THAPA KAMALA v. TONG MING-KAY (PC4374) AND OTHERS

HCA 890/2020

[2021] HKCFI 2371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 890 OF 2020

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D E C I S I O N

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A.    INTRODUCTION

1.  The plaintiff (“TK”) was the defendant in a summons for negligently endangering her safety (“Traffic Summons”). She was tried before a Special Magistrate for over 90 days, spread over 21 months.  The procedural history was chequered.  In the course of the trial, there were 2 judicial reviews initiated by TK against the Special Magistrate and 2 applications for her recusal.  There was a case for TK to answer but she was eventually acquitted.  The Special Magistrate took another 12 months to come to a decision refusing to grant costs to TK, finding that TK had brought suspicion to bear upon herself. 

2.  By a writ of summons issued on 4 June 2020, TK sues:

(1)     The investigating officer of the accident (D1), the Station Sergeant who laid information before the Magistrates’ Court to commence prosecution of TK (D2) and the Secretary for Justice (“SJ”, D5).  D1 & D2 shall collectively be referred to as the “Police Officers”.  These 3 Defendants are represented by Ms Siu. 

(2)     Counsel-on-Fiat, ie Mr Haddon-Cave (D3) and Mr Kwan (D4), who were engaged one after another for the Criminal Trial.  They are represented by Mr Pang SC and Mr Yau.

3.  It is TK’s case that the Defendants and one Dr Tam (forensic scientist who gave evidence for the prosecution) had maliciously prosecuted her; and the Police Officers and Counsel-on-Fiat committed misfeasance in public office.  TK claims that SJ, on behalf of the HKSAR, is vicariously liable for the torts committed by the other 4 Defendants and Dr Tam.

4.  SJ’s group of Defendants and the Counsel-on-Fiat have applied, by 2 separate summonses, to strike out TK’s pleading and to have the claim dismissed on the grounds that:

(1)     It is an abuse of the process of the Court to mount a collateral attack on an earlier decision made by another court of competent jurisdiction, which was a final decision that has not been set aside on review or appeal;

(2)     It is also an abuse of process to seek to challenge a public law decision of SJ to refuse to terminate the prosecution against TK in a civil action, bypassing the strict requirements for judicial review;

(3)     In respect of the claim in malicious prosecution,

(a)   The Police Officers and Counsel-on-Fiat were not prosecutors for the purpose of this tort;

(b)   There was reasonable and probable cause for prosecution and there were no pleaded circumstances which would have required the termination of the Criminal Trial;

(c)   The allegations of malice are without foundation and are insufficient to give rise to malice; and

(d)   There was no damage disclosed which were known to or foreseen by the prosecution or the Counsel-on-Fiat.

(4)     In respect of the claim in misfeasance in public office,

(a)   Counsel-on-Fiat were not public officers;

(b)   There was no abuse/excess of power on the part of the Counsel-on-Fiat; and

(c)   The evidence demonstrated a reasonable prospect of conviction and there was no malice disclosed.

5.  On the other hand, TK has applied for re-amendments to her statement of claim.  The parties have proceeded to argue the strike-out summonses on the basis of the draft re-amended statement of claim (“DRASOC”). Accordingly, if the DRASOC is not struck out, there will be leave to amend.

B.    UNDISPUTED FACTS

6.  At about 7:45 pm on 25 April 2016, the Subject Taxi was travelling along the northbound Tai Tam Road.  The centre of Tai Tam Road was divided by a solid white line on the northbound side of the road and a broken white line on the southbound side of the road.

7.  An unknown taxi had stopped on the southbound Tai Tam Road outside American Club.  Upon walking past the rear end of the unknown taxi, TK stepped out of the northbound carriageway.  As a result, the offside front corner of the Subject Taxi rammed into her.  TK sustained injuries and was hospitalized for 2 months.

8.  A CCTV camera of American Club recorded the accident. The average speed of the Subject Taxi for the section captured by the CCTV was found to be 49+1-5 km/HKSAR, when the speed limit was 50 km/hr.  However, the collision was blocked by a stationary vehicle, such that it was not clear if the accident happened on the north- or south-bound lane.

9.  The prosecution’s case was that TK, in walking past the rear end of the unknown taxi, failed to exercise due care and attention to the presence and approach of the Subject Taxi at her nearside.

10.  The Traffic Summons first came before a Magistrate, Mr Kenneth PC Chan, on 5 June 2017.  On reading the brief facts of the case, the learned Magistrate noted that TK was a victim of the accident who suffered serious injuries and was hospitalized for about 2 months.  He pointed out that the maximum penalty for the offence was a fine at $2,000 and queried whether it was of public interest to prosecute TK.  The matter was adjourned for 4 weeks for the prosecution to consider an alternative way of disposal.

11.  Despite the sensible view of Magistrate Chan and a letter from How & Co (TK’s solicitors) dated 19 June 2017 requesting the prosecution to withdraw the Traffic Summons, the prosecution insisted on proceeding.  The salient events during the Criminal Trial were as follows:

10.1.2018	Criminal Trial commenced before the Special Magistrate.  Mr Haddon-Cave was Counsel-on-Fiat.
27.9.2018	Mr Kwan took over as Counsel-on-Fiat when Mr Haddon-Cave retired.
19.12.2018	How & Co wrote the second time, this time to Mr Kwan, asking the latter to “stop the proceedings” (“How & Co’s Letter”).
21.12.2018	Chief Court Prosecutor on behalf of DoJ refused to withdraw the Traffic Summons, after having “considered [TK’s] representations, the available evidence and the circumstances of the case including the considerations set out in the ‘Prosecution Code’.”  (“CCP Decision”)
2.1.2019	Galbraith Ruling that TK had a case to answer.
14.10.2019	Special Magistrate acquitted TK but observed that in choosing not to use the pedestrian crossing but to cross the road at the back of a car while her view to the left was blocked, TK was very unwise and brought suspicion upon herself.
6.10.2020	Special Magistrate declined to grant TK costs and ordered TK’s solicitor and counsel to bear wasted costs.

