廣州市鄰港貿易有限公司 AND OTHERS v. SECRETARY FOR JUSTICE

HCPI 884/2012

[2022] HKCFI 2438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 884 OF 2012

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J U D G M E N T

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I. INTRODUCTION

1.  There were 3 plaintiffs in the present action. The 1^st, 2^nd and 3^rd plaintiffs are respectively referred to as “P1”, “P2” and “P3” and collectively as “Ps” in this Judgment. Pursuant to the order of Bharwaney J dated 6 January 2017 (see §51 below), there was to be a preliminary trial of the claims advanced by P2 and P3 against the defendant (“D”) on the issues of (a) false imprisonment and (b) misfeasance in public office (“Preliminary Trial”), and all other issues of liability and quantum in the present action would to be dealt with after determination of the Preliminary Trial. Thus, the Preliminary Trial did not concern P1’s claims against D in the present action.

2.  At the 2^nd pre-trial review (“PTR”) on 8 August 2020 (“2^nd PTR”), this court extended the scope of the Preliminary Trial to all issues of liability pertaining to claims by P2 and P3 against D that would also include the issue of negligence. But on the 1^st day of the Preliminary Trial on 14 October 2020, Mr Sio (and Ms Leung with him), counsel for P2 and P3, abandoned P2’s and P3’s cause of action in negligence against D in the present action. Consequently, this court was only required to determine the issues of liability for P2’s and P3’s causes of action in false imprisonment and in misfeasance in public office against D.

II.  PLEADINGS

3.  Ps’ relevant pleadings were their Re-Amended Statement of Claim filed on 28 October 2011 (“RASoC”) (verified by English statements of truth (“SoTs”) (without interpretation clause) by P2 on behalf of P1 and himself and by P3 also filed on 28 October 2011) and their Reply filed on 22 December 2011 (“Reply”) (which did not appear to be verified by any SoT). D’s relevant pleading was her Re-Amended Defence filed on 25 November 2011 (“RAD”).

4.  The RASoC neatly segregated the pleaded claims (a) for P1’s causes of action in conversion, misfeasance in public office, negligence and false representation in §§1-19 thereof (including P1’s prayer of reliefs pleaded after §19 thereof), and (b) for P2’s and P3’s causes of action in false imprisonment, negligence and misfeasance in public office in §§20-39 thereof (including P2’s and P3’s prayer of reliefs pleaded after §39 thereof).

5.  At the 2^nd PTR, for the purpose of case management, the parties adopted the following parts of their respective pleadings for the Preliminary Trial: (a) §§1-14 and §§20-36 of the RASoC (but P2 and P3 would also rely on §§16-17 thereof as averments of material facts and not as pleaded causes of action), (b) §§1-21, §§25-27 and §§30-56 of the RAD (but D would not rely on averments of illegality and avoidance by reason of public policy under §11(a) thereof), and (c) §§1-16 and §§19-22 of the Reply (but P2 and P3 would also rely on §§17-18 thereof as averments of material facts and not as pleaded causes of action).

6.  In his written opening submissions, Mr Lam (and Mr Hor with him), counsel for D, confirmed D would not dispute the Commissioner of Police (“Commissioner”) and hence D would be vicariously liable should this court find (which D disagreed) the police officer(s) concerned was/were liable under P2’s and P3’s relevant cause(s) of action.

7.  Ps  Ps averred (a) P1 was a company incorporated in Guangzhou City, Mainland China that carried on logistics business, and (b) P2 and P3 were Hong Kong citizens employed by P1 since 1994 and 2000 respectively for P1’s business operations in Hong Kong , but D claimed she had no knowledge of and did not admit such matters.

8.  Conversion  Ps pleaded inter alia that:

(a)	On/about 25 May 2007, P1 agreed with a PRC citizen 梁永超 (Leung Wing-chiu, “WC Leung”) to ship scrap metal in 6 containers (“Containers”)[1] from Hong Kong to 防港市 (should be 防城港市 (Fang Cheng Gang City), Guangxi Province, Mainland China (“Fang Cheng Gang City”) (“1st Agreement”).
(b)	At/about the end of June 2007, the goods in the Containers (“Goods”) were detained by 廣西海關 (customs and excise authority of Guangxi Province, Mainland China, “Guangxi C&E”) for non-compliance with “environmental regulations”.
(c)	In early August 2007, P1 and WC Leung (as “owner” of the Goods) agreed for P1 to procure release of the Goods/Containers from Guangxi C&E, and to ship them back to Hong Kong for collection by WC Leung upon his payment of agreed costs/disbursements at RMB50,000/Container (totalling RMB300,000) to P1 (“2nd Agreement”).
(d)	P1 arranged for release of the Goods/Containers from Guangxi C&E and for their shipment back to Hong Kong. On 16 August 2007, the Goods/Containers were ready for collection by “the owner [WC Leung]” at the container depot of 萬里通物流有限公司 (Everywhere Logistics Limited) at Ping Ha Road, Tin Shui Wai, Yuen Long, New Territories (“TSW Depot”) upon payment to be made.
(e)	On 16 August 2007, police officers of Divisional Crime Investigation Team One (“DCI Team 1”) of Tin Shui Wai Police Station (“TSW Police Station”) (“Team 1 Officers”) wrongfully seized the Goods/Containers at TSW Depot from the “possession of [Ps]”,[2] and purported to detain them as prosecution exhibits for an alleged blackmail case.
(f)	Upon seizure of the Goods/Containers, P2 explained to the Team 1 Officers that Ps had “the right to possession of the Goods by showing them various documents, including contracts, shipping and banking documents, as evidence of [Ps’] entitlements to the seized [Goods] ……” (“Documents”) (see §10 of the RASoC[3]).[4] But despite presentation of the Documents (see footnotes 3-4 above) and Ps’ repeated demands,[5] the Team 1 Officers continued to wrongfully detain the Goods/Containers and refused to return them to Ps on the pretext that they were prosecution exhibits for a blackmail case.
(g)	On a date unknown to Ps and without notice to them and/or without their knowledge/consent, the Team 1 Officers parted with possession of the Goods/Containers to strangers, or alternatively converted them to the use of third party(ies).
(h)	The Team 1 Officers’ disposal (after seizure) of the Goods/ Containers to third party(ies) was “an interference with [Ps’] possessory rights and amounted to a conversion of the Goods”. Further, WC Leung did not perform his contractual obligation, so P1 did not receive the consideration of RMB300,000 under the 2nd Agreement. Still further, (i) Ps were not prosecuted for any criminal charge, (ii) the Goods were never tendered as prosecution exhibits, and (iii) Ps had “rights of possession in the Goods against the [Team 1 Officers]” “at the time of the Conversion and at all material times”.

9.  D admitted (a) the subject matter of the present action was the 6 Containers, (b) some/all of the Containers contained scrap metal (but D claimed the Containers also contained used computers, used computer parts and/or computer waste (“E-Waste”)), and (c) the Containers were in Hong Kong on 16 August 2007. Save for such admissions and subject to D’s denial in §10 below, D did not admit Ps’ averments in §8 above.

10.  D averred P1 was a private (and not a common) carrier, and denied P1 was entitled to or had any possessory title or right of lien over the Goods/Containers whether for (a) the sum of RMB300,000, (b) any other sum, (c) services rendered and/or disbursements incurred, or otherwise. D also denied (i) police officers (whether of DCI Team 1 or otherwise) ever seized any Container(s) whether on 16 August 2007 or at any other time, (ii) any seizure of the Container(s) by police officers (which D disagreed) was wrongful, and/or (iii) police officers ever detained the Container(s) whether as prosecution exhibits or for any other purpose and/or whether for a blackmail case or for other criminal case(s). But Ps averred in reply there was no proof that their physical possession of the Goods was acquired wrongfully or without right, and P1 in reply denied it did not have possessory title over the Goods, especially when 2 letters dated 28 April and 11 September 2008 by the police to Ps’ solicitors CFC (as defined in footnote 5 above) confirmed the Team 1 Officers had seized/detained the Goods.

11.  Next, D averred as follows:

(a)	On 16 August 2007, a Hong Kong citizen (“Informant”) known to the police as許文強 (Hui Man-keung, “Hui”) made a report to the police at TSW Police Station.
(b)	The Informant told police officers at TSW Police Station that: (i) he was the proprietor of a logistics company,[6] (ii) in May 2007 he entered into a contract with another to ship the Containers containing computer waste (ie E-Waste) from Hong Kong to南海 (Nan Hai), Mainland China (“Nan Hai”), (iii) he sub-contracted shipment of the Containers to a鄧禮斌 (Tang Lai-bun, “LB Tang”) of防城港市中港資源再生科技有限公司 (Fang Cheng Gang City Zhong Gang Resources Regeneration Technologies Company Limited, “FCGC Co Ltd”), (iv) on/about 2 June 2007 the Containers were delivered to a shipping company nominated/arranged by LB Tang, (v) by/about 20 June 2007 the Containers still had not arrived at Nan Hai, so he made enquiries with LB Tang who merely asked him to wait,[7] (vi) he asked LB Tang (who failed to deliver the Containers despite long lapse of time) to ship the Containers back to Hong Kong for return to him, which in effect “terminated the subcontract between the Informant’s company and  [LB Tang’s] company”,[8] (vii) despite repeated reminders/demands, LB Tang still failed to return the Containers to him upon the excuse that there were problems with shipping schedules,[9] (viii) on 15 August 2007 he met LB Tang (accompanied by 2 male persons) at 彩城皇宮酒樓 at彩圍 (Choi Wai), Sheung Shui, New Territories (“Restaurant”) to discuss the matter, (ix) LB Tang asked him to talk to the 2 male persons who accompanied him and then left, (x) during the ensuing discussion at the Restaurant, the 2 males asked him to pay RMB50,000/Container otherwise the Containers would not be returned to him, (xi) during subsequent telephone conversations between him and one of the males on the same day it was agreed he would pay RMB30,000/Container, (xii) he later thought there was no reason for him to pay money for return of the Containers when LB Tang failed to deliver them as contracted, and (xiii) he considered he was blackmailed, so he reported to the police.
(c)	When the Informant was at TSW Police Station making his report to the police, he received a telephone call asking him to collect the Container(s) at TSW Depot.
(d)	DPC58096 Chu Wai-ho Billy (“DPC58096”) in plainclothes accompanied the Informant to TSW Depot.
(e)	At TSW Depot, the Informant and DPC58096 were met by inter alia P3, who intimated to them the Containers would not be released unless the Informant paid RMB30,000/Container. When DPC58096 told P3 they did not have money with them, P3 replied in that case the Containers would not be returned.
(f)	Other police officers[10] arrived at TSW Depot and arrested P3.
(g)	The police officers found 2 Containers at TSW Depot, which the Informant identified as part of the Containers he delivered to LB Tang for shipment to Nan Hai.
(h)	While the Informant and the police party were still at TSW Depot,[11] P2 arrived and the Informant recognised him as 1 of the males who demanded money from him at the Restaurant on 15 August 2007, so P2 was also arrested by the police officers.
(i)	On the same day, upon information provided by P3, police officers found 4 other Containers at the container depot of穎健物流有限公司 (Victory Kind Logistics Limited) at Lots 406-411, So Kwun Wat, Tuen Mun, New Territories (“TM Depot”), which the Informant identified as the remaining Containers he delivered to LB Tang for shipment to Nan Hai.
(j)	Upon payment of relevant charges and verification of relevant shipping documents,[12] TSW and TM Depots released the Containers to the Informant. Upon police request,[13] the Containers were stored at the container terminal of太平洋貨運有限公司 (Pacific Cargo Service Limited) at Hong Wan Road, Tsing Yi, New Territories (“TY Depot”) until 17 December 2007.[14]

12.  D averred (but Ps did not admit) the Containers were kept at TY Depot upon police request as (a) they might be of value to the investigation of an offence, and (b) the police had yet to ascertain the identity of the rightful owners thereof.

13.  Thus, D claimed (a) the Containers were never seized and/or detained by the police, (b) they remained in the possession/custody of the Informant who was willing to co-operate with the police and to deal with the Containers according to police request on voluntary basis, and (c) the transit of the Goods had not been completed, so no possessory title or right of lien over the Containers in favour of P1 could have arisen.

14.  Ps’ Reply averred Ps had no knowledge of the matters in §§11-13 above, and disagreed the Team 1 Officers never seized/detained the Goods. But if D’s allegations were established (which Ps denied), Ps (i) averred it was wrongful for the Team 1 Officers to convert the Goods to the use of third party(ies), (ii) reiterated the averments in §8(b)-(d) and (h) above, and (iii) further averred as follows:

(a)	代理報關委托書 (defined in footnote 3(b)(ii) above) was signed between P1 and “the owner and/or its agent of the Goods” that authorised P1 to ship the Goods to Fang Cheng Gang City;
(b)	代理報關委托書 provided that the Goods must correspond to the description in the declaration form by “the owner and/or its agent of the Goods”;
(c)	代理報關委托書 further provided that should the Goods be detained by Guangxi C&E, “the owner and/or its agent of the Goods” was required to pay compensation of RMB80,000/ Container;
(d)	the Goods were detained by Guangxi C&E because they did not correspond to description under the declaration form by “the owner and/or its agents (other than [Ps]) of the Goods”;[15]
(e)	such detention of the Goods was communicated to “the owner and/or its agent of the Goods by [P1]”;
(f)	the Team 1 Officers wrongfully gave possession and custody of the Goods to the Informant.

15.  Based on the aforesaid, Ps averred that at all material times they had possessory title and right of lien over the Goods. Further or alternatively, Ps claimed they had “an arguable civil right over the Goods and the [Team 1 Officers] did not have the right or duty to interfere and/or determine the possessory title of the Goods and to dispose of them to a third party without the consent of [Ps]”.

16.  Next, D agreed that (a) Ps demanded return of the Containers and (b) none was returned to Ps or anyone on their behalf, but D denied that (i) the Containers were detained or wrongfully detained by the police, and/or (ii) while being confronted by police officers at TSW Depot, P2 or anyone else claimed any right to possession over the Containers or produced any documents to substantiate Ps’ entitlement to the Containers. Ds averred Ps did not make any claim over the Containers and did not demand for their return until CFC (ie P1’s solicitors) sent a letter dated 4 August 2008 to the police (“4/8/08 Letter”) asking for return of the Containers to P1’s alleged authorised agent, but by then the rightful owners had taken possession of the Containers. D further averred none of Ps nor anyone on their behalf produced to the police any document to substantiate their entitlement to the Containers. So although D agreed other persons took possession of the Containers without notice to, knowledge of or consent by Ps, D denied the police was ever in possession of the Containers and/or any parting of possession thereof was wrongful.

17.  Ps’ Reply admitted Ps requested for return of the Goods to P1’s authorised agent by the 4/8/08 Letter, but denied (a) Ps did not make any claim/demand in respect of the Goods until 4 August 2008, and/or (b) none of Ps ever produced to the police any document to substantiate their entitlement to the Goods. Ps averred (i) P2 and P3 demanded return of the Goods from the Team 1 Officers each time they answered bail at TSW Police Station, (ii) P2 produced photocopies of the Documents to the Team 1 Officers to claim possessory title over the Goods when he answered bail at TSW Police Station, and (iii) P2 reiterated §8(f) above that the Documents were shown to and seized by the Team 1 Officers at the time of arrest.

18.  D next averred that on 17 December 2007 the Informant, upon police request,[16] consented/permitted the respective rightful owners to take possession of the Containers and to remove them from TY Depot. But Ps’ Reply claimed Ps had no knowledge about the dealings between the Team 1 Officers and the Informant, and averred (a) the Team 1 Officers only had limited/temporary power of seizure over the Goods, and (b) their wrongful disposal of the Goods to third parties without notice to and/or knowledge/consent of Ps was a tortious act of conversion.

19.  D agreed Ps had not been prosecuted for the aforesaid events, and the Containers had not been produced as exhibits in any criminal case. D claimed to have no knowledge about the dealings between Ps and WC Leung, and denied (a) Ps or any one of them at any time had right of possession over the Containers, and/or (b) the rightful owners taking possession of the Containers were wrongful or in breach of any of Ps’ rights. But Ps’ Reply claimed the Team 1 Officers ought to have known about the dealings between Ps and WC Leung because of P2’s/P3’s disclosures to the Team 1 Officers during recorded police interviews.

20.  Misfeasance in public office (vis-à-vis P1)  Further and/or alternatively, Ps claimed the unjustified seizure of the Goods and/or the pretext that the Goods were required as prosecution exhibits for continued detention of the Goods were abuses of statutory power conferred on the Team 1 Officers under the Police Force Ordinance Cap 232 (“PFO”). Under section 50(6) of the PFO, the Team 1 Officers were conferred mere statutory power for seizure/detention for a limited purpose and “for taking control of seizure for a limited duration”. Ps claimed the Team 1 Officers abused their limited statutory power, and thereby divested Ps of their possessory rights.

21.  Ps pleaded that (a) the Team 1 Officers’ disposal of the Goods was made in bad faith and/or was an excuse actuated by malice/ corruption for which Ps made report to the ICAC (as defined in footnote 5 above), (b) the ICAC investigated the complaint, and (c) the Team 1 Officers knew or ought to have known P1 had right of lien over the Goods for inter alia the transportation costs. In the premises, it was averred the Team 1 Officers knew the disposal of the Goods was an excess of power granted to them, but they intentionally/recklessly performed their relevant duties dishonestly and with conscious disregard for Ps’ interests, which interests would be affected by exercise of such power.

22.  Ds denied (a) the Containers or any of them were ever seized by the police, (b) the seizure, if any, was unjustified or unlawful, (c) the police officers ever acted under any pretext, (d) the police officers had abused any power, whether statutory or otherwise, and whether under section 50(6) of the PFO or otherwise, and/or (e) any of Ps’ rights had been infringed or divested. D agreed a report was made to the ICAC in relation to the incident in question, but denied (i) any corruption whatsoever was involved, (ii) there was any bad faith, malice, dishonesty or any impropriety whatsoever on the part of the police officers, (iii) P1 had any right of lien over the Containers, (iv) the police officers knew or ought to have known P1 had right of lien over the Containers (which D disagreed), (v) the police officers abused or acted in excess of their power, and/or (vi) the police officers intentionally, recklessly or in any manner whatsoever exercised their power in a wrongful manner. D further claimed Ps failed to particularise their serious but wholly unfounded allegations pertaining to the mental state of the police officers, and denied the police had seized, detained or took possession of the Containers.

23.  Ps’ Reply pleaded in reply as follows:

(a)	the Team 1 Officers seized from Ps the Goods and/or detained the Goods on the date of arrest;
(b)	both P2 and P3 made claims to the Team 1 Officers that P1 had possessory title over the Goods at the time of arrest and upon their seizure;
(c)	P2 and/or P3 explained to the Team 1 Officers that Ps had right to possession of the Goods by showing them the Documents (see footnotes 3(b) and 4 above);
(d)	P2 and/or P3 explained to the Team 1 Officers the 2nd Agreement made between P1 and WC Leung “and/or owner of the Goods” during interviews with the Team 1 Officers on the date of arrest;
(e)	both P2 and P3 made numerous demands to the Team 1 Officers for return of the Goods on/before 17 December 2007, ie the date when the Team 1 Officers parted with possession of the Goods to third party(ies);
(f)	Ps continued to demand for return of the Goods after 17 December 2007, but were told the Goods were detained for investigation;
(g)	Ps being thereby induced and relying on the aforesaid representations by the Team 1 Officers were deprived of knowledge that the Goods had been converted by the Team 1 Officers to the use of third party(ies);
(h)	the Team 1 Officers never informed Ps the Goods had been converted to the use of third party(ies) until the police sent a letter dated 11 September 2008 to CFC (ie Ps’ solicitors) (“11/9/08 Letter”);
(i)	the Team 1 Officers informed CFC by letter dated 18 February 2009 that no charges would be laid against P2 and P3 (“18/2/09 Letter”);
(j)	by a letter dated 28 April 2009 the Team 1 Officers gave to CFC particulars of the persons to whom they gave the Goods (“28/4/09 Letter”);
(k)	Ps were unable to locate the whereabouts of the Goods and/or to recover the Goods from the persons in possession;
(l)	Ps were unable to claim against WC Leung for agreed costs and disbursements under the 2nd Agreement because the Goods were no longer in the possession of Ps or WC Leung;
(m)	Ps averred the Team 1 Officers were aware (i) Ps were in physical possession of the Goods at the time of arrest and/or seizure, (ii) Ps relied on the Team 1 Officers to return the Goods upon conclusion of the investigation, and (iii) “[Ps’] reliance upon such, together with the [Team 1 Officers’] subsequent course of action, constitute a misfeasance”.

24.  Ps’ Reply gave the following particulars to support P1’s claim for misfeasance in public office, and claimed Ps suffered loss and damages as a result:

(a)	the Team 1 Officers knew or ought to have known their statutory power of seizure did not allow them to convert the Goods to the use of third party(ies) other than Ps;
(b)	the Team 1 Officers knew or ought to have known (i) Ps’ possessory right was not divested by seizure, and (ii) the Goods should be returned to the persons from whom they were seized, ie P2 and/or P3, upon conclusion of the investigation;
(c)	the Team 1 Officers knew or ought to have known they were under a duty to keep the Goods in their custody to prevent them from being lost, damaged, concealed or altered;
(d)	the Team 1 Officers knew or ought to have known they had no right or duty to determine the civil possessory right of the Goods;
(e)	the Team 1 Officers were aware or ought to have been aware Ps had proprietary interest and/or lien over the Goods for inter alia the transportation costs under the 2nd Agreement;
(f)	at all material times the Team 1 Officers knew the disposal/conversion of the Goods to third party(ies) was an excess of power granted to them;
(g)	the Team 1 Officers released the Goods to third party(ies) without giving Ps prior notice of their intention;
(h)	the Team 1 Officers failed to take or chose not to take interpleader action in relation to the Goods before releasing them to third party(ies);
(i)	thus, the Team 1 Officers intentionally or recklessly performed their duties dishonestly and/or with a conscious disregard for the interests of Ps who would be affected by the exercise of such power.

25.  In their Reply, Ps specifically denied “it was reasonable for the [Team 1 Officers] to release the Goods to a mere Informant without conducting any diligent investigation to establish the owner of the Goods”.

26.  False representation  Ps claimed the Team 1 Officers made false representations to them that the Goods were seized or continued to be detained as intended prosecution exhibits for the “blackmail” case against P2 and/or P3 and so could not be returned to Ps, but such representations were false because (a) the Goods seized or continued to be detained were never intended to be prosecution exhibits, and instead they were seized or continued to be detained with the intention of eventual parting possession of the same to strangers, (b) the Goods were wrongly disposed of in/about December 2007, ie about 7 months prior to P2’s and P3’s release from police bail, and (c) the Goods had already been wrongly disposed of when the Team 1 Officers claimed they were still being detained.[17] Ps claimed the Team 1 Officers knew the aforesaid representations were false because the seized Goods (which were evidence in relation to the alleged “blackmail” case that the police was investigating) should be in their custody to prevent them from being lost, damaged, concealed or altered. So Ps averred that having been induced by and having acted in reliance on the representations by the Team 1 Officers, they were deprived of knowledge as to the whereabouts of the Goods and “their possessory rights to the Goods have been interfered”.

27.  On the other hand, D denied that (a) any police officer made the alleged representations and/or (b) any representation made by police officers was false. D repeated the matters in §16 and §22 above, claimed no specific traverse was possible because Ps’ allegation of false representation was lacking in particulars as to inter alia how, when and by whom the representations were made, and averred false representation per se was not a cause of action recognisable at law. D also denied (i) Ps’ allegation that the Team 1 Officers knew the alleged representations were false because the seized Goods (which were evidence for the “blackmail” case the police was investigating) should be in their custody to prevent them from being lost, damaged, concealed or altered (see §26 above), which allegation D found difficult to understand, (ii) Ps had been induced by or had acted in reliance upon any representation made by D, (iii) Ps had any right, possessory or otherwise, over the Containers, and/or (iv) any rights of Ps were wrongfully infringed or interfered with.

28.  Ps’ Reply pleaded the following particulars for the claim on false representation: (a) the averments as pleaded in the RASoC, (b) the representations as averred in the RASoC were made between 16 August 2007 (ie date of arrest of P2 and P3) and 11 September 2008, and (c) such representations were made upon numerous enquiries by P2 and/or P3 when they attended TSW Police Station to answer bail. Ps averred the Team 1 Officers knew such representations were false because the Goods had already been released to third party(ies) on 17 December 2007, and were no longer in their custody.

29.  Claim by P1 against D  §§8-28 above concerned P1’s claim against D for loss and damages in respect of the causes of action in conversion, misfeasance in public office and false representation (putting aside for the moment P1’s claim in negligence) and D’s defence thereto. Whilst P2 and P3 were allowed to rely on such pleas as part of the background material facts, they did not go to P2’s and P3’s specific causes of action against D set out in §§30-47 below.

30.  False imprisonment (vis-à-vis P2 and P3)  Ps pleaded that:

(a)	On 16 August 2007, P2 and P3 were wrongfully and without reasonable and probable excuse arrested by the Team 1 Officers on allegation of blackmail.
(b)	In the morning of 16 August 2007, P3 (acting upon P1’s instructions) transported the Goods to TSW Depot for WC Leung’s collection. Upon arrival, P3 was wrongfully and without reasonable/probable cause arrested by DPC47923 (as defined in footnote 3(a) above) for blackmail regardless of his explanation that he transported the Goods upon his employer’s (ie P1’s) instructions.
(c)	At the time of his caution and arrest, P3 was coerced[18] by DPC47923 to telephone and ask P2 to attend TSW Depot. When P2 arrived at TSW Depot, he was immediately, wrongfully and without reasonable/probable cause arrested and handcuffed by DPC47923 on suspicion of blackmail. At the time of his arrest, P2 had in his possession the Documents, but was not given an opportunity to show and explain to DPC47923 or any other police officer at TSW Depot (see footnote 4(f) above).[19]
(d)	Later on the same day, both P2 and P3 were taken to TSW Police Station for body-searches and investigations over the Documents seized (by DPC47923, according to Ps’ 28/8/12 FBP as defined in footnote 3 above) from P2’s possession without giving him receipt. Both P2 and P3 were detained at TSW Police Station until about 10:00pm on the same day, and were taken by the Team 1 Officers to their respective home for house search.

31.  Ps claimed that, without prejudice to the above, there were no reasonable ground for suspecting the Goods were wrongfully detained by Ps and/or Ps might have committed an offence of blackmail. Ps gave particulars of false imprisonment through wrongful arrest as follows: (a) at the time of the arrests Ps had possessory right to the Goods, (b) at the time of his arrest P3 was a mere employee responsible for transporting the Goods to TSW Depot, (c) P2, who was a mere employee of P1, was forced to attend TSW Depot, (d) P2 produced the Documents to the Team 1 Officers to show P1’s lawful possessory right to the Goods (see footnote 4(c) above), and (e) the Team 1 Officers failed to make any inquiry or cause any inquiry to be made of the Documents before announcing the arrest.

32.  Ps further claimed that, without prejudice to the above, DPC47923 and/or other Team 1 Officers did not themselves believe P2 and/or P3 might have been involved in a case of blackmail. P2 complained to the ICAC against the Team 1 Officers for their irrational/ unreasonable conduct and for suspicion of favoritism/corruption, and the ICAC investigated P2’s complaint.

33.  Ps also claimed P2 and P3 were further humiliated in the evening of 16 August 2007 by the Team 1 Officers taking them handcuffed and unhooded to their homes for house searches in the presence of their family members and neighbours.[20] After the house searches, both P2 and P3 were taken back to TSW Police Station. Ps averred that P2 and P3 were given police bail of HK$1,000 each after midnight on 17 August 2017, so they were detained for about 12 hours. P2 and P3 were required to report to TSW Police Station to answer bail on numerous occasions from 16 August 2007 to 21 July 2008 when they were released unconditionally without charge by the Team 1 Officers.

34.  On the other hand, D admitted (a) P2 and P3 were arrested by Team 1 Officers on 16 August 2007 for suspicion of having committed an offence of blackmail, (b) P3 was arrested by DPC47923 on 16 August 2007 for suspected offence of blackmail, and P3 said under caution he was merely acting under order (“我都係聽order做事啫”) (which response Ps admitted in their Reply), (c) P2 was arrested and cautioned by DPC47923 on 16 August 2007 for suspected offence of blackmail, and P2 said under caution he did not commit blackmail but was acting according to an order (“我無勒索, 我照單做啫”), (d) P2 and P3 were brought back to TSW Police Station after their arrests, (e) further investigation was conducted with P2 and P3 body-searched at TSW Police Station, (f) house searches were conducted at the homes of P2 and P3 with their consent in the evening of 16 August 2007, (g) police officers escorted P2 and P3 to their respective home for house search, (h) P2 and P3 were handcuffed and unhooded during the process, (i) some other persons were present in P2’s and P3’s respective home at the material time, (j) P2 and P3 were brought back to TSW Police Station after the house searches, (k) P2 and P3 were released on police bail in the sum of HK$1,000 each in the same evening, (l) P2 and P3 were released on police bail at/about 11:43pm on 16 August 2017, so P2 was detained for 8 hours 35 minutes and P3 was detained for about 9 hours 53 minutes, (m) P2 and P3 were required to report to TSW Police Station to answer bail on a number of occasions, (n) P2 and P3 were not arrested for “wrongfully detaining” the Containers, (o) a report was made to the ICAC in relation to the incident in question, (p) P2 and P3 were eventually unconditionally released in July 2008, and (q) neither P2 nor P3 was charged by the police for the incident in question.

35.  D further averred that handcuffing P2 and P3 was a reasonable preventive measure to avoid risk of them escaping police custody, and it was unnecessary for P2 and P3 to wear a hood on their heads during the process because:

(a)	there was no risk of unintentional identification by potential witnesses;
(b)	the case had not attracted media attention, and there was no risk that P2’s and/or P3’s images would be published through the media;
(c)	it was already after 10:00pm when P2’s house search was conducted and after 11:00pm when P3’s house search was conducted, so the chance of P2 and/or P3 being seen by persons in the neighbourhood of their respective home was not great;
(d)	P2 and P3 were escorted by police officers in plainclothes and they were conveyed in unmarked vehicles, so they were unlikely to draw any public attention;
(e)	P2 and P3 and the accompanying police parties in fact did not come across any local residents in the process of ingress and egress from P2’s and P3’s respective home, and no public attention was drawn.

36.  D denied P’s pleas, including the allegations that (a) the arrests and handcuffing of P2 and P3 were wrongful or without reasonable/probable cause, (b) P3 made any telephone call to P2 or anyone at TSW Depot at/about the time of his arrest, (c) P2 attempted to produce any document to police officers at TSW Depot or any other time, (d) any document whatsoever was seized from either P2 or P3 while they were at TSW Police Station, (e) there were no reasonable grounds for suspecting P2 and P3 might have committed an offence of blackmail, (f) the arrests of P2 and P3 were wrongful or amounted to false imprisonment as P alleged or otherwise, (g) P2’s and P3’s house searches caused humiliation to P2 and P3, (h) P2 and P3 were detained by the police for as long as 12 hours, (i) the police was negligent as Ps alleged or otherwise, and (j) P2 and P3 were put on police bail for longer than reasonable and/or necessary in the circumstances of the case. Further, D averred “wrongly being subjected to police bail and charges” was not a civil wrong known to the law.

37.  Ps’ Reply pleaded that at the time of their arrest both P2 and P3 resided at public housing estates, and Ps denied that D’s averments, including allegations that (a) the chance of P2 and/or P3 being seen by persons in the neighbourhood of their respective home was not great, (b) the escort of P2 and/or P3 by the Team 1 Officers was unlikely to draw any public attention, and (c) P2/P3 and the accompanying Team 1 Officers did not come across any local resident in the process of ingress and egress from P2’s and/or P3’s respective home.

38.  Negligence  Ps claimed that further or alternatively the matters set out in §§30-33 above showed the Team 1 Officers were negligent (i) in arresting and detaining P2 and P3 in the first place, and (ii) in holding them on police bail for a long time due to their negligent conduct in the course of their investigation:

(a)	the Team 1 Officers were negligent to rely on unsubstantiated or false assertions made to them by persons whose identities were unknown;
(b)	the Team 1 Officers were aware and ought to have been aware that the assertions made to them by such unknown persons (even if taken to the highest) were mere disputes of a civil nature between P1 and the “owner” WC Leung in relation to the Goods with no involvement whatsoever of any criminal offence;
(c)	the Team 1 Officers failed to pay any or any adequate attention to the Documents and other information provided by Ps, but conducted the investigation for an unnecessarily long duration;
(d)	the Team 1 Officers failed to utilise their expertise to investigate the alleged “blackmail” case diligently and promptly;
(e)	although the Goods were alleged to be material prosecution exhibits for the alleged “blackmail” case, the Team 1 Officers failed to terminate the investigation promptly after the Goods were disposed of in December 2007;
(f)	the Team 1 Officers were negligent in continuing to require P2 and P3 to answer bail when investigation of the alleged “blackmail” case should have been concluded upon the wrongful disposal of the Goods.

39.  On such premise, Ps alleged P2 and P3 were falsely imprisoned for around 12 hours, and wrongly subjected to police bail and charges for around 11 months.

40.  Misfeasance in public office (vis-à-vis P2 and P3)  Ps’ pleadings on P2’s and P3’s cause of action against D for misfeasance in public office alleged (a) prolonged period of police bail from 17 December 2007 to 21 July 2008, and (b) use of handcuffs on the way for and during house searches. Ps claimed P2 and P3 were subjected to unjustifiable period of police bail and unreasonable use of handcuffs, which caused them to suffer inconvenience and/or embarrassment.

41.  In respect of Ps’ allegation as to the prolonged period of police bail (see §40(a) above), Ps further or alternatively claimed the unreasonably long period of investigation resulting in long-term police bail which P2 and P3 had to answer was an abuse of the police power of investigation and the statutory power conferred on the police under section 50(1) of the PFO (see §60 below). Without prejudice to the foregoing, it was said the Team 1 Officers did not have reasonable cause to believe or suspect P2 and/or P3 would be guilty of blackmail after the Goods were disposed to third party(ies). Ps therefore claimed the prolonged period of police bail faced by P2 and P3 was caused by abuse of power by the Team 1 Officers, who performed their duties in bad faith and/or recklessly with conscious disregard for the interests of P2 and/or P3.

42.  On the other hand, D admitted that investigations were carried out in relation to the case in question and that P2 and P3 were put on police bail pending the outcome thereof, but denied Ps’ claim, particularly Ps’ pleas that (a) the period of police investigation was long or unreasonably long, (b) P2 and/or P3 were required to answer long-term police bail, and/or (c) the police officers committed any abuse of power, whether statutory or otherwise, and whether under section 50(1) of the PFO or otherwise.

43.  In respect of Ps’ allegation as to use of handcuffs on the way for and during house searches (see §40(b) above), Ps further or alternatively claimed that P2 and/or P3 being handcuffed when conveyed to their homes for house searches was abuse of power conferred on the Team 1 Officers under the Police General Orders (“PGO”). It was said that at all material times, neither P2 nor P3 demonstrated any violent behaviour or any tendency to escape, so the use of handcuffs was unreasonable and unjustifiable, and the Team 1 Officers were reckless as to the probable injury/harm suffered by P2 and P3.

44.  On the other hand, D denied Ps’ allegations, especially Ps’ pleas that (a) handcuffing P2 and P3 on their way to house searches was abuse of power or was in any manner whatsoever unreasonable and/or unjustified, (b) P2 and/or P3 suffered any inconvenience and/or embarrassment, (c) any inconvenience and/or embarrassment suffered by P2 and/or P3 were caused by any wrongful act on the part of the police officers concerned, (d) the police officers concerned were reckless in any manner whatsoever, and (e) the length of time for which P2 and P3 were put on police bail was unjustifiable.

45.  Ps’ Reply additionally gave the following particulars in support of P2’s and P3’s claim for misfeasance in public office:

(a)	the Team 1 Officers knew or ought to have known that their power of investigation was conferred and confined by section 50(1) of the PFO and/or other guidance set by the police;
(b)	the Team 1 Officers were aware or ought to have been aware that the Informant’s assertions to them (even if taken to the highest) amounted to mere dispute of civil action nature between Ps and the Informant;
(c)	the Team 1 Officers were aware and ought to have been aware that on the day of arrest P2 and P3 resided in public housing estates, and their being handcuffed would be seen by neighbours when they were taken to their homes for house searches;
(d)	the Team 1 Officers were aware and ought to have been aware that there was no likelihood of P2 and/or P3 escaping when they were accompanied by the Team 1 Officers during ingress and egress from their respective home for house search;
(e)	the Team 1 Officers were aware or ought to have been aware that use of handcuffs on P2 and P3 throughout the house searches was not desirable, and would only embarrass P2 and/or P3 if seen by their neighbours and family members;
(f)	so the Team 1 Officers knew or ought to have known that to handcuff P2 and/or P3 before, during and/or after the house searches was an abuse of power granted to them, but they intentionally or recklessly performed their relevant duties with conscious disregard for the interests of P2 and P3, who would be embarrassed by such exercise of power;
(g)	the Team 1 Officers were aware or ought to have been aware they did not have reasonable cause to believe or suspect P2 and/or P3 would be guilty of “blackmail” after the Goods were released to third party(ies) on 17 December 2007;
(h)	so the Team 1 Officers ought to have known P2 and/or P3 should be released from police bail on or shortly after 17 December 2007;
(i)	the Team 1 Officers were aware or ought to have been aware that it was abuse of power to require P2 and/or P3 to answer police bail between 17 December 2007 and 21 July 2008 when there was no realistic prospect that prosecution action would be taken against them;
(j)	the Team 1 Officers were aware or ought to have been aware P2 and/or P3 became unemployed shortly after their arrests, and the prolonged investigations caused P2 and/or P3 inconvenience, grievance and/or depression;
(k)	P2’s and P3’s prolonged period of police bail was therefore unreasonable and unjustifiable, and the Team 1 Officers performed their duties in bad faith and/or recklessly with conscious disregard for the interests of P2 and/or P3.

46.  Claim by P2 and P3 against D  Ps claimed that by reason of the above matters, P2 and P3 suffered loss and damages, ie loss of liberty for about 12 hours, loss of income to be assessed, and damages for having incurred travel expenses to answer bail at TSW Police Station. Further or alternatively, Ps also pleaded that by reason of the above matters, P2 and P3 sustained personal injuries being psychiatric/psychological illness caused by the Commissioner as a result of the aforesaid encounter with the police. Further or alternatively, P2 and P3 were entitled to claim exemplary damages on the basis of the following: (a) the facts/matters in §§30-45 above, (b) P2 and P3 were handcuffed and unhooded when escorted to their homes for house searches in the evening on the day of their arrests, (c) P2 and P3 (who were handcuffed and escorted by the Team 1 Officers) were seen by their neighbours, and (d) the house searches at P2’s and P3’s homes were made in the presence of their wives and young children. So P2 and P3 claimed the following reliefs against the Commissioner and hence D: (i) damages including exemplary damages for false imprisonment and misfeasance, (ii) damages for personal injuries suffered, (iii) interest and costs, and (iv) further and/or other relief.

47.  On the other hand, D denied Ps’ claims, and specifically denied (a) the length of time during which P2 and P3 were put on police bail was unjustifiable, (b) the use of handcuffs on P2 and P3 on the way to house searches was unreasonable, (c) P2 and/or P3 suffered any inconvenience and/or embarrassment, (d) any inconvenience and/or embarrassment suffered by P2 and/or P3 were caused by any wrongful act on the part of the police officers concerned, (e) P2 and/or P3 suffered any injuries, loss or damage as alleged or otherwise, (f) any injuries, loss or damage suffered by P2 and/or P3 were caused by any matter complained of, and (g) P2 and/or P3 were entitled to any exemplary damages on the grounds as alleged or otherwise.

III.  COURT PROCEEDINGS

48.  This action began life in the District Court as DCCJ3725/2009 when Ps filed the Writ of Summons on 18 August 2009. At that time, Ps were legally represented by CFC. On 26 October 2011, the present action was transferred to the Court of First Instance and became HCA1888/2011. On 21 November 2012, Master Leong ordered the transfer of HCA1888/ 2011 to the Personal Injury List, and the case became HCPI884/2012. On 1 November 2013, Francis Kong & Co (“FKC”) filed Notice of Change of Solicitors to act for P1. On 20 May 2014, Jal N Kharbari & Co (“JNKC”) filed Notice to Act to act for P2 and P3.

49.  The parties’ latest pleadings were set out in §3 above. On 28 August 2012, Ps filed the 28/8/12 FBP, which was verified by English SoT (without interpretation clause) by P2 on behalf of himself and P1 and by P3 filed on 29 August 2012. On 27 February 2017, P2 and P3 filed their respective Revised Statement of Damages verified by their respective English SoT (with interpretation clause) endorsed on such pleadings. On 19 April 2017, D filed her respective Answer to P2’s and P3’s respective Revised Statement of Damages.

50.  On 14 January 2010, 15 July 2014, 16 July 2014, 1 December 2014, Ps filed their List of Documents and 1^st, 2^nd and 3^rd Supplemental Lists of Documents. On 1 March 2010, 26 October 2012, 13 September 2017 and 27 August 2020, D filed her List of Documents and 1^st, 2^nd and 3^rd Supplemental Lists of Documents.

51.  By the order of Bharwaney J dated 6 January 2017, upon the undertaking by FKC and JNKC to jointly brief counsel (either junior counsel, senior counsel, or senior counsel leading junior counsel) to represent all Ps, it was ordered that there be (a) a split trial on liability and quantum on the claims advanced by Ps, and (b) a Preliminary Trial of claims advanced by P2 and P3 on the issues of false imprisonment and misfeasance in public office, and all other issues of liability and quantum be dealt with after the determination of the Preliminary Trial.

52.  At the 1^st PTR on 8 July 2020, I adjourned the PTR and granted case management directions for P2/P3 and for D (a) to give written notice as to which parts of their pleadings and witness statements they would rely on for the purpose of the Preliminary Trial, and (b) to lodge with court a joint list of issues for the Preliminary Trial. I also directed that notice be given to FKC because the disputed issues in the Preliminary Trial might well have implications on P1’s claim against D, which had been stayed, so P1 could consider their stance vis-à-vis the Preliminary Trial.

53.  At the 2^nd PTR on 18 August 2020 attended by the legal representatives for P2/P3 and for D (with attendance by FKC excused as they intended to apply for leave to cease to act for P1), this court granted various case management directions for the conduct of the Preliminary Trial (see, eg, §5 above).

54.  On 25 August 2020, FKC filed a summons for leave to cease to act for P1, which application was to be heard by a Master of the High Court. On 28 September 2020, P2 and P3 filed Notices to Act in Person. On 9 October 2020, Wai & Co filed Notice to Act for P2 and P3. The Preliminary Trial commenced on 14 October 2020.

IV.  LEGAL PRINCIPLES

55.  At the Preliminary Trial, Mr Sio had no dispute over the relevant legal principles set out in Mr Lam’s written opening/closing submissions, so his focus was more on application of such undisputed legal principles to the present circumstances. I have carefully considered Mr Lam’s written submissions on the law, and gratefully adopt below his helpful discussion.

(a)  False imprisonment

56.  Elements Clerk & Lindsell on Torts explained the tort of false imprisonment as follows:[21]

“False imprisonment is “the unlawful imposition of constraint on another’s freedom of movement from a particular place”.[22] The tort is established on proof of: (1) the fact of imprisonment; and (2) the absence of lawful authority to justify that imprisonment. For these purposes, imprisonment is complete deprivation of liberty for any time, however short, without lawful cause ……”

57.  Here, there was no dispute over the fact of imprisonment as P2 and P3 were arrested by police officers in the afternoon of 16 August 2007, and were under police custody until they were granted police bail shortly before midnight. So the true question was whether there was lawful authority to justify the arrest/imprisonment of P2 and P3.

58.  Blackmail  P2 and P3 were arrested for the offence of blackmail. Under section 23 of the Theft Ordinance Cap 210 (“TO”):

“(1) A person commits blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief-

(a) that he has reasonable grounds for making the demand; and

(b) that the use of the menaces is a proper means of reinforcing the demand.

(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.

(3) Any person who commits blackmail shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years.

……”

Thus, an integral ingredient of the offence of blackmail is a demand that is (a) unwarranted and (b) made with menaces, and in respect of (a) above, the demand is unwarranted unless the person making it (i) has reasonable grounds for making the demand or (ii) the use of the menaces is a proper means of reinforcing the demand.

59.  It does not appear that violence is essential for establishing “menaces”. Archbold Hong Kong 2020 explained the element of “menaces” as follows:[23]

“The demand must be made with menaces. In R v Clear [1968] 1 QB 67; 52 Cr App R 58, CA, Seller LJ reviewed the authorities as to the meaning of the word “menaces”. Having done so, his Lordship continued at 679-680:

“Words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces … but threats and conduct of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand would be sufficient for a jury’s consideration … There may be special circumstances unknown to the accused which would make the threats innocuous and unavailing for the accused’s demand, but such circumstances would have no bearing on the accused’s state of mind and of his intention. If an accused knew that what he threatened would have no effect on the victim it might be different.”

In Thorne v Motor Trade Association [1937] AC 797, HL, Lord Wright at 817 also thought the word “menace” is to be

“liberally construed and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended.

Lord Atkin at 806-807 said:

“The ordinary blackmailer normally threatens to do what he has a perfect right to do namely, communicate some compromising conduct to a person whose knowledge is likely to affect the person threatened. Often indeed he has not only the right but also the duty to make the disclosure as of a felony, to the competent authorities. What he has to justify is not the threat, but the demand of money. The gravity of the charge is the demand without reasonable or probable cause: and I cannot think that the mere fact that threat is to do something a person is entitled to do either causes the threat not to be a ‘menace’ … or in itself provides a reasonable or probable cause for the demand”.

……” (my emphasis)

60.  Arrest  Section 50(1)(a) of the PFO provides as follows:

“It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of –

(a)  any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment; ……”

(my emphasis)

There is no doubt that the offence of blackmail satisfies the “offence” under section 50(1)(a) of the PFO. So the relevant consideration as to whether the arrests of P2 and P3 were lawful boiled down to whether the police officer(s) who arrested P2 and P3 (a) “reasonably believed” P2 and P3 would be charged with the offence of blackmail, or (b) “reasonably suspected” P2 and P3 of being guilty of the offence of blackmail.

61.  As to what amounts to reasonable belief/suspicion, Hong Kong Archbold 2020 states as follows:[24]

“An officer effecting an arrest must have reasonable belief that the person arrested will be charged with an offence or reasonably suspect he is guilty of an offence: section 50(1) of the [PFO], above.

The test as to whether reasonable grounds for the suspicion to justify an arrest existed is partly subjective, in that the arresting officer must have formed a genuine suspicion that the person being arrested was guilty of an offence, and partly objective, in that there had to be reasonable grounds for forming such a suspicion; such grounds could arise from information received from another (even if it subsequently proves to be false), provided that a reasonable man, having regard to all the circumstances, would regard them as reasonable grounds for suspicion; but a mere order from a superior officer to arrest a particular individual could not constitute reasonable grounds for such suspicion …… Parker v Chief Constable of the Hampshire Constabulary (unrep., 25 June 1999, CA (Civ Div)), where it was held that an officer who had reasonable grounds to think it “possible” that one of two people in a car was someone he was entitled to arrest had been justified in arresting that person.

As to having reasonable grounds for suspecting that an offence has been committed, it is not necessary that an officer should have in his mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision. He must, however, reasonably suspect the existence of facts amounting to an offence of a kind that he has in mind; unless he can do that, he cannot comply with his obligation to inform the suspect of the grounds of arrest ……” (my emphasis)

62.  The relevant principles regarding arrests made on reasonable suspicion were comprehensively reviewed by the Court of Final Appeal in Yeung May Wan & ors v HKSAR.[25] In that case, the appellants were members of a group who demonstrated outside a building containing the Liaison Office of the Central People’s Government, and they were charged with inter alia the offences of obstructing a public place and wilfully obstructing police officers acting in the execution of their duty. The majority (Li CJ, Chan and Ribeiro PJJ and Sir Anthony Mason NPJ) discussed the relevant principles at pages 165-172 of the reported judgment.

63.  The majority emphasised that for the power of arrest exercisable on reasonable suspicion of guilt, the arresting officer must have (a) genuine suspicion that the offence in question has been committed and (b) reasonable grounds for that suspicion (page 165), so the relevant questions are (i) whether the arresting officer suspected the arrested person was guilty of the offence (the answer of which depends entirely on finding of fact as to the officer’s subjective state of mind), and (ii) if the officer had the necessary suspicion, whether there was reasonable cause for that suspicion (the answer of which is a purely objective determination by the judge on the factual findings) (page 165).

64.  As regards suspicion in the mind of the arresting officer, the majority noted the House of Lords in O’Hara v Chief Constable of the Royal Ulster Constabulary[26] made it clear that when considering whether these subjective and objective requirements have been met, one is concerned solely with what was in the mind of the arresting officer (page 165). In that case, Lord Hope of Craighead at page 298 explained that the issue is what is in the mind of the arresting officer when the power is exercised, which in part is a subjective test because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of the offence in question, and in part also it is an objective one because there must also be reasonable grounds for the suspicion which he has formed. Such objective test does not require the court to look beyond what was in the mind of the arresting officer, and all that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised. It is not whether the arresting officer himself thought at that time the grounds were reasonable, but whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer (ie the arresting officer’s own account of the information which he had and not what was observed by or known to anyone else). Lord Steyn at page 293 in O’Hara also confirmed that the law has come to fasten on the mind of the arresting officer himself, ie the information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest.

65.  As for the arresting officer, the majority at pages 166-167 stated that the arresting officer is “the constable who actually effected the arrest. Where several constables take part, they each qualify as an arresting officer”.

66.  The majority at pages 167-168 explained that “reasonable suspicion” must relate to the material elements of the relevant offence. “For the arresting officer to meet the statutory requirements of PFO s.50, the facts reasonably suspected by him to exist must be such that, if true, they would constitute the necessary elements of the offence for which the power of arrest is sought to be exercised.[27]  The majority referred to Chapman v DPP[28] where the power of arrest depended on the constable having a reasonable suspicion that the person to be arrested had committed an arrestable offence, so (as Bingham LJ pointed out) it was necessary to consider what arrestable offence, or what facts amounting to an arrestable offence, the constable reasonably suspected to have occurred. But Bingham LJ at page 197 in Chapman added that “[it] is not of course to be expected that a police constable in the heat of an emergency, or while in hot pursuit of a suspected criminal, should always have in mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision.  He must, in my judgment, reasonably suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind”. Thus, the majority explained that the requirement is one of substance and not of technicality, which requirement complements the related rule that upon making an arrest, the arresting officer must in ordinary circumstances inform the person arrested in substance (without the necessity of using technical or precise language) of the reason for the arrest.[29]

67.  On the standard of reasonable suspicion, the majority at page 168 noted the standard set by section 50 of the PFO requires the arresting officer to have formed, at the time of arrest, a genuine suspicion of guilt held on grounds which are objectively reasonable, but what is needed to meet that standard in any particular case is a question of fact and degree. The majority referred to Hussien v Chong Fook Kam[30] in which Lord Devlin emphasised that proving a reasonable suspicion is not the same as showing a prima facie case as the latter imports “a much stiffer test”, and went on to say at page 948 as follows:

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage.”

Lord Devlin at page 949 also pointed out that prima facie proof consists of admissible evidence whereas suspicion can take into account matters that could not be put in evidence at all. But the requirement that the suspicion be “reasonable” stiffens the test such that suspicion by itself will not justify an arrest, and there must be a factual basis for it of a kind which a court would adjudge to be reasonable.[31]

68.  As for the source and grounds for reasonable suspicion, the majority at pages 168-171 explained as follows:

“86. Where the factual basis for the suspicion is within the arresting officer’s own knowledge, for instance, where he witnesses a crime in progress, the application of the reasonable suspicion test is straightforward. However, in a modern police force, officers necessarily operate as a team subject to a chain of command. The information upon which arrests are made may come from a variety of sources, for instance, calls for assistance from fellow officers picked up on a beat radio, surveillance and detection reports by other police units, information from Interpol and reports from informants and members of the public. Often, as in the present case, a team of officers will be briefed about suspected offences by superior officers just prior to an operation.

