GODAGAN DENIYALAGE PREMA C. v. CHEUNG KWAN FONG AND ANOTHER

DCCJ2488/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2488 OF 2003

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JUDGMENT

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1. This is a case of malicious prosecution. In brief, the plaintiff was a domestic helper. An employment agency operated by the husband of the 2^nd defendant recruited her, and the 1^st defendant’s husband employed her at the family home. The employment did not last long. When it ended, the plaintiff took away with her a pair of sandals.  The 1^st defendant reported to the police that the plaintiff had stolen them. The plaintiff was charged with theft. Her defence was that the 1^st defendant gave her the sandals as a gift. The case went to trial before a magistrate. The two defendants were called as prosecution witnesses. The magistrate believed their evidence and disbelieved that of the plaintiff. The plaintiff was accordingly convicted and sentenced to 3 months’ imprisonment. She served 19 days in prison, before obtaining bail pending appeal. On appeal the conviction was quashed and the sentence set aside. Now the plaintiff claims against both defendants for damages for malicious prosecution.

2. In these proceedings the 1^st defendant defended the case against her, and gave evidence at the trial. The 2^nd defendant, although she filed a Defence and Counterclaim took no further part in the proceedings. On 24 August 2004 the 2^nd defendant’s Defence and Counterclaim were struck out in her absence, and judgment was entered against her for damages to be assessed.

3. It is not in dispute that the plaintiff is a Sri Lankan national, who entered into a contract of employment with the 1^st defendant’s husband, Mr Johnny Wong Chi Keung as a domestic helper. The employment commenced on about 2 December 2001 and ended on 10 January 2002. The 2^nd defendant and her husband operated an employment agency, Casa Care Employment Agency (“Casa”) at Yuen Long and it was through the arrangement of the 2^nd defendant that the plaintiff came to work for Mr Wong.

4. The plaintiff pleads against the 2^nd defendant that Casa charged her an unlawful commission of $12,000.00, which she paid by four instalments. The 1^st defendant did not plead to this, but the 2^nd defendant denied it.

5. In the course of the employment the 1^st defendant gave the plaintiff a pair of earrings, a ring, a watch and some clothes as gifts. The plaintiff’s case is that the 1^st defendant also gave her a pair of sandals; but this the 1^st defendant denies.

6. The plaintiff’s employment ended on 10 January 2002. It is the plaintiff’s case that the 1^st defendant terminated it, refused to pay a month’s salary in lieu of notice, refused to give the plaintiff an air ticket to return to her home country, and asked the 2^nd defendant to take the plaintiff away. The defendants asked the plaintiff to sign and she did sign some documents in English which she did not understand. It is the defendants’ case that the plaintiff resigned in order to go and work for a former employer in the Middle East; she was given an air ticket to Sri Lanka; it was agreed that wages in lieu of notice due by the plaintiff would be set off against her pay for the ten days worked in January, and the balance foregone; and in the presence of both defendants the plaintiff signed documents relating to her resignation, and a receipt for the air ticket.

7. The plaintiff spent the night of 10 January 2002 at the home of the 2^nd defendant, and departed the next morning, leaving her luggage behind as well as her passport which she says had been kept by the 2^nd defendant throughout the period of employment. On 15 January 2002 the plaintiff went to the office of Casa with two police officers for the return of her passport and luggage. The 1^st defendant also attended the office.

8. It is the plaintiff’s case that the 1^st defendant at the office told the police officers that the plaintiff had stolen from her the earrings which the plaintiff was then wearing. However, on questioning by the officers the 1^st defendant admitted that they had been given to the plaintiff as a gift and that no property had been stolen from her.

9. It is the 1^st defendant’s case that by that time she knew, and had told the 2^nd defendant that the sandals concerned in this case were missing from her shoe cupboard; she suspected theft and attended the Casa office to check the plaintiff’s luggage for them. The police asked her whether the earrings, watch and ring which the plaintiff wore had been stolen and she confirmed that they were gifts to the plaintiff. She then asked the police officers to go with her to the 1^st defendant’s home, where the luggage was, to check it for stolen property; but the officers refused to go unless she was sure that the plaintiff had stolen something. She was not sure, so the police officers did not go to check but merely told her to make a report if and when she was sure. It was then agreed that the plaintiff would go to the 2^nd defendant’s home to check the luggage the same afternoon; the 1^st defendant went there, but the plaintiff did not attend there as arranged.   

10. The 1^st defendant also avers that an arrangement was made for the plaintiff to go to the latter’s home on 20 January 2002 to collect her luggage, but the plaintiff did not attend. The 1^st defendant gave evidence, thought she had not pleaded it, that on this occasion a report of theft was made to police officers.

11. On 31 March 2002 the plaintiff went to the 2^nd defendant’s home to collect her luggage. On that occasion, the sandals were found in the plaintiff’s suitcase following which a report was made to the police. The plaintiff was prosecuted for theft, and convicted at Fanling Magistracy on 10 July 2002. She was sentenced to 3 months’ imprisonment. The plaintiff avers that the accusation was false and malicious and gives lengthy particulars of matters to which she avers the defendants falsely testified on oath. The defendants’ case is of course that the accusation was true as was the evidence which they gave in support of it.

