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DCCJ 2197/2015
[2018] HKDC 734
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO 2197 OF 2015
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BETWEEN
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TUTIK-LESTARI-NINGSIH |
Plaintiff |
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and
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LAW WAN TUNG |
Defendant |
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| Before: His Honour Judge MK Liu in Chambers (Open to Public) |
| Date of Hearing: 25 June 2018 |
| Date of Decision: 28 June 2018 |
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DECISION
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Introduction
1. On 26 February 2018, this court handed down a judgment in which I order that the defendant should pay HK$170,000 plus interests to the plaintiff as damages for false imprisonment and common assault (“the Judgment”). By a summons filed on 16 March 2018 (“the summons”), the defendant applies for leave to appeal from the Judgment and stay of execution of my judgment pending the determination of the appeal. The facts have been set out in the Judgment and I do not repeat the same herein. For ease of reference, the abbreviations used in the Judgment are adopted in this decision.
Leave to appeal
2. The principles concerning leave to appeal are trite and not in dispute. Leave to appeal from this court to the Court of Appeal can only be granted if the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard[1]. Reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable[2].
3. Further, there is also no dispute that the appellant has to overcome a high threshold in order to succeed in an appeal against the court’s assessment of damages. As said by the Court of Appeal in Cheung Kai Chi v Chun Wo Contractors Ltd[3]:
“70. The Court of Appeal would only interfere with the assessment of damages if the trial judge was found to be in serious error or acting upon a wrong principle of law or that the amount awarded was so high or so small as to make it, in the judgment of the appellate court, an entirely erroneous estimate.”
4. Various grounds of appeal are set out in the summons. However, Ms Stephanie Wong, counsel for the defendant, makes it clear that the defendant is only relying upon the following 2 grounds set out in the summons in seeking leave to appeal[4]:
(1) this court erred in ruling that the pleadings of the plaintiff’s claim for compensatory and aggravated damages for false imprisonment was not defective, and not ruling that such claim ought to be dismissed with costs; and
(2) this court erred in ruling that the pleadings of the plaintiff’s claim for compensatory and aggravated damages for common assault was not defective, and not ruling that such claim ought to be dismissed with costs.
5. Ms Wong has also clearly stated that there is no challenge to the factual findings made in the Judgment.
6. As to false imprisonment, Ms Wong submits:-
(1) This court gave an exceedingly liberal reading of the plaintiff’s statement of claim at [13(c)] to [13(e)] of the Judgment;
(2) Even if the particulars of [7] of the statement of claim are to be considered for the plea of false imprisonment, they are to be read subject to the overarching [4] and that there was no total restraint of liberty. As shown in the authorities[5], “complete confinement” is an essential element of the tort of false imprisonment. The reliance placed by this court on Clerk and Lindsell on Torts (22nd Edition) §15-23 is an inadequate and too broad-brush approach[6].
(3) Further, the particulars at [7] of the statement of claim at most point to inhumane or intolerable conditions of imprisonment (which is disputed), which is irrelevant for the purpose of false imprisonment[7].
With respect to Ms Wong, I am unable to accept these submissions.
7. In respect of the first point, Ms Wong is merely repeating the arguments made by Mr Ching for the defendant at trial, which are summarized in [12(a)] to [12(f)] of the Judgment. I rejected these arguments and have set out my reasons at [13(a)] to [13(e)] of the Judgment. I am not persuaded that there is a reasonable prospect of success in arguing that I have given an exceedingly liberal reading of the statement of claim.
8. In respect of the second point, Ms Wong in fact is submitting that notwithstanding the material facts pleaded in [4] and [7] of the statement of claim and the factual findings made by this court in the Judgment, as a matter of law, the defendant still would not be liable to the plaintiff for false imprisonment. With respect, I am of the view that there is no reasonable prospect of success in pursuing this argument.
9. In respect of the third point, with respect to Ms Wong, there is no merit in this point at all. As found by this court, the plaintiff was imprisoned by the defendant during the Employment Period. No doubt the defendant did not have any authority to do so. The imprisonment is therefore false[8]. The complaint is not targeting the conditions of imprisonment, but the imprisonment itself and the nature of the imprisonment, namely, detention without authority.