12.  The evidence adduced at the Criminal Trial comprised of a set of Agreed Facts and 8 witnesses’ evidence.

(1)     On the prosecution’s side, there were the taxi driver, D1, and Dr Tam who reconstructed the accident with the CCTV footage, to determine the speed of the taxi.

(2)     On TK’s side, there were (i) TK, (ii) Mr Lo who was to give evidence to rebut Dr Tam’s evidence but was disallowed by the Special Magistrate on the ground, amongst others, that Mr Lo “lacked clarity of mind”, (iii) Dr Tang (land surveyor who gave evidence as to the angle drop of the CCTV camera), (iv) Mr Johnston (expert on traffic accidents) and (v) Mr Yu.

13.  In the course of the trial, there had been 2 judicial reviews initiated by TK against the Special Magistrate’s rulings.  In the judgment of the second judicial review (Thapa Kamala v SJ [2019] 4 HKLRD 304), Chow J (as he then was) commented that the offence was a trivial one, but the trial lasting 89 court days (up to then) could only be described as “extravagant in the extreme”, which amounted to a completely disproportionate use of judicial resources and brought the administration of criminal justice in Hong Kong into disrepute.

14.  On 4 June 2020, the Plaintiff commenced the present action.

15.  The above background illustrated the foresight of Magistrate Chan; the apt comments of Chow J; the lack of proper case management, and lack of a sense of proportionality on the part of the Special Magistrate, the prosecution and the Counsel-on-Fiat in conducting the Criminal Trial.  Much public funds had been incurred.  There was little public justice achieved in prosecuting TK.  But are these sufficient to found a case of malicious prosecution and misfeasance in public office?

C.    THE PLEADED CASE

16.  As against the Police Officers, the allegations are that they, without reasonable and probable cause and with malice or ill will (DRASOC, §29), did the following acts to prosecute her:

(1)     D1 recorded that “after [TK] stepped onto the southbound lane [of Tai Tam Road], she suddenly dashed onto the northbound lane thus was hit”, but the CCTV footage did not show that TK had ever stepped onto the northbound lane or dashed onto the road (DRASOC, §16) (“PO allegation 1”);

(2)     D1 attempted to obtain a cautioned statement from TK, treating her as a suspect of crime when there was no evidence which pointed to any criminal offence committed by her; (DRASOC, §19) (“PO allegation 2”);

(3)     D1 obtained another statement from the taxi driver, in an attempt to elicit evidence for the purpose of supporting the intended wrongful and malicious prosecution against TK; (DRASOC, §23) (“PO allegation 3”);

(4)     D1, in breach of his duty to investigate impartially/ recklessly indifferent as to whether TK would suffer any injury, did not investigate the taxi driver but continued to interrogate TK; (DRASOC, §§22, 24-25) (“PO allegation 4”);

(5)     D1 and/or D2 did not have honest belief or were recklessly indifferent as to whether the evidence of the taxi driver would be accepted by any court (DRASOC, §§26-27) (“PO allegation 5”);

(6)     D2 laid information before the Magistrate that TK, being a pedestrian at the northbound lane, endangered her own safety, when there was no evidence that TK was at the northbound lane (DRASOC, §28) (“PO allegation 6”).

17.  In doing so, the Police Officers committed misfeasance in public office (DRASOC, §§30-34). 

18.  As against Dr Tam, TK alleges that the prosecution maliciously and without probable cause instructed him.  Dr Tam gave “uninstructed opinion”, unsupported by evidence, which was plainly wrong and misleading to the Court. Dr Tam knew or had no honest belief or was recklessly indifferent as the falsity of the uninstructed opinions (DRASOC, §§42-47).

19.  As against the Counsel-on-Fiat, TK alleges that they had failed to invite the Special Magistrate “to stop the proceedings”, contrary to the Prosecution Code.  There are 3 pleaded bases:

(1)     Before commencement of the Criminal Trial, it became clear that Dr Tam’s report was on its face contradicted by that of Mr Lo (intended expert for TK) and the prosecution had no answer to Mr Lo’s opinion (DRASOC, §§47-56) (“Report Issue”);

(2)     At the commencement of the Criminal Trial, it became clear that the Admitted Facts would contradict the intended evidence of the prosecution’s only factual witness (DRASOC, §§58-62) (“Admitted Facts Issue”);

(3)     Before the ruling on no case to answer, How & Co’s Letter had alluded to the lack of evidence and public interest in continuing with the prosecution, but the invitation to withdraw the prosecution was declined (DRASOC, §66A) (“Letter Issue”).

20.  Specifically, against Mr Haddon-Cave, TK alleges that he demonstrated malice against her by not inviting the Special Magistrate to give no weight to Dr Tam’s evidence (which was not in his statement) and even further elicited evidence from Dr Tam.

21.  Specifically, against Mr Kwan, TK alleges that he conducted the trial in such a way which demonstrated either a lack of reasonable and probable cause or malice on his part.  These included 4 pleaded instances of evidence and 2 of law:

(1)     Adducing TK’s cautioned statement, contrary to Mr Haddon-Cave’s prior indicationtothecontrary:DRASOC, §§59 & 70.

(2)     Challenging Mr Lo’s qualifications as an expert witness on traffic accident reconstruction:DRASOC,§§63, 64 & 74-77.

(3)     Challenging Dr Tang’s evidence on whether the taxi had crossed the centreline of the road by (i) not admitting his report under of section 65B of the Criminal Procedure Ordinance (“CPO”) and (ii) asking “irrelevant questions”:DRASOC,§§81-82B.

(4)     On evidence, refusing to admit Mr Johnston’s evidence by way of section 65B or 65C of CPO and asking “irrelevant questions”: DRASOC, §§83-84.

(5)     On law, arguingthatTremaynevHill[1987]RTR131wasnotfollowedinHong Kong when it was: DRASOC, §§71-72.

