GODAGAN DENIYALAGE PREMA C. v. CHEUNG KWAN FONG AND ANOTHER

cacv 72/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 72 of 2005

(on appeal from DCCJ No. 2488 of 2003)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This is an appeal from a judgment of HH Judge Muttrie given on 20 December 2004.  The judgment had followed a six-day trial of an action for malicious prosecution.  The plaintiff had been convicted before a magistrate of stealing a pair of sandals from the 1^st defendant.  That conviction was set aside on appeal.  The judge found in favour of the plaintiff and awarded damages of $240,370.00 which sum has been paid into court.  At the conclusion of the hearing of this appeal, this appeal was dismissed with reasons to be given in writing.

Background

2.  The plaintiff is a Sri Lankan National and was employed as a domestic helper by the 1^st defendant’s husband.  The employment commenced on 2 December 2001 and ended on 10 January 2002.  The employment was effected through an agency which was operated by the 2^nd defendant and her husband.  The 2^nd defendant has taken no part in this action since August 2004 when her defence and counterclaim were struck out in her absence.  Judgment was entered against her with damages to be assessed. 

3.  Although the plaintiff left the 1^st defendant’s home in early January 2002 her luggage was kept at the 2^nd defendant’s home and it was not until 31 March 2002 that the plaintiff went to the 2^nd defendant’s home to collect her luggage.  It is not altogether clear why the plaintiff left her belongings at the 2^nd defendant’s home for quite so long.  What seems to have happened is that after the plaintiff left the 1^st defendant’s home on 10 January she stayed the night at the 2^nd defendant’s home.  However, she did not trust that she would be allowed to stay in Hong Kong and therefore left the next morning.  She returned there in the company of police officers on 15 January in order to retrieve her passport and her belongings.  The passport was retrieved but the policemen were unable to assist the plaintiff to remove her belongings because they did not have transport. 

4.  An important incident occurred on that occasion.  The 2^nd defendant had called the 1^st defendant and informed her that the plaintiff was seeking to remove her luggage.  When the 1^st defendant arrived there was some discussion.  There were differences between the versions given by the plaintiff, the 1^st defendant and the two police officers.  The judge, having heard the evidence resolved those differences and accepted the evidence of the police officers.  That evidence was that the 1^st defendant had at first said that the plaintiff had stolen the earrings which she was wearing.  When the 1^st defendant said that she had originally given the earrings to the plaintiff but that because the plaintiff was leaving her employment she felt she was entitled to have them back, one of the police officers explained that the plaintiff’s retention of the earrings did not constitute theft.  The 1^st defendant then accepted that explanation.  Although the 1^st defendant’s evidence, in the subsequent prosecution for the theft of the sandals was slightly different it had some similarities to the police officers’ evidence.  The other important fact was that the police officers gave evidence that the 1^st defendant had then been asked whether anything else had been taken and the 1^st defendant had said there had not.

5.  When the plaintiff arrived at the 2^nd defendant’s home on 31 March 2002 and sought to retrieve her belongings, the 2^nd defendant apparently asked the plaintiff to open her luggage, which she did, and the 2^nd defendant saw the sandals which were the subject of the subsequent prosecution and reported the matter to the police.  The 1^st defendant then inspected the sandals at the police station and claimed that the plaintiff had stolen them. 

6.  The plaintiff was then prosecuted in the Magistrate’s Court and convicted and sentenced, despite the fact that the sandals were only worth something well under $1000, to three months’ imprisonment.

7.  On appeal the plaintiff’s conviction was set aside.  The judge hearing the appeal did so primarily on the basis that the police officers’ evidence had not been revealed to the defence and, as the judge recorded, the prosecution conceded that there had been a miscarriage of justice.  It was in those circumstances that this action was commenced.

8.  The judge below heard evidence not only from the plaintiff but from the 1^st defendant and the police officers.  The judge also heard evidence from another Sri Lankan domestic helper, Nalani, who had been employed in the 1^st defendant’s household immediately prior to the plaintiff’s employment.

9.  In a careful judgment the judge recounted all the evidence, commenting that much of it was peripheral.  He was careful to assess each part of each witness’s evidence and, it is important to note, he gave reasons for accepting various parts and doubting other parts of what each witness said.  His conclusion was summarised in paragraph 86 of his judgment where he said that he was satisfied on a balance of probabilities and, indeed, bearing in mind that the more serious the allegation the less likely it was that the event had occurred, that the 1^st defendant had given the sandals to the plaintiff as a gift and subsequently gave false evidence against her as did the 2^nd defendant.

This appeal

10.  On this appeal Mr Suen, who appeared on behalf of the 1^st defendant, sought to argue that because the plaintiff had only been successful on appeal after conviction and the judge had not ordered a retrial, the plaintiff had not established that the prosecution had been determined in her favour.  In my view that argument is simply wrong.  The conviction was set aside on appeal.  That is the end of the matter.  There was a prosecution and that had been determined in favour of the plaintiff. 

11.  The other ingredients of the tort of malicious prosecution as set out in the case of Martin v Watson [1996] 1 AC 74 at p 80 are that the prosecution was without reasonable and probable cause and that it was malicious.  Given the finding of fact at paragraph 86 of the judgment it was necessary for the 1^st defendant to establish that the judge had come to the wrong conclusion as to fact.  Mr Suen sought to do so by first of all by referring to the evidence of Nalani, the domestic helper who had been employed in the 1^st defendant’s household prior to the plaintiff.  Part of her evidence had been that the sandals, in respect of which the plaintiff had been prosecuted, had originally been given to her but that she had left them behind at the 1^st defendant’s home.  The judge below was highly sceptical of Nalani’s evidence because she had said that she had been telephoned before leaving Sri Lanka and asked the size of her shoe so that the sandals could be purchased but that when she arrived the sandals were the wrong size.  In my view this is an example of precisely the care with which the judge approached the judgment.  He did not accept everything that was said but was careful to assess the evidence.  The judge was well aware of the plaintiff’s own evidence that when being given the sandals she had been told that they had been left behind by the previous maid.  The fact that Nalani’s evidence was not accepted does not in any way, impinge upon the conclusion to which the judge came that the plaintiff had, indeed, been given the sandals.  The judge’s function is to find the facts.  In doing so he may accept or reject all or any part of the evidence.  It is not the function of this court to disturb the weighing exercise that the judge has to perform.  This court can only alter a finding of fact if satisfied that that finding was wrong.

12.  In short I do not consider that there is any valid basis for disturbing the judge’s conclusion as to the gift of the sandals.  Once the judge had held that the 1^st defendant had indeed given the sandals to the plaintiff, it can only follow that the prosecution of the plaintiff was vindictive and without any basis.  Since the allegation and evidence of theft emanated from the 1^st defendant there can be no basis for disputing that the prosecution was indeed malicious and the 1^st defendant was responsible.

Hon Waung J:

13.  I agree.

Hon Barma J:

14.  I agree.