FOK SIU WING v. HKSAR

FAMV No. 27 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 27 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 152 OF 1999)

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DETERMINATION

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Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee.

2. The applicant seeks leave from us to appeal against a judgment of the Court of Appeal dated 12 October 1999, leave to appeal having been refused by that Court on 25 November 1999.

3. The history of this matter goes back a long way: To 1994 when an investigation was initiated by the ICAC against the applicant on allegations of corruption. He was subsequently charged and convicted on one charge in a magistrate's court, but on appeal to the High Court his conviction was quashed by Duffy J in November 1995. So the applicant's name was cleared.

4. The applicant then commenced proceedings for damages against the ICAC, being HCA 8715 of 1997, based on two causes of action: (1) malicious prosecution and (2) assault by officers of the ICAC in the course of taking his photograph. The first cause of action was however struck out, but the claim for damages for assault remained untried. The ground for the strike-out was simply this: In commencing the proceedings, the applicant's complaint was that he was falsely accused of corruption and had suffered pain humiliation and loss on account of such accusation; this was however not enough to sustain his cause of action: He never put forward facts suggesting that the prosecution, the ICAC, was motivated by malice. The applicant appealed to the Court of Appeal against the strike-out order but that appeal was dismissed. The applicant's subsequent application to this Court for leave to appeal was also dismissed.

5. The applicant then started another action being HCA 21094/98 against the government of the Hong Kong SAR for damages, based on the same facts. Additionally, the applicant averred that the Department of Justice was also implicated in the malicious prosecution, apart from the ICAC. The government applied to have that writ struck out and the action dismissed. The application was heard by Yeung J who, by his judgment dated 3 June 1999, acceded to the application. The applicant then appealed to the Court of Appeal which, as mentioned earlier, by its judgment of 12 October 1999, affirmed Yeung J's judgment. The Court of Appeal concluded that, given the history of this matter, the action instituted by the applicant namely HCA 21094/98 was an abuse of the court's process.

6. In our view the applicant's attempt to sue for damages for malicious prosecution, based upon the events of 1994, is doomed to fail. The writ was properly struck out.

7. This application for leave to appeal is dismissed.