(6)     On law, embarkingon“lengthydiscussions”withtheSpecialMagistrate on whether TK had a duty to call a defence witness who had given part of his evidence but was unavailable to continue doing so.  Mr Kwan ought to have known that there was no law imposing a duty on a defendant to call a particular witness: DRASOC, §§84A-84F.

22.  As against SJ, TK sues her in her capacity as prosecutor and on behalf of the Government of HKSAR for vicarious liability.  There is no independent factual allegation against SJ. 

23.  TK relies on substantially the same factual allegations to mount her claim on malicious prosecution and misfeasance in public office.  Accordingly, the merits of both causes will rise and fall together. 

D.   LEGAL PRINCIPLES

D1.  Striking out

24.  It is only in plain and obvious cases that the Court would consider striking out a claim.  There should be no trial upon affidavit. Disputed facts are taken in favour of the party whose pleading is sought to be struck out.  The claim under attack must be obviously unsustainable, the pleadings must be unarguably bad and it must be impossible, not improbable, for the claim to succeed.  Even if a case only has a slim chance of success, this is not sufficient for striking out.  See Hong Kong Civil Procedure 2021, Vol 1, §18/19/4.

25.  The jurisdiction should not be exercised if it requires 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.  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, in the rarest of cases, he not only harbours doubts about the soundness of the pleading and considers it likely that he may reach the conclusion that the pleading should be struck out, in that the ultimate issue is quite simple, but is also satisfied that striking out the pleading would obviate the necessity for a trial or will so substantially cut down or simplify the trial as to make the risk of proceeding with the hearing sufficiently worthwhile.”  See Hong Kong Civil Procedure 2021, Vol 1, §18/19/4.

26.  A reasonable cause of action means one with some chance of success when only the allegations in the pleading are considered: Hong Kong Civil Procedure 2021, Vol 1, §18/19/5.  No evidence is admissible on an application for strike-out on the ground that the statement of claim discloses no reasonable cause of action: Order 18, rule 19(1)(a). 

27.  A proceeding is frivolous when it is not capable of reasoned argument, without foundation or cannot possibly succeed.  Where the claim is on its face so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of process. A proceeding is vexatious when it is oppressive and/or lacks bona fides. See Yifung Properties Ltd v Manchester Securities Corp, HCA 1341 &1359/2014, 19 October 2015, §§12-14, Au-Yeung J.

28.  Abuse of process connotes that the process of the court must be used bona fide and properly and must not be abused.  The court will summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation.  See Hong Kong Civil Procedure 2021, Vol 1, §18/19/9.

29.  A collateral attack on a judicial decision of competent jurisdiction, both in civil and criminal matters, in proceedings in which the intending plaintiff had a full opportunity of contesting the decision, amounts to an abuse of process and is therefore liable to be struck out.  Choy Bing Wing v Chief Executive of HKSAR & ors [2016] 1 HKLRD 666 at §11, Lam J (as Lam PJ then was); and Hunter v Chief Constable of West Midlands Police & ors [1982] AC 529, 541B, Lord Diplock.

30.  This power to strike out exists regardless of the nature of earlier proceedings and even though it may not be strictly between the same parties.  Wong Kwai Sang v The Bar Council [2021] 1 HKLRD 455, Lam VP (as Lam PJ then was).

31.  Adopting a broad merits-based assessment, the Court’s power to strike out abusive private law claims is to reflect the importance of finality in litigation.  Ho Kin Man v Commissioner of Police [2014] 3 HKLRD 478, §§14 & 21, Lam VP (as Lam PJ then was)

D2.  Malicious prosecution

32.  In an action of malicious prosecution, the plaintiff must show that:

(1)     he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge;

(2)     the prosecution was determined in his favour;

(3)     the prosecution was without reasonable and probable cause; and

(4)     the prosecution was malicious. 

The onus of proving every one of these elements is on the plaintiff: Jae Hoon Oh v Richdale [2005] 2 HKLRD 285, §12, Ma CJHC (as he then was).

33.  Element (2) is not in dispute.

D3.  Misfeasance in public office

34.  The essence of the tort is abuse of public office in bad faith.  The plaintiff must establish that:

(1)     the conduct was that of a public officer exercising power in that capacity;

(2)     the officer must have either intended to injure the plaintiff by his acts (targeted malice), or knowingly or recklessly acted beyond his powers and the act would probably injure the plaintiff (untargeted or reckless untargeted malice); and 

(3)     damage must thereby be caused to the plaintiff in circumstances where the public officer knew the act would probably cause damage of the type suffered.

Martnok Thanradee v Commissioner of Police [2016] HKEC 1546 (unreported, HCA 789/2011, 14 July 2016, DHCJ M Ng (as she then was), at §§32 and 33.

35.  These are grave allegations that must be supported by pleaded facts which, if proved at trial, are capable of establishing liability.  See Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324 at p329H-I, CA.

E.     ABUSE OF PROCESS

36.  TK has to rely on a lot of facts pertaining to the Criminal Trial to establish her case.  She already had full opportunity at the Criminal Trial to contest the prosecution case.  To the extent she alleges that the prosecution was without reasonable and probable cause, this amounts to a collateral attack on the rulings of the Special Magistrate, including the ruling of a case to answer, the ruling that the expert evidence of Mr Lo was inadmissible and the findings as to how TK crossed the road in the verdict.  Subject to what I have to say about Mr Kwan’s conduct in Section G1.3 below, this claim is an abuse of process: Choy Bing Wing and Hunter.

37.  Mr Leung, counsel for TK, submits that the rulings do not bind this Court.  This bold submission is contrary to binding authority which held that those rulings were final determinations: HKSAR v Yamin(CACC 360/2016, 1 December 2017) at §59, McWalters JA.

