KIMMY SUEN KING ON v. ATTORNEY GENERAL

IN THE COURT OF APPEAL

1986, No. 100
(Civil)

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JUDGMENT

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Silke, J.A.:

1. On the 4th June 1981, Mr. Kimmy Suen King On - the Plaintiff - was in a night club with some business friends. In the course of the evening, there was an altercation at a nearby table and the Plaintiff intervened to pacify the participants. Nothing more eventuated until some considerable time later when, with others, he left the nightclub. As he left, he saw lying on the pavement a man covered in blood. This man - Police Constable Poon Chun Wah - was one of those who had participated in the earlier altercation. The Plaintiff was approached by another person present outside the restaurant and an accusation of having organised the attack upon the wounded man was levelled at him. The Plaintiff denied this but at that point another person, who had also been one of the participants in the altercation, came upon the scene, informed the Plaintiff that he was a policeman and directed the Plaintiff to remain where he was.

2. That man had identified himself properly for he was one Chan Chi Fai, a serving police constable. Other members of the Royal Hong Kong Police Force then arrived at the scene and the Plaintiff was taken to Wanchai Police Station.

3. At about 5:25 a.m. on the morning of the 4th, the Plaintiff was interviewed by Constable Chan, was formally arrested by him and was cautioned in respect of his involvement in a wounding offence. The Plaintiff was detained and was later charged with a series of other offences, including c1aiming to be an office bearer of a triad society; the wounding offence; another wounding under s.19 and two offences of assaulting a police officer. He was detained in police custody and on the 5th of June, having been taken before a Magistrates Court, was granted bail. As a condition of that bai1, the Plaintiff was required to surrender his travel documents and to make a report twice per week to the Wanchai Police Station.

4. On the 12th June, the Plaintiff again appeared in the Magistrates Court and his bail was extended. On the 19th June, on his final appearance in the Magistrates Court, the Crown offered no evidence in respect of all of the offences other than the two wounding offences. On the 8th July, the matter having been transferred to the Victoria District Court, the Plaintiff pleaded not guilty to those charges and was remanded upon bail for trial.

5. While awaiting trial, and at some time in late August or early September, Constable Chan contacted the brother of the Plaintiff indicating that the criminal charges in respect of the Plaintiff were "negotiable". In November, Constable Chan indicated that he required $54,000 to influence the evidence he would give at trial.

6. On the 6th November, the Plaintiff and his brother made a report to the Independent Commission Against Corruption. On the 10th November, acting under the instructions of members of the Commission, the Plaintiff and his brother met with Constable Chan. Present then were Poon Chun Wah and two others. The Plaintiff handed over $15,000, which had been provided to him by the Commission, to one of the others. Constable Chan and his companions were arrested. On the 16th November, the Attorney General entered a nolle prosequi in respect of the remaining charges then outstanding against the Plaintiff. In the following year, Chan Chi Fai and Poon Chun Wah were convicted of offences relating to the perversion of justice.

7. The Plaintiff issued his writ on the 9th May 1984 and he pleaded that Constable Chan, purporting to act in the course of his duty

“wrongfully, maliciously and without reasonable cause arrested and detained the Plaintiff at Wanchai Police Station”

The gravamen of the Plaintiff's complaint is that he was falsely imprisoned for a period of 32 hours on the 4th to the 5th of June 1981. In his Defence, filed in 1985, the Attorney General admitted that Chan Chi Fai was a police officer and admitted that he “wrongfully, maliciously and without reasonable cause arrested” the Plaintiff. The period of detention was also admitted as was the subsequent history of the matter and the convictions of Chan Chi Fai and Poon Chun Wah.

8. The Attorney General relied on a lack of any authority in Constable Chan to make an unlawful arrest, the malice as pleaded taking the servant outside the scope of his employment so that vicarious liability was negatived.

9. In a careful and detailed judgment, His Honour Judge Evans, sitting as a Deputy Judge of the High Court, upheld the Attorney General's contentions and dismissed the claim. He accepted that there was no doubt that Constable Chan had grievously wronged the Plaintiff and he accepted that Constable Chan was a Crown servant, a finding which is not challenged. He relied on that which he described as "the well known passage” in Salmond on Torts at page 437 as to the liability of a master for the acts of his servant. That passage succinctly states the law that a master id not responsible for a wrongful act done by his servant unless it is in the course of his employment. It is deemed to be in the course of his employment if it is either a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master, a master being responsible not merely for what he authorises his servant to do but also for the way in which that servant does it. The passage continues:

“If a servant does negligently that which he was authorised to do carefully or if he does fraudulently that which he was authorised to do honestly or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud, or mistake. On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment but has gone outside of it.”