87. These are matters which have received recognition in the case-law. The focus remains on the mind of the arresting officer who must be shown to have a genuine and reasonable suspicion that the person arrested has committed a relevant offence, having in mind the material elements of that offence. But that officer’s reasonable suspicion may properly be based upon any of those sources of hearsay information provided that such information leads him to form a genuine suspicion on grounds which an objective observer would regard as reasonable.

88. Lord Steyn in O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 (at p.293) stated:

In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien & ors v Chong Fook Kam & anor [1970] AC 942 at p.949 … Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers: Hussien’s case, ibid.

89. Lord Hope put it thus:

The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances.” (O’Hara at p.298)

90. Dealing with police teamwork, Lord Hope added:

Many other examples may be cited of cases where the action of the constable who exercises a statutory power of arrest or of search is a member of a team of police officers, or where his action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised. (at pp.301-302)

91. In an operation such as that conducted in the present case, the arresting officers may be subject to the supervision of superior officers throughout and it may be on the order of a superior officer that they initiate the arrest action. It is recognized that, realistically, the arresting officer will generally not be in a position to question that order. Indeed every police officer is under a statutory duty to obey all lawful orders of his superior officers and is liable to dismissal for failure to do so: see ss.30 and 31 of the [PFO]. ……

92. However, this does not mean that the arresting officer is entitled simply to rely on the fact that a superior officer has ordered the arrest. It remains essential that the arresting officer must be equipped with a sufficient factual basis to found, in his own mind, the requisite reasonable suspicion. It follows that where, for instance, a briefing precedes the arrest action, the officer giving the briefing must be careful to impart sufficient information to provide a proper factual basis for a reasonable suspicion. And where the lawfulness of the arrest is subsequently challenged, evidence of the contents of the briefing may be important.

93. Lord Steyn dealt with orders from superior officers as follows:

Given the independent responsibility and accountability of a constable under a provision such as s.12(1) of the Act of 1984 it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of s.12(1). It is accepted, and rightly accepted, that a mere request to arrest without any further information by an equal ranking officer, or a junior officer, is incapable of amounting to reasonable grounds for the necessary suspicion. How can the badge of the superior officer, and the fact that he gave an order, make a difference? In respect of a statute vesting an independent discretion in the particular constable, and requiring him personally to have reasonable grounds for suspicion, it would be surprising if seniority made a difference. …… Such an order to arrest cannot without some further information being given to the constable be sufficient to afford the constable reasonable grounds for the necessary suspicion. (at pp.293-294)” (my emphasis)

69.  In Martnok Thanradee v Commissioner of Police & anor,[32] I explained “lawful arrest” in the context of a cause of action in false imprisonment as follows:

“30. False imprisonment is established on proof of the fact of imprisonment and the absence of lawful authority. If a police officer makes a lawful arrest with malicious motive, an action in false imprisonment is not available. But an unlawful arrest is false imprisonment. Section 50(1) and (1A) of the [PFO] provide inter alia it shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of an offence whether or not he has seen any offence committed. According to Yeung May Wan & ors v HKSAR that applied O’Hara v Chief Constable of the Royal Ulster Constabulary, the arresting officer should have formed at the time of arrest genuine suspicion that the offence in question has been committed having in mind the material elements of the offence and no more; it falls well short of prima facie proof nor does it require a positive belief.[33] The test is simply whether the objective information available to the arresting officer supports reasonable grounds for suspicion of guilt with no general or absolute rule that he must make all practicable enquiries to confirm/dispel his suspicions before making an arrest.[34]

31. If a police officer arrests the claimant following an accusation made against him by a third party (even if it subsequently proves to be false), unless there are surrounding facts to show the charge is unreasonable, the police officer may have a defence in that he had reasonable grounds to suspect the claimant was guilty of an arrestable offence.[35] Potter LJ in Jarrett v The Chief Constable of West Midlands Police said as follows:[36]

“28. …… the test ……is partly subjective, in that the arresting officer must have formed a genuine suspicion that the person being arrested was guilty of an offence, and partly objective, in that there must be reasonable grounds for forming such a suspicion. ……”’

(my emphasis)

70.  Burden of proof Mr Lam helpfully drew my attention to the general rule on burden of proof for civil litigation set out in Phipson on Evidence as follows:[37]

“So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issue. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. This is an ancient rule founded on consideration of good sense and should not be departed from without strong reasons. ……

This rule is adopted principally because it is just that he who invokes the aid of the law should be the first to prove his case; and partly because, in the nature of things, a negative is more difficult to establish than an affirmative. The burden of proof is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting.

In deciding which party asserts the affirmative, regard must be had to the substance of the issue and not merely to its grammatical form; the latter the pleader can frequently vary at will. Moreover, a negative must not be confused with a mere traverse of an affirmative. The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation rests on him. An alternative test, in this connection, is to strike out of the record the particular allegation in question, the onus lying on the party who would fail if such a course were pursued.

In all but the simplest cases, the burden of the issues will be divided, party having one or more cast upon him.

……” (my emphasis)

71.  In his oral closing submissions, Mr Sio agreed with Mr Lam’s proposition that P2 and P3 carried the burden of establishing (a) the fact of imprisonment (which D did not dispute), and (b) the absence of lawful authority to justify such imprisonment (see §56 above), so the burden of proof on (b) above and thus the lack of reasonable grounds for suspicion fell upon P2 and P3.

72.  But that said, Phipson on Evidence went on to say that “…… not every decision made by a judge during or in preparation for a trial is susceptible to analysis in terms of the burden and standard of proof. Many decisions in and before trials involve weighing competing factors and the judge exercising evaluative judgment” (my emphasis).[38] Thus, where both parties adduce evidence at trial, practically speaking it may not be significant on whom the burden of proof lies. I explained this in Martnok Thanradee as follows:

“34. …… a claimant (on whom the legal burden lies) has an evidential burden to adduce sufficient evidence to raise an issue as to the existence or otherwise of a fact in question whereupon the spotlight switches to the defendant to discharge his evidential burden of raising a prima facie innocent explanation, and if that is satisfied the claimant has to establish on proper standard of proof the defendant’s prima facie innocent explanation is to be rejected.

35. If the defendant chooses to adduce some countervailing evidence such that the 2 sides’ versions are contradictory and mutually exclusive, the burden of proof is practically an assessment of the parties’ relative credibility and cogency of evidence/inferences. …… Mr Leung cited Amstrad Consumer Electronics Plc v The British Phonographic Industry Limited where Whitford J said as follows:[39]

“The probative burden was on [the plaintiffs] to satisfy the court that they were entitled to the relief for which they were asking. Evidence was called by both parties. The trial judge had to assess the evidence and draw such inferences from it as he thought right, remembering that, during the course of a trial, the evidential burden, as distinct from the probative burden, might shift. ……””

(my emphasis)

73.  Standard of proof The usual civil standard of proof is on a balance of probabilities. But in Martnok Thanradee, I explained at §37 that “[for] allegations of malice, fabrication, lies, falsities, fraud, concealment, etc, they must be plainly established and the cogency of the basis relied upon must be assessed by examining the particular factual matrix and by applying the standard of balance of probabilities taking into account that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court would conclude that the allegation is established.[40]”

(b)  Misfeasance in public office

74.  The essence of the tort is abuse of public office. Clerk & Lindsell on Torts[41] made clear that the tort of misfeasance in public office “has now been authoritatively defined in the speech of Lord Steyn in Three Rivers District Council & ors v Governor and Company of Bank of England (No 3).[42]Lord Steyn explained there were 2 different forms or limbs of the tort (page 191):

“First there is the case of targeted malice by a public officer, ie conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.” (my emphasis)

Clerk & Lindsell explained the above classification as follows:[43]

“The first form is referred to as “targeted malice” and the second as the “untargeted malice” or “illegality” limb. It can be classed as an “intentional tort” but the key element is an intention to act for an improper motive. Its rationale, according to Lord Steyn, is that “in a legal system based on the rule of law executive or administrative power ‘may be exercised only for the public good’ and not for ulterior motive or improper purposes” and hence, it was an exception to “the general rule … that, if conduct is lawful apart from the motive, a bad motive will not make [the defendant] liable.”’ (my emphasis)

75.  The Court of Appeal considered and applied Three Rivers District Council & ors in Tang Nin Mun v Secretary for Justice,[44] and Ribeiro JA (as he then was) classified the tort of misfeasance in public office into 3 instead of 2 forms or limbs:

“In the Three Rivers District Council v Bank of England (No 3) [2000] 2 WLR 1220 decision, the House of Lords clarified the constituent elements of the tort of misfeasance in public office. Of particular importance to the present appeal, the decision illuminates the state of mind that must be established on the part of the public officer allegedly liable.

……

Their Lordships …… decided that the test was a subjective one, with any of three variants (or as Lord Millett approached it, perhaps two variants) of the requisite mental state being sufficient to found liability. Lord Hobhouse’s convenient labels for these variants were “targeted malice”, “untargeted malice” and “reckless untargeted malice” respectively.

“Targeted malice” involves conduct by the official “specifically intended to injure a person or persons” (per Lord Steyn); or done “intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable” (per Lord Hobhouse); or “with intent to harm the plaintiff or a class of which the plaintiff is a member” (per Lord Millett).

“Untargeted malice” involves action by the official “in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual or individuals” (per Lord Steyn); or when he “actually knew that he had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does” (per Lord Hutton). Lord Hobhouse explained this mental state as follows:

Here the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. This element of knowledge is an actual awareness but is not the knowledge of the existing fact or an inevitable certainty. It relates to a result which has yet to occur. It is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences.

To Lord Millet, the first two limbs of “targeted” and “untargeted” malice were “merely different ways in which the necessary element of intention is established.” He saw the first limb as established by evidence and the second by inference ……

……

Lord Millet stressed that the inference of malice “cannot be drawn unless the official did foresee the consequences.  It is not enough that he ought to have foreseen them if he did not do so in fact.”

What Lord Hobhouse called “reckless untargeted malice” was also accepted as a sufficient mental state to found liability. Lord Steyn approved the approach that had been taken by Clarke J and the Court of Appeal below, as follows:

Clarke J lucidly explained the reason for the inclusion of recklessness [1996] 3 All ER 558 at p.581:

The reason why recklessness was regarded as sufficient by all members of the High Court in Northern Territory of Australia v Mengel (1995) 69 AJLR 527 is perhaps most clearly seen in the judgment of Brennan J. It is that misfeasance consists in the purported exercise of a power otherwise than in an honest attempt to perform the relevant duty. It is that lack of honesty which makes the act an abuse of power.

The Court of Appeal accepted the correctness of this statement of principle: [2000] 2 WLR 15 at pp.61G-62A. This is an organic development, which fits into the structure of our law governing intentional torts. The policy underlying it is sound: reckless indifference to consequence or consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form.

It is therefore established that “subjective recklessness on the part of a public officer in acting in excess of his powers is sufficient” (per Lord Steyn). This is a state of mind involving “recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not” (per Lord Steyn); or “reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce” (per Lord Hutton ……); or “…… ‘a conscious disregard for the interests of those who will be affected by’ the exercise of the power” (per Lord Millett ……).

As Lord Steyn’s speech makes clear, the plaintiff must come within the ambit of the offending public officer’s intent, knowledge or recklessness in two ways. First, the officer must have acted “in the knowledge that his act would probably injure the plaintiff or person or a class of which the plaintiff was a member”. Secondly, the officer’s intent or knowledge “must be directed at the harm complained of, or at least to harm of the type suffered by the plaintiffs.”’ (my emphasis)

76.  In Three Rivers District Council & ors, Lord Hope grouped both “untargeted malice” and “reckless untargeted malice” under the umbrella of “untargeted malice”, and explained the difference between the two as follows (page 247):

“44.  …… The allegation is that this is a case of what is usually called “untargeted malice”. Where the tort takes this form the required mental element is satisfied where the act or omissions was done or made intentionally by the public officer (a) in the knowledge that it was beyond his powers and that it would probably cause the claimant to suffer injury, or (b) recklessly because, although he was aware that there was a serious risk that the claimant would suffer loss due to an act or omission which he knew to be unlawful, he wilfully chose to disregard that risk.  In regard to this form of the tort, the fact that the act or omission is done or made without an honest belief that it is lawful is sufficient to satisfy the requirement of bad faith. In regard to alternative (a), bad faith is demonstrated by knowledge of probable loss on the part of the public officer. In regard to alternative (b), it is demonstrated by recklessness on his part in disregarding the risk ……” (my emphasis)

77.  Mr Sio confirmed P2 and P3 relied on “reckless untargeted malice” (under Tang Nin Mun) or alternative (b) of “untargeted malice” according to Lord Hope’s classification (under Three Rivers District Council & ors).

78.  Burden of proof The above authorities showed that to succeed under the “reckless untargeted malice” form or limb, P2 and P3 had to establish the following elements:

(a)	the police officers concerned had acted beyond their powers;
(b)	the police officers concerned knew they were acting beyond their powers, or they did not honestly believe they were acting within their powers;
(c)	the police officers concerned were aware there was serious risk that P2 and P3 would suffer loss due to their unlawful act;
(d)	the police officers concerned wilfully chose to disregard that risk and carried out the unlawful act;
(e)	P2 and P3 in fact suffered loss of the type anticipated as a result of the unlawful act.

79.  Standard of proof I reiterate my observations in §73 above.

(c)  Possessory right/title and/or right of lien over cargo

80.  Mr Sio confirmed that under P2’s and P3’s case only P1 (despite some ambiguity in Ps’ pleadings that referred to Ps instead of P1) was entitled to possessory right/title and/or right of lien over the Goods/ Containers, and P2 and P3 (as employees of P1) merely exercised P1’s right/title (if any) over the Goods/Containers on behalf of P1 with no independent right/title of their own over the Goods/Containers. In considering whether P1 had any possessory right/title or right of lien over the Goods/Containers, I turn first to the legal principles on who is a carrier and what are carrier’s rights.

81.  Carriers Carriers are persons who, either gratuitously or for reward, carry goods otherwise than for their own purposes or for purposes connected with their own trade or business.[45] Carriers may be classified as inter alia common cariers and private carriers.

82.  Common carrier  A common carrier exercises the public profession of carrying goods of every person wishing to use his services whoever they might be. He holds himself out to be a carrier of goods for reward, and is bound to accept goods offered to him for carriage. “The test as to whether a carrier of goods is a common carrier is an objective one which does not depend on whether the carrier personally intends to hold himself out as being prepared to carry irrespective of circumstances. To constitute himself a common carrier of goods, a carrier must hold himself out, either expressly or by a course of conduct, as willing to carry for reward, so long as he has room, goods of all persons indifferently who send him goods to be carried at a reasonable price. …… If a carrier reserves to himself the right to reject …… goods whom he is asked to carry according to his ususal course of business, or if he carries only certain …… goods for certain customers, he is not a common carrier”.[46]

83.  In short, whether or not a person is a common carrier is a question of fact which may be inferred from the character of his business. Given that a common carrier has to carry on a public employment and to hold himself out for hire as a business for all indifferently, “[the] status of a common carrier, who is under an obligation to carry unless he can show reasonable cause, has become something of an anachronism”.[47]

84.  Private carrier A private carrier is a person who, in the course of business or occasionally, undertakes the carriage of other people’s goods, but who does not hold himself out as exercising the public employment of a common carrier. A carrier who, while inviting all and sundry to employ him, reserves to himself the right to accept or reject their offers of goods for carriage, irrespective of whether his vehicles (or vessels) are full or empty, and who is guided in his decision by the attractiveness or otherwise of the particular offer and not by his ability or inability to carry having regard to his other engagements, is a private carrier.[48]

85.  Forwarding agent A forwarding agent is one who carries on the business of arranging for carriage of goods for other people; his task is to arrange carriage rather than to effect it. Forwarding agents do not ordinarily obtain possession of the goods and he does not ordinarily undertake the delivery of them to their destination. In normal circumstances, his function is merely to act as agent to make arrangements with the contractors who undertake carriage of the goods (eg shipowners, road hauliers etc). Forwarding agents cannot normally be characterised as common or private carriers. It is a question of fact to be decided on the circumstances of each case whether a person contracts as a forwarding agent acting as agent to establish a link between his customer and carrier(s) each undertaking a different part of the transit, or whether he contracts as principal/carrier for carriage of the goods.[49] But even when a forwarding agent carries goods as a function additional to his general operations, “it will be highly exceptional for him to have the status of a common carrier”.[50]

86.  Lien  According to the RASoC and the Reply, P2 and P3 alleged P1 was entitled to a lien over the Goods/Containers by virtue of P1’s actual possession thereof through P2 and P3. As Mr Lam contended in his written closing submissions, P2 and P3 appeared to allege entitlement to a legal lien, which is explained in Halsbury’s Laws of England as follows:[51]

“In its primary or legal sense ‘lien’ means a right at common law in one person to retain that which is rightfully and continuously in his possession belong to another until the present and accrued claims of the person in possession are satisfied. In this primary sense it is given by law and not by contract ……”

87.  General and particular lien  Halsbury’s Laws of England explained the 2 types of lien, ie general and particular lien, as follows:

“A general lien entitles a person in possession of chattels to retain them until all claims or accounts of the person in possession against the owner of the chattel are satisfied. It can only exist (1) as a common law right arising from general usage; or (2) by express agreement. General liens are discouraged because they give special privileges as against other creditors and tend to upset the equitable distribution of assets on bankruptcy. They have been regarded as an encroachment upon the common law. However, where the usage has been frequently recognised the right of lien becomes part of the common law, and is accepted by the courts without further evidence.”[52]

“A particular lien at common law is the right to retain goods for which charges have been incurred until those charges have been paid. If the owner of the goods is willing to pay the charges, the goods may not be retained until payment of any general balance due to the person having the particular lien.

Being consistent with the principle of natural equity, particular liens are favoured by the law, which is construed liberally in such cases. As general liens may arise from general usage, or by express contract, it follows that particular liens may arise in the same manner.

The terms of a contract may be such as to negative a particular lien which might otherwise have arisen, but a particular lien cannot be extended by contract so as to become a general lien against the goods of strangers as to the contract.”[53]

88.  Legal lien by contract  A lien, whether general or particular, may be created and defined by contract. Just as a general lien may be created by contract, it may be negatived by the terms of the contract, either expressly or by implication because it is inconsistent with the terms of the contract. It may also be discharged or superseded by the contract.[54]

89.  Carrier’s lien According to Halsbury’s Laws of England,[55]

“Every common carrier has a particular lien on the goods carried for the freight payable. This lien exists as against the owner of the goods, even if they were delivered to a common carrier against the owner’s will, for example by a thief, for the carrier cannot refuse to accept goods tendered to him for carriage. Apart from contract, express or implied, he has no lien on the goods beyond the price of the carriage.

At common law, a common carrier has no lien on the goods carried for a general balance of account due for the carriage of other goods, and a private carrier has, apart from contract, no lien against the owner in respect of goods carried or removed.

A general lien may exist by contract, express or implied; but the burden of proving such a lien always lies on the person who claims it. Where by contract such a lien exists, it can only be exercised, as against the owner of goods, for a general account owing by him; it cannot only be exercised, as against the owner, for a general account owing by the consignee, who is merely the factor of the owner ……” (my emphasis).

V.  ISSUES

90.  Mr Lam helpfully set out the following undisputed timeline/ facts in his written closing submissions, which I adopt below:

(a)	P3 was arrested at 1:55pm on 16 August 2007 at TSW Depot, and P2 was arrested at 3:08pm on the same day also at TSW Depot;
(b)	P2 and P3 were brought back to TSW Police Station at 3:20pm, arriving at the station at 3:30 pm;
(c)	at 10:20pm on the same day P2 was escorted by police officers to his home for house search which finished at 10:40pm, and at 11:06pm on the same day P3 was escorted by police officers to his home for house search which finished at 11:30pm;
(d)	both P2 and P3 were handcuffed and unhooded while being escorted by police officers for their respective house search;
(e)	both P2 and P3 were released on police bail at 11:43pm on the same day;
(f)	both P2 and P3 were required to answer police bail on a number of occasions until 21 July 2008 when they were unconditionally released;
(g)	on 17 December 2007, the Containers were delivered up to persons other than Ps;
(h)	neither P2 nor P3 was criminally charged in relation to the incident.

91.  Mr Sio in his written closing submissions summarised P2’s and P3’s case as follows:

(a)	there was no factual basis for the relevant police officers to form any reasonable belief that anyone would be charged with the offence of blackmail, or any reasonable suspicion that anyone would be guilty of the offence of blackmail (i) before the police arrived at TSW Depot and/or (ii) at TSW Depot;
(b)	thus, the arrest of P2 and P3 for the offence of blackmail was unlawful, and their imprisonment thereafter amounted to false imprisonment;
(c)	Hui misled the police, and the subsequent investigation revealed there was no “unwarranted” “demand with menaces”;
(d)	the police ought to have unconditionally released P2 and P3, failing which they were reckless, and the prolonged police bail amounted to misfeasance in public office;
(e)	the use of handcuffs on the way to P2’s and P3’s homes for house searches and also during the house searches were unnecessary and in breach of the PGO, so the police was reckless and committed misfeasance in public office.

92.  Bearing in mind the nature of P2’s and P3’s case as highlighted above, Mr Sio informed this court on the 1^st day of the Preliminary Trial that he would not disagree that the following as set out in Mr Lam’s written opening submissions were the issues in dispute for the Preliminary Trial:

(a)

Factual issues: (i) what were the factual circumstances leading the police to TSW Depot on 16 August 2007, (ii) what happened between P2/P3 and the police at TSW Depot on 16 August 2007, and (iii) whether the requirement to answer bail from August 2007 [should be from December 2007 – see §40(a) above and §408(a) below] to July 2008 was wrongful or without reasonable and probable cause;

(b)

Issues of mixed law and fact: (i) whether P1, P2 and/or P3 had any possessory right/title and/or right of lien over the Containers at the time of arrest, (ii) whether the arrest and detention of P2 and P3 on 16 August 2007 were wrongful or without reasonable and probable cause, (iii) whether the requirement to answer bail from August 2007 [should be from December 2007 – see §40(a) above and §409(a) below] to July 2008 was abuse of power by the police, (iv) whether the use of handcuffs for the house searches on 16 August 2007 was abuse of power by the police, and (v) whether the Commissioner was liable for misfeasance in public office as far as the handling of P2 and P3 was concerned.

93.  Mr Sio in his written closing submissions agreed with Mr Lam that the issues in §92(a)(i)-(ii) and (b)(i) above were relevant to P2’s and P3’s cause of action in false imprisonment. Mr Lam suggested the issue in §92(b)(ii) above was also relevant, but Mr Sio’s written closing submission did not highlight such issue for the cause of action in false imprisonment.

94.  Mr Sio in his written closing submissions agreed with Mr Lam that the issues in §92(a)(iii) and (b)(iii)-(v) above were relevant to the cause of action in misfeasance in public office save that he would frame the issue in §92(b)(iv) above as follows: whether escorting P2 and P3 handcuffed and unhooded for the house searches on 16 August 2007 was abuse of power by the police. But I note Ps’ RASoC pleaded P2 and P3 were unhooded when escorted by police officers for house searches as particulars for P2’s and P3’s claim for exemplary damages (see §46(b) above) and not as particulars for their cause of action in misfeasance in public office (see §§40-41, §43 and §45 above). In fact, Mr Sio in his oral opening submissions conceded that being escorted unhooded was not material to P2’s and P3’s cause of action in misfeasance in public office. In my view, such assertion should not have featured as part of the disputed issues by the time of closing submissions.

95.  In Mr Sio’s written opening submissions, he also raised the following issues:

“7. ……

……

iii.  What was the factual basis leading the police to arrest P2 and P3 for blackmail at [TSW Depot]? In particular,

a. Was there any demand by P2 and/or P3?

b. Was the demand, if any, made with menaces?

c. Was the demand with menaces, if any, unwarranted?

d. Was the demand made, if any, with a view to gain for himself or another or with intent to cause loss to another?

iv.  What were the belief of P2 and P3 for possessory rights and/or liens over the [Containers] at the time of arrest? (This shall be the factual basis for the answer in para.7(iii)(c)-(d) above)”

96.  For the sub-issue in §7(iii) of his written opening submissions (see §95 above), Mr Sio in his oral opening submissions argued there must be factual proof/finding of “unwarranted” “demand” “with menaces” by P2 and/or P3 before there could be any factual basis to sustain D’s allegation of “reasonable suspicion” for the arrest of P2 and P3, which would go to the question of lawfulness of such arrests. But, in my view, the legal principles discussed in Part IV(a) above showed that any lawful arrest of P2 and P3 for the offence of blackmail only required (a) the arresting officer(s) to have formed at the time of such arrest genuine suspicion that P2 and P3 had committed such offence having in mind the material elements of the offence that might fall short of prima facie proof, a positive belief and/or factual proof/finding, and (b) there were reasonable grounds available to the arresting officer(s) for forming such suspicion as to the existence of the facts (or factual basis as Mr Sio put it) that, if true, would amount to the material elements of the offence.

97.  For the sub-issue in §7(iv) of his written opening submissions (see §95 above), Mr Sio explained in his oral opening submissions that there was no need for factual proof/finding of possessory right/title and/or right of lien over the Goods/Containers because it was the subjective beliefs of P2 and P3 that mattered. But Mr Sio did not explain how P2’s and P3’s subjective beliefs would go to the “factual basis” for reasonable suspicion as to the sub-issues in §7(iii)(c)-(d) of Mr Sio’s written opening submissions (see §95 above) which, as  Mr Sio conceded, required objective determination by the court.

98.  The issues highlighted in §§95-97 above no longer featured as specific issues in dispute in Mr Sio’s written closing submissions as they appeared to have been subsumed under the other issues. I shall deal with these matters in the discussions below.

99.  For completeness, I note P2 and P3 suggested at the 2^nd PTR (but D disagreed) there was another issue for determination by this court, ie whether the requirement to answer police bail from August 2007 to July 2008 amounted to “imprisonment” on each occasion. But this suggested issue did not arise on the pleadings, so at the 2^nd PTR I disallowed such new issue to be canvassed at the Preliminary Trial.

VI.  WITNESSES AND DOCUMENTS

100.  Since there was little or no disagreement between Mr Sio and Mr Lam on the legal principles, this case fell to be decided essentially on the facts, so questions of credibility/reliability loomed large. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the pleadings, chronology of events, documentary evidence and inferences based on inherent probabilities and/ or undisputed facts.[56]

101.  Hui passed away on 19 December 2015, and so was unavailable to give evidence at the Preliminary Trial. Hui’s 6 police statements were taken by (a) DPC54800 at 6:15pm on 16 August 2007 (“Hui 1^st PStmt”), (b) DPC47923 at 5:35pm on 17 August 2007 (“Hui 2^nd PStmt”), (c) DPC47923 at 1:25pm on 21 August 2007 (“Hui 3^rd PStmt”), (d) DPC47923 at 1:20pm on 3 October 2007 (“Hui 4^th PStmt”), (e) DSGT33524 (as defined in footnote 10 above) at 3:25pm on 17 December 2007 (“Hui 5^th PStmt”), and (f) DSPC13646 Wong Chun-kit (“DSPC13646”) at 10:40am on 24 January 2008 (“Hui 6^th PStmt”), and were adduced as hearsay evidence.

102.  Not all members of DCI Team 1 and/or DCI Team 5 (as defined in footnote 5 above) were called to give evidence, eg (a) DSGT33524, DPC54197 (as defined in footnote 10 above) and DPC58417 (as defined in footnote 10 above), who went to TSW Depot as part of the police party on 16 August 2007, who contributed to the police investigation report that recorded the investigative steps taken and the progress of police investigation (“Investigation Report”) on 22 August 2007 (PC58417) and on 14-17 December 2007 (DSGT33524), and who took the Hui 5^th PStmt from Hui (DSGT33524) (see §101(e) above), (b) DPC54800 who took the Hui 1^st PStmt from Hui (see §101(a) above), and (c) DSPC13646 who took the Hui 6^th PStmt from Hui on 24 January 2008 (see §101(f) above) and who contributed to the record in the Investigation Report from January 2008 to August 2009. CIP Yip (as defined in footnote 3(a) above) was also not called to give evidence. But I am satisfied D did call the key police officers who were materially involved in this case to give evidence, and Mr Sio did not raise any complaint that D omitted to call relevant witnesses.[57]

103.  P2’s and P3’s witnesses  P2 and P3 gave evidence, but did not call any other witness. Their witness statements were filed on 22 June 2010 (“P2 1^st WStmt” and “P3 1^st WStmt”), and their supplemental witness statements were filed on 31 May 2012 (“P2 2^nd WStmt” and “P3 2^nd WStmt”). The P2 1^st WStmt and the P3 1^st WStmt were verified by English SoTs (with interpretation clauses) that confirmed such statements were respectively interpreted to P2 and P3 by CFC’s clerk on 17 and 18 March 2010. DPC47923 took a statement under caution from P2 from 5:21pm to 9:25pm on 16 August 2007 (as recorded in a record of interview, “P2 PStmt”), and P3 gave response under caution to DPC47923 at 1:55pm on 16 August 2007 (as recorded in DPC47923’s police notebook from 4:31pm to 4:36pm, “P3 PStmt”). P2 and P3 respectively adopted parts of the P2 1^st/2^nd WStmts and P3 1^st/2^nd WStmts as their evidence-in-chief.

104.  P2 was 67 years old at the time of the Preliminary Trial. He was a native of Panyu (as defined in footnote 7 above) where P1 was incorporated, and he came to Hong Kong in 1974. P2 was educated in Mainland China, but his so-called secondary school education was practically only primary school level because his studies were interrupted by the Cultural Revolution. He could read/speak Chinese, but his written Chinese “……寫得 …… 唔流利 ……” He could not understand, speak or write English at all.

105.  In examination-in-chief, P2 at first claimed he could not remember whether the P2 1^st WStmt had been interpreted to him in Chinese, but he later confirmed he told the truth for CFC to prepare the P2 1^st WStmt, and CFC’s clerk told him the contents before he signed twice thereon. Then P2 claimed in-chief that “…… [P2] 有簽名,但 [P2] 唔知係咩嘢意思喎 ……”, and yet he adopted §§1-15 of the P2 1^st WStmt. Later, when Mr Lam in the course of cross-examination reminded P2 that he had confirmed in-chief that he had been told the contents of the P2 1^st WStmt in Chinese before he signed thereon, P2 rebuked Mr Lam by saying “…… 邊個解釋畀 [P2] 聽呀? [Mr Lam] 作出嚟之嘛 ……” But when P2 was shown his own SoT (with interpretation clause) endorsed on the P2 1^st WStmt, all he could say was “…… [P2] 唔記得喇, 咁長時間 ……”

106.  P2 also confirmed he told the truth for CFC to prepare the P2 2^nd WStmt, but his evidence wavered uncertainly between (a) not recollecting whether the contents of the P2 2^nd WStmt had been explained to him and (b) confirming he understood and agreed with the contents thereof, which contents had been explained to him before he signed twice thereon. But despite such uncertainty, P2 adopted §§1-5 and §13 of the P2 2^nd WStmt.

107.  The P2 PStmt recorded DPC47923’s interview with P2 on 16 August 2007, which record of interview was partly written by DPC47923 and partly written/signed by P2. During such interview, DPC47923 asked questions and P2 gave answers. DPC47923 recorded both questions and answers in the P2 PStmt, and P2 initialled at the end of each written answer to confirm the same. P2 agreed he read the P2 PStmt after it was recorded by DPC47923.[58] There was no suggestion that the P2 PStmt was improperly or involuntarily obtained.

108.  But when P2 was pressed under cross-examination on various inconsistences between his oral evidence and the P2 PStmt,[59] P2 tried to shy away from the P2 PStmt by saying “…… [P2] 突然間畀 [police officers] 拉咗 …… 所以 [P2] 嗰時好驚, 所以 [P2] 寫都唔識寫, [DPC47923] 話「我幫你寫, 你睇, 過嚟就簽名喇」咁樣 ……” I reject P2’s such allegation, and find on balance that (a) P2 voluntarily gave the contents/answers in the P2 PStmt which were properly/ accurately recorded by DPC47923, and (b) the contents of the P2 PStmt had been read over to P2 who also read the P2 PStmt before he signed to verify the same.

109.  P3’s evidence in relation to the P3 1^st WStmt was telling, and it is useful to set out such evidence in some fullness. In his examination-in-chief, P3 confirmed (as consistent with the interpretation clause endorsed on the P3 1^st WStmt by CFC’s clerk) that CFC’s clerk had read/explained the contents of the P3 1^st WStmt to him in Chinese before he signed on the same. But P3 said under cross-examination that even though CFC’s clerk interpreted the P3 1^st WStmt to him before he signed thereon, he only really paid attention to such statement when he gave evidence at the Preliminary Trial. P3 claimed P1 “…… 係 [P3’s] 老闆 …… [CFC] 做嘅文件當時都未必要經過 [P3] 同意, [CFC] 寫嘅嘢未必 [P3] 知道, 因為 [P3] 呢啲係低微嘅職員, …… 即係…… 你就停留邊度交貨, 我打電話畀你交貨 …… [P1] 同 …… [CFC] 做嘅文件, 有啲文件, [P3] 係完全未見過嘅 ……”, and the P3 1^st WStmt “…… 真係未見過㗎, [P3] 而家先見到咋 ……” (“1^st Excuse”).

110.  As regards P3’s signatures on the P3 1^st WStmt (which P3 confirmed in-chief were his), P3 claimed under cross-examination that “…… [P3] 都唔記得喇, 有冇簽咁多文件, 簽咁大沓 ……” When pressed, P3 was constrained to agree the signatures were his, but he (a) testified that “…… 有條友叫 [P3] 做文件嘅 …… 老闆 [ie P1] 叫 [P3] 簽㗎嘛, 有時, [P3] 都冇留意 …… [ P1] 出糧畀 [P3] ……” (my emphasis), and (b) later testified that “…… 唔係前面咁多嘢嘛, 一張咁嘅紙, 就係咁, 咁就簽咗落去, [P3] 唔知前面、後面咁多嘢 ……” (“2^nd Excuse”).

111.  When further pressed, P3 was constrained to agree that CFC’s clerk interpreted the contents of the P3 1^st WStmt to him in Chinese before he signed to verify the same (which contents were true), but he insisted “…… 當時簽名 …… 只係約莫咁講畀 [P3] 聽嘅, 就冇詳細講畀 [P3] 聽 [“3^rd Excuse”] …… 因為 [P1] 係 [P3] 老闆嚟㗎嘛 …… [P1] 同 [CFC] …… 做呢個文件, [P3] 當時係打份工嘅, …… [P3] 都係小職員嘅去到 [ie CFC offices], 講大概嘅內容, 簽名, …… 所以 [P3 1^st WStmt] 就上咗嚟法庭喇 ……” (my emphasis)

112.  But when asked under cross-examination why he did not request CFC to fully explain the contents of the P3 1^st WStmt given he agreed “可以話知” that he was verifying such contents to be true by signing on such statement, P3 reiterated “…… [P1] 係 [P3] 老闆,  有一啲嘢, [P3] 都要聽下指令嘅, [P1] 先叫 [P3] 簽, [P3] 要出糧㗎嘛…… 你除非叫 [P3] 唔好開飯喇…… [P3] 話唔夠膽同 [P1] 講啫 …… 其實 [P1] 叫 [P3] 去到嗰度 [ie CFC’s offices], 大概都坐一陣, 咁簽個名, 就可以走得 ……” Upon similar query by this court, P3 reiterated “…… [P1] 叫 [P3] 上去 [ie CFC’s offices] 個咋喎 …… [P3] 呢啲粗人, 小職員, 冇權問人哋嘅呢啲--又話呢個簽名同埋呢個簽名, [P3] 驚 [P3] 份工冇咗, 通常 [P3] 都唔會問嘅 ……” (my emphasis) (“4^th Excuse”).

113.  On balance, I reject P3’s poor attempts to resile from the P3 1^st WStmt, and I find the metamorphosis of the 1^st to 4^th Excuses amply demonstrated that P3 was not above making up or at least embroidering his evidence to suit his purpose when confronted with difficult cross-examining questions. In my view, P3’s excuses only served to highlight the unreliability of both his statement and oral evidence. I find on balance that CFC had explained the contents of the P3 1^st WStmt in Chinese to P3, and that he signed the SoT to verify such contents, but as seen in discussions below such contents were demonstrably unreliable. In any event, P3’s suggestions that P1 and CFC as P1’s solicitors asked him to sign the P3 1^st WStmt and that he complied because he feared losing his job with P1 and his salary payable by P1 must be specious even on P3’s own case because it was his evidence that immediately upon his arrest in August 2007 he already lost his job with P1 who no longer paid any salary to him (see §367 below). In my view, P3 could hardly be in fear of losing his job/pay with P1 more than 2 years later when he made the P3 1^st WStmt in 2010, which assertion was nothing more than unreliable evidential embroidery.

114.  I am unimpressed by P2 and P3 as witnesses, who were unable to overcome the overall unreliability of their case.  I do not accept either of them to be a credible witness. Their adoption of parts of their witness statements and their subsequent attempts to resile from them on various unpersuasive pretexts highlighted the unsatisfactory nature of their evidence. As seen in discussions below, even though P2 and P3 had little difficulty in understanding the questions put to them in cross-exmaination, their testimony was replete with exaggerations, embellishments and contradictions. Plainly, P2 and P3 were not prepared to face up to and deal with the inherent inconsistencies in their own evidence and between their evidence and the contemporaneous documents. The significant discrepancies between their statement evidence and oral evidence, the incredible embroidery that littered their testimony, and their tendency to drift off subject and/or to shroud behind vagueness even when the issues they had to deal with were simple all served to emphasise their overall unreliability. The evidence of each of P2 and P3 was a tangled web of half-truths, mistaken recollections, inconsistencies, evasion, dissembling and some outright lies, and much of their evidence sought to put a hopelessly unrealistic spin on the situation. In my view, their evidence had to be approached with caution, but where the probabilities favoured there being some element of truth in their evidence, I have made findings accordingly. But apart from such findings, I reject their evidence where they conflicted with the evidence of D’s witnesses on the core matters.

115.  D’s witnesses  D called 5 witnesses, ie SIP Li (as defined in footnote 3(a) above), DPC58096, DSGT385 (as defined in footnote 3(a) above), DSPC47923 and CIP Shue Chi-yuen (who was a senior inspector of police when he was involved in this matter, “CIP Shue”). Apart from minor clerical errors, D’s witnesses adopted their respective witness statements and/or supplemental witness statements as their evidence-in-chief.

116.  SIP Li joined the police force as inspector in 1997, and at 16 August 2007 was a senior inspector of police and the officer-in-charge (“OC”) of DCI Team 1. On 30 September 2007, SIP Li was transferred out of DCI Team 1, and CIP Shue took over as OC of DCI Team 1. When SIP Li made his 1^st witness statement on 17 June 2010 (“SIP Li 1^st WStmt”), he was stationed at Yuen Long Police Station. SIP Li retired from service in 2013, so he was a retired person when he made his 2^nd witness statement on 17 October 2017 (“SIP Li 2^nd WStmt”).

117.  CIP Shue was a chief inspector of police at the time of the Preliminary Trial. On 27 September 2007, CIP Shue (then a senior inspector of police) took over command of DCI Team 1 from SIP Li. At the time when CIP Shue made his witness statement on 3 November 2017 (“CIP Shue WStmt”), he was stationed at New Territories Regional Headquarters. At the time of the Preliminary Trial, he was attached to “警察總部策劃及發展部”.

118.  DSGT385 joined the police force in 1987, so by 16 August 2007 he had been a police officer for 20 years. On 16 August 2007, DSGT385 was a detective police sergeant attached to DCI Team 1 as team leader, but “……其實 [DSGT385] 係借調上嚟嘅 ……” He was on leave on 17 August 2007, and “…… [DSGT385] 返多一日工 ……. 已經係落番去原本嗰隊㗎喇, 因為當其時呢個沙展就割盲腸, [DSGT385] 暫時借調喺呢隊度頂住佢個位, ……借咗幾個禮拜啫 ……” When DSGT385 made his witness statement on 21 June 2010 (“DSGT385 WStmt”), he was stationed at Tai Po Police Station. At the time of the Preliminary Trial, he was stationed at “打鼓嶺邊境區”.

119.  DPC58096 joined the police in 1997, so by 16 August 2007 he had been a police officer for 10 years. At that time, he was a detective police constable attached to DCI Team 1. When he made his witness statement on 21 June 2010 (“DPC58096 WStmt”), he was stationed at Yuen Long Police Station. At the time of the Preliminary Trial, he was attached to “中區警區重案組第一隊”.

120.  DPC47923 joined the police force in 1988, so by 16 August 2007 he had been a police officer for 19 years. At that time, he was a detective police constable attached to DCI Team 1. But in early October 2007 he was transferred out of DCI Team 1. When he made his 1^st and 2^nd witness statements on 21 June 2010 and 10 October 2017 (“DPC47923 1^st/2^nd WStmts”), he was respectively stationed at Yuen Long Police Station and attached to District Anti-triads Squad 1, Yuen Long. He had since been promoted to detective senior police constable (DSPC47923), and at the time of the Preliminary Trial he was attached to District Anti-triads Squad 1, Tuen Mun.

121.  During the Preliminary Trial, the police witnesses were closely cross-examined on their recollection of events, and they were frank when they could not remember some of the finer details of the events that happened quite some years ago. I accept they had truly forgotten those details, which did not detract from the overall veracity of their evidence. The police witnesses remained firm on the core matters despite vigorous cross-exmaination, and the contemporaneous documentary records (eg the Investigation Report) filled some of the gaps in their recollection.

122.  Having heard the police witnesses gave evidence, I am satisfied they gave frank and reliable evidence. They generally did their best to assist, and their overall evidence was straightforward, truthful and reliable. Their evidence was well reasoned and emotionally detached despite the seriousness of the accusations levelled against them. They gave their evidence robustly, standing their ground in face of repeated questioning, but they also made concessions in relation to certain matters where appropriate. Their evidence had the hallmarks of probability, common sense and probity. Where they were shown to have been mistaken or discrepant, I have approached these matters with caution, but I am satisfied these matters did not reflect dishonesty, corrupt motive and/or unreliability.

(c)  Documents

123.  I will refer to the relevant documents in the discussions below. But it is useful for me to mention the Investigation Report at this stage. As explained by CIP Shue (which explanation I accept), the purpose of a police investigation report was to record the progress of police investigation, and the investigation/relevant officer would usually make entries of the key investigative steps taken in order to update the report every 2-4 weeks for review by superior officers. Thus, the Investigation Report for the subject “blackmail” case that involved P2 and P3 “…… 應該係留低晒所有大約嘅資料…… 所有嘅進程 ……”, but from CIP Shue’s review of the presently available pages of the Investigation Report, “…… 似乎唔係好完整, 特別係之後某啲月份 …… [CIP Shue] 睇到某一啲位置裡面係跳咗幾個月嘅, 咁呢個係唔可能發生嘅 …… [CIP Shue] 估係因為當年個case file已經攞咗legal advice [see §402 and §406 below], 所以原種可能銷咗, …… 聽講呢個file都係喺啲duplicate裡面搵番返嚟嘅啫, 咁囉, 據 [CIP Shue] 所知嘅記憶係咁樣 ……”, so “…… 中間有啲月份係可能我哋見唔到有做過嘢嘅, 但可能係有做過嘢, 不過, 到今天 …… [record] 可能係不存在 ……”[60] DPC47923 also confirmed under cross-examination that “…… 聽聞 …… 話正莊個file其實已經係銷咗㗎喇, 呢啲係影印本嚟, 係duplicate ……正本嘅file已經銷毀咗 ……”

VII.  FALSE IMPRISONMENT

124.  I start with the factual background to the “blackmail” case because such factual background featured in P2’s and P3’s evidence and contentions:

(a)	It was a pervasive underlying theme in Mr Sio’s submissions (as discussed below) for both causes of action in false imprisonment and misfeasance in public office that the incident in question was no more than a civil dispute between the relevant parties with no element of criminality (see also §45(b) above).
(b)	Ps’ pleaded particulars for the cause of action in fale imprisonment included inter alia factual assertions that at the time of the arrest of P2 and P3 (i) Ps had possessory right to the Goods, (ii) P3 was a mere employee of P1 responsible for transporting the Goods to TSW Depot, and (iii) P2 was a mere employee of P1 forced to attend TSW Depot (see §31(a)-(c) above). Whether P2 and P3 could prove these factual assertions on the balance of probabilities required consideration of the factual background. Although Mr Sio contended P2’s and P3’s case would be sufficiently established without factual proof/finding as to possessory right/title and/or right of lien over the Goods/Containers, P2 and P3 did not abandon the factual assertion in (i) above pleaded in support of their claim.
(c)	An essential element of P2’s and P3’s case summarised by Mr Sio in his written closing submissions was that Hui misled the police but subsequent police investigation revealed there was no unwarranted demand with menaces (see §91(c) above). Such contention raised 2 points: (i) whether Hui by his account misled the police (which required consideration of the factual background), and (ii) if so, whether this would have been revealed in subsequent police investigation.
(d)	As explained in Part VI above, questions of witness credibility/ reliability loomed large in this case. The factual background was canvassed in some detail in the evidence, and cross-examination was a revealing process that helpfully exposed the reliability or unreliability of witness testimony.

(a)  P1

125.  According to 企業法人營業執照 (defined in footnote 3(b)(i) above) dated 18 September 2008 (with chop of “廣州市工商行政管理局 (番禺分局)” affixed thereto) and valid from 29 January 2007 to 1 June 2011, P1 was a PRC company incorporated in Panyu on 29 January 2007 carrying on business that included inter alia “貨物進出口”, and its “法定代表人” was 鄧禮如 (“LY Tang”).

126.  P2 claimed he had seen 企業法人營業執照 which “…… 開張嗰時已經有, [P2] 入公司做嗰時已經有㗎喇 ……” Such evidence was puzzling because (a) P1 was only incorporated on 29 January 2007 and 企業法人營業執照 was dated more than 1½ years later (18 September 2008), but (b) P2 claimed to have been employed by P1 since 1994 (see §130 below). P2 tried to explain this away by saying (i) LY Tang was his “堂侄”, (ii) “…… [P2] 好早同 [LY Tang] 做櫃 ……” but in the 1990s he was employed by another company and not P1, and (iii) 企業法人營業執照 was issued on 18 September 2008 because “…… 大陸嗰啲官僚嘢, 你冇錢畀佢, 佢唔會發畀你住, 一路好遲畀你, 要申請好耐先畀你 …… 佢鍾意幾時畀你, 幾時畀你 ……”

127.  In my view, P2’s above explanation (especially §126(a) and §126(iii) above) plainly meant 企業法人營業執照 was issued (with retrospective validity) more than a year after his arrest on 16 August 2007, so it could not have been presented/shown to and/or seized by the Team 1 Officers before or at the time of his arrest at TSW Depot (as pleaded in the RASoC and 28/8/12 FBP – see footnote 4(a)-(d) above) or after he was brought back to TSW Police Station (as pleaded in §23 of the RSoC – see footnote 4 above). P2 tried to sidestep such obvious inconsistency by saying under cross-examination that “[P2] 唔知呀 …… 呢啲嘢都唔係 [P2] 理嘅 …… 因為 [P1] 去申請商業登記係唔關 [P2] 事㗎嘛 …… 咁但係 [P2] 所知就話 …… 大陸申請個商業登記, 佢唔係即刻 …… 一個星期、兩個星期畀你嘅 ……” But such evidence only served to underline the fact that企業法人營業執照 could not have been presented/shown to or seized by the Team 1 Officers, which clearly undermined the veracity of P2’s case/evidence.

128.  P2 claimed (a) PRC citizen 梁耀洪 (described as P1’s manager/shareholder in the P2 1^st WStmt, “YH Leung”) was one of P1’s bosses in Panyu,[61] and (b) PRC citizen LB Tang was P1’s manager stationed in Panyu. P2 testified that “…… [LB Tang] 久唔久接單嘅, 就有時就 [P1’s YH Leung] 直接 …… 打電話畀 [P2] 嘅, 即係 [P1] 喺 [Panyu] 嗰面就有六、七個人嘅, 邊個得閒就打電話畀 [P2] 囉 …… 譬如話 …… 接咗order, 有時--嗰啲會計, 有時其他人打畀 [P2] 嘅 ……”

129.  The Hui 1^st/2^nd/6^th PStmts stated that PRC citizen LB Tang was the proprietor of FCGC Co Ltd, and that on 20 June 2007 he visited LB Tang at Panyu, which in my view (and as demonstrated in the discussions below) showed his connection wth P1. The Hui 3^rd/4^th/6^th PStmts claimed (consistently with P2’s stance – see §128 above) PRC citizen YH Leung was LB Tang’s boss/partner in P1. In the Hui 6^th PStmt, Hui said he did not know (and he and WC Leung did not ask) who were the actual responsible persons of P1, but Hui believed LB Tang had interests in P1. In my view, YH Leung had interests in P1, and LB Tang had interests in FCGC Co Ltd and also had interests in or was employed by P1. There was no dispute that YH Leung on behalf of P1 and WC Leung (Hui’s partner) on behalf of Keung Kee (as defined in footnote 6 above) signed 代理報關委托書.

(b)  P2 and P3

130.  P2 and P3 were Hong Kong citizens, and the P2/P3 1^st WStmts claimed they were employed by P1 as supervisor since 1994 (P2) and assistant to supervisor since early 2000 (P3) in respect of P1’s operations in Hong Kong. According to P2’s and P3’s written employment contracts both dated 31 March 2007 with P1, they were “[P1] 駐港辦事處 [業務經理 / 業務員], 負責 [P1] 在香港貨物進出口的日常工作, 拓展在香港的相關業務”.

131.  But P2 under cross-examination disagreed he was P1’s supervisor, and claimed to be “…… 「行街」咁囉, 即係 [P1] 安排嘅嘢, [P2] 喺香港做囉 ……”, eg when P1 secured a business order to ship container goods from Hong Kong to Mainland China, P1 would give P2 information about the containers and the shipping company, “…… 咁就 [P2] 安排拖頭去做嘅 ……”, “…… 搵啲貨櫃司機, 咁去邊個場攞啲櫃拖去碼頭 ……” for loading onto the vessel. Since P1 had no corporate presence or other employees in Hong Kong, P2 and P3 had to handle the aforesaid work in their personal capacities.

132.  The DPC58096 WStmt stated (and on balance I accept) that on 16 August 2007 at the TSW Depot P3 said to DPC58096 (in the presence of Hui) inter alia that “我唔知, 我中間人嚟送櫃嘅, 代收嘅啫, 隻櫃喺大陸又上又落唔洗錢呀, 總之你唔比錢我, 我唔會比返個櫃你” (see §289 below). So before the arrest of P2 and P3, (a) DPC58096 (from what P3 told him – see §§288-290 below), (b) DSGT385 (from DPC58096’s report to him – see §294 below) and (c) DPC47923 (from DSGT385’s briefing to him – see §296 below) learned that P3 himself claimed to be a middleman (rather than an employee) in handling the Goods/Containers.

133.  But, as Mr Lam submitted (and I agree), whether P2 and P3 were middlemen or employees was immaterial because section 23 of the TO provides that a person commits blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces (see §58 above). Thus, in determining whether the arresting officer(s) had any reasonable suspicion that P2 and/or P3 were guilty of blackmail, the question was whether either of them wanted to gain for himelf or for the benefit of another (eg P1), and it mattered not whether they did so as employees or middlemen.