38.  Under section 113(1) of the Magistrates Ordinance (Cap 227):

“Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination…”. (underline added)

39.  Section 113(1) is not confined to appeals brought by convicted defendants but any person (like TK) who was aggrieved by a determination: HKSAR v Mark Sutherland [2019] HKCFA 44, 19 November 2019, Appeal Committee.

40.  In this case, the proper method to challenge the Special Magistrate’s rulings wasbywayofappeal:Choy Bing Wing.  TK has not appealed, except as to costs.

41.  TK is merely, by changing the form of the proceedings into a civil case, attempting to set up the same case again: Hunter, at p542A-C).  Considering the broad, merits-based approach of Ho Kin Man, there is clear public interest in ensuring finality of litigation and to avoid wastage of the court resources on relitigation.  On the abuse of process ground alone, subject to Section G1.3 below, TK’s claims ought to be struck out as against the Police Officers and Mr Haddon-Cave.

F.    JUDICIAL REVIEW

42.  I accept Mr Pang SC’s submission that TK ought to have followed the strict procedure for judicial review had she felt aggrieved by the CCP Decision (an administrative act) and not by this civil action.

G.   MALICIOUS PROSECUTION

G1.  The power to prosecute

43.  Under Article 63 of the Basic Law, “the Department of Justice (“DoJ”) of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”  The discretion to decide whether to prosecute is vested in the SJ in charge of DoJ.  It is her responsibility to control and conductthe prosecution.

44.  Under section 7 of the Legal Officers Ordinance, Cap 87, SJ may authorize any legal officer to exercise and discharge any of the rights and duties which SJ is by law or by any enactment entitled to exercise or required to discharge.

45.  Under section 12 of the Magistrates Ordinance, SJ is “entrusted with the duty and discretion of conducting the prosecution of all offences cognizable by a magistrate”.

46.  Under section 13 of the Magistrates Ordinance, the SJ may appoint any public officer or class of public officers to act as official prosecutors and to conduct generally on her behalf any prosecution before a magistrate or any particular case.  Any official prosecutor so appointed may without any written authority appear and plead before a magistrate any case of which he has charge which is being tried.

47.  The “discretion of conducting the prosecution” includes all those common law powers which bring a prosecution to an end, such as withdrawing the charge or offering no evidence:CookevDPP(1992)95CrAppR233atp236(perWatkins LJ).

48.  By virtue of section 5 of the Legal Officers Ordinance, it is only SJ and her authorized legal officers (as defined in sections 2 and 7 and Schedule 1) who may make a decision to abort aprosecution.  A barrister in private practice is not within the definition of legal officer.

49.  Under Article 63 of the Basic Law, theultimateprosecutorialdecisionistobetakenbytheDoJ,evenif legal advice is sought from counsel or solicitors in private practice.  See the paper titled “Prosecution Policy of the Department of Justice”(CB(4)452/18-19(03))submittedon28 January 2019 to the Legislative Council Panel on Administration of Justice and Legal Services.

50.  The duties of prosecuting counsel may be summarized asfollows:

(1)     Aprosecutorworksinanadversarialandaccusatoriallitigationsystem.  The prosecutor’s advocacy role must be conducted temperately and with restraint; nevertheless, a prosecutor is entitled to advocate firmly and courteously the prosecution’s position on an issue and to test and, ifnecessary,attackthepositionadoptedorevidenceadvancedonbehalf of an accused.  See: Prosecution Code (2013 ed) at §3.3.

(2)     The duty of prosecuting counsel is not to obtain a conviction at all costs but to act as minister of justice.  Counsel have a duty to see that all available legal proof of the facts is presented.  It should be done firmly and pressed to its legitimate strength, but it must also be done fairly.  It is only if the departurefrom good practice is so gross, or so persistent or so prejudicial as to be irremediable that the appellate court will hold that the trial was unfair and quash the conviction: Benedetto v R[2003] 1 WLR 1545 at §54 (per Lord Hope).

51.  Other persons (such as a complainant) can be treated as a prosecutor for the purpose of the tort of malicious prosecution if:

(1)     He/she has abused the criminal process of the Court to set in motion a prosecution on a criminal charge in order to secure the wrongful conviction of another person;

(2)     He/She has lied or procured others to lie to the authorities in order to try to have another person prosecuted on a criminal charge; the lie must also at least have influenced the relevant prosecution authority to prosecute; and

(3)     The lie and the circumstances of the case were such that it became virtually impossible for the prosecution authorities to exercise any independent discretion or judgment as to whether or not to prosecute.  Where it is shown that the prosecution authorities were able to and did exercise an independent discretion or judgment in investigating the case and in the decision to prosecute the plaintiff, the nexus between the lie (as told or procured by the complainant) and the prosecution is broken and the complainant will not in these circumstances be held to be the prosecutor.

Jae Hoon Oh, §§19 and 27.

G1.1  SJ, the Police Officers and Dr Tam

52.  SJ does not dispute that she was the prosecutor in the Criminal Trial.

53.  However, the Police Officers were not, as they did not set the law in motion.  The claim against them has no prospect of success.

54.  In relation to Dr Tam:

(1)     Giving an expert report which was eventually held insufficient to found a conviction could not, without more, amount to having set the law in motion: Chin Kam Chiu v FTI Consulting, Inc & ors [2020] 2 HKLRD 878, G Lam J (as he then was).

(2)     TK claims that Dr Tam’s analyses were plainly and obviously wrong and he knew or ought to have known that they were untrue.  This is an allegation involving fraud for which the utmost particularity is required: Chin Kam Chiu, §39.  And yet the pleaded allegations are merely directed at Dr Tam’s opinion but not his dishonest state of mind.

(3)     There is no allegation that any “wrong/untrue” evidence which Dr Tam gave had made it virtually impossible for the prosecuting authority to exercise any independent discretion or judgment as to whether to prosecute TK: Jae Hoon Oh.

55.  Accordingly, the claim against SJ as the prosecutor (responsible for the acts of Dr Tam) has no prospect of success.

