EUGENE JAE-HOON OH v. KATE GASKELL RICHDALE

HCA 380/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 380 OF 2002

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J U D G M E N T

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1. The Plaintiff and the Defendant were neighbours living in Wo Tong Kong Village, Mang Kung Uk, Clear Water Bay. Unfortunately, to put it mildly, they were not on good terms. In fact the animosity between them was so intense that even though both of them had moved away from Wo Tong Kong Village for quite some time (the Defendant has in fact migrated to Singapore), there are still ongoing litigations between them concerning incidents happened when they were neighbours. Apart from this action, the Plaintiff and his wife is suing the Defendant and her husband in another High Court action in HCPI 1187 of 2000.

2. In this action, the Plaintiff is claiming against the Defendant for malicious prosecution. This arose out of the prosecution of the Plaintiff in Kwun Tong Magistracy Case No. KTCC 1057 of 2001. The Plaintiff was charged with three offences in relation to the events happened on 9 September 2000. One of the offence was common assault on the Defendant. The trial took place in August and October 2001. On 31 October 2001, the magistrate found that there was no case to answer in respect of this charge. As to the two charges, the Plaintiff was subsequently convicted. Although he had appealed against those convictions, the appeal was dismissed on 16 May 2003.

3. In a nutshell, the Plaintiff's case is that the Defendant deliberately lied to the police concerning the incident on 9 September 2000. This led to the charge being laid against him by the police. The Plaintiff pleaded in Paragraph 8 of the Statement of Claim that the prosecution was without reasonable or probable cause and the Defendant maliciously initiated and participated in and procured the continuation of the criminal proceedings against the Plaintiff.

4. On 25 January 2003, the Defendant applied by summons to have the Plaintiff's claim struck out. In this application, I have the benefit of the assistance of Mr Martin Lee SC, appearing for the Plaintiff together with Mr Jeremy Chan and Mr Charles Sussex SC appearing for the Defendant.

5. The ingredients of the tort of malicious prosecution have been summarized as follows,

"In an action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the plaintiff."

(Clerk & Lindsell on Torts, 18th Edn., Para. 16-06, the same passage in the 16th Edition was adopted by Lord Keith of Kinkel in his judgment in Martin v Watson [1996] AC 74 at p.80)

6. The main focus of Mr Sussex in this application was on the first element. He conceded that he could not invite this court to strike out the Plaintiff's claim on the basis that the Plaintiff cannot possibly establish the other elements although the Plaintiff's case is weak in those regards as well. Counsel argued that the Defendant could not conceivably be regarded in law as the prosecutor for the purposes of the tort of malicious prosecution. Apart from the Defendant, there were a number of witnesses who gave statements to the police concerning the alleged assault on the Defendant on 9 September 2000. The police were able to assess the evidence and the Department of Justice exercised their independent discretion and judgment in deciding whether to prosecute.

7. In support of this contention, the Defendant produced a letter dated 6 May 2003 from the Department of Justice confirming that the police investigated into the case and the results thereof was sent to the Department of Justice. Advice was given by the Department of Justice to the police to charge the Plaintiff and prosecution was conducted by Government Counsel. It was said that the decision to prosecute was taken by the Department of Justice according to law and reference was made to Article 63 of the Basic Law and the Statement of Prosecution Policy and Practice. Article 63 of the Basic Law provides that the Department of Justice shall control criminal prosecution, free from any interference.

8. In a letter from the Acting Superintendent of Police (who was at the material time the officer in charge of the police investigation on the case) exhibited as "KRB-3", the police confirmed that they had conducted a fair, thorough and impartial investigation and the results of the investigation were not in any way influenced by any pressure exerted by the Defendant.

9. In Martin v Watson [1996] AC 74, the House of Lords held that where a complainant had falsely and maliciously given a police office information indicating that a person was guilty of an offence and the facts relating to the alleged were solely within the complainant's knowledge, so that the officer could not have exercised any independent discretion, the complainant, although not technically the prosecutor, could properly be said to have been the person responsible for the prosecution having been brought, by having been actively instrumental in setting the law in motion, and as such could be sued for malicious prosecution.

10. Mr Sussex submitted that the present case did not fall within the narrow circumstances laid down in Martin v Watson. Due to the presence of other witnesses and the thorough investigation by the police in the matter before decision to prosecute was made by the Department of Justice, Mr Sussex urged this court to take the view that this is not a case where the police's hands were tied and the Plaintiff has not produced anything to negate the exercise of independent judgment by the prosecuting authority.

11. Amongst the voluminous exhibits produced by the Plaintiff in his affidavit resisting this application, there is a report by the police officer in charge of the case (exhibit "EO-10") setting out the steps taken by the police between 13 October 2000 and 10 July 2001. It can be seen from that report that not only did the police obtain evidence from the Defendant and other witnesses who gave statement in support of the Defendant's claim of her being assaulted by the Plaintiff, they also took statements from witnesses located by the Plaintiff. One of those witnesses was a Ms Christina Li and a statement was taken from her. I would not recite each and every step taken by the police but it is fair to say that the report does bear out what the officer said in the letter mentioned in Paragraph 8 above.

