WILLIAM ALAN TERENCE CRAWLEY v. ATTORNEY GENERAL

1985, No. A4675

IN THE HIGH COURT OF JUSTICE

___________

___________

JUDGMENT

___________

1. This case concerns the events of the 6th November 1984 which have led the plaintiff Mr. Crawley to claim damages for false imprisonment and for assault. The basic facts were not seriously in dispute and are these.

2. The plaintiff, who is a chartered accountant, was concerned in three companies that are trading with the Peoples' Republic. In 1984, he was also a director of and shareholder in a company called, I think, "Best Time Restaurant Ltd." which operated a restaurant at 483 Castle Peak Road. He was also the manager and held the licence granted to that restaurant by the Urban Council. They took exception to some use that the restaurant was making of an open space at the side of the premises for the storage of food, and laid information before the magistrate on the 24th May 1984. This led to a summons being issued which complained of this user. The first return date of the summons was the 30th July, and the defendant then appeared and pleaded not guilty. The matter was then adjourned to the 10th September. By this date, and indeed by the end of May, the company concerned had changed hands, and so the defendant was no longer personally interested in the restaurant. At a critical moment he received an urgent and as be regarded it, an overriding summons to Canton. He left an explanatory letter with the Court on the Saturday morning but he did not appear on Monday, the 10th.

3. The result was that the magistrate decided to issue a bench warrant. I am in no position to deal with any complaint about that at all. That bench warrant was issued on the 13th September. The warrant is in these terms : It is addressed "To each and all of the police officers of the Colony. " It then recites the complaint being made by the Urban Services, the history of the summons such as I have just given it, and that the defendant failed to appear on the 10th. It goes on "These are, therefore, to command you," (i.e., all the Police Officers in the Colony) "in Her Majesty's name, forthwith to apprehend the said defendant and bring him before me or such magistrate as may then be sitting to answer the said information and to be further dealt with according to Law. " It is dated the 13th September and signed by the magistrate. Just to the left of the signature, there is this cryptic but important entry "Bail $800". On the back of the form of warrant, after the printed part dealing with the certificate of execution to be completed by the police officer executing the warrant, this stamp is added, apparently by the court : "To the police officer executing warrant, after execution of this warrant, please inform defendant to attend No. 4 Court, North Kowloon Magistracy, Taipo Road, Kowloon on a Monday fixed by you, (i.e. the officer) at 9:30 a.m. and also notify informant U.S.D. (Prosecution) Tel .........." - a Kowloon number is then given.

4. As I said that warrant was issued on 13th September. But for reasons which have not emerged, nothing happened for two months. Indeed there was no communication between the court and the present plaintiff in relation to these matters between that date and the 6th November. On the morning of the 6th, at about 10:30, there arrived at the plaintiff's office, in the Bank of America Building at the junction of Kowloon Park Drive and Peking Road, a Police Constable Tse, to execute the warrant. The document was handed to Mr. Crawley who promptly read it. His immediate view was that he must go at once to the Kowloon Magistrate's court because it is what the document appears to tell him to do. He in fact, was anxious to take a taxi then and there with the Police Officer to the Court. But Police Constable Tse knew section 51 of the Police Force Ordinance, Cap. 232. Section 51 says :

"Every person taken into custody by a Police Officer with or without a warrant, except a person detained for the mere purpose of taking his name and his residence, shall be forthwith delivered into the custody of an officer in charge of a police station or a police officer authorised in that behalf by the Commissioner. "

This section covers all warrants, bench warrants or otherwise as other provisions in the Ordinance clearly show. It requires the executing officer, i.e. P.C. Tse, to deliver a person he is arresting into the custody of the duty officer at his police station." So the police officer said to the plaintiff, "No, I have got to take you to Tsimshatsui Police Station. ” Then, there was a discussion as to how they would get there and they decided to walk. The police officer had to make up his mind at that point whether to handcuff the plaintiff. He decided that since the offence was a fairly trivial one, in his view, and from his assessment by that time of this plaintiff, that there was no need to handcuff him at all. They walked together to the police station.

