KIMMY SUEN KING ON v. THE ATTORNEY GENERAL

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HEADNOTE

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1984, No. 3100

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The plaintiff alleges that as a result of his wrongful arrest and detention on false criminal charges by a Crown servant for whose actions the defendant is said to be vicariously liable, he suffered damages in that he lost income and ultimately his position as Chief Security Officer at the Estoril Hotel in Macau and lost funds committed by him to a certain film venture which failed as a direct consequence of his arrest.

2. The facts are not in dispute and are a disgraceful example of a criminal abuse of office. On the 4th of June 1981 the plaintiff was at a nightclub with business associates and during the evening, he had occasion to pacify some men at an adjoining table who had become involved in a petty altercation with the plaintiff's brother. He gave the, matter no further thought and quite some time later, in the company of a number of others, he left the nightclub. As he did so, at the entrance, he saw one of the men he had spoken to earlier lying on the ground covered in blood. Another of that group then approached the plaintiff and accused him of having organised an attack upon the man on the ground. The plaintiff protested and then yet another man from the table came up and said that he was a policeman and told the plaintiff not to leave. That man was indeed a police constable named Chan Chi Fai. Other police officers then arrived and at their invitation the plaintiff went to Wanchai Police Station.

3. The plaintiff was not then under arrest, but at 5:25 a.m. on the same morning, none other than Chan Chi Fai himself interviewed the plaintiff in the station and arrested and cautioned him for the wounding offence. The plaintiff denied the allegation but he was thereafter detained and later charged with a series of charges embracing claiming to be a member of a triad society, wounding with intent and assaulting a police officer, all based on Chan Chi Fai's account of events and what is admitted to be his false identification of the plaintiff as one of the assailants.

4. The plaintiff was then kept in custody until the 5th of June 1981 when he was granted bail by a magistrate. That bail was, inter alia, conditioned upon the surrender of his travel documents and of course he could not thereafter return to Macau. On the 19th of June 1981, the Crown offered no evidence against the plaintiff on several of the charges against him but two wounding charges were proceeded with and transferred to Victoria District Court. He did, however, get his travel documents back on the 19th of June 1981.

5. Whilst waiting trial Chan Chi Fai made contact with the plaintiff's brother and offered to influence the plaintiff's trial to result in an acquittal of the plaintiff if $54,000 was paid to Chan Chi Fai. That approach was reported to I.C.A.C. and the affair then culminated in Chan Chi Fai plus another serving police officer and two others being themselves arrested when they were caught red-handed taking marked money at an arranged meeting. The Attorney General entered a nolle prosequi against the plaintiff on the 16th of November 1981 and in due course Chan Chi Fai and the others were convicted, inter alia, of conspiracy to pervert the course of justice by falsely representating that the plaintiff took part in the assaults on the 4th of June 1981.

6. The defendant is sued pursuant to the provisions of s.4(1) of the Crown Proceedings Ordinance, Cap. 300 which provides that, subject to the provisions of the Ordinance, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject in respect of, inter alia, torts committed by its servants or agents. The Attorney General is the nominal defendant under s.13 of that Ordinance.

7. There is no doubt of course that Chan Chi Fai has greviously wronged the plaintiff. The defendant agrees specifically that the plaintiff did not take part in the woundings on the 4th of June 1981; that Chan Chi Fai falsely accused the plaintiff of being involved in those woundings and that the arrest and detention of the plaintiff on the 4th of June 1981 was wrongful, malicious and without reasonable cause.

8. The first preliminary matter, which has some later relevance, is whether a police officer, such as Chan Chi Fail, is a Crown "servant" for whose actions the grown is vicariously liable under the grown Proceedings Ordinance.

