XCHRX TANG NIN MUN v. SECRETARY FOR JUSTICE

(a) it discloses no reasonable cause of action; and/or

(b) it is scandalous, frivolous or vexatious; and/or

(c) it is otherwise an abuse of the process of the court.

"(1) On 7 May 1994 the Plaintiff, a hawker, was the victim of an unprovoked, premeditated attack by a neighbouring hawker, (Mr. Ho) with a 30 cm rusty beef knife, causing the Plaintiff

(a) a minor cut wound to the left forearm

(b) a serious stab wound to the abdomen, being 7-8 cm long and 10 cm deep

(2) The Plaintiff underwent immediate emergency surgery for one and a half hours, where internal lacerations to the colon and bowel were located and sutured to stop the internal bleeding.

(3) The Plaintiff stayed in Hospital for 7 days and made an uneventful recovery but has been left with both surgical and stab wound scars.

(4) The DPC was assigned to take statements from the Plaintiff (victim) and his wife, but instead of taking proper statements the DPC attended at the Hospital just before the operation and procured the signatures of the Plaintiff and his wife one several sheets of blank paper; thereafter he filled in the "statement" forms himself and presented them to his Inspector as authentic statements.

(5) The "statements" gave the misleading impression that

(a) the attack was preceded by a dispute between the Plaintiff and his wife and Mr. Ho

(b) Mr. Ho might have thought the Plaintiff was about to attack him and stabbed him first

(c) The knife was small (8-9 cm long).

(6) The DPC fabricated the 2 statements to mislead his team Inspector to lay less serious charges against Ho.

(7) The police failed to make proper enquiries as to the medical condition and treatment of the Plaintiff and instead immediately charged Mr. Ho on the basis of a handwritten medical chit which was misread as "cut wound on left forearm and cut wound on left side of abdomen"

(8) Mr. Ho was charged the next day (Sunday, 7 May 1994) without legal advice with

(a) S.19 wounding for the cut forearm, and

(b) Assault occasioning actual bodily harm for the "cut" to the abdomen.

(9) 2 days later on 9 May 1994 Mr. Ho appeared in court, pleaded guilty and was immediately sentenced to

(a) $1,000 fine, and

(b) 2 month's imprisonment, suspended for 12 months.

(10) If the case had been properly investigated, the (b) charge should have been one of S.17 Wounding with Intent, which the Magistrate has no jurisdiction to hear or deal with; the District Court would presumably have dealt more severely with Mr. Ho.

(11) On 8 August 1995 (i.e. 11/4 years later) the Plaintiff lodged a complaint with CAPO that the DPC did not take proper statements and the police did not conduct a thorough investigation, leading to the wrong and minor charges being preferred against Mr. Ho.

(12) On 12 June 1998 CAPO wrote to the Plaintiff saying that his complaint was substantiated by their investigation and apologising for the DPC's conduct. No disciplinary proceedings were instituted because the DPC had left the Police force in August 1995."

"8(4) Alternatively, the DPC acted wither on the basis of malice or with knowledge of the unlawful nature of the action and the probability of injury to the Plaintiff.

(5) Alternatively, contrary to his duty to detect crimes and offences under section 10(b) of the Police Ordinance Cap 232 ("the Ordinance") and to his obligation under section 26 thereof to carry out his duties honestly, faithfully, diligently and without fear or favour to any person and with malice or ill-will towards none, the DPC, a police officer of over 20 years of service, had abused his police power in fabricating evidence in a criminal investigation and perverting the course of justice.

(6) Alternatively, the Defendant is vicariously liable for the conduct of the DPC which clearly was conducting in the course of his duty i.e. making enquiry to ascertain the true facts of the wounding case."

"10. In the premises, the Plaintiff has suffered from mental anguish and distress over the injustice done to him by the malicious or unlawful acts of DPC 11829.

11. Medical examination reveals that the Plaintiff has suffered from depressive illness as result of his grievances.

The Plaintiff suffers from anxiety attacks caused by dreaming of the attack upon him and the fear of further attack: together with fear for the safety of his wife and daughter. He suffers from difficulty in sleeping and is moved to tears when he observes his wound scar. He is pre-occupied with every detail of the incident, the behaviour of the Police and the denial of justice he has suffered. At times he suffers from ideas of suicide. His illness manifests itself in his depressed moods, anxiety, insomnia, lack of drive, sexual impairment, social withdrawal, lack of self-confidence in decision making together with irritability.

12. By reason of the matters aforesaid, the Plaintiff suffered loss and damages.

The Plaintiff's depressive illness has caused significant impairment in his psychological, social, sexual and occupational functions which has caused significant changes to the patterns of his daily life. His presently diagnosed mental disability is assessed at or about 30%: while his present loss of earning capacity is assessed at or about 40%."