(c)  Hui

134.  According to the Hui 1^st PStmt, Hui was born in Zhuhai (珠海), Mainland China. He came to Hong Kong in 1974, and became a Hong Kong citizen. In 2006, he established Keung Kee. According to the Hui 1^st/3^rd/6^th PStmts, PRC citizen WC Leung and Hui as partners “合資經營” Keung Kee to carry on the business of “…… 幫客人將貨物轉櫃, 或者將貨物送往香港或大陸 ……” with WC Leung dealing with “…… 大陸貨運聯繫 ……” and Hui dealing with operations in Hong Kong. According to the Hui 1^st PStmt, Keung Kee had an employee Wong Yoon-sun (黃元新, “Wong”).

(d)  Bargain for importing goods to Mainland China

135.  代理報關委托書  代理報關委托書 dated 25 May 2007 and signed by WC Leung as “法定代表人或其受權代表簽署《代理報關委托書》的人” on behalf of Keung Kee as “委托方” provided inter alia that “委托方” engaged “被委托方” (P1) to process customs clearance declaration and/or clearance of goods/containers for import into Mainland China:

“我單位 [ie Keung Kee] 現 [逐票] 委托貴公司 [ie P1] 代理         等通關事宜。(A、填單申報 B、輔助檢驗 C、[illegible] 繳稅款 D、辯理海關證明聯 E、審批手冊 F、核銷手冊 G、申辦減免稅手續 H、其他) 詳見《委托報關協議書》。我單位 [ie Keung Kee] 保證遵守《海關法》和國家有關法規, 保證所提供的情況真實、 完整、單貨相符。否則, 應承擔相關法律責任 …… [“Keung Kee’s Assurance”]”

136.  By 委托報關協議書 endorsed on 代理報關委托書 (“委托報關協議書”), “委托方” and “被委托方” reached agreement on “…… 委托報關具體事項和各自責任 ……” set out in (a) a section/box for “被委托方” dated 9 May 2007 signed by YH Leung on behalf of P1 (with P1’s company chop affixed thereto), and (b) a section/box for “委托方” dated 25 May 2007 and signed by WC Leung (on behalf of Keung Kee[62]). In my view, these 2 sections/boxes were quite telling. In the one for “委托方”, the entire section/box[63] were left blank. In the other for “被委托方”, P1 was named as “被委托方”, but no other sub-box was filled except for P1’s “承諾說明” which provided that “香港船離岸後計10天內交貨, 貨物必須與裝櫃清單相符 (由委托方提供) [“Cargo Manifest”], 如果報關方發生扣櫃等問題, 賠償捌萬元/櫃給委托方” (my emphasis) (“P1’s Undertaking”).

137.  It was clear from 代理報關委托書 that Keung Kee engaged P1 to act as customs agent to process customs declaration and clearance for import of goods into Mainland China. Indeed, P2 emphasised it was for P1 to arrange submission of “報關表” (“Customs Declaration Form”) to Guangxi C&E otherwise Keung Kee would not have required P1’s services. As seen in §143, §146, §147(b), §149(a) and §162 below, I find on balance that P1 caused FCGC Co Ltd to be “報關方” for the Goods/Containers.

138.  On the face of 委托報關協議書, P1’s Undertaking by P1 as “被委托方” to Keung Kee as “委托方” had 2 elements: (a) the shipped cargo would be imported/delivered within 10 days of vessel departure from Hong Kong, and (b) on the premise that the shipped cargo corresponded to description in the Cargo Manifest provided by Keung Kee,[64] “被委托方” (ie P1) would pay compensation of RMB80,000/Container to “委托方” (ie Keung Kee) “如果報關方發生扣櫃等問題” (ie confiscation of containers as explained in the Hui 4^th PStmt – see §187 below). I therefore disagree with P2’s and P3’s plea as to the effect of P1’s Undertaking, ie should the shipped containers be detained by the PRC customs authority, “the owner and/or its agent of the goods” (委托方) would have to pay compensation of HK$80,000/ Container (see §14(c) above).

139.  P2’s and P3’s case  According to the P2 1st WStmt, WC Leung as “owner” of scrap metal (廢五金) in the 6 Containers appointed P1 as customs agent to deal with PRC cutoms-related matters for such containers. P2 said under cross-examination he did not know how P1 secured this business order and/or what was discussed/agreed between Keung Kee and P1, which were not part of his duties.

140.  But P2 confessed under cross-examination he merely assumed WC Leung / Keung Kee were the “owner” of the Goods/ Containers from (a) WC Leung’s name/signature for “委托方” in 委托報關協議書 (see §136(b) above), (b) Keung Kee’s delivery of the Goods/Containers to Mark Shipping (defined in footnote 3(b)(v) above) for shipment to Mainland China (see §152 below) and (c) P2’s practice of regarding “…… 邊個委托 [P1] 做運輸嘅, [P2] 就視為貨主㗎喇 ……”, but he really did not know whether WC Leung / Keung Kee were the “owner” of the Goods/Containers or whether they only arranged for their shipment. As explained in §155 below, (i) I am not satisfied WC Leung / Keung Kee were the “owner” of the Goods/Containers, and (ii) I find on balance they were forwarding agent for the shippers.

141.  Under cross-examination, P2 was unclear why (a) WC Leung’s signatures for “委托方” on代理報關委托書 and 委托報關協議書 were dated 25 May 2007 (ie more than 2 weeks after委托報關協議書 was signed by YH Leung for P1 as “被委托方” on 9 May 2007), and (b) the section/box for “委托方” was not filled in (see §136 above). P2 claimed he did not handle (and did not ask P1 about) such “合同”.

142.  Hui’s stance According to the Hui 1^st/2^nd/3^rd/4^th/6^th PStmts, in early May 2007 in Shenzhen, Mainland China, WC Leung introduced Hui to LB Tang who claimed to be the proprietor of FCGC Co Ltd in Fang Cheng Gang City,[65] and who had a partner YH Leung at his PRC company (later transpired to be P1). LB Tang said he specialised in PRC customs declaration and clearance, and was familiar with government organs in Mainland China (including border officials). When LB Tang asked Hui / WC Leung whether they had experience in shipping container goods to Mainland China, Hui replied in the affirmative because he together with others had experience of shipping “電腦零件廢料” (ie E-Waste) into Mainland China, but “…… 從 [Hui] 以經曾付運過 [E-Waste] 經驗 …… [Hui knew E-Waste] 唔可以循正常手續辦理報關手續, 因為咁會被徵收大量手續費 ……”, “…… 如果電腦零件任何部份包括廢料由外地進入大陸內地係必會收取高關稅 ……” So WC Leung / Hui and LB Tang discussed and agreed on business cooperation with a view to maximise profits by (a) WC Leung / Hui soliciting owners who wished to ship E-Waste from Hong Kong to Guangxi region in Mainland China, and (b) LB Tang using “人際關係” (guanxi) and “影響力” (influence) to minimise custom duties payable to PRC customs authority in importing E-Waste into Mainland China (which would otherwise attract hefty custom duties). Consequently, WC Leung / Keung Kee agreed to handle YH Leung / P1 to cause customs declaration and clearance for importing containers of E-Waste into Mainland China. This was the 1^st time Hui did business with LB Tang (who was unknown to him previously).

143.  The business cooperation agreed to above was formalised between LB Tang’s company P1 and Hui’s / WC Leung’s company Keung Kee. YH Leung on behalf of P1 signed 委托報關協議書 on 9 May 2007. Since both parties knew the cargo to be imported into Mainland China was E-Waste that “…… 唔可以循正常手續辦理報關手續, 因為咁會被徵收大量手續費 ……” and “…… 必會收取高關稅 ……”, the agreed arrangement was “…… 先會私底下透過 [LB Tang] [at Fang Cheng Gang City] 所設立嘅報關公司 [ie FCGC Co Ltd], 同透過 [LB Tang] 自己報稱喺大陸嘅人事關係, 將 …… 貨櫃運返大陸 ……, 所以單據或合約都唔可以顯示係 [E-Waste] 嘅資格 ……”, hence YH Leung / P1 could/did not mention the nature, quantity and destination of the goods to be shipped (ie E-Waste) in 委托報關協議書.

144.  To complement such arrangement, YH Leung / P1 gave P1’s Undertaking, ie “貨物離開香港口海岸後10日內交貨, 如在貨物於報關期間被海關扣留貨品的話, [P1] 可賠償每個貨櫃八萬元人民幣給 [Keung Kee] ……” or, to put it in another way, “…… 如果報關出現扣關問題, 就要由被委托一方 [ie P1] 以每隻櫃8萬元做賠償 ……” Hui’s understanding of P1’s Undertaking accorded with that of this court in §138 above.

145.  Hui explained that “…… 因為 [Keung Kee] 要確保有公司可以幫 [Keung Kee] 報到關才會接生意 ……”, so it was only after YH Leung / P1 signed 委托報關協議書on 9 May 2007 that Hui / WC Leung solicited business orders for shipping E-Waste from Hong Kong to Nan Hai. Hui directly liaised with Kwok Ching-fai[66] (郭創輝, “Kwok”) and secured an order to ship 1 Container. On 20 May 2007 Hui secured another order from Zeng Ai-min (曾愛民, “Zeng”)[67] through a middleman Yau Chung-tip (邱中疊, “Yau”) to ship 2 Containers. WC Leung secured an order from Liu Tsz-yuet (劉芷悅, “Liu”)[68] to ship 3 Containers. “…… 今次案件入面果 [6 Containers] 都係運載 [E-Waste] ……”, which was corroborated by Kwok’s police statement given on 19 August 2007 (“Kwok PStmt”), Zeng’s police statement given on 19 August 2007 (“Zeng PStmt”) and Lui’s police statement given on 17 August 2007 (“Lui PStmt”). Upon securing such business orders, WC Leung / Keung Kee signed 代理報關委托書and 委托報關協議書on 25 May 2007. For similar reasons as explained in §143 above, WC Leung / Keung Kee could/did not mention the nature, quantity and destination of the goods to be shipped (ie E-Waste) in 委托報關協議書.

146.  As regards transportation charges, (a) Keung Kee would be initially responsible for Hong Kong land transport charges for delivering the Containers from the container depot to the container terminal, and (b) LB Tang’s company (ie P1) would be initially responsible for freight charges for the voyage from Hong Kong to Fang Cheng Gang City and other customs-related charges in Mainland China.Hui said “…… 因 [LB Tang] 喺於 [Fang Cheng Gang City] 海關關口以 [LB Tang’s] 公司名義設立左一間報關公司 [ie FCGC Co Ltd], 所以 [Hui] 先會安排 [Containers] 由香港至 [Fang Cheng Gang City] 港口 ……”, “…… 至於貨物於中國大陸有任何問題都係由 [LB Tang’s company, ie P1 or FCGC Co Ltd] 全部負責及付費 ……” After customs clearance, Hui / Keung Kee would arrange for the Containers to be delivered to their final destination in Nan Hai. Hui said “…… 如果 [Containers] 成功到達 [Fang Cheng Gang City] 後, 向 [Containers] 櫃主收到運費後, [Hui] 同 [LB Tang] 會互相提供單據資料以扣除雙方交通運費[69]後, 就可以就以公司名義, 兩間公司 [ie Keung Kee and P1] 各佔一半利潤 ……” Thus, Hui / Keung Kee did not have to pay any advance deposit to P1 for shipment of the Containers to Mainland China, and no payment was due from Keung Kee to P1 pending customs clearance and successful import of the Containers (which both P1 and Keung Kee knew contained E-Waste) into Mainland China.

147.  Findings  Having carefully considered Hui’s account (bearing in mind its hearsay nature) and P2’s evidence, on balance I prefer Hui’s account in §§142-146 above. I find the business cooperation agreement was (a) for Keung Kee to solicit custom to ship E-Waste from Hong Kong to Mainland China, (b) for P1 to cause FCGC Co Ltd to act as “報關方” to cause customs declaration and clearance for import of such E-Waste into Mainland China without having to pay hefty custom duties by not adopting normal procedures  (eg by not declaring the shipped goods as E-Waste on the contract/shipping documents and by LB Tang exerting guanxi and influence on Guangxi C&E), and (c) for Keung Kee to be responsible for the Hong Kong leg of the journey, and P1 / FCGC Co Ltd to be responsible for the sea / Mainland Chinese legs of the journey, so that (d) Keung Kee was not required to make upfront payment pending customs clearance and import of the shipped E-Waste into Mainland China, and upon such successful import Keung Kee and P1 would equally share the net profits after deduction of all charges/expenses (including transport/freight charges) from fees collected from the customers (collectively, “Bargain”).

148.  In reaching the above conclusion, I take note that P2 and P3 (a) erroneously assumed WC Leung / Keung Kee were the owners of the Goods/Containers (see §140 above and §155 below), (b) were mistaken as to the effect of P1’s Undertaking (see §138 above), and (c) could not sensibly explain (i) why Keung Kee signed 代理報關委托書 and 委托報關協議書 more than 2 weeks after P1 signed the same, and (ii) why the contractual 委托報關協議書 conspicuously lacked description of the goods to be shipped, the charges for services contracted for, and the manner of payment.

149.  More importantly, the available documents were consistent with and supported Hui’s account. I will deal with the freight prepaid bill of lading dated 4 June 2007 issued by Mark Shipping (“B/L”) for shipping the 6 Containers from Hong Kong to Qinzhou, Guangxi Province, Mainland China in §§153-157 below. But 2 matters about the B/L were telling:

(a)

The fact that (i) FCGC Co Ltd (rather than the true importers/ recipient(s) of the Goods/Containers) was named as consignee / notify party in the B/L and (ii) the Goods/Containers were shipped to Fang Cheng Gang City (rather than the true destination in Nan Hai) went a long way to bolster Hui’s account that LB Tang’s part of the Bargain was to use FCGC Co Ltd (ie the company he established in Fang Cheng Gang City for providing customs agency service) and his guanxi/influence on Guangxi C&E (in lieu of normal procedures) to cause the Goods being E-Waste clear customs for import into Mainland China (see §147(b) above).

(b)

P2 testified (see §152 below) that (i) Keung Kee arranged to deliver the 6 Containers to the shipping company nominated by P1, ie Mark Shipping (which, in my view, sat well with Hui’s account of the Bargain that Keung Kee would initially pay for Hong Kong land transport, which charges would be deducted in due course upon successful import of the Goods into Mainland China and collection of fees payable by the customers to arrive at the net profits of the transaction for equal sharing between P1 and Keung Kee – see §147(c)-(d) above), and (ii) P2 on behalf of P1 booked cargo space with Mark Shipping for shipping the 6 Containers from Hong Kong to Mainland China (which, in my view, sat well with (1) the “freight prepaid” B/L which meant P1 paid the sea freight (as confirmed by P2 – see §152 below), and (2) Hui’s account of the Bargain that P1 would pay for the sea voyage, which freight charges would be deducted in due course as explained in §147(c)-(d) above).

150.  Further, 代理報關委托書 and 委托報關協議書 also supported Hui’s account, and amply explained why:

(a)	委托報關協議書 was silent on the goods to be shipped and the freight charges to be paid (because it was inappropriate to expressly mention E-Waste given (i) the known difficulty for importing E-Waste into Mainland China under normal procedures (see §§142-143 above), (ii) LB Tang / P1 would use guanxi and influence on Guangxi C&E to cause customs clearance (see §147(b) above), and (iii) 委托報關協議書 on its face showed that a triplicate copy of such prescribed form had to be submitted to Guangxi C&E (“白聯: 海關留存”));
(b)	there was anxiety in securing customs clearance and hence delivery timeline (“交貨”) in P1’s Undertaking (as Keung Kee was reliant on LB Tang’s / P1’s / FCGC Co Ltd’s performance of their obligation in §147(b) above under the Bargain);
(c)	P1’s Undertaking required P1 to pay compensation if “報關方發生扣櫃等問題” (as Keung Kee was reliant on LB Tang’s / P1’s performance of their obligation in §147(b) above under the Bargain);
(d)	WC Leung / Keung Kee signed 代理報關委托書 and 委托報關協議書 more than 2 weeks after YH Leung / P1 signed the same (as Keung Kee had to be assured of LB Tang’s / P1’s / FGCC Co Ltd’s commitment to the Bargain before soliciting custom for shipping E-Waste from Hong Kong into Mainland China (see §145 above)).

151.  In my view, Keung Kee’s Assurance that provided Keung Kee “保證 …… 貨單相符” and PI’s Undertaking that provided “貨物必須與裝櫃清單相符 (由委托方提供)” did not undermine Hui’s account of the Bargain. Bearing in mind 代理報關委托書 and 委托報關協議書 were silent on description of the goods to be shipped, such assertions of “貨單相符” gave some semblance of regularity in the formal documentation to be submitted to Guangxi C&E (see §150(a)(iii) above). I find this reflected the common recognition by the parties to the Bargain that import of E-Waste for Keung Kee’s customers into Mainland China outside normal procedures and through LB Tang’s / P1’s “私底下” guangxi and influence on the PRC customs authority might not be all that kosher, which also explained why there was no full written contact in respect of the Bargain. In my view, Hui’s account credibly explained the roles of relevant parties, which underlined its reliability.

(e)  Shipment of Containers to Fang Cheng Gang City

152.  According to the Hui 3^rd PStmt, on 29 May 2007 Hui confirmed the 6 Containers would be shipped to Mainland China. P2 received instructions from P1’s YH Leung to arrange shipment of the 6 Containers to Fang Cheng Gang City, so P2 proceeded to book cargo space with Mark Shipping. On/about 2 June 2007 (Hui 1^st PStmt) or 4 June 2007 (P2 PStmt), P2 asked Hui / WC Leung to arrange container trucks to transport the 6 Containers to Tuen Mun Container Terminal together with the Cargo Manifest to hand over to Mark Shipping for shipment to Fang Cheng Gang City. According to the P2 PStmt, on 4 June 2007 Mark Shipping confirmed to P2 it had received the 1^st-6^th Containers, so P2 paid freight charges of HK$50,000 to Mark Shipping.

(f)  B/L

153.  Mark Shipping issued the B/L dated 4 June 2007 for shipment of the 6 Containers from Hong Kong to Qinzhou. The B/L stated the shipper was 高正有限公司 and consignee / notify party were FCGC Co Ltd.

154.  P2 said under cross-examination that he did not know any 高正有限公司, and that he first saw the B/L at CFC’s offices after commencement of the present action. He alleged “...... [P2] 做櫃同埋運輸嘅之嘛 ……”, “…… 唔係做船務 ……”, “…… 唔係做文件嗰範㗎嘛 ……”, and “…… [P1] 裡面一個文員, 一個會計做嘅 ……” who would deal with shipping documents. P2 knew a bill of lading (提單) was an important shipping document, but had little idea about the B/L save that it was issued by Mark Shipping.^[70] But despite P2’s doubts (see footnote 70 above), I find on balance the B/L (discovered by Ps in their 1^st Supplemental List of Documents) was the bill of lading issued by Mark Shipping for shipping the 6 Containers from Hong Kong to Fang Cheng Gang City.

155.  I also find on balance WC Leung / Keung Kee were not the “owner” of the Goods/Containers: (a) P2 was constrained to accept that his assumption otherwise was based on surmise, and he really did not know who was the actual owner of the Goods (see §140 above), (b) Keung Kee’s Chinese trade name “強記物流公司” indicated it was in the logistics business, and in §140 above I have found it was a forwarding agent and not a goods owner, (c) Keung Kee was not named as shipper or consignee / notify party of the Containers in the B/L (see §153 above), and (d) the 4/8/08 Letter by CFC to the police described Keung Kee as “an agent of the owner of the [Goods]” rather than as owner of the Goods (see §403 below).

156.  As explained in §149(a) above, it was consistent with Hui’s account (which I accept) that the consignee / notify party was FCGC Co Ltd, ie a PRC company established by LB Tang in Fang Cheng Gang City that provided “報關公司” services for importing the Containers into Mainland China. In my view, the shipper 高正有限公司 was also a company nominated by P1, which was unsurprising since (a) it was LB Tang / P1 and not Keung Kee who engaged Mark Shipping (ie the shipping company that issued the B/L) to ship the Containers, (b) LB Tang / P1 nominated FCGC Co Ltd to be the consignee / notify party for the B/L issued by Mark Shipping, and (c) this seemed to be P1’s habit in dealing with container shipments because P1 also nominated 金潤物流公司 as the party that would take delivery of the Containers upon their return to Hong Kong in August 2007 in Mark Shipping’s 提貨通知 (as defined in footnote 3(b)(v) above) (see §212 below).

157.  I have found the Goods in the Containers were E-Waste (see §145 above). But the B/L stated the Containers contained scrap metal (廢五金). In my view, such guise was to be expected in light of the Bargain as I have found in that the formal shipping documents would not describe the Goods as E-Waste, which description might imperil the planned import of E-Waste in the Containers into Mainland China outside normal procedures to avoid hefty customs duty and through LB Tang’s / P1’s guanxi and influence on Guangxi C&E.

(g)  Cargo Manifest

158.  But the P2 1^st WStmt claimed the Containers contained scrap metal. Under cross-examination, P2 said he did not learn this directly from WC Leung or from the B/L (which he had not seen), but he “…… 睇到就係話報 [6 Containers] 係廢五金 ……” in the Cargo Manifest (清單) provided by WC Leung / Keung Kee as “委托方”. P2 explained “…… [P2] 一定有呢份清單 [Cargo Manifest] 先接到啲貨……” for shipment to Mainland China, “…… 然後交 [Cargo Manifest] 畀 [P1], [P1] 攞呢張清單 [ie Cargo Manifest] 去報關㗎嘛, 去廣西嗰度報畀人哋㗎嘛 ……” P2 said he could not check the Goods inside the Containers which were sealed/locked, so P1 had to act on information in the Cargo Manifest provided by WC Leung / Keung Kee. P2 claimed “[P2] 就知道有櫃, 但 [P2] 唔知裡面有咩嘢”. P2 said the Cargo Manifest was important because (a) P1 would rely on information therein to process customs declaration clearance, and (b) the consignee “…… 第二日 …… 跟住嗰張清單去收番啲櫃嘅 ……”, so the Cargo Manifest “…… 一定要寫清楚 [Containers] 裡面嗰啲乜嘢 ……”, “…… 寫清單話廢五金 ……”

159.  The Cargo Manifest was not discovered/disclosed in the present action. P2 confirmed under cross-exmaination that he retained copy of the Cargo Manifest until such copy was seized by the police at the time of his arrest on 16 August 2017 (see §§321-323 below). Even though P2 said under cross-examination he no longer had copies of the documents presented to and/or seized by the police at the time of his arrest (see §§321-323 below), Ps’ Reply averred that P2 produced photocopies of such documents to the Team 1 Officers when he answered bail by reporting to TSW Police Station in order to claim possessory title of the Goods (see §17(ii) above). Since (as seen in discussions below) I do not accept P2’s case that he showed/presented documents to the police before or at the time of his arrest or the police seized documents from his person or his bag whether at TSW Depot or TSW police Station, and I also reject P2’s and P3’s plea that P2 produced photocopies of such documents when he answered bail (indeed P2 testified under cross-examination neither he nor P3 asked about the Goods/Containers when they answered bail – see §382 below), I find it more likely than not P2 still retained copy of the Cargo Manifest, but it was not disclosed/discovered in the present action.

160.  Pursuant to the Bargain (which I accept – see §147 above), P1 knew the Containers contained E-Waste even though 代理報關委托書 and 委托報關協議書 endorsed thereon were silent on the goods to be shipped, and the B/L stated the Goods in the Containers were scrap metal. In light of the Bargain explained in §147(a)-(d) above, and the need for conformity on face of the formal documents (eg the B/L), I find it more likely than not that the Cargo Manifest also stated the Goods were scrap metal for reasons similar to that set out in §157 above.

161.  I also note P2 claimed under cross-examination that P1/P2 had handled 2 previous shipments for WC Leung (who gave P1/P2 a cargo manifest for each shipment). But I need not make any finding in relation thereto as I accept that (a) shipment of the Containers to Mainland China was Hui’s 1^st transaction with LB Tang / P1 / FCGC Co Ltd, and (b) Keung Kee delivered the Cargo Manifest together with the Containers to P2 / Mark Shipping.

(h)  Customs declaration

162.  On 6 June 2007, the Containers arrived at Qinzhou.[71] P2 claimed under cross-examination that “…… [P2] 又唔識文件、[P2] 又唔係做文件…… [P2] 都睇唔到報關紙喇, 係老細睇嘅之嘛 ……” On balance, I accept P1 as customs agent caused FCGC Co Ltd to be “報關方” for submitting the Customs Declaration Form in relation to the Goods/Containers to Guangxi C&E, which was consistent with (a) the Bargain explained in §147 above, and (b) 繳款通知書 dated 13 August 2007 (defined in footnote 3(b)(iv) above) that was addressed to FCGC Co Ltd for payment of warehouse charges arising from detention of the Goods/Containers by Guangxi C&E (“C&E Detention”). 

163.  Like the Cargo Manifest, the Customs Declaration Form submitted to Guangxi C&E was not discovered/disclosed in the present action. P2 claimed “…… 全部喺大陸㗎嘛, [Ps] 攞唔到㗎嘛”. But it would be strange even on P2’s and P3’s case for P1 and/or FCGC Co Ltd not to retain copy of the Customs Declaration Form when processing the Containers for customs declaration/clearance and when the Containers failed customs clearance since (a) FCGC Co Ltd as “報關方” had to deal with Guangxi C&E on customs-related matters, and (b) Keung Kee’s Assurance and P1’s Undertaking in 代理報關委托書 with 委托報關協議書 endorsed thereon (copy of which was to be submitted to Guangxi C&E – see §150(a) above) on their face required “單貨相符”. Nevertheless, I am prepared to infer that the Customs Declaration Form declared the Goods as scrap metal for reasons similar to those set out in §157 above and for consistency with other formal documents such as the B/L and the Cargo Manifest.

(i)  C&E Detention

164.  P2’s contentions According to the P2 PStmt, “…… 於同年六月尾 [P2] 就接到 [P1] 老細 [YH Leung] 電話, 表示 [6 Containers] 都用唔合環境條例被 [Guangxi C&E] 扣留 …… [P2] 老細 [YH Leung] 通知貨主既 [WC Leung] ……” (my emphasis) According to the P2 1^st WStmt, at/about end of June 2007, P2 learnt of the C&E Detention from FCGC Co Ltd that the Containers/Goods were (a) non-compliant with “environmental regulations” (“Environmental Breach Reason”) and/or (b) inconsistent with the Cargo Manifest (“Cargo Inconsistency Reason”). But under cross-examination P2 said it was about 2 months after shipment (ie at/about early August 2007) that “…… [Guangxi C&E] 嘅倉務就通知 [P1] ……”, and P1’s staff at Panyu informed P2 “…… 廢五金裡面藏到有啲影印機、有啲係醫學儀器, 所以 [Guangxi C&E] 就扣起 [Containers] ……”, “……「就裡面嗰啲嘢有藏到嘢, 入唔到關嘅」咁樣㗎 ……” P2 claimed under cross-examination that on P1’s instructions he personally went to Guangxi Province, Mainland China, and “…… [Guangxi C&E] 調查員就同 [P2] 講「裡面有乜嘢、有乜嘢, 咁而家唔畀你入關, 而家要扣留你喺度調查」……”, but P2 had no idea of the proportion of scrap metal, medical equipment and photocopiers in the Containers.

165.  Learning about C&E Detention  The Containers arrived at Qinzhou on 6 June 2007, so I find on balance it was in late June 2007 rather than in early August 2007 that P1 and P2 through FCGC Co Ltd as “報關方” learned of the C&E Detention, which was consistent with the explanation in the Hui 1^st/2^nd PStmts (which I accept) that due to delay with customs clearance, Hui went to see LB Tang in Panyu on 20 June 2007 to find out what happened and was told to wait, and he returned to Hong Kong when LB Tang acceded to his request for return of the Containers. Hui’s such request and LB Tang’s agreement thereto were also consistent with P1’s Undertaking that “香港離岸後10天內交貨”, which was not complied with.

166.  Reason(s) for C&E Detention  Ps’ pleadings and statement evidence made various allegations as to the reason(s) for the C&E Detention:

(a)	in the P2 PStmt made under caution shortly after P2’s arrest on 16 August 2007, P2 gave his answer (1) in §164 above to DPC47923’s question (1)[72] (ie the Environmental Breach Reason without mention of the Cargo Inconsistency Reason);
(b)	Ps’ Statement of Claim indorsed on the Writ of Summons issued on 18 August 2009 (“SoC”) pleaded that the Goods were detained by Guangxi C&E “for not in compliance with environmental regulations” (ie Environmental Breach Reason without mention of the Cargo Inconsistency Reason), which plea was maintained up to the RASoC filed on 28 October 2011 (see §8(b) above);
(c)	the P2 1st WStmt filed on 22 June 2010 (ie almost 3 years after P2’s arrest) stated that at/about the end of June 2007 P2 learned that the 6 Containers were detained by Guangxi C&E “for not in compliance with environmental regulations and/or inconsistent with the manifest” (ie the Environmental Breach Reason and/or Cargo Inconsistency Reason) (see §164 above);
(d)	in Ps’ Reply filed on 22 December 2011 (ie more than 4 years after P2’s arrest), Ps pleaded “the Goods were detained by [Guangxi C&E] because the Goods did not correspond to the descriptions made under the declaration form as declared by the owner and/or its agent (other than [Ps]) of the Goods” (ie Cargo Inconsistency Reason without mention of the Environmental Breach Reason).

The above evolution of the reason(s) for the C&E Detention clearly showed Ps (including P2) initially put forward the Environmental Breach Reason, but as the present litigation developed Ps (including P2) gradually shifted towards the Environmental Breach Reason “and/or” the Cargo Inconsistency Reason, and then finally migrated to the Cargo Inconsistency Reason.

167.  The Environmental Breach Reason was not documented, but Hui’s initial stance echoed that the C&E Detention was for the Environmental Breach Reason (see DPC47923’s question (1) recorded in the Hui 2^nd PStmt made on 17 August 2007 stating that when Hui reported to the police on 16 August 2007 he informed DPC47923 during the preliminary inquiry earlier, on the same day that “……係因唔符合環保例被扣查貨物 ……” (ie Environmental Breach Reason), but Hui’s answer (1) explained he did not refer to the Environmental Breach Reason in the Hui 1^st PStmt made later on the same day because “[Hui] 之前同 [DPC47923] 講話批貨喺廣西因環保問題 [被] 扣查, 係 [Hui] 自己諗過唔係 [illegible] 既原因, 並不 [是] 有任何人同 [Hui] 講的”).[73] I am not convinced that Hui’s answer (1) meant, as Mr Sio suggested, “Hui said he thought it was irrelevant”. But even it so meant, I find it quite plain that Hui (like Ps) tried to backpedal from the Environmental Breach Reason, but (unlike Ps) Hui did not offer another reason for the C&E Detention.

168.  On balance, I find the Environmental Breach Reason first given by Hui when he made report to the police on 16 August 2007 and also by P2 when he gave the P2 PStmt under caution on 16 August 2007 (in both cases without any mention of the Cargo Consistency Reason), ie Guangxi C&E discovered the irregular attempt to import the Goods (found to be E-Waste) in breach of environmental regulations by going outside normal procedures and thereby avoiding payment of hefty custom duties, was the true substantive reason for the C&E Detention.

169.  In my view, Hui’s initial reference to the Environmental Breach Reason and his subsequent attempt to resile from it in §167 above were readily understandable. The essence of the Bargain was to improve profits by importing E-Waste into Mainland China outside normal procedures so as to avoid hefty custom duties by praying in aid LB Tang’s / P1’s guanxi and influence with Guangxi C&E. The natural downside of this unorthodox approach must be that such guanxi and influence might not have the desired effect resulting in exposure of the Goods to be imported into Mainland China for what they actually were, ie an attempt to import E-Waste into Mainland China that failed to follow normal procedures including payment of requisite custom duties (being the Environmental Breach Reason), and such E-Waste would thereby fail to clear customs. In the urgency of reporting to the police on 16 August 2007, Hui reactively gave the true Environmental Breach Reason. But when further probed by the police on 17 August 2007 in the course of giving the Hui 2^nd PStmt, Hui astutely tried to resile from such reason without offering any other reason.

170.  Likewise, P2 in the P2 PStmt made on 16 August 2007 soon after his arrest volunteered the Environmental Breach Reason as Guangxi C&E’s reason for the C&E Detention. Bearing in mind that P2 personally visited Guangxi Province, Mainland China in August 2007 to liaise with Guangxi C&E for release of the Goods/Containers, he could not have been mistaken about Guangxi’s C&E’s reason for the C&E Detention so soon afterwards on 16 August 2007. In my view, LB Tang (PRC citizen), P1 (PRC company that carried on business in Panyu) and FCGC Co Ltd (PRC company that provided “報關” services in Fang Cheng Gang City) would have the same (if not even more enhanced) anxiety as Hui about the unorthodox Bargain when Guangxi C&E were not amenable to their guanxi and influence and exposed the Goods for what they were, ie an attempt to import E-Waste into Mainland China that failed to follow normal procedures including payment of requisite custom duties. But since P1 through FCGC Co Ltd acted as “報關方” and P2 personally visited and liaised with Guangxi C&E over the detained Containers, Ps were constrained to give a reason for the C&E Detention, which in my view explained the gradual metamorphosis from the Environmental Breach Reason into the Cargo Inconsistency Reason.

171.  On balance, I reject P2’s assertion under cross-examination that the Cargo Inconsistency Reason was the main reason for the C&E Detention. There was no available document from Guangxi C&E that confirmed the Cargo Inconsistency Reason. All P2 said under cross-examination was “…… 但有入倉嘅文件”, but he did not say the warehouse documents (if any) spelled out the reason for the C&E Detention. In short, there was no objective document that evidenced the Cargo Inconsistency Reason.

172.  Ps disclosed 委托書 (defined in footnote 3(b)(iii) above) dated 16 August 2007 and issued by P1 (with P1’s company chop affixed) as follows:

“6櫃廢五金 (櫃號 [of the 1^st to 6^th Containers (as defined in footnote 1 above)]) 進入大陸報關, 因裝櫃清單與實際貨物不相符, 在大陸扣留達2個多月, 現退回香港, 由 [P2] 負責辦理退港后的一切手續, 這批貨物在大陸的費用使用30多萬元, 香港費用由 [P2] 支付。特此證明”

委托書 was first disclosed in Ps’ List of Documents filed on 14 January 2010 which was after the SoC and before the P2 1^st WStmt / Reply, ie during the period when Ps started to introduce the Cargo Inconsistency Reason to downplay the Environmental Breach Reason (see §166 above). As explained in §§173-174 below, P2’s evidence did not inspire confidence in the veracity of 委托書.

173.  Under cross-examination, P2 said 委托書 was given by P1 to “…… [P2] 廣西辦事㗎嘛 …… 呢張嘢……” P2 said “…… [P2] 呢份文件好早攞到 ……”, which should be before his arrest on 16 August 2007 even though he could not remember precisely when, ie “…… [P2] 搞番 [6 Containers] 返嚟前畀 [P2] 嘅, [P2]「拉」呢張嘢去交錢, [P2]攞呢張嘢 ……”  But such evidence was necessarily untrue because it was apparent even on the face of 委托書 itself that (a) it was dated the day of P2’s arrest, and (b) by then the Goods/Containers already had been returned to Hong Kong after the 2-month C&E Detention. So P2 was constrained to say in re-examination “…… 因為 [P2] 出咗錢 …… [P1] 補番畀 [P2] 嘅, 即係 [P2] 攞咗貨, 之後 [P1] 補番畀 [P2] ……” But 委托書 only stated P2 “負責辦理 [Containers] 退港后的一切手續” and P2 would pay “香港費用”, but did not (i) expressly verify P2 had personally paid “這批貨物在大陸的費用使用30多萬元” and/or (ii) expressly undertook to reimburse P2 for “大陸的費用” and/or “香港費用”.In my view, P2’s differing explanations about 委托書 inspired little confidence in the veracity of either explanation.

174.  On balance I find 委托書 to be a self-serving ex post facto document allegedly issued by P1 on the very day of P2’s arrest, but in light of the analysis in §173 above, the overall unreliability of P2’s evidence, and P2’s poor and contradictory evidence as to whether this and other documents were produced to and/or seized by the police at the time of P2’s arrest and/or thereafter at TSW Police Station (see discussion in Part VII(r) below), I find myself unable to place weight on 委托書. In my view, 委托書 (which did not refer to the Environmental Breach Reason at all and which was disclosed in the present action only in 2010 – see §172 above) was likely to be a belated but doubtful effort to shift blame for the C&E Detention to the Cargo Inconsistency Reason, which reason was not referred to in the P2 PStmt in 2007 and the SoC in 2009, and which only surfaced in the P2 1^st WStmt in 2010 and in Ps’ Reply / 28/8/11 FBP in 2011.

175.  P2 claimed under cross-examination that the Cargo Inconsistency Reason (which he described as “報關不符”) was the true/main reason for the C&E Detention since Guangxi C&E “…… 有個儀器一check到入面嗰啲唔係廢五金, 所以扣留個櫃 ……. 咁 [P2] 就去使到幾十萬去拎番出嚟, …… 就要入倉 ……寄倉 ……”, but Guangxi C&E tagged on the Environmental Breach Reason as a subsidiary reason because “…… 大陸做嘢就係咁樣 ……”, “…… [PRC customs authority] 就一「抄」到你, 唔畀你入, 就好多嘢㗎喇 ……  [PRC customs authority] 唔畀你入嘅理由就任寫, 寫埋呢樣、寫埋嗰樣㗎喇, [PRC customs authority] 梗有一樣條件扣你, 唔畀你入㗎嘛……” Thus, P2 claimed the Containers “…… 即係環境污染嗰啲係唔關事㗎, [Guangxi C&E] 可以畀你入㗎, 但你藏咗啲嘢落去 ……” (my emphasis). Again, I am unconvinced by P2’s such evidence.

176.  First, P2’s testimony in §175 above seemed to suggest on P2’s case, whilst import of scrap metal into Mainland China would not breach environmental regulations, inclusion of medical equipment and photocopiers among the Goods was problematic and would invite Guangxi C&E to tag on the Environmental Breach Reason. It is not easy to understand how medical equipment and photocopiers (which were not scrap/waste) could logically be “環境污染”, and I find it improbable Guangxi C&E would tag this as subsidiary reason for the C&E Detention if the true reason for the C&E Detention was the Cargo Inconsistency Reason. In my view, it was nothing more than a lame attempt by P2 to try to explain away why he referred to the Environmental Breach Reason in the first place.

177.  Secondly, P2 let slip under cross-examination that the attempt to import the Goods being E-Waste into Mainland China was actually in breach of the environmental regulations, ie “…… [Guangxi C&E] 嗰面做埋 [Environmental Breach Reason] 落去㗎嘛, [Guangxi C&E] 畀 [P2] 嗰陣時就話 …… [Containers] 啲垃圾嚟㗎嘛 …… 唔符合呢個環保規定囉, 即係廢嘢嚟㗎嘛, 廢電腦、廢嘢嚟㗎嘛 ……” (my emphasis). P2’s such evidence did not sit well with his other testimony that did not say the medical equipment and photocopiers allegedly found in the Containers were scrap/waste, but P2’s such evidence served to bolster Hui’s account and my finding that the Environmental Breach Reason was the true reason for the C&E Detention as explained in §168 above.

178.  Thirdly, as referred to in §166(a) above, P2’s answer (1) made under caution to DPC47923’s question (1) (see footnote 72 above) in the P2 PStmt given on 16 August 2007 shortly after his arrest stated inter alia that “…… 於同年六月尾就接到 [P1] 老細 [YH Leung] 電話, 表示 [6 Containers] 都用唔合環境條例被 [Guangxi C&E] 扣留 ……” without mention of the Cargo Inconsistency Reason. P2 tried to explain this away by saying “……警方問 [P2] 嗰時就唔係問呢啲嘢嘅, 就問 [P2] 有冇勒索人哋嗰啲嘢咋 ……” But P2’s answer (1) appeared to be a lengthy reply in which he volunteered to DPC47923 the so-called subsidiary reason for the C&E Detention without any mention of the alleged main reason. And yet P2 still claimed “…… [P2] 報咗畀 [police officers] 聽㗎喇, [police officer] 就冇問到 [P2] 呢啲嘢㗎, 即係 [police officer] …… 佢寫落去嗰時冇問 [P2] 呢樣嘢 ……” When asked whether he meant he had told DPC47923 the Cargo Inconsistency Reason (allegedly the main reason for the C&E Detention) but DPC47923 failed to record it, P2 sidestepped to say he was unclear and could not remember as it was a long time ago, and later added “…… 可能係喇, 我睇唔到 ……” I am wholly unconvinced by P2’s various explanations, which I find to be poor attempts to sidestep legitimate cross-examination questions that he found quite unanswerable.

179.  Goods  I reiterate my finding that the Goods shipped in the Containers was E-Waste (see §145 above), and not scrap metal, medical equipment and photocopiers. In my view, the formal shipping/customs documents adopted the guise of “scrap metal” in the expectation that the Goods/Containers would clear customs and be imported into Mainland China without having to pay hefty custom duties through LB Tang’s / P1’s guanxi and influence pursuant to the Bargain.

180.  First, there was paucity of evidence (apart from P2’s testimony elicited only under cross-exmaination) that Guangxi C&E discovered medical equipment and photocopiers in the Containers.

181.  Secondly, in the P2 PStmt given on 16 August 2007 shortly after P2’s arrest, P2 did not mention medical equipment and/or photocopiers had been found in the Containers. In P2’s answer (1) to DPC47923’s question (1) (see footnote 72 above) in the P2 PStmt, P2 stated inter alia that “[P2] 本人係屬於 [P1] 嘅職員, 負責香港船務及運輸工作。喺2007年5月25日 [P1] 在大陸同名內地人 [WC Leung] 簽好一份合同, 係代理報關委托書, 就委托 [P1] 將 [6 Containers] 廢五金由香港嘅屯門碼頭運往 [FCGC Co Ltd] ……” When pressed on his silence over medical equipment and photocopiers, P2 ambiguously testified under cross-exmaination that “…… 當時係唔知道嘅, 但係 [DPC47923] 問嗰時, [P2] 又冇講出嚟嘅 ……”, but he eventually agreed “…… [P2] 知嘅 ……”, “…… [P2] 係而家先講 …… 但 [P2] 落口供嗰時冇講呢樣嘢嘅 ……” I find the silence in the P2 PStmt quite inexplicable because on P2’s case it was the very discovery of medical equipment and photocopiers (apart from scrap metal) among the Goods in the Containers that resulted in the C&E Detention for the Cargo Inconsistency Reason.

182.  P2 tried to downplay this by saying (i) “[DPC47923] 冇問 [P2], [P2] 就冇講到 …… 呢份口供就 …… 差人寫嘅, 寫晒, 咁問 [P2]--睇過「同唔同意?」, 咁 [P2] 就簽名咁嘅之嘛”, and (ii) “因為 …… [P2] 要喺呢行做嘅, 但 [P2] 唔想講出去, …… 又唔想畀人知嘅 ……” But I am not persuaded by such poor excuses:

(a)

On (i) above, I bear in mind that DPC47923’s question (1) allowed P2 to give his own account in his own way, and P2 by his answer (1) volunteered his full account as recorded by DPC47923 on 4 full pages. It was not a matter of DCPC47923 not asking P2 about the matter, but of P2 inexplicably not giving such information when he volunteered his own account. But even if P2 omitted such information because DPC47923 did not ask him about it, he could have added the important alleged fact that the Containers also contained medical equipment and photocopiers when he read the P2 PStmt and before he signed on it. P2 did not give any plausible reason for not doing so.

(b)

On (ii) above, even on P2’s case, I am at a loss to understand his concerns since the Cargo Inconsistency Reason would not reflect on P1’s/P2’s services: (1) P1/P2 considered the Cargo Inconsistency Reason was not due to P1’s breach of obligations, but due to Keung Kee’s failure to ensure the Goods in the sealed/locked Containers corresponded to description in the Cargo Manifest also provided by Keung Kee, (2) P2 chose to volunteer to the police his own account under caution very shortly after his arrest, so he could hardly have forgotten about the recent and material alleged discovery of medical equipment and photocopiers among the Goods, and (3) P2 could not have reasonably perceived that his account to the police under caution would be broadcasted to stakeholders in the logistics trade.

183.  Thirdly, the P2 1^st/2^nd WStmts merely stated the Containers held scrap metal, and did not mention any discovery of medical equipment and photocopiers in the Containers that would give rise to the Cargo Inconsistency Reason. Under cross-examination, P2 merely reiterated P1/P2 had no access to the Goods inside the Containers that were sealed/locked but Guangxi C&E’s inspection revealed medical equipment and photocopiers therein, “…… 就入唔到關, …… 就通知 [FCGC Co Ltd / P1] 報關公司 ……”, but P2 was unable to offer any credible explanation for the silence over medical equipment and photocopiers in the P2 1^st/2^nd WStmts. When pressed, P2 explained that (a) “…… 當時 [P2] 諗住就係搞到 [Containers] 返嚟, 就冇人問 [P2] 呢樣嘢吖嘛, 所以 [P2] 唔講囉 …… 冇落呢個口供喇”, and (b) “…… 當時我哋 …… 唔係拗 [Containers] 裡面 …… 有乜嘢嘅, 唔係拗呢樣嘢嘅 ……”. I disagree, especially as P2 in the P2 1^st WStmt chose to volunteer the information that the Containers contained scrap metal (without any hint of any medical equipment and photocopiers). Bearing in mind the P2 1^st/2^nd WStmts were filed in 2010/2012 to support all causes of action by all Ps in the present action, and to explain why Keung Kee should make payments for P1’s efforts (through P2) to arrange release of the Goods/Containers from the C&E Detention and their shipment back to Hong Kong (but more of these matters below) to disabuse allegations of blackmail, I find such reticence by P2 in the P2 1^st/2^nd WStmts improbable. In the end, when further pressed under cross-examination, all P2 could say was “…… 唔記得喇 …… [P2] 凈係講 [6 Containers] 嘅啫, [P2] 就冇問其他嘢 …… 同律師冇講其他嘢 ……”, which I find to be nothing more than a weak and unreliable excuse.

184.  Conclusion  P2 insisted that the Cargo Inconsistency Reason was the true/main reason for the 2-month long C&E Detention by saying (a) he asked and was so told by Guangxi C&E, and (b) he had to make advance payment out of his own pocket (subject to reimbursement by P1) to secure release of the Containers from Guangxi C&E (see §189 and §§202-204 below), and he suggested that but for the discovery of medical equipment and photocopiers among the Goods, the Goods/Containers would have cleared customs.

185.  In my view, there was no real dispute the C&E Detention did occur, but the real contention was over the true reason for the same. For §184(a) above, I have found P2’s evidence wanting and unreliable in light of the above analysis of P2’s case against the paucity of objective supporting document for the Cargo Inconsistency Reason. For §184(b) above, such fact only went to show the C&E Detention did occur, but would not help to identify the reason therefor.

186.  On balance, I accept the Goods/Containers failed to clear customs and were subjected to the C&E Detention for about 2 months. Bearing in mind P2’s and Hui’s early instinctive references to the Environmental Breach Reason (without mention of the Cargo Inconsistency Reason) in the Hui 1^st PStmt / P2 PStmt, SoC and P2 1^st WStmt in 2007, 2009 and 2010 respectively, ie long before emergence of the Cargo Inconsistency Reason in 委托書 disclosed in Ps’ List of Documents in 2010 and in Ps’ Reply and 28/8/12 FBP in 2011, I reiterate and find on balance the Environmental Breach Reason was the true reason for the C&E Detention, but Ps later migrated to the Cargo Inconsistency Reason (and the self-serving 委托書) to shift blame onto WC Leung / Keung Kee for the C&E Detention and to draw attention away from LB Tang / FCGC Co Ltd / YH Leung / P1 who were PRC citizens/companies carrying on customs-related business in Mainland China from breach of regulations that were relevant to their business in Mainland China. Mr Lam submitted this very factual finding set the scene for the “blackmail” case, but more of this below.

(j)  Release from C&E Detention

187.  The Hui 1^st/4^th PStmts explained (and on balance I accept) LB Tang told Hui that Guangxi C&E “…… 檢查嚴密咗, 所以 [6 Containers] 唔可以進行清關, 並且需要安排運返香港再作處理 ……”, but the Containers’ “…… 情況係不屬於做扣櫃 ……”, ie “…… 係批貨要被大陸扣留充公才算係扣櫃 ……”, which confiscation would give rise to P1’s liability to pay compensation at the rate of RMB80,000/Container pursuant to P1’s Undertaking. Hui explained “…… 現時只不過係退港, 所以不用被委托一方 [ie P1] 負責 ……” to pay compensation. The Hui 1^st PStmt claimed (and on balance I accept) Hui continued to liaise with LB Tang on when the Containers would arrive in Hong Kong.

188.  As mentioned in §164 above, P2 on P1’s instructions personally went to Guangxi Province, Mainland China to liaise with Guangxi C&E. Under cross-examination, P2 initially said he only saw 代理報關委托書 (with 委托報關協議書 endorsed thereon) “…… 係出到事之後 …… 咪差人告 [P2] 嗰時 ……” (ie after his arrest on 16 August 2007), but when it was pointed out to P2 that he was never prosecuted by the police, P2 said “…… 回櫃嗰時見到嘅 …… 即係 …… 啲 [Containers] 喺廣州回番嚟香港嗰時, [P2] 先攞呢份嘢嘅, [P1] 先畀呢份嘢 [P2] 嘅”, which meant he did not have such document when he arranged to ship the Containers from Hong Kong to Mainland China because “…… 全部喺 [P1] 嘅 ……”, “…… 因為 [P2 and P3] 係伙記, …… 睇唔到合同、睇唔到價 ……”, but “…… [P2] 去辦 [6 Containers] 返嚟嗰陣時已經有㗎喇……”, “…… [P1] 就畀呢啲文件 [P2], 叫 [P2] 去廣西搞番啲櫃落嚟 ……” In short, P2 changed to say 代理報關委托書 (with 委托報關協議書 endorsed thereon) was already available to him before his arrest on 16 August 2007.

189.  P2 claimed under cross-examination “…… [P2] 使咗RMB300,000檯底錢” to “…… 搵熟人幫 [P2] 去了解下, 同埋幫 [P2] 去清番啲 [Containers] 出嚟㗎嘛”, “…… [P2] 唔畀 RMB300,000嗰個 [Guangxi C&E], [Guangxi C&E] 就唔會 …… 放 [Containers] 返嚟落香港㗎嘛”. P2 said such “檯底錢” was payable by P1, but P1 told him to make advance payment and to seek reimbursement later, “…… 咁但係而家呢單事--咁樣做咗, [P1] 就完全冇錢畀 [P2] …… 梗係不值喇”.

190.  P2 did not explain why P1 asked him (who was stationed in Hong Kong) to personally go to Guangxi Province, Mainland China to liaise with Guangxi C&E for release of the Goods/Containers when, according to P2, he was not involved in processing customs declaration and/or clearance of the Goods/Containers with Guangxi C&E or involved in money matters (other than handling freight/transportation charges payable in Hong Kong to shipping companies and container truck hauliers):

(a)	according to P2, he was only responsible for P1’s Hong Kong operations, and his duties as regards shipment of the Goods/ Containers to Mainland China were limited to booking cargo space with Mark Shipping (shipping company nominated by P1), arranging for the Containers to be delivered by Keung Kee to Mark Shipping, paying freight charges on behalf of P1 to Mark Shipping, and giving the Cargo Manifest to P1;
(b)	P2 did not deal with custom agency services and/or customs declaration for the Goods/Containers at Fang Cheng Gang City (which I have found were handled by FCGC Co Ltd which P1 nominated as “報關方”);
(c)	P1 through its staff at Panyu (and there were 6-7 of them including LB Tang and YH Tang) and/or through FCGC Co Ltd in Fang Cheng Gang City handled formal customs declaration for import of the Goods/Containers into Mainland China, eg submitting the Cargo Manifest (which P2 had already given to P1), the Customs Declaration Form (which P1 prepared or caused FCGC Co Ltd to prepare), and a triplicate copy of代理報關委托書 (with 委托報關協議書 endorsed thereon) (which was in P1’s possession and which P2 did not sight until much later – see §188 above) to Guangxi C&E;
(d)	at the material time, P2 did not have sight of 代理報關委托書 (with 委托報關協議書 endorsed thereon) and the Cargo Declaration Form, which documents were handled by P1 and/or FCGC Co Ltd;
(e)	P2 gave evidence that generally he would not handle money matters, which matters were directly dealt with by P1.