10. As to both false imprisonment and common assault, Ms Wong submits that this court erred in making the award of aggravated damages. Ms Wong submits that:-
(1) In making the award of aggravated damages, I erred by taking the intolerable conditions of imprisonment into account and by making the award in a punitive nature and not in a compensatory nature.
(2) The consideration in the Judgment [34(d)] is not based upon the facts as pleaded in the statement of claim.
(3) The consideration in the Judgment [34(e)] is irrelevant as the painful and traumatic experience recalled in the present case when testifying has not accrued before the issue of the writ and such damage has not been pleaded in any event.
(4) The facts relied upon for claiming aggravated damages for both false imprisonment and common assault overlap substantially, and to award aggravated damages for the two causes of action based on the same set of pleaded facts would give the plaintiff double recovery.
(5) Further, as held in Richardson v Howie[9] (cited at Clerk and Lindsell on Torts (22nd Edition) at §15-139), it is not appropriate to describe and award damages as aggravated damages for trespass to persons.
With respect, I am unable to accept these submissions.
11. There is no dispute that aggravated damages can be awarded if there is injury to the plaintiff’s proper feelings of pride and dignity[10]. In fact, the point is also borne out in Clerk and Lindsell on Torts (22nd Edition) at §22-134[11]:-
“…… except where exemplary damages are permissible, every award of damages, including aggravated damages where appropriate, must be justifiable on the basis of compensation. If it is not, the inference will be that an improper element of punishment of the defendant or of simple bounty for the claimant has entered into the assessment and the award will, accordingly, be struck down on appeal. It is submitted that the law would be improved in terms of clarity if aggravated damages were regarded as nothing more than “mental distress damages” or “damages for injured feelings” and if the very term “aggravated damages” was replaced by either of those phrases. Certainly the relationship between aggravated damages and damages that are awarded for injured feelings irrespective of aggravating conduct is not straightforward. In Rowlands v Chief Constable of Merseyside Police it was laid down that, as aggravated damages are compensatory and not punitive, a judge and/or jury must be careful to ensure that there is no double recovery between “basic” and “aggravated” damages for assault, false imprisonment and malicious prosecution by the police. So in principle where damages for distress, humiliation and injury to feelings have been fully compensated as part of the “basic” damages, they should not be the subject of further compensation in the form of an award of aggravated damages.” (Emphasis added)
12. The award of aggravated damages for false imprisonment is made on the basis that the plaintiff’s proper feelings of pride and dignity has been injured, and I have provided reasons for that ruling in the Judgment[12]. The award is compensatory in nature.
13. In respect of the consideration in the Judgment [34(d)], that the plaintiff was a foreign domestic worker employed by the defendant during the Employment Period and the wrongful acts done by the defendant are pleaded in the statement of claim. I have found that all these are proved. In these circumstances, this court can take the view as stated in that paragraph.
14. In respect of the consideration in the Judgment [34(e)], Mr Tony Ko, counsel for the plaintiff, submits that the plaintiff is entitled to be compensated for consequences flowing naturally from her causes of action (which have been accrued prior to the issue of the writ), including but not limited to the pain and the trauma of having to testify in the courtroom, unless the chain of causation is broken. Mr Ko’s submissions are supported by Lai Yuk Shim v Hung Ling Kwok[13]. I accept Mr Ko’s submissions.
15. As to the “double recovery” point raised by Ms Wong, this point has not been raised by the defendant at trial and is a new point taken by Ms Wong. Before trial, this court has repeatedly given chances to the defendant to file and serve her answer to the plaintiff’s statement of damages[14]. However, the defendant has chosen not to put in any answer. In these circumstances, by the operation of the Rules of the District Court, Order 18 rule 13, all the facts pleaded in the statement of damages are deemed to be admitted by the defendant.
