EUGENE JAE-HOON OH v. KATE GASKELL RICHDALE

CACV 105 & 162/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 105 & 162 OF 2003

(ON APPEAL FROM HCA NO. 380 OF 2002)

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J U D G M E N T

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Hon Ma CJHC :

1. By a Writ dated 30 January 2002, the Plaintiff instituted proceedings against the Defendant on a claim based on malicious prosecution.  The Defence was served on 11 February 2002, with the Reply served on 23 February 2002.  The action seems then to have become dormant until the Plaintiff issued a Summons for Directions on 11 January 2003.  On 25 January 2003, the Defendant applied by summons to strike out the Statement of Claim, seeking as well a dismissal of the action.  The grounds for striking out were all 4 limbs under O.18 r.19(1).

2. On 22 and 23 May 2003, Deputy High Court Judge Lam (now Lam J) heard the application.  By a judgment handed down on 11 June 2003, he struck out the Statement of Claim and dismissed the action.  It is from this judgment and order that the Plaintiff has now appealed in CACV162/2003.

3. Earlier in the proceedings, on 25 March 2003, Deputy High Court Judge Lam had given some directions in relation to the strike out summons.  On that occasion, he ordered the Plaintiff to pay costs of $52,000, having assessed this on a gross sum basis under RHC O.62, r.9(4)(b).  Leave having been granted to appeal on 2 May 2003, the Plaintiff served a Notice of Appeal on 5 May 2003 (in CACV105/2003).  This appeal was also initially before us but was abandoned by Mr Martin Lee SC on the Plaintiff’s behalf.  It was accordingly dismissed with costs.

4. This left only CACV162/2003 to be determined.  At the hearing, the Plaintiff was represented by Mr Lee and Mr Jeremy Chan.  The Defendant was represented by Mr Charles Sussex SC and Miss Lisa Jane Cruden.  Before dealing with the substance of the appeal, I should set out the Plaintiff’s claim in the present action.

The Plaintiff’s claim

5. I have already mentioned that the cause of action relied on by the Plaintiff in the action is one for malicious prosecution.  The relevant prosecution was an information that had been laid against the plaintiff before Kwun Tong Magistracy on a charge of common assault (contrary to section 40 of the Offences against the Person Ordinance, Cap.212).  The information was laid by one J P F Stone, the Assistant Divisional Commander Crime, Tseung Kwan O Police Station, on 16 February 2001.

6. The charge related to an incident on 9 September 2000 which involved the Plaintiff and the Defendant.  This was a part of a number of incidents that day taking place near the home of the Defendant and her husband at Wo Tong Kong Village, on Clearwater Bay Road, in the New Territories.  The Plaintiff and Defendant were neighbours in the vicinity.  Four days earlier, on 5 September 2000, the Plaintiff (together with his wife) had commenced a personal injuries action against the Defendant and her husband claiming damages stemming from the death of the Plaintiff’s dog on 19 June 2000.  This incident was obviously deeply disturbing for the Plaintiff.

7. On the day in question, while the Defendant’s domestic helper was walking the Defendant’s dog, she came across the Plaintiff.  It was alleged that the Plaintiff assaulted the helper by throwing a rock or rocks at her.  In doing so, he allegedly also damaged a nearby car.  The Plaintiff was later charged with assault (to the helper) and criminal damage (to the car).

8. Following this incident, the Plaintiff then went in the direction of the Defendant’s house.  It was at this point that the Plaintiff confronted the Defendant and the alleged assault on the Defendant took place.  This was the basis of the charge with which the present action is primarily concerned.

9. The trial of the Plaintiff on this charge took place in the course of August and October 2001 at Kwun Tong Magistracy.  On 31 October 2001, the Magistrate held that the Plaintiff had no case to answer.  However, the Plaintiff was later convicted on 22 November 2001 of the charge of assault on the domestic helper and the criminal damage charge.  Although the Plaintiff appealed these convictions, his appeals were dismissed on 16 May 2003.

10. The Plaintiff alleges in the Statement of Claim that his prosecution for the alleged assault on the Defendant was a malicious one for which the Defendant was responsible.  Paragraph 8 of the Statement of Claim pleads the claim in the following way : -

“8.  In fact the prosecution was without reasonable or probable cause, and the Defendant maliciously initiated and participated in and procured the continuation of the criminal proceedings against the Plaintiff.

(1)     The Defendant deliberately provided false information to the police and/or deceived the police by supplying false information in the absence of which the police would not have proceeded.

(2)     The Defendant withheld information in the knowledge of which the police would not have prosecuted.

(3)     The Defendant, with the intention of causing a police officer to initiate a prosecution against the Plaintiff, made allegations which

(a)     if believed were likely to cause the police officer to initiate the prosecution;

(b)     were to her knowledge false; and

(c)     the police officer was thereby caused to initiate the prosecution.

(4)     The Defendant desired to have the criminal proceedings initiated against the Plaintiff, and by direction, request or pressure, caused criminal proceedings to be instituted by the police against the Plaintiff.

(5)     The Defendant made or was actively instrumental in the making or prosecuting of such a charge against the Plaintiff.