12. The plaintiff appealed against conviction. She was granted bail pending appeal by the High Court on 29 July 2002. The prosecution conceded that the police were in possession of information which was material and relevant to the appellant's defence at the time of trial and which was not disclosed to her. The conviction was quashed and the sentence set aside on 19 February 2003. So the period for which the plaintiff should be compensated is about 

13. The plaintiff claims that she was injured in her reputation and was put to extreme mental pain, considerable trouble, inconvenience, anxiety and expense. She intended to work in Hong Kong for at least six years but has not been able to find employment in Hong Kong as a result of the court proceedings. The claims exemplary damages in the sum of $400,000.00 or alternatively damages to be assessed, with interest and costs.

14. It is not in dispute that the plaintiff sought assistance from the Labour Department and brought a claim before the Minor Employment Claims Adjudication Board (“MECAB”) against the 1^st defendant’s husband, her employer. The Board on 23 October 2002 ordered the latter to pay the plaintiff $3,367.00 for arrears of wages, an air ticket, fares and travel allowances, but dismissed the plaintiff’s claim for wages in lieu of notice and allowed the employer’s counterclaim for wages in lieu of notice in the sum of $1,047.00.

15. The plaintiff also brought proceedings in the Small Claims Tribunal against Ng Lok Sun, the proprietor of Casa and the 2^nd defendant in respect of the alleged illegal commission but on 13 December 2002 her claim was dismissed.

16. There are four ingredients in the tort of malicious prosecution.  See Martin v Watson [1996] 1 AC 74, at 80 : -

          “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.”

17. This passage was recently cited with approval by Ma CJHC in Oh v Richdale, CACV 105 and 162 of 2003; a case which dealt with the question whether an informant to the police could be held liable as a prosecutor, given that the prosecution is brought (unless it is a private prosecution) by the prosecuting authority. Although the defence counsel raised that point in opening, he did not ultimately pursue it; and I do not think it raises any problems here. If the 1^st defendant’s complaint was false, she misled the authorities into bringing the prosecution and she will be liable as prosecutor.

18. Nor was it argued that the prosecution was not determined in the plaintiff’s favour. In fact the magistrate believed the evidence of the two defendants, and disbelieved the plaintiff; the appeal was allowed because the evidence of the police officers of what the 1^st defendant had said to them on 15 January 2002 had not been before the court. It appears that the appellate court was told that the 1^st defendant had then complained to the police that the plaintiff had stolen earrings, but had not mentioned anything else, even though she must by that time have known that the sandals were missing.

19. The appeal judge found that there had been a material non-disclosure, and the conviction was therefore unsafe. He considered but declined to order a re-trial because of the relatively small value of the property involved, and because he could not envisage any real likelihood of a further prosecution proceeding given the damage to the 1^st defendant’s credibility that the police officers’ evidence would occasion.

20. For my own part I would have thought it arguable that the prosecution was not determined in the plaintiff’s favour, given that the acquittal on appeal came about because of a technicality following specific findings on credibility by the lower court, and no retrial was ordered. But it appears that this is not right. Reference was made to a passage in Halsbury’s Laws of Hong Kong (Vol. 25) §380.333 that

“Where there has been a successful appeal from a conviction this is, for the purpose of pleading, a sufficient termination of the proceedings in the plaintiff’s favour, but it seems that the conviction, although reversed, might be evidence on which the judge might find that there was reasonable and probable cause for the prosecution.”

21. The plaintiff’s case is that the defendants conspired to prosecute her for stealing the sandals when in fact the 1^st defendant had given them to her. The crucial issue here is whether the plaintiff stole the sandals or the 1^st defendant gave them to her as a gift. If it was the latter, it would necessarily follow that the 1^st defendant’s complaint and the evidence given by the two defendants before the magistrate was totally false. There would therefore have been no reasonable or probable cause for the prosecution, and that the prosecution would have been malicious, in the sense of having been brought for some improper or ulterior motive, and not with a view to bringing the plaintiff to justice. There are other pleaded issues, in particular those which relate to the actions of the defendants around and after the time when the plaintiff’s employment was terminated but they are secondary to the crucial issue of gift or theft and more important to the credibility of the parties than to the elements of the tort.

22. The plaintiff’s case in effect is that the defendants committed criminal offences, such as giving false information to the police, perjury and conspiracy to pervert the course of justice. The civil standard of proof on the balance of probabilities is applicable here but a higher degree of probability is required. See A.-G. v Tsui Kwok Leung [1991] 704 and in particular the following passage from the judgment of Sir Anthony Mason NPJ in HKSAR v Lee Ming Tee and Securities and Futures Commission [2004] 1 HKLRD 513 at 532:

71.           Statements may be found in Privy Council and English decisions which equate the burden of proof in civil cases of acts which are tantamount to a criminal offence to the criminal standard of proof. (See, for example, Lanford v General Medical Council [1990] 1 AC 13 at pp.19-20, per Lord Lowry; Re Solicitor [1992] 2 WLR 552 at p.562, per Lord Lane CJ.) It is now accepted, however, that the correct approach was that stated by Morris LJ in Hornal v Neuberger Products [1957] 1 QB 247 at p.266. This approach was approved in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 where Lord Nicholls of Birkenhead (with whom Lord Goff of Chieveley and Lord Mustill concurred) said (at p.586E):

When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, thatthe more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.

       Lord Nicholls's remarks accord with the law as it has been stated and applied in Hong Kong (see A-G v Tsui Kwok Leung [1991] 1 HKLR 40).

