F AND OTHERS v. THE REGISTRAR OF THE HIGH COURT

HCAL 54/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 54 OF 2011

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BETWEEN

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J U D G M E N T

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1.  The 1^st applicant, F, is the husband of M who acts as the 2^nd and 3^rd applicant on behalf of her two children, A and B respectively. All of them are refugees from Sri Lanka within the meaning of Article 1 of the United Nations Convention on Refugees, their status having been confirmed by the United Nations High Commissioner for Refugees in Hong Kong in 2006. They are currently awaiting resettlement in another country and, accordingly, hold recognizances issued under section 36 of the Immigration Ordinance, Cap 115 in order to enable them to subsist in Hong Kong.

The factual background

2.  In the early hours of 28 July 2007, all four members of the family were together in a kiosk in a public park in Sham Shui Po celebrating the birthday of a friend together with a number of other people of South Asian origin. Beer was being drunk and songs were being sung. Following a noise complaint from a member of the public, two police officers, Sgt 10107 (“Officer X”) and WPC 5919 (“Officer Y”) attended the park at 00:52 hours to investigate the complaint. During the course of their investigation, Officer X requested those in the kiosk to produce their identification documents. However, M was unable to produce her recognizance. Exactly what happened next is in dispute and will fall to be examined by the fact-finding tribunal in due course. What is clear is that a number of those at the party became agitated by the actions of the police officers and emotions began to run high. Accordingly, Officer X requested assistance over his beat radio as a result of which a number of other police officers successively arrived at the scene. One of the first to respond was PC 2480 (“Officer Z”), who arrived at the scene at 01:00 hours.

3.  At 01:15 hours, Officer X declared arrest on M for failing to produce any document of identification. What happened then is also in issue but it is reasonably clear on any version that there was a confrontation between Officer X and F, who was evidently in an emotional state as a result of the arrest of his wife. Both parties allege violence on the part of the other. The police allege that as a result of violence used by F against Officer Z, he was arrested for assaulting a police officer in the execution of his duty: whilst F alleges battery by police officers.

4.  After his arrest, F was handcuffed and conveyed with his wife to Sham Shui Po police station. There they were each detained in a separate police cell and strip-searched.

5.  Some time later, the two children were brought by a friend to the police station. There is an issue as to whether M asked for the children to be brought to her in the cell or whether they were placed with her there at the behest of the police. Whatever the position, both of the children were reunited with their mother in her cell.

6.  At some stage after the arrival of the children at the police station, F inflicted wounds on his own arms and upper body using the broken casing of his mobile telephone. He was consequently taken for medical treatment for those wounds.

Subsequent legal proceedings

7.  On 7 April 2008, after a trial before a magistrate at Kwun Tong Magistrate’s Court on the charge for which he had been arrested at the scene, F was found not guilty of assaulting Officer Z in the execution of his duty. On 27 July 2010, solicitors on behalf of F issued a protective writ against the Commissioner of Police (“the Commissioner”) for battery; wrongful arrest, detention and imprisonment; infliction of emotional distress/harassment; misfeasance in office; and violation of constitutional rights. On the same day M, acting as the mother and next friend of the two children, A and B, issued similar writs in respect of false imprisonment; misfeasance in office; negligence; and violation of constitutional rights.

The civil claims

8.  During argument before me, F’s claim was broken down into four distinct incidents. The first incident involves an alleged battery by Officer X (the first incident); the second incident involves an alleged battery by a group of police officers (the second incident); the third incident includes the alleged wrongful arrest of F at the scene and his wrongful detention both at the scene and in the cell at Sham Shui Po police station (the third incident); and the fourth incident engages the alleged infliction of emotional distress/harassment and/or misfeasance in office through what is said to have been an unnecessary strip search (the fourth incident).