10. When considering the actions of a member of the Royal Hong Kong Police Force references to that which I might term “police cases” in other jurisdictions may well be of little use. The method by which they are given authority differs considerably. In Hong Kong such a person is a Crown servant and his authority derives from the Crown. Section 4(3) of the Crown Proceedings Ordinance, Cap.300 makes clear the liability of the Crown in respect of tortious acts committed by its servants.

11. The issue here is whether the malice pleaded, and gratefully accepted by the Attorney General, is sufficient to take what was undoubtedly an authorised act done by-a Crown servant outside the ambit of the course of the employment of that Crown servant.

12. In the Court below, reliance was placed upon Kooragang Investment Pty. Limited v. Richardson & Wrench[1]. I prefer to consider the matter as reported in [1982] A.C. 462. There a valuer, who was the defendants’ servant, carried out valuations on the defendants' behalf for a client group of companies. The valuations were made with the defendants' knowledge and authority. Then the companies failed to pay for the valuations and the defendants instructed their servant not to carry out any more work for that client group. Later the valuer became a director of one of the client group's member companies and thereafter, and without the knowledge or authority of the defendants, carried out about thirty valuations for it. In preparing those valuations, the servant used the premises of the group, the note paper of the defendants and signed the valuations in the corporate name of the defendants. No fee was paid to the defendants. Two of the valuations were passed on to the plaintiffs investment company. They were negligently made and the plaintiffs suffered financial loss. The plaintiffs sought to recover against the defendants as being vicariously liable for the actions of their servant valuer. In the Supreme Court of New South Wales the action was dismissed. The matter came before the Judicial Committee and the plaintiffs' appeal was dismissed. It was held that an employer's actual authority to his servant to do particular act could not be inferred merely from the fact that the act itself was of a class which the employer had authorised his servant to do. The servant valuer’s act was clearly an authorised class of act by itself. But by reason of the instructions given to him in doing the acts complained of and which resulted in financial loss to the plaintiffs against the direct instructions of the defendants he was acting outside the scope of his employment. It is in that factual light that one must view the words of Lord Wilberforce at page 473F:

“It remains true to say that, whatever exceptions or qualifications may be introduced, the underlying principle remains that a servant, even while performing acts of the class which he was authorised, or employed, to do, may so clearly depart from the scope of his employment that his master will not be liable for his wrongful acts.”

13. In my judgment, the situation here is not analogous to that in Kooragang¹. It is clear that Constable Chan's acts, and indeed the-trial judge so found, were acts which he was authorised and empowered to perform and were within the ambit or scope-of his employment. But the judge then went on to consider whether Constable Chan's act was "excessive" and if so, whether excess was so great as to take his act outside the vicarious liability of his employer. He thought it to be a matter of degree and said:

"The greater the excess to the point of abuse of a power authorised or instructed to be used legitimately, the further away from liability for that excess the employer becomes."

14. The judge concluded, borrowing as he did so the words of Lord Wilberforce in Kooragang¹ where commenting on the issue before the Judicial Committee Lord Wilberforce said that:

"A clearer case of departure from the course or scope of employment cannot be imagined: it was total .....",

that here the excess and abuse of power was in the same category and therefore in such a situation, the employer cannot be held answerable for the acts of his servant.

15. With respect to the trial judge, on the facts of Kooragang¹ the comment by Lord Wilberforce obviously lay. On the face of the facts here, it does not.

16. The reference to "excess" stems from a passage from the judgment of Scrutton L.J. in Poland v. John Parr & Sons[2] where he said that:

"To make an employer liable for the act of a person alleged to be his servant the act must be one of a class of acts which the person was authorised or employed to do. If the act is one of that class the employer is liable, though the act is done negligently or, in some cases, even if it is done with excessive violence. But the excess may be so great as to take the act out of the class of acts which the person is authorised or employed to do." (Emphasis supplied)

17. The servant in Poland² was a carter. He had implied authority to make reasonable efforts to protect his master's goods. He was returning home one lunch time close behind a cart on which there were bags of sugar. A boy was walking alongside that cart with his hand on one of the bags. The servant honestly and reasonably thought that the boy was pilfering or about to pilfer. He gave him a cuff on the neck which felled the boy whose leg was then injured by a wheel of the cart which passed over it.

18. The question there was of a limited authority which raised the issue of an emergency existing or being reasonably supposed to exist - an implied not direct authority.