23. It is obviously unlikely that an educated middle-class woman such as the 1^st defendant will make a false report of theft against her domestic helper and pursue it to conviction by giving perjured evidence, all for a cheap pair of sandals. That has to be borne in mind here.

24. The plaintiff’s evidence in brief is that she was brought from Sri Lanka by Casa to work for an employer in Hong Kong. She arrived on 30 August 2001. She dealt with the 2^nd defendant at Casa. The latter kept her passport and charged her an illegal commission of $12,000.00 payable by four instalments. She was dismissed by her employer on 5 November and then the 2^nd defendant arranged for her employment with the 1^st defendant’s husband, Mr Wong, starting on 2 December 2001.

25. In the beginning all went well. The 1^st defendant bought the plaintiff various gifts, in particular a pair of earrings, a ring, a watch, a pair of shoes, a jacket and some cosmetics. But after a while the 1^st defendant started to scold her. In particular she described incidents in early January 2002 when she got into trouble with the 1^st defendant, her husband or both. She also said that she paid the last instalment of the commission to Casa in early January, after the 1^st defendant had spoken to her about it and advised her that she should pay it.

26. On 9 January, says the plaintiff, the 1^st defendant told her that Mr Wong had bought her an air ticket back to Sri Lanka. She asked not to be sent back. The 1^st defendant called her husband and then told the plaintiff that she could stay, but that they were not satisfied with her work. The plaintiff was told that Mr Wong would see her that night, but he did not come home. The next morning, 10 January 2002 Mr Wong scolded the plaintiff, took the house key from her, and said that henceforward she must take Thursday (that day) as her day off.

27. That morning the plaintiff went to seek the assistance of a charitable organisation, Christian Action which provided assistance to domestic helpers and migrant workers, and then she went to the office of Casa where she met the 2nd defendant. She told the 2^nd defendant that she was about to be sacked and asked for help but received an unsympathetic response, particularly because she had been unwilling to pay, although she had finally paid the $12,000.00 commission.

28. That evening the plaintiff went back to the 1^st defendant’s home. The latter accused her of hiding under her mattress some clothes which in any event had to be in her room for ironing. The 1^st defendant called the 2^nd defendant and told the plaintiff to pack her bags.

29. At about 8 p.m. the 2^nd defendant arrived with some papers. The plaintiff wrote at the 2^nd defendant’s dictation, on an otherwise blank form relating to termination of employment, that she resigned and acknowledged that she had to pay one month’s wages in lieu of notice, but could only pay back $1,230.00 being her wages from 1 to 10 January plus $200 “traffic allowance”. She also signed a photocopy of an air ticket, but she did not see or receive the ticket itself. The two defendants then accompanied the plaintiff to her room, for her to pack her bags.

30. In the room the plaintiff was told to return the ring, earrings and watch which the 1^st defendant had given her. These were later given back to her downstairs, through the hand of the 1^st defendant’s son, in front of a video camera. But in the room, she was told that she could take the other things which she had been given, and in particular the sandals with which this case is concerned.

31. In fact these sandals had been given to the plaintiff right at the start of her employment. They were in a shoe box under the table. The 1^st defendant told her that she had given them to a maid called Nalani who had worked there earlier and did not know why Nalani had left them behind. She told the plaintiff to try them on, which the plaintiff did and found that they were a bit small for her. The 1^st defendant suggested that she give them to someone else, but she said that she would keep them, and take them back to Sri Lanka when she returned there. After that the sandals remained in the box in the room, and when the plaintiff was packing to leave, the 1^st defendant told her to take them, and herself put them into the plaintiff’s suitcase.

32. That night the 2^nd defendant took the plaintiff to her home, but the next morning, because she was afraid that she would be taken to the airport and sent back to Sri Lanka, the plaintiff left the house early, leaving her luggage behind, and went to Christian Action. The personnel there assisted her to start an action before the Labour Tribunal, and gave her a letter to the police to go and get her passport back. 

33. On 15 January the plaintiff went to Yuen Long and called the police. She asked for help to get her passport back. She was with a friend; two police officers met them and all went together to the Casa office in Yuen Long. In the office, there was a discussion in Chinese, which the plaintiff does not speak, between the 2^nd defendant and the officers. The 2^nd defendant took the plaintiff’s passport from a board on the wall and handed it to the police officers, but then the police officers told the plaintiff to stay there until her employer came, because her employer said that she had stolen something.

34. Later the 1^st defendant arrived at the office. The police spoke to her in English, so that the plaintiff could understand. The police asked the 1^st defendant if the plaintiff had taken anything, The 1^st defendant said that she had not. The officers told the plaintiff to give back the things which the 1^st defendant had given her, such as her earrings; but as she was taking them off the 1^st defendant told her to keep them.

35. After that the plaintiff asked the police for help in recovering her luggage from the 2^nd defendant’s home, but the officers said that they did not have a vehicle, and she should call them later. No arrangement was then made to collect the luggage. The plaintiff on that occasion got her passport, but she did not receive any air ticket.

36. It appears that another attempt was made to get the luggage. The plaintiff did not mention this in examination-in-chief but in cross-examination she agreed that she had gone to the police on 20 January with a letter to request assistance from them. For whatever reason, the luggage was not collected. The next attempt was on 31 March 2002, when the sandals were found in her suitcase, and she was accused of theft.