5. When they got there, certain paper work had to be done by the police constable, namely, the completion of the certificate at the back of the warrant. It was nearly 11:30 by the time the police constable was ready to report to his duty officer Sgt. Tang. Sgt. Tang was well aware of the provisions of the next section of the Police Force Ordinance, which is section 52 and says this : "Whenever any person apprehended with or without a warrant is brought to the officer in charge of any police station, it shall be lawful for such officer to enquire into the case and unless the offence appears to such officer to be of a serious nature or unless such person appears to such officer to be a person who ought to be detained, to discharge the person upon his entering into a recognizance with or without sureties". In the context of the bench warrant, the code of these documents which Sgt. Tang clearly understood is simple. If there is a figure completed on the face of a document for bail, that is regarded as an intimation/instruction to the duty officer to grant bail for that figure on the prisoner's own recognizance. If on the other hand, no figure is placed there for bail, or in particular if a word like "detain" is there instead, the police officer then at once knows that it is the view of the magistrate that this is not a case for granting bail. I got the firm impression that the police officer acts upon that intimation from the court rather than exercising his own mind on the matter at all. Sgt. Tang, looking at this form, could then tell that the magistrate took the view that he, Sgt. Tang should be bailing this plaintiff. The trouble is that this is not spelt out in the form in any intelligible way to the intelligent reader. So, Sgt. Tang promptly offered bail to the plaintiff. The plaintiff having read the form, thought that the obligation was to go "forthwith" to the magistracy. He did not think that bail could be granted by the Police, that this was a matter of police interference, and that bail could only be granted by the magistrate. He therefore refused bail but said "Take me to the Magistrate". He simply took the document at its face value.

6. Arrangements then had to be made to transport him to the Magistracy, and to enquire whether the court could deal with him. The answer from the court was yes. The question then arose as to what to do with the plaintiff in the mean time. The plaintiff was then under arrest. He was under arrest ever since he was apprehended initially by P.C. Tse. The Sergeant took the view that the only place to put him, because it was the only convenient secure place he had, was a room which has been referred to, as the "waiting room". That might be a somewhat euphemistic term. It might more accurately be described as a waiting cell because that is what it looks like. It was there that the plaintiff was placed and the door was closed. He complains that he was in a somewhat malodorous condition. I do not believe that he could have been there for more than 20 minutes at the outside, because the documents show that he arrived at the Magistracy at 12:05. After this period, transport arrived at the police station. It took the form of a transit van, one of those vehicle with a wire mesh enclosing the back. He was then handcuffed, despite his protest, taken out through tae public part of the station into the carpark; placed in the back of the transit van and then driven to the North Kowloon Magistracy. As I say, they arrived at the Magistracy at 12:05 or there abouts. The documents at that court show that he was released eventually at 12:58, having by that time been held initially in the secure past of the Magistracy, then taken before the magistrate, returned below whilst the bail documents were being completed and finally released.

7. It is in those circumstances, that the two claims in this action and made. I must dealt with them separately because the two are quite distinct. The first is false imprisonment and the second is really assault.

8. As far as false imprisonment is concerned, the first complaint that the plaintiff makes is about the form of the warrant. He says he was thoroughly misled by the form of the warrant into thinking that what he had to do was to go direct, either alone or in company with a policeman, to the Magistrate's court, to be dealt with there by the magistrate, and invite the magistrate to give him bail. I regret to have to say that this complaint about the form of the document seems to me wholly justified. As I have said it is written in a sort of code which is understood by the police officers who have to act upon it and by the court staff who complete it. But it gives a very inadequate description to the person who is most concerned, i.e. the person who was about to be arrested.

9. To go back to the words of command which I have already read, one sees how inadequate they are. It starts : "forthwith to apprehend the defendant"; yes. It then goes on "and to bring him before me". That is simply not so if you read in section 51. The first "you", i.e. the arresting officer, has to take him to the police station and put him in the custody of the duty officer. The next stage is that the duty officer, who is the second "you" in this document, has to offer bail in the terms given, and if bail is accepted, then to transmit the instructions on the back of warrant which postulate the granting of bail. It is only if and when bail is either refused or for some reason the prisoner cannot take up the offer of bail because he cannot enter into the sureties demanded, that the rest of the words then start to apply - "bring him before me or such magistrate as may then be sitting".

10. I have been embarrassed by the ineptitude of the document which was given to Mr. Crawley. 'These forms are part of the statute. They are made under section 133 of the Magistrates Ordinance and are set out in the Magistrates Forms Rules. Form 2 which is a specified form, in fact stops at the words "according to law'' and does not contain these words about bail at all. Unfortunately, as I see it, those forms have not been reconsidered and put in a form which would be comprehensible to the recipient. This seems to me to be a matter of great regret, because what is concerned is the liberty of the subject. I, as a member of the Judiciary, am concerned with the ineptitude of something which I can only regard as a Judiciary form. I hope that the matter will be reconsidered, and that the Committee that reconsiders it will have regard to the form currently in use in England which is Form 32, set out in paragraph 6/766 of Volume III of Stones Justices Manual for 1986. 'This form makes it crystal clear first whether bail is to be granted or not, and secondly, if it is to be granted upon what terms. The words of the form are mandatory. "The accused shall be released" are the operative words, and those words are over the signature of the magistrate. In other words, the magistrate in the warrant, is saying to the arresting officer what must happen following arrest, and saying it quite openly and on the face of the document. I am bound to say that sort of form seems to be immensely preferable to the document that had been put before me in this case.