G1.2  Counsel-on-Fiat

56.  TK’s claim against the Counsel-on-Fiat is premised on their failure to “stop the proceedings”.

57.  First of all, the Counsel-on-Fiat were not prosecutors.  They were members of the private Bar and not “legal officers” appointed or authorized under section 7 of the Legal Officers Ordinance: R v Yuen Ching Kin [1997] 4 HKC 536 at p538C-D, Kempster JA.  Nor were they “public officers” appointed as official prosecutors under section 13 of the Magistrates Ordinance.

58.  Mr Leung submits that it appears from the judgment of Martnok Thanradee, at §2,that it is possible to allege that the conduct of Counsel-on-Fiat amounted to malicious prosecution.

59.  With respect, §2 of Martnok Thanradee dealt with torts committed by police officers, not counsel-on-fiat. That paragraph does not support the proposition of Mr Leung.

60.  Accordingly, it is plain and obvious that the Counsel-on-Fiat did not have the power to terminate the prosecution.

61.  Secondly, the CCP Decision showed that it was DoJ, instead of Counsel-on-Fiat, who made the decision not to terminate the prosecution.  Accordingly, the nexus between the Counsel-on-Fiat’s impugned act and the prosecution was broken by the independent judgment of DoJ: JaeHoon Oh, at§§19 & 27.  Mr Kwan was merely bound by DoJ’s instructions and continued the prosecution.

62.  Thirdly, TK alleges that in reply to How & Co’s Letter, Mr Kwan, whilst echoing the CCP Decision and pointing to Article 23 of the Basic Law, omitted to state that he had no power to withdraw the Traffic Summons. 

63.  With respect, Mr Kwan’s omission was irrelevant to the question of whether he had power.  Worse still, TK’s allegation was contrary to How & Co’s Letter wherein the solicitors themselves stated that “[Mr Kwan] indicated that it was not for [him], as a prosecutor, to decide whether to continue with the prosecution or not…”.  

64.  If that was all, I would have found that there was no case for asserting that any of the Counsel-on-fiat was a prosecutor.

G1.3  Mr Kwan’s conduct

65.  TK pleaded that, on 20 December 2019, when addressing the Special Magistrate on costs, Mr Kwan submitted that TK’s legal team should have stopped the cross-examination of Dr Tam after the first day of the trial for the reason that it was then clear that there was insufficient evidence to convict (“Mr Kwan’s Submission”).  Mr Kwan therefore impliedly admitted that the Counsel-on-Fiat each failed in their duty under the Prosecution Code to invite the court to terminate the proceedings after the first day of trial (DRASOC, §85).

66.  There is no transcript evidence in support of this plea.  Mr Pang SC fairly concedes that he has nothing to contradict this plea, which must be taken to be true for the purpose of the striking out applications.  However, he submits that this subjective intent was not relevant to the question of whether there was reasonable and probable cause for prosecution.

67.  I am unable to agree.  Mr Kwan’s Submission showed that he might not have held the belief that there was reasonable and probable cause to continue with the prosecution at least since the 2^nd day of trial.  The Criminal Trial had lasted for 8 months already when Mr Kwan took over as Counsel-on-Fiat and another 3 months until the Galbraith Ruling.  There was nothing to show that in those 3 months he had informed DoJ or the Special Magistrate of his view before the CCP Decision and the Galbraith Ruling were made.  Mr Kwan’s Submission was deployed in his submission on costs, successfully resisting TK’s application for costs and obtaining an order for wasted costs.  These decisions on costs are under appeal but that does not undermine the fact that Mr Kwan’s Submission had been deployed.

68.  On the current state of pleading and evidence, it is arguable that:

(1)     The conduct of withholding his view from DoJ and the Special Magistrate might be beyond inadvertence, error of judgment, mistake or incompetence.

(2)     Whilst it might not have been a lie, the failure of Mr Kwan to disclose his view of the case might be a material omission which made it impossible for DoJ/the Chief Court Prosecutor to make an informed judgment as to whether or not to continue the prosecution: Jae Hoon Oh.

(3)     Arguably, the nexus between Mr Kwan’s impugned conduct was not broken by the CCP Decision: Jae Hoon Oh.

69.  On these bases and for the purpose of the strike-out applications, Mr Kwan could arguably be regarded as the prosecutor.

70.  However, Mr Kwan’s Submission did not bind Mr Haddon-Cave as there was nothing to show that Mr Haddon-Cave shared the same view.  There is no basis to regard Mr Haddon-Cave as the prosecutor.

G2.  Lack of reasonable and probable cause

71.  TK’s case contains 2 limbs: lack of reasonable and probable cause (i) to prosecute and (ii) to continue the prosecution.

72.  The question of “reasonable and probable cause” breaks down into 2 tests.  The first is a subjective question, namely, whether the prosecutor has no honest belief that there is a case fit to be tried (Lord Devlin, at p767).  The second is the objective question of whether the circumstances were such that they would lead an ordinary prudent and cautious man to conclude that the person charged was probably guilty of the offence (Lord Radcliffe, at p754).  See Howarth v Chief Constable of Gwent [2011] EWHC 2836 (QB) at, §12, per Eady J, summarizing the principles in Glinski v McIver[1962] A.C. 726 (HL); Martnok Thanradee at §23.

73.  Sometimes, it is possible to infer the absence of an honest belief from a lack of “reasonable and probable cause”; but malice cannot of itself lead to an inference that “reasonable and probable cause” was lacking (Martnok Thanradee, at §23).

74.  Thetestofwhethertheobjectiveaspectissatisfiediswhether the evidenceis sufficient to make out a prima facie case to warrant the preferringofacriminalcharge,eventhoughitmaynotbeenoughin itself to justify a finding of guilt, ie that there is adequate material to place before a jury, rather than to attempt to predict what the jury will conclude: Howarthat §§16-17.

75.  A prosecutor neither has to believe in the probability of conviction: Glinski, at p766, Lord Devlin; nor does he have to test the credibility of witnesses.  It is sufficient if he had proceeded on such information as an ordinarily prudent and cautious man would have: Glinski.