37. In the meantime the plaintiff had, with the assistance of Christian Action, complained to the Labour Department and had issued proceedings in the Small Claims Tribunal. There was a meeting at the Labour Department – presumably a conciliation meeting because the MECAB proceedings were not yet commenced – on 28 March 2002 at which, according to the plaintiff, Mr Wong asked her to give back the gifts made by the 1^st defendant and said that if she did not, he would deduct the cost of them from the air ticket.

38. The plaintiff called as a witness the 1^st defendant’s previous maid, Ms. Ekanayake Mudiyanselage, Nalani E. (“Nalani”). She said that she been employed by Mr Wong from about 15 October 2001. Her employment had been arranged by a Mr Nathan of Casa. Before she came to Hong Kong, she had spoken on the telephone at the employment agency in Sri Lanka, with the 1^st defendant in Hong Kong. The 1^st defendant had spoken to her very nicely, and told her that her own husband was a barrister, and that she had a son, and asked if Nalani could cook. She had said that she would buy Nalani a pair of sandals when she arrived in Hong Kong and had asked for her shoe size.

39. When Nalani arrived, she was taken to the maid’s room in the 1^st defendant’s house. There the 1^st defendant showed her the sandals and gave them to her. The 1^st defendant said that she had bought them especially for Nalani, and Nalani received them with a lot of happiness, even though they were too big for her. She put them back in the box and she did not wear them. When she left, she forgot to take the sandals with her.

40. In the beginning, things went well for Nalani but then the 1^st defendant started to scold her for various things. Her evidence suggests that the 1^st defendant was quite unreasonable. It appears that Nalani was sent back to Casa for training, which she said she did not need, after an incident when the electric iron caused the electricity circuit breakers to trip; it was said that she had put the iron in water. In any event she was dismissed on 29 October 2001 for no good reason; the 1^st defendant took her to Casa and bought her two pairs of shoes on the way there. She was then taken to the airport, but managed to get help from the Immigration officials, as a result of which she was allowed to stay in Hong Kong; she started proceedings against Mr Wong but abandoned them when she found a new employer.

41. The next witnesses were the two police officers who had assisted the plaintiff at the Casa office on 15 January 2002; in fact the plaintiff had taken their police numbers and had given them to the police who arrested her, but the matter was not followed up. The police officers were uniformed officers, PC 50986 Chu Wai Ho and PC 58447 Sin Hon Wing. According to them, the plaintiff was trying to get her passport back. The passport was there; the 2^nd defendant said that the plaintiff had left it with her but that it was kept because the employer said that the plaintiff had stolen something. The 2^nd defendant telephoned the 1^st defendant and PC Sin spoke to her. The 1^st defendant confirmed that the plaintiff had stolen things but did not specify what; and she said that she would come to the office to have a better understanding of the matter.

42. When the 1^st defendant arrived, according to the police officers, she was asked what the plaintiff had stolen. She said that it was the earrings which the plaintiff was wearing. When asked where she kept the earrings, and how they came to be stolen, the 1^st defendant said that she had given them to the plaintiff as a gift because of her satisfactory performance, and thought that because the plaintiff had stopped working she should have them back. PC Chu explained to her that this was not theft. The 1^st defendant said that she understood, and did not want the earrings back.

43. PC Chu, who was the one who mainly spoke to the 1^st defendant while the other officer stood by, said that he asked her if anything else had been stolen; but the 1^st defendant said that apart from the earrings, there was nothing else.

44. On this occasion, according to the officers, the plaintiff got her passport back. There was no mention of any air ticket. As to luggage, the officers left it to the parties to arrange when that should be collected. PC Chu said that the 1^st defendant said that there was still luggage at her home, and asked the plaintiff to collect it “today”; they spoke in English. But PC Sin said that the arrangements for luggage collection were made between the 2^nd defendant and the plaintiff; it seemed to him that the luggage was in the 2^nd defendant’s home. According to him no time or date was mentioned for collection of the luggage.

45. The plaintiff also called a Ms Lo Pui Yin, an accountant of the Sri Lankan Airlines to explain the air tickets which were issued in this case. The ticket of which the plaintiff signed a copy on 10 January 2002 was apparently a one-way ticket in the name of the plaintiff for a flight from Hong Kong to Colombo on 10 January leaving at 18:35 hours. It was issued on 9 January 2002. It was valid until 31 March; if it was not used on the flight for which it was issued, it could be used until that date on payment of a penalty of $125.00; after that, it could be used on payment of $300.00. Later it was reported that the ticket was lost, and so another ticket was issued in its place on 23 July 2002, for an extra payment of $773.00. Later this second ticket was brought back and a refund given for it.

46. The gist of the 1^st defendant’s evidence is as follows. She had employed Nalani, who was recruited by Casa from about 13 October 2001. She had never given the sandals to Nalani, nor had she had any telephone conversation with Nalani about buying sandals for her. All she had ever bought for Nalani were some t-shirts and, when Nalani was leaving, two pairs of shoes because Nalani had broken the heel of her shoe while walking to the Casa office. In fact Nalani had left of her own accord, because she had been raped by her boy-friend in Sri Lanka, and wanted to go back there for medical treatment.

47. After Nalani left, the 2^nd defendant introduced the plaintiff and she started work on 2 December 2001. The 1^st defendant bought the plaintiff various articles of clothing and cosmetics. At different times the plaintiff complained of having damaged or lost an earring, a ring and a watch in the course of her work, and that is why the plaintiff had bought new ones for her.