9. There is no contest before me that in Hong Kong a police officer is indeed a servant of the Crown and I have concluded that to be correct. The position in England is different, in that there police officers are not crown servants. The difference arises in that in England the liability of the crown for the tort of its officers is limited to those cases where the officer is appointed directly or indirectly by the Crown and is paid wholly out of the Consolidated fund, monies provided by Parliament or the equivalent thereto (section 2(6) crown Proceedings Act 1947). This excludes police and other public officers who are appointed or paid by local or other public authorities (clerk & Lindsell on Torts, 15th Ed. para. 2-04 and cases there cited). Section 48(1) of the Police Act 1964 specifically provides that a Chief Officer of Police is the person liable for torts committed by constables under his control. There is no such equivalent in Hong Kong nor is there a provision which equates to Section 2(6) of the English Act in the Crown Proceedings Ordinance, Cap. 300 and indeed to the contrary, section 12 of the Police Force Ordinance, Cap. 232 provides for payment and maintenance of the Police Force to be a charge on general revenue. General revenue of the Colony, in my view, has as a parallel either "the consolidated fund, monies provided by parliament or the equivalent thereto". In addition, section 4 of Cap. 232, although charging the Commissioner of Police with direction and administration of the Police, reserves to the Governor (the embodiment of the Crown in Hong Kong), the right of control and direction and section 38 of Cap. 232 reserves the right of the Crown, specifically, to dismiss or terminate any police officer's employment.

10. Given then that Chan Shi Fai is a Crown servant, the real question of course is whether the defendant is liable for his tortuous (and criminal) acts in relation to the wrongful arrest and detention of the plaintiff.

11. The law as to the liability of a master for the acts of his servant is set out in "the well known passage" in Salmond on Torts at p.437, which, it is said, "cannot be bettered" (q.v. Note 76, page 438) as follows:

"A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master or (2) a wrongful and unauthorised mode of doing some act authorised by the master. It is clear that the master is responsible for the acts actually authorised by him : for liability would exist in this case, even if the relation between the parties was merely one of agency and not of service at all. But a master, as oppose to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised, that they may rightly be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it.  If a servant does negligently that which he was authorised to do carefully or if he does fraudulently that which he was authorised to do honestly or if he does mistakenly that which he was authorised to do correctly, his master will answer for that negligence, fraud, or mistake. On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but an independent act, the master is not responsible : for in such a case the servant is not acting in the course of his employment but has gone outside of it. "

12. There is abundant authority to accept, as I do, that the passage I have cited from Salmond accurately states the law. The question then arises is whether the law as it is there said to be is in any way qualified or modified in the case of a Crown servant who is a police officer.

13. In Enever v. The King (1906) 3 C.L.R. 969 a police officer had detained the plaintiff on a false charge that he had committed a breach of the peace. It was held in the High Court of Australia in relation to the Tasmanian Crown Redress Act by which a right of action against the Government was given to any person having any just claim against the Crown for an actionable wrong in respect of "any act or omission, neglect or defraud of any officer, agent or servant of the Government of Tasmania" that it was not competent to bring an action against the Government for the wrongful arrest of the plaintiff by a constable in the intended performance of his duties as an officer of the peace. The officer himself was responsible for unjustified acts done in the intended exercise of his lawful authority but the responsibility for his acts did not extend to the person or body whereby he was appointed to his office whether his acts were done in the exercise of the common law powers of an officer or of those powers as extended by statute. This was accepted as settled law (per Griffiths, C.J. at page 976) and approved Stanbury v. Exeter Corporation (1905) 2 K.B. 838 which was a case where a local authority was held not liable for the negligence of an inspector who seized and detained sheep suspected of having sheep scab under an enactment authorising him to do so. Nor, in the Enever Case, was the officer an "agent or servant" of the person or body appointing him, for in the preservation of the peace, his authority was original, not delegated, and was exercised at his own discretion by virtue of his office and on no responsibility but his own. His powers under the law being definite, he was therefore not held out by the authorities who appointed him as having any greater authority than was lawfully his.

14. Barton, J. at p.989 said:

"In my opinion, then, the Government is not liable for the tort complained of in this case either on the ground that, on the occasion in question, and within the scope of the duties he was performing, the constable was acting as a servant of the Crown, or on the ground that this was an occasion on which an action would lie between subject and subject. On both these grounds, I am equally clear and I need not add to what the learned Chief Justice has so clearly and exhaustively said in relation to the question depending on the construction of the words in Section 4 of the Crown Redress Act 1891 because, having regard to the history of the institution and administration of the police and their regulation by statute, the circumstances and the reasons of the administration sections are so wholly different from anything that could exist in relation to the adjustment of civil rights as' between subject and subject, that it is impossible to suppose that the words of Section 4 apply so as to render the Crown liable for the tortuous act of a constable in the mistaken belief that he is performing a statutory duty. "

 

O'Connor, J. concluded his judgment at page 994 as follows:

"In this case, the authority to arrest is not conferred on the Government, nor is it to be exercised on behalf of the Government, it is conferred on the constable as the holder of a recognized public office to which well known duties and responsibilities are attached. He made the arrest in the discharge of his duty as holder of the office of constable and not by the direction or under the control of the Government. His act was thus net the act of the Government by its servant, but was his own act, done in the exercise of his duty as constable and in the doing of it, the relation of master and servant between him and the Government cannot be implied. "

15. In Hong Kong a police officer is a Crown servant. Depending upon the identity of the employer, in England and previously in Tasmania, that is and was not the case. That difference does not resolve the ratter however because if the act complained of was done in exercise of a power given directly to the officer by common law or statute, his employer, applying the Enever principles, would not be liable for that officers tortuous acts whether the officer was a Crown servant or not.

16. The Police Force Ordinance provides that the duties of the Force are to take lawful measures for, inter alia, preserving the peace, preventing and detecting crimes and offences and apprehending all persons whom it is lawful to apprehend and for whose apprehension sufficient ground exists (section 10). A police officer has power to arrest any person who may be charged with or who he may reasonably suspect of being guilty of any offence (section 50). A police officer is deemed to be always on duty when required to act under the Ordinance (section 21).

17. It is apparent that the powers given to a police officer to arrest are given to that police officer personally. Chan Chi Fai therefore had a power which was persona to him to make an arrest of a person who may be charged with an offence. It is a fact that Than Chi Fai arrested the plaintiff for a criminal offence. That arrest took place in a police station in the purported exercise of Chat: Chi Fai's duties as a police officer. He was on duty at the time he made the arrest. The arrest was wrongful, malicious and without reasonable excuse. The arrest, as an act, was a tortuous act committed while Chan Chi Fai was purporting to perform a lawful arrest of a person allegedly liable to be arrested. He committed that tortuous act while purporting to perform functions and duties conferred upon him by express enactment.

18. Section 4(3) of the Crown Proceedings Ordinance, Cap. 300 provides :-

"Where any functions are conferred or imposed upon an officer of the Crown as such either by any rule of the common law, or by enactment or statute, and that officer commits a tort while performing or purporting to perform these functions, the liabilities of the Crown in respect of the tort shall be such as they would have been if those functions had been inferred or imposed solely by virtue of instructions lawfully given by the Crown. "

19. By definition in Section 2 an "officer" includes any servant of the Crown.

20. As I read Section 4(3) its effect is to abrogate one of the main basis of the decision in the Enever case namely, that liability is avoided by the Crown where an officer exercises powers or functions directly vested in him by legislation. By Section 4(3) the law is declared to be that when a tort is committed by an officer of the Crown while performing or purporting to perform functions conferred upon the officer by law, the liability of the Crown is to be such as if those functions had been imposed on the instructions of the Crown. Section 4(3) in my view overcomes the difficulties a plaintiff had in an action against the Crown where the tort was committed by a police officer exercising direct powers or functions (there being here no difference) and creates a liability on the Crown to the extent it would have had had the functions or the exercise of the powers been inferred or imposed by way of instruction.

21. In Hong Kong a police officer is a servant of the Crown and in a case where a police officer commits a tort in exercise or purported exercise of a function (or power) given to him the Crown is liable for that tort as if the servant had been instructed to lawfully exercise the function (or power) in the same way, and to the same extent, as a private person is liable for the similar torts of his servant. At the end of the day, the Crown is in no better or worse position in relation to the acts of a servant exercising functions or powers imposed by law than the private citizen counterpart of the Crown in relation to that person's servant performing functions pursuant to instructions given to him by that private citizen.

22. There is no merit in the Crown argument that to find for the plaintiff in this case is to find a strict liability upon the Crown head too onerous in application when one considers the many acts of its numerous servants. There is no question of strict liability here. That which is under consideration is vicarious liability for one's servant's acts and, whatever the law be in that regard, the Crown is in no better or worse position than a private employer: in some situations he will be liable; in some he will not. So too the Crown will not be liable for its servants' acts which fall outside the course of the servant's employment according to the general rules in that regard.

 

Salmond had this to say at page 442:-

"The mere fact that a servant has acted out of personal vengeance or malice or resentment or by way of practical joke will not necessarily exonerate the master provided that the act was done within the scope of his employment. But this proviso is important for the Courts have shown a distinct reluctance to hold an employer liable for aggressive acts even though they are generated by the latter's employment. "

23. Reluctant though the Courts may have been to hold an employer liable for aggressive acts, the principle remains that actions in consequence of personal vengeance or malice, as is the case here, are actions for which the employer can, nonetheless, be held liable.