19. It was held that in the circumstances such implied authority did exist and that the violence exerted was not so excessive as to take the carter's act outside the scope of his authority. The defendants were held liable. Bankes L.J., at page 242, had this to say:

"In deciding whether an act of a servant is one for which his master is responsible the act must be regarded from two points of view. First, was it merely a wrong method of doing an authorised act, in which case the master is responsible; and secondly, where the authority is not otherwise established but has to be inferred from the circumstances, was the act one which was done for the servant's own purposes and not in his master's interest?"

20. I would stress that in this instant ease there is no question of anything other than direct authority. The judgment of Scrutton L.J. went on at page 243:

"It has been argued that an employer cannot be liable if the act of his, servant is illegal or excessive. In my opinion Dyer v. Munday [1895] 1 Q.B. 742 negatives the first alternative. Lord Esher M.R. in that case put the question whether the act was or was not for the employer's benefit. That may be one test, but where excessive violence is charged another question must be considered namely, whether the excess is such as to take the act out of the class of authorised acts. It was also argued that an employer could not authorise an act which he could not lawfully do himself. But in may cases employers have been held responsible for acts of their servants which if done by themselves would have been illegal."

21. This last sentence must, with the greatest respect, be correct. For the fraudulent servant, for whose fraudulent conduct the master is liable, is clearly not "authorised" to act fraudulently.

22. Lloyd v. Grace, Smith & Co.[3] - a case particular to its facts but which emphasised, with one modification, the general principles laid down in Barwick v. English Joint Stock Bank[4]. It made it clear that benefit to the master was unnecessary for liability, for one of the main reasons why Lloyd³ attracted the distinguished judgments that it did was to clarify the Barwick⁴ principle by holding that the fraud of an agent did not need to be for the benefit of the master before the master could be liable. In this modern era, Lloyd v. Grace, Smith & Co.³, being the seminal case in this branch of the law, one can ignore the issue-as to whether or not the act of the servant was for the benefit of his master and the dictum of Lopes L.J. in Dyer v. Munday[5] at page 747, where he said:

“The law says that for all acts done by a servant in the conduct of his employment, and in furtherance of such employment, and for the benefit of his master, the master is liable, although the authority that he gave is exceeded .….. There is no distinction in this respect between the effects of a tortious and a criminal act, provided such acts are done by the servant in the conduct of his employment and in the interest of his master.”

must be considered in the light of Lloyd v. Grace, Smith & Co.³

23. Warren v. Henlys, Ltd.[6] turned on whether the subsequent assault by the petrol station attendant was or was not in the course of his dealings, as an employee, with the victim. It is clear that there had been a break in that the transaction which the servant was employed to do had been completed, the car driver had left. He returned, having called the police, and told the employee that he would report him to his employer. It was at that juncture that the assault took place. It was held that that assault was one of personal vengeance on the employee's part and not done in the course of his employment.

24. Here, whatever the motive for Constable Chan's action may have been, all his acts on the 4th and 5th of June were done in furtherance of his employment. There was no break in that employment. The fraudulent servant acts for his own financial benefit and in that sense it would be from a “caprice of the employee” but nevertheless, the master is not absolved from liability given that the class of acts which he was authorised or employed to do. In my judgment so too with malice, with an illegal act and so too with an attempt at a prospective illegal gain.

25. For myself, I think the present case, by its circumstances, is taken outside the Warren v. Henlys, Ltd.⁶, Riddell v. Glasgow Corp.[7] and Keppel Bus Co. Ltd. v. Sa'ad bin Ahmad[8] line for in all of these there was held to be either a break in the employment or a lack of authority neither of which existed here.

26. In Riddell⁷ a woman brought an action for damages against the corporation as the result of a slanderous statement made by the municipal tax collector, the corporation's servant. It was held not to be within the scope of his authority, which was to collect police assessments payable and to grant receipts for such payment, to express his own opinion as to the falsity or genuineness of any prior receipt shown to him or to make any statement or comment-upon it. His sole duty, in respect of false receipts, was, on the evidence, to report to his superiors. The claim failed.

27. In Keppel Bus Co.⁸, where a passenger was travelling on a bus owned by the appellant bus company, there was an altercation between the bus conductor and the passenger. Other passengers intervened and separated them. The bus conductor continued to collect fares but, as he did so, abused the passenger who asked him to desist. The conductor then struck the passenger with his ticket punch. The trial judge held the bus company to be vicariously liable for the resultant, and severe, damage to the passenger. The Court of Appeal of Singapore upheld his finding.