48. The relationship between the plaintiff and the 1^st defendant was good. The specific incidents referred to in evidence by the plaintiff never happened. However in early January the 1^st defendant found cash missing from her handbag on a few occasions. She was suspicious and spoke to the 2^nd defendant who suggested that she either install a video camera, or tell the plaintiff that she had installed one. The 1^st defendant took the latter course on 6 January 2002. Then the plaintiff told her that her former employer in the Middle East had offered her work, and she wanted to resign; but did not say when she would do so.

49. The next day the 1^st defendant spoke to the 2^nd defendant and it was agreed that an air ticket should be issued for the plaintiff to return to Sri Lanka. It was issued and the 1^st defendant paid for it. Then on 10 December in the evening the plaintiff told the 1^st defendant that she wanted to leave at once. The 1^st defendant called her husband and the 2^nd defendant, who came to the house. The plaintiff signed the document regarding resignation, of her own will. In fact the 1^st defendant filled in part of the document herself after the plaintiff had written her acknowledgment on it. Then the plaintiff and the 2^nd defendant went to the plaintiff’s room to pack. The 1^st defendant did not go there herself. She also denied that the earrings, ring and watch had been taken from the plaintiff and then handed back in front of a video camera.

50. So far as the sandals are concerned it is the 1^st defendant’s evidence that she bought them for herself, along with some other new shoes. She had never worn the sandals. They were kept in their box in a shoe cupboard in the garage, along with all the other shoes; the family did not wear shoes in the house. She did not give the sandals to the plaintiff, either when the plaintiff arrived or when she was leaving.

51. On 11 January, the 1^st defendant called the 2^nd defendant to ask the plaintiff not to be in such a hurry to leave. The latter said that the plaintiff had gone to Yuen Long, so the 1^st defendant went to look for her there, at the shops where telephone calling cards were on sale to domestic helpers, but did not find her there. On her return home the plaintiff opened the shoe cupboard found the box which had contained the sandals open, and the sandals missing. She also found missing a man’s fleece jacket which belonged to her husband. She told the 2^nd defendant about these missing items.

52. On 15 January the 2^nd defendant telephoned the 1^st defendant and told her that the plaintiff had come to her office with two policemen to get her passport and luggage. Because she had said that things were missing, one of the policemen spoke to her on the telephone to ask what was missing. She told him that clothes and shoes were missing. Then she went to the office to resolve the matter.

53. When the 1^st defendant got to the Casa office a police officer asked her if the earrings which the plaintiff was wearing were stolen; and she said that they were not; they were a gift. He asked if she wanted them back and she said that she did not. The police officer explained that she could not ask people to return gifts, and that was not stealing. She said that two things were missing; but the police officer said that even though things were missing she could not accuse others of stealing. She suggested checking the luggage, but the officer said that since there was no criminal element involved the parties should make their own arrangements.

54. An arrangement was then made for the parties to check the luggage at the 2^nd defendant’s home some time after 3 p.m. that day, in the absence of any police officers.  The 1^st defendant could not attend, because she had to collect her son from school. So she told the 2^nd defendant to contact her if a pair of sandals and a jacket were found in the luggage. However later on the 2^nd defendant telephoned her and said that the plaintiff had not come.

55. There was another incident on 20 January when the 2^nd defendant called the 1^st defendant to the effect that the plaintiff was going to collect her luggage. The 1^st defendant went to the 2^nd defendant’s home but the plaintiff did not arrive. They called the police, and she told them that she was missing a pair of sandals and a jacket but the officers refused to open the luggage in the absence of the owner. They gave her a police case number, and they left.

56. The next incident was on 31 March when the 2^nd defendant contacted her to say that the sandals had been found in the plaintiff’s luggage. She went to the police station where she found that this was indeed the case. She identified the sandals to the police as those which she had found missing.

57. The 1^st defendant agreed that she had indeed bought the air ticket for the plaintiff. Later she was told that the plaintiff was insisting that she never got it; so she told Casa to issue a replacement, and she paid the extra $773.00 for that, and gave the new ticket to her husband to hand over to the plaintiff at the MECAB hearing. She had been told that the plaintiff wanted a cheque instead, so her husband had given her a cheque; and he returned the ticket to her, which she took back to Casa and ultimately got a refund.

58. The defendant called as a witness a Mrs Or, a neighbour, who said that she was called in when Nalani left. She confirmed that Nalani had been complaining that she wanted to leave because she had been raped in Sri Lanka. It seems that this witness was called simply to contradict Nalani’s collateral evidence about why she had left the employment. The witness knew nothing about the sandals.

59. I have set out the gist of the witnesses’ evidence, without going through what was said in cross-examination; all the witnesses maintained their evidence and did not depart from it in any particularly significant way.

60. The plaintiff’s demeanour appeared quite good. She was straightforward and collected and, when asked why certain matters such as when and where she was given the sandals, and what the 1^st defendant had said about payment of commission did not appear in her witness statement, gave the very sensible answer that she had put in the statement what she thought was important, and would be able to answer any further questions in court. However I remind myself as always that to estimate a witness’s credibility on his demeanour is always difficult. A much better indicator is consistency and the consideration of the evidence itself against the background facts.