11. Having said that, the fact remains that inert documentation does not alter the Law. If this is a valid warrant, in form, then so be it, even though the documentation was inadequate. Because if there was a valid warrant issued for the plaintiff's arrest, then section 51 of the Police Force Ordinance applies. A highly ingenious argument was addressed to me by Mr. Crawley, as to how these two matters could be reconciled, on the basis that it was the Commissioner's duty under section 51 to authorise a police officer at a police court, particularly to deal with bench warrants issued by that particular police court. I give him a high mark for ingenuity but no more. Because there is no such duty cast upon the Commissioner by section 51, and any such duty would be inconsistent with the power of the magistrate to issue an arrest warrant such as this, "to each and all of the police officers in the Colony'. One can see, thirdly, that there are very good practical reasons why you cannot confine this matter simply to the police officers at any particular court. I cannot accept that argument.

12. What at one stage I was much more troubled with, was the suggestion that the whole procedure might be ultra vices because the word "bail" did not appear on the prescribed form in the Magistrates Ordinance. The position there in short is this. The magistrate can issue warrants in these circumstances where a defendant fails to appear, both it seems to me under section 18A of the Ordinance and under section 20. But any warrant so issued has in accordance with section 31(2) of the Ordinance to "order the person to whom it is directed, to apprehend the defendant and bring him before a magistrate to answer to the complaint or information". In other words, the warrant is to bring the man before the magistrate. Then there was a further provision in section 102(3) which said : "it shall be lawful for the magistrate on issuing a warrant for the apprehension of any person charged with a bailable offence, to certify on the warrant his consent to the accused being bailed and thereupon, it shall be lawful for an inspector of Police to admit the accused to bail."  I was oppressed by the fact that those formalities did not seem to have been complied with here, and that there was no provision in more general terms than that, when I first read this statute.

13. The answer I believe, is this. This section I think, was an early and perhaps a very early example of the legislature deciding to delegate the powers of granting bail from magistrates to the police. This was a first initial step which required a certificate from the magistrate before it became lawful for a particular police inspector to grant bail. For no doubt good policy reasons, that process has been accelerated considerably. So one now finds in sections 51 and 52 of the Police Force Ordinance, the general powers to grant bail to which I have already referred. Therefore, no further empowering section is necessary. Really all that happened here was that the magistrate, knowing that it would be permissible without any further action on his part for a duty officer to grant bail, was filling in on the form, his view as to the appropriate terms for bail.

14. What seems to me to have happened is that perhaps the left hand of the legislature was not keeping pace with the right hand. It could have helped if section 102 was brought up-to-date to recognize these general powers in the Police. I add to that, that I think it is essential that something should be done about the form. But having said that, there is no way that I can see that this procedure can be condemned as ultra vires. The warrant was valid. Its execution by the police officer was valid under section 51, and there really the matter rests. After lawful execution, the plaintiff was lawfully taken to Tsimshatsui Police Station, and lawfully then, bail having been refused, taken to the Magistrates Court.

15. It follows, that subject to one further matter, this imprisonment cannot be dubbed as unlawful. This further matter relied upon by Mr. Crawley is what he describes as an excessive degree of incarceration. He says that in his case, there was no conceivable need for putting him into this waiting room/cell, which was in itself, a very unpleasant experience, and he was simply waiting peacefully around for the transport to arrive. The law there, I think, is accurately stated in a sentence in Clerk & Lindsell on Torts, 15th edn. at paragraph 14/16 which reads thus :

"When a prisoner is lawfully confined in an authorised place, the conditions in which he is held cannot invalidate the lawfulness of his detention there. "

This matter was very fully gone into in a case in England recently, Williams v. The Home Office (No. 2)⁽¹⁾ by Tudor Evans, J. The relevant passages are to be found at pages 1224 to 1227. Having considered all the authorities upon it, he came to the conclusion that the statement in the text in Clerk & Lindsell is in fact well founded and I agree. It seems to me that where you have got someone held like this in a police station temporarily, it must be a matter for the discretion of the duty officer to do the best he can by way of putting the person in such temporary accommodation as is available to him, or taking such other steps as are available to him having regard to the personnel at his disposal.