12. In the very lengthy affidavit filed by the Plaintiff (the body of which consisting of 71 pages and 179 paragraphs plus another 500 odd pages of exhibits), the Plaintiff did not allege any conspiracy between the Defendant and the police. Mr Lee confirmed in the course of his submission that the Plaintiff is not alleging such conspiracy. In essence, the Plaintiff's case is that the police investigation was so tainted by misleading information provided by the Defendant that the police and the prosecuting authority could not exercise any independent discretion in deciding to prosecute the Plaintiff.

13. Apart from the Defendant, four other persons gave statements to the police implicating the Plaintiff about the assault on the Defendant. They included Mr Yan (husband of the Defendant), Mr Huang (a professor from the Harvard University who was a friend of the Defendant). In addition there were a neighbour and his friend, both of them did not know the Defendant before the incident. For convenience I would call them Martin and Chiu. All of them gave evidence in the criminal trial.

14. The Plaintiff made many assertions in his affidavit including that the two independent witnesses Martin and Chiu were procured by the Defendant and the Defendant had implanted lies in their minds. He also asserted that Yan and Huang had assaulted him on 9 September 2000 and implicated that they collaborated with the Defendant in giving evidence against him.

15. Mr Sussex described the affidavit of the Plaintiff as a document containing wild and intemperate allegations uncorroborated by any cogent evidence. I confess that I have great difficulties about this affidavit. It is not because of its length or the choice of emotional languages in its contents. Rather it is because it contains a lot of irrelevant material, matters which could not possibly have any bearing on this striking out application. The most objectionable parts in my view are that in many places the affidavit consisted of comments, opinions and submissions rather than deposition of factual matters. There are clear authorities that these had no place in an affidavit and should have been struck out. Obviously, the observations of Fuad JA in Nelson Delivery Service v Wong Kan Civ App No. 136 of 1986, were not heeded.

"Before I take leave of this case, I would draw the attention of those who advised Mr Wong Kan in drawing up his affirmation, of the necessity to avoid contentions and arguments in affirmations of the kind that we have before us, and to limit their contents to evidence. I have in mind the remarks of Roskill, L.J. and Megaw, L.J. in Alfred Dunhill Limited and another v. Sunoptic S.A. and another [1979] F.S.R. 337. At page 352, Roskill, L.J. said, this:

"I hope it is not out of place to say at this stage that the affidavits filed on both sides are in at least two cases very much too long. Affidavits are designed to place facts, whether disputed or otherwise before the tribunal for whose help they are prepared. They are not designed as a receptacle for or as a vehicle for legal arguments. Draftsmen of affidavits should not, as a general rule, put into the mouths of the intended deponents legal arguments of which those deponents are unlikely ever to have heard. Legal arguments, especially in interlocutory proceedings, should come from the mouths of those best qualified to advance them and not be put into the mouths of the deponents. There has been much unnecessary paper in this case brought about by the inclusion of legal arguments in affidavits."

Megaw, L. J. had this to say at page 373:

"There is one feature of this barrage and counter-barrage of affidavits on which I think that comment ought to be made. Some of the affidavits, in particular the second defendant's first affidavit, have been made the vehicle for numerous submissions of law and for forensic argument, wholly out of place in an affidavit, as it would be in the oral evidence of the witness." "

16. Clough JA in Robert Lee Flickinger v Director of Immigration [1988] 1 HKLR 81 at p. 94E to F and Cons VP in R Leslie Deak v Deak Perera Far East Ltd [1991] 1 HKLR 551 at p. 560-1 gave similar warnings. The evil of the inclusion of such material in an affidavit is well demonstrated by this affidavit of the Plaintiff. The presentation of material in this affidavit makes it very difficult for this court to identify factual evidence which could properly be included in an affidavit from other improper material. Judicial time should not be wasted on winnowing the chaff from the wheat. I take this opportunity to remind practitioners of the principles set out in those cases and in the future, this court would have no hesitation in following the course suggested by Cons VP in appropriate cases.

17. I would also add that in the present case, the Plaintiff was the sole proprietor of his solicitor firm and his firm was the solicitor on record acting for him when this affidavit was prepared. Obviously, he drafted this affidavit himself. In Paragraph 118 of his affidavit, he said,

"Writing this Affidavit is very painful and traumatic all over again."

There are good reasons why a solicitor should not represent himself in his professional capacity. Had the Plaintiff engaged an independent lawyer to prepare this affidavit, I would seriously consider exercising my power under Order 62 Rule 8 to order the solicitor to bear the costs not only of the preparation of this affidavit but also the costs of the other parties involved in the perusal and response to such an affidavit. It would not be an excuse that a client insisted on saying certain things in his affidavit, solicitors owed a duty to the court and should pay attention to the observations made by the Court of Appeal in the cases mentioned above in the preparation and conduct of litigation (see Yau Chiu Wah v Gold Chief Investment Ltd, HCA 807 of 2001, Ma JA, 21.5.2003, Paras. 30-32).

18. To tackle that difficulty, by way of case management, I included in my directions given on 25 March 2003 as to the filing and service of skeleton submissions that the Plaintiff should include in his skeleton submissions a schedule identifying relevant paragraphs in his affidavit and exhibits by reference to issues relevant to the striking out application. In his skeleton submissions of 21 May 2003, Mr Lee made reference to two paragraphs of the affidavit of the Plaintiff. Further paragraphs were referred to in the course of his oral submissions. I take those into account and doing the best I can, I also consider the other paragraphs in the affidavit insofar as they consisted of factual evidence.