191.  I have found that P1/P2 (and Hui through P1) learned of the C&E Detention (see §165 above). P2 claimed the C&E Detention was for the Environmental Breach Reason (which I have found to be the true reason for the C&E Detention) and/or the Cargo Inconsistency Reason in late June 2007 (see §164 above). In my view, it would have been logical on P2’s case for P1 (who dealt with customs documentation, declaration and clearance, and also money matters) to have sent its own personnel to deal with Guangxi C&E for release of the Containers, especially since P1 would ultimately have to bear the aforesaid “檯底錢” and warehouse charges for the Goods/Containers (see §189 above and §§202-204 below). Further, P2 did not have relevant information/knowledge to deal with the Environmental Breach Reason (or on P2’s case, the Cargo Inconsistency Reason) unless P1 gave him copies of 代理報關委托書 (with 委托報關協議書 endorsed thereon) (which P2 finally admitted P1 did), and the Customs Declaration Form (which P2 did not say P did). But as explained in §159 above, P2 should have copy of the Cargo Manifest.

192.  More importantly, bearing in mind it was P2’s contention that the Environmental Breach Reason and/or the Cargo Inconsistency Reason were due to WC Leung’s / Keung Kee’s fault in including undeclared cargo (ie medical equipment and photocopiers) among the Goods in the sealed/locked Containers such that the actual shipped Goods did not correspond with description in the Cargo Manifest also provided by WC Leung / Keung Kee (on which the B/L and the Customs Declaration Form were premised), one would have thought P1/P2 would have turned to WC Leung / Keung Kee in indignation to demand their explanation, to require them to pay or contribute to “檯底錢” for release of the Goods/ Containers, or even to accompany P1’s staff to visit Guangxi C&E to directly give explanation and to assist in negotiations for release of the Goods/Containers.

193.  Whilst I accept P2 did personally go to Guangxi Province, Mainland China to negotiate with Guangxi C&E and he did pay “檯底錢” for release of the Goods/Containers, the matters in §§190-192 above tellingly demonstrated LB Tang’s / P1’s / FCGC Co Ltd’s anxieties and concerns in §170 above that led them to call upon P2 to act as frontman to represent “報關方” for putting some distance between them and the C&E Detention, the reason therefor and “檯底錢” paid for release of the Goods/Containers. More importantly, the matters in §§190-192 above went a long way (a) to bolster the Bargain that required LB Tang / P1 to use their guanxi and influence to enable the Goods (ie E-Waste) to clear customs for import into Mainland China, so upon their failure to do so, they perceived it to be their obligation (rather than WC Leung’s / Hui’s / Keung Kee’s obligation) to negotiate, arrange and pay for release of the Goods/ Containers, and (b) to show P2 knew much more about the Bargain, the C&E Detention and reason therefor, and the arrangements for release and return of the Goods/Containers than he would have this court believe by shrouding his testimony with alleged ignorance due to the allegedly limited scope of his duties in merely dealing with transport and delivery matters in Hong Kong.

194.  I also note the P2 PStmt and/or P2 1^st/2^nd WStmt were silent on the aforesaid “檯底錢”, but P2 tried to brush away such silence by saying “…… 呢啲係 [P2] 自己做嘅, 唔關所有人嘅事, 所以 [P2] 冇講出嚟, …… 亦都對呢件事係 …… 冇咩嘢關係嘅 ……” P2 then went on to say “[P2] 唔講得㗎, …… 即係呢啲事就唔見得光, 所以唔講得嘅”. But when pressed on why then he chose to volunteer such information under cross-examination in open court, P2 irrelevantly said that after his arrest on 16 August 2007 “…… 即係 [P2] 完全冇嘢做吖嘛, [P2] 冇晒嘢做, [P2] 破晒產喇嘛, [P2] 家破人亡 ……”  P2 insisted “當時 [P1] 係知道 [P2] 畀呢筆錢, …… [6 Containers] 點解會喺海關扣留咗之後, 仲可以返番嚟香港, 咁 [P2] 就使咗呢 RMB300,000嗌人哋幫 [P2] ……” to secure release of the Containers for return to Hong Kong. In my view, P2’s silence in his statement evidence on his visit to liaise/negotiate with Guangxi C&E for release of the Goods/Containers on his payment of “檯底錢” was no different from the lack of written contract for the Bargain, the silence about the goods to be shipped in 代理報關委托書 (with 委托報關協議書 endorsed thereon), the silence about E-Waste in the formal shipping/customs documents, and the reticence on the part of Hui to disclose the Bargain in fullness until the Hui 6^th PStmt. They reflected a knowing recognition that the transaction involving import of E-Waste under the guise of scrap metal by praying in aid guanxi and influence might not be all that kosher, and further reflected efforts to dissemble after exposure by Guangxi C&E.

(k)  2^nd Agreement

195.  According to the P 1^st WStmt, in early August 2007, at a meeting among WC Leung, LB Tang (P1’s manager) and P2, WC Leung agreed with LB Tang on behalf of P1 that WC Leung would pay P1 agreed costs and disbursements (for fines and shipment charges etc) at RMB50,000/Container totalling RMB300,000 for release of the Goods/ Containers from Guangxi C&E and for their shipment back to Hong Kong for his collection upon paying RMB50,000/Container (ie the 2^nd Agreement).

196.  Whilst Ps’ pleadings also pleaded the 2^nd Agreement, there was sparsity in Ps’ pleadings and P2’s evidence as to how such meeting came about, where this meeting took place, what was the rationale in asking for payment of RMB50,000/Container, and when/how/who paid such “costs and disbursements” that required reimbursement of RMB50,000/Container from WC Leung.

197.  Bearing in mind it was P2’s contention that the Environmental Breach Reason and/or the Cargo Inconsistency Reason were due to WC Leung’s / Keung Kee’s fault (see §182(b) above), one would have thought that on P2’s and P3’s case there would have been indignant demand for Keung Kee to bear all wasted fines, costs and disbursements, eg (a) wasted freight charges of HK$50,000 that P2 paid to Mark Shipping for shipping the Goods/Containers from Hong Kong to Mainland China (see §152 above), (b) “檯底錢” of RMB300,000 paid by P2 (to be reimbursed by P1) for procuring release of the Goods/ Containers from the C&E Detention (see §189 above), (c) warehouse charges for the Goods/Containers incurred during C&E Detention in the sum of RMB143,400 (see §§202-204 below), (d) freight charges payable for shipping the Goods/Containers back to Hong Kong (see §213 below).

198.  I note that P2’s answer (1) in the P2 PStmt claimed “…… 於是由 [P2] 老細 [YH Leung] 通知貨主既 [WC Leung], 表示唔知要扣留幾耐, 每日都要比倉租 [Guangxi C&E], 而貨主 [WC Leung] 就向老細表示會乘擔所有扣貨費用 ……” without mention of the 2^nd Agreement (see §200 below). This was not reiterated in the P2 1^st/2^nd WStmts or in P2’s oral testimony, and on balance I reject the same given my finding that WC Leung / Hui / Keung Kee knew that under the Bargain costs and expenses arising from the C&E Detention due to the Environmental Breach Reason was not their responsibility but that of LB Tang / P1 who failed to cause customs clearance of the Goods/Containers for import into Mainland China (see §147, §168 and §186 above and §201 below).

199.  In my view, P2 did not offer plausible or convincing explanation for (a) proceeding to arrange release and shipment of the Containers back to Hong Kong and making significant payments for such purpose on nothing more than alleged promise to pay in due course by WC Leung / Keung Kee who, on P2’s and P3’s case, had been shown to be misleading and untrustworthy in relation to, say, the Goods, the Cargo Manifest and Keung Kee’s Assurance, and (b) requiring payment of only RMB300,000 from WC Leung / Keung Kee when the costs and disbursements incurred and to be incurred by P1/P2 for release/return of the Containers far exceeded such sum (see §197(b)-(d) above).

200.  Further, the P2 PStmt was silent on the meeting in early August 2007 at which the 2^nd Agreement was reached. Rather, the P2 PStmt stated that “…… 大約到同年8月6日收到老細嘅信息表示可以放行, 並向貨主 [WC Leung] 商議, 而 [P2] 最後得知貨主 [WC Leung] 已俾咗大陸碼頭費人民幣50000元 [P2] 老細 [YH Leung], 但未計算扣留時倉租。[P2] 亦照 [P2] 老細意思, 當 [Containers] 返回本港時再計數 ……” This suggested P2 did not participate in any meeting with WC Leung and LB Tang in which the 2^nd Agreement was negotiated and concluded. Indeed, under cross-examination, P2 initially disagreed WC Leung / Hui agreed to pay RMB300,000 because “…… [P2] 唔知 [P1] 同 [WC Leung / Hui] 點講 ……” P2 maintained “[P2] 唔清楚 …… 因為 [P2] 冇參與 …… [P2] 唔知道佢哋喺廣州講乜嘢 ……”, and insisted he did not know the shipper/owner of the Goods had to make further payment for returning the Goods/Containers to Hong Kong. Upon further cross-examination, P2 still said he did not take part in discussions about payments to be made, “…… 初初 [P1 and WC Leung] 傾, [P2] 唔知 ……”, and LB Tang did not tell him the agreed amount to be paid was RMB50,000/Container. Still later, P2 accepted under cross-examination “……. [P2] 尾後送櫃之前知, …… [LB Tang] 畀電話 [P2] 嗰時, [P2] 就知道「你交櫃幾多, 我哋傾好價錢喇」咁樣 ……”

201.  By reason of the above analysis, P2’s significant shifts in evidence, and his poor overall credibility, I reject P2’s pleas and evidence as to the 2^nd Agreement, and find on balance there was no such agreement. I note it was LB Tang’s / P1’s obligation under the Bargain to procure (through FCGC Co Ltd) customs clearance of the Goods in the Containers, which they knew was E-Waste (despite their description as scrap metal in the formal shipping/customs documents), through their guanxi and influence with Guangxi C&E, and I find they realised that, upon their failure to satisfy such obligation, they would have to bear the costs and disbursements consequent thereof, including those in §197(b)-(d) above, for procuring release/return of the Goods/Containers. In my view, this quite sensibly explained why LB Tang / P1 did not ask for any payment/deposit from Hui / WC Leung / Keung Kee for release/ return of the Goods/Containers to Hong Kong save for contribution to the port fees of Fang Cheng Gang City in the sum of RMB40,000 (Hui 6^th PStmt – see §205 below) or RMB50,000 (P2 PStmt – see §200 above). Indeed, the P2 PStmt echoed this by saying WC Leung only paid the aforesaid port charges, and everything else would be sorted out after the Goods/Containers were returned to Hong Kong (see §200 above).

(l) Return of Containers to Hong Kong

202.  The P2 1^st WStmt stated that pursuant to the 2^nd Agreement, warehouse charges for the C&E Detention in the sum of RMB143,400 were settled for release/return of the Containers. The P2 1^st WStmt stated P1 paid such warehouse charges, but P2 said under cross-examination he personally paid about RMB145,000 for such warehouse charges. P2 claimed “…… [P2] 有單喺度 ……”, and referred to 繳款通知書 dated 13 August 2007 that was issued by 欽州邊港倉儲有限公司 (ie the warehouse that stored the Goods/Containers as required by Guangxi C&E during C&E Detention) and addressed to FCGC Co Ltd as follows:

“貴公司6月6日在欽州港碼頭邊港倉儲有6個貨櫃到:

貨櫃號 [container numbers of the 1^st to 6^th Containers]

6月6日   – 6月12日 7天免堆存費

6月13日 – 6月22日 10天 x 200元/天 x 6櫃 12,000元

6月23日 – 7月5日 13天 x 300元/天 x 6櫃 23,4000元

7月6日   – 8月10日 36天 x 500元/天 x 6櫃 108,000元

                                合計: 143,400元 (拾肆萬叄千肆百元整)”

P2 agreed 繳款通知書 was addressed to FCGC Co Ltd, but claimed FCGC Co Ltd asked P1 to make payment, which in my view was consistent with my finding that P1 caused FCGC Co Ltd to be “報關方” for the Goods/Containers. P2 claimed he first saw 繳款通知書 a few days before his arrest on 16 August 2007 when he was in Guangxi Province, Mainland China to “…… 攞 [6 Containers] ……”, “…… 辦 [6 Containers] 返嚟 ……”, and P1 “…… 通知 [P2] 交呢啲錢㗎嘛 ……”, so “…… [P2] 係跟呢條數去找 ……”

203.  A number of matters are of note:

(a)	Ps (including P2) had not explained why P2 was asked to deal with these matters in Fang Cheng Gang City when P1 (and not P2) had the relevant customs agency obligation and information (see §§190-193 above).
(b)	Even if P1 wished to delegate to an agent to deal with such matter, there was no sensible reason why P1 did not authorise its own staff/ personnel or authorise FCGC Co Ltd being “報關方” with presence in Fang Cheng Gang City (especially as 繳款通知書 was addressed to such company) to deal with the matter.
(c)	P2 did not explain why, on his case, P1 required him to pay out of his own pocket the warehouse charges, and did not demand WC Leung / Keung Kee, who were shown to be the untrustworthy defaulting party (as explained in §199 above), pay the warehouse charges for release/return of the Goods/Containers for their (and not P1’s) sake. But this would make sense under the Bargain because (i) it was LB Tang’s / P1’s default of their obligation under the Bargain to use their guanxi and influence with Guangxi C&E to cause the Goods/Containers clear customs for import into Mainland China, so they were to bear all wasted expenses, costs and disbursements for release/return of the Goods/Containers to Hong Kong, otherwise they might have to pay compensation under P1’s Undertaking should the Goods be confiscated (see §136, §138 and §187 above), and (ii) I have found P2 actually knew much more about the Bargain, the C&E Detention and reason therefor, and the arrangements for return of the Goods/Containers to WC Leung / Hui / Keung Kee than he let on in his testimony (see §193(b) above).

204.  Neverthless, I accept the warehouse charges had been settled by P2 on P1’s instructions, which for reasons set out in §201 and §203(c) above P1 perceived it to be its responsibility having failed to discharge its obligation under the Bargain, but not pursuant to the 2^nd Agreement (which I have rejected).

205.  I also prefer Hui’s account in the Hui 1^st/6^th PStmts that LB Tang requested him to contribute RMB40,000 for Fang Cheng Gang City port fees to facilitate return of the Goods/Containers to Hong Kong, and although such charges were LB Tang’s / P1’s responsibility, Hui readily arranged payment to facilitate prompt return of the Goods/Containers. In the Hui 1^st PStmt, Hui said “…… [LB Tang] 一直話未有船期, [Hui] 亦有打電話去船務公司, 船務亦話 [Containers] 未到香港 ……”  According to the Hui 6^th WStmt, at/about 5:20pm on 4 July 2007 LB Tang telephoned to notify Hui the Containers:

“…… 需要向中國廣西防城港碼頭方面支付費用先至可以離開大陸返香港, [Hui] 當時有向 [LB Tang] 提過有關大陸所有費用當初係口頭講好由佢公司負責嘅, 但係 [LB Tang] 話佢公司現時冇咁多現錢, 因為 [Guangxi C&E] 方面需要收取4萬人民幣貨櫃碼頭費用, 所以 [Hui] 於中國深圳工商銀行用自動櫃員機將4萬蚊人民幣俾 [LB Tang], 並由 [LB Tang] 指示下存款入佢公司合夥人 [YH Leung] 嘅大陸銀行戶口。但現時因自動提款機所列印嘅轉賬紀錄太模糊, 所以 [Hui] 無法提供 [YH Leung] 戶口資料。當時 [Hui] 係同 [Hui’s] 朋友 [Yau] 一齊返大陸進行戶口對戶口轉賬, 基於 [Yau] 有大陸銀行戶口, 所以由 [Yau] 轉賬4萬元俾 [YH Leung], 而現時 [Hui] 亦還番四萬元比 [Yau]。但現時至今 [LB Tang] 無還番4萬元人民幣俾[Hui], 而 [Hui] 亦現時唔再追究比咗 [LB Tang] 果4萬蚊人民幣, 因 [Hui] 當時為盡快由大陸運返 [6 Containers] 返香港, 以免貨櫃遺留喺大陸令支出更大”.

206.  Hui’s above account was consistent with my conclusion that for reasons explained in §201, §203(c) and §204 above WC Leung / Hui / Keung Kee did not have to pay for release/return of the Goods/Containers to Hong Kong upon LB Tang’s / P1’s failure to satisfy their part of the Bargain to cause the Goods/Containers to clear customs for import into Mainland China. It was also no wonder that LB Tang / P1 felt cash-strapped because not only did they fail to earn the anticipated profits from the import of the Goods/Containers into Mainland China, they had incurred and/or had to commit to large cash outlay, eg to pay for return freight charges of HK$40,000 and to reimburse P2 for warehouse charges of RMB143,400 and “檯底錢” of RMB300,000.

207.  P2 then arranged for Mark Shipping to ship the Containers back to Hong Kong. According to P2’s answer (1) in the P2 PStmt, on 13 August 2007 P2 paid Mark Shipping’s freight charges of HK$40,000 (see also P2 1^st WStmt), and then on 14 August 2007 “…… 就去 …… 找麥威斯環球物流公司 [“MWS Co”] 嘅陳家銳先生 [“Chan”] 委托 [Chan] 將 [6 Containers] 運去 [TM Depot] ……” However, P2’s answers (4) and (6) of the P2 PStmt clarified as follows:

“[P2] 係致電比 [Chan] 幫 [P2] 既, 係由 [Chan] 幫 [P2] 墊資40000元比 [Mark Shipping], 然後將批貨運往 [Chan] 嘅貨倉, [P2] 同 [Chan] 都好熟, [P2] 一直有生意來往, 我哋做開係1000蚊一轉, 即係話由船公司運往貨倉一轉1000蚊, 而再由貨倉到貨櫃場亦要1000蚊, 期間倉有倉租, 通常每隻櫃100蚊。

一直以來都係 [P2] 先交費用比船務公司, 之後 [P2] 搵人運走貨櫃。但 今次 [P2] 冇現金, 所以由 [Chan] 幫 [P2] 墊支, 最終 [P2] 都要俾返40,000蚊俾 [Chan]。咁 [P2] 就係唔想煩就講 [P2] 俾咗。其實 [P2] 現在係冇俾返錢 [Chan] 既, 要老細批錢俾我先可交到, 呢樣野 [Chan] 係知道嘅。”

The above (a) showed it was not P2 but a container truck haulier company that upon P2’s request made advance payment on behalf of P1, and (b) corroborated Hui’s account that P1 (not having put P2 in funds) was cash-strapped. The P2 1^st WStmt stated that on/about 14 August 2007 the Goods/Containers were returned to Hong Kong, and P2’s answer (1) in the P2 PStmt stated “…… 在8月14日晚上 [P2] 就收到 [MWS Co] 既 [Chan] 表示 [6 Containers] 已安全入晒倉 ……”

208.  Ps discovered/disclosed Mark Shipping’s Invoice (as defined in footnote 3(b)(vi) above) dated 14 August 2007 that was issued to Guangzhou Lingang Trading Co Ltd of 番禺區市橋額工業路27號9棟3號 (which P2 claimed to be P1’s related company) for the attention of YH Leung, which Invoice set out Mark Shipping’s sea freight and other charges in the total sum of HK$54,925 (and not HK$40,000) for shipping the 6 Containers from Qinzhou (10 August 2007) to Hong Kong (13 August 2007). But Ps produced another document showing on its face that Mark Shipping’s freight charges were HK$40,000. It was an undated (faxed on 13 August 2007) handwritten document whereby P1 informed Mark Shipping the following: (a) “收櫃人” was “鑫潤物流公司” with P2 as contact person, (b) the container numbers of the 6 Containers, and (c) “請貴公司收運費後才放櫃, 金額40000-元” with particulars of Mark Shipping’s bank account (“13/8/07 Fax”). It appeared from the 13/8/07 Fax that P1 and Mark Shipping reached understanding to reduce freight charges to HK$40,000.

209.  But under cross-examination, P2 (a) claimed he first saw the Invoice only when he gave evidence at the Preliminary Trial (which contradicted the RASoC and the 28/8/12 FBP by which Ps pleaded that the Invoice was 1 of the Documents that were shown/presented by P2 to the police officers just before his arrest), and (b) initially claimed he had seen the 13/8/07 Fax before his arrest on 16 August 2007 because “…… [P2] 交錢㗎嘛, 呢張嘢係, 通知”, but later clarified he saw the 13/8/07 Fax for the first time only when he gave evidence at the Preliminary Trial. On balance, I find P2’s account about the Invoice and 13/8/07 Fax unreliable, and I am unable to place weight on his evidence in relation to the same.

210.  Ps also discovered/disclosed Mark Shipping’s undated 提貨通知 which gave the following information: (a) the customer was 鑫潤物流公司 with P2 as contact person, (b) the involved containers were the 6 Containers, (c) the relevant vessel “Yue Yang Hai” was to load cargo at Qinzhou and to arrive Hong Kong on 13 August 2007, (d) the container terminal address was “香港新界屯門龍門路201號 (閘口)”, and (e) there would be free warehouse storage up to 14 August 2007.

211.  P2 testified he had seen 提貨通知 about 1-2 days before his arrest on 16 August 2007. As P2 did not have a fax machine at home, Mark Shipping faxed 提貨通知 to P1 who then gave it to P2 so he could pay Mark Shipping’s freight charges before taking delivery of the Goods/ Containers and “…… 拖啲櫃去 …… [TM Depot]” so as to “…… 畀 [P2] 入番個倉㗎嘛 ……” (see §207 above). P2 did not say how P1 (PRC company) gave him 提貨通知 when P2 did not have a fax machine to receive 提貨通知from Mark Shipping (Hong Kong company). I find it more likely than not that it was given to P2 by LB Tang when he came to Hong Kong in the evening of 14 August 2007 for the meeting at the Restaurant on the following day (see §224 below).

212.  In 提貨通知, P2 was named as contact person of 鑫潤物流公司. P2 said under cross-exmaination he had no idea about鑫潤物流公司and P1 had “…… 好多公司嘅 ……”, but later said in re-examination that “……[P2] 以前同 [鑫潤物流公司] 做開嘅, 但尾後轉咗廣州吖嘛, 咁所以 [Mark Shipping] 繼續係用 [P2] 個名囉, [Mark Shipping] 知道係 [P2] 㗎嘛, 公司嗰度係冇乜意思嘅 ……”, or to put in another way, Mark Shipping “…… 以前同 [鑫潤物流公司] 做開, 咁仍然保留 [P2] 個名, 仍然保留個公司名喺度, 只不過 [Mark Shipping] 同 [P2] 交涉就係同 [P2] 個人去交涉, 所以 [P2] 話「公司個名冇乜意思」就係咁解 ……”

213.  Whilst I accept P1 (through P2 who in turn through Chan of MWS Co – see §207 above) arranged to pay Mark Shipping’s reduced freight charges of HK$40,000, I prefer P2’s testimony under cross-examination that he had no idea about “鑫潤物流公司”, and reject P2’s gloss under re-examination that he previously worked for “鑫潤物流公司” (which company had business dealings with Mark Shipping) such that Mark Shipping on its own initiative continued to use such company’s name albeit dealing with him personally as the contact person for collecting the Goods/ Containers. In my view, the fallacy of such contention was exposed by P1’s 13/8/07 Fax to Mark Shipping (document not sighted by P2) whereby P1 expressly nominated “鑫潤物流公司” as “收櫃人” with P2 as contact person, and such fallacious contention was nothing more a poor but misguided attempt by P2 to bolster his case.

(m)  P1’s alleged lien over the Containers

214.  The P2 1^st WStmt claimed P1 had a right of lien over the Goods/Containers for unpaid agreed costs and disbursements in the total sum of RMB300,000 pursuant to the 2^nd Agreement. I note at the outset that such alleged unpaid agreed costs and disbursements were not exclusively freight charges, but included warehouse charges, “檯底錢” and other non-freight charges/expenses. Mr Sio did not address whether carrier’s lien (if any) could extend to non-freight charges, costs and disbursements. But in light of my conclusions on this issue, there was no need for me to delve into this interesting issue.

215.  Whether possessory right/title or right of lien (if any) relevant  Mr Lam and Mr Sio both submitted it mattered not whether P1 had any possessory right/title or right of lien to the Goods/Containers for it was P2’s and P3’s belief as inferred from the circumstances of the case that mattered.

216.  Archbold Hong Kong 2020 states as follows:[74]

“Any demand with menaces is unwarranted unless the defendant is able to bring himself within both paragraphs (a) and (b) of section 23(1) [of TO]. Thus the essential nature of the offence is that the defendant demands with menaces when he believes he is not entitled to the thing demanded or when he believes the use of menaces is improper notwithstanding his genuine claim. It appears to follow from this that a claim of right cannot be a defence as such to a charge of blackmail. The fact that dishonesty is not an ingredient of the offence adds weight to this contention ……

Each case will turn on its own facts. A deliberate refusal by a debtor to pay a debt may cause a creditor to believe he could threaten to tell the debtor’s employer about the debt. A threat to do some harm disproportionate to the sum or property legally claimed would be strong evidence of the absence of any belief in the propriety of the threat. That it is the defendant’s own belief that matters, was emphasized in R v Harvey, 72 Cr App R 139, CA. Bingham J, giving the court’s judgment, said: “It matters not what the reasonable man, or any other man than the defendant, would believe save in so far as that may throw light on what the defendant in fact believed” (at 141). This applies to both paras (a) and (b) ……” (my emphasis)

217.  In short, what is relevant is the subjective state of mind of the person suspected of blackmail as inferred from the relevant circumstances of the case and not whether as a matter of objective fact he has possessory right/title or right of lien, and that is why each case will turn on its own facts. But that said, if it is proved there is no possessory right/title or right of lien, and if it is further proved or inferred from the relevant circumstances that the person suspected of backmail knew this, then such findings/inferences will go a long way to show the demand with menaces (if any) is unwarranted.

218.  I find on balance that P2 did not have any subjective belief that P1 had possessory right/title and/or any right of lien over the Goods/ Containers. I have found above P2 knew more about the true factual basis of the Bargain, the C&E Detention and reason therefor, and the arrangements for return of the Goods/Containers that he would let this court believe by his testimony (see §193(b) and §203(c) above). In my view, P2 well knew from P1 and/or from FCGC Co Ltd (nominated by P1 as “報關方” for the Goods/Containers at Fang Cheng Gang City where P2 visited to liaise with Guangxi C&E for release of the Goods/ Containers) that it was for P1 to resolve the C&E Detention (and hence his advance payments of the warehouse charges and “檯底錢”, and his arrangement for MWS Co to pay the return freight charges for P1) without the 2^nd Agreement and without looking towards WC Leung / Keung Kee for payment/reimbursement. Since P3 was P2’s subordinate, P3 would hardly have any subjective belief of possessory right/title or right of lien when his superior P2 did not.

219.  Whether P1 had possessory right/title or right of lien  Mr Lam submitted that the evidence suggested P1 did not have any possessory right/ title or right of lien over the Containers/Goods both as a matter of fact and of law.

220.  P2’s case was premised on the 2^nd Agreement for return of the Goods/Containers from Mainland China to Hong Kong whereby WC Leung / Keung Kee was to pay RMB50,000/Container (later reduced to RMB30,000/Container – see §§224-225 below) upon collection of the Goods/Containers (see §195 above), and P2 claimed the 2^nd Agreement came about because of WC Leung’s / Keung Kee’s breach of Keung Kee’s Assurance and P1’s Undertaking[75] in 代理報關委托書 with 委托報關協議書 endorsed thereon (which P2 regarded as a contractual document) in providing the Cargo Manifest (describing the Goods as scrap metal) that failed to correspond to the actual Goods shipped in the Containers (being scrap metal, medical equipment and photocopiers), which led to the C&E Detention by Guangxi C&E for the Cargo Inconsistency Reason (main reason) with the Environmental Breach Reach (subsidiary reason) tagged on by Guangxi C&E. But I have rejected the 2^nd Agreement and P2’s aforesaid case, and have found that WC Leung / Hui / Keung Kee had no obligation to pay any charges, costs and disbursements arising from the C&E Detention caused by LB Tang’s / P1’s failure to satisfy their obligation under the Bargain to cause the Goods/Containers to clear customs for import into Mainland China through their guanxi and influence with Guangxi C&E. Consequently, P2’s and P3’s factual premise for alleging P1’s possessory right/title and/or any right of lien over the Goods/Containers fell away. In my view, there was no or no credible factual basis for P1 to assert any viable claim of possessory right/title or right of lien over the Goods/Containers.

221.  In any event, I agree with Mr Lam that P2 and P3 also failed to establish any right of lien by P1 over the Goods/Containers as a matter of law. D conceded P1 was a private and not a common carrier. The factual basis as I have found above might even suggest that P1 was a forwarding agent (rather than a carrier) who essentially provided custom agency service and who arranged for other contractors to perform different legs of the transit for the Goods/Container, eg engaged container truck drivers/companies to haul the Containers between container depot and the container terminal (see, eg, §131 and §207 above) and booked cargo space with the shipping company Mark Shipping to ship the Goods/ Containers on sea voyages between Hong Kong and Mainland China (see, eg, §152 above). As explained in §85 above, even if a forwarding agent takes on additional function of carrying goods, “it will be highly exceptional for him to have the status of a common carrier”.

222.  However, in light of D’s concession, I am prepared to proceed on the basis that P1 was a carrier. In my view, there was simply no evidence before the court to show P1 was a common carrier who held itself out to carry goods for every person wishing to use its services, and who was bound to accept goods offered to it for carriage. For shipment of the Goods/Containers to Mainland China, P2 did not know how P1 secured the business order from Keung Kee (see §139 above), and I have found such transaction came about as a result of the Bargain pursuant to negotiation/agreement between the relevant parties. For return shipment of the Goods/Containers to Hong Kong, P2 claimed it was pursuant to the 2^nd Agreement that was negotiated between the relevant parties (which agreement I have rejected). Thus, P1 was at best a private carrier who undertook carriage without holding itself out as exercising public employment to serve all and sundry. As there was no evidence of any express agreement for creating a contractual lien over the Goods/ Containers, no general/particular lien could arise in favour of any of Ps over the Goods/Containers.

223.  Thus, I agree with Mr Lam that P2 and P3 failed to establish in fact and in law any possessory right/title or right of lien over the Goods/Containers.

(n)  Before, during and after meeting at Restaurant

224.  P2’s case  The P2 PStmt recorded DPC47923’s question (1) (see footnote 72 above) and P2’s answer (1) that described the meeting at the Restaurant:

“…… 在8月14日晚上 [P2] 就收到 [MWS Co] 既 [Chan] 表示6個貨櫃已安全入晒倉, 於是 [P2] 就在8月14日當晚打電話給貨主 [WC Leung] 要求貨主到本港計算所有費用, 但是 [WC Leung] 表示未能親身到港, 要求 [P2] 同一名 [Hui] 聯絡, 並給予 [P2] [Hui] 手機no 9xxxxxx8 叫 [P2] 搵 [Hui] 傾運費問題及交貨問題。[P2] 喺14號當晚 [P1] 嘅經理 [LB Tang] 亦來到本港 ([LB Tang] 本身係大陸人) 打算處理此案件。直到昨日即2007年8月15日大約9點鐘 (早上) 由經理 [LB Tang] 打電話俾 [Hui], 經商議後表示在上水彩圍 [Rastaurant] 見面。時間就係上午10點正。跟住 [P2] 連同 [LB Tang] 及一名中間人 (即係介紹貨主 [WC Leung] 俾 [P1] 嘅人) 叫 “成哥” [“Shing Guo”] 聯絡電話6xxxxxx2, 為另外一間公司負責人, 佢並無講及此事只係介紹人身份。)

到達 [Restaurant]，跟住 [P2] 就喺 [Restaurant] 同 [Hui] 講, 所有 [Containers] 已經到港, 之後 [Hui] 就叫 [P2] 比個價錢 [Hui]。據 [P2] 理解係6 [Containers] 在大陸扣留時嘅費用。[P2] 就向 [Hui] 表示，確實費用 [P2] 唔可以清楚講喥, 要有單據才可以講, 而 [Hui] 就繼續叫 [P2] 俾個大約數，而我就照講大約50,000元一個櫃左右。之後 [Hui] 就要話要同貨主商糧, 跟住 [P2] 就留低 [P2] 嘅聯絡電然後我哋三個就離開。直至到晚上7點左右, [Hui] 就致電俾 [P2] 表示而家同 [P2] 經理在上水商議此事, 最終在晚上10點左右 [Hui]打比 [P2], 表示只可比三萬蚊一隻櫃, 最終達成協議就30000元一隻貨櫃。……”

225.  Subsequently, the P2 1^st WStmt stated that on/about 14 August 2007, P2 called WC Leung’s mobile telephone to tell him the Containers had been returned to Hong Kong and would be ready for his collection on/about 16 August 2007. WC Leung said he was busy in Mainland China and could not personally attend to such matters in Hong Kong, so he gave P2 the mobile telephone number of Hui who would collect the Containers and pay RMB300,000 on his behalf. P2 telephoned Hui to make appointment for meeting up at the Restaurant the following morning. At/about 10am on 15 August 2007, P1’s manager LB Tang, Shing Guo being the middleman who introduced the “owner of goods” WC Leung to P1, Hui and P2 met at the Restaurant. After discussing arrangements for collecting the Containers upon payment of RMB50,000/Container, Hui said he would contact P2 later in the evening by mobile telephone after he reported to the “owner of the goods” WC Leung. They then left. Then, at/about 10pm on 15 August 2007, Hui telephoned to tell P2 that he did not have so much cash, and that WC Leung had agreed with P2’s boss YH Leung RMB30,000/Container would be paid upon collection of the Containers and RMB20,000/ Container would be settled later in Guangzhou. Hui then asked P2 to deliver the Containers to the TSW Depot for his collection at 11:00am the following morning (16 August 2007).

226.  P2’s answer (1) in the P2 PStmt stated he learned WC Leung had paid the port charges of Fang Cheng Gang City, “但未計算扣留時倉租。[P2] 亦照 [P2] 老細意思，當貨櫃返回本港時再計數 …… 於是 [P2] 就在8月14日當晚打電話給貨主 [WC Leung] 要求貨主到本港計算所有費用 ……”, and eventually a meeting on the following day with Hui was arranged because WC Leung could not come to Hong Kong. This plainly suggested there was no 2^nd Agreement. Whilst it might be argued that on the basis of such factual assertions and in the absence of any 2^nd Agreement (ie YH Leung / P1 had not yet worked out the costs and disbursements (including warehouse charges) arising from the C&E Detention) there might be some reason for the meeting on 15 August 2007, this was no longer P2’s case for he asserted the 2^nd Agreement in his pleadings and statement evidence, and even in his oral testimony under cross-examination, he claimed to have learned of such agreement between WC Leung / Keung Kee and P1 from LB Tang (see §200 above). In my view, on the premise of P2’s and P3’s case based on the 2^nd Agreement, ie it had been agreed in early August 2007 that WC Leung / Keung Kee would pay RMB50,000/Container totalling RMB300,000 upon collection of the Goods/Containers (see §195 above), it seemed quite unnecessary to schedule another meeting with Hui at the Restaurant on 15 August 2007, especially when even after arrival of the Goods/ Containers in Hong Kong WC Leung further assured P2 over the telephone that Hui would arrange payment of the agreed sum on his behalf (see §225 above). In those circumstances, all that would have been required was simply for P2 to telephone Hui to fix the time/place for Hui to collect the Goods/Containers, and to remind Hui to bring money for such purpose. I note that, on P2’s case, there was no suggestion that WC Leung / Hui at that stage wished to resile from or re-negotiate the terms of the 2^nd Agreement.

227.  Interestingly, P2’s answer (1) in the P2 PStmt made shortly after P2’s arrest (quite unlike the P2 1^st WStmt) did not say P2 was the one who telephoned Hui. Rather, the P2 PStmt claimed LB Tang (PRC citizen) came to Hong Kong in the evening of 14 August 2007 as he “打算處理此案件”, and it was LB Tang who telephoned Hui in the morning of 15 August 2007 for a meeting at the Restaurant (which was consistent with Hui’s stance in §235 below). P2 did not explain such discrepancy between the P2 1^st WStmt and the P2 PStmt.

228.  In my view, there was no plausible reason on P2’s case for LB Tang / P2 to schedule the meeting at the Restaurant on 15 August 2007 and, more importantly, for LB Tang to come to Hong Kong to “處理此案件” and for Shing Guo to attend such meeting when, on P2’s case, all that was left to be done was to receive RMB50,000/Container upon Hui’s collection of the Containers, which payment WC Leung had already agreed to by the 2^nd Agreement and had reconfirmed by his telephone conversation with P2 after arrival of the Goods/Containers in Hong Kong. This further undermined the 2^nd Agreement.

229.  Rather, I find on balance it was necessary for LB Tang to come to Hong Kong to “處理此案件” and to propose the meeting at the Restaurant before Hui’s collection of the Goods/Containers on 16 August 2007 because (a) there was no 2^nd Agreement at all, and (b) even though LB Tang / P1 / FCGC Co Ltd failed to cause the Goods in the Containers to clear customs, LB Tang plainly had second thoughts about the Bargain due to financial burden arising from the significant costs and expenses incurred for procuring release of the Goods/Containers and their return to Hong Kong as evident from what P2 said at the meeting at the Restaurant on 15 August 2007 (ie P2 said “上落大陸就洗咗佢好多錢 ……” - see §236 below) and what P3 said to DPC58096 at TSW Depot on 16 August 2007 (ie “…… 隻櫃喺大陸又上又落唔洗錢呀 ……” - see §289 below). In my view, LB Tang intended to look towards WC Leung / Hui / Keung Kee for some monetary contribution, and the arrival of the Goods/ Containers in Hong Kong together with Hui’s / Keung Kee’s anxiety to recover them as soon as possible for return to their customers presented an opportune moment to leverage a demand for Hui / Keung Kee to make such contribution. In my view, it was with such purpose in mind that LB Tang came to Hong Kong to “處理此案件”. This explained why LB Tang initiated (by telephoning Hui – see answer (1) in P2 PStmt and also the Hui 1^st PStmt) and participated in the meeting at the Restaurant, and also explained why P2 (who was responsible for P1’s operations in Hong Kong, who actually paid “檯底錢” and the warehouse charges, and who was to collect any contribution that might be made by Hui / Keung Kee upon taking delivery of the Goods/Containers) and Shing Guo (whose connection with both WC Leung / Keung Kee and LB Tang / P1 might lend some “persuasion”) were also present.

230.  The P2 PStmt and the P2 1^st WStmt stated that LB Tang, P2 and Shing Guo left the meeting together. But if that were the case, P2 (who claimed not to deal with money matters that were essentially handled by P1’s personnel) did not explain why at the meeting it was he (and not LB Tang) who discussed with Hui about payments to be made by Hui / Keung Kee. I find on balance P2 personally discussed payment matters with Hui at the meeting because LB Tang left first (which was consistent with Hui’s stance – see §236 below), leaving P2 and Shing Guo (who were not parties directly involved in reaching the Bargain with WC Leung / Hui / Keung Kee) behind. Indeed, it was P2 who dealt with Hui whilst Shing Guo, according to P2 (see §224 above) and Hui (see §237(b) below), remained silent. Such finding undermined the veracity of P2’s case, and meant any demand made to Hui at the meeting for monetary contribution was made by P2.

231.  Even more astounding was P2’s claim under cross-examination that “…… [P2] 嗰時 ……  就唔識 [Hui] 嘅 …… 未見過 [Hui] 嘅 …… 喺差館 [TSW Police Station] 先見到嘅大家 ……” Even when P2’s attention was drawn to the contents of P2 1^st WStmt in §225 above, P2 insisted he did not meet Hui at the Restaurant. P2 said “…… [P2] 就去到 [Restaurant] 就好多人喺度嘅, 就 [P2] 話送錢畀個老細 [presumably LB Tang] 嘅, 個老細話「唔好講錢」, [P2] 送畀佢嘅, …… 如果係呢一段嘅話, 咁 [P2] 就同老細講話「嗰度$300,000, 嗰度應該係計番六隻櫃喎, [P2] 畀咗$300,000 …… 」……” P2 claimed this conversation was between him and his boss (presumably LB Tang), and insisted he did not have meeting/ conversation with Hui, but P2 did not explain what he meant by proposing to gift LB Tang with money.

232.  P2’s evidence in §231 above contradicted both the P2 PStmt and the P2 1^st WStmt. When pressed under cross-exmaination as to why the P2 1^st WStmt stated as set out in §225 above, P2 initially blamed the police (ie “就 [DPC47923] 同 [P2] 寫嘅, [DPC47923] 話「寫完, 你睇過, okay, 你就簽名喇」咁 ……”), but when P2 realised the P2 1^st WStmt was prepared by CFC on his behalf, he said “…… [P2] 唔知 …… [P2] 唔識, [P2] 唔知道 ……”, “…… 咁長時間, [P2] 或者記唔到, 唔出奇 ……”

233.  Under cross-examination, P2 also disagreed he had telephone conversation with Hui after the meeting at the Restaurant. He claimed he was not authorised to deal with money matters, and it was YH Leung who telephoned to tell P2 he had agreed with WC Leung that RMB30,000/Container would be paid upon delivery and the balance of RMB20,000/Container would be settled later in Guangzhou. P2 said “[YH Leung] 講畀 [P2] 聽嗰時, [YH Leung] 嗌 [P2] 交櫃, [YH Leung] 又冇講其他嘢畀[P2] 嘅 ……”, and insisted he did not speak with Hui over the telephone as “…… 畀錢嗰啲, [P2] 冇權去傾嘅, 佢哋傾嘅, 唔關 [P2] 事嘅 ….”, “…… [P2] 知道 …… [P2] 一定要交番啲櫃畀 [WC Leung] …… [P2] 知道 [WC Leung] 要畀錢 [P1], 畀番錢 [P1] …… [P2] 唔知銀碼 ……” But when queried why he adopted such part of the P2 1^st WStmt in §225 above, P2 claimed “[P2] 唔知律師點講, [P2] 唔清楚, 睇唔到, [P2] 唔知道文件。…… [WC Leung] 同 [YH Leung] 講㗎咋 …… [P2] 唔清楚呀 …… 但 [P2] 知道 …… [P2] 畀番啲櫃, [WC Leung] 要畀番運費 [P1] ……” But this still did not explain why the P2 PStmt made shortly after the arrest on 16 August 2007 also stated P2 (a) spoke with Hui by telephone twice at/about 7:00pm and 10:00pm on 15 August 2007, and (b) Hui informed P2 it had been agreed he would pay RMB30,000/Container (see §224 above).

234.  Findings  On balance, I totally reject P2’s inherently contradictory evidence, which I find not credible/reliable. P2’s evidence demonstrated he was an untrustworthy witness who was prepared to say whatever suited him, who was not above blaming others (eg the police and CFC) for any statement evidence that did not sit with his oral testimony, and who was not shy of putting forward lame and unconvincing explanations in his oral testimony to distance himself from any involvement in the “blackmail” case, eg denying attending the meeting at the Restaurant and denying having subsequent telephone conversation with Hui. In my view, P2 was shy about these matters because he well knew he might be perceived to have been complicit in making unwarranted demand with menaces at such meeting.

235.  On balance, I prefer Hui’s account in the Hui 1^st PStmt made on 16 August 2007 that (a) on 14 August 2007 Hui again telephoned to ask LB Tang about the Containers, and LB Tang told Hui he would come to Hong Kong so they would discuss when they met, and (b) at/about 8:30am the following day (15 August 2007), LB Tang telephoned to tell Hui he would wait for Hui at the Restaurant, so Hui went to look for him. In my view, this convincingly explained how the meeting on 15 August 2007 came about. For reasons explained in §§226-229 above, the initiative came from LB Tang / P1.

236.  Hui’s further account (which on balance I accept) was set out in the Hui 1^st PStmt as follows:

“9) 喺8月14日 [should be 15 August 2007 as explained in the Hui 2^nd PStmt] 大約早上9點半, [Hui] 一個人到 [Restaurant], 當時 [Hui] 見到 [LB Tang] 同另外兩名男人一齊。當 [Hui] 坐低之後, [LB Tang] 就問 [Hui] 有冇見過佢身邊嗰兩個男人, [Hui] 就話無, 之後 [LB Tang] 就話有啲事要走先, 就叫 [Hui] 有咩就同另外果兩個男人傾, 當時有一個男人就同 [Hui] 講話 [Containers] 上落大陸就駛咗佢好多錢, 問 [Hui] 點樣, 咁 [Hui] 就話駛咗幾多, 咪叫 [LB Tang] 開張單俾 [Hui] 囉。跟住佢就話係唔係唔想要番啲貨, 咁 [Hui] 就話你想要幾多? 之後個男人就話每隻櫃5萬, 咁 [Hui] 就話 [Hui] 俾唔起, [Hui] 搵啲物主黎傾, 跟住 [Hui] 就打電話, 咁嗰兩人就話冇錢就唔俾返啲貨 [Hui], 之後兩個就起身走, [Hui] 就立即問佢哋有冇電話留低, 可以聯絡到佢, 佢就留低個電話號碼就走咗。

10) 之後 [Hui] 就同貨主 [Yau] 講返成件事, 最後我哋都係打算俾錢, 於是 [Hui] 就大約係下午4點打電話俾嗰兩個男人, 就同佢講價, 最後就講到一隻櫃3萬蚊, 並係8月16日交收。每次由佢哋送一隻櫃黎, 收咗3萬後再送第二隻, 當我哋同意後 [Hui] 就叫佢將隻櫃拖去 [TSW Depot], 之後我哋就收線。”

237.  A number of matters are of note:

(a)	There was no dispute that Hui had not seen P2 before the meeting at the Restaurant. If the other male person who accompanied P2 and LB Tang was Shing Guo, I am not surprised Hui did not know him for Shing Guo introduced WC Leung (not Hui) to P1.
(b)	I had explained why LB Tang was first to leave the meeting (see §230 above). On balance, I accept the person who spoke with Hui was P2 and not the other male person (presumably Shing Guo who was not involved in the transaction concerning the Containers). Indeed, Hui in his answer (6) to question (6) by DPC54800 confirmed that such other male person did not say anything.
(c)	Hui’s account that P2 “…… 同 [Hui] 講話 [Containers] 上落大陸就駛咗佢好多錢 ……” (my emphasis) sat well with the fact that P2 personally (a) paid “檯底錢” of RMB300,000 and warehouse charges of RMB143,400, and (b) arranged to pay freight charges of HK$40,000 for release/return of the Containers, all of which P1 had yet to reimburse. Given P2’s knowledge of such payments made or arranged by him, it was not easy to understand the assertion in the P2 PStmt that “到達 [Restaurant], 跟住 [P2] 就喺 [Restaurant] 同 [Hui] 講, 所有貨櫃已經到港, …… 據 [P2] 理解係6 [Containers] 在大陸扣留時嘅費用。[P2] 就向 [Hui] 表示, 確實費用 [P2] 唔可以清楚講喥, 要有單據才可以講, 而 [Hui] 就繼續叫 [P2] 俾個大約數, 而 [P2] 就照講大約50,000元一個櫃左右 ……”
(d)	As P2 was constrained to agree, the costs and expenses already incurred for release/return of the Containers were to P2’s knowledge well in excess of the amount of RMB300,000 at RMB50,000/ Container that P2 put forward at the meeting (see (c) above). P2 had no sensible explanation on his own case why, as stated in the P2 PStmt and P2 1st WStmt, he would ask for payment of RMB50,000/Container, and thus cause P1 to suffer loss even if WC Leung did comply with such request and make such payment. All P2 said could say under cross-examination was “…… [P2 and P3] 冇權去同 [P1] 講呢啲嘢 …… 廣州兩間公司 [ie Keung Kee and P1] 自己傾 ……” In my view, the sensible reason, as I have found, was that P2 demanded Hui to make some monetary contribution rather than to seek full reimbursement of the incurred costs and expenses because LB Tang / P2 well knew WC Leung / Hui / Keung Kee had no obligation under the Bargain to pay such costs and disbursements for release and return of the Goods/ Containers.
(e)	On balance, I accept Hui’s answers (7)-(8) to questions (7)-(8) by DPC54800 as recorded in the Hui 1st PStmt that P2 did not identify himself. The P2 PStmt and the P2 1st WStmt also did not say P2 introduced himself. I find it unsurprising since P2 intended to and did at the meeting at the Restaurant demand Hui / Keung Kee for monetary contribution which they did not have to pay under the Bargain by threatening not to deliver up the Containers unless such payment was made.
(f)	I find on balance it was P’s threat of not delivering up the Containers unless Hui paid RMB50,000/Container upon his collection of the Containers that caused Hui (after discussion with Yau) to unwillingly accede to such demand as they were anxious for return of the Containers. This was the very reason that led to the subsequent telephone conversation between P2 and Hui whereby Hui conceded to pay but negotiated the amount payable down to RMB30,000/Container.

(o)  Delivery of Containers to TSW Depot

238.  The Containers were to be collected on 16 August 2007. P2 explained under cross-examination he was responsible for taking delivery of the Containers at the TM Depot, but all he had to do there was to “…… 交埋啲錢就走得㗎喇 ……” P2 said he had to personally attend to this because only P2 “…… 一個人先至可以喺個倉提到嗰啲貨出嚟 …… 約咗16號嗰日 …… 無論點 …… 都要去提貨 ……” P2 said his assistant P3 would not attend the TM Depot, but when the Containers were transported to the TSW Depot (which was some distance away from the TM Depot), P3 would be there to receive the Containers and “…… 喺度交貨 ……” to Hui.

239.  In the P2 1^st WStmt, at/about 10pm on 15 August 2007, Hui telephoned P2 and after discussing other matters Hui asked P2 to deliver the Containers to the TSW Depot for his collection at 11:00am the following morning (16 August 2007). But P2 in answer (1) in the P2 PStmt gave a different version, ie “…… 直到今日即2007年8月16日上午9點左右 [P2] 打俾電話俾 [Hui], 問問貨交收地點。咁 [Hui] 就叫 [P2] 送 [TSW Depot] 交收, 跟住 [P2] 就向 [Hui] 表示將會在11點左右到達。到時 [P2] 會搵助手到現場指明找 [Hui] 做交收, [Hui] 就表示明白 [P2] 就收線 ……” P2 did not explain such discrepancy.

240.  In the P2 1^st WStmt, P2 stated that after confirming with YH Leung by telephone in the early morning of 16 August 2007 about the agreement Hui alleged he had with P1, P2 called P3 by mobile telephone and instructed him to go to the TSW Depot. In the P3 1^st WStmt, P3 also said that on P2’s instructions in the morning of 16 August 2007, he was to deliver up the 6 Containers to Hui (whom P3 had not met before) at the TSW Depot at 11:00am, and to release the Containers to Hui one by one upon receipt of RMB30,000/Container. P2 testified under cross-examination that he and P3 had worked together for many years, so he did not give any particular instructions to P3 on this occasion. He claimed P2/P3 simply followed P1’s instructions, ie “…… [P1] 嗌 [P2 and P3] ……  交畀邊度簽收, 咁就走得㗎喇 ……”. P3 further testified under cross-examination that P2/P3 “……合作慣嘅, [P2] 畀嗰啲櫃 ……” and “…… [P3] 交畀接櫃嘅人, 即係 [P3] 認為貨主嘅人嚟簽收”.