9.  M’s claims (on behalf of A and B) involve two separate incidents: the first alleges negligence by the police in leaving A and B behind in the park after unlawfully arresting their parents (the fifth incident); and the second concerns the alleged false imprisonment of A and B in a detention cell and/or misfeasance in office (the sixth incident). At the hearing, Mr Deng on behalf of the applicants did not pursue any argument in relation to the fifth incident. Nevertheless, I shall later deal with it because it provides the background to the sixth incident.

The background leading to the impugned decision

10.  On 17 May 2010, F and M (on behalf of A and B) applied to the Director of Legal Aid (“the Director”) for funding in respect of proposed claims against the police which were later taken out on 27 July 2010 (supra para 7). At the same time M also applied for legal aid to fund her own action against the Commissioner for unlawful arrest, unlawful detention and trespass to the person. All of the applications were subsequently supported by a pro bono legal opinion rendered jointly by Senior and Junior Counsel.

11.  On 23 August 2010, the Director, relying upon a legal opinion from another Senior Counsel, pursuant to section 9(d) of the Legal Aid Ordinance, Cap 91 refused F’s application for legal aid as well as M’s applications (on behalf of A and B). So far as M’s applications (on behalf of A and B) were concerned, the Director considered that the children had no cause of action against the Commissioner. As for F, the Director concluded that since the only viable claims were in relation to possible battery, which could be adequately dealt with in the Small Claims Tribunal, legal aid could not be granted for such proceedings. The applicants were duly notified in a letter of refusal of their right to appeal against the Director’s decision to the Registrar of the High Court (“the Registrar”). Meanwhile, M’s application for legal aid in her own right was allowed.

12.  F and M (on behalf of A and B) in due course did appeal to the Registrar. On 9 February 2011, the Registrar dismissed the applicants’ appeals, explaining his reasoning (to which I shall return) and essentially confirming the reasons for the Director’s refusal of legal aid.

13.  On 19 July 2011, notice of application for leave to judicially review the Registrar’s decision was filed. The relief sought by F and M (on behalf of A and B) was for an order of certiorari to bring up and quash the decision of the Registrar of 9 February 2011 refusing their applications for legal aid. On 17 August 2011, leave for judicial review was granted to the applicants on the papers.

The ambit of the application

14.  It was common ground throughout these applications that since the recognizance document granted to M was not a “proof of identity” as defined in section 17B of the Immigration Ordinance, Cap 115 and as applied by section 54(3) of the Police Force Ordinance, Cap 232, M had committed no offence by being unable to produce the said document for the inspection of the police. It was consequently agreed between the parties that the police had no right to arrest M for failing to produce her recognizance document. Accordingly, I have approached these applications - as have the parties - on the basis that the arrest of M was unlawful.

15.  In relation to F’s civil claim, Mr Deng on behalf of the 1^st applicant conceded at my invitation at an early stage of these proceedings that if all that were left of his claim were the allegations of battery (the subject matter of the first and second incidents), F’s case would properly constitute a small claim and fall to be dealt with by the Small Claims Tribunal. Accordingly, it could not be said if that were the case that the Registrar’s decision was wrong.

16.  Correspondingly, Mr Cooney SC on behalf of the Director as an Interested Party has accepted that if F’s civil claim properly engages other issues such as wrongful arrest and detention in addition to battery, the claim might be an appropriate case to be dealt with in the District Court for which the applicant would be eligible for legal aid. Mr Cooney did not concede as much because of the issue of reasonable force, to which I shall come in due course. To make it clear what his position was, he submitted that if F were found to have used reasonable force in order to try and restrain the unlawful arrest of M in the context of a factual framework which was ultimately found by the fact-finding tribunal to be in his favour, then an appropriate award could fall within the jurisdiction of the District Court. On the other hand, if F were found to have used unreasonable force even in the context of a factual framework found to be in his favour, then any award would still come within the jurisdiction of the Small Claims Tribunal.

