TSANG KIN CHIU v. COMMISSIONER OF POLICE

HCAL 141/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 141 OF 2014

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D E C I S I O N

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A. INTRODUCTION

1.  This is the applicant’s leave application to apply for judicial review.

2.  The applicant says he was assaulted by police officers in three occasions in the early morning of 15 October 2014.  The applicant’s case is that these assaults were carried out by police officers after he had been restrained by police when participating in a protest near Tamar Park at Admiralty, Hong Kong.

3.  It must immediately be noted that the police accused the applicant taking part in an unlawful assembly at that time, and that:

(1) he was watching from an embankment above Lung Wo Road as the police advanced into the tunnel on Lung Wo Road to clear out protesters present on the road;

(2) at around 3:23am on 15 October 2014, the applicant sprinkled an “unknown liquid” onto the police officers below; and

(3) at the material time, the applicant was not in possession of his Hong Kong Identity Card.

4.  For the present application, it is the applicant’s case that:

(1) He was kicked and punched as he lay defenceless on the ground soon after he was restrained by the police at around 3:25am near the tunnel in Lung Wo Road (“the 1^st Assault”).

(2) At around 3:30am after he was carried by a group of police officers to a secluded corner of Tamar Park, these police officers took turns to kick, punch and knee attack at about his head and body, when he was laying face down on the ground with his hands secured behind his back and defenceless.  It was said that the attack lasted for over four minutes.  I will refer this as “the 2^nd Assault”.

(3) Thereafter, he was taken eventually to the Central Police Station and put in a small interview room at around 4:30am.  Two police officers (coming from the same group of officers who assaulted the applicant in the 2^nd Assault) were present in the room.  After the applicant refused to reveal the PIN number to unlock his mobile phone as requested by the police officers, he was slapped twice on his face by one of the two officers.  I will call this “the 3^rd Assault”.

(4) Sometime after the 3^rd Assault, he was taken to a detention facility in Wong Chuk Hang, Aberdeen at around 7:30am.

(5) He was later released from custody at around 9:30am on that day on bail.

5.  After his release, the applicant has made criminal reports to the Police in relation to these three assaults (collectively “the Assaults”).  He has also made complaints to the Complaints Against Police Office (“CAPO”) relating to the Assaults.

6.  It is common ground that seven police officers (“the Relevant Officers”) suspected of the Assaults have been interdicted of their duties since 16 October 2014.  They were also arrested by the police on 26 November 2014.  Up to this stage, no charges have yet been laid against the Relevant Officers.

7.  At the same time, between 15 and 20 October 2014, the applicant’s solicitors had written firstly to the Commissioner of Police and later to the Department of Justice (representing the Commissioner) asking the Commissioner to forthwith release to the applicant the identities of the Relevant Officers.  The Commissioner has not acceded to the request.

8.  The applicant now by way of the proposed judicial review seeks against the Commissioner (the putative respondent):

(1) Declarations to the effect that (a) the Assaults amounted to torture and/or cruel inhuman or degrading treatment or punishment contrary to Articles 28 and 39 of the Basic Law, Article 3 of the Bill of Rights and the common law; (b) the applicant had been subjected to assault and battery; (c) the applicant’s detention around 3:25am on 15 October 2014 and thereafter was unlawful; and (d) the Commissioner lacked power to impose police bail on the applicant on 15 October 2014 given the unlawful detention.

(2) Damages (including aggravated and/or exemplary damages) arising from the Assaults and unlawful detention.

(3) An order of certiorari to quash the Commissioner’s decisions (“the Decisions”) (a) to impose the aforesaid bail on 15 October 2014; and (b) to refuse to disclose to the applicant forthwith the identities of the Relevant Officers.

(4) An order of mandamus compelling the Commissioner to forthwith disclose the identities of the Relevant Officers to the applicant.

9.  The leave application is opposed by the Commissioner, represented by Mr Mok SC together with Ms Parwani.

B. THIS LEAVE APPLICATION

B1. Proposed grounds of judicial review and the Commissioner’s position

10.  In his Form 86, the applicant raises four grounds of judicial review based on his case as summarised above.  They are in gist as follows:

(1) Ground 1[1]: The applicant’s rights against torture or inhuman or degrading treatment under Articles 28 and 39 of the Basic Law, Article 3 of the Bill of Rights and the common law are violated by reason of the Assaults.  The applicant seeks a declaration to that effect and damages, including aggravated and exemplary damages.

(2) Ground 2[2]: The applicant’s detention since 3:25am on 15 October 2014 was unlawful as (a) he was not being immediately informed that he was arrested and of the allegations against him;[3] (b) he was not forthwith delivered to the custody of the duty officer of a police station as mandatorily required under section 51 of the Police Force Ordinance (Cap 232) (“PFO”); and (c) the detention was not carried out for purposes within the PFO or common law but for “retaliatory” violence.  The applicant thus seeks damages (including aggravated and exemplary damages) for unlawful detention.[4]

(3) Ground 3[5]: Given that the detention was unlawful for the above reasons, the Commissioner had no power to impose bail on the applicant for his release.  The decision to bail the applicant is thus also unlawful and the applicant seeks to quash that decision.

