) gave a statement to the police after the plaintiff’s arrest.  There is no evidence that the police had Mr Sajid’s evidence in mind when deciding to arrest and detain the plaintiff.

There is no evidence that Mr Sajid was pressurized into giving his statement.   According to the summary of Mr Sajid’s evidence in the Investigation Report, his evidence is pretty neutral.^[22]

The only trial that the plaintiff’s counsel could be referring to is this civil trial, as the criminal charge against the plaintiff was withdrawn without a trial.  It is difficult to understand how the plaintiff’s detention in 2016 could have had the effect of deterring Mr Sajid from testifying in this trial.  Anyway, the plaintiff could have subpoenaed him to testify if necessary.

(b)  Ahsan and Mohsin either remained silent or refused to answer any question under caution (see para 15(o) and (q) above).  There is no evidence that they had been pressurized into incriminating the plaintiff.

(c)  Under section 9G(10)(a) of the Criminal Procedure Ordinance, Cap 221, a person charged with murder may not be granted bail except by order of a judge of the High Court.  According to the Investigation Report, the plaintiff’s solicitors confirmed with the police as late as on 30 May 2016 that there was no bail application.[23]   An application was eventually made but the CFI refused to grant the plaintiff bail on 19 July 2016 on the ground that there was strong circumstantial evidence against him and that he might interfere with Muhammad or pervert the course of justice.[24]  The plaintiff’s continued detention was thus mandated by law and authorised by the court.  There is nothing to suggest that his detention was motivated by a desire to extract incriminating evidence against him.

53.  For the above reasons, the plaintiff has failed to challenge SP Ho’s intention in bringing the plaintiff to justice or prove any ulterior motive for his prosecution.

F.  Remedy

54.  Notwithstanding my above rulings, I shall briefly touch upon the question of quantum in deference to the submissions made.

55.  The plaintiff’s claim is summarised at pp 46.10-46.13 of Bundle A:

Damages for -  loss of liberty -  emotional distress -  exemplary damages	$600,000
Loss of income -  as a full-time security guard and a part-time chef, at $22,000 per month -  it was hard for the plaintiff to secure a job as a security guard after his release as the case was widely reported	$132,000
Legal costs for the criminal proceedings in relation to the charge which was subsequently withdrawn	$187,500
Interest	To be assessed

56.  The defendant accepts that if malicious prosecution is proved,

(a)  a detention of 173 days should attract compensation in the sum of $100,000; and

(b)  loss of income pertaining to the plaintiff’s fulltime employment as a security guard in the sum of $66,000 (ie $11,000 x 6) is in order. 

57.  There is no justification for a higher award of damages.  I do not believe he was assaulted by the police in front of his daughter, as there is no corresponding complaint to the Complaints Against Police Office, to the Magistrates’ Court, or to the CFI when he applied for bail.   And his claim that he suffered tremendous stress throughout his detention and that he still has nightmares is not supported by medical evidence. 

58.  Andrew Cheung J (as the CJ then was) explained in A v Director of Immigration (False Imprisonment: Damages) [2009] 3 HKLRD 44 at para 53(10)-(12): “Exemplary damages could be awarded where there was ‘oppressive, arbitrary or unconstitutional conduct by Government servants’, although the fact that the detentions were unconstitutional was per se insufficient to trigger such award.  Outrageous conduct disclosing malice, fraud, cruelty and the like would normally be looked for”.[25]   There is no basis to award exemplary damages in this case. 

59.  The allegation that he also worked as a part-time chef at the time of his arrest[26]   is inconsistent with his pleaded case that he was then a “part-time shop keeper”.[27]

60.  Lastly, I reject his claim for legal costs in the criminal proceedings for the simple reason that this is a matter for the criminal court.

61.  In Secretary for Justice v N [2013] 1 HKLRD 130 at para 25, Macrae J (as he then was) said:

“It must be remembered that there is no general right to costs in criminal cases.  The CCCO [Costs in Criminal Cases Ordinance, Cap 492] delineates in specific terms the particular circumstances in which a costs order might be made in criminal proceedings.  If a party to proceedings cannot bring himself within a particular section of that Ordinance, he cannot obtain an order for costs.”

62.  The Court of Final Appeal confirmed in HKSAR v Chan Kam Ching [2022] HKCFA 13 at para 8 that:

“Upon an acquittal, the court normally makes a costs order in favour of the accused unless there is a positive reason for departing from that rule.  Most frequently, such a reason is found to exist where the accused has brought suspicion on himself or herself, leading to the prosecution.”

63.  In this case, the plaintiff applied for costs after the charge against him was withdrawn.  In refusing the application, the Magistrate said:

“… From all the information that the prosecution has gathered, only you knew the deceased and had been his colleague and, according to the information that is before court, a CCTV clip capture you appearing at the site with the other co-accused and other persons sometime before his death and these people don’t have anything to do with the deceased.