17.  The parties’ respective positions have been extremely helpful in refining the real issue in this judicial review. For ultimately it comes down to a consideration of whether the Registrar’s decision limiting the viability of F’s civil claim to the two incidents of battery (on which the Registrar was prepared to acknowledge F might have a claim) is correct or not, or whether F also has a viable claim arising out of the third and/or fourth incidents; and whether the Registrar’s view that he did not have such a viable claim justifying the granting of legal aid is amenable to review.

18.  It soon becomes clear that a critical issue in this case is whether or not police officers were lawfully acting in the execution of their duty when attempting to restrain and subsequently arrest F. That issue, which is of course a legal one, will depend on the facts as they are found to be at trial in due course.

19.  Mr Deng submits that a police officer is not acting in the execution of his duty if he attempts to prevent a breach of the peace by restraining a person who is using reasonable force to prevent an unlawful arrest by another officer. Although concerned with police officers carrying out an unlawful search rather than an unlawful arrest, he cites McBean v Parker [1983] Crim LR 399 in support of the proposition. Accordingly, he says that since Officer X had unlawfully arrested M, Officer X was not acting in the execution of his duty when he arrested F for trying to prevent M’s unlawful arrest and detention and for assaulting Officer Z in that process. Good faith on the part of police officers, he submits, does not come into it: see Collins v Wilcock [1984] 1 WLR 1172.

20.  He further argues that where a police officer makes an unlawful arrest, any other officer who goes to assist him will also be acting outside the execution of his duty; and if a third party seeks to intervene to prevent such an unlawful arrest, the arrest of that third party by an officer not immediately involved in the unlawful arrest will not be justified on the ground of it being necessary to prevent a breach of the peace where the third party had used no more force than was reasonable and had not directed his conduct against any other than the officers affecting the unlawful arrest; intervention by such an officer to stop the third party from pursuing an attempt to prevent the unlawful rest would take that officer outside the scope of his duty. For these propositions he relies on Cumberbatch v The Crown Prosecution Service; Ali v The Department of Public Prosecutions [2009] EWHC 3353 (Admin), a decision delivered on 24 November 2009. Accordingly, he says that when Officer Z came to the assistance of Officer X in attempting to restrain F from preventing the unlawful arrest of M and from otherwise obstructing the police, Officer Z was not acting in the exercise of his duty and F was entitled to use reasonable force to stop Officer Z. Mr Deng argues that F’s position is essentially the same as that of the appellant Cumberbatch.

21.  Mr Cooney submits that when the police arrested F, they were confronted by a very tense situation in which F had become highly (and perhaps understandably) emotional about the arrest of his wife. Others at the party had also become agitated, which had earlier prompted Officer X to call for reinforcements. He invites me to view the facts, therefore, in the context of a deteriorating situation in which a breach of the peace had been or was likely to be occasioned. He argues that the real issue is whether the officer who arrested F had reasonable grounds to suspect that an offence had been, or was about to be, committed: see Leung Kwok Hung v Secretary for Justice [2009] 4 HKLRD 247. He further submits that the police have a general duty to keep the peace which is confounded if members of the public can assault police officers who are trying to carry out that duty.

22.  Mr Cooney relies, as correct in the circumstances, on the reasoning of the Registrar who held:

“I agree with (Senior Counsel advising the Director) that the police would easily show that they had reasonable suspicion for arresting the applicant, and his arrest was lawful and he has no cause of action for false imprisonment.”

(I should say that Senior Counsel advising the Director at the time was not Mr Cooney).

23.  If, however, the arrest of M was unlawful and F was entitled thereby to prevent the unlawful arrest of his wife, Mr Cooney argues that Officer X was still acting in the execution of his duty when he arrested F because F’s act in punching Officer Z could not amount to the use by F of reasonable force.

