XCHRX LEUNG WAH v. KAN SIU MING AND OTHERS

1998, PI No. 1303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1303 OF 1998

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J U D G M E N T

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1. This is an action alleging assault and false imprisonment against a number of Police Officers, some of whom are identified, and the Secretary for Justice on behalf of the Commissioner for Police, and claiming exemplary and/or aggravated damages in addition to damages for the personal injuries sustained.

2. The incident complained of occurred on the 15th May 1994 in the early hours. The Plaintiff's case is that he was set upon by a number of plain clothes Police Officers as he approached his girlfriend in answer to her mobile telephone call for help. A man urinating in the street, who may have given greater offence, had caused her to do so. The result of that encounter, and there can be no dispute about this, is that the Plaintiff sustained extensive injuries requiring hospital treatment.

3. From the Kwong Wah hospital to which he was first taken by ambulance (and apparently in Police custody), he was the same day transferred to the Queen Elizabeth Hospital. In due course the actual hospital records will need to be seen as will the photographs taken of the Plaintiff on his arrest and later by a colleague. The copy report from Kwong Wah is of poor quality. There is reference to blood clots in both nostrils, swollen lower eye lids, a 2 centimetre laceration above left eyebrow and an abrasion of the lower lip. He was taken to the Neurological Unit for assessment. At the Queen Elizabeth there was further neurological assessment. He was still in custody. The laceration had been sutured. There were bruises over his face, back and chest. He was discharged the next day.

4. It seems as if he was then kept in custody until the 18th May when after being released on bail he went to the out-patient Department of the Baptist Hospital. At that time he was noted to have multiple bruises over both eyelids and lips, subconjunctival haemorrhage of both eyes as well as the sutured laceration.

5. The Plaintiff was charged with an assault upon a Police Sergeant amongst the officers, and some allied offences. On the same day as he was charged (the day of discharge from the Queen Elizabeth Hospital) he made a complaint to CAPO against the first five Defendants. Not surprisingly this was not progressed pending the outcome of the prosecution of the Plaintiff.

6. In February of the following year (1995) the Plaintiff and his girlfriend were prosecuted in the North Kowloon Magistrates Court. The case occupied three days. Five Police Officers were called to give evidence against them. The cases against both of them were dismissed by the Magistrate. In doing so he pointed out that the serious and extensive nature of the injuries to the Plaintiff were not in dispute. The photographs he regarded as very telling. The prosecution case was that the Police Officers tried to prevent the Plaintiff from assaulting the person whom his girlfriend had accused of indecent behaviour, as a consequence of which there was a violent struggle in which the Plaintiff sustained his injuries. The magistrate formed the view that the Police tried to "play down the severity of the Plaintiff's injuries". He went on to say that he could not accept the prosecution's version of events as the "full unadulterated truth".

7. The second set of proceedings took place the following year (1996) in June at the same court but before a different magistrate. The Plaintiff's private prosecution was against five Police Officers whom he alleged had with others unknown wounded him. There was another charge with which I need not be concerned. They were the same five Police Officers who had given evidence against him when he was prosecuted.

8. It is difficult to follow the transcript of the evidence in many respects and at least some of the findings by the magistrate are questionable in the light of the evidence. Nonetheless he found that there was no case to answer against all five Defendants. He made the same sort of comment as had been made by the magistrate who heard the prosecution case against the Plaintiff . - "There is no doubt [the Plaintiff] was seriously assaulted on 15 May 1994". He refused the application for costs made on behalf of the 3rd, 4th & 5th Defendant Police Officers. It is a reasonable inference that this refusal is linked and consistent with his finding that the Plaintiff had indeed been assaulted. There had been an assault on the Plaintiff but the evidence did not raise a prima facie case against these particular Police Officers.