16. In this case, I have considerable sympathy with this plaintiff who was thoroughly misled by the form of the bench warrant which was served upon him, but in my judgment, there was nothing unlawful about the imprisonment which he suffered. He will have, I hope, to be content with my apology on behalf of the Judiciary for the ineptitude of the form, and my thanks for drawing our attention to it in the hope that something may be done about it in the future.

17. I now turn to the other aspect which is the complaint about the handcuffing. That is totally separate from the question of false imprisonment. The law here I take to be accurately set out in another passage in Clerk & Lindsell which is to be found at paragraph 26-113 page 1296 which reads as follows :

"A constable is liable in tort for any unlawful interference with the person or liberty of another it the same manner as a private citizen. Constables are granted certain special powers of arrest, entry and search and may additionally be authorised to use reasonable force to effect the arrest, entry or search. But a constable employing a degree of force exceeding that reasonably necessary in the circumstances would be liable for assault and battery or for any unnecessary damage to property. "

That principle is well supported by authority. One is the decision in Allen v. Metropolitan Police commissioner⁽²⁾ and more recently by the decision in Collins v. Wilcock⁽³⁾ per Robert Goff, L.J. at page 379.

18. That being the principle, one then turns to what is the appropriate test governing handcuffs. I cannot do better here than to go back to the direction to a jury given by Vaughan Williams J. as long ago as 1853 in Leigh v. Cole⁽⁴⁾ where he says :

"First, with respect to handcuffing, the law undoubtedly is, that police officers are not only justified but they are bound to take all reasonably requisite measures for preventing the escape of those persons they have in custody for the purpose of taking them before the magistrates; but what those reasonable measures are must depend entirely upon circumstances, upon the temper and conduct of the person in custody, on the nature of the charge, and a variety of other circumstances which must present themselves to the mind of any one. As to supposing that there is any general rule that every one conveyed from the police station to the magistrates' court is to be handcuffed, seems to me to be an unjustifiable view of the law, and one on which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him, and taking him thus publicly through the streets. On the other hand, it is necessary to take proper precautions in conveying a person in custody to be dealt with by the magistrates; and you must say whether, looking at all the circumstances of the case, the defendant used unreasonable precautions in this case, or used unnecessary measures to secure the safe custody of the plaintiff. "

19. So that is the test. You look at all the circumstances of the case and ask yourself whether reasonable precautions or unreasonable precautions or unnecessary measures are taken. Not long after, there is the more crytic observation to be found in the words of Lord Russell CJ. in R. v. Taylor⁽⁵⁾ where he says that "handcuffing was only justifiable when reasonable necessity existed. If it were resorted to in the absence of such necessity, the party so treated might bring an action to recover damages for such a grievous indignity. "

20. A more recent exposition on the same lines is to be found in the decision in Lindley v. Rutter⁽⁶⁾ where at p. 134 in the judgment of Sir John Donaldson, one finds this:

"It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers acting on behalf of society as a whole. It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without retard to all the circumstances of the particular case.

 

This is not to say that there can be no standing instructions. Although there may always be special features in any individual case, the circumstances in which people are taken into custody are capable of being categorised and experience may show that certain measures, including searches, are prima facie reasonable and necessary in a particular category of case. The fruits of this experience may be passed on to officers in the form of standing instructions. But the officer having custody of the prisoner must always consider, and be allowed and encouraged to consider, whether the special circumstances of the particular case justify or demand a departure from the standard procedure either by omitting what would otherwise be done or by taking additional measures. "

21. If one turns to the standing instructions here, they are to be found in the Police General Orders, Chapter 29-05 where one finds this:

"(4)    A police officer shall not use handcuffs on a person unless such action is clearly necessary; and

(5)    Circumstances in which use of handcuffs is appropriate are as follows -

 

	(a)	when arresting a person who is violent or likely to become violent;
	(b)	when arresting a person who is likely to attempt to escape; and
	(c)	to restrain a violent suspected insane person.

   

Before using handcuffs, a police officer shall make a valued judgment based on the forthgoing considerations and the particular circumstances of the case. He may subsequently be asked to justify his action in this regard. "

So both these general statements of law and the terms of that chapter in the Police Regulations, all say the same thing. Every case must be considered on its own particular merits.