19. Based on the submission of Mr Lee and the assertions in the affidavit of the Plaintiff, I understand the Plaintiff's case is that the Defendant had exploited a mistake by Chiu and generated that into case of assault with independent witnesses (see Paragraphs 72 to 75 of his affidavit). But one must note that a lot of the assertions in those paragraphs were speculations and suppositions by the Plaintiff and it would be wrong for this court to treat those as evidence of fact. The same observation can be made regarding the Plaintiff's assertion that the Defendant coached witnesses (e.g. Paragraphs 49, 141, 153 of his affidavit).

20. The Plaintiff's version as to the events happened on 9 September 2000 can be found in Paragraphs 19 to 23 of the Plaintiff's affidavit. In short, the Plaintiff said on that day the Defendant was the one who took an aggressive stance and charged towards him. She wagged her fingers in front of him. Fearful of being poked or scratched, he pushed her fingers away in self-defence. He said it was like a reflex action brushing the Defendant's fingers away in a manner as if he was chasing mosquitoes or flies.

21. Mr Lee submitted that this court could not at this stage resolve the factual disputes as to what happened on 9 September 2000. That must be correct. Hence, I have to proceed on the assumption that the Plaintiff's version of the event of 9 September 2000 was the true version.

22. Based on that Mr Lee urged this court to conclude that the Defendant must be lying when she gave statements to police about the assault on her. I am not sure if that must be the case. What the Plaintiff perceived as innocent pushing away of the fingers of the Defendant might honestly be considered by the Defendant as something else. But I accept that this cannot be resolved in a striking out application and I will also assume that the Defendant was lying to the police when she gave statements to them.

23. Mr Lee then argued that the Defendant's evidence must have an impact on the police investigation as she was the supposed victim and the best person to tell the police whether she was hit or just being brushed aside by the Plaintiff as alleged by the Plaintiff. He submitted forcefully that if the Defendant had told the police the truth (at this stage I have to assume the Plaintiff's version to be the truth), it was unimaginable that the Plaintiff would be prosecuted for this charge of common assault.

24. Regarding the other witnesses, Mr Lee drew my attention to the fact that Martin and Chiu was some 60 metres away and by reason of their position, their observations were partly blocked by the Defendant. Hence, they could not tell precisely and exactly what happened.

25. Regarding Yan and Huang, Mr Lee argued in Paragraph 53 of his written submission that the transcript of the trial before the Magistrate supported the allegation that there were conspiracy or procurement to give false evidence. No reference was made to any particular parts of the transcript (which made up the bulk of two files of documents placed before me). In the Affidavit of the Plaintiff at Paragraph 110, he made reference to the similarity of the evidence of the Defendant and that of Yan in the use of the expression "balled fist".

26. In fairness, I should mention that Mr Lee did not consider it necessary for the Plaintiff to show a case of conspiracy and procurement. The main thrust of Mr Lee's case is that the Defendant's evidence to the police must, on the facts of the present case, have impinged upon the police investigation and the prosecuting authority's decision. He relied heavily on the following dicta of McMullin J in the New Zealand case of Commercial Union Assurance v Lamont [1989] 3 NZLR 187 at p. 207-8,

"A person may be regarded as the prosecutor, if, inter alia, he puts the police in possession of information which virtually compels an officer to lay an information; if he deliberately deceives the police by supplying false information in the absence of which the police would not have proceeded; or if he withholds information in the knowledge of which the police would not prosecute."

Mr Lee submitted that these three requirements should be read disjunctively and it is sufficient if a plaintiff could satisfy either one of them.

27. Mr Lee submitted that the Defendant could not succeed in this application unless the court conclude that it is impossible for the Plaintiff to show at the trial:- (1) that the Defendant had lied to the police, and that if she had not said so, the police would not have prosecuted the Plaintiff; and (2) that the Defendant had withheld the truth as she knew it (that the Plaintiff had not hit her), and that if she had told the police the truth, they would not have prosecuted the Plaintiff.

28. In my judgment, the key issue in this application is whether it is plain and obvious to this court that it is impossible for the Plaintiff to show at the trial that the Defendant was the prosecutor for the purpose of the tort of malicious prosecution regarding the charge of common assault on her. It is not enough for the Defendant to show that this is highly improbable, it has to be impossible, or in the words of Lord Herschell in Lawrence v Lord Norreys (1890) 15 App Cas 210 at p. 219, "wholly incapable of proof" (see also Ha Francesca v Tsui Kut Kan [1982] HKC 382 at p. 392, Hutchivision Asia Ltd v Asia Television Ltd [1993] 2 HKC 510 at p. 512-3).

29. At this juncture, it is necessary for me to examine several authorities relevant to the issue as to who can be regarded as a prosecutor for the purpose of the tort of malicious prosecution when there is a public prosecution by the police or a public prosecuting authority. The law on this topic were reviewed extensively by the New Zealand Court of Appeal in Commercial Union Assurance v Lamont [1989] 3 NZLR 187 and by the House of Lords in Martin v Watson [1996] 1 AC 74. I do not think it is useful for me to repeat the same exercise in this judgment.

30. I was also referred by Mr Lee to the English Court of Appeal's decision in Mahon v Rahn (No. 2) [2000] 4 All ER 41. At the outset of the discussion of law on this topic, it is helpful to quote from the judgment of Brooke LJ at Paras. 267 and 268,

"267. It appears to me, in the light of these authorities, that it would be unwise to be over-prescriptive in setting out the circumstances in which a lay informant may properly be regarded as the prosecutor, or as one of the prosecutors, for the purposes of the tort of malicious prosecution.

