LEUNG LAI KUEN v. COMMISSIONER OF POLICE

[English Translation – 英譯本]

CACV 195/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 195 OF 2014

(ON APPEAL FROM HCA NO. 2333 of 2013)

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Judgment

Hon Yuen JA giving the Judgment of the Court:

1.  This is an appeal of Ms Leung Lai Kuen against the order made by Deputy High Court Judge Kent Yee on 4 September 2014.

Background

2.  Ms Leung brought a claim against the Commissioner of Police of Hong Kong on 29 November 2013.

3.  In short, Ms Leung was arrested by a police officer on 8 December 2010 due to an incident.

4.  She later appeared in the magistrates’ courts and was charged with one count of “common assault” (case number KTCC343/2011). On 18 January 2011, she agreed to be bound over for 12 months in the sum of $2,000.

5.  As Ms Leung consideredthat the police officer had made false representation(s) and the Commissioner had mounted a malicious prosecution against her, some 2 years after the event she brought a claim in the High Court (case number HCA2333/2013).

6.  The Commissioner applied to strike out the above claim on all the 4 grounds stated in Order 18 rule 19 of the Rules of the High Court.

7.  On 30 July 2014, High Court Master Reuden Lai ordered that the claim be struck out.

8.  Ms Leung lodged an appeal, which was heard before Deputy Judge Yee on 2 September 2014. On 4 September, Deputy Judge Yee dismissed the appeal for reasons set out in his judgment handed down the same day.  He also made an order nisi that Ms Leung pay the Commissioner’s costs. Ms Leung objected to the order nisi, but it was eventually made absolute.

9.  Ms Leung lodged an appeal again. She applied by way of summons to adduce fresh evidence, some of which, however, was not in fact fresh. Be that as it may, this court has considered all the evidence mentioned above de bene esse.

Discussion

10.  AsDeputy Judge Yee’s order was made in the exercise of his discretion, an appellate court would not interfere with the order made by the first instance judge unless one of the following had occurred: the judge had erred in law, or had misapprehended important facts, or had disregarded relevant matters, or had taken irrelevant matters into account, or the decision was “plainly wrong”.

11.  This court can see none of the above in Deputy Judge Yee’s decision.

12.  In Ms Leung’s grounds of appeal, her written as well as oral submissions, she reiterated that the police officer had made false representation(s). However it only concerned the name of the location where the incident occurred on 8 December 2010.

13.  According to Ms Leung, the location in question was the lift lobby outside her office, i.e. the lift lobby on 12/F., Lee Sum Factory Building, located at the junction of Sze Mei Street and Ng Fong Street. She said the registered address of the building at the Land Registry was Lee Sum Factory Building, No.28 Ng Fong Street, Nos.21-25 Sze Mei Street, Kowloon.  

14.  In the policeofficer’s record, he had put downLee Sum “Industrial” Building instead of Lee Sum “Factory” Building, and No.“23” instead of Nos. “21-25” Sze Mei Street. However, even according to Ms Leung, the address her company used was only No. “23” Sze Mei Street. In any event, Ms Leung said to this court that it was not she who had been misled. She said it was the court that had been misled, but she has not provided any information on how the police officer had misled the court by writing the name of the locationin question this way.

15.  Ms Leung claimed that she had been maliciously prosecuted by the Commissioner. The onus of proving each and every one of the four essential elements of malicious prosecution is on the plaintiff. The second essential element is that the court has determined the prosecution in the plaintiff’s favour. In this case, however, the undisputed facts show the following.

16.  Before the trial, the prosecution suggested to Ms Leung’s legal representative that the magistrate be asked to deal with the case by way of binding over. Obviously, this was pursuant to the magistrates’ powers under section 61 of the Magistrates Ordinance, Cap 227.

17.  On 18 January 2011, Ms Leung appeared in the magistrates’ courts. She pleaded not guilty. The court prosecutor said the prosecution would offer no evidence if Ms Leung were to agree to the facts of the case and give her consent to be bound over. Counsel for Ms Leung said he had explained the proposal to her and that she accepted it. After the magistrate explained binding over, Ms Leung indicated to the court that she understood. The brief facts of the case were then read out to her,  and Ms Leung said they were correct and that she understood the terms and consequences of binding over. Her counsel stated that the costs of $500 could be deducted from her bail money. The prosecution then offered no evidence and the court then dismissed the charge .

18.  As one can see from the above, Ms Leung did not at the time challenge the brief facts of the case put forward by the prosecution, and more importantly, she did not give evidence or call any witnesses in answer to the charge (including in relation to the location in question) (pursuant to her right under section 61 of the Magistrates Ordinance). Of course the magistrate had not made a determination, nor had he acquitted her.

19.  In the above circumstances, the second essential element of the cause of action of malicious prosecution was absent, since Ms Leung had failed to prove (nor was it possible to prove) that the court had made a determination in her favour（Everett v Ribbands (1952) QBD 198，202-203，206）.  Deputy Judge Yee’s decision was clearly correct. (We do not need to deal with the judge’s obiter dictum on the rest of the defendant’s legal submissions).

20.  As to Ms Leung’s opinion that the striking out of her cause of action for malicious prosecution contradicted the magistrate’s dismissal of the charge, it seems Ms Leung does not understand the legal procedure of “binding over”, and the essential elements required in the civil cause of action of “malicious prosecution”. In this case, we cannot see any contradictions whatsoever. Deputy Judge Yee’s striking out order did not contradict or have anybearing on the prosecution inKTCC343/2011 and the termination of that case by way of a binding over of  Ms Leung.

21.  As for Ms Leung’s submission that her claim was not in respect of KTCC343/2011 but was in respect of the police’s charge (WTS RN10039512), this does not assist Ms Leung’s claim because it is another essential element of the cause of action of malicious prosecutionthat the defendant had brought a prosecution against the plaintiff, and such prosecution was brought only in the said magistrates’ courts.

22.  We find Ms Leung’s other comments on Deputy Judge Yee’s judgment irrelevant, or only her own interpretation or presumption.

23.  Whether litigants have any legal knowledge or not, the court must decide cases according to the law. A cause of action is essential to every civil lawsuit, and the claim must contain all essential elements. We have already explained how Ms Leung’s claim lacks the necessary essential elements of the cause of action. The decision of Deputy Judge Yee to exercise his discretion to strike out the claim and dismiss the case is correct, with which we have no reason to interfere.

Order

24.  We dismiss the appeal.

25.  As to the costs order, Ms Leung argued that in no event should the respondent be granted costs as he did not comply with certain procedure(s) or order(s) in the lower court. This court, however, will only consider matters relating to this appeal.

26.  We order that costs of this appeal shall be paid by the appellant (i.e. the plaintiff) to the respondent (i.e. the defendant), such costs to be taxed if not agreed.  We make no order on Ms Leung’s application by summons to adduce new evidence and make no order on costs in respect of that application.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.