16. The facts in support of aggravated damages for false imprisonment[15] and the facts in support of the aggravated damages for common assault[16] have been separately pleaded in the statement of damages. I am of the view that there is no substantial overlapping. This court has also considered the claim under “false imprisonment” and the claim under “common assault” separately by reference to previous cases which are comparable[17]. I am of the view that there is no merit in the “double recovery” point.
17. As to the defendant’s reliance upon Richardson v Howie, Mr Ko submits that as described in Clerk and Lindsell on Torts (22nd Edition) §§42-004 to 42-007, Richardson v Howie is not settled law even in England. Further, in any event, Richardson v Howie concerns merely with the characterization of the award on account of “indignity”, not the recoverability of the same. I respectfully agree. It is clear that there can be an award for injury to the victim’s proper feelings of pride and dignity.
18. In my view, there is no reasonable prospect of success in the defendant’s arguments concerning aggravated damages.
19. For the reasons set out above, in my judgment, there is no reasonable prospect of success in the defendant’s appeal. Further, I am of the view that there is no other reason in the interests of justice that the appeal should be heard. The application for leave to appeal must be refused.
No stay of execution
20. Since I am of the view that the defendant’s appeal does not have any reasonable prospect of success, the application for stay of execution must be refused. As said by Ma J (as he then was) in Star Play Development Ltd v Bess Fashion Management Ltd[18]:-
“The existence of merely an arguable appeal cannot by itself amount to sufficient reason to justify a stay. It can be put this way: the existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay. In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted.”
21. Accordingly, no stay of execution should be granted.
Disposition
22. I dismiss the summons.
23. I have heard submissions on costs. In my view, costs should follow the event. I order that costs of the summons be to the plaintiff, with a certificate for counsel, to be taxed if not agreed. The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.
24. I thank Mr Ko and Ms Wong for the helpful assistance rendered to the court.
Mr Tony Ko, instructed by Boase, Cohen & Collins, assigned by the Director of Legal Aid, for the plaintiff
Ms Wong Hoi Ki, Stephanie, instructed by Ching & Co, for the defendant
[1] District Court Ordinance, s 63A(2)
[2] SMSE v KL [2009] 4 HKLRD 125, at [17]
[3] [2008] 1 HKLRD 102
[4] Defendant’s skeleton submissions dated 20 June 2018 (“DS”), [3]
[5] Bird v Jones (1845) 7 QB 742 at 752-753; B v Bournewood Comminity and Mental Health NHS Trust, ex parte L [1999] 1 AC 458 at 486 per Lord Goff, Robinson v Balmain New Ferry Co Ltd [1910] AC 295 at 299, A Local Authority v C (by her litigation friend the Official Solicitor), D, E v Equality and Human Rights Commission [2010] EWHC 978 at §155+
[6] Judgment [13(a)] and [13(b)]
[7] R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58; Clerk and Lindsell on Torts (22nd Edition), §§15-38
[8] Judgment [30]
[9] [2005] PIQR Q3
[10] Judgment [12(h)]
[11] Cited by Ms Wong in DS [7]
[12] Judgment [34] and [35]
[13] [2013] 1 HKLRD 580, per Bharwaney J at [8]
[14] Orders of HH Judge KW Wong dated 31 July 2017 and 20 September 2017 respectively
[15] Statement of damages, [4]: “The Plaintiff was released by the Defendant on 30th March 2011. During the span of her employment with the Defendant between 19th April 2010 and 30th March 2011, the Plaintiff was falsely imprisoned and lived in oppression for a total of 346 days. She was deprived of her freedom of movement and her general liberties, and in particular, her right to leave the Defendant’s residence and seek medical treatment.”
[16] Statement of damages, [6]: “The Plaintiff repeats the particulars as pleaded in paragraphs 7(i) to 7(iii) and 8 of the Statement of Claim filed herein. She suffered bruises and swelling to her back, legs and arms. The Plaintiff has fully recovered from her physical injuries over time. She not only suffered physical pain but also humiliation, distress and insult to her pride and dignity on a repeated basis throughout her employment with the Defendant.”
[17] Judgment [36] – [37], [38] and [39]
[18] [2007] 5 HKC, [9(6)]
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