241.  Interestingly, under cross-examination, P2 claimed it was on 15 (rather than 16) August 2007 that he instructed P3 “「你聽日去 [TSW Depot] 嗰度交貨, 阿超 [ie WC Leung] 喺度等緊你」咁 ……” P3 also testified under cross-examination that P2 asked him to go to TSW Depot not by telephone call on 16 August 2007, but at a meeting (ie “…… 係, 一定會見面嘅 ……”) on “提前一日” (ie 15 August 2007) during which P2 gave “櫃紙” to P3. P2’s and P3’s oral evidence did not sit well with the P2 1^st WStmt and P3 1^st WStmt as to when P2 gave instructions to P3 (see §240 above), nor with the P2 PStmt given on 16 August 2007 that recorded P2’s answer (2) to DPC47923’s question (2)[76] that “[P3] 係 [P2] 嘅伙記, 係 [P2] 叫 [P3] 今日去 [TSW Depot] 同 [Hui] 做交收嘅”, which necessarily meant P2 gave instructions to P3 on 16 August 2007.

242.  Further, P3 testified under cross-examination that P2 told him “…… 呢個接櫃人, 呢個貨主係 …… 叫做 [WC Leung] ……”, and P2 also testified under cross-examination that he told P3 WC Leung would be waiting for him at the TSW Depot. But when it was pointed out to P2 that (a) it was his statement evidence that WC Leung told him he was busy in Mainland China and that he should make arrangements with Hui, and (b) the P2 1^st WStmt, P3 1^st WStmt and P2’s answer (2) in the P2 PStmt all stated P2 told P3 that Hui and not WC Leung was the one who would collect the Containers, all P2 could say (quite irrelevantly) on such inconsistency was “[P2] 唔清楚老細點安排嘅 ……” Further, when it was pointed out to P3 that the P3 1^st WStmt (relevant parts of which had been interepreted to him during cross-examination) referred to Hui and not WC Leung for collecting the Containers, P3 shied away by saying “…… 好似佢頭先讀出嚟嗰時都冇話提到許文強 ……” But when told that the Chinese characters “許文強” (ie Hui’s name) were actually written on the P3 1^st WStmt itself, all P3 was able to say was “[P3] 係識睇字, [P3] 未識呢個人 ……”

243.  Under cross-examination, P2 at first said he gave P3 a “清單” that he himself prepared by writing down the total number of Containers and the container numbers, but he later said he did not give P3 any handwritten document. Instead, P2 claimed he gave P3 a document provided by Mark Shipping (but not discovered/disclosed in the present action so it was not Mark Shipping’s 提貨通知), which set out the container numbers of the Containers. P2 explained that “…… [P2] 提櫃出嚟嗰時, [P2] 一定要交 [Mark Shipping] 錢㗎嘛 …… [P2] 交$40,000 ……” (which was consistent with the 13/8/07 Fax), “…… [P2] 收到 [Mark Shipping] 嗰個文件 ……”, “…… 交到錢個文件, 就用嗰張文件嗰啲冧把 ……. 咁就交畀 [P3] ……” P3 also testified under cross-examination that when P2 gave instructions to him on 15 August 2007, “[P2] 有交文件畀 [P3], 交 ……「櫃紙」, 交櫃嘅冧把, …… [P3] 去接收嘅 ……” But P2 did not say when and how he met up with P3 to give  “櫃紙” with “交櫃嘅冧把” to P3 (which meeting was not mentioned in the P2 PStmt and/or the P2 1^st WStmt) when (a) the P2 1^st WStmt and the P3 1^st WStmt claimed P2 gave instructions to P3 only in the morning of 16 August 2007 (see §240 above), (b) P2 personally attended TM Depot with 提貨通知to take delivery of the Containers from Mark Shipping (see §238 above and §248(a) below), (c) P3 arrived at TSW Depot shortly after 9:00am to have breakfast and he did not leave TSW Depot pending arrival of the Containers (see §279 below), and (d) TM Depot was some distance away from TSW Depot (see §238 above). Such implausibility probably explained P2’s and P3’s poor attempts under cross-exmaination to allege a meeting between them not on 16 August 2007 but on the day before (see §241 above).

244.  P2 gave evidence under cross-examination that the practice for delivering up container goods for collection was “…… [P3] 就跟呢啲冧把交畀人哋, …… 之後人哋簽番, okay喇, 咁走得㗎喇, ……不嬲都係咁做 ……” P2 said he and P3 “……  係伙記, 對錢銀就冇關係嘅, 因為 [P2/P3] …… 做好晒櫃, 要開番單 …… 佢公司同公司計番個數嘅, 因為 …… 產生嗰啲隧道費、咩嘢費、橋費嗰啲嘅, 所以 [P2/P3] 冇權收呢啲錢嘅, 而且 [P1] 都唔會畀 [P2/P3], 因為 [P2/ P3] 係凈係做送貨、交貨嘅之嘛 …… [P2/P3] …… 做咁耐, 做咗十幾年, 都永遠收唔到錢嘅 ……”, which practice also applied to the Containers. But P2 was constrained to acknowledge it was not always the case that he never dealt with money matters. After all, he made or arranged to make payments in Hong Kong (where P1 had no corporate presence), eg payment of Mark Shipping’s freight charges of HK$50,000 for shipment of the Goods/Containers from Hong Kong to Fang Chang Gang City, arranged to pay HK$40,000 for shipment of the Goods/ Containers from Fang Chang Gang City to Hong Kong, and (even though he was said to only handle P1’s Hong Kong operations) settled the warehouse charges in Fang Cheng Gang City for release of the Goods/ Containers from the C&E Detention. P2 tried to brush this aside by saying under cross-examination that “…… 唔係經常嘅 ……”, and under re-examination he claimed he had not collected payment for P1 who had yet to reimburse him for advance payments he made on P1’s behalf. But P2 did not explain why as mere “伙記” or “行街” he would make significant advance payments of over RMB400,000 out of his own pocket for P1 that well exceeded 2 years of his monthly salary of HK$18,000 (see clause 2 of his employment contract).

245.  But P2’s above testimony did not sit well with the P2 PStmt that recorded P2’s answer (3) to DPC47923’s question (3)[77] as follows:  “有, 係要當每一隻貨櫃到時就由 [Hui] 自己驗櫃, 驗好就畀一隻櫃錢, 每嚟一隻就畀一隻櫃錢, 直到6隻到齊”. When pressed, P2 insisted there was no agreement with Hui, and said “…… 當時 …… 咁 [WC Leung] 話 ……「你交貨係一樣嘅啫」咁 …… 嗰個差人講㗎 …… 佢話「[Hui] 同 [WC Leung] 係一樣嘅啫, 都係貨主嚟」咁樣 ……” But when further pressed on why he would say in answer (3) in the P2 PStmt that there was an arrangement to collect payment upon delivery up of the Containers (quite irrespective of whether such payment to be collected from Hui or WC Leung), P2 still insisted there was no such arrangement, “…… 即係 [P2] 嘅意思即係話「你收一隻櫃, 就一隻櫃錢 ……」, 咁佢就要返 [P1] 計嘅, …… 唔係同 [P2/P3] 計嘅 ……” But such explanation still contradicted answer (3) in that the P2 PStmt stated “…… 驗好就畀一隻櫃錢, 每嚟一隻就畀一隻櫃錢, 直到6隻到齊”. And yet P2 still insisted P2/P3 would not collect any payment, and went on to blame the police: “…… 嗰時係 [DPC47923] 寫, 唔係 [P2] 寫--唔係 [P2] 講㗎, 咁但係 [P2] 睇過, [DPC47923] 話 「一樣嘅啫, [WC Leung] 同佢本身--都係要畀錢你哋㗎喇」……”, “…… [DPC47923] 話「一樣嘅啫, [Hui]」……”, “…… 咁 [P2] 簽落去之嘛 ……”,  “…… 但 [P2] 嗰時 ……  就唔識 [Hui] 嘅 …… 未見過 [Hui] 嘅 …… 喺差館 [ie TSW Police Station] 先見到嘅大家 ……” When asked by this court why he did not in the subsequent P2 1^st WStmt point out the alleged error in answer (3) in the P2 PStmt and state the correct position, all P2 could say was “…… [P2] 自己唔理解法律文件 ……” (even though the P2 1^st WStmt was verified by P2’s own SoT with interpretation clause that confirmed CFC’s clerk had interpreted the statement to P2).

246.  Likewise, P3 testified under cross-examination that payment had to be made upon collection of the Containers, but he claimed it was not direct payment to him. He claimed the usual practice was for the party collecting container goods to “…… 打電話返 [P1] 承認, [P3] 先畀佢拖走嘅, [P3] 每次都係咁做 ……” P3 explained that “…… 逢係佢話貨主, 佢都要通知 [P1] 裡面打電話畀 [P3] 嘅, 證明呢個櫃係錢銀冇問題、乜都冇問題, [P3] 就畀佢拖走嘅啫, [P3] 接 [P1] 嘅指令呀 ……”, or to put in another way, “…… [P3] 去到貨櫃場喇, 見到個貨主喇, …… 佢打電話 …… 上去, 確認一次, 然後「冇問題喇」, …… [P1] 仲要打番電話畀 [P3], 先交貨喇, [P3] 唔係立亂交貨畀人㗎, …… 喺 [P3] 手上損失, [P3] 要賠償 ……”, which practice also applied to the collection of the Containers. P3 claimed “…… 記憶猶新 ……” that he did not receive instructions from P2 to collect payment from the party who was to take delivery of the Containers, “[P3] 收咩嘢錢呀, [P3] 冇權收人錢, 人哋畀錢 [P3], 咩嘢意思呀?”

247.  It was pointed out to P3 under cross-examination that even though he claimed not to have heard of Hui and he denied receipt of any instructions to collect payment, the P3 1^st WStmt stated otherwise, ie on 16 August 2007 he was instructed by P2 to deliver the 6 Containers to Hui at the TSW Depot, and to “release one by one to [Hui] upon receipt of RMB¥30,000.00 each” (see §240 above). P3 still insisted that in morning of 16 August 2007 “…… 冇, …… [P3] 收唔到 [P2] 咁嘅指示 ……”, “…… [P3] 收到嘅係櫃嘅冧把 ……”, and P2 never mentioned Hui to P3 prior to P3’s arrest by the police. When further pressed on why he stated otherwise in the P3 1^st WStmt, P3 said “…… [P3] 終身難忘嘅事, [P3] 點會唔記得, [P3] 係記得 ……”, but he did not know why this was so stated in the P3 1^st WStmt.

248.  On balance, I find P2’s and P3’s evidence inherently contradictory and unreliable, and nothing more than poor attempts to avoid connection with money-related matters and hence the “blackmail” case. I reject their evidence about going to the TSW Depot, and on balance I find as follows:

(a)	At the TM Depot, P2 took delivery of the Containers by presenting 提貨通知to Mark Shipping and arranging for MWS Co’s Chan to pay Mark Shipping’s freight charges of HK$40,000, and P2 then arranged for MWS Co’s container truck(s) to haul the Containers one by one from the TM Depot to TSW Depot.
(b)	P2 gave the container numbers of the Containers to P3, and instructed him to attend TSW Depot to receive the Containers and to release them to Hui who would attend TSW Depot for collection (and not WC Leung who was in Mainland China) one by one upon payment of RMB30,000 for each Container.
(c)	P2 did not rely on the usual practice as between him and P3, and gave specific intructions in (b) above to P3 because on this occasion there was a special requirement of collecting RMB30,000 upon release of each Container to Hui.
(d)	P2 gave such instructions to P3 in the early morning on 16 August 2007, ie after his conversation with Hui at/about 10:00pm on 15 August 2007.
(e)	P2 gave such instructions to P3 by telephone (and not in meeting as P3 alleged) because all that was required would be the container numbers and the name of the collecting party. There was no need to give to P3 提貨通知 because such document was only relevant for P2 to take delivery of the Containers from Mark Shipping. Further, P3 explained that in any event the identity of any collecting party would have to be verified by P1 who would have to confirm to P3 before P3 would release any container (see §246 above). Indeed, P3 said “…… 你哋生保人, 唔緊要嘅, 你就同 [P1] 聯絡, 打咗電話畀 [P1], …… 聯絡到 [P1] …… [P1] 會打電話畀 [P3] 至交貨嘅 ……” In my view, there was no need to “提前一日” give “櫃紙” to P3 (as P3 alleged) or “[P2] 有交文件畀 [P3], 交 ……「櫃紙」, 交櫃嘅冧把, …… [P3] 去接收嘅 ……” as P2 alleged.

(p) Hui’s report to police

249.  The Hui 1^st PStmt stated “到8月16日早上9點30分, 由於 [Hui] 覺得唔對路, 所以就去咗 [TSW Police Station] 報警 ……” According to the DSGT385 WStmt, at/about 11:20am on 16 August 2007 Hui made a report to the Duty Officer, TSW Police Station (“DO”),[78] who classified it as a “blackmail” case. DSGT385, DPC47923 and DPC58096 were on “A” shift duty on 16 August 2007, but SIP Li was not on duty the morning. According to the DPC47923 1^st WStmt and the DSGT385 WStmt, at about 11:30am the DO asked DCI Team 1 to take over investigation of this “blackmail” case, and on such instructions DPC47923 began preliminary enquiry of such “blackmail” case (“Preliminary Enquiry”).[79] DPC47923 was the designated investigation officer of this “blackmail” case to “統籌” recording of investigative steps taken by the police in the Investigation Report until early October 2007 when he was transferred out of DCI Team 1, which meant the entries in the available pages of the Investigation Report for December 2007 onwards did not concern DPC47923.

250.  DSGT385 said under cross-examination that DPC47923 was the first police officer to make preliminary enquiry with Hui about the “blackmail” case, so DPC47923 had first hand knowledge of Hui’s account whilst other police officers only heard DPC47923’s report of what Hui told him. According to the DPC47923 1^st WStmt, Hui as the Informant reported to DPC47923 as follows (which was consistent with Hui’s account in the Hui 1^st PStmt given to DPC54800 subsequently on the same day):

“1. …… 2007年5月委托 [FCGC Co Ltd] 的負責人 [LB Tang] (是大陸人) 運送 [6 Containers] 返回大陸 [Nan Hai], 並傾好收到貨才比錢合共39萬, 其後事隔一個月 [Nan Hai] 方面仍未收到貨, 於是找 [LB Tang] 了解, 並得知不准入境要退回香港, 於是就要求 [LB Tang] 安排立即把貨運回了港, 直到同年8月14日 [Hui] 仍未收到 [Containers] 便再致電 [LB Tang], 而 [LB Tang] 就表示會在同年8月15日來港並相約在上水 [Restaurant] 見面。

2. [Hui] 亦報稱喺同年8月15日 [LB Tang] 連同兩名男子到 [Restaurant] 與 [Hui] 會面, 其中一名男子 [later known as P2] 向 [Hui] 話批貨喺大陸洗咗好多錢, 並表示要 [Hui] 一隻 [Container] 比番5萬, 仲問 [Hui] 係唔係唔想攞番批貨。於是 [Hui] 要求 [P2] 留下聯絡電話因要與真正貨主商量稍後答覆。其後 [Hui] 致電 [P2], 與 [P2] 相討價錢, 最終減至每一隻 [Container] 3萬, 並相約於同年8月16日 [TSW Depot] 交收。但 [Hui] 其後覺得有問題於是就在8月16日早上報警。”[80]

251.  DPC47923 agreed that from the time of the Preliminary Enquiry with Hui up to the time when he made his report to DSGT385, there was no written record of Hui’s account to him. DPC47923 explained that “…… [DPC47923] 係第一日 …… 係初步會見 [Hui] 喇, [DPC47923] 未同 [Hui] 用筆錄嘅情況喇 ……”, “…… 因為 [DPC47923] 要初步了解咗先嘅 ……”, but the Preliminary Enquiry was interrupted by a telephone call to Hui (see §253 below), “跟住 [DPC47923] 已經去咗拘捕人喇, 咁 [DPC47923] 記得份口供係應該喺第二日先同 [Hui] 再攞番嘅  [ie Hui 2^nd PStmt] ……” DSGT385 also agreed DPC47923 made oral Preliminary Enquiry with Hui, and as far as he could recollect, there was no written record, “…… 咁我哋嘅紀錄就應該冇嘅, 喺嗰個階段 ……”

252.  I accept that under the Preliminary Enquiry Hui did not mention any violence was used and/or any threat to use violence at the Restaurant. Under cross-exmaination, DPC47923 said he nevertheless understood from Hui’s preliminary account that at the Restaurant the male person later known as P2 demanded Hui to pay RMB50,000/ Container before Hui could collect the Containers, “…… 因為 [P2] 話使咗好多錢吖嘛, 咁要畀番50,000鈫一隻櫃吖嘛 ……” So DPC47923 knew “源頭” of this “blackmail” case concerned shipment of the 6 Containers, but at the time he did not precisely know whose default caused the C&E Detention, “…… [DPC47923] 唔清楚佢哋啲行情係點樣樣嘅, [DPC47923] 唔明白 ……”, or which party should ultimately bear the incurred freight charges and other costs/expenses. But DPC47923 learnt from Hui’s account made during the Preliminary Enquiry (see §250 above) that in May 2007 Hui engaged LB Tang (responsible person of FCGC Co Ltd) to ship 6 Containers to Mainland China “…… 並傾好收到貨才比錢合共39萬 ……”

253.  According to the DPC47923 1^st WStmt, while DPC47923 was still making Preliminary Enquiry with Hui, Hui received a telephone call. The Hui 1^st PStmt stated “…… 期間有個男人打電話俾 [Hui], 話隻櫃就到櫃場, 叫 [Hui] 出嚟收櫃, 於是 [Hui] 就同差人講……” DPC47923 disagreed he only learnt from Hui’s account of such telephone conversation that TSW Depot would be the eventual “行動嘅目的地” because “…… 一早 [Hui] 已經同 [DPC47923] 講咗, 話將會喺 [TSW Depot] 嗰度交收嘅, 但係當 [DPC47923] 喺interview緊 [Hui] 期間, 佢電話響, 有人同 [Hui] 講話「已經到咗喇」, 就催 [Hui] 快啲去交收, 個情況就咁囉 …… 即係 [Hui] 講完電話之後同 [DPC47923] 講, [Hui] 話「阿Sir, 佢到咗喇, 叫我去囉喎」咁樣樣, 「去交收囉喎」咁樣樣 ……” (see also DPC 47923 1^st WStmt). But under cross-examination DPC47923 could not remember how much time elapsed “……由 [DPC47923] 開始接見 [Hui], 一路直至到 [Hui] 收個電話, …… 但係 ……唔係好耐, 一個鐘頭內喇 ……”

254.  DPC47923 recalled under cross-examination that Hui provided some documents to him during his Preliminary Enquiry, “…… 但 [DPC47923] …… 冇咩嘢印象係咩嘢文件 ……”, “…… [DPC47923] 實在唔係好記得係 [Hui] 畀過咩嘢文件 [DPC47923] 睇 ……” DPC47923 testified that had he seized the documents Hui brought along, he would have recorded it in the Hui 2^nd PStmt, but there was no such record. DPC47923 (who was transferred out of DCI Team 1 shortly thereafter) said his main tasks prior to his transfer out of DCI Team 1 “…… 就最主要同 [Hui] 落份口供喇 [ie the Hui 2^nd/3^rd/4^th PStmts] …… 同埋 ……正式 [Hui] 話帶啲貨主過嚟畀 [DPC47923], 亦都有帶文件畀 [DPC47923] 睇嘅, 因為個正式嘅貨主  …… 呢班人就係委托 [Hui] 帶嘢返大陸嘅, 就呢班就有文件喺度嘅 ……” (see the Kwok, Zeng and Liu PStmts as referred to in §145 above), and he was unclear whether the documents Hui brought along when he reported to the police were later seized as exhibits.

255.  DSGT385 also said under cross-examination that Hui produced some documents during the Preliminary Enquiry. DSGT385’s impression was that the information in such documents showed Hui was only a “代理人” and not the owner of the Goods/Containers. DSGT385 said according to DPC47923’s report to him (see §§256-257 below) “…… [Hui] 有話呢幾個 [Containers] 係有幾個貨主嘅 …… 記得 [Hui] 有提供過 …… 類似單據呢啲 ……”, but it was too long ago (ie about 10 years) for him to remember clearly.

256.  In the DPC47923 1^st WStmt and under cross-examination, DPC47923 said he reported Hui’s account in §250 above to his team leader DSGT385. According to the DSGT385 WStmt, DPC47923 reported to DSGT385 as follows:

“…… [Hui] 為 [Keung Kee] 東主 …… [Hui] 受托安排運送 [6 Containers] 嘅貨物去中國 [Nan Hai], 其後 [Hui] 再外判這宗生意俾另一公司 [FCGC Co Ltd] 運送, 並協議內地收到 [Containers] 後才俾運費, 但該公司並無成功將 [6 Containers] 運到目的地 [Nan Hai], 並約 [Hui] 在上水一酒樓商討, 當時兩名 [Hui] 並不認識的男子 (其中一人為 [P2]) 聲稱為 [Containers] 在內地洗左好多錢無交代詳情, 就要求 [Hui] 俾每個 [Container] 5 萬元才交還 [Containers], 後來兩人更願收每個 [Container] 3 萬, 並約 [Hui] 於2007年8月16日到 [TSW Depot] 交錢收櫃, 當日早上 [Hui] 到天水圍後決定往 [TSW Police Station] 報案。” (my emphasis)

257.  DSGT385 agreed that DPC47923’s account of what Hui told him in the DPC47923 1^st WStmt (see §250 above) was similar to his own account of DPC47923’s report to him (see §256 above), “…… 但係咪 …… 真係全部係一樣, [DSGT385] 就唔敢講, 因為太耐, 即係個內容差唔多喇 …… 即係如果你話個內容係咪呢度, [DSGT385] 諗 …… 喺 [DGT385 WStmt] …… 度提到DPC47923所講嘅嘢, 就比較係吻合當時DPC47923同 [DSGT385] 講嘅嘢囉, 但呢度 [ie §250 above], [DSGT385] 就唔敢話係百分百係咪當時 [DPC47923] 咁樣同 [DSGT385] 講 ……” But DSGT385 agreed DPC47923’s report to him did not refer to any violence.

258.  Of interest was the fact Hui told DPC47923 and DPC47923 also reported to DSGT385 that Hui / Keung Kee and LB Tang / FCGC Co Ltd agreed that in relation to shipment of the 6 Containers to Mainland China there was “協議內地收到 [Containers] 後才俾運費 ……” (see §250 and §256 above). Since the 6 Containers were detained and could not be successfully imported into Mainland China, it was quite plain on Hui’s account to DPC47923 and DPC47923’s report to DSGT385 that as between LB Tang / FCGC Co Ltd and Hui / Keung Kee transportation charges was not yet due and payable by the latter in the absence of any allegation of fault on the part of Hui / Keung Kee in such account/report.

259.  DSGT385 said under cross-examination that DPC47923 reported to him that during the meeting at the Restaurant a male person later known as P2 “…… 就要求50,000鈫 …… 先畀一隻櫃 [Hui], 每個櫃50,000鈫 ……” (see §256 above), “…… 即係 [DSGT385] 意會就話, [P2] 個交易未完成, 就要求 [Hui/Informant] 要畀50,000鈫一個櫃, 咁 [DSGT385] 覺得呢個要求係有問題嘅 …… 因為 [P2] 一個運輸, [P2] 未成功將一啲貨去運到目的地 …… 即係未完成呢個交易, 咁 [P2] 反而就要求番 [Hui/Informant] 要再畀番錢呢個幫 [Hui] 運貨嘅人, [DSGT385] 覺得呢個交易係有問題 ……” DSGT385 knew the Containers had been returned to Hong Kong, but even though he did not then precisely know the reason therefor, he subjectively thought there should not have been demand for payment when the Goods were not delivered to their destination but instead were returned to Hong Kong, “…… 即係 [DSGT385] 用common sense理解就係話, 即係如果我負責呢個運輸嘅, 我唔能夠成功將客人所要求我嘅貨運到去目的地, 我相信我係收唔到我應得嘅報酬囉, 即係我咁講 ……” Indeed, Hui’s account to DPC47923 who in turn reported to DSGT385 also referred to the express agreement between Hui / Keung Kee and LB Tang / FCGC Co Ltd to such effect (see §258 above).

260.  DSGT385 said under cross-examination that “…… [DPC47923] 有提到話, 後屘講價講到$30,000嘅 …… [thus the DSGT385 WStmt] 所講就「後來兩人更願收每個貨櫃3萬」……”, so even before DSGT385 reported to CIP Yip (see §263 below) DSGT385 already knew Hui claimed there was an understanding that RMB30,000/Container would have to be paid upon Hui’s collection of the Containers. But DSGT385 disagreed this was a mere commercial dispute, “…… 因為我哋唔係單憑睇呢個咁嘅講價, 一個周旋喇, 喺度--由50,000鈫 …… 變30,000鈫就係一個商業糾紛, 我哋係睇番成個案件, 由開頭去接觸 [P2/P3] 所發生嘅事、所產生嘅疑點，然後決定究竟呢單案件有冇人構成一個勒索罪呢, 我哋係會咁諗, 就唔會單憑佢哋一個嘅商議, 個價錢由$50,000講到$30,000, 而定奪呢個就係商業糾紛 ……”

261.  DSGT385 fairly agreed under cross-examination that “…… 因為當其時 [the male person at the Restaurant later known as P2] 只係話 ……「喺內地使咗好多錢」, 但冇交代到個原因同埋使咗咩嘢錢, [DSGT385] 相信如果 [P2] 當其時係有交代到畀 [Informant] 聽使咗咩嘢錢, [Informant] 係唔會嚟報案, 譬如有單據、譬如報關有問題「盛」, 或者 …… 使咗咩嘢錢呢方面, 如果 [P2] 真係有實憑實據畀到單提供嘅, [DSGT385] 相信 [Informant] 唔會走嚟差館報案 …… 即係如果 [DSGT385] 知道係有咁嘅原因嘅 [for return of the Containers to Hong Kong], [DSGT385] 會 …… 重新考慮過呢樣嘢 ……” But DSGT385 also noted that during the Preliminary Enquiry Hui did not say P2 gave him any account of the alleged “lots of money” spent in Mainland China. In my view, P2’s actual reasons therefor were immaterial to the question of the lawfulness of P2’s and P3’s arrests save that the absence of an account for such expenditure served to highlight concerns in relation to P2’s demand for RMB50,000 (later reduced to RMB30,000) from Hui for each Container upon collection of the same by Hui.

262.  DSGT385 also fairly agreed under cross-examination that had he been told the Containers, which were said to contain scrap metal, also contained medical equipment and photocopiers that led to the C&E Detention and the eventual return of the Containers to Hong Kong, “…… [DSGT385] 相信係有責任嘅, 嗰個本身托運嗰個人 ……” But such evidence was again immaterial to the question of the lawfulness of P2’s and P3’s arrests since I have found against P2 and P3 on such assumed facts, and Hui did not give such account to DPC47923 who did not make such report to DSGT385.

263.  DSGT385 said under cross-examination that on 16 August 2007 “…… 由DPC47923接見 [Hui] …… 咁然後 [DPC47923] 接見完之後, 將個內容向 [DSGT385] 匯報 …… [DSGT385] 分析過之後, 然後先至再向 [CIP Yip] 匯報 …… 去決定下一步行動 ……” Normally DSGT385 would have reported to SIP Li who was the OC of DCI Team 1, but as SIP Li would only report for duty in the afternoon, he reported to CIP Yip based on DPC47923’s report to him of DPC47923’s Preliminary Enquiry with Hui.

264.  Although DSGT385 could not remember clearly due to lapse of time, he believed DPC47923 must have reported to him that during the Preliminary Enquiry Hui received a telephone call informing him the Container(s) had arrived at TSW Depot and Hui should collect the Container(s) as soon as possible because it was DPC47923’s report of such telephone call to him that precipitated his report to CIP Yip who then deployed police officer to accompany Hui to TSW Depot. This was confirmed by DPC47923 who said under cross-exmaination that “…… 點解突然間有個咁倉卒嘅行動呢, 就因為喺 [DPC47923] 向 [Hui] 調查期間, [Hui] 嘅電話響咗, 就講咗一個電話, 就話 …… 有貨櫃已經到咗 [TSW Depot], 就催 [Hui] 過去交收, 咁所以 [DPC47923] 先咁急同長官佢哋方面講所有嘅嘢, 而長官亦都係咁倉卒咁去做呢個行動嘅 ……”

265.  The DPC47923 1^st WStmt and the DSGT385 WStmt stated that CIP Yip gave instructions immediately to deploy police officer to accompany Hui to collect the Container(s), to have other police officers to ambush nearby, and to make arrest at the ripe moment (“時機成熟”). DPC47923 was assigned to ambush nearby, and DPC58096 was assigned to accompany Hui. The Crime Message subsequently recorded by SIP Li stated that “[in] the morning on 2007.08.16, [Informant/Hui] made a report to TSWDIV [ie TSW Police Station]. ADVC C TSWDIV [ie CIP Yip] mounted a covert operation with DPC58096 acted as owner of Exh (1)-(6) [ie the 6 Containers] accompanying [Informant/Hui] ……”, but more about this in Part VIII(e) below.

266.  DSGT385 said under cross-examination that (a) “…… 嗰陣時 [CIP Yip] 就叫咗 [DPC58096] ……. 陪住呢個 [Hui] 嘅角色 ……” for going to TSW Depot, and CIP Yip “…… 有叫DPC58096去扮貨主㗎 ……”, and (b) CIP Yip gave order to DSGT385 who in turn “……再訓示 ……. 下屬去採取呢個control meeting …… 就即係要去扮貨主喇 ……”, which control meeting “…… 我哋係需要一個長官級去approve呢樣嘢, 所以當其時 [CIP Yip] 係有叫我哋去做扮貨主呢樣嘢 ……” But DSGT385 agreed that even though “…… [DPC58096] 係被指示係扮貨主 ……”, DPC58096 would not take the initiative to say he was “貨主”, and it transpired that during the police operation at TSW Depot later that day “…… 係 [Hui] 介紹 [DPC58096]「呢個就係貨主」……” (see §288 below).

267.  DPC47923 said under cross-examination that the instructions to DPC58096 were to “…… 陪同 [Hui] 去收貨呀 ……”, so as to ensure Hui’s safety. As to whether DPC58096 was expressly instructed to “假扮貨主”, DPC47923 said “…… 如果個情況轉變到係有咁嘅需要的話, 就會咁樣做嘅 …… 其實個訓示就係話, …… 首先一樣嘢喇, 就保障 [Hui] 安全先喇, 唔好畀人有任何嘅襲擊喇。第二, …… 睇下可唔可以喺嗰度收集到更加多嘅證據喇 …… 好喇, 跟住除咗呢樣之後就話, 如果有咁嘅需要, 因為好多嘢係轉變得好緊要㗎嘛, 有時啲嘢 …… [DPC58096] 可以 …… 當係一個貨主咁樣, 「我嚟收貨」咁樣樣, 同對面有個協議, …… 即係做一個貨主嘅角色都可以嘅, 咁視乎嗰個情況變化而定喇”.(my emphasis) DPC47923 said “可以咁講” there was a control meeting before the operation at TSW Depot, and the instructions were firstly to accompany Hui, “…… 如果 [Hui] 自己本身係同嗰個過嚟接頭嘅人互相去溝通嘅, 咁我哋就做一個旁聽角色或者保護角色喇。…… 好喇, 如果 …… 佢當咗我哋係一個貨主嘅, 佢誤會咗我哋係一個貨主嘅, 我哋咪就畀佢誤會囉, 就係貨主囉, 再同佢 …… 溝通, 甚至乎睇下可唔可以攞多啲資料囉, 同埋證據囉 ……” (my emphasis). DPC47923 agreed CIP Yip authorised the control meeting and the police operation at TSW Depot, and “…… [CIP Yip] 亦都係畀咗一個嘅approval我哋㗎喇, …… 可以咁樣處理嘅 …… 如果呢個指示都係佢同我哋咁樣講嘅 ……”

268.  According to the DPC58096 WStmt, at 12:55pm on 16 August 2007, he was briefed by DSGT385 on a case of blackmail, and he was instructed to accompany the Informant/Hui to TSW Depot to collect the Containers. DPC58096 (as briefed by DSGT385 and DPC47923) understood Hui reported as follows:

“…… [Hui] …… 較早時托人把 [6 Containers] 運返中國, 事後對方未能付運, 並約 [Hui] 在上水 [Restaurant] 商討, 並要求 [Hui] 每隻 [Container] 比返5萬元才把 [6 Containers] 交回 [Hui], 而其後改為每隻 [Container] 比返3萬元, 並約 [Informant] 在2007年8月16日到 [TSW Depot] 收櫃, 但 [Informant] 早上到天水圍後決定到 [TSW Police Station] 報案。”

For safety reasons, DPC58096 was assigned to accompany the Informant/ Hui in private car (ie Hui’s car) from TSW Police Station to TSW Depot to collect the Container(s), and DSGT385 and other police officers would follow them to lay ambush. DPC58096 said under cross-examination he did not personally ask Hui about details of the “blackmail” case.

269.  DPC58096 said under cross-examination that DSGT385’s instructions to him were to accompany Hui to TSW Depot for collection of the Containers to ensure Hui’s safety. There was concern for Hui’s safety because “……呢單係單勒索案件嚟嘅, 咁話明勒索案件係一單比較嚴重嘅案件嚟嘅, 有冇暴力呢樣嘢, 未知, 對方亦都唔知咩嘢人嚟嘅, [DPC58096] 收到嘅指示係咁多, 咁勒索係有機會可能會畀人傷害, 所以先至會擔心 [Hui] 嘅安全嘅啫 ……” DPC58096 agreed that concern over possible injury was due to the nature of the backmail complaint and not because of any specific information of violence inflicted that gave rise to specific need to step up Hui’s security.

270.  DPC58096 said under cross-examination that during police operation later that day at TSW Depot, “…… 其實 [DPC58096] 係估唔到 [Hui] 會話「我係貨主」[see §288 below], …… 其實我哋做警察嘅, 有時做案件有樣嘢叫「應變」嘅, 我哋唔會知道即係嚟緊會發生咩嘢事嘅, 咁你去到呢一刻, 突然之間嗰個人話「我係貨主」, 咁為咗要繼續去調查, 方便去調查或者搜證嘅話, 咁我咪應該會配合下 …… [DPC58096] 覺得係要喇 ……” (my emphasis).

271.  Mr Sio noted the covert operation referred to in the Crime Message (see §265 above) was not mentioned in any witness statement of the police witnesses, but DSGT385 and DPC47923 (and not DPC58096) acknowledged “the purpose of going to [TSW Depot] was a covert operation, or “control meeting” in their own words”. On such basis, Mr Sio expressed reservations about the vitality of the evidence of the police witnesses, especially DPC58096.

272.  I am not persuaded by Mr Sio’s submissions. First, from the evidence of the police witnesses in §§263-270 above, when DSGT385 made his report to CIP Yip, he received instructions from CIP Yip to carry out police operation at TSW Depot. On DSGT385’s evidence, CIP Yip instructed that DPC58096’s primary role was to accompany Hui to TSW Depot, but CIP Yip also gave approval for a control meeting whereby DPC58096 would be permitted to “假扮貨主” if necessary, ie he was not to proactively assert such pretence (see §266 above).

273.  Secondly, after DSGT385 received instructions from CIP Yip, DSGT385 gave instructions to the Team 1 Officers about the operation. DPC47923’s understanding of the instructions from DSGT385 was similar, ie DPC58096’s primary role was to accompany Hui to TSW Depot to ensure Hui’s safety and to collect further evidence (ie “…… 做一個旁聽角色或者保護角色喇 ……”, but if there were sudden developments or if the circumstances required, DPC58096 “…… 做一個貨主嘅角色都可以嘅, 咁視乎嗰個情況變化而定喇 ……”) Again, it was said DPC58096 was not to take initiative to assert such pretence, and was to do so only if “…… 佢誤會咗我哋係一個貨主嘅, 我哋咪就畀佢誤會囉, 就係貨主囉 …..” (see §267 above). Thus, DPC47923’s understanding of the control meeting was not substantively different from CIP Yip’s instructions to DSGT385.

274.  Thirdly, DPC58096 also said his primary role was to accompany Hui for safety reasons (see §269 above), but he agreed that depending on developments at the scene (eg Hui referring to him as the goods owner), he would react accordingly to adopt such pretence to facilitate police investigation (see §270 above). Although DPC58096 did not specifically refer to a “control meeting”, his understanding of the instructions to him was substantively similar to the instructions DSGT385 received from CIP Yip (see §272 above), and DPC47923’s understanding of such instructions as relayed by DSGT385 (see §273 above).

275.  I am not persuaded that the evidence of the aforesaid 3 police officers were in substance materially discrepant, and Mr Sio’s criticisms did not detract from the veracity of their evidence. As regards the Crime Message, it must be remembered that SIP Li prepared this document before he went off duty on 16 August 2007 (see §370 below). But he was off duty when CIP Yip gave instructions to DSGT385 and when DSGT385 gave instructions to the Team 1 Officers, but by the time he became involved in this “blackmail” case (ie he arrived at TSW Depot after P2 and P3 were arrested – see §308 below), it was already known that the police operation at TSW Depot actually had a covert element with Hui taking the initiative to point to DPC58096 and to tell P3 DPC58096 was the goods owner, and DPC58096 reacted accordingly by adopting such pretence in his dialogue with P3 (see §288 below). It was therefore understandable that the Crime Message referred to the police operation as a covert operation without full description of the nuances of the instructions as explained above. Further, given its hearsay nature, the Crime Message did contain some error, eg SIP Li erroneously stated therein that P2 was arrested by DPC54197 when in fact he was arrested by DPC47923 (see §371 above).

276.  Mr Sio submitted that the following facts/matters showed there was “no factual basis” for the police to form any reasonable belief that anyone would be charged with blackmail or any reasonable suspicion that anyone would be guilty of blackmail in the period before the police operation at TSW Depot, but I find myself unable to accept his submissions on fact and on law:

(a)	Mr Sio claimed there was dispute between Hui and “the carrier of the Containers”, and Hui was demanded to pay RMB50,000/Container. I find on balance that Hui did not report a “dispute” with the “carrier”. What Hui reported to the police during the Preliminary Enquiry (as noted by DPC47923 in §250 above, as DPC47923 reported to DSGT385 in §256 above and as DPC58096 understood from the briefing by DSGT385 and DPC47923 in §268 above) was that Hui agreed with FCGC Co Ltd’s LB Tang to pay RMB390,000 but only upon the latter’s successful delivery of the 6 Containers into Mainland China, but it transpired that the Goods/Containers failed to clear customs, could not be imported into Mainland China and had to be returned to Hong Kong, and yet at the Restaurant a male person (later known to be P2) demanded Hui to pay RMB50,000/ Container (which amount was subsequently negotiated down to RMB30,000/Container) upon threat that the Containers would not be returned to Hui otherwise. In my view, this provided reasonable basis for belief or suspicion that P2’s demand for monetary payment at the meeting at the Restaurant was “unwarranted” (see §259 above and §295 and §300 below).
(b)	Mr Sio submitted Hui reached an agreement with “the carrier” to pay RMB30,000/Container after negotiation on 15 August 2007 at the Restaurant. I find on balance that the so-called “agreement” was not an arms-length agreement between the parties for payment of RMB30,000/Container for return of the Containers. Rather, it was made in the context of (i) (a) above as reported by Hui to DPC47923, ie that no amount was payable yet under the original bargain because the LB Tang / FCGC Co Ltd failed to cause the Goods/Containers to be imported into Mainland China (see §258 above), and (ii) Hui’s report to DPC47923 that even before the meeting at the Restaurant he had learned the Containers were detained by PRC customs authority (ie the Containers could not be successfully imported into Mainland China). It was against such original bargain and Hui’s anxiety for the Goods/Containers to be returned to him that P2 at the meeting at the Restaurant demanded Hui to pay RMB50,000/Container, and asked Hui “係唔係唔想攞番批貨”. In my view, DSGT385 and DPC47923 reasonably understood such demand to mean that the Containers would not be released to Hui if Hui did not pay RMB50,000/Container (see §252 and §259 above), and this was their briefing to DPC58096 as well (see §268 above). Plainly, a reasonable understanding of Hui’s account given at the Preliminary Enquiry was that under the original bargain no payment was required to be made until the Goods/ Containers were successfully imported/delivered into Mainland China, but P2 demanded payment of RMB50,000/Container (“demand”) even through there was no obligation to pay yet under the original bargain (“unwarranted”) by threatening that otherwise the Goods/Containers would not be returned (“with menaces”), and Hui unwillingly acceded to such demand (with negotiation of the amount to be paid down to RMB30,000/Container) because (as known to LB Tang / P2) Hui was anxious for return of the Containers to the owners thereof.
(c)	Mr Sio submitted that as there was no violence or threat to use violence during the negotiations, there was no demand with menaces. Whilst I accept there was no use of violence and no threat to use violence at the meeting at the Restaurant and in the subsequent telephone conversation between P2 and Hui as reported by Hui to DPC47923, it did not mean there was no demand with menaces. The suggestion that violence or threat to use violence was a necessary element of “menaces” for the purpose of the offence of “blackmail” is clearly incorrect as a matter of law (see §59 above). The implicit threat of not returning the Containers unless RMB50,000/Container (later reduced to RMB30,000/Container) was paid was sufficient “menaces” (which should be liberally construed, and which may include threats of action detrimental to or unpleasant to the person addressed such that an ordinary person might be influenced to accede unwillingly to the demand). As explained in §59 above, often what is required to be justified is not the threat but the demand for money. In my view, on matters then known to the relevant police officers, there was little justification for P2’s demand of money (see (a) above and §258 above).
(d)	Mr Sio submitted that thereafter Hui thought there was a “problem” and made report to the police, and on the basis of Hui’s perceived “problem” the police considered the demand to be “unwarranted”. It was true that Hui had second thoughts about unwilling payment of RMB30,000/Container for collection of the Containers as he believed he was blackmailed, so he made a report to the police on 16 August 2007. But as explained in (a)-(b) above, there was factual basis under Hui’s account as reported to DPC47923 during the Preliminary Enquiry and as DPC47923 reported to DSGT385 that the demand of the male person at the Restaurant (later known to be P2) to Hui to pay RMB50,000/Container upon collection of the Containers was “unwarranted” in that no payment was due under the original bargain until the Containers were imported/delivered into Mainland China, but LB Tang / FCGC Co Ltd failed to satisfy their obligation under the original bargain to so import/deliver the Containers into Mainland China, which resulted in their detention and eventual return to Hong Kong (see §250 and §256 above). Whilst the Hui 3rd PStmt made ex post facto on 21 August 2007 was irrelevant to the arresting officers’ knowledge at the time of P2’s and P3’s arrests, in my view, what Hui said in such statement reflected what DSGT385 described as the “common sense” understanding of the situation (see §259 above): “但問題就出現喺退港後, 應該係 [LB Tang] 公司通知 [Hui] 幾時批貨會退到香港, 由 [P1] 付已提取番 [6 Containers], 但係今係由大陸被委托公司, 搵其他人(即 [P2]) 去 [Mark Shipping] 提還批貨, 再以批貨同 [Hui] 傾價錢, 就即係攞住 [Hui] 批貨黎勒索 [Hui]。 …… 今次 [Hui] 同 [P2] 傾, 都係想盡快處理好批貨, 因為 [Hui] 都係被委托。[Hui] 都唔想得罪啲客人, 點知要 [Hui] 比3萬蚊一隻櫃先攞得批櫃, [Hui] 就覺係 [P2] 勒索緊 [Hui] 囉。”
(e)	Mr Sio submitted the police did not conduct further inquiry into the “problem” and instead mounted a covert operation within about an hour after Hui’s report to the police, and had the police conducted prudent initial investigation (eg “asking Hui for logistic documents or try to understand common practice of logistic dispute”), it would not have been difficult to see the “problem” was a purely commercial dispute without any criminal elements, and Hui should have commenced civil proceedings to claim for the possession of the Containers instead of making a report to police. I disagree. First, I find on balance that Hui must have produced some documents when he made his report to the police on 16 August 2007. DPC47923 and DSGT385 said under cross-examination that Hui did provide some documents (“…… 類似單據呢啲 ……”) during the Preliminary Enquiry, but such documents only showed Hui to be a “代理人” (see §§254-255 above). There was no available evidence that DPC47923 or other police officers seized those documents (see §§254-255 above). In any event, due to (i) the lapse of time, (ii) submission of the police file to the Department of Justice for legal advice, and (iii) loss/destruction of the police file such that only parts and/or certain duplicate pages were available (see §123 above), such documents were no longer traceable. But the fact Hui did give some documents to the police when he made report to the police was corroborated by the Hui 4th WStmt in which Hui stated “另外[Hui] 已沒有其他單據可以向警方提供, 可以提供嘅都俾晒啦”. Secondly, it did not appear that the police had been dilatory in their investigations. They made enquiries with Hui as to the owners of the Goods/Containers, and (i) on 17 August 2007 Hui brought Liu to TSW Police Station to give the Liu PStmt together with documents evidencing ownership of the 2nd, 5th and 6th Containers (see §373 below), (ii) on 17 August 2007 Kwok and Zeng attended TSW Police Station with some documents which the police examined and then requested better documentary proof (see §373 below), (iii) on 19 August 2007 Kwok and Zeng returned to TSW Police Station and gave the Kwok PStmt and Zeng PStmt together with documents and photographs evidencing ownership of the 1st, 3rd and 4th Containers (see §377 below), and (iv) on 21 August 2007 the police made further enquiries with Zeng and 黎文海 whom Zeng referred to (see §378 below). But for reasons explained below, I find it was not appropriate for the police to defer police action until the aforesaid investigative steps were taken. Thirdly, I note it was in the course of the Preliminary Enquiry that Hui received a telephone call asking him to attend TSW Depot to collect the Containers as soon as possible. In my view, there was simply no time for the investigative steps suggested by Mr Sio, and it was proper for the police to seize the moment to take police action as they did. There was proper reporting by the investigation officer DPC47923 to his team leader DSCGT385, who in turn reported to then ADVC Crime TSWDIV CIP Yip before considered decision was made to mount police operation to accompany Hui to TSW Depot to gather evidence and/or to make arrests if and when “時機成熟”, which did not mean that arrest(s) would necessarily be made. Fourthly, I have in §§272-275 above explained the substance of the instructions given by CIP Yip to DSGT285 and the substance of DSGT385’s briefing to the Team 1 Officers, and it appeared that notwithstanding any label of “covert operation” or “control meeting”, the essence of such instructions was for DPC58096 to accompany Hui to the TSW Depot for collection of the Containers to ensure Hui’s safety and to gather further evidence, but there was authorisation from CIP Yip that should the circumstances require DPC58096 could pretend to be a goods owner although he was not to initiate such pretence. It was quite different from a devised undercover operation in which a police officer would adopt an assumed identity and carry out covert operation under an outright disguise. Fifthly, the Team 1 Officers understood that in the police operation to be mounted at TSW Depot, arrests might be made if and when “時機成熟”. DPC47923 explained under cross-examination that “時機成熟” meant DPC58096 (who would accompany Hui to enter TSW Depot) “…… 睇下得到幾多資訊喇, …… 睇下匯報咗咩嘢資訊畀我哋 ……”, so they would “…… 等下有咩嘢資訊, 睇下有冇人干犯咗勒索罪, 有的話,  先拉人嘅 ……”, “…… 唔會裝個局落去拉人㗎 ……”, so there might or might not be an arrest. Likewise, DSGT385 said under cross-examination “…… 時機成熟就採取拘捕行動 ……” meant “…… 就如果真係我哋去到現場嘅, 搜集到足夠嘅證據就採取呢個拘捕行動喇 ……”, “…… 睇下 …… 當其時同呢個被捕人所搜集到嘅資料或者對話、各樣喇, 同埋我哋自己本身針對呢單case有咩嘢要點, 我哋係足夠令我哋懷疑佢、相信佢同一單勒索案有關, 而採取一個拘捕行動 ……” DPC58096 said under cross-examination his instructions were to telephone DSGT385 when “…… 或者唔係叫「時機成熟」, 應該話「有咩嘢問題或者話真係有案件發生嘅, 你就打畀我喇」, …… 應該咁樣演繹 ……” I am not persuaded that at that stage (ie prior to the police operation at TSW Depot) the information available to the police was a pure commercial dispute with no possibility of criminality that should be resolved in civil proceedings and not by police action. In my view, based on Hui’s account during the Preliminary Enquiry, which was reported to DSGT385 and then to CIP Yip, there was reasonable basis for suspecting there had been unwarranted demand with menaces made at the meeting at the Restaurant, which was not detracted by unwilling payment of the amount demanded that was negotiated down from RMB50,000/Container to RMB30,000/ Container (see §260 above). In my view, CIP Yip’s decision and instructions for the police operation at TSW Depot (which instructions DSGT385 passed on to the Team 1 Officers) were a reasonable and appropriate response to Hui’s account, ie to gather evidence, and to see whether the events that would unfold at TSW Depot might reinforce the police’s belief or suspicion resulting from Hui’s account given at the Preliminary Enquiry (and might therefore lead to arrest(s)) or whether they might dispel the police’s concerns such that there would be no arrests. In my view, the police’s decision, instructions and actions at that stage before the police operation at TSW Depot were above criticism.

277.  I therefore disagree that in the period before the police operation at TSW Depot there was “no factual basis” for DPC47923 and/ or DSGT385 (ie the eventual arresting officers) to form any reasonable belief that anyone would be charged with blackmail or any reasonable suspicion that anyone would be guilty of blackmail.

(q)  At TSW Depot

278.  P3’s case  According to the P3 1^st WStmt, 2 Containers were delivered to the TSW Depot. While P3 was waiting at the entrance of TSW Depot “for [Hui]”, he was suddenly grabbed by police officers. One of the police officers handcuffed P3 (who was unhooded) with his hands behind his back drawing a big crowd of people. Before P3 was handcuffed, one of the police officers demanded P3 to telephone and ask P2 to come over to TSW Depot. P3 did as demanded. The arresting officer accused P3 of blackmail which P3 denied. P3 claimed that at the TSW Depot he fully cooperated with the police upon his arrest and never made any attempt to escape. P3 then claimed the police officers tore off the Guangxi C&E tapes that sealed the 2 Containers that had been delivered to TSW Depot, and broke open such containers. Later P2 came to the TSW Depot and was also arrested by the police.

279.  P3 claimed under cross-examination that he still had very good recollection of the incident (“記憶猶新”) since his arrest was “…… [P3] 一生人未見過, 好痛苦呢件事 ……” Under cross-examination, P3 said he arrived at TSW Depot shortly after 9:00am to wait for the Containers to be transported there from TM Depot. He had to go to TSW Depot earlier because he had to direct the container truck drivers upon their arrival “…… 拖到 …… 人哋對番指定嘅位置 ……” He breakfasted at the canteen, and waited for the Containers to arrive. It was “…… 好似十點幾、十一點 …… 約莫時間 ……11至12點……” that the first Container arrived. But the collecting party had not arrived, so P3 continued to wait. Later, the second Container arrived, “…… 佢離開嗰段時間大概一個鐘頭時間嘅 …… 即係12點到1點喥 …… 即係佢嗰個 ……拖頭, 應該 …… 來回都係一個鐘頭 ……” Then “…… 係差唔多係第二隻 [Container] 出現嘅時候 ……”, “…… 跟住就有兩個人, 一老一少嘅, [P3] 從未見過呢兩個人同 [P3] 交收 …… 老嗰個 [later known to be Hui] 指嗰個後生嗰個 [later known to be DPC58096] 係貨主 ……”, “……[P3] 唔識佢 ……”, “…… [P3] 叫佢同 [P1] 聯絡確定, [P1] 打電話畀 [P3] 「你就係貨主」, [P3] 就係咁講, 同 [P3] 講冇用 ……” But P3 knew neither man was WC Leung because “…… [P3] 見過 [WC Leung] 好多次, 做生意又做過幾次, 交櫃 ……”, and the 2 men did not say they represented WC Leung. P3 said “…… 你哋生保人, 唔緊要嘅, 你就同 [P1] 聯絡, 打咗電話畀 [P1], …… 聯絡到 [P1] …… [P1] 會打電話畀 [P3] 至交貨嘅 ……” As seen in §§246-247 above, P3 claimed under cross-examination he had no authority to, and would not, handle monetary matters such that it was for the party collecting containers to telephone P1’s staff and then for P1’s staff to telephone and confirm to him before release of the containers to the collecting party, but this was contrary to the P3 1^st WStmt which stated he was instructed to release the Containers one by one upon receipt of RMB30,000/Container without any mention of having to seek confirmation from P1’s staff.