76.  The duty of a prosecutor is not to find out whether there is a probable defence: Glinski, at 745, Viscount Simonds; or to test the full strength of the defence, or to investigate the truth of every assertion made by a suspect: Coudrat v Commissioners of Her Majesty’s Revenue and Customs [2005] STC 1006 at §42 (CA).

77.  The test for reasonable and probable cause to prosecute is similar to that for ruling of no case to answer, the test is similar, ie whether there was adequate material to place before a jury: Howarth, at §§16-17.  The test has been laid down in R v Galbraith (1981) 1 WLR 1039 at p.1042B-D:

“How then should the judge approach a submission of “no case”?  ... where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence.  (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case.  (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

78.  Galbraith is a highertest that requires the judge to consider if the evidence available at the trial could satisfy all elements of the offence and decide if a jury could properly come to the conclusion that a defendant is guilty.  By that stage, the defendant would already have the opportunity to cross-examine the prosecution witnesses to expose the unreliability and inconsistency in their evidence. 

79.  Merely showing that public interest did not require the prosecution or that the prosecution was contrary to public interest did not meet the requirement of showing lack of reasonable and probable cause: Besnik Qema v News Group Newspapers Ltd [2012] EWHC 1146 (QB), Sharp J, §77.

80.  There might have been reasonable and probable cause before prosecution starts.  After that, to show that a prosecutor has a duty to stop the prosecution requires some new circumstances and failure of the prosecutor to inform the court of those new facts.  In Tims v John Lewis & Co Ltd (1951) 2 KB 459.  Lord Goddard CJ said at 472:

“It is quite easy to imagine a case in which a person was thoroughly justified in bringing proceedings, and then in the course of the case something comes to light which shows the prosecution to be in fact groundless. Then if the prosecutor insists on continuing the prosecution without at any rate informing the court of the facts which he has since discovered, he will possibly have no reasonable or probable cause for continuing the prosecution and at any rate will be guilty of malice. …”

81.  Paragraph 3.5(e) of the Prosecution Code provides that “in litigation, a prosecutor must fairly invite the court to stop the proceedings if it becomes reasonably apparent to the prosecutor that there is no longer a reasonable prospect of conviction”.

82.  This is a higher test than that for establishing reasonable and probable cause.  In Rudall v Crown Prosecution Service [2018] EWHC 3287 (QB) at §80, Lambert J:

I do not accept that the evidential Code test [the UK equivalent of the HK Prosecution Code] is the correct test to apply for the purpose of examining whether there is reasonable and probable cause.  The exercise undertaken by the prosecutor in that context is to identify whether there is a realistic prospect of conviction which is a different, and higher, threshold than that which I must apply when considering whether there is a case fit to be tried or a proper case to lay before the court. The intensiveness of the scrutiny to be applied to the evidence is correspondingly different and greater than that relevant to the consideration of reasonable and probable cause. The evidential stage of the Code test includes an analysis of, not just the admissibility of the evidence, but the importance of the evidence, whether the evidence is reliable and credible and the impact of any defence or other information put forward by the suspect.  By contrast, my role, in examining whether there is a reasonable basis for an honest belief in the charge by the prosecutor, is to address the question of whether there is prima facie admissible evidence in respect of each element of the offence (see Smith LJ in Coudrat), setting aside evidence which is plainly admissible.”

83.  Applying the above principles, the DRASOC discloses the existence of reasonable and probable cause for the prosecution of TK.

84.  Firstly, the taxi driver’s evidence was that TK suddenly crossed the road from the gap between cars on the opposite lane and he believed that TK was chasing a public light bus.  The expert evidence from Dr Tam was that the accident was unavoidable from the perspective of the taxi driver and that TK was walking at a speed that doubled the typical walking speed (DRASOC, §42).

85.  On such a pleaded case, there was sufficient evidence for the prosecution to make out a prima facie case of “negligently endangering own safety” fit to be tried.  PO allegations 1-6 did not undermine the existence of this prima facie case.

86.  Secondly, the Galbraith Ruling supported the existence of a reasonable and probable cause.  There was no appeal against it. 

87.  Thirdly, in her verdict, the Special Magistrate held that TK chose not to use the pedestrian crossing nearby but instead crossed the road at the back of a car while her view to the left was blocked.

88.  Fourthly, the Police Officers were not required to investigate TK’s defence before trial: Coudrat.

89.  Insofar as the claim against Counsel-on-Fiat is concerned, the Report Issue, Admitted Facts Issue and the Letter Issue should and had been addressed at the Criminal Trial.

90.  With regard to the Report Issue, the DRASOC has not alleged why, before commencement of the Criminal Trial, Dr Tam’s report would necessarily be rejected at the Criminal Trial.  The prosecution had no duty to investigate Mr Lo’s report: Coudrat.  The existence of an expert report of the defence that contradicted the prosecution’s was not equivalent to a lack of reasonable and probable cause.  In fact, the prosecution’s challenge to Mr Lo’s qualification as an expert was successful such that Mr Lo’s evidence was excluded.

91.  With regard to the Admitted Facts Issue, the “potential variance” between the Admitted Facts and the intended evidence of the only prosecution witness was the difference in the taxi driver’s speed.  Even so, it did not follow that the taxi driver’s evidence as a whole would not be accepted by the court.

92.  With regard to the Letter Issue, DoJ had independently decided, after “carefully considered [TK’s] representations, the available evidence and the circumstances of the case including the considerations set out in the Prosecution Code”.

93.  Specifically, with regard to Mr Haddon-Cave, Dr Tam’s evidence was relevant.  There is no plea that the act of Mr Haddon-Cave undermined TK’s defence at the Criminal Trial in in irremediable way: Benedetto,at §54.  TK had, through her own counsel, full opportunity to cross-examine Dr Tam and, in fact, any prosecution witness.