I do agree with the prosecution that you have brought strong suspicion upon yourself despite the fact that you have some sort of an alibi.   Miss Panesar [the plaintiff’s then counsel] has quite rightly pointed out that you have [a motive], which is – and that – but that is not good, and not good enough, to found a conviction of murder but, in my view, that’s good enough, in this case, to deny your costs application.”

64.  It is not for this court to second-guess the Magistrate in the exercise of her discretion under the CCCO.  There has been no appeal against the Magistrate’s decision and the present claim amounts to a collateral attack on the decision.

G.  Disposition & Costs

65.  The plaintiff has failed to prove two of the four essential elements of the tort and his claim is dismissed.

66.  Costs normally follow the event.  At the oral closing submission, I invited submissions on whether the plaintiff should bear indemnity costs.   

67.  In the exercise of its discretion on costs, the court is to have regard to, inter alia, the conduct of the parties including whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.[28]    And the correct approach to the exercise of the discretion in ordering indemnity costs is that:[29]

“With particular reference to indemnity costs but relevantly also to common fund costs, the following propositions emerge from this Court’s judgment in Town Planning Board v Society for Protection of the Harbour Ltd (No 2) (2004) 7 HKCFAR 114 at paras 14-18:

(a) In certain circumstances, costs may be awarded on a more generous than usual basis of taxation so as to achieve a fairer result.

(b) It is for the receiving party to show that the case has some special or unusual feature.

(c) Such features are not confined to an ulterior motive, an improper purpose, deception or underhand conduct on the part of the paying party.

(d) Neither the attributes of the parties nor the character of the proceedings are irrelevant to the question of whether a more generous than usual basis of taxation should be ordered.

(e) The discretion to order a more generous than usual basis of taxation is not to be fettered or circumscribed beyond the requirement that such taxation be ordered only when it is appropriate to do so.

(f) As to that, the grounds on which a more generous than usual basis of taxation is to be ordered must be connected with the case.   That extends to - but no further than to - any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation.”

68.  One of the circumstances where the court has ordered indemnity costs before is where the proceedings in question should never have been brought or defended but the losing party nevertheless persisted.  As the Court of Appeal explained in Huge Dragon Corporation Limited v The Incorporated Owners of Lung Mun Oasis, unreported, CACV 6/2013, 9 May 2014 at para 13:

“What constitute appropriate circumstances to award indemnity costs must be fact-sensitive.  As demonstrated by numerous authorities and now enshrined in Order 62, rule 5(1)(e), Rules of the High Court, the conduct of the party against whom indemnity costs are sought is cogently relevant.  Thus, where the proceedings in question should never have been brought or defended but the party nevertheless unreasonably and unjustifiably persisted, he may well be visited with indemnity costs: see, for example, Montrio Ltd & Another v Tse Ping Shun David, CACV 291/2011, unreported, 31 January 2013; Grant David Vincent Williams v Jefferies Hong Kong Limited, HCA 320/2011, unreported, 12 July 2013.”

69.  In this case, the plaintiff is indignant of the fact that he had been detained for 173 days before the charge was withdrawn.  He puzzles over the basis of his prosecution and suspects that the prosecution was actuated by malice.

70.  Similar argument was ventilated in the English case of Coudrat v Revenue and Customs Commissioners [2005] STC 1006.  That case was concerned about value added tax (VAT) fraud perpetrated by a “missing trader”.  The missing trader in that case – Tecniconsult – obtained VAT registration based on misleading information.  Upon selling some mobile phones for which VAT was chargeable, Tecniconsult became obliged to account for the VAT to Customs and Excise.  However, it would not do so and disappeared before Customs caught up with it.  The effect was that Tecniconsult pocketed the VAT it had received from the buyer at the expense of the public purse.  The appellant (Mr Coudrat) was arrested together with the sole director of Tecniconsult (Mr Sommeyre) and they were charged with an offence under the VAT Act 1994.  The prosecution of Mr Coudrat was later discontinued upon the advice of the Crown Prosecution Service that there was insufficient evidence to warrant continuance of the prosecution.  The prosecution of Mr Sommeyre proceeded but he later absconded.

71.  Mr Coudrat commenced an action for, inter alia, malicious prosecution.  It was his case that he was an independent selling agent of Tecniconsult and knew nothing of any fraud.  He alleged, inter alia, that there was no evidence on which the arresting officer could have formed the reasonable suspicion that he was guilty of the evasion of VAT and the officers acted as they did to put pressure on him to give evidence against Mr Sommeyre.  His claim was dismissed at first instance.