24. Here was a disgusting situation where a police officer, on duty, in a police station, deliberately and maliciously, falsely accused the plaintiff of specific wounding offences and arrested him without any foundation at all as an act in the service of his own personal ends, be it revenge or for reward or both. That Chan Chi Fai had the power to arrest the plaintiff is beyond doubt; that he was exercising that power in purported performance of his duty, at his place of duty, is again equally beyond doubt. That an act of arresting an alleged criminal was an act which Chan Chi Fai was empowered, authorised and directed to do is again beyond doubt. The question is, whether that which he did do, namely, falsely arrest the plaintiff, was an unauthorised and improper mode of doing some act authorised by the Crown or whether the action of Chan Chi Fai in making this unlawful arrest was not so connected with the act of making a lawful arrest as to be a mode of doing it but rather was an independent act and as such outside the scope of Chan Chi Fai's employment.

25. An analysis of the facts of Kooragang Investment Pty. Limited v. Richardson & Wrench (1981) 3 All E.R.p. 65 which was a case related to the negligent valuation of real estate by a servant doing business with a group of companies at a time when he was under instructions not to do business with them, will serve no useful purpose but at page 70, Lord Wilberforce said:-

"It remains true to say that, whatever exceptions or qualifications may be introduced, the underlying principle remains, that a servant, even while performing acts of the class which he was authorised or employed to do, may so clearly depart from the scope of his employment that the master will not be liable for his wrongful acts. "

26. In this case, Chan Chi Fai was at all times acting within the scope of direct authority given to him by the Crown. He was specifically authorised and empowered to arrest. Immediately prior to the arrest, albeit a false and malicious arrest, he was on duty actually purporting to be investigating a crime, viz. a wounding case and was undertaking those investigations under the roof and authority of a police, station. The act of arrest and the act of detention of the plaintiff were both acts which Chan Chi Fai was empowered to do. His actions, as actions, were acts which he was authorised and empowered to perform and were within the ambit or scope of his employment. The matter does not however stop there.

27. In Warrens v. Henlys Limited (1948) 2 All E. R. 935 the facts were that in the erroneous belief that the plaintiff had tried to drive away from a garage without paying or surrendering coupons for petrol which had been put into the tank of his car, a petrol pump attendant used violent language to him. The plaintiff paid his bill and gave up the necessary coupons and after calling the police, told the pump attendant that he would report him to his employers. In his clear and concise judgment, Hilbery J. referred to the principles that I have earlier referred to from Salmond on Torts at p. 437 and noted that those principles were cited with approval in Poland v. John Parr & Sons (1927) 1 K.B. at 236. He accepted and adopted the principles set out in Salmond as the law, which indeed I do, and then went on to pose the question at page 937 as follows:

""Is there any evidence here on which a jury could find that this assault, committed in the circumstances which I have just given, was so connected with the acts which the servant was expressly or impliedly authorised to do as to be a mode of doing those acts? It seems to me the answer must be 'no'. Of course, as in Dyer v. Munday, if a manager who, in the course of the very duties in the business goes to recover furniture, so conducts himself in recovering the furniture that he commits an assault, that is a tortuous mode of doing the class of act which he is authorised to do. Without multiplying the ways in which this matter has been expressed and judges have sought to mark the limitations or bounds within which a master is to be held liable, I may use one more quotation. It is from Scrutton, L. J. in Poland v. John Parr & Sons. :

 

'To make an employer liable for the act of a person alleged to be his servant, the act must be one of a class of acts which the person was authorised or employed to do. If the act is one of that class, the employer is liable, though the act is done negligently, or in some cases, even if it is done with excessive violence. But the excess may be so great as to take the act out of the class of acts which the person is authorised or employed to do.'"