94.  Specifically, with regard to 4 instances of evidence pleaded against Mr Kwan, there is no suggestion that they were irrelevant.

(1)     The prosecution must seek to have relevant and credible evidence placed fully and intelligibly before the court. If the defence evidence (including the qualification of an expert) lacked credibility, the prosecution was entitled to challenge it: paragraph 50 above.

(2)     The weight to be given to a piece of evidence was ultimately a matter for the Special Magistrate: Chin Kam Chiu, at §39. 

(3)     Unlessthere were circumstances which would render itunfair to an accused to tender a cautioned statement, it was to be expected that theprosecutorwouldtenderthatevidence iftheprosecutorialduty wastobe met: Nguyen v Rat §41 (HC of Australia).

(4)     TK could have challenged the admissibility of the cautioned statement at the Criminal Trial.

(5)     There is no plea that circumstancesexistedto makeitirremediablyprejudicialtoadducethecautionedstatement: Chin Kam Chiuat §39.

(6)     The fact that Mr Kwan resiled from an earlier promise of Mr Haddon-Cave of not admitting TK’s cautioned statement might be relevant to costs but not reasonable cause.

(7)     Similarly the unreasonable refusal of the prosecution to agree to admit evidence would, at best, be a ground for TK to seek costs if that refusal had lengthened the trial.

95.  With regard to the 2 instances of legal submission pleaded against Mr Kwan, a prosecutor may put forward a proposition of law if he believes on reasonable ground that it is “capable of reasonably contributingtoadecisionofthecourt”: cf §3.6 of the Prosecution Code (2013 ed).

96.  Debates between counsel as to the applicability of law is a common facet in courts.  Making submissions on law cannot, in itself, display lack of reasonable and probable cause.  TK’s lawyers had had the opportunity to make submissions to the contrary at the Criminal Trial.

97.  The extracts from transcripts showed that Mr Kwan made submission on compelling a defence witness to give evidence to assist the Special Magistrate in making her decision, which could not in any way connote malice:

“Madam, I have looked through all the relevant textbooks and cases and I am unable to find a case on the dutywedebatedyesterdaybut,frommyresearch,itappearsthatthe duty cannot be enforced directly but can only be enforced indirectly through two ways. One is through section 21(3) of the Magistrates Ordinance and the other way is to enforce it through section 21(4). That is subsection (3) or subsection (4) of the Ordinance.”: (Transcript p421B-E)

98.  In any case, the pleaded legal submission concerning whether to compel a defence witness to continue giving evidence arose in the defence case.  It could not have any impact on whether there was reasonable and probable cause to prosecute.

99.  The 6 pleaded instances of evidence and legal submission could not, taken individually or collectively, form the bases for asserting lack of reasonable and probable cause to prosecute.

100.  For the reasons given in this section, the claim against the Police Officers and Mr Haddon-Cave has no prospect of success.

101.  In respect of the continuation of the prosecution, given the analyses in Section G1.3 above, arguably there was lack of reasonable and probable cause to continue the prosecution as from the time Mr Kwan took up the case.  That lack was known to Mr Kwan and deployed by him even till the argument on costs at the Criminal Trial.

G3.  Prosecution was malicious

102.  Malice covers not only spite and ill-will but also any motive other than a desire to bring a criminal to justice: Chin Kam Chiu at §37.

103.  Theremustbeexplanationastowhytheactscomplainedof wereonly consistent with bad faith, malice, and/or reckless indifference: Young v Chief Constable of Warwickshire Police & anor [2020] EWHC 308 (QB) at [26].

104.  Malice may be inferred from facts but if what is pleaded as giving rise to an inference is equally consistent with mistake, negligence, incompetence, unintended fault or omissions of the prosecution then such a pleading will be insufficient and will be liable to be struck out.  Young at §26; BT v Crown Prosecution Service [1997] EWCA Civ 3000 at p9, Judge and Chadwick LJJ.

105.  Malice may be considered for different stages of the prosecution: BT v CPS. 

106.  With regard to the Police Officers, a mere assertion in the DRASOC (§29) that they prosecuted TK not for bringing her to justice does not disclose spite or ill-will:

(1)     PO allegations 1, 5 and 6 invite the Court to infer malice out of what was at worst, negligence, incompetence of the Police Officers or their misjudgment of the evidence.  Not doing what a “right-minded” police officer would have done, as Mr Leung submits, was negligence but not malice.

(2)     Under PO allegations 2-4, it is far-fetched to suggest malice in the Police Officers who investigated a person whom they considered to be at fault.  There is no suggestion that the Police Officers had personal knowledge of the taxi driver or TK, or personal interest in the traffic accident.

There is no prospect of establishing malice against the Police Officers.

107.  With regard Counsel-on-Fiat, the allegation focussed on their failure to stop the Criminal Trial, which must fail because they did not have the power.  They should have better managed the evidence and legal submission, and the length of the Criminal Trial.  However, there are no bases to say that their conduct was malicious, subject to Section G1.3.

108.  TK pleads that continuation of the prosecution was for Mr Kwan to earn more fees.  Applying Tims v John Lewis and for present purposes, there is basis to infer malice, in that the intention of continuing the prosecution was not to bring TK to justice but to bring Mr Kwan personal gain.

109.  Insofar as SJ was concerned, the only factual basis was the CCP Decision.  There was no assertion of malice against DoJ in coming to the CCP Decision.  However, SJ is arguably liable for the conduct of Mr Kwan.

G4.  Loss and damage

110.  The plaintiff must specifically plead and properly particularize both the damage and why the public officer must have foreseen it.  A pleading that fails to do so is liable to be struck out: Young at §26; Chin Kam Chiu at §38.

111.  If the causal nexus between the tort and the loss suffered is lacking, the court may decide that the claim is bad: Lee See Woo v Chu Hong Pong[2020] 5 HKLRD 196 at §42 (per DHCJ Jin Pao SC).