280.  P3 then said under cross-examination “…… 跟住有兩部車衝出嚟 ……” with about 5 persons alighting from each car, “…… 唔清楚佢咩嘢人嚟個喎 ……”, “…… 撳住 [P3] …… 反鎖, 就叫 …… 開櫃喎 ……” (so P3 thought they were to about to seize the Containers), “…… 咁呢兩架車出嚟嘅人, …… 鎖咗 [P3] 之後先表露身分, 佢話係差人 ……”

281.  Although P3 in the P3 1^st WStmt and under cross-examination claimed that the police tore open the tapes of the Containers (fixed by Guangxi C&E) such that he thought they were trying to seize the Containers, such allegation did not sit well with the entry for 4:30pm on 17 August 2007 in the Investigation Report (see §375 below) that DPC47923 “致電環保署 (廢物進出口管制) 2xxxxxx7, 並由趙小姐接聽, 經了解案件後, 表示由於貨櫃未開條碼鎖, 而之前曾轉口所以相信無問題，現時不會到場檢查貨櫃” (my emphasis), which clearly set out that even on 17 August 2007 (ie the day after the arrests of P2 and P3), the Containers were still taped/locked.

282.  P2’s case  P2 claimed under cross-exmaination that he had not planned to go to TSW Depot on 16 August 2007. The P2 1^st WStmt stated that later on that day P2 received a telephone call from P3. P2 said under cross-examination that over the telephone “…… [P3] 話 [P3] 有事, 「你過一過嚟貨場吖」咁樣 …… 嗰時, 斷咗線喇 ……”, so he went to the TSW Depot. But even though P2 and P3 claimed the police officers demanded P3 to telephone P2 to come over to TSW Depot and he did so as demanded, according to P’s answer (1) in the P2 PStmt made literally a few hours after P2’s arrest, P2 said “ ……  最後 [P2] 收到公司電話, 表示 [MWS Co] [Chan] 方面有問題出左, 仲有差人截咗啲 [Containers], 咁 [P2] 就立即到 [TSW Depot] 了解, 整個過程就係咁多”, ie P2 went to TSW Depot pursuant to a telephone call from P1 and not P3. P2 did not offer any explanation for such obvious discrepancy. But the P2 PStmt sat well with DPC58096’s evidence that he saw P3 made a telephone call saying “唔洗送隻櫃嚟, 傾唔掂數呀”, which was consistent with a call to MWS Co or the container truck driver to withhold transport of the other Containers from TM Depot to TSW Depot. After all, P2 did not remain at TM Depot because, as he said, “…… 交理啲錢 [ie freight charges] 就走得㗎喇 ……” (see §238 above). Further, I have found that P2 did not identify himself at the meeting at the Restaurant (so Hui did not know the identity of the male person who spoke with him at the Restaurant) (see §237(e) above), but P2 and P3 did not explain how the police officers were able to identify P2 so as to demand P3 to call him. I find on balance that the police officers did not demand or require P3 to telephone and ask P2 to come over to TSW Depot.

283.  According to the P2 1^st/2^nd WStmts, when P2 arrived at TSW Depot, he saw P3 handcuffed behind his back, and P2 was suddenly grabbed on his shoulders by 2 police officers accusing him of blackmail and telling him he would be brought back to the police station, but P2 immediately denied the accusation. According to the P2 2^nd WStmt, P2 fully cooperated with the police officers upon his arrest at TSW Depot, and he never made any attempt to escape.

284.  Hui’s account  According to the Hui 1^st PStmt made on 16 August 2007 shortly after completion of the police operation at TSW Depot,

“12) 同日大約12點, [Hui] 就同個差人 [ie DPC58096] 到咗 [TSW Depot], 當時 [Hui] 見到 [Hui] 個夥計 [Wong] 同一個男人 [later known to be P3] 傾緊計, 於是 [Hui] 就同個差人 [ ie DPC58096] 行埋去, 個男人就話黎送 [Containers] 嘅, 於是 [Hui] 就叫佢同個 [DPC58096] 講, 話佢知係物主。期間，[Hui] 聽到呢個男人問 [DPC58096] [Container] 係咪你呢, [DPC58096] 就話係, 之後個男人話要3萬蚊至會俾番 [Container] 佢, 咁 [DPC58096] 就話我無三萬蚊喎, 咁個男人就話冇錢就唔會俾番 [Container] 我哋。之後 [DPC58096] 又話你點解要我俾錢你只肯俾返隻櫃我, 個男人話我唔知, 我只係中間人嚟送 [Container] 唧, [Container] 係大陸又上又落唔駛錢呀, 總之無錢我就唔會俾返 [Container] 你。之後冇幾耐, [Hui] 就見到有其他便衣差人入嚟, 跟住其中一個差人就幫咗 [Hui] 行埋一邊。期間, [Hui] 見到有一架拖車拖住 [Hui] 其中一隻 [Container], 於是 [Hui] 就即刻同差人講話 [Container] 係 [Hui] 嘅。

13) 冇幾耐, [Hui] 又見到另一架拖車駛拖住 [Hui] 另一隻 [Container] 入嚟, 於是 [Hui] 即刻再同差人講, 之後啲差人就截停咗架車。 [Hui] 就再對差人講話呢隻 [Container] 亦係 [Hui] 嘅。

14) 大約3點半到, 差人就帶咗 [Hui] 返 [TSW Police Station]。”

In Hui’s answers (9)-(10) to DPC54800’s questions (9)-(10) as recorded in the Hui 1^st WStmt, Hui confirmed he had not previously met P3 and/or the driver who hauled the second Container to TSW Depot.

285.  D’s case   According to the Investigation Report, at 12:55pm on 16 August 2007, DSGT385 led DPC33524, DPC47923, DPC54197 and DPC58417 from TSW Police Station to TSW Depot for police investigation. DPC47923 said under cross-examination he went to TSW Depot in a private car, but he could not remember whether or not he went in the same car as DSGT385 and/or how many cars there were. He said the whole DCI Team 1 went to TSW Depot, and DCI Team 5 went there a while later.

286.  The DPC47923 1^st WStmt and the DSGT385 WStmt stated that at 1:15pm their team lay in ambush near Ping Ha Road outside TSW Depot. DSGT385 said under cross-examination that TSW Depot was a large container depot, so the ambush party was at least 30-40m away, “…… 喺出面個路口等嘅 ……” DSGT385 could see Hui driving his car (with DPC58096 as sole passenger) into TSW Depot, but could not see them after they entered the depot.

287.  According to the DPC58096 WStmt, at 1:15pm Hui drove DPC58096 to TSW Depot in Hui’s car. Hui led DPC58096 to the side of a container inside TSW Depot. DPC58096 saw 2 male persons, one later known to be P3. DPC58096 said he did not know who the other male person was or whether he was connected to this case. In my view, this other male person was likely to be Wong (see §284 above). DPC58096 said under cross-examination that he could not see and did not know where DSGT385 lied in ambush.

288.  DPC58096 said under cross-examination that in the 1-2 minutes after his arrival at TSW Depot, he did not consider it necessary to reveal his police identity. He was tasked to accompany Hui to ensure his safety, “…… 未知係咪真係有咩嘢案件發生㗎嘛, …… 如果咁快表露身分, 咁對 [DPC58096] 調查有冇影響呢? ……” Then according to the DPC58096 WStmt, DPC58096 saw Hui pointing at him and telling P3 that “佢至係物主”, so P3 turned to ask DPC58096 “你係咪物主?” to which DPC58096 said yes. DPC58096 explained under cross-examination that when Hui spoke with P3 DPC58096 was standing behind Hui, so DPC58096 did not catch clearly what they said until Hui suddenly turned his head and pointed to DPC58096 saying DPC58096 was the owner of the Containers.

289.  According to the DPC58096 WStmt, P3 then said to DPC58096 “每個櫃你比返3萬蚊我, 我先比返個櫃你”, so DPC58093 asked “我點解要比3萬蚊你?”. P3 said “我唔知, 我中間人嚟送櫃嘅, 代收嘅啫, 隻櫃喺大陸又上又落唔洗錢呀, 總之你唔比錢我, 我唔會比返個櫃你”. The DPC58096 WStmt then went on to state “…… 此時 [DPC58096] 見 [P3] 打電話, 並話 「唔洗送隻櫃嚟, 傾唔掂數呀」”. P3 under cross-examination denied that he had the above conversation with DPC58096 and/or that he made such telephone call in the presence of DPC58096.

290.  DPC58096 said under cross-examination that before Hui spoke, “…… 其實 [DPC58096] 係估唔到 [Hui] 會話「[DPC47923] 係貨主」, …… 其實我哋做警察嘅, 有時做案件有樣嘢叫「應變」嘅, 我哋唔會知道即係嚟緊會發生咩嘢事嘅, 咁你去到呢一刻, 突然之間嗰個人話「[DPC47923] 係貨主」, 咁為咗要繼續去調查, 方便去調查或者搜證嘅話, 咁 [DPC58096] 咪應該會配合下 …… [DPC58096] 覺得係要喇 ……” DPC58096 would not say P3 tried to blackmail him, and DSGT385 also agreed under cross-exmaimation that DPC58096 would not be blackmailed as he was a police officer, and DPC58096 did not report to DSGT385 that during his dialogue with P3 he was blackmailed.

291.  DPC58096 recollected under cross-examination that he was about 4-5ft away from Hui and P3, who were standing close together when they had their conversation. DPC58096 said the other male person (whom this court believed to be Wong, and whom DPC58096 said was within his line of sight some distance away, ie about the length between the witness stand and the jury box in the courtroom) “…… 行嚟行去嘅, 其實, 佢有時會行埋去 [P3] 嗰度, …… 因為側近其實有啲貨櫃嘅, 咁佢可能會有時行咗去一個貨櫃側近, 又行番返嚟 ……” So DPC58096 said whilst he himself, P3 and Hui heard the conversation in §289 above, he was not sure whether the other male person “…… 行過嚟嗰陣時有冇聽到 ……”

292.  DPC58096 said he did not pay attention to the time elapsed between Hui’s/his arrival at TSW Depot at 1:15pm and the time he started to converse with P3. After alighting from Hui’s car, they had to walk into TSW Depot before they saw anyone (which DPC58096 thought might take 2-3 minutes but should not exceed 10 minutes). DPC58096’s conversation with P2 was not rushed or pre-planned (and would have taken about 5 minutes), and about 8-10 seconds after such conversation DPC58096 saw P3 took out his mobile telephone to make a telephone call, which events took about 5-6 minutes. DPC58096 then “……  諗一諗到底發生咩嘢事先嘅 …… 跟住發覺, 其實係咪已經有案件發生呢?  [DPC58096] …… 跟住打電話畀 [DSGT385] …… 嗰個考慮同埋跟住係 ……一分鐘喥喇 ……”, “…… [DPC58096] 只係覺得嗰一刻, 發覺其實 [Hui] 係攞唔番啲貨…… 所以 [DPC58096] 通知 [DSGT385] 過嚟喇 ……” The above events altogether took about 15 minutes (which sat well with (a) the DPC47923 1^st WStmt which stated that at 1:30pm DPC58096 notified the police party outside that time was right for action, and (b) the DSGT385 WStmt which stated that at 1:40pm he was notified by DPC58096 that they could enter TSW Depot).

293.  DPC58096 also did not pay attention to the time elapsed between his telephone call and DSGT385’s arrival at the scene. DSGT385 said under cross-examination that after DPC58096 telephoned him, he and the police party drove their cars into TSW Depot to where DPC47923 / Hui were, which would take a few minutes “…… 因為個場好大 [ie had to drive for 30-40m], 我哋需要搵番佢哋個位置出嚟嘅, 唔係話 [DSGT385] 一去到就可以望到「哦, 佢哋喺嗰度」咁樣, 唔係嘅 ……” Likewise, DPC47923 said under cross-examination that TSW Depot was a large place, and the police party had to look for DPC58096 and Hui.

294.  In any event, DPC47923 and DSGT385 said under cross- examination that at/about 1:45pm the ambush police party arrived at the scene where DPC58096 was.[81] The DSGT385 WStmt stated that upon arrival at TSW Depot, DSGT385 saw DPC58069 with Hui and P3, so he revealed his police identity to P3. According to the DPC58096 WStmt, DPC58096 reported to DSGT385 what P3 had said to him, and he handed over the investigation to DSGT385 and the arrived police party. DSGT385 in the DSGT385 WStmt stated and under cross-examination also said DPC58069 immediately reported to him that “……  [P3] 表示唔俾每個 [Container] 3萬元係唔會交還 [Container], 並說自己只是中間人 ……”

295.  The DSGT385 WStmt explained that DPC58096’s report to him added to his suspicions: “…… 加上[Hui] 同[FCGC Co Ltd] 協議內地收到[Containers] 被才俾運費, 現在未完成付運為何強行收錢; 點解要搵一個中間人來收錢; 一筆正常收費為何可以講價由5萬減至3萬; 就算追討運費可循法律途徑追討, 為何強行扣押 [Containers]; 根據以上種種疑點相信 [P3] 與這宗勒索案有關, 於是 [DSGT385] 將上述疑點告知 [DPC47923] ……” (my emphasis)

296.  DSGT385 said under cross-examination he briefed investigation officer DPC47923 that “…… DPC58096頭先 …… 同 [P3] 所講嘅對話喇, 同埋 [DSGT385] 本身所覺得嘅懷疑之處喇 [see §295 above] ……”, “……. [DSGT385] 同 [DPC47923] 講完之後, …… [DSGT385] 覺得--而家初步呢個階段係有足夠嘅懷疑囉可以拘捕 [P3] ……” DSGT385 explained he “…… 懷疑 [P3] 有份參與勒索 [Hui] ……”:

“首先, 我哋去到 [TSW Depot], [P3] 出現喇，接觸到 [Hui] 喇, 同埋自稱係呢個中間人喇, 同埋仲係有講話「每個櫃要30,000鈫先至肯交番個櫃畀你」, 雖然 …… 係由 [Hui] 介紹 [DPC58096] 係貨主, 但當其時 [P3] 即係所講嘅嘢, [Hui] 亦都在場聽到嘅, [DSGT385] 相信當其時 [Hui] 聽番說話「每個櫃要30,000鈫先至肯交櫃」, [Hui] 同樣係受到一個威脅嘅, 加上 …… [DSGT385] 所講嘅種種 [DSGT385] overall成單案件所覺得嘅懷疑之處, 譬如中間人, 點解會搵個中間人嚟收錢呢? 即係以 [DSGT385] 當時當差二十年嘅經驗, 逢親勒索案件去收錢嘅, 大部分都係搵 …… 向嗰他人勒索嘅係無關嘅人去收錢嘅, 變咗以 [DSGT385] 經驗覺得, 即係如果一單正常嘅交易, 點解唔搵番一個agent去同番即係個生意拍檔去傾呢? 既然仲係有咁大嘅問題話, 呢頭使好多錢, 點解要搵一個冇接觸過嘅人去傾呢? 而當其時, 佢哋亦都冇表示到自己係呢間公司嘅職員 ……”

“…… [P3] 冇表示過自己係員工身分, [P3] …… 不嬲都話自己係中間人 ……”, “…… 就算係 …… 使咗啲錢, 佢哋都可以以法律途徑去追究, 點解用扣貨呢個威脅呢? 即係 [DSGT385] 基於上述種種, [SDGT385] 就相信 [P3] 係同呢單勒索案有關, 所以作出拘捕 ……”

297.  In coming to this view, DSGT385 knew blackmail was a rather serious offence, but he was familiar with its ingredients, including the requirement for “demand” “with menaces”. DSGT385 said under cross-examination that at that stage the police officers were not concerned with whether or not P3 would eventually be prosecuted, “…… 檢唔檢控 …… 喺我哋階段, 我哋控制唔到嘅, 因為檢控已經係之後, 再要由成個case查晒, 或者甚至乎攞legal嚟決定檢唔檢控佢嘅 …… 但 [DSGT385] 就係話拘捕, [DSGT385] 覺得喺呢刻, 喺當時嗰刻係已經有足夠懷疑令 [DSGT385] 要拘捕 [P3] ……” 

298.  DSGT385’s aforesaid evidence was corroborated by DPC47923’s testimony under cross-exmaination. DPC47923 said when the police party located Hui and DPC58096, he also revealed his police identity and checked it was P3 who spoke with DPC58096 / Hui. DPC47923 said after DPC58096 reported to DSGT385, DSGT385 then briefed him as follows: “…… 咁 [P3] 曾經講過一樣嘢就係話係佢自己係一個中間人，…… 即係話「如果你唔畀錢我哋，就唔會畀番啲貨你㗎喇」咁 ……”

299.  DPC47923 said he then made further enquiries with P3, ie “……咁 [DPC47923] 問 [P3] 「你係咩嘢中間人呀？…… 其實你喺呢件事係咩嘢角色呀？」咁樣樣, 即係大致上咁嘅意思喇 ……”, “…… 跟住 [P3] 冇答 [DPC47923] 嘅 ……”, “…… 跟住 [DPC47923] 唔記得咗再問咗 [P3] 乜嘢 …… 因為 [P3] 都係冇回答 [DPC47923] 嘅嘢, 咁 [P3] 即係迴避 [DPC47923] 喇, 即係唔係一個好合作嘅態度喇  ……” Likewise, DSGT385 said under cross-exmaination that “…… 以 [DSGT385] 記憶, [DPC47923] 再係查問咗 [P3]一段時間嘅 …… 即係好短, [DSGT385] 諗 [DPC47923] 即係 …… 再問 [P3]--澄清咗一啲說話 ……” DSGT385 believed he would have heard the clarification DPC47923 sought from P3, but by the time of the Preliminary Trial he could not remember what questions DPC47923 asked P3. DSGT385 agreed “…… [DPC47923] 當其時查問應該係冇警誡嘅 ……”

300.  The DPC47923 1^st WStmt stated that taking into account DGT385’s briefing, “…… 加上因一早傾好要收到貨才比錢, 而現在根本未完成運送, 另外一項正常的交易點解要中間人收錢、同時亦唔可能傾好5萬元現時會減至3萬元, 所以確實有理由相信 [P3] 與該宗勒索案有關……” (my emphasis). DPC47923 added under cross-examination that “…… 因為 [P3] 同 [Hui] 同埋DPC58096所講嘅對答, 就更加 [DPC47923] 都認為係夠條件去拘捕 [P3] 喇 ……”

301.  DPC47923 fairly agreed that prior to the arrest of P3 he did not know for sure why the Containers were detained, which party was ultimately in default or which party should ultimately bear the shipment charges, but he disagreed this was just a commercial dispute because in his subjective view,

“…… 咁你冇理由, 正正常常, 如果係一單生意嘅, 你同人講出話要50,000鈫一個櫃嘅, 咁但係點解突然間, 你可以轉咗口話「30,000鈫都okay嘅」咁樣, 咁如果計起 [6 Containers] 嚟講, 一來一回係冇咗十幾萬個喎, 咁點解你都會去認同呢樣嘢呢？咁點解我唔去實質係攞番就係RMB50,000就RMB50,000呢, 如果我使咗50,000鈫嘅費用, 點解會--突然間會變咗30,000鈫都--大家都認同呢, 咁樣, [DPC47923] 覺得呢一方面係 …… 有個所謂嘅疑點喺度囉。……同埋一樣嘢就係話呢, 一路以嚟, …… [Hui] 係同緊一個叫做 [LB Tang] 嘅負責人傾談㗎嘛, 成件事, 咁點解突然間大家見到面喇, 咁佢又唔講嘢, 就交咗畀 [P2] 去處理呢件事呢? [P2] 開頭係唔知係咩嘢角色嘅, 咁呢一方面亦都有一個疑點喺度囉 ……”

302.  According to the DPC47923 1^st WStmt (as confirmed by the DSGT385 WStmt), at 1:55pm DPC47923 declared arrest of P3, and administered verbal caution to which P3 said “我都係跟 order 被事啫”.[82] DPC47923 explained under cross-examination that he and not DPC58096 arrested P3 “…… 因為 [DPC47923] 係首先去接觸咗 [P3] 先, 而DPC58096佢嘅身分就只不過係 …… 陪同 [Hui] 喇, 咁而 [DPC47923] 去到 …… 主要就係話去確認咗啲證據合適喇, 咁 [DPC47923] 就去作出個拘捕, 因為 [DPC47923] 係一個 [investigation officer], 調查員 ……” DPC47923 said under cross-examination that he made the decision to arrest P3. DSGT385 considered he and DPC47923 together made the decision to arrest P3 after DPC58096 gave his report to DSGT385 (including a report about the conversation among P3, Hui and DPC58096) and after DGT385 had discussions with DPC47923.

303.  After arresting P3, DPC47923 handcuffed him, “原因是以防逃走” (see DPC47923 2^nd WStmt). According to the DPC47923 1^st WStmt, P3 was arranged to wait on board a government private car because there were other matters concerning “證物貨櫃” that had yet to be resolved. According to the DPC47923 1^st WStmt, Hui pointed to a Container at TSW Depot as 1 of the 6 Containers he was about to collect.

304.  Another Container  According to the DPC47923 1^st WStmt, at/about 2:30pm, Hui said a Container that was being hauled into TSW Depot by a container truck was another of the 6 Containers, so DSGT385 and other police officers intercepted the container truck and made enquiries with the driver. This was corroborated by the DSGT385 WStmt which stated that at 2:30pm Hui confirmed the 2 Containers at TSW Depot were part of the 6 Containers involved in the case, and subsequent investigation revealed the other 4 Containers were at TM Depot.

305.  Arrival of P2 According to the DPC47923 1^st WStmt and the DSGT385 WStmt, at 2:50pm, a male of fat build (later known to be P2) approached DPC47923 to ask why the 2 Containers were intercepted and why P3 was arrested, so DPC47923 explained the situation to him. Meanwhile, Hui came over pointing at P2 and saying P2 was the person who blackmailed him to pay RMB50,000/Container at the Restaurant, and who left his mobile telephone number for liaison. DPC47923 reiterated under cross-exmaination that “…… [Hui] 就同 [DPC47923] 講喇, [P2] 就係琴日 …… 喺 [Restaurant] 嗰度同 [Hui] 傾嗰個, 話要50,000鈫攞番啲貨, 後屘再傾完之後就話30,000鈫成交咁樣樣嗰個人, 咁所以 [DPC47923] 就更加相信 [P2] 就係其中一個有份就係勒索 [Hui] 嘅人, 所以 [DPC47923] 就拉 [P2] 喇 ……”

306.  Departure of DPC58096  According to the DPC58096 WStmt, at 3:05pm DPC58096 returned to TSW Police Station. DPC58096 said under cross-examination that after he left the scene at TSW Depot, he did not know where the other male person (whom Hui said and this court believed was Wong) was, but he confirmed such male person was still there when DSGT385 arrived at the scene.

307.  Arrest of P2 According to the DSGT385 WStmt and the DPC47923 1^st WStmt, at 3:08pm DPC47923 declared arrest of P2 in connection with the “blackmail” case and administered verbal caution. After caution, P2 said “我無勒索, 我照單做啫”.[83] After arresting P2, DPC47923 handcuffed P2, “原因是以防逃走”.[84] DSGT385 said under cross-examination that after P2 was arrested DPC47923 informed him of such arrest.

308.  Return to TSW Police Station DSGT385 said in re-examination that SIP Li reported for duty in the afternoon and attended TSW Depot at/about 3:15pm (ie after P2 and P3 were arrested) when P2 and P3 were still at TSW Depot, but DSGT385 could not remember whether SIP Li had any contact with P2 and/or P3 at TSW Depot. According to the DPC47923 1^st/2^nd WStmts, at 3:20pm DPC47923 escorted P2 and P3 to depart TSW Depot,[85] and at 3:30pm they arrived at TSW Police Station.[86] According to the DPC47923 2^nd WStmt, at TSW Police Station DPC47923 was responsible for guarding P2 and processing him through the necessary procedures for a detained person.

(r)  Documents

309.  DPC47923’s evidence  DPC47923 was asked under cross- examination whether he body-searched P2 at TSW Depot, and he said “…… [DPC47923] 冇乜印象, 就係都初步㗎咋, [DPC47923] …… 冇話好detail咁搜身囉, 相信係初步喇 ……” The DPC47923 2^nd WStmt stated that whether at TSW Depot or at TSW Police Station, “…… [P2] 皆沒有向 [DPC47923] (或其他警務人員) 出示任何文件、或作出任何解說, 解釋有關在 [TSW Depot] 內被警方檢獲作證物的 [6 Containers] 的擁有權問題。[DPC47923] (或其他警務人員) 亦沒有從 [P2] 身上撿取任何有關 [6 Containers] 的擁有權的文件 ……”, which statement DPC47923 under cross-examination verified to be accurate. By the time of the Preliminary Trial, DPC47923 could not remember whether he had taken any documents from P2’s person upon his arrest, but explained that had he seized documents from P2’s person whether at TSW Depot or at TSW Police Station, he would have been required to record such seizure in his police notebook (which was not brought to court) and in the Investigation Report (which had no such record).

310.  P2’s case  In the P2 PStmt made very shortly after P2’s arrest on 16 August 2007, there was no mention of any document shown/presented to the police by P2, or seized by the police from P2’s person, or found by the police in P2’s possession.

311.  According to the P2 1^st WStmt made in 2010, the police officers escorted P2 from TSW Depot to TSW Police Station, and P2 fully cooperated with police officers during his detention/interview at TSW Police Station with no attempt to escape. Interestingly, the P2 1^st WStmt stated that P2 was body-searched at TSW Police Station, and “the policemen took away all [his] documents such as contracts, shipping and banking documents etc from [his] possession without giving [him] receipt thereof”.  In short, the P2 1^st WStmt made in March 2010 stated it was the police officers who seized the aforesaid documents from him, but (as P2 acknowledged under cross-examination) the P2 1^st WStmt did not mention P2 gave explanation and/or showed documents to the police officers at TSW Depot.

312.  But subsequently, the P2 2^nd WStmt made in 2012 stated that at TSW Depot P2 immediately denied the accusation of blackmail “because [P2] believe [Ps] (including [himself]) have the rightful physical possession of the [Containers]. [P2] showed the policemen at the scene documents such as contracts, shipping and banking documents etc to prove [their] possessory title in respect of the 6 [Containers] of [the Goods]. [P2] asked the policemen repeatedly to investigate the matter thoroughly”.

313.  Throughout 2010 to 2012, P2 was legally represented by CFC. When the discrepancy in §§311-312 above was pointed out to P2, all he was able to say was “…… 因為時間太長, [P2] 都唔係好記得 ……” When pressed, P2 said when he attended CFC’s offices in 2012, “…… 當時 [P2] 係唔記得晒啲嘢吖嘛 …… [P2] 已經就有咗精神病喇, …… 醫生證明到 [P2] 係精神病 ……” When queried as to why he was able to give the P2 2^nd WStmt when he suffered mental illness, P2 claimed he still suffered mental illness at the time of the Preliminary Trial after 8 years of medical treatment, but “…… [P2] 好精神先去做 [P2 2^nd WStmt] 㗎嘛, 尾後先去做㗎嘛, 律師嗌 [P2] 去做㗎嘛, [P2] 就照個實情講畀個律師聽吖嘛 ……” But more significantly, the P2 PStmt made on the very same day after his arrest did not mention he showed any documents to the police officers (see §310 above).

314.  When this court queried whether P2 showed documents to the police officers or whether the police officers seized documents from him, P2 claimed the police officers “…… 係搶晒 [P2] 嘅 …… 一搜到 [P2] 身, 一去到撳住[P2] 就搜身喇…… 所以攞晒 [P2], [P2] 覺得係 [police officers] 唔合理, [P2] 就走去報ICAC嘅 …… ICAC嗰度 …… 有 [P2] 紀錄喺度嘅 ……” (my emphasis), which suggested the seizure of documents from P2’s person happened at the scene of arrest at TSW Depot. When queried on the discrepancy in his oral testimony and the P2 2^nd WStmt (see §312 above), P2 said “…… [P2] 就顯示呢兩份文件畀 [police officers] 睇囉 ……就嗰份就係船公司嗌 [P2] 提貨嘅嗰份文件 [ie Mark Shipping’s 提貨通知], 同埋嗰個 [WC Leung] 同 [P1] 簽嗰份合同 [ie 代理報關委托書 (with 委托報關協議書 endorsed thereon)] …… 咁 [police officers] 鎖住[P2] 喇 ……” (my emphasis), which suggested only 2 documents rather than the Documents were shown/presented to the police officers at the scene of arrest at TSW Depot. Such testimony only added confusion to P2’s evidence.

315.  When P2 was asked to confirm whether he showed the aforesaid 2 documents to the police officers who then seized the rest of the documents from his person, P2 gave evidence that the documents were in his bag, and “…… 當時嘅情況係咁嘅, [P2] 去到 [TSW Depot], 咁 [police officers] 問 [P2] 邊個, 咁 [P2] 話 ……「喂, 你點解鎖住我嘅伙記呀？……」「咁佢哋係邊個呀？」咁 [P2] 話「我哋係交櫃嘅」, [P2] 就畀咗份 …… [Mark Shipping] 嘅提單 [ie 提貨通知] 畀 [police officers] 睇, 跟住就畀埋嗰個合約 [ie 代理報關委托書 (with 委托報關協議書 endorsed thereon)] [police officers] 睇, 咁又一攞攞咗, 就乜嘢都冇講, 就撳低 [P2] 喇, …… 就搜 [P2] 個包喇, …… 咁 [P2] 話「喂, 唔得喎, 我要嗌律師嚟喎」, 「你唔好嗌律師呀」, 咁鎖咗 [P2] 上車 ……” As for the other documents, P2 said “…… [policemen] 一早攞咗喇，[P2] 都冇聲出 …… [police officers] 話「你犯人，你講咁多嘢做咩嘢呀？」咁 ……”

316.  But the above did not sit well with P2’s other evidence under cross-examination that claimed 代理報關委托書 (with 委托報關協議書endorsed thereon) “…… 就畀警察攞咗 [P2] 走, 搜到 [P2] 身, 攞咗 [P2] 走 ……” Further, the P2 1^st/2^nd WStmts did not mention P2 was pressed down and body-searched at the time of his arrest at the TSW Depot. But all P2 could say was CFC did not ask him about such matters, “…… [P2] 唔係樣樣嘢要講畀律師聽㗎嘛 …… 律師問 [P2] 咩嘢, [P2] 就講咩嘢㗎喇嘛 ……” But when asked why he did not take the initiative to tell CFC about the police officers’ wrongful conduct when CFC legally represented him in this action to sue D for compensation in respect of such wrongful conduct, all P2 could say was “[P2] 就冇講呢啲嘢, 當時冇講呢啲嘢”.

317.  Further, when pressed on why the P2 1^st WStmt stated P2 was body-searched at TSW Police Station (not at TSW Depot) when the police officers took away his documents such as contracts, shipping and banking documents etc from his possession without giving him receipt thereof, P2 claimed “…… 當時嗰個情況好混亂嘅, 好多人嘅 ……”, “…… 就 [P2] 係感覺到 [police officers] 一早攞晒 [P2] 啲文件, [P2] 就唔知喺邊度攞 ……”, “…… 去到差館嗰時 …… [P2] 包裡面全部文件冇晒 ……”, “…… 去到差館 …… 再搜 [P2] 身, 嗰時 [policemen] 搜唔到嘢 ……” This still contradicted the P2 1^st WStmt that the police officers took away his documents upon body-search at TSW Police Station. P2 then claimed that at the time when he made the P2 1^st WStmt, “…… 咁 [P2] 就覺得--個律師話「佢搜你身喇」, 即係咁樣喇, 「啲文件冇晒喇」咁樣, 個律師就咁講 ……”, “…… [P2] 唔知呢啲嘢喎, 因為法律嘅嘢, [P2] 唔識個喎 ……”

318.  During cross-exmaination, Mr Lam drew P2’s attention to the RASoC filed on 28 October 2011 that pleaded upon seizure of the Containers at the TSW Depot, “…… [P2] explained to [Team 1 Officers] that [Ps] have the right to possession to the Goods by showing them various documents, including contracts, shipping and banking documents, as evidence of [Ps’] entitlements to the seized goods (“the Documents”) ……” (§10 – see footnote 4(a) above), and that also contrarily pleaded “…… [when P2] arrived at [TSW Depot], he was immediately, wrongfully and without reasonable and probable cause arrested and handcuffed by DPC47923 on suspicion of blackmail. At the time of the arrest, [P2] had in his possession the Documents but was not given the opportunity to show and explain to the DPC47923 or any other police officers at [TSW Depot]” (§22 – see footnote 4(f) above) and “[both P2 and P3] were taken to [TSW Police Station] …… later on the same day for body searches and investigations. The Documents were seized from [P2’s] possession without giving him receipt ……” (§23 – see footnote 4 above).

319.  P2 claimed that “...... 警察要證實 [P2] 身分㗎嘛 …… [P2] 去到 [TSW Depot] 嗰陣時, 咁 [P2] 就話 …… [P2] 喺度做嘢, 交番啲櫃畀人哋, 咁嘅身分囉 ……”, “…… 如果個差佬唔證實 [P2] 身分, 點會拉 [P2] 呀 ……”, so in respect of §22 of the RASoC, “…… [P2] 唔知 [CFC] 點做, …… [P2] 唔識 [RASoC] 喎, …… [P2] 唔肯定” whether or not it was CFC’s problem, “……. [P2] 就係唔係好清楚嗰啲嘢, 因為 [P2] 覺得唔係咁嘅 ……” But then §10 of the RASoC also did not sit well with P2’s evidence under cross-examination that at the TSW Depot he only voluntarily showed Mark Shipping’s 提貨通知 and 代理報關委托書 (with 委托報關協議書 endorsed thereon) to the police officers, and the rest of the documents were seized from his bag upon body-search.

320.  In D’s requests for FBP of the RASoC dated 1 August 2012, Ps were asked inter alia (a) to identify with full particulars each and every document that comprised the Documents P2 showed to the Team 1 Officers that evidenced Ps’ entitlement to the seized Goods as pleaded in §10 of the RASoC, and (b) to give full particulars of each and every occasion on which the Documents were allegedly presented. In the 28/8/12 FBP (verified by inter alia SoT by P2 for himself and on behalf of P1), Ps gave particulars and copies of the Documents (see footnote 3(b) above) and averred that the Documents were “presented by [P2] to the police officers …… before [P2’s] arrest by DPC47923 at the scene of the arrest on 16 August 2007”.

321.  But P2 claimed under cross-examination not all the Documents identified in the 28/8/12 FBP were seized by the police. Indeed, P2 confirmed代理報關委托書 (with 委托報關協議書endorsed thereon), 委托書, 繳款通知書 and 提貨通知 together with (a) “…… [P2]嗰張廣西倉務嗰張發票, 嗰張收據 ……” and (b) the Cargo Manifest were seized by the police. P2 said in respect of (a)-(b) above, “…… [FCGC Co Ltd] 嘅, [P2] 交嘅錢畀佢嘅收據畀番 [P2] 嘅, 咁另外 …… [WC Leung] 畀 [P2] 嗰張清單 [ie Cargo Manifest], 嗰 [6 Containers] 嘢入面嘅清單, …… 畀差人收到嘅 …… 就冇簽收番畀 [P2] 嘅 ……”, “…… [P2] 畀差佬拉 [P2] 嗰時 …… 全部收晒 [P2] 嘅，…… 同埋 [P2] 發票、同埋[P2] 嘅收據，冚𠾴唥攞晒 [P2] 嘅 ……” (my emphasis). P2 insisted he did have the Cargo Manifest because “…… [P2] 收到櫃, [P2] 知道 [Cargo Manifest] 裡面有乜嘢, [P2] 就傳咗畀廣西報關, 咁呢張 [Cargo Manifest] 嘅底就留喺 [P2] 自己嗰度嘅 …… [P2] 就畀差人拉咗, 就收咗 [P2] 去, [P2] 而家都冇辦法證實, 證實張 [Cargo Manifest] 點樣用途”.

322.  When asked why §321(a)-(b) above were not mentioned as part of the Documents identified in the 28/8/12 FBP, P2 said “[CFC and P2] 冇傾過呢樣嘢, 律師又冇問 [P2] 呢樣嘢, [CFC] 覺得呢樣嘢唔重要, 即係覺得 [P2] 嗰一份清單唔重要。……當時 …… [P2] 在場吖嘛, …… 係 [P2] 同個律師…… 講畀個律師聽吖嘛。…… [P2] 同律師講咗嘅, [CFC] 話「每樣嘢嘅正本同埋每樣嘢嘅證據就唔需要講喇」咁樣, 咁 [P2] 就同 [CFC] 講 ……「我報咗ICAC個囉喎」咁樣, 「到時會--ICAC係攞番喇」…… 但 [P2] 唔識法律呀 ……” When further pressed, P2 said “[P2] 畀人攞走咗嗰時, [P2] 冇晒證據㗎喇, …… 講乜都冇用㗎, 個律師同 [P2] 講「你講乜都冇用嘅」, 咁 [P2] 喺度嗰陣時, 第一日拉到 [P2] 去到 [TSW Depot] 嗰時, [police officers] 拉埋 [P2] 一邊就搜晒 [P2] …… 全部攞走晒 [P2], [P2] 話「你唔--咁樣唔得個喎，我嗌律師嚟㗎」咁樣, [police officers] 話「你唔好嗌律師, 嗌律師就整死你㗎」咁, 咁 [police officers] 就 …… 鎖咗 [P2] 返差館喇, 之後一路都冇提到喇 ……” P2 said on the following day (ie 17 August 2007), “…… [P2] 去ICAC報咗案嘅, [P2] 就見 [police officers] 唔合法, 即係 …… 唔啱道理 …… [P2] 所有嘢畀 [police officers] 攞晒, 拉 [P2] 嗰時, 喺場嗰度 ……”

323.  Still later under cross-examination, P2 said “…… [Cargo Manifest] 係 [WC Leung] 畀 [P1] 嘅, [WC Leung] 委托 [P1] 做嘢嗰時, …… [Cargo Manifest] 呢張清單入面有咩嘢呀, [P2] 咪寫有咩嘢, 有銅線、有鋁線嗰啲嚟嘅啫, …… 我哋個行規, 嗰啲就叫「清單」……”, WC Leung “…… 就係委托 [P1] 畀 [P2] 嘅 [Cargo Manifest] 嚟嘅, 畀 [P2] 睇過 …… 咁 [P2] 睇完之後, [P2] 就要畀報關公司嘅, [Cargo Manifest] 裡面講廢五金, 所以 …… [P2] 就留喺 [P2] 身邊嘅, 咁畀差人收咗 [P2] 去, 就冇畀番 [P2], 連埋 [P2] 啲發票、咩嘢, 攞晒 ……”,  “…… 所以 [P2]提供唔到呢份嘢畀律師，所以 [P2] 就冇提到呢份嘢”. When asked why he could not have explained he was unable to provide a copy because it was taken by the police, “…… 咁個律師冇提 [P2] 吖嘛 ……” But P2’s allegation that he was unable to provide copies of the documents he showed/presented to the police officers and/or seized from his person or his bag during body-search without receipt given to him did not sit well with §9(b) of Ps’ Reply that averred P2 produced photocopies of such documents to the Team 1 Officers on the occasions he answered bail at TSW Police Station in order to claim possessory title of the Goods (see §17(ii) above).

324.  P2 said under cross-examination that 企業法人營業執照 and the Invoice had nothing to do with him, that he did not show them to the police, and that the police did not seize them from him or question him about them. When pressed on why then the 28/8/12 FBP pleaded that he presented these 2 documents to the police, P2 insisted “…… 警察冇攞走呢兩份文件個喎 …… [P2] 唔清楚 [CFC] 講咩嘢, [P2] 唔知呀, 文件嘅嘢唔係 [P2] 做 …… [P2] 都唔識做文件 ……” But when P2 was reminded the 28/8/12 FBP was verified by his own SoT, all he could say was “…… [P2] 確認就係, 當時 …… 佢講話係要 …… 去打官司, …… 同埋 [P2] 係畀人拉咗, 呢樣嘢, [P2] 確認呢樣嘢之嘛, 呢份文件就應該係 ……”

325.  Analysis  As Mr Lam submitted, P2 and P3 tried to suggest that explanation was given by P2 to the police officers and documents were shown/presented to and seized by police officers at the TSW Depot (and/or at TSW Police Station) to establish P1’s possessory right/title and/or right of lien over the Containers, and to complain that the police officers failed to make any enquiry or cause any enquiry to be made in relation to those explanation and documents before arresting P2 and P3.

326.  In my view, as Mr Lam rightly said, P2’s evidence in this regard was a mess. P2’s evidence was self-contradictory as to his pleadings, cautioned statement, statement evidence and oral testimony, and he tried dismally to shift blame to CFC. The P2 1^st/2^nd WStmts were self-contradictory (see §§311-317 above), and §10 and §§22-23 of the RASoC were likewise self-contradictory (see §§318-319 above), which could hardly be explained by P2’s lame efforts to shift blame to CFC and to pray in aid his mental illness. His oral testimony metamorphosed from (a) having the Documents seized from him (and not shown by him) at TSW Depot (and not at TSW Police Station) (see §311 above), to (b) showing the Documents to the police officers at the scene and asking the police officers to thoroughly investigate the matter (see §312 above), to (c) showing 2 Documents (ie Mark Shipping’s 提貨通知 and 代理報關委托書 with 委托報關協議書 endorsed thereon) to the police with the rest of the Documents seized from his person by police officers at TSW Depot (even though the P2 1^st/2^nd WStmts did not say he was body-searched at TSW Depot) (see §314 above), which contradicted §10 of the RASoC and the 28/8/12 FBP (see §§318-320 above), and to (d) claiming  4 documents out of the Documents were seized from him (代理報關委托書 with 委托報關協議書 endorsed thereon which P2 at one stage said was presented by him to the police, 委托書, 繳款通知書 and 提貨通知) together with an invoice issued by the Guangxi warehouse to FCGC Co Ltd and the Cargo Manifest, but without 企業法人營業執照and the Invoice (which was contrary to the 28/8/12 FBP) (see §321 above). Indeed, as Mr Lam submitted, the averment in the 28/8/12 FBP that 企業法人營業執照were part of the Documents shown by P2 to the police officers clearly demonstrated the unreliability of P2’s contentions, ie P2’s arrest on 16 August 2007 actually pre-dated the issuance of 企業法人營業執照 on 18 September 2008 for more than a year, so such document could not have been shown to or seized by the police officers upon P2’s arrest (see §§126-127 and §324 above), which probably explained P2’s strenuous but futile efforts to embroider or tailor his evidence to avoid such unanswerable difficulty.

327.  In all the circumstances and on balance, I reject P2’s evidence (which I find to be neither truthful or credible) in its entirety on matters concerning the alleged body-search of P2, the alleged explanation given by P2 to the police officers, the alleged presentation of documents by P2 to the police officers and/or the alleged seizure of documents from him (whether from his person or his bag) by the police officers, which evidence only served to severely undermine P2’s evidence on what happened at TSW Depot on 16 August 2007. On balance I prefer the evidence of DPC47923 that he and other police officers had not been shown any document and/or had not been offered any explanation by P2, and the police had not seized any document from P2 whether at TSW Depot or TSW Police Station. Mr Lam also invoked the rule in Browne v Dunn[87] to complain that it was not put to any of the defence witnesses (including DPC47923) that documents were either shown/presented to them or seized by them, but I need not deal with such rule here because I am quite able to find on assessment of the available evidence on the balance of probabilities that no documents were shown/presented to the police by P2 and/or seized by the police from P2.

(s)  Discussion: arrests of P2 and P3

328.  The question here was the lawfulness of the arrests of P2 and P3 because P2’s and P3’s claim for false imprisonment would fall away if such arrests were lawful. Since there was no dispute over the fact of imprisonment (from the time of the arrests of P2 and P3 until their release on police bail – see §90(a) and (e) above), Mr Sio submitted such question boiled down to “whether ‘the demand of HK$30,000 per Container before release’ amounted to ‘demand with menace’ given the factual complex in the present case, in particular where no violence had ever been used”.

329.  Before dealing with such question as proposed by Mr Sio, it is useful to start with Ps’ pleadings on P2’s and P3’s claim on false imprisonment based on lack of reasonable suspicion that P2 and/or P3 would be guilty of blackmail and lack of genuine belief on the part of the arresting officer(s):

(a)

P2 and P3 averred lack of reasonable suspicion on the ground that “there were no reasonable grounds for suspecting the Goods were wrongfully detained by [Ps] and/or [Ps] might have committed an offence of blackmail”, and P2 and P3 pleaded the particulars in §31 above (§24 of the RASoC);

(b)

P2 and P3 averred lack of genuine belief on the ground that “DPC47923 and/or the [Team 1 Officers] did not themselves believe that [P2] and/or [P3] might have involved in a case of blackmail”, and for particulars of lack of genuine belief, P2 and P3 pleaded reliance on “…… the facts and matters above”, which appeared to refer to the particulars pleaded in §24 of the RASoC (see §31 above) (§25 of the RASoC).

330.  Turning first to §329(b) above, P2’s and P3’s plea that the arresting officers (ie DPC47923 and DSGT385) and/or other police officers did not themselves genuinely believe that P2 and/or P3 might have been involved in a case of blackmail was a serious allegation that amounted to assertion of malice or bad faith, so it is necessary to revisit the specific particulars pleaded in §24 of the RASoC to see if such allegations were properly raised (see §31 above and §333 below).

331.  As a matter of pleadings, I agree with Mr Lam that P2’s and P3’s pleas/particulars in §31 and §329(b) above and §333 below were inadequate as they failed to comply with Order 18 rule 12(1)(b) of the Rules of the High Court that required every pleading to contain the necessary particulars, ie that “where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies”. P2’s and P3’s pleas/particulars did not sufficiently suggest any malice, bad faith or lack of genuine belief on the part of the relevant police officers, which allegation was different from a mere suggestion that they did not act in a proper manner.

332.  Turning to the evidence, I find evidence of lack of genuine belief on the part of the relevant police officers lacking. Indeed, Mr Sio’s written/oral closing submissions focused on lack of “reasonable” belief and/or “reasonable” suspicion on the part of the police officers rather than on lack of “genuine” belief. Given P2’s and P3’s poor pleadings/evidence in this respect, it was not unreasonable for Mr Lam to invoke the rule in Browne v Dunn to complain it was not put to the police witnesses during cross-exmaination that they did not have genuine belief that P2 and/or P3 might be involved in a case of blackmail. In light of the evidence of the police witnesses in Part VII(p), (q) and (r) above, which I find credible, reliable and probable, and also all the circumstances (including the analysis in §333 below), I reject P2’s and P3’s allegations that DPC47923, DSGT385 and/or the Team 1 Officers had no genuine belief P2 and/or P3 might have committed the offence of blackmail. P2’s and P3’s allegations of lack of genuine belief in §329(b) above must fail.

333.  I am not persuaded that the particulars pleaded by inter alia P2 and P3 in §24 of the RASoC, which went to both allegations of “lack of reasonable suspicion” and “lack of genune belief” in §329(a)-(b) above, were made out:

(a)	It was averred that Ps had possessory right to the Containers at the time of arrest. I have rejected such contention for reasons explained in Part VII(m) above.
(b)	It was averred that P3 were a mere employee responsible for transporting the Containers to TSW Depot at the time of the arrests. I agree with Mr Lam that such plea was factually incorrect even on P2’s and P3’s case as it was P2 who on behalf of P1 engaged MWS Co to provide container trucks/drivers to transport the Containers from TM Depot to TSW Depot, and P3 was at TSW Depot waiting for the arrival of such Containers for delivery to the collecting party and, as I have found in §248 above, for collection of payment of RMB30,000/Container before release of the Containers.
(c)	It was averred that P2 was forced to attend TSW Depot for arrest and he was merely an employee of P1. I have rejected such contention for reasons set out in §282 above.
(d)	It was averred that P2 produced the Documents to the Team 1 Officers thus showing them P1’s lawful possessory rights to the Containers. I have rejected P2’s evidence in this respect, and have found that no documents were shown/presented to the police officers and/or seized by the police officers vis-à-vis P2 whether at TSW Depot or at TSW Police Station (see Part VII(r) above).
(e)	It was averred that the Team 1 Officers failed to make inquiry or cause inquiry to be made on those documents presented to and/or seized by the police before declaring the arrests. Since I have rejected P2’s contentions in (d) above, this argument by P2 and P3 also fell away. I also reiterate my findings in §276(e) above.

334.  Turning then to P2’s and P3’s allegation that there was lack of reasonable suspicion that P2 and/or P3 would be guilty of blackmail, Mr Sio in his oral closing submissions accepted that should this court find P3’s arrest to be lawful, there would necessarily be reasonable suspicion against P2 given his participation in the meeting at the Restaurant, so the lawfulness of P2’s arrest could not be challenged in those circumstances.