268. A distinction must be drawn between a simple case like Martin's case and a more complex case in which a prosecuting authority such as the SFO or the Crown Prosecution Service is in receipt of evidence from a variety of sources and has to decide in the exercise of its discretion whether it is in possession of sufficient evidence to justify setting the law in motion against the defendant."

31. With that preamble, I turn to the judgment of Richardson J in Commercial Union Assurance v Lamont [1989] 3 NZLR 187. His Lordship traced the history back to the 16th century (see p. 192 to 198) and came to the conclusion that the core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff (see p. 199) and the test is the same where the prosecution was brought by the police. What is required is a cautious application of that test where police have conducted an investigation and decided to prosecute. This is to give recognition to the fact that in a modern and well-developed society, police have the training and experience to conduct impartial investigation and assess the evidence before deciding whether the evidence justifies a prosecution.

32. Mr Sussex laid emphasis on two passages from the dicta of Richardson J at p. 199 which I would quote below,

"To proceed on the premise that wherever it emerges that false information was given to the police the intelligent exercise of the discretion to prosecute was impossible, does not reflect the ordinary performance by the New Zealand police or their important responsibilities."

Mr Sussex said the same equally applied to the Hong Kong police.

"The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff. One should never assume that tainted evidence persuaded the police to prosecute. In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police. The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterized as having procured the prosecution."

33. It is also clear that Richardson J did not regard the mere malicious giving of false evidence to the police as equivalent to procuring the prosecution, see p. 195 lines 26-28, p. 196 lines 23-26, p. 197 lines 13-15.

34. I have cited the part of the judgment of McMullin J which Mr Lee relied upon. But that has to be read together with what His Lordship said both before and after the said dictum. At p. 207 line 46-50, the following was said, and Mr Sussex relied on this,

"As a general rule a prosecution will be considered to be brought when the information is laid and by the person who lays it. In the result, ... the police will generally be treated as the prosecutor and no action for malicious prosecution will lie against the person on whose information the police have acted."

At p. 208 line 15-16,

"Even if a party sets in train the procedure which results in the prosecution he will not be liable if the independent act of another supervenes."

35. These dicta have to be read in the light of the facts of the case. As Mr Lee pointed out in his submissions, it is important to bear in mind the facts of a case when one sought to extract the principles of law from its judgment. In Commercial Union, the defendant was an insurance company which supplied information to the police at the latter's request in respect of a fire. The defendant was the insurer for the building which was destroyed by the fire. The plaintiff was the owner of that building. The police investigation was carried out as a result of the report of a fire safety officer who inspected the fire and suspected that it was lit deliberately. The defendant did not make a complaint to the police. It was in fact the police who alerted the defendant that there were suspicious circumstances and suggested them to withhold payment (see p. 203 line 51 to 204 line 8). The police also made telephone enquiries with the staff of the defendant. The staff wrongly told the police that the plaintiff had withdrawn his claim. The plaintiff was charged by the police for attempting to obtain the insurance proceeds by false pretence and he was discharged by the court on the basis that there was no case to answer. At the subsequent trial of the civil claim by the plaintiff against the defendant for malicious prosecution, the jury found that the staff fabricated the story that the plaintiff was withdrawing the claim (see p. 191 lines 11 to 27; p. 202 lines 19 to 24; p. 204 lines 8 to 27) and persisted in that fabrication when the plaintiff denied the same. The jury also found the staff of the defendant motivated by malice (p. 208 lines 40-41).

36. Evidence was given by the police officer in charge of the case in the civil trial (see p. 191 line 45 to p. 192 line 15; p. 208 line 44 to p. 209 line 32; p. 211 lines 15 to 20). The thrust of his evidence was that the decision to prosecute was the independent act of the police uninfluenced by the defendant.

37. At the trial, the jury found the insurer liable and the judgment was set aside on appeal due to material misdirection by the trial judge. It is important to note why the Court of Appeal considered that there was a misdirection (see p. 199 line 40 to p. 200 line 16). Richardson J identified the problem with the directions to jury at p. 200 as follows,

"The combined effect of these passages is such that the jury may well have been left with the impression that the Commercial Union was at law the prosecutor if its employees were actively involved in the police inquiry or if the company had attempted to hasten the completion of that inquiry and hoped that a prosecution would ensue. The jury would also have understood from the final passage that, even if the police had independently evaluated the Commercial Union evidence along with the other evidence, the company could still be the prosecutor. On any application of the test I have been discussing I am satisfied that that was a material misdirection."

McMullin J said at p. 210,

"Those passages may have left the jury with the impression that even if the police reached an independent decision to prosecute the insurer could still be the prosecutor which is not the case. That misdirection was a material one..."

38. On the question whether there should be a new trial, there were difference of opinions in the Court of Appeal. Richardson and Barker JJ considered that there was just enough evidence to "scrape through" to leave the issue as to whether the insurer could be characterized as the prosecutor to the jury (see p. 200 lines 24 to 40; p. 211 lines 13 to 45). Both of them referred to the evidence of withdrawal of claim by the defendant's staff and Barker J said there was scope for a finding that the insurer procured the prosecution by dishonestly prejudicing the judgment of the police (see p. 211 lines 41-44). At the same time, they also observed that if the evidence of the police officer in charge of the case was accepted by the jury, the insurer would not be liable (see p. 200 lines 35 to 37 and p. 211 lines 35 to 40) because the independent judgment by the police was not tainted by misrepresentations or misconduct on the part of the defendant. They were however of the view that it is a matter for the jury as to whether the evidence of the police officer would be accepted and how it should be evaluated.