Consideration

24.  In considering the arguments of the parties, I wish to make it clear that nothing that I say as to the facts of this case should bind or influence the fact-finding tribunal’s assessment of what actually happened on the night of 28 July 2007. My own evaluation is necessarily based on, and limited to, the witness statements and records which have been placed before me, any proper inferences which may be drawn from such material, the dictates of common sense and any agreement on the issues between the parties. If I were to go further, I would be in danger of trying the case myself. At the adjourned hearing of Nguyen Trong Son v Director of Legal Aid (unrep., LAA No 20/1999, 15 December 2000), which was not a judicial review proceeding but a referral of an appeal against the Director’s refusal of an application for legal aid to a judge of the High Court by the Registrar, Keith JA put the matter in this way (at para 2):

“My function is to determine whether the appellant has shown that he has reasonable grounds for taking the proceedings, bearing in mind that the issue in the case is one of fact. I do not believe that I have to be satisfied that it is more probable than not that the issue of fact will be decided in the appellant’s favour. But I do have to be satisfied, I think, that the appellant has shown that there is a reasonable, as opposed to a fanciful, chance of the court at trial deciding that issue of fact in his favour. That question has to be decided without a prolonged investigation on the part of the court. Otherwise, the hearing of the appeal would degenerate into a mini-trial of the action itself.”

25.  This approach was adopted by Chu J (as she then was) in Ng Ai Kheng Jasmine v Master M Yuen and Legal Aid Department (unrep., HCAL 46/2003, 8 March 2004) (at para 48) as the proper approach towards assessing the merits of an applicant’s claim for legal aid whether the issue be one of fact or law. Although, like the present case, Ng Ai Kheng Jasmine was an application for judicial review of the Registrar’s decision on appeal from the Director’s decision, Chu J went on (at para 50) to emphasise that:

“…it is essential to bear in mind that this is a judicial review application. It is not an appeal from either the Director’s or the Master’s decision. The court in a judicial review is concerned with legality and not with merits. In the present case, relief will only be granted if the applicant can demonstrate that the Director has committed an error of law or has acted Wednesbury unreasonably in arriving at the conclusion on the prospect of the OU claim. In dealing with this part of the judicial review application, I will focus on the complaints the applicant has against the decisions of the Director and the Master.”

26.  In approaching this application, it is not therefore simply a matter of considering whether an applicant has a reasonable claim, but of deciding whether the Registrar’s decision is properly open to review.

27.  One of the problems in this case is that the Registrar was not treated, as I have been, to an analysis of the law as it might apply to reasonable permutations of the facts on the papers before him. Although the joint opinion of both Senior and Junior Counsel on behalf of the applicants identified what was termed “the key factual question” and the propositions which flowed from its answer, the authorities of McBean v Parker and Cumberbatch and Ali, which were strongly relied upon before me, were never mentioned. Nor did Senior Counsel advising the Director condescend to the sort of analysis which a reference to those authorities might have prompted. Yet both authorities were in existence well before the hearing before the Registrar and before the opinions of leading counsel were written. Had they been brought to his attention and discussed, the Registrar would not in my judgment have so readily yielded to the assertion that the police would easily show that they had reasonable suspicion for arresting the applicant.

28.  I emphasise again that I am not suggesting how the facts should be resolved or how the law should be applied to those facts; merely, that there is on the papers a reasonable way of applying the law if the facts are found in a particular way favourable to the applicants. On the other hand, it may be, as Mr Cooney contends, that the tribunal of fact, having heard the evidence, finds that there was “an independent, free-standing breach of the peace” as considered in Cumberbatch and Ali (at para 34) which might have justified F’s arrest. Or it may be, as he further submits, that if the use of unreasonable force on Officer Z by F amounted to a common assault, Officer X could re-enter the picture and, in the execution of his duty, lawfully restrain F from assaulting Officer Z, as postulated in the commentary to McBean v Parker (at 401). The difficulty with these contentions is that they rely on an assessment of the evidence by the tribunal of fact. That is an assessment I cannot make: nor could it have been made by the Registrar.