28. That passage of Scrutton, L.J. which was quoted by Hilbery, J. in fact goes en (at page 243):-

"Whether it is so or not it is a question of degree. It has been argued that an employer cannot be liable if the act of his servant is illegal or excessive. In my opinion, Dyer v. Munday negatives the first alternative. Lord Esher M.R. in that case put the question whether the act was or was not for the employer's benefit. That may be one test, but where excessive violence is charged another question must be considered - namely, whether the excess is such as to take the act out of the class of authorised acts. "

29. Lopes, L.J. in Dyer v. Munday (1895) 1 Q.B. 742 at Page 747 said:

"As to the other point, it is said that there was no evidence on which the judge could rightly leave to the jury, the question whether Price was acting within the scope of his employment. I think that there was such evidence, and that the jury might very reasonably come to the conclusion that price, as general manager for Munday, has as part of his duties, to obtain possession of the bedstead directly the instalments became in arrear. If so, the jury might also fairly consider that in order to carry out that employment with which he was entrusted, Price committed the assault complained of. "

It was therefore a question of fact for the jury whether the assault was committed in order to carry out an act in the course of employment.

30. Hilbery, J. at page 938 in his judgment to which I have referred, went on to consider the position related to modes of doing an authorised act. He said:

"Clearly, there is no evidence here that this act belongs to the class of acts that Beaumont was authorised to do. In extension of what Scrutton, L.J. had said, I have also examined the matter in the light of that statement of the law which I have already read from Salmond on Torts, so as to ask whether, although it was not of the class of acts which Beaumont was authorised to do, it was so connected with that class of acts as to be a mode of doing some act within that class. It seems to me that it was an act entirely of personal vengeance. He was personally inflicting punishment and intentionally inflicting punishment, on the plaintiff, because the plaintiff proposed to take a step which might affect Beaumont in his own personal affairs. It had no connection whatever with the discharge of any duty for the defendants. The act of assault by Beaumont was done by him in relation to a personal matter affecting his personal interest, and there is no evidence that it was otherwise. Counsel for the plaintiff has relied strongly on the passage so often cited from the judgment of Willes, J. in Bayley v. Manchester, Sheffield and Lincolnshire Rlwys Co.⁽³⁾where Willes, J. said (L.R, 7 C.P. 420) :-

 

'A person who puts another in his place to do a class of acts in his absence, necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done; and consequently he is held answerable for the wrong of the person so entrusted, either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment.'

It is unfortunate the words 'in the course of the employment' seems to have given rise to so much difficulty, but if one thinks of the course of the employment as meaning, coupling that phrase with what Scrutton, L.J. said, in the course of doing an act which was one of the class of acts which the servant was authorised or employed to do, the matter becomes reasonably clear. In those circumstances, it is equally clear what Willes J. is meaning to indicate by the proviso that what is done by the servant must be done, not from any caprice on his part, but in the course of his employment. I ventured in the course of argument, to say that 'caprice' sometimes suggests a lightness in the conduct of the servant while the tortuous acts in question may be grave and done by a servant for his own personal ends or advantage or to satisfy, perhaps, his own personal malice or desire for revenge, as in this case. "

As I read the authorities, the proper approach is that advanced by Scrutton, L.J. and adopted by Hilbery, J. and that is, that if the act is one of a class of acts authorised, then the employer is liable, save for the exception (and it may not be the only exception) that in the case of excess, that excess may be so great as to take the act outside the general rule of liability for acts which a person is authorised or employed to do. It appears to me in the end to be all a matter of degree. The greater the excess to the point of abuse of a power authorised or instructed to be used legitimately, the further away from liability for that excess the employer becomes. The Crown could, for example, be liable for an excessive use of force whilst making an otherwise legitimate arrest. It could be liable where the wrong person was arrested in a mistakenly but honestly held belief at the time that the right person was being arrested. Where an officer however deliberately and maliciously abuses a power directly to make an arrest which he knows at the time is false, motivated not by any sense of pursuit of duty at all but in order to obtain revenge or money as the case may be, then he is of course not carrying out his duties at all and what he is doing is exercising a power given to him by legislation and criminally abusing it and his position to such an extent as to take his acts and responsibility for them outside the doctrine of vicarious liability. His pretended ostensible performance of his duty in the act of allegedly arresting a criminal is, as a weapon in the hands of an assailant, in pursuit of his own criminal objective of making a false and vindictive arrest and not otherwise. If I may borrow the words of Lord Wilberforce in Kooragang Investment Pty. Limited v. Richardson & Wrench Limited to which I have referred at page 71 :-

"A clearer case of departure from the course or scope of employment cannot be imagined : it was total. "

The excess and abuse of power in this case is in the same category and in such a situation, the defendant cannot be held answerable for the acts of Chan Chi Fai.

31. There will therefore be judgment for the defendant with costs to be taxed if not agreed.