61. With regard to discrepancies between the statement and the evidence, it is always necessary to remember that the statement is drafted by a solicitor and not the witness himself. If there is a contradiction between the statement and the evidence and if something significant is missed out it may indicate recent invention. Here, however, it was detail which was omitted and its omission, to my mind, is not significant.

62. The plaintiff had given evidence before the magistrate. It was put to her that there was a discrepancy between her evidence there and that given before me, in that she had told the magistrate that she was given the sandals when packing to leave, rather than when she arrived. However I have been through the transcript of the proceedings and it appears that she said, in examination-in-chief, that she had been given the sandals some time before she was leaving, although she could not remember when; and they had been in her room all the time she was there. Then under cross-examination she said that the 1^st defendant had told her that Nalani had left the sandals, and said that she could have them. This happened about a week after she had arrived. So the discrepancy is not great.

63. Overall, it appears that the plaintiff gave essentially the same evidence before the magistrate as she did before me. This includes evidence of the incidents which she says led to her being scolded, and which I have not visited in detail because obviously they are peripheral to the central issue here. In fact the 1^st defendant’s evidence is quite simply that these incidents never happened. That in itself is a little suspicious; there is usually some basis for a scolding, even if there is a dispute over how it came about.

64. Nalani’s evidence of the telephone conversation with the 1^st defendant, before she took up employment, when the 1^st defendant promised her a pair of sandals is obviously unlikely. There would have been no reason for any employer to promise a pair of sandals and ask the shoe size of a domestic helper who had not yet arrived. Further if she did buy the sandals, even if she got the size wrong, there would not be any reason for Nalani to leave them behind; a domestic helper on the minimum salary can no doubt dispose of a nice new pair of sandals quite easily and profitably. As to whether Nalani was sacked or left of her own accord, of course this is peripheral and could only go to credit but on this point I note not just the evidence of the neighbour but the fact that there is no dispute that the 1^st defendant bought Nalani two pairs of shoes whilst on the way to the Casa office; again it seems unlikely that if an over-particular employer were sacking a helper without notice, she would bother to buy shoes for her.

65. It may be that Nalani, in an attempt to assist the plaintiff has made up the story of the telephone conversation. This does not necessarily mean that her evidence that she was given the sandals must be untrue; but it does cast a doubt on that evidence.

66. The two police officers seemed quite straightforward. They were independent. Their evidence that the 1^st defendant first told them that earrings were stolen, and then when that was explained, ultimately told them that nothing had been stolen was clear enough. I will deal further with the officers’ evidence below.

67. The 1^st defendant also gave her evidence in a calm and collected manner, and her demeanour, for what that is worth, appeared to be quite good. She was of course cross-examined on her evidence before the magistrate. There were a few discrepancies but that is not surprising given the lapse of time. However the point was taken that she had said before the magistrate that when she came home on 11 January it never occurred to her that the plaintiff would steal from her. When cross-examined on this, she said that she had suspected because of the cash which went missing; but she had not mentioned it because she had not been asked about it. Of course she was not asked about missing cash in evidence in chief, and quite properly so; any such question would obviously have been open to objection as being irrelevant to the question of theft of the sandals, and prejudicial. But to my mind it is surprising that she would not have voiced her suspicions, and referred to the missing cash under cross-examination when she had the chance to do so. So there is obviously a suspicion that the 1^st defendant made up this story of missing cash which first made its appearance in her witness statement in these proceedings, dated 28 April 2004.

68. Nor indeed would there be any reason for the 1^st defendant to omit the detail that, for whatever reason, she had told the plaintiff that she had installed a video camera. She said that she was not asked about this; but of course that is not the point; she was trying, before the magistrate as well as before me, to show that the plaintiff resigned. A reason for that resignation presented before me was the alleged installation of the video camera. There would be no good reason for her not to tell the police or the magistrate about this. I would not see it as prejudicial in evidence, going as it does rather to the state of mind of the employer than to any dishonest behaviour by the employee.

69. I also note that in the 1^st defendant’s statement to the police made for the purposes of the prosecution of the plaintiff there was no mention of missing cash or of the installation of a video camera. This is the sort of thing which a lay witness would mention, and which a police officer might record, even if it did not have much evidential value. But to be fair, the 1^st defendant was not cross-examined on this.

70. The plaintiff has attempted in this case to show that the 1^st defendant was a difficult and unpredictable employer, and one who had an unfortunate history in her dealings with her domestic helpers. She also attempted to show that she was dismissed rather than that she left of her own accord; and Nalani likewise. A lot of time was also spent on the air ticket, how it came to be issued and what ultimately happened to it. All of this matter, while it may have some bearing on the credibility of the parties, is however at best only marginally relevant to the issues here. It is a long step from a conspiracy to dismiss a helper unfairly and without proper remuneration, if that is proved, to a conspiracy to bring a false prosecution against her for theft. The same applies to the evidence of the unlawful commission exacted by the 2^nd defendant. Even if there was such a commission – and the Tribunal dismissed the plaintiff’s claim for it – and even if the 1^st defendant, after an approach by the 2^nd defendant, advised the plaintiff to pay it, again it is a long step from an illegal commission to a false criminal charge. 