F’s application

29.  As I said earlier, the critical issue in this case, and the one upon which this application ultimately became focused, is whether police officers were lawfully acting in the execution of their duty when attempting to restrain and subsequently arrest F. Since I have found that the Registrar was wrong to conclude on the present state of the evidence that the police would easily be able to show that they had reasonable suspicion to arrest F and thereby that his arrest was lawful, the next question is whether the Registrar’s decision is amenable to review.

30.  One only has to postulate the opposite contention, namely that F’s arrest was unlawful, to see that the issue must have been decisive of his ruling. In my judgment, had the Registrar considered that F had a viable claim for unlawful arrest (and, consequently, unlawful detention) as well as battery, his conclusion as to the venue of trial and his decision as to whether F should be granted legal aid to fund his action would have been different. As Hartmann J (as he then was) put it in Christian Bulao Palmis v Director of Immigration (unrep., HCAL 2104/2001, 19 February 2003) (at para 61):

“It is settled law that if a decision-maker makes a material error of fact then that error may vitiate the decision if there is a real likelihood that, if the truth had been known, a different decision would or might have been reached: see, for example, R v Director of Immigration and the Refugee Status Review Board, ex parte Do Giau and Others [1992] 1 HKLR 287, at 301.”

31.  My view in relation to this issue is enough to allow the application and quash the decision of the Registrar in relation to the 1^st applicant. Conscious of the fact that there will be a trial of the issues discussed in these applications, I have been at pains throughout this judgment to make clear that I have not come to any conclusive view about the facts of this case. For that reason I do not intend to say anything in relation to the Registrar’s decision about the fourth incident. It may be that this particular incident is to some extent dependent on findings in relation to the third incident: it may be that it is distinct and unconnected. Whatever the position, it does not necessarily follow that even if the claim in relation to the third incident were ultimately to be established, the claim in relation to the fourth must also made out. That is a matter for trial.

M’s application (on behalf of A and B)

32.  I am not so hesitant about indicating my view in relation to M’s claims (on behalf of A and B) in relation to the fifth and sixth incidents. Although submissions in relation to the fifth incident have not been advanced before me, common sense would have dictated that the children should not be taken to the police station with their parents when their parents were arrested, particularly when F was in a highly emotional state. There is no evidence that the children were left unattended in the park; indeed the joint opinion of counsel for the applicants itself averred (at para 19) that “according to the instructions provided by the father, a friend called Ramesh took care of the children while they (M and F) were arrested”. Further, according to para 20 of the same opinion, “Ramesh then brought the children to the Sham Shui Po police station”. When they appeared at the police station, common humanity required that A and B be placed together with their mother, however it came about. There is no suggestion that A and B were ever arrested in any sense of that word or that they were not free to leave the cell in which their mother was detained should they have wished to do so.

33.  The Registrar, having considered the available evidence, expressed the view forcefully that:

“...public money should not be expended on a flimsy cause of action and even more flimsy state of evidence, and I dismiss the children’s appeal.”

34.  I see no reason to impugn his decision or the reasons therefor and would dismiss M’s applications (on behalf of A and B).

Conclusion

35.  Accordingly, I quash the Registrar’s decision of 9 February 2011 refusing the application of the 1^st applicant for legal aid. Under Order 53 Rule 9(4) of the Rules of the High Court, I remit the matter to the Registrar for him to reconsider it and reach a decision in accordance with the findings of this Court.

36.  I dismiss the 2^nd applicant’s application (on behalf of A) and the 3^rd applicant’s identical application (on behalf of B).

37.  Given that the 1^st applicant succeeds but the 2^nd and 3^rd applicant fail in this application, I make a costs order nisi that: (i) the Interested Party do pay the costs of the 1^st applicant to be taxed if not agreed, and the 1^st applicant’s own costs be taxed in accordance with the Legal Aid Regulations; (ii) the 2^nd and 3^rd applicant do pay the costs of the Interested Party to be taxed if not agreed, and the 2^nd and 3^rd applicant’s own costs be taxed in accordance with the Legal Aid Regulations.