28. The Judicial Committee allowed the appeal by the bus company holding that, although a bus conductor may have a duty to keep order amongst passengers there was no evidence of any disorder at the time of the assault. There was no evidence to justify the ascription of the conductor's act to any authority, express or implied, therefore in assaulting the passenger the conductor was not acting in the course of his employment.

29. Here, where the trial judge, in concluding his judgment, said of an officer deliberately and maliciously abusing his power by making an arrest which he knew at the time to be false and who was motivated, not by any sense of pursuit of duty, but in order to obtain revenge or money:

"then he is of course not carrying out his duties at all and what he is doing is exercising a power given to him by legislation and criminally abusing it"

and consequentially that his acts are taken outside the doctrine of vicarious liability I, with respect, disagree.

30. The constable was abusing his powers but that does not in any way derogate from the fact that he had those powers - his duty was to investigate crime and arrest the perpetrators - and that he exercised them whatever his motivation may have been. I think motive to be irrelevant and the fact that the constable was doing an act which he was fully empowered and directly authorised to do, base though his motives may have been, does not absolve his employer from liability.

31. I would allow this appeal, find the defendant liable and hear counsel as to the course we should take in respect of damages.

Sir Alan Huggins, V.-P.:

32. We are called upon to consider the circumstances in which a master can be held vicariously liable for a tort of false imprisonment committed by his servant.

33. The respondent Defendant is sued on behalf of the Crown as the employer of a police constable who - so it was pleaded in the Statement of Claim and admitted in the Defence - wrongfully and maliciously arrested the Plaintiff and charged him with an offence which the constable well knew the Plaintiff had not committed. Following the arrest the Plaintiff was kept in custody for two days before being released on bail. In consequence of his false imprisonment the Plaintiff is alleged to have suffered serious damage.

34. No oral evidence was adduced but it would seem that two statements made by the Plaintiff to' the police were before the judge. The judge proceeded on the basis that the facts were not in dispute and stated them as follows:

"On the 4th of June 1981 the plaintiff was at a nightclub with business associates and during the evening he had occasion to pacify some men at an adjoining table who had become involved in a petty altercation with the plaintiff's brother. He gave the matter no further thought and quite some time later, in the company of a number of others, he left the nightclub. As he did so, at the entrance, he saw one of the men he had spoken to earlier lying on the ground covered in blood. Another of that group then approached the plaintiff and accused him of having organised an attack upon the man on the ground. The plaintiff protested and then yet another man from the table came up and said that he was a policeman and told the plaintiff not to leave. That man was indeed a police constable named Chan Chi Fai. Other police officers then arrived and at their invitation the plaintiff went to Wanchai Police Station.

The plaintiff was not t hen under arrest, but at 5.25 a.m. on the same morning none other than Chan Chi Fai himself interviewed the plaintiff in the station and arrested and cautioned him for the wounding offence. The plaintiff denied the allegation but he was thereafter detained and later charged with a series of charges embracing claiming to be a member of a triad society, wounding with intent and assaulting a police officer, all based on Chan Chi Fai's account of events and what is admitted to be his false identification of the plaintiff as one of the assailants.

The plaintiff was then kept in custody until the 5th of June 1981 when he was granted bail by a magistrate.”

We are further asked to accept from the Plaintiff's first statement that he left the nightclub at about 3 a.m.

35. In the course of his reply before us counsel for the appellant Plaintiff made it clear for the first time that it was his case that the allegation of malice in the Statement of Claim was surplusage and that the Plaintiff contended it was irrelevant to the case although his own case had been put forward on the basis that the constable was motivated by malice and it is clear from the Judgment in the court below that it was on that basis that the case proceeded.

36. When the judge spoke of, an arrest “motivated not by any sense of pursuit of duty at all but in order to obtain revenge or money as the case may be”, he was not making a finding that the obtaining of revenge or money was the motive in the present case: he was merely giving examples of possible motives for an arrest which might be made by an arresting officer who knew at the time that the arrest was false. It was enough for his purposes that the arrest in the present case was, as appeared from the pleadings, malicious as well as unjustified in fact.

37. I accept that the allegation of malice, supported as it was by detailed allegations of subsequent events tending to show malice, was not material to the Plaintiff's claim. It was, however, vital to the defence sought to be advanced, and the Statement of Defence took advantage of the immaterial allegations in the Statement of Claim by admitting them. What was cantended on behalf of the Attorney General was that the malice of the servant resulted in his moving outside the scope of his employment, so that vicarious liability was negatived. That contention was upheld by His Honour Judge Evans, sitting as a Deputy Judge of the High Court. The Plaintiff appeals.