39. McMullin J was of the view that the false evidence by the defendant's staff as to the withdrawal of claim could not be said in any way to have influenced the police to a decision to prosecute (p. 208 line 41 to 43) and in view of the evidence of the police officer and the background of the case, His Lordship concluded that the officer reached his independent opinion to charge the plaintiff. His Lordship would have given judgment in favour of the defendant instead of ordering a new trial (p. 209 lines 33 to 44).

40. Hence, it is clear that all three judges in Commercial Union regarded an independent and untainted assessment by the police as sufficient to preclude the insurer from being liable as a prosecutor. It is equally clear that the court would not necessarily infer from the fact that false information had been given to the police that the police investigation was tainted. The difference between the majority and the dissenting judge appears to be whether the Court of Appeal could conclude no reasonable jury would find that the investigation was tainted on the facts of that case. The majority considered that they could not so conclude that the matter should be left to the jury, hence retrial was ordered.

41. It also follows from the criticism against the directions of the trial judge that neither active involvement by an informant in the investigation process nor the hastening of the police by a person to lay charge would by themselves be sufficient to render such informant or person a prosecutor. The crucial issue is whether the independent assessment by the prosecuting authority was tainted. But when would the assessment of the police be considered as tainted? Mr Sussex submitted it had to be a situation where the police was virtually compelled by the information to prosecute whilst Mr Lee submitted that was only one option, the others being the two other scenarios referred to in the dicta of McMullin J cited in Paragraph 26 above.

42. Martin v Watson was a case where the court held that the police was misled. Lord Keith's formulation of the applicable principles can be p. 86-7 of the judgment,

"Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant."

43. That case concerned a complaint of indecent exposure and the complainant was the only witness. For the reasons given by Brooke LJ in Para. 246 of his judgment in Mahon v Rahn (No. 2) [2000] 4 All ER 41 at p. 89 by reference to what Lord Keith said in relation to prosecution for sexual offences usually brought only when there were some other witnesses apart from the complainant at p. 88A to B in Martin v Watson, Lord Keith was apparently concentrating on a very simple case. In answering a point advanced by counsel based on policy consideration, Lord Keith's underlying assumption seems to be that the presence of other witnesses would tend to negate any suggestion that the complainant was the prosecutor, hence lessen the risk of victim of sexual offence being discouraged from complaining for fear of being held liable as the prosecutor. This is reinforced by the following dictum of Lord Keith at p. 89 D to E,

"Similar considerations apply to statements made to the police under circumstances where the maker falls to be regarded as having in substance procured the prosecution. There is no way of testing the truthfulness of such statements before the prosecution is brought. To deny any remedy to a person whose liberty has been interfered with as a result of unfounded and malicious accusations in such circumstances would constitute a serious denial of justice." (my emphasis)

44. For a more complex situation, one may need to refer to some wider principles expressed in the other cases approved by Lord Keith at p. 84H. One of the authority cited by Lord Keith was the judgment of the Privy Council in Pandit Gaya Parshad Tewari v Sardar Bhagat Singh (1908) 24 TLR 884. Sir Andrew Scobie said this,

"If, therefore, a complainant did not go beyond giving what he believed to be correct information to the police and the police, without further interference on his part (except giving such honest assistance as they might require), thought fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But, if the charge was false to the knowledge of the complainant, if he misled the police by bringing suborned witnesses to support it, if he influenced the police to assist him in sending an innocent man for trial before the magistrate, it would be equally improper to allow him to escape liability because the prosecution had not technically been conducted by him. The question in all cases of this kind must be --- who was the prosecutor? And the answer must depend upon the whole circumstances of the case." (my emphasis)

45. It is to be noted that in that case, the police inspector gave evidence and testified that he charged the plaintiff solely based on the information supplied by the defendant (see p. 885). Clearly, there had not been any independent investigation by the police. The same observation can be made in respect of Watters v Pacific Delivery Service Ltd (1963) 42 DLR (2d) 661, another case mentioned by Lord Keith. In Commonwealth Life Assurance v Brain (1935) 53 CLR 343, the information which led to the making of the charge was supplied to the police by the secretary of the defendant company and the prosecution was conducted by counsel and solicitors employed by the defendant who agreed to pay all the costs, charges and expenses of the prosecution.

46. In Commercial Union, Richardson J commented at p. 197 lines14 to 26 that the dictum of Sir Andrew Scobie should not be read as implying that the making of a lying accusation to the police was considered sufficient to make an informant liable for malicious prosecution. I respectfully agree.

47. I can now turn to Mahon v Rahn (No. 2) [2000] 4 All ER 41. It belonged to the category of complex case involving the investigation by the Serious Fraud Office in the affairs of a firm of stockbrokers. The defendant bankers supplied information to a self-regulatory body which in turn supplied the same to the Serious Fraud Office. The Serious Fraud Office brought criminal charges against directors of the stockbroker and the prosecution collapsed. Those directors sued the banker for, inter alia, malicious prosecution contending that the banker was responsible for the prosecution. After drawing a distinction between a simple case and a more complicated case, Brooke LJ said at p. 94,

"269. In a simple case is may be possible to determine the issue quite easily by asking these questions. (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A's knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?