9. It is against this background that the Defendants in the shape of the Sixth Defendant, the Secretary for Justice, made an application to strike out the Amended Statement of Claim and dismiss the action on grounds that it is scandalous, frivolous or vexatious or otherwise an abuse of the process of the court. There is an affidavit filed by the Department in support with a number of annexures. I find it disconcerting to note that the affidavit is totally silent about the prosecution of the Plaintiff. Apart from the CAPO report there is no document annexed which in any way refers to it. But for that reference one would be ignorant as to the fact. This is less than the even-handed approach to be expected of the Department of Justice. The affidavit in fact argues issue estoppel as the basis of the application.

10. In his succinct skeleton and oral argument Mr. Russell Coleman has nailed his colours to the mast - he argues for issue estoppel but I have considered abuse of process as well. In the former he makes almost passing reference to the prosecution of the Plaintiff blaming its failure on the suggestion that a civilian witness did not come up to proof. At the outset I should say that the reason advanced for the failure of the prosecution of the Plaintiff is an irrelevance. The core of the prosecution case was that the Plaintiff acted aggressively towards at least one Police Officer, injured two officers, resisted arrest, and sustained his extensive injuries in the course of that struggle. The magistrate did not believe the Police Officers. He was also of the view that they tried to play down what in fact occurred. He heard the evidence of the civilian witness. What that witness may or may not have said in a written statement was not before the court. He was not treated as a hostile witness. He was not cross-examined on any statement made. The circumstances in which his statement was taken, and by whom, are not known nor were they investigated. It was no part of the case.

11. Mr. Coleman also refers to the dismissal of the complaint by the Plaintiff to CAPO. That too is not relevant. In any event the investigation report, such as it is, contains at least one significant error: at page 14 is quoted an extract from the advice of Dr. Yu Hon-wai, a Consultant Forensic Pathologist, who said:

" - the medical examinations revealed only head injuries which were much less severe than that expected from the assault. No injuries were found on other parts of his body. Therefore the medical findings are not consistent with the alleged assault."

This is patently incorrect. Dr. Yu had not received or had not read the medical report from the Queen Elizabeth Hospital to which the Plaintiff had been transferred from Kwong Wah Hospital.

12. As the basis of his argument Mr. Coleman relies upon the House of Lords decision in Hunter v. Chief Constable of Birmingham 1982 A.C. p. 529. Applying a general rule of public policy the House held that where a final decision had been made by a criminal court of competent jurisdiction, the use of a civil action to initiate a collateral attack on that decision was an abuse of the process of the court. The House held that any fresh evidence relied upon did not entirely change the aspect of the case. The trial judge (Lord Bridge as he later became) had held, on a voir dire, that the prosecution had proved that the six men concerned (of whom Hunter was one) had not been assaulted by the Police, that their statements had been voluntary and accordingly should be admitted in evidence. The jury convicted all six, implicitly rejecting the same contention that they had made in the voir dire. They had in fact been assaulted by prison officers after the alleged confessions had been made. Their subsequent civil actions claimed damages for the same alleged assaults as had been the subject of the 'voir dire'.

13. Lord Diplock at page 540H to 541B drew the distinction between "issue estoppel" which he likened to a species of "estoppel per rem judicatam" and abuse of process. The former may arise in civil actions between the same parties or their privies and he referred to a decision of the Court of Appeal and his judgment in particular in Mills v. Cooper 1967 2 Q.B. 459 at pages 468-469.

"The doctrine of issue estoppel in civil proceedings is of fairly recent and sporadic development, though none the worse for that. Although Hoystead v. Taxation Commission did not purport to break new ground, it can be regarded as the starting point of the modern common law doctrine, the application of which to different kinds of civil actions is currently being worked out in the courts. That doctrine, so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.

Whatever may be said of other rules of law to which the label of "estoppel" is attached, "issue estoppel" is not a rule of evidence. True, subject to the qualification I have stated, it has the effect of preventing the party "estopped" from calling evidence to show that the assertion which is the subject of the "issue estoppel" is incorrect, but that is because the existence of the "issue estoppel" results in there being no issue in the subsequent civil proceedings to which such evidence would be relevant. Issue estoppel is a particular application of the general rule of public policy that there should be finality in litigation."

14. Lord Diplock went on the identify as abuse of process, exemplified by Hunter's case, "the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending Plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending Plaintiff had a full opportunity of contesting the decision in the court by which it was made".