72.  In dismissing the appeal, the Court of Appeal commented that:

(a)  On whether there was reasonable and probable cause to prosecute Mr Coudrat (at para 46):

“… In the light of the burden and standard of proof that lies on the Crown before there can be a conviction, we accept that, at the end of the day, to convict there would have had to be evidence that made the jury sure that the appellant knew about the intended fraud at the time he was selling for Tecniconsult.  However, it does not follow that, in order to justify a charge, there had to be evidence of that strength available to the prosecutor at that time.  To justify the charge, there had to be prima facie evidence of guilty knowledge, that is evidence which, unless successfully refuted or explained, could lead a reasonable jury to be satisfied of the appellant's guilty knowledge.  The respondent was entitled to rely on circumstantial evidence.  It is very often the case that there is no direct evidence of guilty knowledge in fraud cases and the prosecutor relies on the drawing of inferences from circumstantial evidence.”

(b)  On the question of malice (at paras 54-55):

“The appellant did not challenge the judge’s finding that [the investigating officer] was a completely honest witness.  [He] honestly believed that the appellant was guilty of VAT fraud and also honestly believed that he had enough evidence to justify charging him.  The appellant’s case was that [the officer]’s honest belief was irrational based … We accept, without hesitation, that there will be some cases in which it is open to a judge to infer malice in an officer who lays a charge where there is clear lack of evidence against a suspect.  But this comes nowhere near being such a case.  The appellant’s first obstacle is the judge’s finding that [the officer] honestly believed in the appellant’s guilt and in the adequacy of the evidence against him.  Even if the judge or this court had concluded that there was in fact insufficient evidence to justify laying the charge, it would be difficult to see how malice could be inferred in the light of the judge’s findings.”

73.  In my view, the plaintiff’s claim herein is a lost cause right from the beginning.  Over the years, several courts have repeatedly commented in no uncertain terms that there was strong circumstantial evidence against the plaintiff:

(a)  When the plaintiff’s application for bail was refused in July 2016, the High Court Judge commented that but for the plaintiff’s participation, the other assailants could not have known about the Deceased’s workplace and work schedule.[30]

(b)  In dismissing the plaintiff’s application for costs in August 2016, the Magistrate commented that the plaintiff had a motive to harm the Deceased and had brought suspicion upon himself (see para 63 above).

(c)  In April 2018, Ahsan, Muhammad and Mohsin admitted in the CFI that “the attack on [the Deceased] was premediated – it was the result of a common purpose or joint enterprise to beat [the Deceased] to teach him a lesson.  The beating of [the Deceased] caused his death.  The beating was an unlawful and dangerous act.”[31]

In sentencing Ahsan, Muhammad and Mohsin, the High Court Judge commented strongly that:

“[The Deceased’s] property had not been stolen so it was quite clear that this was not a robbery.  The reason for the attack appears to have been that an older brother of [Ahsan] and [Mohsin], who goes by the name of Khan Asaf Nawaz, had been the subject of a complaint about lateness in taking over his shift which the deceased had made to his supervisor and as a result of the deceased’s complaint, Khan was transferred to another site.  Later, when Khan tried to be transferred back to where he had originally been working, the request was refused, and it was after that that Khan resigned from the company.  And it is for that reason that this case can properly be described as a revenge attack.

…

It is perfectly plain that this attack was done for revenge and was known to be carried out on a victim who was elderly and very small in size.  So far as [Ahsan] is concerned, this was a bad case of manslaughter which comes very close to the line with murder.  Both brothers acted in a violent way as cowardly thugs; there is no other description.  You have tragically taken away the life of a man who was just a hardworking individual, no doubt with very sad consequences to the family.

It is people like you who bring shame on the Pakistani community, most of whom try to live peaceful law-abiding lives.   Just imagine how you would feel if someone, in the fashion you beat up this man, did that to somebody in your family.   And just to show how your mind was thinking, to make matters worse you got someone to make a film of it as a joke.   And why was it done?  Just because the deceased had complained about your older brother being late for work.   No wonder he complained; he couldn’t knock off duty until your brother turned up, and so he paid with his life for that complaint.   Well, society has to reflect its revulsion at this kind of conduct.”

(d)  The Court of Appeal later dismissed Ahsan’s appeal in April 2019 and reiterated that:

“38.  The judge had regard to the motivation of the applicant and [Mohsin] in attacking the deceased, namely, the conduct of the deceased in complaining against their elder brother which had led to the elder brother resigning from his employment.  The judge concluded that with that being the motivation behind the attack on the deceased, the offence could properly be described as a revenge attack.”

74.  The plaintiff must be aware of (a) and (b) above as he was the subject of those proceedings.  He could not have been ignorant about (c) and (d) as they relate to his brothers.   He failed to pay heed to all these judicial comments and persisted in this unmeritorious claim.  There is no basis for him to challenge the integrity of the police but he indulged in his hollow accusation of malice.

75.  The unreasonable conduct on the part of the plaintiff has led to unnecessary expenditure of public funds in defending this action.   An indemnity costs order is not meant to punish the plaintiff and will not entitle the defendant to recover more costs than he has incurred but such an order would achieve a fairer result for the defendant. 

76.  I order the plaintiff to pay the defendant’s costs on indemnity basis to be taxed if not agreed with certificate for one counsel.