112.  Actual knowledge on the part of the officer that his decision or act would probably damage the plaintiff is required: Three Rivers District Council at p.195E (per Lord Steyn) and p.231A (per Lord Hobhouse).

113.  TK prays for the following relief arising from the malicious prosecution:

(1)     General damages for anxiety, mental distress and loss of dignity;

(2)     Aggravated damages due to extensive reporting by the media of the case following which the topic was widely discussed amongst netizens for prolonged period; TK’s privacy was seriously intruded;

(3)     Damages for the time and trouble in giving instructions to and receiving advice from lawyers;

(4)     Costs for attending court hearings and defending the Traffic Summons; the total legal costs are still accruing; and

(5)     Exemplary damages as the conduct of the Defendants was arbitrary and/or oppressive.

114.  With regard to prayer (1), there is no plea that the Defendants had actual knowledge of or foresaw that their acts would have caused this type of damage to TK.

115.  TK asserts that Mr Kwan knew that she had a claim against the taxi driver for damages (HCPI 574/2018) and the prolonged trial would affect such a claim (DRASOC, §69).  With respect, I am unable to see the causal nexus between the two, as the HCPI case was commenced within the limitation period.

116.  With regard to prayer (2), there is no plea on the causal nexus between the malicious prosecution and the media reporting/netizen’s discussion; and that any of the Defendants foresaw this type of damage.

117.  With regard to prayer (3), Mr Leung clarifies in his oral submission that it is concerned with the Criminal Trial.  TK had to travel to the solicitor’ firm, and take time off from her employment.  With respect, these are neither particularized nor are they recognized forms of damage.  If the loss had arisen from the Criminal Trial, TK should have applied for costs before the Special Magistrate and not in this action.

118.  With regard to prayer (4), it is also a matter of costs in the Criminal Trial.  It is not for the Court of First Instance to usurp the function of the Special Magistrate or the Court of Appeal in the related appeal.

119.  Prayer (5) is a claimable item: McGregor on damages, 21^st ed, §44-013. It is questionable how, if the aforesaid 4 prayers are not claimable, there can be exemplary damages awarded.

120.  TK complains that the conduct of Counsel-on-Fiat was for their personal gains in earning more fees.  Even if that is established, it had caused the public revenue to suffer, not TK.

121.  In the premises, even if malicious prosecution is established against Mr Kwan and hence SJ based on Section G1.3, it will be futile as no damages claimed could be awarded in this action.

H.   MISFEASANCE IN PUBLIC OFFICE

122.  Insofar as the commencement and maintenance of a criminal prosecution is concerned, a key element of determining whether such power was not an abuse of the Defendants’ public power would be “whether the evidence demonstrates a reasonable prospect of conviction”: Prosecution Code,at §5.5.

123.  The Police Officers were public officers.  The analyses in Sections G2 and G3 above on existence of reasonable and probable cause and lack of sufficient plea of malice equally apply to misfeasance in public office.  The claim against the Police Officers must fail.

124.  The Counsel-on-Fiat were persons whose capacity to act was entirely a creature of contract with the executive arm of government and not any executive power.  They provided services of a professional character to the executive.  They were not public officers for the purpose of the tort of misfeasance in public office: Leerdam v Noori (2009) 255 ALR 553 at §§18 and 51, Spigelman CJ.  The claim against the Counsel-on-Fiat must fail on this ground alone.

I.     CONCLUSION

125.  Subject to the analyses on Mr Kwan’s conduct in Section G1.3, the present claim on both causes of action are an abuse of process, as it is a collateral attack on the final determinations in the Criminal Trial.

126.  In respect of malicious prosecution:

(1)     The claim against the Police Officers and the claim based on Dr Tam’s conduct must fail primarily, because they were not the prosecutors.  In any case, the conduct of the Police Officers and Dr Tam had not made it virtually impossible for SJ to exercise any independent judgment as to whether to prosecute TK.  There was reasonable and probable cause for prosecution, lack of sufficient plea of malice and the damages were not caused by or within the knowledge or foreseeability of the Police Officers.

(2)     The claim against Mr Haddon-Cave must fail for the same reasons in sub-paragraph (1).  Additionally, Mr Haddon-Cave did not have power to “stop the proceedings”.

(3)     In the light of Mr Kwan’s Submission, it is arguable that Mr Kwan was the prosecutor; that there was lack of reasonable and probable cause to continue the prosecution; and that there was malice.  Even so, the damages were not caused by or within Mr Kwan’s knowledge or foreseeability.  Any claimable reliefs are for costs of the Criminal Trial and not this Court.  The claim against Mr Kwan must fail. 

(4)     SJ was the prosecutor.  She was liable for Mr Kwan’s conduct and the CCP Decision made without the CCP knowing about Mr Kwan’s Submission.  However, the claim against her must fail for reasons given in sub-paragraph (3).

127.  In respect of misfeasance in public office:

(1)     The claim against the Police Officers must fail because the elements of lack of reasonable and probable cause for prosecution, malice, causation for the damage, and knowledge/foreseeability of the damage to TK are lacking.

(2)     The claim against the Counsel-on-Fiat must fail because
they were not public officers.

(3)     Accordingly, the claim against SJ must also fail.

128.  Despite the length of the DRASOC and arguments, there is no complexity involved.  The DRASOC plainly and obviously does not disclose a reasonable cause of action and is frivolous or vexatious.  The defective claims are not curable by amendments.

129.  I therefore order as follows:

(1)     The Plaintiff’s summonses dated 22 March and 8 April 2021 for re-amendment to the amended statement of claim are dismissed;

(2)     The amended statement of claim is struck out and the action is dismissed;

(3)     On a nisi basis, the Plaintiff should bear the costs of the Defendants including costs of the action, with certificates for 2 counsel in respect of D3 and D4;

(4)     The costs are summarily assessed and allowed, on a nisi basis, in the sum of $207,042 in respect of D1, D2 and D5; $700,000 in respect of D3 and D4.

130.  I thank counsel for their assistance.