15. In my view the decision of the magistrate in the Plaintiff's private prosecution was anything but final. He was dealing with a standard of proof which required his being satisfied so that he was sure, that the named Police Officers were responsible for the assault upon the Plaintiff, an assault which he was satisfied had occurred. On its own that hearing did not meet the clarification set out by Diplock.

16. But there were two proceedings. Both were dismissed. They left the whole matter unresolved. The only feature common to both was that the magistrates concerned stated that the Plaintiff had been subjected to a severe assault. That however is not a final decision which renders these proceedings otiose. By the same token, if not in any event by all standards of logic, the dismissal of the private prosecution against the five named officers of criminal charges is not the final decision of a court of competent jurisdiction.

17. The situation is best, and simply illustrated by the example given by Lord Diplock at page 543 A-B:

"Thus a decision in a criminal case upon a particular question in favour of a defendant, whether by way of acquittal or a ruling on a voir dire, is not inconsistent with the fact that the decision would have been against him if all that were required were the civil standard of proof on the balance of probabilities.

......

In contrast to this, a decision on a particular question against a defendant in a criminal case [as in Hunter's case] is reached upon the higher criminal standard of proof beyond all reasonable doubt and is wholly inconsistent with any possibility that the decision would not have been against him if the same question had fallen to be decided in civil proceedings instead of criminal."

It follows and is entirely logical, as well as just, that the fact of the dismissal of the proceedings against the Plaintiff does not aid him in his civil proceedings, just as the fact of the dismissal of the proceedings against the Police Officers cannot aid them in this action.

18. One other factor which must be borne in mind was that Hunter did not, in his appeal against his conviction, contend that the judge was erroneous in ruling that his confession was admissible. In the present case there has been no finding adverse to the Plaintiff which makes his present action a collateral attack on a final decision make by a court of competent jurisdiction.

19. I do not need to go on to consider the other authorities referred to but I will do so shortly if only to underline how distinguished they are from this case. In Wong Waung Sum v. Lee Kam Engineering Co. 1996 3 HKC, Cheung, J. was concerned with issue estoppel or estoppel per rem judicatam. There had been specific findings in relation medical issues, on the basis of expert medical evidence in Employees' Compensation proceedings in the District Court. Those findings gave rise to issue estoppel and the learned Judge, rightly in my respectful view, decided that the issues could not be litigated again. The situation fell within the ambit of Buckley, J's criteria in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 3) 1970 Ch. 506. It was clearly not a "Hunter" case.

20. In Chu To Chung 1995 HKLY 385, Keith, J. (as he then was) considered the House of Lords approach as part of his findings but the context in which he did so bears no comparison to the case before me. That case was a re-trial in which the issue was whether the second trial judge should be bound by the first trial judge's findings on the voir dire. I think that decision should be approached with care in so far as it drew any further conclusions from the House of Lords decision. Their Lordships made their decision on the premise of a final decision in criminal proceedings. There was no final decision (as yet) in Chu To Chung's case as a retrial had been ordered following a successful appeal.

21. The Privy council decision in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. 1975, A.C. 581 was an aspect of estoppel per rem judiciatam in its wider sense. A matter raised in subsequent litigation between the parties could and should have been raised and litigated in the original proceedings and accordingly the issues of fraud and voidability of sale were struck out since it would have been an abuse of process of the court. The classic statement from the judgment of Wigram V-C in Henderson v. Henderson 1843 3 Hare 100 at page 115, was cited by Lord Kilbrandon:

"...where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

22. Finally in Arnold v. Natwest Bank Plc. 1991 2 A.C. p. 93 the House of Lords considering issue estoppel, decided that there could be special circumstances to prevent the operation of this bar to relitigation - the special circumstance being, in that case, several subsequent decisions, two by the Court of Appeal ruling that Walton, J. had erred in his construction of whether a hypothetical lease contained rent review provisions. This decision like the others to which I have briefly referred are not apposite to the circumstances of this case.

23. The Defendants application is dismissed with costs to the Plaintiffs.