71. It is certainly true that in the beginning the 1^st defendant treated both the plaintiff and Nalani well. There is no dispute that she gave them various gifts. However in both cases, after a while, everything went bad between employer and employee and the contract was terminated. There is a dispute as to whether Nalani was dismissed out of hand or resigned of her own will. It is to be noted that, according to the plaintiff, it cost her $4,800.00 to pay off Nalani. There is no evidence from Nalani to contradict that. Whether some of the money was paid to Nalani, or all of it to Casa as the 1^st defendant said in the criminal trial does not really matter. So far as the plaintiff is concerned, although she says that she was dismissed out of hand and made to sign a false acknowledgment that she was resigning, her claim for payment in lieu of notice was dismissed, and that of Mr Wong was upheld by the MECAB. Of course payment in lieu of notice by the employer, if made, indicates termination by the employer rather than resignation by the helper.

72. I do not think it is necessary to make any specific finding as to whether the plaintiff was dismissed or resigned on 10 January 2001. Nor indeed is it necessary to decide whether or when she was given the air ticket. Rather more important, however, is the sequence of events on and after 10 January.

73. According to the plaintiff she was taken to her room by both the defendants to pack her bags. In the room the 1^st defendant told her to take the sandals which had already been given to her. She was made to give back the jewellery she had been given, but it was returned to her downstairs by the 1^st defendant’s son in front of a video camera. According to the 1^st defendant, however, she simply let the 2^nd defendant take the plaintiff up to pack. She herself remained in the kitchen, cooking noodles; and her husband and son were upstairs playing video games. She agrees that she filled in the resignation form, after the plaintiff had written her declaration on it; and says that the 2^nd defendant took that up for the husband to sign.

74. I have to say that both sides of the story contain elements of the bizarre. The plaintiff’s story of being made to return jewellery which was then handed back in front of a camera is bizarre. However, the plaintiff told it to the magistrate and she has told it to me, so there is no inconsistency and it may be said that there would be no reason to make up a story of this nature because it does not help the maker.

75. To me it also seems strange that a woman who is getting rid of a domestic helper, whether by dismissal or resignation, would not see what the helper packed before she left. Theft by domestic servant is not unknown. Nor are allegations of theft, which may surface if the domestic servant complains to the Labour Department or issues proceedings. This is particularly so where, for whatever reason, the relationship between mistress and servant has soured and the trust between them has gone. The safest course for both parties is to check what is going out of the house with the departing servant. Again the 1^st defendant has been consistent on this point but I think it more probable that she would have gone up to oversee the packing. Unfortunately we do not have any evidence from the husband or the 2^nd defendant, either of whom might have assisted.

76. The incident of 15 January, and what transpired when the police came is obviously important. Here we have the plaintiff saying that there was a discussion in Chinese which she did not understand. Then when the 1^st defendant came, the police asked if the plaintiff had taken anything and the 1^st defendant said that she did not. There was more conversation in Chinese and again the 1^st defendant was asked in English if the plaintiff had taken anything, and she replied that the plaintiff had not. In cross-examination the plaintiff said that the police said that if the 1^st defendant had given her anything, she should return it; and so she started to remove the earrings she wore, but then the 1^st defendant said that she did not want them.

77. The police officers, as I have indicated, said that that 1^st defendant on the telephone said that something was stolen, but not what. When she arrived, she said that it was the pair of earrings; but then it appeared that she had given them to the plaintiff. When asked she said that nothing else was missing.

78. According to the 1^st defendant, she told the officer on the telephone that she had lost clothes and shoes. Then when she got to the office, she was asked about earrings, apparently out of the blue; and was then advised that she could not ask people to return gifts. She said that two things were missing but the officer told her that this did not mean that they were stolen. Re-examined, the 1^st defendant said that she did not want to wrong anyone and did not dare to say for certain that the plaintiff had taken her things, she did not give details of them to the police at that stage.

79. The police officers were independent. Granted that the notebook entry is sketchy and the statements were made long after the event, an allegation of theft of earrings, which turned out to be groundless, and then a confirmation that nothing else was missing would naturally be the points which would stick in their minds. On the 1^st defendant’s own evidence, earrings were mentioned. The police could not have thought of earrings for themselves. I therefore prefer their evidence and accept that the 1^st defendant at first told them that earrings were stolen. I also accept that she said that nothing else was missing.

80. I cannot believe that, if the 1^st defendant had really found a jacket and a pair of shoes missing the day after the plaintiff left, she would not have followed that up. It is true that she said that on 10 January she found the main door open, but if she really found the shoes missing from the cabinet it would be at least as likely, if not more that the maid had taken them than that some opportunistic thief had come in off the street and taken them. A wandering opportunist would look for something better or at least take more than one pair of sandals. Also there would be no other real explanation for the disappearance of the jacket. If an opportunist thief managed to get into the garage area it would not follow that he managed to get into the master bedroom; and if he did, he could be expected to loot the place more thoroughly.

81. A question which was never asked is this. Given that the 1^st defendant says that she kept her shoes in the shoe cabinet and did not wear them in the house, how is it that she did not find the sandals missing when she put her shoes on, to go out of the house on the morning of 11 January, rather than when she came home?

82. It is clear that collection of the luggage was discussed on 15 January. The police were not involved in the collection, and according to them, the parties had to make their own arrangements. One officer heard that it was to be done that day. Probably it was. Why the plaintiff did not turn up is not clear. However there is no doubt that she made another attempt to get police assistance to collect the luggage on 20 January; the 1^st defendant says that the 2^nd defendant told her that she had heard from the police that the plaintiff would come for her luggage. Again, why the plaintiff did not come is not clear. According to the 1^st defendant, when she did not come, the police were called and a report was then made of the missing sandals and jacket, for which report the police gave her a reference number. Unfortunately the 1^st defendant did not follow the matter by making a formal report at the police station, and there is no sensible explanation as to why she did not.