335.  Mr Sio submitted P2’s and P3’s accounts of the events should be accepted, but on balance I disagree and prefer the evidence of the defence witnesses which I find credible and believable:

(a)

P2: P2 was arrested shortly after he arrived at TSW Depot, ie at/about 2:50pm P2 approached P3 and the police party at TSW Depot, and Hui identified him as the one who blackmailed him at the Restaurant, so he was arrested by DPC47923 at/about 3:08pm (see §305 above). Mr Sio acknowledged there was little factual dispute apart from the matter of presentation of documents by P2 to the police officers and/or the seizure of documents by the police officers from P2’s person or bag at the scene at TSW Depot. Mr Sio submitted that the evidence showed P2 merely approached P3 and the police party for enquiry, and it was P2’s case that he gave explanation to the police and showed the police some documents. But I reiterate my discussion and findings in Part VII(r) and §333(d) above, and cannot agree with such submissions. Mr Sio alternatively argued that whether P2 showed/presented documents to the police officers was immaterial because DSGT385 “already assumed the demand of money was before the completion of delivery and the containers were forcefully distrained by [Ps]”. Mr Sio submitted that since there was no sufficient evidence for forming any reasonable belief or any reasonable suspicion in the first place, whether at a later stage P2 presented/showed documents to the police officers or whether the police officers seized documents from him was irrelevant. As Mr Lam pointed out, it was D’s case all along that whether or not documents were presented to or seized by the police officers was irrelevant. But it must be remembered that Mr Sio’s alternative “immateriality” argument in the above sub-paragraph was premised on P2’s and not D’s case. In my view, Mr Sio’s alternative “immateriality” argument made on such premise must be subject to at least the following 2 caveats: (i) P2’s evidence on his alleged presentation of documents to the police officers and/or the police officers’ alleged seizure of documents from him must be relevant to the assessment of P2’s overall reliability and credibility as a witness; (ii) the sole rationale put forward by P2 for his alternative argument of “immateriality” was the absence of sufficient evidence of reasonable belief or reasonable suspicion in the first place, but if there were such evidence, then such alternative contention would fall away as the alleged presentation/seizure of documents vis-à-vis P2 necessarily went to the question of whether or not there was further information available to the police officers to support or disabuse them of the belief or the suspicion arising from Hui’s account given at the Preliminary Enquiry. As for (i) above, I reiterate my discussion and findings in §§325-327 above whereby I have rejected P2’s evidence as to matters concerning alleged body-search, alleged explanation given to the police officers, alleged presentation of documents to the police officers and/or alleged seizure of documents by the police officers, which served to undermine P2’s witness credibility. As for (ii) above, I reiterate my discussion and findings in §276 above that Hui’s account under the Preliminary Enquiry as made known to DPC47923 and DSGT385 provided “factual basis” for reasonable belief and/or suspicion that (1) on 15 August 2007 at the Restaurant a male person made “unwarranted” “demand” “with menaces” vis-à-vis Hui (ie essential ingredients of the offence of blackmail) being his demand for payment of RMB50,000/Container when there was no obligation to pay as yet and under threat of non-return of the Containers otherwise, and (2) subsequently on the same day Hui unwillingly acceded to such “unwarranted” “demand” “with menaces” by telephone conversation with such male person upon reduction of the amount payable to RMB30,000/Container. For reasons given above, I disagree that DSGT385 merely assumed demand was made before completion of delivery, and note that, amongst other considerations (see §339 below), DSGT385 and DPC47923 both grounded their belief and/or suspicion on Hui’s information inter alia that Hui was not required to make payment to LB Tang / FCGC Co Ltd under their bargain until the Goods/ Containers were successfully imported/delivered into Mainland China, but the male person at the Restaurant demanded payment of RMB50,000/Container upon threat of not returning the Containers otherwise even when import/delivery of the Goods/Containers into Mainland China failed (see §295 and §300 above). In my view, once (1) at TSW Depot on 16 August 2007 Hui identified to the police officers that P2 was the male person who made such demand at the Restaurant on 15 August 2007 (see §305 above) thus linking P2 directly to the demand made at the Restaurant, and (2) DGT385 received report from DPC58096 (see §294 above) and in turn briefed DPC47923 what DPC58096 reported to him and his own suspicions (see §296 above) thus revealing P3’s demand for payment of RMB30,000/Container otherwise he would not deliver up the Containers, which was consistent with the aforesaid factual basis for “unwarranted” “demand” “with menaces”, there would be sufficient basis for reasonable belief that P2 would be charged with blackmail or reasonable suspicion that P2 would be guilty of blackmail. On my findings in Part VII(r) above that no documents were shown to and/or seized by the police officers, and on the evidence of the police witnesses as to what transpired at TSW Depot on 16 August 2007 (which on balance I accept), there was nothing to disabuse DSGT385 and DPC47923 from such reasonable belief and/or reasonable suspicion.

(b)

P3: Mr Sio submitted that P3’s version of what happened at TSW Depot (ie P3 merely asked Hui or DPC58096 to call his employer to confirm instructions for release of the Container) should be accepted, and on such basis he argued there was no factual basis for the police to form any reasonable belief that P3 would be charged with blackmail or any reasonable suspicion that P3 would be guilty of blackmail. Mr Sio argued that since Hui had passed away, it was a “one-to-one” situation whereby P3’s credibility was tested against that of DPC58096. Mr Sio submitted P3 gave firm and unshaken answer over this part of evidence, and suggested DPC58096’s veracity was “greatly undermined” because he denied he was under covert operation with instructions to pretend to be the owner of the Goods and claimed he merely played by the ear (“隨機應變”) when Hui pointed to him and told P3 that he was the goods owner, but other police witnesses and the Crime Message said otherwise. I disagree. First, I do not accept the evidence of DPC58096 was “greatly undermined” as alleged, and I reiterate my discussion and findings in §§265-275 above. Indeed, DPC47923 also emphasised that depending on how matters would unfold at TSW Depot, DPC58096 would have to react accordingly (see §267 above) Secondly, given my findings as to what happened before, during and after the meeting at the Restaurant (see §§234-237 above) and the instructions P2 gave to P3 in the morning of 16 August 2007 (see §248 above), it was logical and credible (and on balance I do so find) that Hui, P3 and DPC58096 had the dialogue at TSW Depot as DPC58096 described in §§288-290 above. Thirdly, Mr Sio submitted that “this part” of P3’s evidence was unshaken, but I am unable to adopt such a blinkered view. Given my finding that P2 instructed him to collect RMB30,000/Container and to release the Containers one by one on such basis (see §248 above), I do not agree P3 conversed with Hui and DPC58096 as described in §279 above, ie that he asked Hui/DPC58096 to telephone P1 to confirm their status as the collecting party, and that he would not collect payment from the party collecting the Containers, which assertions contradicted the P3 1st WStmt that was verified by P3’s own SoT.

336.  On balance I prefer the evidence of the defence witnesses in Part VII(p), (q) and (r) above, and reiterate my findings in §248, §§276-277 and §§325-327 above. As regards the events at TSW Depot, I accept on balance the account given by the defence witnesses in §§285-308 above, which was consistent with Hui’s account given in the Hui 1^st PStmt a few hours after the arrest of P2 and P3 (see §284 above). The overall unreliability of P2 and P3 and the significant inconsistencies and inherent implausibilities of their evidence in relation to events that preceded their arrests and the documents alleged to have been shown to / seized by the police officers greatly undermined their veracity, and on balance I reject the same.

337.  In my view, there could not be any dispute that the burden fell on P2 and P3 to prove their plea of lack of reasonable suspicion (see §§70-71 above), but since P2/P3 and D adduced evidence on the circumstances leading up to and surrounding P2’s and P3’s arrests, it essentially boiled down to assessment of the relevant evidence before the court (see §72 above). But Mr Sio submitted that even on D’s version of the events, there was still no “factual basis” for the police to form any reasonable belief that P2 and/or P3 would be charged with blackmail or any reasonable suspicion that P2 and/or P3 would be guilty of blackmail:

(a)

In the case of P2, Mr Sio contended that: (i) there was no evidence/complaint elicited from Hui during the Preliminary Enquiry of any “menace” employed by anyone during negotiations at the Restaurant; (ii) P2 did not make any “demand with menaces” at TSW Depot; (iii) the demand of RMB30,000/Container before release of the Containers might be questionable but not “unwarranted”, which question should objectively be resolved in civil proceeding instead of “arbitrarily by the police”. I disagree. First, I reiterate my findings in §276 above and disagree with (i) above. Secondly, whilst I agree P2 did not make any express demand for monetary payment at TSW Depot, I reiterate my findings in §§335-336 above, especially my conclusion in §335(a) above that nothing at TSW Depot on 16 August 2007 would disabuse DSGT385 and DPC47923 of their reasonable belief and/or suspicion that P2 made “unwarranted” “demand” “with menaces” vis-à-vis Hui on 15 August 2007. I also refer to my discussion and findings in §339 below. Thirdly, for reasons given in §276 above (especially §276(a), (d) and (e) above), I have found there was reasonable basis for considering P2’s demand for money at the Restaurant (and maintained in the subsequent telephone call with Hui) on 15 August 2007 to be “unwarranted”, which therefore was not mere civil commercial dispute devoid of any criminality. Fourthly, the consistency between P2’s demand/threat at the Restaurant on 15 August 2007 (which was maintained in the subsequent telephone call with Hui on the same day notwithstanding negotiated reduction of the amount payable) and P3’s demand/threat on 16 August 2007 also reinforced (and added to the reasonableness of) DSGT385’s and DPC47923’s belief and/or suspicion that both P2 and P3 were involved in the offence of blackmail (see §335(a) above).

(b)

In the case of P3, Mr Sio submitted that in considering the lawfulness of P3’s arrest, this court should adopt a narrow view and only consider facts/matters that happened at TSW Depot on 16 August 2007 in determining whether there was reasonable belief that P3 would be charged with blackmail or any reasonable suspicion that P3 would be guilty of blackmail: (i) DPC58096 (pretending as goods owner) did not show any documents to P3 to prove he was the owner; (ii) P3 did not use violence nor threat to use violence; (iii) DPC58096 agreed under cross-examination that he (pretending to be the owner of the Containers) did not feel he was being blackmailed. Mr Sio did not explain why the arresting officers’ considerations in relation to P3’s arrest would be limited to facts/matters that happened at TSW Depot vis-à-vis P3. In my view, the authorties showed that in determining whether there was reasonable belief or reasonable suspicion, the court should not take a blinkered view by ignoring relevant information known to the arresting officer(s) beyond direct events that happened to the suspect. Mr Sio was also constrained to agree that the legal principles in Part IV(a) above clearly cast a wider net such that the arresting officer(s) could consider even hearsay or non-admissible evidence and/or information from an informer in making decision for arrest. Even though the suspect is an individual person (eg P3), it does not mean the facts/matters that the arresting officer(s) (eg DPC47923 and DSGT385) can consider in deciding whether there is basis to effect arrest of the suspect is as circumscribed as Mr Sio suggested, ie facts and matters that directly involve the suspect (eg facts/matters that happened at TSW Depot on 16 August 2007). This is particularly so in relation to P3. Mr Sio accepted (as he must) that in arresting P3 for the offence of blackmail, the arresting officer(s) would have to consider whether there was reasonable belief or reasonable suspicion of criminal liability not merely as primary perpetrator but also as co-conspirator and/or as assessory (ie being part of an enterprise to commit crime) from all relevant information available and known to the arresting officers. I agree with Mr Lam that at the stage of arrest, there is no need (and often it is impossible) for police officers to distinguish between prime perpetrators and those who have accessory roles.[88]The sole criterion is whether there is reasonable belief or reasonable suspicion under section 50 of the PFO. I bear in mind that on my findings, P3’s demand for payment of RMB30,000/Container at TSW Depot upon threat that otherwise the Containers would not be delivered up was consistent with P2’s demand at the meeting at the Restaurant on 15 August 2007 and the subsequent telephone conversation between Hui and P2 as reported by Hui at the Preliminary Enquiry and therefore as known to the police officers. I am at loss to understand the relevance of (i) above and why lack of documents of ownership of the Containers in the hands of DPC58096 would equal to no factual basis for reasonable belief or reasonable suspicion. At the stage of arrest, there was no need to establish any prima facie case, positive belief or factual proof/ finding (see §§66-67 and §69 above). There was nothing that happened at TSW Depot (as I have found) to disbuse the reasonable concerns arising from Hui’s account at the Preliminary Enquiry. Rather, what happened there reinforced such concerns (see §335(a) and §337(a) above). I find the matter in (ii) above immaterial, and I reiterate what I have said in §276(b) above. Again, I do not see the relevance of (iii) above. The fact that DPC58096 did not feel he was blackmailed because he was a police officer and not the actual owner the Goods/Contractors, or the actual party who contracted with LB Tang / FCGC Co Ltd for delivery of the Goods / Containers into Mainland China and who in turn owed obligations to his own customers was neither here nor there (see §290 above). The relevant consideration was whether the demand, threat and conduct were of such nature and extent that the mind of an ordinary person of normal stability and courage in the relevant context might be influenced or made apprehensive so as to accede unwillingly to the demand (see §59 above). As DSGT385 rightly said, P3 at TSW Depot “…… 接觸到 [Hui] 喇 …… 係有講話「每個櫃要30,000鈫先至肯交番個櫃畀你」, 雖然 …… 係由 [Hui] 介紹 [DPC58096] 係貨主, 但當其時 [P3] 即係所講嘅嘢, [Hui] 亦都在場聽到嘅, [DSGT385] 相信當其時 [Hui] 聽番說話「每個櫃要30,000鈫先至肯交櫃」, [Hui] 同樣係受到一個威脅嘅 ……” (see §296 above).

338.  On balance, I find DSGT385 and DPC47923 jointly decided to arrest P2 and P3, and they subjectively believed that P2’s demand for payment of RMB50,000/Container later reduced to RMB30,000/ Container (on Hui’s account given at the Preliminary Enquiry as known to them) and P3’s demand for payment of RMB30,000/Container (made in the presence of Hui and DPC58096 as reported to them) upon collection of the Containers by threatening not to return the Containers otherwise amounted to “demand with menaces” that was “unwarranted” as under the original bargain Hui had no obligation to pay until the Goods/Containers were successfully imported/delivered into Mainland China, and thus it was their belief that P2 and P3 would be charged with and/or their suspicion that P2 and P3 would be guilty of the offence of blackmail.

339.  Mr Sio argued that DSGT385’s considerations set out in the DSGT385 WStmt, which related to whether the demand of RMB30,000/ Container was “warranted” or otherwise, were objectively wrong for the offence of blackmail and did not concern “demand with menaces”, so DSGT385 wrongly jumped to the conclusion that the Containers were “forcefully distrained”. I disagree, and find there was reasonable grounds for DSGT385’s and DPC47923’s belief and/or suspicion, which grounds had been articulated by them in their evidence (see also §§334-337 above):

(a)	at the Restaurant P2 “demanded” Hui for RMB50,000/Container upon delivery up of the Containers, which demand was maintained in a subsequent telephone call with Hui although the amount to be paid was negotiated down RMB30,000/Container (see §250 above), and at TSW Depot P3, consistently with P2’s demand, also “demanded” Hui/DPC58096 for RMB30,000/ Container (see §337 above);
(b)	the aforesaid demands for payment were made upon threat (or “menaces”) that the Containers wold not be returned otherwise (see §250, §256 and §289 above);
(c)	there was belief/suspicion that the aforesaid “demands” were “unwarranted” since Hui reported during the Preliminary Enquiry Hui and LB Tang / FCGC Co Ltd agreed that transportation charges under the original bargain were to be paid only after the Containers were imported/delivered to Mainland China, but the import/delivery of the Containers were unsuccessful (see §259, §295 and §300 above);
(d)	doubt/query arose as to why payment for actual charges/expenses incurred by LB Tang / FCGC Co Ltd could be significantly reduced from RMB50,000/Container to RMB30,000/Container for no articulated reason when such reduction would mean a substantial loss to them of RMB120,000 (see §295 and §300-301 above);
(e)	doubt/query arose as to why P2/P3 would threaten to refuse delivery up of the Containers pending payment of the RMB50,000/Container (later reduced to RMB30,000/Container) instead of making a legal claim when there was failure to deliver the Goods/Containers into Mainland China (see §295 above);
(f)	doubt/query as to why P3 (who at TSW Depot claimed to be a middleman, who did not claim to be LB Tang’s/FCGC Co Ltd’s employee and who did not know Hui at all) was engaged to collect payment from Hui (when, according to DPC47923’s 20 years of experience in handling blackmail cases, it was often the case that persons unconnected with the victims were deployed to collect the money demanded), and why LB Tang / FCGC Co Ltd did not authorise an agent familiar with the matter to liaise with their business partner Hui to resolve the matter (see §296, §298 and §300 above);
(g)	doubt/query as to why LB Tang (who dealt with Hui all along) was silent on the matter at the meeting at the Restaurant and left early, thereby handing over to P2 whom Hui had never met before to demand for money (see §301 above);
(h)	P2 at the Restaurant and P3 at TSW Depot stated that much money had been spent in trying to get the Containers imported into Mainland China and in returning them to Hong Kong (see §261 and §296 above), but no information/particulars were given.

340.  At the heart of P2’s and P3’s contention that there was no reasonable belief or reasonable suspicion to justify the arrests of P2 and P3 was their suggestion that this was not a blackmail case but a commercial dispute. Mr Sio argued it was merely “commercial negotiation of a logistic dispute”, so the demand to pay RMB30,000/ Container upon collection of the Containers would not objectively amount to any  “demand” “with menaces” that was “unwarranted”, and there was therefore no “blackmail” and no “factual basis” for the police to form any reasonable belief that anyone would be charged with blackmail or any reasonable suspicion that anyone would be guilty of blackmail up to the point before the police party arrived at TSW Depot.

341.  I have rejected such argument in §276(e) above in which I have found there were reasonable grounds for forming belief and/or suspicion that an offence of blackmail had been committed against Hui. I have further found that P2’s and P3’s words and conduct at TSW Depot were consistent with Hui’s account given at the Preliminary Enquiry and reinforced the arresting officers’ belief and suspicion of their involvement in the offence of blackmail as revealed in Hui’s account (see §335(a) and §337(a) above). Indeed, DSGT385 gave evidence that the decision to arrest P2 and P3 was based on information available to him and DPC47923 at that time and not what information would be available at a later stage as to whether or not P2 and/or P3 would be prosecuted (see §297 above).

342.  DPC47923 said under cross-examination he never suspected or queried whether the case was in fact a commercial dispute. He testified under cross-examination that as regards the suggestion “…… 無端端點解由談判變成咗勒索嘅呢 ……”, “…… [DPC47923] 反而覺得係, …… 如果正常一個交易嘅, 係要需要咁樣嘅談判呢, 咁樣樣囉, 點解唔係直接係話, 50,000鈫就係50,000鈫呢, 點解要商議到話「$30,000都可以」呢, 咁樣囉 ……” (see §301 and §339(d) above). When cross-examined as to whether he had ever “懷疑” the facts of the blackmail case might be a “商業糾紛”, SIP Li fairly agreed “…… 係有咁嘅懷疑嘅 …… 我哋都係喺後期一路跟進嘅時候先知多啲資料, …… 最初報案嘅時候, 咁係表面嘅證據嚟講係一個勒索喇, 咁一路問、一路調查, 先至知道多啲嘅嘢, 所以 …… 係會向呢個方向去調查囉 ……” (my emphasis).

343.  SIP Li’s recognition that at a later stage the case might appear to be a commercial dispute when the police knew more about the case upon further investigations was echoed by evidence from CIP Shue (see §§397-401 below) that the police faced great difficulties during investigation, eg efforts by the police to ascertain the relationships of the concerned parties were hampered by inter alia the inability to contact some key players who were in Mainland China, and concerns that none of the parties seemed to be telling the entire truth to the police. As seen in §402 below, this led to SIP Shue’s eventual decision to cease investigation and to unconditionally release P2 and P3 from police bail even before legal advice was obtained, and finally no charges were brought against them.

344.  But these subsequent considerations were not relevant to the question of the lawfulness of the arrests of P2 and P3, which must be considered on the basis of information available at the material time. In my view, based on the then available information from Hui’s report to the police, the urgency of police operation at TSW Depot following a telephone call to Hui during the Preliminary Enquiry asking him to collect the Containers as soon as possible, and the available information as to what transpired at TSW Depot, I find on balance that the arresting officers rightly and justifiably considered it to be a blackmail case at the stage of arrest of P2 and P3. I agree with Mr Lam it was unfair to juxtapose the information available to the police officers at a later stage upon more mature investigation to say this was a mere civil dispute at the time of arrest of P2 and P3.

345.  Mr Sio further argued that if the police were of the view that P2 and P3 were related to the alleged blackmail at the material time, the police could have invited them back to TSW Police Station to assist with investigation (which would be the proper way of handling the case without infringing their legal rights) instead of arresting them at TSW Depot. But in my view, there was no general or absolute rule that an arresting officer must take all practicable enquiries to confirm/dispel his suspicions before making an arrest, and he is entitled to make an arrest based on information supplied to him by third parties, particularly in an emergency situation, even if such information turns out later to be wrong (see Part IV(a) above). Here, there was some urgency because Hui received a telephone call during the Preliminary Enquiry asking him to go to TSW Depot to collect the Containers as soon as possible. In such circumstances, it was reasonable for the police officers to quickly mount the police operation at TSW Depot as they did, and as Hui’s / DPC58096’s report at the scene reinforced concerns arising from Hui’s earlier account, there was reasonable basis to arrest P2 and P3 there and then on the basis of reasonable belief and reasonable suspicion, and to make further investigations thereafter.

346.  Mr Sio next argued that if DSGT385 had some knowledge of carrier lien, it would not be difficult for him to conclude whilst P2’s or P3’s demand was questionable it was not “unwarranted”, so Hui should claim for possession of the Containers through civil proceedings and not via a report to the police. I disagree given my findings and conclusions in Part VII(m) above. In my view, DSGT385’s belief and/or suspicion based on information provided by the Informant Hui during the Preliminary Enquiry and by DPC58096/Hui at TSW Depot was supported by reasonable grounds, and it was not for DSGT385 to investigate into carrier’s right of lien before making arrests.

347.  In the circumstances, I reject Mr Sio’s arguments that there were no reasonable ground for forming suspicion that P2 and/or P3 committed blackmail against Hui, and that there was realistic alternative way to handle P2 and P3. In my view, DSGT385 and DPC47923 did have genuine subjective belief that P2 and P3 would be charged with the offence of blackmail and/or subjective suspicion that P2 and P3 committed the offence of blackmail, and there were reasonable grounds for such belief and/or suspicion. I therefore find P2’s and P3’s arrests and subsequent detention lawful, and their claims for false imprisonment must be dismissed.

VIII.  MISFEASANCE IN PUBLIC OFFICE

(a)  TSW Police Station

348.  SIP Li said when he returned to the office on 16 August 2007, he was briefed by DSGT385 about (a) this “blackmail” case that involved the 6 Containers, and (b) the arrests of P2 and P3 in connection with this case. The SIP Li 2^nd WStmt stated that according to documentary records, SIP Li then took over the investigation of the case.

349.  According to the Investigation Report, (a) at 2:50pm on 16 August 2007 at TSW Depot, DPC58417 took a police statement from MWS Co’s Chan who confirmed that P2 engaged MWS Co to transport the Containers, that the 2 container trucks were theirs, and that he gave instructions to the driver to go to TSW Depot, (b) at 3:00pm DPC58417 took a police statement from the container truck driver, (c) at 4:30pm DPC21670 took a police statement from Wong.

350.  Accroding to the Investigation Report, Hui 1^st PStmt and the DSGT385 WStmt, (a) DSGT385 and DPC54800 left TSW Police Station at 4:50pm to go to the TM Depot for Hui to identify the rest of the Containers. According to the DSGT385 WStmt and the Investigation Report, (b) Hui, DSGT385 and DPC54800 arrived at TM Depot at 5:15pm, and (c) Hui identified the other 4 Containers involved in the case at 5:20pm, (d) DSGT385 and DPC54800 left TM Depot at 5:25pm with PC33556 and police party left there on guard duty, (e) DSGT385 and DPC54800 returned to TSW Police Station at 5:56pm, (f) Hui also went back to TSW Police Station, and (g) DPC54800 took the Hui 1^st PStmt from Hui at 6:05pm.

351.  According to the Investigation Report and DPC47923’s police notebook, (a) at 4:25pm DPC47923 “取出 [P3] 作進一步調查”, (b) at 4:30pm-4:31pm DPC47923 explained and issued Pol153 (Notice to Persons Under Investigation by or Detained in the Custody of the Police) to P3, and (c) at 4:31pm-4:45pm DPC47923 read over the P3 PStmt to P3 to confirm what P3 said under caution at TSW Depot, which P3 PStmt P3 countersigned. P3 also signed Pol153 at 4:31pm and Pol157 at 4:50pm (when copy of the P3 PStmt was given to him). After P3 was fingerprinted and had his photograph taken, DPC47923 handed over P3 to the custody of the DO at 5:28pm.

352.  According to the Investigation Report, (a) at 5:30pm DPC47923 “取出 [P2] 作進一步調查”, (b) at 5:32pm DPC47923 explained and issued Pol153 to P2, (c) at 5:38pm P2 signed Pol153 but did not make any request, (d) at 5:41pm-8:25pm P2 gave the P2 PStmt to DPC47923 in which “[P2] 否認指控, 並講述事件經過”, (e) at 8:30pm DPC47923 gave copy of the P2 PStmt to P2 who signed Pol157.

353.  According to the P2 1^st WStmt, P learned on the day of his arrest on 16 August 2007 that certain police officers (later known to be the Team 1 Officers) had seized and had taken possession/custody of the Containers “to the exclusion of [Ps]” on the pretext that they were exhibits, and that “the police intended to pass the possession of the 6 [Containers] of [Goods] to [Hui]”. But P2 testified under cross-examination that at TSW Police Station on 16 August 2007, no police officer talked with him about the Containers, so he did not know anything about the Containers, “…… 警察係冇話畀 [P2] 聽, 嗰 [6 Containers], [police] 點樣處理 …… 冇聯絡㗎喇 ……”

354.  DPC47923 agreed under cross-examination (and as seen from above) that the police conducted some preliminary investigation about the case after the police party and P2/P3 returned to TSW Police Station, so P2 and P3 were held at TSW Police Station for a while before their house searches were done late at night on the same day. DSGT385 was off duty by that time, so he did not participate in the house searches and did not know who made the decision for the house searches.

(b)  P2’s house search

355.  P2’s case  The P2 1^st WStmt stated that at/about 10:00pm on 16 August 2007, to P2’s humiliation, the Team 1 Officers escorted P2 who was handcuffed and unhooded to search his home in the presence of his family members, drawing attention to a large crowd of neighbours. The P2 2^nd WStmt stated it was unreasonable for the police officers to handcuff P2 on the way home for the house search. Further, upon arriving at the housing estate where he lived, P2 was never asked by the police officers whether he would like to use the hood. There were many people in the vicinity of P2’s housing estate at the time when he was brought back for the house search. He saw his neighbours and security guard upon entering the building where he lived, and his presence with a team of police officers drew their attention. The house search was conducted in the presence of P2’s wife and daughter.

356.  D’s case According to the Investigation Report and as documented in DPC33524’s police notebook, at 9:59pm on 16 August 2007 DPC33524 obtained P2’s consent for house search at P2’s home. According to the SIP Li 1^st WStmt and DPC47923 2^nd WStmt, at/about 10:20pm, SIP Li together with DPC47923 and DPC33524 escorted P2 to his home in Tin Chak Estate, Tin Shui Wai, New Territories for house search. Before departure from TSW Police Station, SIP Li instructed DPC47923 to handcuff P2 as a preventive measure to prevent P2 from escaping, which was in line with their standing procedures. DPC47923 confirmed under cross-examination that SIP Li made the decision to handcuff P2, and DPC47923 carried out such order. According to the SIP Li 1^st WStmt and the DPC47923 2^nd WStmt, SIP Li did not instruct his officers to put a hood on P2’s head as he considered it was not necessary.[89]

357.  DPC47923 agreed under cross-examination that P2 had been in police custody for a while before the house search, and it did not appear P2 exhibited signs of violence to DPC47923, to himself or to others. SIP Li also confirmed under cross-examination that P2 did not exhibit signs of violence either to the police officers or to himself, or signs that he might escape from custody, but SIP Li said “…… 呢個係根據我哋慣常嘅程序嚟嘅, …… 即係防止呢個涉嫌人士會逃走或者係有呢個暴力侵襲他人或者傷害自己嘅防備措施嚟嘅 ……”

358.  The SIP Li 1^st WStmt went on to say that after alighting from the unmarked police vehicle, the police party escorting P2 took the most direct route to the building where P2 lived and took the lift to P2’s home. As far as SIP Li could recall, no other resident used the same lift, so no public attention was drawn. The house search did not attract any attention from P2’s neighbours as the main door was shut after they entered P2’s home.

359.  According to the DPC47923 2^nd WStmt, the police party and P2 arrived at P2’s home at 10:30pm for house search. According to the SIP Li 1^st WStmt, the DPC47923 2^nd WStmt and the Investigation Report, the house search was completed at 10:40pm with nothing found. When asked whether P2 exhibited signs he would escape during house search, DPC47923 said “…… [DPC47923] 唔敢肯定 [P2] 有冇咁嘅諗法喇”, but agreed P2 did not exhibit overt signs of escape, “例如 …… 典身典勢, 例如見到有個路口喇，然後就想衝去個路口咁樣, 諸如此類 ……” But DPC47923 agreed 3 police officers as escort party was sufficient police power for P2’s house search, “…… 但係即係對方點樣諗, 我哋係唔清楚㗎嘛 …… 所以我哋係有一個叫做 …… 安全啲嘅諗法喇, 防禦性啲嘅諗法喇 ……” to have P2 handcuffed. When asked whether 3 police officers were sufficient to control P2 (despite his fat build) during house search if P2 were not handcuffed, DPC47923 said “…… [DPC47923] 唔敢作呢個決定 …… 因為一個人, 如果係有咁嘅意圖話逃走, …… 唔係可以話 …… 你眼可以睇得到, 即係嗰個身形而決定嘅。…… 同埋如果 [P2] 係有咁嘅意圖, 我哋一下疏忽, [P3] 就會走到㗎喇 ……” Thus, DPC49723 disagreed with the suggestion it was unnecessary to handcuff P2 for the house search. When asked by this court why it was necessary to handcuff P2 (and P3) when there were no overt signs of violence and/or escape, DPC47923 said “如果一個人係有意圖逃跑嘅, 係一觸即發㗎咋 ……”, so handcuffs were a necessary precaution.

360.  According to the SIP Li 1^st WStmt, the DPC47923 2^nd WStmt and the Investigation Report, the police party and P2 left P2’s home at 10:44pm. P2 was then escorted back to TSW Police Station by reverse route, and no public attention was drawn. According to the DPC47923 2^nd WStmt and the Investigation Report, the police party and P2 arrived as TSW Police Station at 10:56pm and P2 was handed over to the DO for arranging release on police bail.

(c)  P3’s house search

361.  P3’s case According to the P3 1^st WStmt, whilst in police custody, P3 was taken to his home handcuffed and unhooded for house search. It was said “[he] was made a scene by [his] family members and neighbours”. According to the P3 2^nd WStmt, P3 fully cooperated with the police after his arrest at the TSW Depot and during his detention/ interview at TSW Police Station, and he did not make any attempt to escape, so it was unreasonable for the police officers to handcuff him on the way to house search. Further, upon arriving at the housing estate where P3 lived, he was never asked by any police officer whether he would like to use the hood. There were many people in the vicinity of P3’s housing estate at the time he was brought back for house search. P3 saw his neighbours and security guard upon entering the building where he lived, and his presence with a team of police officers drew their attention. The house search was conducted in the presence of P3’s wife and 2 children.

362.  D’s case According to the Investigation Report and as documented in DPC33524’s police notebook, at 10:57pm on 16 August 2007 DPC33524 obtained P3’s consent for house search at P3’s home. The SIP Li 1^st WStmt, the DPC47923 2^nd WStmt and the Investigation Report stated that at 11:06pm on the same day, SIP Li together with DPC7923 and DPC33524 escorted P3 back to his home at Tin Yat Estate, Tin Shui Wai, New Territories for house search. Before departure from TSW Police Station, SIP Li instructed DPC47923 to handcuff P3 as a preventive measure to prevent him from escaping, which was in line with their standing procedures.

363.  DPC47923 said under cross-examination that P3 did not exhibit signs of violence to himself, police officers or others before entering his home for house search. There was also no sign of escape. DPC47923 agreed that 3 police officers were sufficient police power for escorting P3 for house search, “……但係上手銬 [DPC47923] 覺得係必須要嘅 ……” SIP Li also confirmed under cross-examination that P3 did not exhibit signs of violence either to the police officers or to himself, or signs that he might escape from custody, but SIP Li said “…… 亦都係根據番我哋慣常嗰個程序, 就係作為一個 …… 防備嘅措施嚟嘅 ……” According to the SIP Li 1^st WStmt and the DPC47923 2^nd WStmt, SIP Li did not instruct his officers to put a hood on P3’s head as he considered it was not necessary.[90]

364.  The SIP Li 1^st WStmt went on to say that after alighting from the unmarked police vehicle, the police party escorting P3 took the most direct route to the building where P3 lived, and took the lift to his home. As far as SIP Li could recall, no other resident used the same lift, so public attention was not drawn. The DPC47923 2^nd WStmt stated the police party escorting P3 arrived at P3’s home for house search at 11:20pm. According to the SIP Li 1^st WStmt, the house search did not attract any attention from P3’s neighbours as the main door was shut after they entered his home. The house search was completed at 11:30pm on the same day. According to the SIP Li 1^st WStmt, the DPC47923 2^nd WStmt and the Investigation Report, at 11:34pm P3 was escorted back to TSW Police Station by reverse route. Public attention had not been drawn. According to the DPC47923 2^nd WStmt and the Investigation Report, P3 and the police party arrived at TSW Police Station at 11:43pm and P3 was handed over to the DO for arranging release on police bail.

(d)  Police bail

365.  According to the Investigation Report and SIP Li’s testimony, after the police’s initial investigation and house searches, at 11:43pm on 16 August 2007 P2 and P3 were released on police bail at HK$1,000 each, and were required to report to TSW Police Station on 12 September 2007 to answer bail.[91] Given Mr Sio’s concession to the agreed facts in §90(a) and (e) above, I reject (a) the claim in the P2/P3 1^st/2^nd WStmts that P2 and P3 had been detained for the entire day, (b) P3’s denial that he was released on police bail on the same night of his arrest, and (c) P3’s evidence under cross-examination that “…… [P3] 終身難忘嘅嘢, 好似好夜, 嗰日都未食過飯 …… 過咗第二日嘅, 應該係超過夜晚放我嘅, 佢超過嗰日 ……”

366.  P2 claimed that since his arrest by the police for the offence of blackmail on 16 August 2007, he could not return to Mainland China (as he was on police bail), and P1 no longer had any work for him and did not pay him any salary. P2 said he had no further work-related contact with the responsible persons at P1, and he no longer represented P1 for its Hong Kong operations, but he still had contact with P1 since they were co-plaintiffs in the present action. P2 said not only had he lost his job, he also could not find any other work because “…… 咁呢度就 [P2 and P3] 畀人哋告, 話 [P2 and P3] 勒索吖嘛, 所以全行都知道晒 [P2/P3], 所以任何人都 …… 冇嘢畀 [P2 and P3] 做喇嘛 ……”, “…… 即係 [P2] 完全冇嘢做吖嘛, [P2] 冇晒嘢做, [P2] 破晒產喇嘛, [P2] 家破人亡 ……”

367.  P3 said under cross-examination that when the police seized the 6 Containers, “…… 就有 [P1]、其他朋友, 佢問 [P3] 發生咩嘢事, …… [P3] 就 …… 當時唔敢講, 係內心嘅痛苦, 呢份工又冇得撈, [P3] 驚畀人捉, [P3] 要賠償 [for the 2 Containers], 因為喺 [P3] 手上唔見咗兩隻櫃, 如果按正規矩, 我哋做呢行嘅嘢, 而家喺 [P3] 手上交畀 [P3] 咗, [P3] 親自押咗個櫃, 放喺度面前, 突然間消失咗, 其實 [P3] 人都要消失嘅, 其實連埋嗰個櫃、連個人都要消失嘅, 真係冇晒信用、冇晒尊嚴, [P3] 已經喺呢行冇得立足㗎喇 ……” P3 clarified under re-examination that “……每一個人有一個責任, …… 逢係交櫃畀你手上, 你嗰個責任就喺你手上。你去交貨, 你要唔可以立亂交畀任何一個人, …… 老細指定打電話通知, 大家各方面通知 …… 雙方面通知「Okay, 交手, 放貨」, [P3] 就冇得唔放嘅, 呢啲行規, 如果喺 [P3] 手上唔見咗, [P3] 就要有個好大嘅責任喺度  …… [P3] 本人嗰份人工都冇, 年假又冇、乜都冇喇, [P3] 自己要走佬㗎喇, 都屬於一個部分嘅責任, [P1] 亦要賠錢嘅 ……”, so P3 said under cross-examination that upon his arrest for blackmail, “……. 我哋呢個貨櫃業, 全行就好恐怖一句說話, …… 而家話我勒索呢條罪, 已經全行冇得撈 …… 即係話, 到呢件事發生之後 …… 全行都冇得返工, [P3] 呀 …… 唔係幫 [P1], [P3] 想幫都冇得做, 全行都唔會請 [P3] 㗎喇 ……”

(e)  Crime Message

368.  SIP Li said under cross-examination that as OC of DCI Team 1 he prepared the Crime Message of a new case of “Blackmail (Demanding with menaces)” involving 2 arrested persons, ie P3 as “AP1” and P2 as “AP2” arrested at TSW Depot on 16 August 2007, for review by his superiors. SIP Li said the Crime Message “……. 都係會喺當日做好嘅, 即係會係喺呢個收工之前做好 ……”, but he could not remember whether it was done before or after the house searches.

369.  The Crime Message recorded that SIP Li was the OC in charge of investigation of this case, and that Hui as the Informant made report to the report room of TSW Police Station at 11:19:20 hours on 16 August 2007. The Crime Message gave a summary of the initial investigation of the case as follows:

“The [Informant] is an agent for arranging computer waste for the owners (actual no. to be ascertained) to import [the Containers] to China. [P3] is the staff of a transportation company located in China and [P2] is his assistant.

On 2007.05.20, the [Informant] was entrusted to arrange [the Containers] to be imported into China. [The Informant] later contracted out the transportation to [LB Tang], staff of re-cycling company in China (Tel 1xxxxxxxxx8, other details unknown) at cost of $65,000HK/container with agreement that [the Informant] was not necessary to pay any money until [the Containers] had imported into China.

Until 2007.06.20, [the Informant] confirmed [the Containers] could not be imported into China then instructed [LB Tang] to ship them back to HK. On 2007.08.16, the [Informant] had a meeting with [LB Tang] and [P3] and [P2] at a restaurant in SSDIV. During the meeting [P3] claimed that [the Containers] had been detained by China Custom and demanded $50,000HK/container before returning them to [the Informant]. [The Informant] finally reached an agreement to pay $30,000HK/container and [the Containers] would be returned on 2007.08.16.

In the morning on 2007.08.16, [the Informant] made a report to TSWDIV. ADCVC C TSWDIV mounted a covert operation with DPC58096 acted as the owner of [the Containers] accompanying the [Informant] to [arrest location]. At A/D/T/L, [P3] asked [the Informant] for $30,000HK/ container otherwise the [Containers] would not be returned. [P3] was then arrested for the offence. Under caution, he PNG to the offence. After scouring in the vicinity, [P2] was located at the entrance at [arrest location] and was arrested for the offence. Under caution, he PNG to the offence. Enquiry is proceeding.”

The Crime Message went on to say Hui was the informant, DPC58096 was the witness, and P2/P3 were the arrested persons with P3 arrested by DPC47923, and P2 arrested by PC54197 (but SIP agreed “…… 咁可能係 [SIP Li] 打錯咗 ……” and it should be DPC47923).

370.  The Crime Message also referred to the 1^st to 6^th Containers as exhibits, and SIP Li confirmed under cross-exmaination that the Containers were seized by the police as exhibits of the blackmail case. The Crime Message set out at §10 “……. [police] 值日隊做過嘅 …… 初步嘅行動” as follows (and SIP Li explained under cross-examination that house searches were usually not recorded in the Crime Message):

“- DVC TSWDIV and ADC C YLDIST had been informed.

- ADVC C TSWDIV and SIP 1 TSWDIV attended the scene to supervise investigation.

- DVIT 5 TSWDIV turned out to assist investigation.

- No CCTV installed at the scene.

- [1^st and 2^nd Containers] were located at [arrest location] whilst [3^rd to 6^th Containers] were located at [TM Depot]

- All the containers were guarded by UB officers of CPK and TSWDIV respectively.

- C&E Department and EPD would be informed to confirm if any offence had been committed.

- The owners would be located for validating their ownership.”

371.  There was some evidence that the Goods/Containers had been seized as police exhibits (see references to the Goods/Containers as police exhibits by DPC47923 in §303 and §309 above and by SIP Li in §372 below, and references to the Goods/Containers as exhibits in the Crime Message in §370 above), but CIP Shue confirmed that by the time he as OC of DCI Team 1 took over this blackmail case from SIP Li, the Goods/Containers no longer had any status as police exhibits (see §390 below). But quite irrespective of whether the Goods/Containers were seized by the police as exhibits, there was clear evidence that the police had control over them.[92] Further, although the police left it to Hui to negotiate and to pay warehouse fees for the Goods/Containers, the police elicited his promise that such storage was subject to police direction and request. Indeed, when the Goods/Containers were released to Kwok, Zeng and Liu on 17 December 2007, such release was organised by the police who took police statements from them, took photographs of the Containers, and arranged for Hui’s presence to witness the release and for Kwok, Zeng and Liu to acknowledge receipt of the Containers in police notebook (see entries for 14, 16 and 17 December 2007 in the Investigation Report in §396 below).

(f)  1^st further police investigations

372.  According to the SIP Li 2^nd WStmt (which echoed the Crime Message – see §370 above), the police had to ascertain the owners of the Goods/Containers and to investigate their relation (if any) to the “blackmail” case, so the Goods/Containers were seized as exhibits of the case (“故將該6個貨櫃連貨物檢取為本案證物”).

373.  According to the available pages of the Investigation Report, the following investigative steps were taken on 17 August 2007 (DSGT385 was on leave on this day):

“4:00pm	致電聯絡海關 (屯門內河碼頭) 並由SI WL林 (2xxxxxx4) 接聽, 同時表示由於6個貨櫃係在碼頭出境, 如有可疑, 在出口時已被截查, 所以表示不會到場檢查
4:30pm	致電環保署 (廢物進出口管制) 2xxxxxx7, 並由趙小姐接聽, 經了解案件後, 表示由於貨櫃未開條碼鎖, 而之前曾轉口所以相信無問題，現時不會到場檢查貨櫃
4:50pm	[Informant] 帶同貨主 [Liu] 到署 (ID: Rxxxxxx(x), DOB: xxx.x.x, tel: 6xxxxxx3), 並提供單據證明有3個貨櫃屬其所, 分別 [2nd, 5th and 6th Containers]
4:55pm	由DPC54197協助錄取口供 [ie Liu PStmt]
4:55pm	由 [DPC47923] 向 [Informant/Hui] 錄取 [Hui 2nd PStmt], 澄清與案有關問題
5:30pm	完畢, 讓兩人離開，[Informant/Hui] 表示另外兩名貨主要明日才能找到單據, 於是相約1700時 (18/8) 到署
5:00pm	自稱為貨主的兩名男子到署 1)    [Kwok], ID: xxxxxxx(x) 2)    [Zeng], 大陸人士, 持公務通行證來港 並帶同有關文件表示係貨主, 但單據未能確認貨件, 兩人表示有更多資料可支持自己係貨主
5:45pm	讓兩人離開, 同時奉命與 [TSW Depot] 場主 [Chan] ([MWS Co]) 聯絡是否願意把 [TM Depot] 的 [4 Containers] 拖回 [TSW Depot]，而 [Chan] 表示只要有人資付費用就無問題, 之後由 [Informant/Hui] 向 [Chan] 商討有關費用
6:20pm	兩人商討完畢, [Chan] 表示可以照警方意思處理，但要求警方出一封信確認係警方要求, 以免 [arrested persons] 要 [Chan] 負責
6:45pm	[Informant/Hui] 在 [DPC47923] 記事冊S/N 4135778 第5-6頁簽署確認負責 [Chan] 及貨櫃一切費用”

374.  In the Hui 2^nd PStmt taken on 17 August 2007, Hui provided information as to the owners of the Containers: (a) Kwok who was owner of the 1^st Container with contact telephone number already provided, (b) Zeng who was the owner of 3^rd and 4^th Containers with contact telephone number given, and (c) Liu who was the owner of the 2^nd, 5^th and 6^th Containers and who had attended TSW Police Station on the same day to assist in police investigation.[93]

(g)  ICAC

375.  According to the P2 1^st WStmt, on 17 August 2007 P2 made a complaint to the ICAC against the Team 1 Officers for inter alia corruption. The ICAC made enquiries of the Team 1 Officers over alleged irregularity of handling the Containers seized by them by inter alia (a) storing them in a public commercial warehouse instead of a government warehouse (see §379 below), and (b) releasing them to unknown persons instead of keeping them for police investigation (see Part VIII(k) below).

(h)  2^nd further police investigations

376.  According to the available pages of the Investigation Report, the following investigative steps were taken on 18 August 2007:

“7:40pm	由OC編制信件，FAX往 [Chan]
8:00pm	由 [Chan] 致電 [DPC47923] 表示可在19/8, 1200時安排司機進行拖櫃工作, 並相約到時在 [TSW Depot] 會合”

377.  According to the available pages of the Investigation Report, the following investigative steps were taken on 19 August 2007:

“12:00 noon	由DPC58096 協助處理拖櫃工作
12:20pm	[DPC58096] 到 [TSW Depot] 會合 [Informant/Hui] [DPC58096 WStmt claimed that pursuant to SIP Li’s instructions, DPC58096 met up with the Informant at TSW Depot at 12:20pm to escort the 4 Containers from TM Depot to TSW Depot]
12:25pm	由 [Hui] 自行與 [TSW Depot] 場主 [Chan] 作文件處理, 前往 [TM Depot] 取回 [4 Containers] 到上址存放
1:00pm	[DPC58096] 與 [Hui] 離開上址
2:00pm	[DPC58096 and Hui] 到 [TM Depot]
2:10pm	由 [Hui] (HKID: Dxxxxxx(x)) 確認 [4 Containers] (1) [4th Container], (2) [3rd Container], (3) [5th Container], (4) [2nd Container] 並由司機黎世恆 (HKID: Exxxxxx(x)) 協助運去 [TSW Depot] 並於 [DPC58096] notebook 簽名作實
12:30pm	押送 [5th Container] 往 [TSW Depot]
3:00pm	到 [TSW Depot] 安放好 [5th Container]
3:05pm	Left of a/a [above address] 返回 [TM Depot]
3:40pm	押送 [4th Container] 往 [TSW Depot]
4:05pm	到 [TSW Depot] 安放好 [4th Conatiner]
4:10pm	Left of a/a [above address] 返回 [TM Depot]
4:25pm	押送 [3rd Container] 往 [TSW Depot]
4:40pm	到 [TSW Depot] 安放好 [3rd Container]
4:45pm	Left of a/a [above address] 返回 [TM Depot]
5:00pm	兩名貨主 [Zeng and Kwok] 再次到署, 並帶同文件及相片
5:05pm	押送 [2nd Container] 往 [TSW Depot]
5:35pm	到 [TSW Depot] 安放好 [2nd Container]
5:40pm	由 [Hui] 確認 [4 Containers] 無誤送到 [TSW Depot] 並於 [DPC58096] notebook 簽名作實
5:45pm	[TSW Depot] [6 Containers] 現場交由PC7069 & party 看守
5:45pm	由 [DPC47923] 向 [1st Container] 貨櫃物主的男子 [Kwok] (ID: xxxxxxx, DOB: xxxx.x.xx, 住將軍澳尚德邨xx樓xxx室, tel: 2xxxxxx5 / 9xxxxxx8) 錄取口供 [ie Kwok PStmt] 另外, 另一名自稱貨主男子 [Zeng] (40歲, xxxx.x.xx, 持因公往來香港證件 SN K xxxxxxxx), 報稱不可以聽到本地話，於是由DPC 58417 協助向電話中講國語翻譯 (OB xxxxx) Approved no. 2409 F/陳潔媚 S/I xxx
7:00pm	與物主 [Kwok] 錄取口供完畢後讓他就離署
7:20pm	翻譯員到場, OB xxxxx
7:30pm	與自稱擁有 [2 Containers] 既物主 [Zeng] 錄取口供 [ie Zeng PStmt], 由翻譯員協助
9:45pm	錄取口供完畢, 讓 [Zeng] 離開, 翻譯員亦離署OB xxxxx”

378.  According to the available pages of the Investigation Report, the following investigative steps were taken on 21 August 2007:

“11:15am	[DPC47923] 致電自稱貨主之 [Zeng] 要求提交與香港富亨公司合作之中間人黎先生, 而 [Zeng] 表示黎只有大陸手機, 可協助找黎先生致電聯絡 [DPC47923]
11:40pm	致電富享公司xxxxxxxx, 並由一名藍小姐接聽, 表示其公司叫鑑聯集運有限公司, 而富享公司租用她們的寫字樓, 而負責人亦得一名大陸女子, 只知李小姐, 但表示李小姐並不是經常返回, 而現在亦身處大陸。藍小姐稱李小姐沒有香港聯絡電話, 但可協助找尋李小組與 [DPC47923] 聯絡
11:55pm	[DPC47923] 致電 [Hui] ([Informant]), 要求到署解釋其 [Keung Kee] 的運作
12:15pm	仍未收到黎的電話, 於是再致電 [Zeng] 要求黎盡快回覆
1:15pm	[Informant] 到達警署, 並由 [DPC47923] 錄取口供 [ie Hui 3rd PStmt]
2:10pm	完畢, [Informant] 表示 [Keung Kee] 共有兩名東主, 他是其中一個, 而另一個則為大陸人 [WC Leung], 負責大陸聯絡, 而 [WC Leung] 及在大陸另一間 [P1] 在2007.5.25簽這委托書, 正式委托書 [WC Leung] 負責處理, 從香港運貨到大陸的報關及運送目的地工作
2:20pm	接到 [Zeng] 之中間人黎文海電話, 初步講解貨原係由他朋友在外用採購回港再交由富享公司運送, 之後同 [Zeng] 交易, 於是要求到警署協助, 向黎先生表示盡快, 要31/8才會到本港, 到時可以會面
4:00pm	致電 [Mark Shipping] 找Samuel鍾調查AP [arrested person] 是可時找其公司運貨, 而Samuel表示可協助找出單據), 初部回覆係4/6 AP [arrested person] 的貨櫃離港, 但可時再要求運回香港就要翻查資料。同時應 [DPC47923] 要求, 可協助查問大陸倉個方面有否押過該批貨櫃, 但要稍後回覆
5:30pm	收到Samuel回覆要較耐時間取得資料, 於是留下電話等待回覆”

379.  According to the available pages of the Investigation Report, the following investigative steps were taken on 22 August 2007:

8:05am	[DPC58417] 致電 [TY Depot] 2xxxxxxx6, 由負責人何生接聽, 並查詢有關存放貨櫃嘅年期後得知存放45呎頭2日要200蚊, 之後每日就80蚊, 並FAX有關報價單比本隊
8:50am	[DPC58417] 致電 [TSW Depot] 負責人趙太 xxxxxx，並要求提供有關托運貨櫃嘅報價單, 其後收到有關FAX文件得知運送每一個櫃要500蚊
9:05am	[DPC58417] 致電震豐貨櫃服務有限公司 9xxxxxxx6李生有關托運貨櫃嘅費用, 期後得知每送一個櫃要500蚊
9:45am	收到上述2間公司嘅FAX報價單
10:00am	將2間FAX報價單比GR主管批核
10:25am	由GR主管回覆用 [TSW Depot] 貨運
10:45am	[DPC58417] 致電 [TSW Depot] 趙太並表示可以出車將 [6 Containers] 送去 [TY Depot] 而 [DPC58417] 亦會跟車前往
11:00pm	[DPC58417] 離署
11:30pm	收到 [TSW Depot] 趙太通知因無咁多司機, 所以只可以先運送 [4 Containers], 之後再送另外 [2 Containers]
12:15pm	[DPC58417] 離開天水圍區往青衣
3:30pm	將 [6 Containers] 全部送到 [TY Depot], 亦由上址負責人何生簽收, 並取回有關收據
4:20pm	返回警署”

(i)  Answer bail

380.  P2 and P3 were required to answer bail by reporting to TSW Police Station on 12 September 2007. Thereafter, P2 and P3 were required to regularly answer police bail by reporting to TSW Police Station as scheduled until July 2008 when they were released unconditionally without charge.

381.  P2’s and P3’s case  P2 could not remember how many times he attended TSW Police Station. According to the P2 1^st WStmt, on every occasion P2 answered bail at TSW Police Station he demanded “the officers and o/c of [DCI Team 1] to return the 6 [Containers] of [Goods] to [P1] but every time they made excuses the [Goods] were prosecution exhibits and could not be returned to [P1]”. Ps’ Reply averred that on each occasion P2 and P3 answered police bail at TSW Police Station P2 produced photocopies of the Documents to the Team 1 Officers to claim Ps’ possessory title over the Goods (see §17(ii) above), but such averment did not appear to be supported by evidence. According to the P3 1^st WStmt, after numerous occasions of reporting to TSW Police Station, P3 was released unconditionally without charge in July 2008, but every time P3 answered police bail, he asked the police officers for return of the Goods to his boss, but the police said they were detained for prosecution exhibits.

