EUGENE JAE-HOON OH v. KATE GASKELL RICHDALE

FAMV No. 13 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

 MISCELLANEOUS PROCEEDINGS NO. 13 OF 2006 (Civil)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
CACV No. 162 of 2003)

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Appeal Committee:  Chief Justice Li, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

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 D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.  This application involves an action for malicious prosecution brought as part of a bitter dispute between neighbours.  The plaintiff applicant alleges that the defendant committed the tort against him by lying about having been assaulted by the plaintiff, thereby causing the prosecution to be brought. 

2.  The plaintiff was actually charged with three different offences arising out of his hostile conduct against the defendant’s domestic helper and the defendant.  He was convicted of assaulting the helper and of criminally damaging a car.  He was, however, acquitted of assaulting the defendant on a submission of no case to answer.

3.  The Judge struck out the action for malicious prosecution on the ground that there was no reasonably arguable basis for contending that the defendant was a “prosecutor” (as opposed to the complainant and a witness) for the purposes of the tort.  The prosecution was brought by the Police after taking advice from the Department of Justice so that the Police are normally to be regarded as the prosecutor. 

4.  The legal test for establishing when a complainant may in such circumstances nevertheless be treated as a “prosecutor” is well-settled.  The authorities, particularly the decisions of the House of Lords in Martin v Watson [1996] AC 74 and of the English Court of Appeal in Mahon v Rahn (No 2) [2000] 1 WLR 2150 which were relied on below, show that the plaintiff has to establish that the relevant facts were exclusively within the defendant’s knowledge so as to make it virtually impossible for the Police and the Department of Justice to have exercised an independent discretion in making the decision to prosecute. 

5.  The courts below held that it is plain and obvious that the plaintiff cannot satisfy that test so that his claim is bound to fail.  The prosecuting authorities had relied on a broad investigation and the evidence of several witnesses other than the defendant and were held to have plainly and obviously taken an independent decision to proceed. 

6.  It is now sought to be argued that the legal test we have stated was either wrong or misapplied in that it must be confined in its application to cases involving one person’s word against another’s. 

7.  In cases like the present, it is suggested that legally, the decision to prosecute can only be treated as independent if the defendant shows that the prosecuting authorities knew that the complainant was lying about the assault but nevertheless proceeded with the prosecution.

8.  Alternatively, it is suggested that a decision to prosecute can only be independent for present purposes if that decision was not “significantly influenced” by the lie told by the complainant.  Since, Mr Lee SC argues, the case involves a striking-out application where it is to be assumed against the defendant that she had lied to the police, there is a clear basis for identifying her as the prosecutor.

9.  These formulations are not reasonably arguable.  They are contrary to settled authority and also contrary to principle.  The established test was duly applied in the Court of Appeal ( [2005] 4 HKC 28 at §§16, 17 and 31), and by Deputy High Court Judge Lam ( [2003] 4 HKC 318 at §§42 and 50).  They were entitled to find that the plaintiff is plainly and obviously unable to establish an essential element of the claim and so must fail.

10.  The application for leave to appeal is accordingly dismissed with costs.