83. In fact the 1^st defendant took no action at all until 31 March when the sandals were found in the plaintiff’s luggage. There is no good explanation for her inaction up to that time, if she really knew on 11 January, as she says, that the sandals had gone missing and she had not given them to the plaintiff as the plaintiff says.

84. Although there is no clear explanation as to why the plaintiff did not collect her luggage at the 2^nd defendant’s home until 31 March 2002, it is clear that on 15 and 20 January she requested assistance of the police to do so. She says that she would not have requested police assistance if she had stolen something. I can see the force of this. The last thing she would want, if she had a pair of stolen sandals in her luggage, would be for the police to be there when she collected it.

85. The most likely inference to be drawn from the facts is, to my mind, is that the 1^st defendant did not follow up the matter between 10 January and 31 March 2002 precisely because there was nothing to follow up; there had been no theft of the sandals and she knew it, because she had given them to the plaintiff. Why she should have decided to make the complaint of theft on 31 March is not clear and I do not need to decide that, but it may be significant that by that stage the plaintiff had involved the Labour Department against Mr Wong and the Small Claims Tribunal against the 2^nd defendant.

86. I am therefore satisfied on the balance of probabilities, bearing in mind, as Lord Nicholls put it that the more serious the allegation the less likely it is that the event occurred, that the 1^st defendant did give the sandals to the plaintiff as a gift, and subsequently gave false evidence against her, as did the 2^nd defendant.

87. I turn to the question of damages. These may be awarded for damage to fame i.e. reputation; damage to the person including loss of liberty; and damage to property or pecuniary loss. See Savile v Roberts (1699) 1 Ld Raym. 374.

88. The plaintiff seeks exemplary damages. Following Rookes v Barnard [1964] AC 1129 these may only be awarded at common law where these had been oppressive, arbitrary or unconstitutional action by the servants of the government, or where the defendant’s conduct had been calculated to result in profit. They may also be awarded where there is statutory provision for them. Exemplary damages may be awarded for malicious prosecution; see McGregor on Damages, 17^th Edition at paragraph 38-013 and Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122. However this decision does not, as I understand the position, affect the law as stated in Rookes v Barnard or extend the categoriesset out therein by Lord Devlin. Here the defendants are private citizens and there is no suggestion of a profit motive. I do not therefore see that exemplary damages can be appropriate.

89. The quantum of damages for malicious prosecution is discussed in McGregor at paragraph 38-004 onwards. Malicious prosecution is treated in much the same way as false imprisonment. Guidance was given by the Court of Appeal in England for the latter in Thompson v Commissioner of Police of the Metropolis [1998] 1 QB 498, C.A. in which it the court held (per Lord Woolf M.R. at 515) held that for basic damages for non-pecuniary loss, before any element of aggravation:

“The figure should start at about £2,000 and for prosecution continuing for as long as two years….about £10,000 could be appropriate. If a malicious prosecution results in a conviction which is only set aside on an appeal this will justify a larger award to reflect the longer period during which the claimant has been in peril and has been caused distress.”

90. These figures of course apply in the United Kingdom. No comparable guidance has, so far as I know, been given in Hong Kong.

91. Here the malicious prosecution started with the report made on about 31 March 2002. The plaintiff was convicted. She spent 19 days in prison. She was acquitted on appeal on 19 February 2003. The period for which the plaintiff should be compensated is nearly a year. It seems to me that a reasonable figure for non-pecuniary loss to reflect all these factors is $200,000.00.

92. So far as pecuniary loss is concerned, I accept that the plaintiff would have been unable to obtain employment as a domestic helper in Hong Kong for the period from 31 March 2002 to 19 February 2003. For calculation purposes I will take that as a round 11 months. I assess the pecuniary loss for that period at 11 x $3,670.00 = $40,370.00.

93. The plaintiff says that she tried to look for work after the appeal but could not get it because of her past circumstances. It is argued that she will never be able to obtain such employment because of the inevitable stain on her character which persists even after her acquittal. Since she intended to work here for six years, she should have loss of earnings for that period.

94. There is no evidence apart from the plaintiff’s bare allegation that she cannot get work because of her past circumstances. There is no evidence of her having advertised herself as available for work, or answered advertisements for work, and thereafter of having been refused employment because potential employers had heard of the proceedings against her. Technically, of course, there is no reason why any employer should hear of the proceedings or why any who did should refuse her work on that account, since she has been acquitted. This is particularly so if the plaintiff were to return to Sri Lanka and seek employment from there; she would not have to explain away a long period out of work in Hong Kong. I do not, therefore, see that any award can properly be made other than for the period from 31 March 2002 to 19 February 2003.

95. There will accordingly be judgment for the plaintiff against the defendants for $240,370.00. Interest will be awarded at 2% on the figure of $200,000.00 for non-pecuniary loss from the date of the Writ and on the pecuniary loss figure of $40,370.00 at half the judgment rate from 31 March 2002 until the date of judgment and thereafter at the judgment rate. The plaintiff is awarded the costs of the action (nisi) to be taxed if not agreed with certificate for counsel.