(4) Ground 4[6]: The Commissioner has acted contrary to the law[7] in failing to disclose to the applicant (as victim of the Assaults) the identities of the assailants (being the Relevant Officers), in particular given the context that the applicant intends to bring a private prosecution against them as they have still not been charged by the Police.  The applicant therefore seeks an order of mandamus to compel the Commissioner to disclose the identities of the Relevant Officers.

11.  The Commissioner’s opposition is primarily based on the contentions that the applicant should have pursued his claims now set out in the Form 86 by way of a private law writ action.  This is so as, despite the prima facie reliefs of declarations and order of certiorari sought, the effective and main remedy sought by the applicant is a claim for damages resulting from the Assaults and unlawful detention.  This is a tortious claim, which is clearly available to the applicant as an alternative remedy by way of a private law writ action.

B2. Court’s view

Grounds 1 and 2

12.  It is trite that judicial review should only be a remedy of last resort.  Thus, where an effective alternative remedy exists which has not been exhausted, save in exceptional circumstances, the court will not generally exercise its discretion to grant remedy in judicial review.  In other words, it would generally be a strong reason to refuse leave to apply for judicial review if there is an available alternative remedy.  See generally Hong Kong White Book 2015 at paragraph 53/14/22.

13.  The availability of a private law remedy by way of an action by writ could be considered as an effective alternative remedy for that purpose.  As observed by Gillen J in Re Dr Dax’s Application for Leave to Apply for Judicial Review [2007] NIQB 96 at paragraph 22 as follows:

“In any event, judicial review is generally regarded as a last resort. The existence of an alternative remedy can be a strong reason to refuse leave at the beginning of a case or a remedy at the end of it. The court will look at all the circumstances, including the nature of the issue and the suitability of alternative remedy for resolving it. (See Lord Woolf CJ in R (Cowl) v Plymouth City Council [2002] 1 WLR 803). I believe there is substance in the submission by Mr McGleenan, who appeared on behalf of the proposed respondent, that there [are] a series of potential alternative remedies for this applicant now that his status has been confirmed. Declaratory relief together with damages was the limit of the relief sought in this case. The applicant is in a position to consider an action by writ … The presence of alternative remedies is therefore another factor which has persuaded me that leave should be refused in this case.” (emphasis added)

14.  In the present case, insofar as Grounds 1 and 2 are concerned, I agree with Mr Mok that what the applicant is effectively and substantively seeking as a remedy is a claim for damages, including exemplary damages.  The reliefs sought under the proposed judicial review for declarations of breach of the applicant’s right against being tortured and that there had been unlawful detention are only ancillary in nature to underline and support his primary claim for damages.  A private law action for damages can effectively achieve the same (see also paragraph 21 below).

15.  Moreover, I also accept Mr Mok’s submissions that in fact a private law writ action is more appropriate in the present case to deal with the claim for damages, especially when the applicant needs to establish grounds to support a claim for exemplary damages.  This is so as the claim is likely to involve the determination of disputed facts relating to the following:

(1) Were the applicant’s arrest and detention unlawful and, if so, on what factual ground were the arrest and detention to be held unlawful?

(2) What was the period of the unlawful detention (eg did it extend to the time when the applicant was in the North Point Police Station[8])?

(3) If the applicant’s claims of Assaults had been established, what were circumstances in respect of each of:

(a) The First Assault;

(b) The Second Assault; and

(c) The Third Assault,

and what relevant matters were to be taken into account for the assessment of damages, including aggravated and exemplary damages?

(4) What were the nature and severity of the applicant’s injuries?

(5) How damages should be quantified in the light of the aforesaid relevant circumstances and the nature and severity of the injuries?

(6) In respect of the above issues, what in fact did the officers do (individually or cumulatively) and how their acts should be reflected in the court’s award under each of the items of damages claimed?