270. In the more complex case it is likely to be more difficult to apply these tests, but I would adopt the approach suggested by Richardson J in the Commercial Union Assurance Co of NZ Ltd case when he said that the tests should be the same when the police had conducted an investigation and decided to prosecute, but that they should be cautiously applied. The reason, of course, is, as he also took into account, that prosecuting authorities are trained and accustomed to consider the evidence placed before them with an appropriately critical eye. Crown prosecutors, for instance, have to be satisfied that there is enough evidence to provide a realistic prospect of conviction, and s5 of the current Code for Crown Prosecutors described in clear terms the tests they have to apply before they can allow themselves to be so satisfied."

48. Pausing here, I observe that similar considerations are set out in Section 8 of the Statement of Prosecution Policy and Practice published by the Department of Justice of the Hong Kong Special Administrative Region.

49. The application in Mahon v Rahn (No. 2) [2000] 4 All ER 41 was for the summary disposal of the case pursuant to CPR Part 24 on the basis that the plaintiffs' claim has no real prospect of success. That is not the same test as the one to be applied under Order 18 Rule 19. However, the approach of Brooke LJ was to assume the plaintiffs would succeed at the trial in establishing that the defendants were dishonestly putting forward a story and withholding evidence which would have pointed the SFO the other way in order to secure the prosecution (see Para. 272). Despite that, it was held that the claimants had no real prospect of proving the defendants were properly to be regarded as the prosecutors on the facts of the case due to the role played by the SFO (see paras. 274 to 280). The conclusion of His Lordship was summarized in Para. 280,

"[SFO] was conducting wide investigations and exercising its own independent discretion as a skilled organization set up to handle prosecutions involving serious fraud. This is not a case in which it would be reasonable to let the matter go forward ... through the processes of discovery and oral evidence at a trial, because there is already before the court ample evidence of the SFO's role in the matter. It has not been suggested that the claimants themselves would be able to adduce any further evidence in relation to the internal workings of the SFO in connection with this investigation."

50. In my judgment, this case does not fall within the scope of Lord Keith's ratio in Martin v Watson as understood in the manner set out in Paragraph 42 above. The alleged assault of the Defendant was not an incident so exclusively within the knowledge of the Defendant that the police had no way to test her evidence before the prosecution was brought. I have examined the transcripts of the criminal trial. Contrary to the assertions of the Plaintiff in his affidavit, I think the cross-examination of Martin and Chiu showed that the Plaintiff had not tried to influence them in their evidence. Regarding Chiu, the Plaintiff only quoted a small part of the cross-examination, which if read in isolation, would be misleading. If one were to read the whole cross-examination as to the discussion between the Defendant and Chiu shortly after incident at p. 388-392 of Volume II of the court bundles (viz. p. 423-427 of the transcript's original pagination), there cannot be any mistake that Chiu said on that occasion Chiu was trying to calm down the Defendant who was crying. Chiu said the Defendant did not mention that she was being pushed nor specifically agreed to such suggestion by Chiu. She only indicated that something happened to her. Martin also said the Defendant was very distressed at that time and he did not recollect anything said about Defendant being pushed by the Plaintiff at that meeting (p. 431-2 of the court bundles). The statements of Martin and Chiu were taken by the police. The police were aware of the fact that Martin and Chiu were observing the event at a distance away from the scene.

51. Police also took statements from Yan and Huang. I cannot find any specific matters which suggested that the Defendant had suborned them before they gave their statements to the police. As I said, Mr Lee had not directed my attention to such material and I have tried my best in reading the relevant transcripts without the assistance of counsel. On top of that, the police had investigated by taking statements from or interviewing witnesses offered by the Plaintiff. Statements of several witnesses were supplied by the Plaintiff to the police including his own wife and maid and two other neighbours Mrs Wan and Ms Chan (see p. 6 of the report of Inspector Stone produced as "EO-10"). The police was able to investigate independently and the Department of Justice could assess the merit of case by reference to all the available evidence before they decide on whether to prosecute the Plaintiff. The Defendant might be an important witness but she was by no means the only witness which the prosecution could rely upon in establishing the charge. I would answer the second question posed by Brooke LJ in Para. 269 of his judgment in the negative.

52. However, I do not think Lord Keith's test is meant to be the sole criteria for deciding whether an informant to police could be held liable as a prosecutor. This was implicitly recognized by Brooke LJ in para. 250 of his judgment. In fact, Commercial Union and Mahon v Rahn (No. 2) were cases decided on a test wider than that propounded by Lord Keith. As mentioned, Mr Lee argued that the three limbs in the dictum of McMullin J cited in Paragraph 26 above were to be read disjunctively. On the other hand, Mr Sussex submitted that they had been understood to be read conjunctively. Brooke LJ appeared to read the first element (viz. the information supplied virtually compelled the police to lay an information) as a separate factor whilst the other two elements were to be read disjunctively in Para. 269.