38. It is common ground that a master is liable for the torts of his servant only where the servant is acting in the course of his employment. The basis of the liability is an actual or implied authority to do the act. The act may itself be wrongful or it may be a lawful act done in a wrongful manner. Where it is the manner of doing the act which is wrongful, the master will be liable unless the manner of doing it is such that the servant can no longer rightly be regarded as acting in the course of his employment. Although a master may never have authorized his servant to act negligently, if the servant does discharge his duties negligently and causes damage to a third party, the master will be liable. Even where the servant takes an opportunity created by his employment to act fraudulently, the master may be liable: Lloyd v Grace, Smith & Co. 1912 A.C. 716. That was a case where the party defrauded was entitled to assume that the act done by the servant was being done in the course of his employment.

39. The judge recognized that the presence of malice did not necessarily take the act of every tort-feasor outside the scope of his employment but thought that in the circumstances of the present case it took this particular constable outside the scope of his employment. He relied upon a passage in the judgment of Hilbery, J. in Warren v Henlys Ltd. 1948 2 All E.R. 935, 938H:

“It is unfortunate the words 'in the course of the employment' seem to have given rise to so much difficulty, but, if one thinks of the course of the employment as meaning, coupling that phrase with that Scrutton, L.J. said [in Poland v John Parr & Sons 1927 1 K.B. 236], in the course of doing an act which was one of the class of acts which the servant was authorised or employed to do, the matter becomes reasonably clear.”

However, he said that what was done must not be “from any caprice of the servant” (per Willes, J. in Bayley v Manchester, Manchester, Sheffield & Lincolnshire Railway Co. (1872) L.R. 7 C.P. 415, 420) and that in the end it was “all a matter of degree” and, as such, a question of fact. He found that for the constable to arrest the Plaintiff not only without reasonable and probable cause but to satisfy his own personal malice did take the arrest outside the scope of his employment.

40. In so finding the judge might appear from the cases upon which he relied to have adopted the approach that making arrests was within the scope of the constable's employment but that in making an arrest in the circumstances of this case he was so far exceeding that authority that the employer was not liable. It was the judge's suggested application of this concept of “excess” which Mr. Litton, on behalf of the Plaintiff, stigmatized as “bizarre”. It is a concept based upon some words of Scrutton, L.J. in Poland v John Parr & Sons (supra) at p.243:

"To make an employer liable for the act of a person alleged to be his servant the act must be one of a class of acts which the person was authorized or employed to do. If the act is one of that class the employer is liable, though the act is done negligently or, in some cases, even if it is done with excess violence. But the excess may be so great as to take the act out of the class of acts which the person is authorized or employed to do."

However, in the event I do not think Judge Evans did rely upon an “excess” of power in the sense in which the word was used in that case, for he said:

"Where an officer … deliberately and maliciously abuses a power directly to make an arrest which he knows at the time is false, motivated not by any sense of pursuit of duty at all but in order to obtain revenge or money as the case may be, then he is of course not carrying out his duties at all and what he is doing is exercising a power given to him by legislation and criminally abusing it and his position to such an extent as to take his acts and responsibility for them outside the doctrine of vicarious liability."

This was in apparent conflict with his statement that

“The act of arrest and the act of detention of the plaintiff were both acts which Chan Chi Fai was empowered to do. His actions, as actions, were acts which he was authorised and empowered to perform and were within the ambit or scope of his employment.”

and it seems to me that what he meant was no more than that the constable's acts were of such a nature that they could have been within the scope of his employment in some circumstances. He thought that in the circumstances of this case they were clearly not authorized and that the Attorney General should not be held vicariously liable: they constituted such an “excess and abuse of power” that the departure from the course or scope of the employment “was total”.

41. My anxiety has been to isolate the factors which are relevant to a determination of the question whether an act is, in the words of Scrutton, L.J. in Poland v John Parr & Sons (supra), “one of a class of acts which the person was authorized or employed to do”. Whether or not the constable was nominally “on duty” at the time is relevant, but it cannot be conclusive: a constable who, when lawfully checking that shops have been properly secured at night, finds one unlocked and proceeds to enter and steal from the till could hardly be said to be acting within the scope of his employment. On the other hand, a constable who in purported exercise of his duty (although without authority in fact) asks for property and, having received it, appropriates it to his own use would be within the scope of his employment: see Lloyd v Grace Smith & Sons (supra). In that case Earl Loreburn said at p.725:

“If the agent commits the fraud purporting to act in the course of business such as he was authorized, or held out as authorized, to transact on account of his principal, then the latter may be held liable for it”.