16.  In this respect, it is well accepted that judicial review is usually not suitable for factual determination.  See Dr Dax’s Application, supra, at paragraph 21(i), where Gillen J said this:

“It has often been observed that judicial review is unsuitable for resolving disputes of fact. Although it may well be appropriate in certain instances, in essence judicial review is not a fact finding exercise. It is an extremely unsatisfactory tool by which to determine matters of dispute such as have arisen in this case. (See In the Matter of an Application by Zhanje for Judicial Review [2007] NIQB 14 at para 8.) The factual dispute in the instant case was unsuitable to be determined in judicial review and unlikely to be capable or resolution on affidavit evidence. In any event, resolution would have made no contribution to interpretation of the guidance notes in this or in any other case.” (emphasis added)

17.  This would be similarly so when the claim for damages was based on isolated acts of physical violence which are said to be in breach of the right against torture or degrading treatment.  As observed by Lord  Hope in Kevin Ruddy v Chief Constable [2013] SCLR 110 at paragraphs 17-18 as follows:

“17. The fact that a claim that was based on a private right had a public law dimension did not mean that it was an abuse of process to proceed by action … what should matter was whether the choice of procedure was critical to the outcome. In D v Home Office [2005] EWCA Civ 38, [2006] 1 WLR 1003, paragraph 105, Brooke LJ said that he had no doubt that, if the proceedings in that case in which damages were claimed for false imprisonment in breach of the claimants’ Convention rights were viable, they were properly brought as a private law action.

18. … As Lord President Hamilton said in Docherty v Scottish Ministers, paragraph 20, the process of judicial review would be quite inept for proceedings in which damages are claimed for an isolated act of physical violence which was in breach of the article 3 Convention right. But the number of acts or incidents cannot sensibly make any difference. Judicial review would be just as inept for a claim of damages for injury and damage sustained as the result of a course of such conduct. On any view the objection that appears to have been taken to the competency of the claim for just satisfaction for breach of the substantive obligation under article 3 must be regarded as misconceived” (emphasis added)

18.  In the premises, I accept that insofar as Grounds 1 and 2 are concerned, there clearly exists an effective alternative remedy in the form of a private law writ action which has not been exhausted.

19.  Mr McCoy SC (together with Mr Parker) for the applicant seeks to rely on certain authorities[9] to submit that the court should adopt a more flexible and pragmatic approach to the division between private law and public law actions, and thus should not simply refuse leave based on the fact that the applicant could also have commenced his claim by way of a private law action.

20.  In my view, these authorities do not seek to impose any qualification to the above-mentioned well established principle that judicial review should be a remedy of last resort and, save in exceptional circumstances, remedy in judicial remedy would not be granted if there is an effective alternative remedy.  As accepted by Mr McCoy in his skeleton,[10] these authorities show that the real question for the court is still whether the dispute can be fairly and effectively resolved under judicial review instead of the alternative remedy procedure.  Therefore, these authorities can be regarded as examples of the court looking at the usual questions of whether in the particular circumstances of each case, (a) the alternative remedy in question provides (in contrast to the judicial review procedure) a more effective and appropriate remedy; and (b) there are exceptional circumstances to justify the continuation of the public law proceedings notwithstanding the alternative remedy.[11]

21.  For the reasons I have set out above, I accept that the private law writ action provides the applicant with an effective and more appropriate remedy than the proposed judicial review to seek the substantive relief of damages.  There are also no exceptional circumstances to justify the departure from the general position.  The fact that the claim for damages is premised on an alleged breach of public duty by public officers does not provide any such exceptional circumstances.  There is no doubt that a claimant can make a private law damages claim against public officials for breach of public duty.  For example in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138, the claimant claimed against the Director of Immigration for damages arising from false imprisonment, and the court held that there was a breach of public duty which founded a claim for such damages.

22.  In the premises, I will refuse to grant leave on Grounds 1 and 2.

Ground 3

23.  Insofar as Ground 3 is concerned, the question as to whether it was lawful for the Commissioner to impose bail has clearly become academic as the applicant has since 14 November 2014 been released without bail.[12]  The issue of whether the decision to impose bail in the first place is therefore no longer relevant or material.

24.  It is trite that the court would not generally entertain a judicial review where the issue is or has become academic.[13]

25.  The applicant in reply at the hearing however submitted that the question might not be academic as the applicant when travelling to other countries might be asked whether he had ever been arrested (not whether he had been convicted of any offences).  Thus, it is contended that the applicant could be cleared of that if the court eventually determines to quash the decision to impose bail because the detention in the first place is unlawful.  With respect, there is simply no evidence in support of the proposition that such a question would be asked when travelling to other countries and I cannot simply accept it, as it cannot be said that this proposition is something of a common knowledge.  I therefore reject this submission.

26.  Given the academic nature of the issue raised under Ground 3, it is not reasonably arguable that the court would grant the remedy under this ground.  I would refuse to grant leave to apply for judicial review under it.

Ground 4

27.  The applicant seeks an order of mandamus under Ground 4 compelling the Commissioner to reveal to him the identities of the Relevant Officer to enable him to commence his private prosecution against them.

28.  I cannot say there is an effective alternative remedy available in this regard.  In particular, it is not suggested that the applicant would be able to seek the usual Norwich Pharmacal application for the identities of the Relevant Officers in aid of his private tortious claim (as mentioned above) since he could mount the claim against the Commissioner without specifically naming the individual attackers.