382.  Under cross-examination, P2 claimed he went with P3 to TSW Police Station every time he answered police bail, and neither he nor P3 requested for return of the 6 Containers to P1 on such occasions. P2 also testified that on the occasions when he returned to TSW Police Station to answer police bail, no police officer talked with him about the Containers, so he did not know anything about the Containers, “…… 警察係冇話畀 [P2] 聽, 嗰 [6 Containers] [police] 點樣處理 …… 冇聯絡㗎喇 ……”, “…… 凈係簽到名, 走得㗎喇 ……” Such evidence contradicted Ps’ Reply which pleaded that both P2 and P3 made numerous requests to the police on or before 17 December 2007 for return of the Containers.

383.  As for P3, he said under cross-examination he had to regularly attend TSW Police Station to answer police bail for over a year, “…… 約莫呀, 一個月一次, 咁十零次--十零二十次咁喇 ……”, but his evidence was diametrically contrary to that of P2 in that he claimed he did not go with P2, “…… 分開去, [P2] 有 [P2] 嘅時間、[P3] 有 [P3] 嘅時間 …… [P2] 都唔清楚 [P2] 同唔同個日子, 但 [P3] 去簽到個時候, [P2] 從未見過 [P2] ……” P3 said “…… [P3] 去到簽到嘅時候, 第一時間, [P3] 問 [DCI Team 1]「我想知道下, 我都想知道, 問我啲櫃同埋我發生咩嘢事」……”, but he was told “……「整個 [DCI Team 1] 已經係喺天水圍唔見咗」……”, “…… [P3] 嘗試去搵 …… [DCI Team 1] …… 好似 [P3] 未做到咁嘅動作, 已經成隊都唔見到 ……”, “…… 已經消失咗, 點問吖 ……” P3 also claimed the other police officers would not answer him. But when P3 was asked by the court to confirm whether he did orally ask any police officer what happened to the Containers, P3 said he did not.

384.  Findings  The SIP Li 2^nd WStmt stated that as far as he knew P2 and P3 had never told SIP Li or other police officers Ps had right to possession to the 6 Containers, and they never asked the police for return of the 6 Containers to them. DPC48923 2^nd Wstmt also stated P2/P3 never claimed to him or other police officers that they owned the 6 Containers, or requested the police to return the 6 Containers.

385.  On balance, I accept SIP Li’s and DPC47923’s aforesaid evidence. First, I bear in mind P2’s oral testimony in which he resiled from the P2 1^st WStmt by saying neither he nor P3 made any demand for return of the Goods/Containers when they answered bail. Secondly, on question by the court P3 conceded he did not orally ask the police officers what happened to the Containers when he answered bail. Thirdly, I find P3’s evidence in this respect unreliable. His suggestion that DCI Team 1 had disappeared (such that he was unable to ask about the Containers) was contradicted by the presence of CIP Shue who remained as OC of DCI Team 1 even up to the time of their unconditional discharge. Even if SIP Li, DSGT385 and DCP47923 were transferred out, DCI Team 1 still existed as other police officers joined the team. P3’s assertion also contradicted the 28/8/12 FBP (see footnote 5 above) that demands for return of the Containers were made by both P2 and P3 to DCI Team 1 and later to DCI Team 5 who refused such demands. Fourthly, P3’s evidence that he answered bail separately contradicted P2’s testimony as well as police records in the Investigation Report (see entries for 15 February, 14 March, 22 April, 16 May and 10 June 2008 in the Investigation Report in §397 below which showed that P1 and P2 attended TSW Police Station together to answer bail).

(j)  3^rd further police investigation

386.  DSGT385 did not know the investigation of this case took a year as he “…… 好短時間已經冇再跟進喇 ……” DSGT385 was “borrowed” from another team due to the medical indisposition of DCI Team 1’s detective sergeant, so he returned to his own team after a further day or so (see §118 above), and “…… 後期決定去調查個方向亦都唔關 [DSGT385] 事㗎喇 …… [DSGT385] 唔知㗎喇 ……” Further, SIP Li was the OC of DCI Team 1 only up till 30 September 2007 when he was transferred out of DCI Team 1 (see §116 above). DPC47985 was also transferred out of DCI Team 1 in early October 2007 (see §120 above).

387.  The SIP Li 1^st WStmt stated that when he was still the OC of DCI Team 1, he did his best to investigate into this case without delay, and the progress of investigation up to end of September 2007 was recorded in the Crime Message prepared by SIP Li and the available pages of the Investigation Report prepared by his police colleagues (see Part VIII(e), (f) and (h) above). DPC47923 (as investigation officer for this “blackmail” case) also said in the DPC47923 2^nd WStmt that he spared no effort to investigate the case, which investigative efforts were recorded in the available pages of the Investigation Report and showed no delay.

388.  DPC47923 made the entry for “pm” on 27 September 2009 that “繼續跟進此案, 奉命找 [Informant] 詢問為何合約上表明如被扣押, 被委托一方需賠償8萬元, 但為何不向被委托一方追討, 反而被委托一方出來傾談最後變成勒索” and “致電 [Informant], 但表示身在澳門, 要在3/10才有時間, 於是約在1300時到處協助調查”. SIP Li said under cross-examination he could not remember clearly about this, but believed that as he was still the OC of DCI Team 1 at the time he should be the one who gave such instructions to follow up with Hui. DPC47923 also said under cross-exmaination that “…… 照咁樣睇落去, 相信係 [DPC47923] 上級要求 [DPC47923] 向 [Informant], 即係 [Hui], 詢問嘅一個問題嚟嘅, 因為 [DPC47923] 相信, 如果 [DPC47923] 咁樣寫, 就 [DPC47923] 9月27號接番個file, 因為我哋要submit 㗎嘛, 跟住 [DPC47923] 接番個file, 跟住上面寫落嚟要我哋咁樣處理囉 ……” DPC47923 said the police “……. 澄清番啫, 因為我哋都唔係單方面㗎嘛 …..” DPC47923 then took the Hui 4^th PStmt for Hui to clarify the above query, and Hui’s clarification was summarised in the entry for 1:50pm on 3 October 2007 in the Investigation Report (see §393 below).

389.  In light of the above, I do not agree with Mr Sio’s submissions that the above entry for 29 July 2007 in the Investigation Report showed SIP Li had doubt as to whether the “blackmail” case might be a commercial dispute because he instructed DPC47923 to make enquiries with Hui as to P1’s Undertaking and “…… 為何不向被委托一方追討, 反而被委托一方出來傾談最後變成勒索”. In my view, this showed that proper police investigation required clues and queries to be pursued and investigated to ascertain whether there was any criminality worthy of prosecution. Thus, it was only appropriate to look into different facets of the case (see similar observation by DSGT385 in §260 above). Here, clarification of the matter raised by SIP Li was sought from Hui by way of the Hui 4^th PStmt taken on 3 October 2007 in which Hui gave the explanation in §393 below, ie compensation was payable under P1’s Undertaking only if the shipped goods were confiscated, but here it was not relevant because although the Containers were detained for 2 months they were eventually released and returned to Hong Kong, so there could not be any claim against “被委托方” under P1’s Undertaking. I am unable to see how this query and clarification that highlighted the irrelevance of P1’s Undertaking would confirm that the matter was a mere commercial dispute.

390.  According to the CIP Shue WStmt (as confirmed by CIP Shue under cross-exmaination), CIP Shue took over this “blackmail” case when he took up the post of OC of DCI Team 1. He learned that such “blackmail” case involved “…… [6 Containers] 連貨物因未能確認物主, 已被警方保管”, but even though the Crime Message (prepared by SIP Li) described the Containers as exhibits, CIP Shue said under cross-examination that “…… [CIP Shue] 接手嘅時候, [Goods/Containers] 嘅status, 佢冇喺exhibit嘅status, 所以 [police] 做嘅方法就係暫時去管理住佢 …… [CIP Shue] 冇辦法解釋前面嘅嘢, …… 但係喺 [CIP Shue] 接手嘅時候, …… 係冇任何紀錄 [Containers] 係exhibit ……”

391.  CIP Shue was in charge of the investigation of this “blackmail” case, and the entries after 27 September 2007 in the available pages of the Investigation Report reflected part of the progress of investigation. CIP Shue said that for reasons explained in §123 above, the available pages of the Investigation Report “…… 似乎唔係好完整, 特別係之後某啲月份 ……”, “…… 中間有啲月份係可能我哋見唔到有做過嘢嘅, 但可能係有做過嘢, 不過, 到今天 …… 可能係不存在 ……”

392.  CIP Shue said under cross-examination that his “…… 調查方向喺兩方面: 一個方面, 就係究竟當時嘅被捕人士 [P2 and P3] 同埋即係報案人士 [Hui] 個關係, 另外一個方向, 就係呢啲物主 [ie owners of the Goods/Containers] 同埋呢個托運裡面嘅所有嘅關係, 因為其實 …… 佢哋冇提供任何文件, 全部都係口頭協議, 所以呢一樣嘢係困難嘅; 另一方面, 就係個過程裡面,  好多人都唔喺香港,  咁當年我哋要用fax同埋長途電話,  咁冇乜實際可以搵到啲確實嘅關係,  即係唔似話有一張單,  我哋委托你呢間公司,  要幾多錢去運呢個櫃, [CIP Shue] 搵唔到任何呢啲嘢,  所以我哋嘅調查係從呢兩個方向去囉,  即係第一個方向, 就係佢哋啲關係喇; 第二個方向, 就係啲確實嘅ownership喺邊度囉 ……”

393.  According to the available pages of the Investigation Report, the following investigative steps (under CIP Shue’s supervision) were taken on 3 October 2007:

“1:10pm	[Hui] 到署
1:20pm	向 [Informant] 錄取Pol154口供 [ie Hui 4th PStmt]
1:50pm	完畢, [Informant] 表示表示由於今次不屬於扣櫃, 所以無向被委托一方追付, 扣櫃意思係要被扣查留不准退港, 要充公的才是委托書上的意思, 而現時批貨可退港, 所以並不能作出追付。 另外, 今次同AP [arrested person] 出來傾, 係想盡快解決事件, 不想得罪自己客人, 但是 [illegible] 要3萬元一隻櫃覺得係被勒索”

394.  DPC47923 took 3 police statements from Hui, and the police officers who took over from him took another 2 police statements from Hui. DPC47923 had no further contact with P2/P3 after 16 August 2007 as he was transferred out of DCI Team 1, but he was not surprised there did not appear to be any further police statements from P2/P3, “…… [DPC47923] …… 聽聞啫 …… 話正莊個file其實已經係銷咗㗎喇, 呢啲係影印本嚟, 係duplicate ……正本嘅file已經銷毀咗 ……” By the time of the Preliminary Trial, DPC47923 knew Hui had passed away.

(k)  Release of the Containers

395.  According to the CIP Shue WStmt, the Team 1 Officers took the Liu, Kwok and Zeng PStmts from Liu, Kwok and Zeng, and asked them to produce documents to show their capacity as owners of the Goods/Containers. On 30 November 2007, Kwok, Zeng and Liu (and their respective companies) by their solicitors Wongs wrote to the police to assert they were the legal and beneficial owners of the Containers, and to ask the police for return of the Goods/Containers that “had been retained by the Police” (“Wongs’ Letter”). CIP Shue said under cross-exmaination that in the course of investigation, it was discovered “…… 有班物主托 [Hui] 間公司運 [Containers] 返內地嘅, …… [Hui] 係托咗 [P2 and P3] 協助去運，但係中間出現 …… 當時係一啲勒索嘅allegation喇, 咁成件事就係由貨主 …… 畀錢一間公司托運去佢哋大陸嘅一個地方 …… 其實呢批貨, [CIP Shue] 毫無疑問地, [CIP Shue] 覺得--只要佢哋提供到所有合法文件嘅話, 呢啲貨係佢哋原本嘅,  咁 [CIP Shue] 唔覺得個ownership有改變到, 所以我哋當時就朝呢個方向做 ……” CIP Shue did not seek legal advice about this because be believed “…… 一個貨主托一個運輸公司去運去佢指定嘅地方, 中間喺運輸嘅合約裡面出現一啲非法嘅allegations, 咁其實喺 [CIP Shue] 調查嘅過程裡面, [CIP Shue] 係冇睇到個貨主, 除咗運費上面嘅嘢之外, 佢唔係 …… lawful owner, 所以 [CIP Shue] 喺當時去做一啲工作就係搵 …… [CIP Shue] 可以認同嘅所有證據同埋佢哋嘅ownership之後, [CIP Shue] 係決定將啲貨櫃還番畀佢哋 …… 即係話, 如果貨主能夠證明到佢係 …… 貨主嘅話, 而喺 [CIP Shue] 嘅眼中冇牽涉到落 …… 呢個勒索嘅allegation喇, …… 佢以貨主嘅身份就唔會改變, …… 所以係咁樣就放貨嘅 ……”

396.  According to the available pages of the Investigation Report, upon confirmation of the capacity of the owners of the 6 Containers, on 17 December 2007 the 1^st Container was returned to Kwok, the 2^nd, 5^th and 6^th Containers were returned to Liu, and the 3^rd and 4^th Containers were returned to Zeng upon presentation of letters of authorisation (委托書):

“2007-12-14	AM	[DSGT33524] 奉命接手調查本案
-“-	1:15pm	[DSGT33524] 致電 [Kwok] (Tel: 9xxxxxx7), 並得知他現在香港, 他表示在下星期有時間可取回其被警方扣查之貨櫃
-“-	1:20pm	[DSGT33524]致電[Informant/Hui] (Tel: 9xxxxxx8), 並得知他在下星期有時間協助處理該個6個被警方扣押之貨櫃
-“-	1:25pm	[DSGT33524] 致電 [Zeng] (Tel: 9xxxxxx7), 其電話響聲為長途電話及無人接聽
-“-	1:30pm	[DSGT33524] 致電 [Liu] (Tel: 6xxxxxx3), 但電話無人聽, 因此留言待覆
-“-	3:00pm	[DSGT33524] 致電 [TY Depot] (Tel: 2xxxxxx6), 並由上址職員何先生接聽, 據他表示想上址之工作時間由星期一至日, 由0700至2300時, 取貨櫃時需要預早一天通知, 並不需立即繳費, 稍後賬單會寄回警署
2007-12-16	5:00pm	[DSGT33524] 致電 Zeng (Tel: 9xxxxxx7), 電話響聲為長途電話, 但無人接聽及斷線
2007-12-16	5:05pm	[DSGT33524] 致電 [Liu] (Tel: 6xxxxxx3), 電話無人接聽, 因此留言待覆
2007-12-16	5:10pm	[DSGT33524] 致電 [Kwok] 及 [Hui], 並相約好他們在2007-12-19，1500時處理有關交還貨櫃之安排
2007-12-16	5:20pm	[Liu] 回覆來電並由 [DSGT33524] 相約好在 2007-12-17, 1000時到署協助處理有關交還貨櫃之安排
2007-12-16	10:20pm	[DSGT33524] 致電 [Zeng] (Tel: 9xxxxxx7), 並成功聯絡, 及相約好在2007-12-19, 1500時到署協助處理有關交還貨櫃之安排, 另外他亦提供另一個內地電話, 號碼為1xxxxxxxxx8
2007-12-17	3:25pm	[DSGT33524] 替 [Informant/Hui] 錄取口供 [ie Hui 5th PStmt],[94] 而他亦同意警方安排將 [6 Containers] 交還予物主保管
2007-12-17	3:30pm	DPC4029替貨主 [Kwok] 錄取口供, 而他認為3萬元運費不合理，而合理價錢為$15 [illegible]
2007-12-17	3:50pm	[DSGT33524] 替貨主 [Liu] 錄取口供, 而她認為3萬元運費不合理, 而索償之費用應由做錯的一方負責
2007-12-17	3:50pm	DPC4029替貨主 [Zeng] 錄取口供, 而他認為3萬元運費不合理, 而合理價錢為$5 [illegible]
2007-12-17	5:00pm	[DSGT33524] 及DPC4029聯同 [Informant/ Hui], 三名貨主 [Kwok]、[Liu] 、[Zeng] 到達 [TY Depot] 交還所屬之貨櫃
2007-12-17	5:30pm	IB Photo SPC19008到場協助拍攝有關之貨櫃
2007-12-17	6:05pm	將 [1st Container] 在 [Informant/Hui] 面前交還予[Kwok], 並在DPC4029之記事冊 (S/N: xxxxxx) 第44頁簽收
2007-12-17	6:15pm	將 [3rd and 4th Containers] 交還予 [Zeng], 並在DPC4029之記事冊 (S/N: xxxxxx) 第45頁簽收
2007-12-17	6:30pm	將 [2nd, 5th and 6th Containers] 在 [Informant/Hui] 面前交還予 [Liu], 並在DPC4029之記事冊 (S/N: xxxxxx) 第45-46頁簽收
2007-12-17	6:30pm	IB Photo SPC19008拍攝完畢, 共拍照片33張”

(l)  4^th further police investigations

397.  After release of the Containers, there was further investigation of about 7 months before the police sought legal advice. CIP Shue said that during this period “…… 咁 [police] 用咗好多時間去澄清呢啲嘢喇, 但係中間 …… 其實真係唔係可以好多資料攞到 …… 因為大陸、香港有延誤咁嘅意思 ……” Under re-examination, CIP Shue explained that the fact some relevant persons were in Mainland China had “…… 好大影響, [CIP Shue] 印象之中, 其實 [P2/P3] 解釋佢嘅公司、所有嘅資料都話喺內地嘅, 咁但係 [police] 應該長時間都聯絡唔到佢哋, 甚至攞唔到一啲即係支持佢哋解說嘅一啲文件, 咁但係整體嚟講 …… 都係好慢嘅個進程 …… 即係溝通唔到, 同上面搵唔到資料 ……”

398.  According to the available pages of the Investigation Report, the following investigation steps were taken between 14 January and 10 June 2008:

2018.1.14	PM	[DSPC13646] 收到本案繼續處理
2008.1.22	AM	致電 [TSW Depot] 負責人趙太 (2xxxxxx8) 以要求她向本署提供2007.8.22貨運本案有關 [6 Containers] 之發票: 0000406，0000408至0000412以進行填寫Quotation Record Sheet
2008.1.22	2:10pm	[TSW Depot] 職員(M/NG Shing-leung (吳成良) HKID: Kxxxxxx(x), DOB: xxxx.x.xx，地址: 屯門良景邨 xx樓xxxx室, 電話: 6xxxxxx3) 到署提供於2007.8.22貨運 [6 Containers] 之發票正本
2008.1.23	9:40am	致電9xxxxxx8繳得 [Informant/Hui] 於明天(2008.1.24, 0930時到署提供進一步口供以調查有關本案 [Informant] 委托AP [arrested person] 一方公司貨運 [6 Containers] 之情況
2008.1.24	9:43am	[Informant/Hui] (ID: Dxxxxxx(x)) 到署協助調查
2008.1.24	9:46am	署內查 [Hui] EPONICS結果為NCR
2008.1.24	9:48am	署內向 [Hui] 仔細查詢本案背景資料
2008.1.24	10:40am -1:45pm	於署內向 [Informant] 筆錄了一份Pol154口供以調查他委托一方公司貨運本案有關 [6 Containers] 之情況 [ie Hui 6th PStmt]
2008.1.24	1:48pm	[Informant] 離署, 向 [Informant] 臨離署前曾透露其在香港所註冊之 [Keung Kee] 在案發後經已倒閉, 而他個人方面亦於2008年1月中旬向高等法院申請破產，並大約會於2008年2月中旬在高等法院審理其破產申請
2008.1.30	PM	……
2008.2.15	4:00pm	AP [arrested person] ([P3] 及 [P2])返署報到後被獲准以相同條件續約警察擔保外出至2008.3.14, 1800時返署報到
2008.3.2	1:16pm	致電 [P2] (6xxxxxx3) 欲向其要求 [LB Tang] 向本隊聯絡以了解事件經, 但電話經已停用
2008.3.2	1:17pm -1:45pm	再致電3xxxxxx7與AP [arrested person] [P2] 以透過他聯絡本案中的VTM [victim] ([Hui]) 以口頭承諾貨運本案 [6 Containers] 之大陸人仕 ([LB Tang]), 而[P2] 稱 [LB Tang] 是他疏堂姪仔, 而在2007年8月中是他陪同其姪仔在上水地區之 [Restaurant] 與 [Hui] 見面及傾談 [Containers] 之貨運費用問題, [P2] 稱他會盡快致電返大陸通知[LB Tang] 與 [DSPC13646] 聯絡, 以便 [DSPC13646] 向其作進一步調查
2008.3.3	9:45am -9:58am	署內收到叫 [LB Tang] 來電, 而根據其稱他與AP [arrested person] [P2] 是叔姪關係, 並由 [P2] 在港代理他在大陸公司之事務, 而經 [DSPC13646] 與[LB Tang] 聯絡當中，他亦承認本案中 [6 Containers] 是由於大陸海關方面未有批准入境而需要退回香港, 但是由於本案當中各人只是在大陸簽署一份非常簡單之合約, 並以相方在大陸開設之公司的代表進行簽約, 而且在港方, 互相間亦只係全部以口頭承諾處理本案中 [6 Containers]貨運, 柜運送往大陸事宜, 但其後由於貨柜未能順利由香港進入大陸, 而引致相方面因臨時繳交貨運及存倉費用上發生分歧, 並引致今次案件發生 無論如何, [LB Tang] 稱由於他要在大陸處理公司每日繁忙事務, 故他未知何時能到港向本隊人員提供口供 (Pol154) 以協查本案, 但 [LB Tang] 稱他現會親自草擬一份手筆聲明書並Fax與本隊以講述本案之始末
2008.3.14	6:00pm	APS [arrested persons] 返署報到, 而AP(2) [P2] 稱 [LB Tang] 是與其有叔姪關係, 而他稱日後他會返大陸揾 [LB Tang] 談有關其所寫之聲明書有否完成傳給與本隊, 另外, APS  [arrested persons] 亦獲准續以警察擔保至2008.4.6, 1800 時返署向本隊報到
2008.4.6	6:00pm	APS返署報到, 而AP(2) [P2] 稱其姪仔[LB Tang] 稱要與公司股東開會始再作決定會否提供本案有關他接洽本案生意至本案發生之流程內容個人聲明書, 所以暫時 [LB Tang] 是否會到港或提供聲明書與本隊作進一步調查，而現時APS [arrested persons] 續批准以警察擔保外出至2008.4.22返署報到
2008.4.22	6:00pm	APS [arrested persons] 返回本隊報到，而AP(2) [P2] 稱他本人曾到大陸內地與其姪仔[LB Tang]接觸, 而其姪仔稱礙於他與大陸公司 ([FCGC Co Ltd]) 之股東開會深入研究下, [LB Tang] 謂股東一致決定唔會與香港警方合作或提供任何資料與香港警方調查用途, 而 [DSPC13646] 亦就以上情況與OC [CIP Shue] 報告, 而APS [arrested persons] 亦續以警察擔保外出至2008.5.16 1800時返署向本隊報到
2008.5.16	6:00pm	APS [arrested persons] 返署向本隊報到, 並續以警察擔保外出至2008.6.10, 1800時返回本隊報到
2008.6.10	6:00pm	APS [arrested persons] 返回本署報到，並續以警察擔保外出至2008.7.11 1800時返回本隊報到”

399.  Indeed, there had been difficulty all along in contacting LB Tang. As early as the Hui 1^st PStmt taken on 16 August 2007, DPC54800 by question (4) therein enquired “咁你重有無聯絡 [LB Tang]?”, and Hui’s answer (4) stated “有, 但係 [LB Tang] 話 [LB Tang] 唔得閒, 叫 [Hui] 自己搞掂”. The Hui 6^th PStmt taken on 24 January 2008 recorded DPC13636’s questions (6)-(7) that “你現時有否 [LB Tang] 其他任何聯絡能夠提供呢?” and “你知唔知道 [LB Tang] 於香港有否任何親戚朋友呢?” as well as Hui’s answers (6)-(7) that “[Hui] 只知 [LB Tang] 係廣西防城港市防城區山祿組 (原石角碼頭), 開咗一間叫 [FCGC Co Ltd], 電話係1xxxxxxxxxx8, 0xxx-xxxxxx3, 0xxx-xxxxxx6, 但 [Hui] 冇去過 [LB Tang] 以上公司地址, [LB Tang] 係大陸人長期居住大陸, [Hui] 並無 [LB Tang] 大陸住址” and “[Hui] 記得係2007年8月15日, [Hui] 由 [LB Tang] 約 [Hui] 喺 [Restaurant] 飲茶時, 同 [LB Tang] 一齊嘅兩個男人, 其中一個 [later known as P2], 曾經由 [LB Tang] 介紹過俾 [Hui] 識係 [LB Tang] 亞叔, 叫做亞平 [later known to be P2], 但 [Hui] 唔知佢兩人係唔係有血緣關係嘅叔姪, 但 [Hui] 亦冇呢個亞平嘅任何資料”. This probably explained why DPC13646 raised query in March 2008 with P2 for liaison with LB Tang to make further enquiries. DPC13646 received confirmation that LB Tang was P2’s “疏堂侄仔”, and through P2 he was able to speak to LB Tang by telephone. But although LB Tang initially indicated willingness to assist by providing information by way of a declaration, by late April 2008 P2 informed DPC13646 that LB Tang was unwilling to assist (see entries for 2 March to 22 April 2008 in the Investigation Report in §398 above).

400.  P2 under re-exmaination claimed this was untrue, “…… 即係08年嘅時候, 警察 ……冇搵 [P2] ……冇叫 [P2] 去搵 [LB Tang] ……”, but on balance I reject such assertion. I see no reason for DPC13646 who was not involved in P2’s arrest to make up these matters in the Investigation Report. CIP Shue’s attention was drawn to the aforesaid entries in 2008 in which the police tried to reach LB Tang through P2 (see §398 above). He said under cross-examination that even though the available pages of the Investigation Report were not complete, from these entries in the available pages and from his recollection, the police did make efforts to gather information from persons in Mainland China. According to the CIP Shue WStmt, the Team 1 Officers continued to do their best to investigate into the “blackmail” case, and there was no delay. In the meantime, P2 and P3 remained on police bail and had to report to TSW Police Station to answer bail at scheduled times. It appeared from §398 above that in 2008 P2 and P3 answered bail largely on monthly basis, which was consistent with P3’s testimony that he answered bail “…… 約莫呀, 一個月一次 ……” (see §383 above).

(m)  Unconditional discharge

401.  CIP Shue said under cross-examination he could not remember the detailed investigative steps, but some were shown in the available pages of the Investigation Report. During this latter period, the investigation “…… 主要係, 究竟 [Hui] 同 [P2 and P3] 實質仲有咩嘢關係 [see §398 and §400 above], 同埋佢哋…… 究竟係一個民事，即係一個商業糾紛定係真係一個刑事嘅allegation, 其實 …… 最後 [CIP Shue] 寫嘅report畀legal, [CIP Shue] 係覺得有好多隱藏嘅嘢嘅, 佢哋兩個關係, 所以 …… 最後 [CIP Shue] 都係覺得冇足夠嘅證據去檢控佢哋 ……”

402.  According to the CIP Shue WStmt, the investigation drew to a close on 9 July 2008, and he arranged for the relevant documents to be submitted to the Department of Justice for legal advice. As it would take time to receive the legal advice, CIP Shue considered it was not necessary to require P2 and P3 to further answer police bail, so on 21 July 2008 P2 and P3 were unconditionally discharged with bail money returned to them.

403.  On 4 August 2008, P1’s solicitors CFC sent the 4/8/08 Letter to the police to request for return of the Goods/Containers as follows:

“We act for [P1] which is a logistics company incorporated in the People’s Republic of China (“PRC”).

[P1] has agreed with [Keung Kee], an agent of the owner of goods below described at the costs and disbursement of Three hundred thousand Reminbi (RMB 300,000) for the transportation of the goods to be returned to Hong Kong from PRC. Hence, [P1] has a lien for the goods for RMB 300,000.

[P1] has authorised [P2] to process and return the goods and collect the said RMB 300,000 upon to release of the goods to the owner, 6 containers of scrap metal ([1^st to 6^th Containers]). Copy of the authorisation by [P1] to [P2] is hereby enclosed for your easy reference.

We are given to understand [P2] had been put on police bail for blackmail and the goods which were seized by the police as intended exhibits. However, you decide no prosecution was intended against [P2] and he was released unconditionally about 2 weeks ago.

Now [P2] as an authorized agent has now ben revoked and a new attorney, Mr Lai Ke Wai (賴嘉威), (holder of Hong Kong identity card No. Zxxxxxx(x)) has been appointed in replacement to retrieve the goods from you, copy of the 授權書 is enclosed herewith for your easy reference.

……”

404.  According to the CIP Shue WStmt, as far as CIP Shue knew (and on balance I accept), before the police received the 4/8/08 Letter, P2, P3 or any other person claiming to represent P1 had not made claim to CIP Shue or other police officer(s) to be the owner of the Containers, or asked the police for return of the 6 Containers. CIP Shue submitted the 4/8/08 Letter to the Department of Justice for follow-up action.

405.  On 11 September 2008, the police replied to CFC by the 11/9/08 Letter that (a) legal advice was being sought from the Department of Justice but such advice was still pending, but (b) the Containers were no longer kept by the police and had been returned to their owners in December 2007. P2 claimed to be very shocked to learn that the Goods were returned to the “owners” on December 2007 without any prior warning/notice to or consent by Ps. But there is no basis for such complaint as I have found Ps had no possessory right/title or right of lien to the Goods/Containers (see Part VII(m) above).

406.  CIP Shue said legal advice from the Department for Justice received on 22 September 2008 revealed that no prosecution would be brought against anyone, so the blackmail case came to an end.

407.  By a letter to the police dated 13 February 2009, CFC referred to the 4/8/08 Letter and asked for “the result of your investigation and prosecution (if any)”. On 18 February 2009, the police replied by the 18/2/09 Letter that the police investigation had finished, and as there was insufficient evidence to support a charge against any person, there would be no prosecution at that stage, but if additional information would become available in future to implicant any person in the incident, the case would be further considered then. CFC wrote to the police on 21 February 2009 to complain that the police seized the Goods from P2 as exhibits for possible prosecution, but were told by the police the Goods “had been given to person who claimed being owner of the [Goods] which [Ps] had legitimate right of lien for unpaid service and disbursement” without Ps’ knowledge/consent. As Ps were intending to sue (amongst others) persons to whom the police had released the seized Goods, CFC asked for the names, identities and addresses of the persons to whom the police released the seized Goods. About 2 months later on 28 April 2009, the police replied by the 28/4/09 Letter that the Goods had been returned to Kwok, Zeng and Lui, and provided the names and contact details of their companies.

(n)  Discussion

408.  P2’s and P3’s pleaded claim on misfeasance in public office in the RASoC and Reply was premised on 2 aspects:

(a)

Alleged prolonged period of police bail: “….. the [Team 1 Officers] did not have reasonable cause to believe or suspect that [P2] and/or [P3] would be guilty of blackmail after the [Goods/Containers] were disposed to any third party. The prolonged period of police bails faced by [P2] and [P3] were therefore caused by an abuse of power of the [Team 1 Officers], who performed their duties in bad faith and/or recklessly with a conscious disregard for the interests of [P2] and [P3]” (my emphasis) (§34 of the RASoC) Both Mr Sio and Mr Lam agreed it was the period after release of the Containers to Kwok, Zeng and Liu until P2’s and P3’s unconditional discharge from police bail (ie 17 December 2007 to 21 July 2008) and not the period before release of the Containers that was the subject period of complaint.

(b)

Use of handcuffs on the way for house searches: “…… [P2] and/or [P3] being handcuffed when conveyed to their homes for house search is an abuse of power conferred to the [Team 1 Officers] under the [PGO]. At all material times, neither [P2] nor [P3] demonstrated any violent behaviour or any tendency to escape. The use of handcuffs was therefore unreasonable and unjustifiable and the [Team 1 Officers] were reckless as to the probable injury and/or harm suffered by [P2] and [P3]” (my emphasis) (§35 of the RASoC)

Ps’ Reply at §21 also gave further particulars of P2’s and P3’s claim in misfeasance in public office, which particulars are set out in §24 above.

409.  Mr Sio submitted that the police bail was prolonged in that P2 and P3 ought to have been unconditionally released once the police released the Goods/Containers to Kwok, Zeng and Liu on 17 December 2007. On the other hand, Mr Lam suggested misfeasance in public office could not be established on the premise of the plea in §408(a) above as to alleged prolonged period of police bail.

410.  First, Mr Sio submitted the available pages of the Investigation Report (albeit incomplete) showed the material investigative steps taken by the police, eg the police took the Hui 1^st-6^th PStmts, which, according to Mr Sio, “demonstrated sufficient information to [prove] P2 and P3 were innocent”. I set out below Mr Sio’s contentions which he made in support for his submissions in §411 below, and for convenience I set out my corresponding findings below which, in my view, undermined Mr Sio’s submissions in §411 below:

(a)	Mr Sio submitted that in the Hui 2nd PStmt DPC47923 “questioned Hui why he did not mention the detention of container in Guangxi was due to the non-compliance of environmental regulation”, and “Hui said he thought it was irrelevant”. I have dealt with this point in §167 above, and cannot see how it would demonstrate to the police that P2 and P3 were therefore innocent.
(b)	Mr Sio submitted that on 29 July 2007 SIP Li had doubt as to whether the “blackmail” case might be a commercial dispute, and he instructed DPC47923 to make enquiries with Hui as to P1’s Undertaking and “…… 為何不向被委托一方追討, 反而被委托一方出來傾談最後變成勒索”, which doubt was clarified in the Hui 4th PStmt taken on 3 October 2007 in which Hui gave the explanation in §393 above. I have dealt with this point in §§389-390 above, and do not see how this could take the matter any further to demonstrate that P2 and P3 were therefore innocent of any criminality.
(c)	Mr Sio pointed out that on 24 January 2008 DPC13646 took the Hui 6th PStmt from Hui in which Hui admitted that the Goods in the Containers were E-Waste at the time when they engaged P1, that he knew the Goods/Containers were detained by Guangxi C&E, and that he paid RMB40,000 to LB Tang for return of the Goods/Containers to Hong Kong (see particularly questions (4)-(5) and answers (4)-(5) recorded in the Hui 6th PStmt). In light of the full background as to the Bargain, the C&E Detention and the release/return of the Goods/Containers given in the Hui 6th PStmt, I do not see how the following matters in the Hui 6th PStmt would detract from reasonable suspicion of “unwarranted” “demand” “with menaces”: (i) Hui’s knowledge that the Goods were E-Waste at the time when Keung Kee and P1 entered into the Bargain and that the Goods/ Containers were detained by Guangxi C&E when it was LB Tang’s / P1’s obligation to cause the Goods being E-Waste to be imported into Mainland China outside normal procedures and through LB Tang’s / P1’s guanxi and influence on Guangxi C&E and when no upfront payment was due until after successful import of the Goods/ Containers (see §§142-146 and §187 above); (ii) Hui’s willingness to pay the Fang Cheng Gang City port fees (even though he knew there was no obligation for him / Keung Kee to make such payment) when LB Tang told him P1 was cash-strapped in order to have the Goods/Containers released for return to Hong Kong after a lengthy C&E Detention to address the concerns of Hui’s own customers (see §§205-206 above).

411.  In the circumstances, I do not accept there was sufficient evidence (or what Mr Sio described as overwhelming evidence) by 3 October 2007 to show that the subject incident was a mere general commercial dispute without any “demand with menaces”, that P2 and P3 were innocent of any allegation of “blackmail”, and that it was merely Hui’s unwillingness to make payment to support his “feeling” of being blackmailed.

412.  Mr Sio next argued that upon release of the Goods/ Containers to Kwok, Zeng and Liu on 17 December 2007 bolstered by information in the Hui 6^th PStmt obtained on 24 January 2008, the police ought to have known they were misled by Hui who concealed material information, which demonstrated Hui merely “used” the police as a means for return of the E-Waste to the alleged owners without having to pay Ps, so a reasonably competent police officer should have come to conclusion that P2 and P3 were innocent and ought to have been immediately and unconditionally released. It was said that continuing pointless investigation for over 6 months in such circumstances amounted to “recklessness”, so requiring P2 and P3 to answer police bail from December 2007 to July 2008 was without reasonable and probable cause and therefore wrongful.

413.  In my view, given my underlying factual findings in §410(a)-(c) above, Mr Sio’s submissions in §412 above fell away. Mr Lam also invoked the rule of Browne v Dunn to complain that Mr Sio failed to suggest to CIP Shue under cross-examination that he had delayed the investigation and/or that P2 and P3 had been put on police bail for an unnecessarily prolonged period of time.

414.  From the history of police investigation as evident from the available Investigation Report (albeit incomplete due to loss/destruction) and from D’s witnesses (especially that of CIP Shue), I find there was no delay in the investigation process to cause the period of police bail to be unjustifiably prolonged. There was intense police investigation at an early stage, eg made arrangements for the storage of the Containers, took further police statements from Hui, took police statements from Kwok, Zeng and Liu, and made enquiry about LB Tang (see Part VIII (f), (h) and (j) and §399 above). In any event, in the period after release of the Containers to Kwok, Zeng and Liu (ie from 17 December 2007 to 21 July 2008), CIP Shue explained his 2 lines of investigation (ie (a) the relationship between Hui and P2/P3 and (b) the ownership of the Goods/Containers) (see §392 above). Although there was better progress in ascertaining the identities of the owners of Goods/Containers which factual ownership was not affected by allegations of blackmail in relation to their shipment/transport (and which in turn led to release of the Goods/ Containers to the owners before P2/P3 were released from police bail) (see §§395 above), the police faced difficulties in their investigation into the relationship between Hui and P2/P3 (eg there was lack of documentary proof, some key players such as LB Tang were not in Hong Kong, the involved persons were withholding information and not being entirely frank with the police, etc) (see §397-401 above), so the investigation took some time before it became evident in mid-2008 that the lines of investigation were not fruitful, and hence P2 and P3 were unconditionally released upon investigation coming to a close (see §§402 above).

415.  Next, Mr Lam submitted the pleaded mental state of the Team 1 Officers, ie they “did not have reasonable cause to believe or suspect that [P2] and/or [P3] would be guilty of blackmail after the [Containers] were disposed to any third party”, was insufficient for the tort of misfeasance in the public office in contra-distinction to the test for establishing lawful arrest. Bearing in mind that P2 and P3 relied on “reckless untargeted malice” (see §§74-78 above), the Team 1 Officers had to either know P2 and P3 would not be found guilty of blackmail, or did not honestly believe P2 and P3 would be found guilty of blackmail (see Part IV(b) above).

416.  Further, there was paucity of evidence that the police officers concerned were aware that requiring P2 and P3 to answer police bail during the relevant period from 17 December 2007 to 21 July 2008 would cause them to suffer the type of loss now claimed to have been suffered by P2 and P3, ie loss arising out of psychological and/or psychiatric damage (see §46 above). This was not substantively addressed in Mr Sio’s closing submissions. Mr Lam submitted the present case was similar to Tang Nin Mun where the plaintiff’s claim on misfeasance in the public office failed because there was no realistic prospect of establishing that the constable was subjectively aware that his fabrication of evidence would in the ordinary course lead to the plaintiff suffering psychiatric disorder.

417.  In Tang Nin Mun, the plaintiff and his wife were seriously wounded in an unprovoked attack by X. The investigating police constable fabricated evidence that the attack was provoked and that the injuries were not too serious. As a consequence, X was only charged with and convicted of relatively minor offences. When the plaintiff discovered that the course of justice had been so perverted, he suffered mental distress and developed a psychiatric condition. The plaintiff brought an action for misfeasance in public office. At issue was what constituent mental element on the part of a public officer established the tort of misfeasance in public office, and whether this mental element could be established on the plaintiff’s pleaded case. The defendant applied successfully to strike out the plaintiff’s claim inter alia on the basis that the plaintiff’s pleaded case had to fail because it provided no basis for establishing the requisite mental state on the part of the defendant to constitute misfeasance in public office (page 326).

418.  It was held that an action for misfeasance in public office involved the allegation that a public officer acted in bad faith and dishonestly abused his powers with the subjective knowledge that his actions would injure the plaintiff. So “[it] follows that the plaintiff’s claim in the present case is only viable if he is in a position to allege and ultimately to establish that in abusing his police powers of investigation, the constable either intended to injure the plaintiff or knew that such conduct would in the ordinary course directly cause injury to the plaintiff of the type actually suffered (that is, cause him to suffer psychiatric disorder and disability) or that he was recklessly indifferent as to whether such injury would ensur” (pages 328-329).

419.  In that case, the plaintiff made the barest of assertions as to the constable’s mental state, ie the unlawful act was motivated by malice and clearly constituted misfeasance in public office, or alternatively the constable acted either on the basis of malice or with knowledge of the unlawful nature of the action and the probability of injury to the plaintiff. A proposed amendment was put forward to rely on untargeted malice or recklessness:

“Or alternatively, [the constable acted] knowing that he had no power to fabricate the plaintiff’s statement and with the knowledge that the fabrication of the statement would lead to the lesser punishment of the plaintiff’s assailant which result would in turn cause harm to the plaintiff as the victim of the assault or being reckless of such a consequence or with a conscious disregard that such a consequence would occur.” (page 329)

420.  Ribeiro JA (as he then was) held such draft would not save the plaintiff’s pleading and dismissed the appeal:

“…… An action for misfeasance in public office involves the allegation that a public officer acted in bad faith and dishonestly abused his powers, knowing that the plaintiff was likely in the ordinary course to suffer injury of the type actually suffered as a result of the officer’s unlawful conduct. These are grave allegations that, in fairness to defendants, must be supported by pleaded facts which, if proved at trial, are capable of establishing liability.

In the present case, there is quite plainly no realistic prospect of the plaintiff establishing that the constable was subjectively aware that his fabrication of the evidence would, in the ordinary course of events, lead to the plaintiff suffering psychiatric disorders of the type of which he complains. We do not therefore consider that the action should be allowed to continue.”

421.  P’s Reply pleaded that the Team 1 Officers were aware or ought to have been aware P2 and/or P3 became unemployed shortly after their arrests, and the prolonged investigations caused them inconvenience, grievance and/or depression (see §45(j) above). There was some evidence from P2 and P3 that they lost their jobs after the arrests and suffered loss of earnings (as P1 terminated their employment, did not pay their salaries and did not reimburse P2 for incurred costs and disbursements) and loss of earning capacity (as they were shunned by the logistics trade) (see §§366-367 above). But such alleged loss and damage already arose upon P2’s and P3’s arrests on 16 August 2007 and not because of the alleged prolonged police bail after 17 December 2007. Mr Lam also reminded that (a) apart from P2’s and P3’s bare assertions, there was no evidence as to their actual attempts to find work and their actual difficulties in seeking any employment, eg failed job applications, particularly due to the imposition of police bail between December 2007 and July 2008, and (b) there was also no evidence that such employment-related problems were somehow conveyed to the police officers concerned or in the ordinary course would be known to the police officers concerned. There was also no evidence that the Team 1 Officers were subjectively aware that the alleged prolonged police bail for the relevant period from 17 December 2007 to 21 July 2008 would, in the ordinary course of events, have led P2 and P3 to suffer psychological/psychiatric illness of the type of which they complained. I agree with Mr Lam there was paucity of evidence as to how the police officers were reckless (ie turning a blind eye) to an expected risk of damage that might be caused to P2 and P3.

422.  Next, Mr Sio submitted that the key complaint for misfeasance in public office under the head in §408(b) above was the use of handcuffs on the way to and during P2’s and P3’s house searches.

423.  I start with the relevant law and police guidance on the subject. Section 101A(1) of the Criminal Procedure Ordinance Cap 221 provides that “[a] person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.  Archbold Hong Kong 2020 states that:[95]

“What is reasonable force depends on the circumstances …… A police officer is entitled to use handcuffs or similar methods of restrain where it is necessary to prevent an escape or if the person has attempted to escape or evade arrest ……

It would seem that where handcuffs are unjustifiably resorted to, their use will constitute a trespass even though the arrest itself be lawful …… The Police General Orders provide guidelines concerning the use of handcuffs.”

424.  According to the PGO under PGO29-11,

“2. The use of wrist restraints is a use of force that must be justified as reasonable and warranted and should only be used provided that no lesser degree of force, such as physical restraint, can achieve the purpose. The use of handcuffs on a person renders him automatically under arrest. Arrest and detention, including the use of wrist restraints, confers a duty of care on the police over the person restrained.

3. A police officer may use wrist restraints when reasonably necessary:-

(a) to ensure the security and control of an arrested person whom he has reasons to believe is likely to escape; or

(b) to protect himself or another person, including the person to be restrained, from any injury.”

425.  Mr Sio submitted that on the evidence from D’s witnesses, there was no sign that P2 and/or P3 intended to escape and/or would hurt themselves or others, so the use of handcuffes were merely preventive measures. Mr Sio submitted that handcuffs were not to be used merely as preventive measure because were such use justifiable and/or reasonable, then bearing in mind that the use of handcuffs was a common measure taken by the police, the PGO would have been written differently. He submitted that the police officers were in breach of PGO 29-11 in using handcuffs on P2 and P3 on the way to and during house searches, which use was “reckless and sub-standard” and hence abuse of power by the police. On the other hand, Mr Lam submitted that P2’s and P3’s purported reliance on the handcuffing issue to establish misfeasance in the public office must fail. He submitted that P2 and P3 were lawfully and justifiably handcuffed in the course of their respective house search as explained by SIP Li who gave evidence that in accordance with standing police procedure he instructed DPC47923 to handcuff P2 and P3 during their respective house search, and even though there was no overt sign of escape or violence at the material time, handcuffing was a precautionary measure to prevent suspect from escaping or using violence against himself or other persons.

426.  In Leung Kwok Hung v Secretary for Justice,[96] the plaintiff was told at Lo Wu Control Point that he was being arrested for “a Central Police Station case of using a false instrument, case number CRN00004982”. No particulars of the offence were given. The plaintiff was escorted in handcuffs and iron waist chain from Ta Kwu Ling Police Station to Central Police Station by 3 officers in a police vehicle. At the station, the plaintiff was given detailed reasons for his arrest and he then gave explanation about a “A18” invoice. The plaintiff sued the Secretary for Justice claiming damages for inter alia unlawful arrest and detention. In that case, the arrest was held to be unlawful, so the police had no right to use any force against the plaintiff until the arrest became lawful.

427.  However, what was apparent from the facts of the case in the trial judgment (with more detailed account in an interlocutory judgment)[97] was that from the time of the arrest of the plaintiff and during the journey from Ta Kwu Ling Police Station to Central Police Station, there was no mention of any overt signs of intention to use violence or to escape from custody. PC52450 who escorted the plaintiff on the journey to Central Police Station could not recall what happened, but speaking from his experience said that “given the long distance between Ta Kwu Ling Police Station and Central Police Station and the need to ensure that the suspect in the vehicle could not escape or harm himself or the police officers in the vehicle, he believed that on that day at least handcuffs would have been used to make sure everyone was safe” (page 266).  Lam J (as he then was) said as follows:

“62. In the course of arresting a person and escorting the arrested person, the police can use reasonable measures and force to prevent the arrested person from escaping. If, however, those measures and force exceed what is reasonably necessary, the police may be required to pay compensation to the arrested persons. There are cases in which law enforcement authorities were ordered to pay compensation to arrested persons by reason of unreasonable use of handcuffs ……

64. In any event, taking into account the circumstances at that time, including the plaintiff’s earlier dialogue with and his attitude towards the police, the distance of the escort journey, the offence which the police was suspected to have committeed, his previous record, and the fact that the police conveyed the plaintiff by using a police vehicle instead of public transport and that three police officers (including the driver of the police vehicle) were responsible for escorting the plaintiff, I hold that while the use of handcuffs can be regarded as reasonable, the use of the chain cannot ……” (my emphasis)

428.  I disagree with Mr Sio’s submissions in §425 above. As seen in the factors outlined by Lam J (as he then was), the absence of overt signs of violence or overt signs of tendency to escape are not the only or defining considerations, and the police had to consider all the relevant circumstances. Indeed, in Leung Kwok Hung, the plaintiff did not display any sign of violence or tendency to escape and yet taking into account other factors it was considered that the use of handcuffs was reasonable, which use must necessarily be a preventive measure. In my view, what measures are reasonable depend entirely upon the circumstances, upon the temper and conduct of the person in custody, on the nature of the charge, on the operation/action to be undertaken, and a variety of case-specific circumstances that may present themselves to the mind of the relevant police officers, which necessarily include reasonable precautions in light of the circumstances of the case. After all, it must be the duty of police officers who lawfully had a person in their custody to take all reasonable measures to ensure he does not escape, does not injure himself or others, does not destroy or dispose of evidence and/or does not commit further crime.

429.  Here, Mr Sio drew a distinction between the journey between 2 police stations in Leung Kwok Hung and journey to and during house searches in the present case. He also suggested that none of the factors that Lam J (as he then was) took into account when coming to the conclusion that the use of handcuffs in that case was reasonable existed in the present case.

430.  I disagree. First, Mr Sio did not point out why this difference in journeys in Leung Kwok Hung and the present case would render the use of handcuffs in the present case unreasonable. In Leung Kwok Hung, the journey for which the plaintiff (who was not violent and who had not shown tendency to escape) was handcuffed was from one police station to another police station (which could be said to be a place of security with police manpower) in a police car under escort by 3 police officers. I find the use of handcuffs reasonable for the journeys to P2’s and P3’s respective home even though such journeys were of shorter duration than that of the plaintiff in Leung Kwok Hung. Although a police vehicle was used and P2/P3 had not displayed overt signs of violence and/or escape, it must be remembered the offence of blackmail was a serious crime. The safety of P2/P3 and the 3-men police party (one of whom would be engaged in driving) in the confined space of a moving vehicle must be a prime concern, and DPC47923 rightly alluded to the real risk of sudden violence or escape without any forewarning (see §359 above). Further, the house searches were to be done at P2’s and P3’s homes. Unlike the police station destination in Leung Kwok Hung, the number of persons at their respective homes and who those persons might be were unknown. P2 and P3 must also be well familiar (probably more so than the escorting police officers) with their home environment and surroundings. I further note that the house searches were done quickly, and P2 and P3 were not subjected to prolonged handcuffing. I find those use of handcuffs in those circumstances reasonable.

431.  Mr Sio then mentioned Leung Kwok Hung was a first instance and not a Court of Appeal judgment. However, he did not inform this court that the plaintiff in Leung Kwok Hung appealed to the Court of Appeal, and the decision by Lam J (as he then was) was unanimously upheld by the Court of Appeal[98] with no adverse appellate observations on the obiter dicta of Lam J (as he then was). In any event, even though such obiter dicta is not binding on this court, I respectfully agree with the legal rationale that underlined the same.

432.  Mr Lam again invoked the rule in Browne v Dunn that it was not put to the police officers concerned in cross-examination that they either knew it was unlawful to put handcuffs on P2 and P3 on the way for and during their respective house search, or that they did not honestly believe they had power to handcuff P2 and P3 on the way for and during the house searches. Given the seriousness of the allegations against the police officers, such omissions cannot be brushed aside lightly.

433.  Likewise, Mr Lam also submitted (and on balance I accept) it was quite inconceivable and there was also no evidence that the police officers concerned were aware that putting handcuffs on P2 and P3 for the purpose of the house searhes would cause them to suffer the type of loss now claimed to have been suffered by P2 and P3, is loss arising out of psychiatric/psychological damage.

434.  In the circumstances, P2’s and P3’s claim based on misfeasance in the public office must fail.

IX.  CONCLUSION

435.  Having failed on the causes of action in false imprisonment and misfeasance in the public office and having abandoned the cause of action in negligence, P2’s and P3’s claims against D failed in their entirety. I dismiss P2’s and P3’s claims in this action against D.

436.  There is no reason why costs should not follow event. I grant a costs order nisi that P2 and P3 shall jointly and severally pay D’s costs of this action as between D on one part and P2 and P3 on the other part (including all costs reserved, if any) to be taxed if not agreed with certificate for two counsel.