"Causation is always a difficult topic. One is but using a commonplace if one repeats that many causes have some place in the sequence of events which lead to a result, or follows Lord Shaw in saying that "causation is not a chain, but a net": Leyland Shipping Co. Ltd. v. Norwich Union Fire Insurance Society Ltd. The question always is how far back is one justified in going or how wide a net must one envisage."

"To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it. "A jury would not have profited by a direction couched in the language of logicians, and expounding theories of causation, with or without the aid of Latin maxims": Grant v. Sun Shipping Co. Ltd., per Lord du Parcq. The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two to more as having jointly caused the accident. I doubt whether any test can be applied generally. .....

Dale's fault was one of omission rather than commission, and it may often be impossible to say that, if a man had done what he omitted to do, the accident would certainly have been prevented. It is enough, in my judgment, if there is a sufficiently high degree of probability that the accident would have been prevented. I have already stated my view of the probabilities in this case, and I think that it must lead to the conclusion that Dale's fault ought to be regarded as having contributed to the accident."

"Courts of law must accept the fact that the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act diverge. To a philosopher - a term which I use in no disparaging sense, for what is a philosopher but one who, inter alia, reasons severely and with precision? - to a philosopher, the whole legal doctrine of responsibility must seem anomalous. To him, if event C could not occur unless each of two previous events -A and B - had preceded it, it would be unmeaning to say that A was more responsible for the occurrence of C than was B, or that B was more responsible for its occurrence that was A. The whole modern doctrine of contributory negligence, however, proceeds on the contrary assumption. If not there would be no question of apportionment. But the fission between law and strict logic goes deeper than that. For I am persuaded that it is still part of the law of this country that two causes may both be necessary pre-conditions of a particular result - damage to X - yet the one may, if the facts justify that conclusion, be treated as the real, substantial, direct or effective cause, and the other dismissed as at best a causa sine qua non and ignored for purposes of legal liability. This is a doctrine affirmed by your Lordships' House, and not, in my view, displaced by the Law Reform (Contributory Negligence) Act, 1945. On the contrary, the words "as the result of" in section 1 of that statute impliedly preserve the doctrine, the assertion of which your Lordships have more than once coupled with an admonition that, if the conditions for its application occur, a judge sitting alone should assume the mantel and the mentality of a jury, and should take what is called a "broad common-sense view," in deciding whether one of the causes (there may be two or twenty) is the "real" causes."

"I confess that, for myself, I have entertained very considerable doubts, which have not been altogether resolved, as to the defendants' liability for negligence in this case. I cannot help feeling that in all the circumstances which existed at the time almost super-human vision would have been required to enable Miss Morgan to appreciate the likelihood of the little boy David leaving the classroom with his companion, crossing the school grounds, which were forbidden territory to them, passing through the main gate and occasioning an accident in this street, more especially as the evidence disclosed no parallel or even similar incident having ever occurred at the school before. However, in an action such as this, an action founded upon negligence, in which the judge had the advantage of seeing the witnesses, something more than doubt is necessary to justify the appellate court, or any member of an appellate court, in interfering with the judge's finding." (per Romer L.J.)

"18/19/6 Exercise of powers under this rule - It is only in plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 Q.B. 86 at 91 (Mayor, etc., of the City of London v. Horner (1914) 111 L.T. 512, CA). See also Kemsley v. Foot [1951] 2 K.B. 34; [1951] 1 All E.R. 331, CA, affirmed [1952] A.C. 345, HL. It cannot be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action (Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, CA). If there is a point of law which requires serious discussion, an objection should be taken on the pleadings, and the point set down for argument under O.33, r.3 (Hubbuck v. Wilkinson [1899] 1 Q.B. 86 at 91).

Where an application to strike out pleadings involves a prolonged and serious argument, the Court should, as a rule decline to proceed with the argument unless it not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out would obviate the necessity for a trial or substantially reduce the burden of preparing for a trial, and therefore, where the Court is satisfied, even after substantial argument both at first instance and on appeal, that the defence does not disclose a reasonable ground of defence, it will order it to be struck out (Williams & Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd. [1986] A.C. 368; [1986] 1 All E.R. 129 HL)."

"no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice". Per Kelly C.B. in Dawkins v. Lord Rokeby (1873) L.R. 8 Q.B. 255"

"Protection must extend to the preparation of evidence equally as to its presentation ... I see no difference in principle between a police officer fabricating a record of interview in writing, and the equivalent in times past, a police officer verballing an accused; nor between, say, an officer planting a brick or drug on an accused so that someone else with give truthful evidence of having found it, and an officer giving false evidence that he himself found such a brick or drug.

In my judgment, Drake J. was correct in Evans to have held that the immunity covers all conduct that can fairly be said to be part of the investigatory and, I would add, preparatory process. To Lord Williams' submission that there is no public interest in protecting those who create false evidence or, for that matter, those who destroy sound evidence, I would answer that that misses the essential point: the public interest is in the protection of those who might otherwise be falsely accused of such conduct."