29.  As to the merits of this Ground, I note that, in support of this application for disclosure of names, the applicant relies on sections 41 and 42 of the High Court Ordinance (Cap 4) and the observation by Ma J (as the learned CJ then was) in A Co v B Co [2002] 3 HKLRD 111 at paragraph 27(1) that “the court’s jurisdiction is wide enough to order not just the disclosure of names of wrongdoers but also documents or other information.”  However, as sections 41 and 42 relate to discovery of documents, I have doubts as to whether these statutory provisions provide the jurisdiction to the court to order the Commissioner to disclose names of the Relevant Officers to the applicant as sought.  Further, insofar as it is relevant, A Co v B Co is a case concerning a Norwich Pharmacal application in aid of a civil tracing claim.  Whether the Norwich Pharmacal principles can be applied to an application to aid an alleged “victim” to pursue a private prosecution (as in the present application) must be subject to debate and more detail consideration.

30.  On the other hand, I also note the applicant’s principal reliance on Chan Chuen Ping, supra, as an authority in support of his present application.  This case is about a claimant (who alleged to have been injured by two women through the manoeuvre of a wheelchair) asking the court to order the police to release the names of these women who had been arrested to enable him to bring a civil damages claim against them.  Although that case by itself is likely to fall within the usual Norwich Pharmacal application in aid of a potential tortious action, the learned Deputy High Court Judge Seagrott appears to further suggest at paragraphs 31, 32 and 37 that the police has a general duty to supply the victims of crime with identity of the assailants and that the failure to do so amounts to obstruction to the administration justice (Mr McCoy relies heavily on these propositions to support the contentions that the applicant has a right to ask for the disclosure of the identities of the Relevant Officers).  The learned judge said as follows:

“31. It is readily apparent that where a person has reported to the Police any accident involving injury to himself/herself which may arguably give rise to a claim for compensation, and the Police have ascertained the identity of the person alleged to be responsible; or they have investigated an accident or incident either of their own volition, perhaps in accordance with their statutory duty, or as a result of a report from an injured person or some third party, and then refuse to disclose the material identity to him/her or its agent, they are obstructing the proper efficient and fair administration of justice.

32. Not only has the Police Force caused the delay referred to and refused to fulfill its obligation to an individual in the society it serves but it has forced the applicant’s solicitors to use the facilities of the High Court in order to obtain redress. It has been a waste of administrative and judicial resources and must not happen again. I can only hope that a clear, firm direction or instruction has been given to those responsible for this so that it cannot recur.

…

37. … The Commissioner should be advised as follows:

…

(ii) Where an application is made to the Police by or on behalf of a party who has or may have a claim, i.e. is seeking a remedy for an act against his, arising out of an incident in respect of which the Police have acquired information relating to such act, they are obliged to provide such information upon payment of a reasonable fee.

(iii) The Data Protection Ordinance does not inhibit such a response on its behalf nor can it justify any failure on the Police’s part to respond promptly and constructively to such request.

(iv) Failure to respond accordingly is likely to constitute an obstruction to the administration of justice.”

31.  In light of the above, the judgment in Chan Chuen Ping needs also to be considered in greater detail with fuller arguments to examine whether there are any legal principles or bases to support the wider propositions (if they are so made by the learned Judge) now relied on by Mr McCoy.

32.  For these reasons, I will therefore accept for the purpose of leave stage that it is reasonably arguable (and no more than that) as to whether there is a legal basis for the court to order the Commissioner to reveal the identities of the Relevant Officers.

33.  At the same time, I also note the Commissioner’s submissions that, even if the court has power to do so, in the circumstances of the present case, the court should not exercise its discretion to make any such order.  These circumstances include that (a) the video and photo evidence relied on by the applicant in saying who the attackers are is not as strong as the applicant alleges; (b) the applicant’s refusal to attend various identification processes arranged by the police in the past months;[14] and (c) the rights of the Relevant Officers and the likely prejudice that would be caused to them if their identities are revealed at this stage.

34.  Given all these contentions, including the ones on jurisdiction, I would only say that the determination of the application for the order of mandamus can and should only be properly made at a substantive hearing with the benefit of more and fuller legal arguments and all the evidence put before the court.

35.  For this reason, I would grant leave to the applicant to apply for judicial review under Ground 4.

C. CONCLUSION

36.  I will refuse leave under Grounds 1 to 3, but grant leave to the applicant to apply for judicial review under Ground 4.

37.  I further direct that the parties shall agree on directions as to the hearing of the judicial review under Ground 4 and report the agreement to the court in writing for approval by 20 July 2015, failing which they shall write to the court separately to ask for directions.

38.  I will also make a cost order nisi that there be no order as to costs of this leave application.  Unless any of the parties applies by summons to vary it, the order shall become absolute 14 days from today.  I further order that the applicant’s own costs be taxed in accordance with legal aid regulations.