22. What are the circumstances here? First it seems to me that the plaintiff was being arrested for non-attendance at a hearing in relation to an offence which was summary and in the estimation of the arresting officer, most unlikely to result in a term of imprisonment. The offence has not been identified and I do not in fact know, whether it was punishable by imprisonment. But I am prepared to presume that it was, but that custodial sentences for breach of that obligation are probably almost unknown.

23. Secondly, at the time of the arrest, that police officer did not think that the use of handcuffs was necessary. The good sense of that was demonstrated by the fact that the parties were able to walk peacefully from the Bank of America Building to the Police Station without any difficulty at all.

24. Thirdly, when they arrived at the police station, the duty officer noticed that the plaintiff was not handcuffed. He did not in fact enquire how he had got there, whether on foot or by taxi or otherwise. Fourthly, the material journey here for which he was handcuffed was the journey from the station to the Court. This was the journey he had been asking everybody to allow him to make since be was first arrested. Therefore I think it is fair to say that the chances of his attempting to escape on that journey were very remote indeed. It was the same journey as he wanted to take himself by taxi at the very outset.

25. Fifthly, his behaviour throughout, it is common ground, was sane and quiet and he was behaving responsibly.

26. Lastly, if one considers the matter in the light of his walking to the station, one might have thought that he was probably safe to have been sat in the front seat of the transit van, or in the back seat of a taxi, and that he was even safer in a caged enclosure at the back of the transit van.

27. Sgt. Tang gave a number of reasons for saying that handcuffs ad to be imposed here. But the very first reason that he gave and the very last reason he gave, were I think, the decisive ones. The reason he gave to the plaintiff at the time was simply that it was normal prodedure to handcuff him. He started in evidence in chief saying exactly the same thing and he confirmed it eventually in cross-examination. His view was simply that transit passengers had to be handcuffed. It did not seem to matter very much who they were. That was, I am quite satisfied, the decisive consideration in his mind.

28. It is plain on the authorities which I have read that this approach is wrong. I do not doubt that that approach covers successfully a very high percentage of cases, and it may be 100% of the case where the person being transported is charged with any criminal offence of any degree of seriousness. But what I regret to say the police sergeant seems to have done here, is simply to have failed to apply his mind to the particular circumstances of the case, which is what both the authorities and the Police Regulations say must be done. Because if he had applied his mind to any of the relevant considerations, damage, danger, risk of escape or whatever, they all admitted of only one answer, and that had been demonstrated on the way to the police station by the safe walk through the street.

29. It follows in my judgment that this handcuffing was not justifiable, and amounted in law to an assault and battery for which the plaintiff is entitled to compensation. There has been some mention in the pleadings of exemplary damages, but it seems to be quite obvious to me that this is not a case for any exemplary damages. But I am quite prepared to adopt gratefully the terminology of the New Zealand Judge, McGregor J. in Fogg v. McKnight⁽⁷⁾ where at p. 331 he says that :

"In the case of assault, damages may be recovered not only in respect to the physical injury, but also in respect of insult which may arise from interference with the person and injury to his feelings, that is the indignity, mental suffering, disgrace and humiliation that may be caused. "

30. I am reminded also that Lord Russell talked in terms of "grievous indignity".

31. Here one has to maintain a balance as best one can. The plaintiff cannot help standing 6'3" high which makes him conspicuous perhaps in any company. Therefore I can readily understand his embarrassment at being taken out in handcuffs from the police station, across the compound, put into the back of the transit van and then taken through the streets to the North Kowloon Magistracy in a van which naturally attracts curious eyes and where the persons inside can be very visible to any pedestrians if it stops at traffic lights or other places by reason of congestion. I can well understand his acute feelings of discomfort as that was going on. The period was mercifully brief although it may have felt longer at the time. I have to arrive at some figure which I regard as appropriate compensation in these circumstances simply for this particular part of that morning. It is common place for a judge sitting alone, to regret the fact that he has not got a jury sitting with him to answer this difficult question for him. I have to do the best I can and doing that the figure at which I have arrived as appropriate in the circumstances of this case is the figure of $4,500. In my judgment, judgment should be entered for the plaintiff for that sum.

(1) (1981) 1 All E.R. 1211
(2) (1980) Crim. L.R. 441
(3) (1984) 3 All E.R. 374
(4) 6 Cox Criminal Case 329, 331
(5) (1895) JP 393
(6) (1981) Q.B. 128
(7) (1968) N.Z.L.R. 330