53. As Mr Sussex put it, the crucial question is whether the independent exercise of judgment by the authority was effectively negated. As Richardson J said, the core requirement is the procurement of the prosecution by the informant. This was accepted by Lord Keith and His Lordship referred to how this requirement could be satisfied in a simple case by the test adopted in Martin v Watson at p. 86-87. Lord Keith's view was that if the police's exercise of independent discretion or judgment was virtually impossible, the complainant could properly be regarded as procuring the prosecution. In Commercial Union, Richardson J referred to the independent exercise of judgment by the police being tainted (p. 200 line 35 to 37) and Barker J referred to the dishonest prejudicing the judgment of the police by the defendant (p. 211 lines 44 to 45). A common vein of these cases is that an effective independent exercise of judgment by the prosecuting authority would sever the nexus between the information supplied by a complainant and the decision to prosecution. In that event, the complainant would be a mere witness and protected by the immunity for statements given by him to the police even if he acted with malice and supplied false information without proper or reasonable cause (see Taylor v Serious Fraud Office [1999] 2 AC 177).

54. However, an examination of the facts of the authorities cited in Commercial Union and Martin v Watson (some of them I have mentioned in Paragraphs 44 and 45 above) revealed that the independent judgment of the authority could be tainted or compromised in several ways and the scenario considered by Lord Keith is only one of them. Obviously, there could be cases where the exercise of independent judgment is possible but the evidence showed that it had not been exercised (as in Watters, Pandit Tewari and the local case of Kowloon Dairy Ltd v Ku Yuk-shing [1968] HKDCLR 57). There are also cases where although the authority had apparently exercised independent judgment, it may still be arguable that such exercise was tainted or prejudiced as in Commercial Union (contra. Mahon v Rahn (No. 2).

55. I do not think the mere fact that a plaintiff could show that false information had been supplied deliberately or that relevant information had been withheld would be sufficient to characterize the informant as prosecutor. This must follow from the judgment of Richardson J (see Paragraphs 32 and 33 above). In my view, a plaintiff must also show that such information had a significant impact on the exercise of the discretion by the prosecuting authority. In this respect, McMullin J drew a distinction between the supply of false information and the withholding of relevant information. McMullin J's qualification for the supply of false information is that "in the absence of which the police would not have proceeded" whilst the qualification for withholding information is that "in the knowledge of which the police would not prosecute".

56. Withholding of information is an omission rather than a positive act. If this limb of McMullin J's test is to be read in isolation and disjunctively, it can include a person who witnessed the incident and was aware of the innocence of an accused person but chose not to provide his evidence to the police out of malice. If the evidence he could give were material, according to the submission of Mr Lee, he could be liable as a prosecutor. That plainly cannot be the intent of McMullin J. I venture to suggest that McMullin J was referring to a case where an informant withheld material information when he supplied information to the police with the result that the information supplied became misleading and if the police were aware of such information, prosecution would not be brought. I therefore respectfully agreed with Brooke LJ that one should not be over-prescriptive and I read the three limbs in McMullin J's formulation as relevant factors rather than prescribing the ultimate test. I note that when Brooke LJ said the tests would be the same for more complex case, His Lordship was referring to the approach of Richardson J instead of the formulation by McMullin J. Brooke LJ recited the approach of Richardson J in Para. 262 which is the second dictum I cited in Paragraph 32 above.

57. Neither do I read the judgment of McMullin J as prescribing that once a plaintiff showed that a witness made material omission in his statement to the police, he would be regarded as the prosecutor. McMullin J only said that such a person might be regarded as the prosecutor. In my judgment, other relevant circumstances have to be taken into account. Take the examples of Martin and Chiu in the present case, one may say that the fact that their witnessing of the incident was partly blocked by the Defendant was material and they did not mention that in their police statements. It would be absurd to suggest because of that they became prosecutors. Very often, what a witness states in his statement depends on what questions are asked by the investigating officers. In Danby v Beardsley (1880) 43 LT 603, the defendant gave evidence against the plaintiff about the theft of his horse clippers. He did not mention to the police his groom had told him that the clippers belonged to the plaintiff. Yet the court held that the defendant was not a prosecutor. In Mahon v Rahn (No. 2), Brooke LJ proceeded on the basis that the defendants withheld evidence which would have pointed the SFO the other way (see Para. 272) but held on the facts of the case that the defendants were not prosecutors.

58. In a case where a witness had told a lie to the police, it necessarily entails withholding of the truth. I think the same criteria should be applied in considering whether the witness had so tainted the police investigation to render him a prosecutor. I cannot see any justification for the application of a looser test when the case was put on the basis of withholding the truth as distinct from telling lies. Yet this appears to be the result if one were to apply the formulation of McMullin J literally. It is more difficult to establish no prosecution would be brought in the absence of a piece of false information which was supplied than no prosecution would be brought as a result of a piece of information which was withheld. For my part, I would prefer the test formulated by Richardson J, viz. it was the false evidence tendered by the defendant which led the police to prosecute, whether that falsehood was the supply of false information or the withholding of the truth.

59. In my judgment, the ultimate test applicable on the facts of the present case is whether the independent discretion of the prosecuting authority was so tainted or compromised that the interposition of the Department of Justice in making the decision and the police in the investigation did not break the nexus between the information supplied by the Defendant and the decision to prosecute. This is primarily a question of fact to be decided in the light of all the circumstances of the case.

60. Hence, the outcome of this application to strike-out depends on whether the Defendant succeeds in showing that it was impossible for the Plaintiff to establish at the trial that the apparent independent decision by the Department of Justice to charge the Plaintiff for the assault on the Defendant was tainted by the conducts and statements of the Defendant in the sense as stated above. In considering this question, I should bear in mind the reminders by Richardson J and Brooke LJ as to the cautious application of the relevant test when the decision to prosecute was made by professional prosecuting authority after a thorough investigation of the case by the police.

