KWAN FUNG KAM v. ATTORNEY GENERAL

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. This appeal arises in the course of proceedings by which the Plaintiff sues the Attorney General, as representing the Commissioner of Police, in an action alleging negligence on the part of several police officers. The Attorney had supplied the Director of Legal Aid, acting for the Plaintiff, with copies of statements made by the officers in question, but counsel for the Director, wishing to obtain from them further information, if he could, invited them individually to attend his office for interview. A letter from one officer, declining the invitation, indicated that Senior Crown Counsel had advised that he, the officer, was under no obligation to attend; with respect, perfectly proper advice.

2. However, an exchange of correspondence with the same Crown Counsel, couched on the latter's part in language which, to say the least, was less than restrained, subsequently led counsel for the Director to suspect - we think with good reason - that Senior Crown Counsel was likely to go or, had indeed already gone, further than the advice just mentioned. He accordingly issued a summons for directions, requesting in particular that the Court should:

3. The Master accepted a suggestion from both sides that the matter raised a question of public importance and put the matter before Godfrey, J. The judge, after some discussion of the law in general and its application to the present circumstances, dismissed the summons as having been misconceived. In his view, the only proper course to test the conduct of Crown Counsel would have been by way of application to commit for contempt.

4. By this appeal the Plaintiff questions not only the correctness of the dismissal of her summons, but also that of comments made by the judge in the course of coming to it. On the other hand, the Attorney, by a Respondent's Notice, seeks to justify the stance taken by Senior Crown Counsel. However the appeal no longer has any practical purpose. The Attorney, represented now by counsel who did not appear below, concedes that the Director is "perfectly entitled to ask the police officers to attend on him to make statements". Subject to one matter, to which we shall return in a moment, the Attorney no longer wishes to pursue his Respondent's Notice. Likewise he accepts that a direction as now suggested by the Plaintiff, represented as well by fresh counsel, would be acceptable in appropriate circumstances and could well be a cheaper and more sensible approach than by way of declaration.

5. The direction now suggested by the Plaintiff would be along lines that:

6. No point was taken that such a direction might be contrary to Sec. 16 of the Crown Proceedings Ordinance, Cap. 300, but subject to that we see no objection to such a course if the judge below had thought fit. Unfortunately he was not asked in those terms. We appreciate the anxiety of the Plaintiff's advisers at the time, and her need for a remedy of some kind, but having regard to the wording of the summons that was actually presented, we think the judge was correct to dismiss it. We need say no more.

7. We turn now to the one point still raised by the Attorney, a point upon which we are told the appropriate books offer no assistance. He asks this Court to rule that in circumstances like the present, where a witness whom the Plaintiff's advisers wish to interview is one who, by reason of the Crown's vicarious responsibility, might well impose liability on the Crown, the Plaintiff's advisers should first inform those acting professionally for the Crown of their intention. The object, counsel frankly admits, is to enable a witness to be advised of his position, with the view ultimately to protecting that of the Crown. Counsel accepts that this requirement if given would not be restricted to claims against the Crown, but would be of general application for the benefit of any defendant who might be saddled with vicarious liability.

8. The law, so far as it goes, is clear. The classic statement is by Lord Denning, M.R. in Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd. [1979] 1 WLR 1380 @ 1384:

9. To extend the law by requiring prior notice in particular circumstances would be reaching into an area beyond the usual realm of this court, and where, for all we know, there may already be conventions of some kind or, on the other hand, dangers not readily apparent to the outsider. It is an area which could perhaps well be explored by the Law Society at the instance and with the assistance of the Attorney General, but we do not think it appropriate for this Court to enter at this stage. We therefore simply order, for the reasons already given, that the appeal shall be dismissed.