61. In my judgment, this is not a case where the police was obliged to act even if a decision had to be made on the strength of the Defendant's evidence alone. Hence, it is not enough that the Plaintiff can show false information had been supplied by the Defendant to the police. In this connection, I reject the submission of Mr Lee that because the Defendant was the alleged victim of the assault, the court must conclude that her evidence was determinative on the decision to prosecute. If that submission were correct, every victim of sexual offence is liable to be sued by an acquitted defendant for malicious prosecution and the prospect of having to go through the ordeal of defending such action would certainly discourage many victims from giving evidence in criminal cases.

62. For reasons already given, I do not think the result should be different whether one characterized the alleged falsehood on the part of the Defendant as supplying false information to the police or withholding the truth from the police. Given the clear and indisputable evidence as to the independent and protracted investigation undertaken by the police in this case, I am of view that it is impossible for the Plaintiff to establish at the trial that it was the alleged false evidence given by the Defendant to the police which led the Department of Justice to prosecute the Plaintiff. It is plain and obvious to me that the police had conducted a thorough investigation and obtained statements from many witnesses. The Plaintiff himself recognized in Paragraph 60 of his Affidavit that the decision to prosecute was not determined by the Defendant's evidence. The Department of Justice had all the statements taken by the police in the file and there was nothing before me to suggest they have not taken all of them into account before deciding on the charges to be laid against the Plaintiff. Although Martin and Chiu were at a distance and Yan was the husband of the Defendant and Huang was her friend, the Government Counsel clearly considered their evidence to be relevant and called them as witnesses at the criminal trial.

63. Mr Lee said that at the trial of this action the Plaintiff intended to cross-examine the Government Counsel who decided to prosecute the Plaintiff. He would be asked whether charge would still be laid against the Plaintiff if the Defendant had told the police that she was not assaulted by the Plaintiff. With respect, I do not think this line of cross-examination assists the Plaintiff. Even assuming that the Government Counsel answers that question by saying the charge in question would not be laid, for the reasons given in Paragraphs 55 to 59 above this court cannot conclude from such an answer that the Defendant was the prosecutor. The same tactic could be adopted by every acquitted person in respect of his claim for malicious prosecution against every material witness in the criminal prosecution. If this court entertains this argument in the present case, the absolute immunity conferred on a witness by Taylor v Serious Fraud Office and the rationale behind it could be easily frustrated.

64. It is important not to lose sight of the fact that the essence of an action for malicious prosecution was the abuse of legal process by maliciously and without reasonable cause setting the law in motion. Although the furnishing of a statement could be an essential step in that direction (see Roy v Prior [1971] AC 470), it does not follow that the court should lightly conclude that a statement given by a complainant to the police set the criminal prosecution into motion. In my judgment, it is not sufficient to establish such nexus by simply showing that had the witness told the truth, the prosecution would not be brought. The nexus can only be established by showing that the lies told by the witness had set the prosecution into motion.

65. I also need to consider whether it is possible for the Plaintiff to establish at the trial that the Defendant's evidence had prejudiced the exercise of the independent judgment of the Department of Justice. In my judgment, it is not sufficient to show that the authority had taken the evidence of the Defendant into account. Such a test can be met in respect of almost every statement furnished by a witness. The threshold must be much higher. A plaintiff relying on this argument has to establish that the discretion of an independent and professional prosecuting authority had been prejudiced to the extent that it could properly be regarded as negating such discretion. In different contexts, the threshold had been set by reference to "information which virtually compels an officer to lay an information" (McMullin J), "intelligent exercise of the officer's discretion becomes impossible" (American Restatement of the Law), "it becomes virtually impossible for the police officer to exercise any independent discretion or judgment" (Lord Keith), "actively instrumental in putting law in force" (Lopes J in Danby v Beardsley).

66. In the present case, I cannot see any basis to suggest that in the exercise of their discretion, the Department of Justice was unable to function intelligently and independently. There is nothing to suggest that the Defendant's evidence had prejudiced the police investigation or the decision of the Department of Justice over and above her statements being considered. In coming to this conclusion, I take into account the two letters exhibited as "EO-21" but I do not regard these two letters take the Plaintiff's case further. The first letter simply asked for information as to the progress of the matter. The second letter was written to deal with the private prosecutions brought by the Plaintiff against Yan. I reject the assertion by the Plaintiff in his affidavit that these letters put pressure on the authority to prosecute him.

67. For reasons already given above, I also reject the assertion of the Plaintiff in Paragraph 8(6) of the Statement of Claim that the Defendant caused or procured untrue and/or tainted evidence tendered by other witnesses to persuade the police to prosecute him. The Plaintiff has not been able to produce a single piece of evidence to substantiate that allegation. Nor can I find anything from the transcripts on the cross-examination of these witnesses to justify such an inference.

68. Taking the whole circumstances of the case into account, I am of the view that it is impossible for the Plaintiff to establish that the Defendant was the prosecutor by procuring the Department of Justice to prosecute him. The claim of the Plaintiff is therefore doomed to fail. I order the Statement of Claim to be struck out and the action be dismissed. It follows that there will be a costs order nisi that the Plaintiff shall pay the costs of this action to the Defendant, such costs to be taxed if not agreed.