(6)     The Defendant caused or procured untrue and/or tainted evidence to be tendered by third parties, intending thereby to persuade the police to prosecute.

(7)     The Defendant gave untruthful and concocted information and evidence in an attempt to secure the conviction of the Plaintiff.

(8)     The Defendant did not believe and could not honestly have believed in the justice of the prosecution.

(9)     The Defendant knew the Plaintiff was not guilty of the charge laid against him.

(10)   Thus, no ordinary person in the position of the Defendant would reasonably have been led to the conclusion that the Plaintiff was or was probably guilty of the crime imputed.

(11)   The Defendant did not cause and/or initiate the information and complaint bona fide, and in fact did so in bad faith.

(12)   The Defendant was angry at the Plaintiff and bore him a grudge and she initiated and pursued the prosecution as stated and in the manner stated intending to cause the Plaintiff damage and harm.”

11. The Plaintiff claims damages in the sum of $3,171,119 for the malicious prosecution as well as aggravated and/or exemplary damages.

The issue in the present appeal

12. There are 4 ingredients in the tort of malicious prosecution.  These are identified in paragraph 16-06 of Clerk & Lindsell on Torts (18th ed.) in a passage that was said by the House of Lords, correctly to state the law : - see Martin v Watson [1996] 1 AC 74, at 80 : -

“In 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.”

This passage has also been referred to as representing the law in the decision of the House of Lords in Gregory v Portsmouth City Council [2000] 1 AC 419.

13. We are, in this appeal, only concerned with the first of these requirements, it being accepted by the Defendant for the purposes of the strike out application that the other 3 requirements are reasonably arguable.  It was also accepted by the Defendant as a premise that in reporting to the police the incident on 9 September 2000 which led to the assault charge, she had not told the truth.  Much was made of this by the Plaintiff in the submissions to us.

14. The issue before us is this : is it reasonably arguable, for the purposes of a strike out application, that the Defendant be regarded as the prosecutor (or one of the prosecutors) in the assault charge that the Plaintiff had to face and in respect of which it was held he had no case to answer?  To put it in terms of the requisite criterion in a strike out application : - is it plain and obvious that this requirement in the tort is obviously unsustainable?  The determination of this issue in the present case requires the Court to go into facts.  The Defendant’s application to strike out is therefore not just dependent on the identification of the correct principles of law, but also the application of the law so identified to the facts.

15. It is of course possible to refer to facts in order to found a strike out application.  O.18 r.19(1)(b)-(d) permit affidavit evidence to be utilized in order to show, for example, that a plaintiff simply has no factual basis to support the cause of action pleaded in his claim.  Care, however, must be taken to ensure that a plaintiff is not prevented from going to trial unless the material facts before the Court at the strike out stage are either uncontroversial or cannot seriously be in dispute.  All this is a manifestation of the principle that it is only in plain and obvious cases that a claim can be struck out.

Law

16. Before setting out the legal principles to be applied to the facts of the present case, I think it important first to identify the relevant context.  The Plaintiff’s claim is not against a public or official prosecutor such as the police or the Department of Justice.  The claim in the present case is against the complainant of an offence allegedly committed by the Plaintiff, this person having allegedly manipulated the system for dishonest or nefarious means.

17. Clearly, where the complainant launches a private prosecution, the prosecutor is perhaps easy to identify.  The present case does not involve a private prosecution but one where the Plaintiff was prosecuted by the authorities.  In this situation, while the police is clearly a prosecutor, it is not necessarily the only one for the purposes of the tort of malicious prosecution.  Here, as a matter of law, apart from the police or some other ‘official’ prosecutor, there may be another person or persons who may be treated as the prosecutor or, as Brooke LJ put it in Mahon and Another v Rahn and Others (No.2) [2000] 1 WLR 2150, at 2205 (paragraph 267), “one of the prosecutors”.

18. In setting out the relevant principles on the question of who is to be treated as a prosecutor where a complainant is involved, the Judge referred primarily to 3 authorities : - the decision of the House of Lords in Watson, of the English Court of Appeal in Mahon and of the New Zealand Court of Appeal in Commercial Union Assurance Company of New Zealand Ltd v Lamont [1989] 3 NZLR 187.  With respect, I agree, although there ought to be added to them the decision of the House of Lords in Gregory, to which Mr Sussex helpfully referred us.

19. In my view, the following principles emerge from the authorities as to the question of how and in what circumstances in any given case, a complainant (such as the Defendant) is to be treated as a prosecutor for the purposes of the tort of malicious prosecution : -

(1)       The basis of the tort lies in the wrongful use that a person has made of the legal system (namely, the process of the Court) to set in motion a prosecution of another person on a criminal charge.  In short, there is involved the abuse of the Court’s criminal process in order to secure the wrongful conviction of another person : - see Commercial Union at 192 and 199 per Richardson J.  As Lord Steyn said in Gregory at 426C-D :

“A distinctive feature of the tort is that the defendant has abused the coercive powers of the state”.

(2)       The pre-requisite in any case of malicious prosecution is that the complaint has lied or procured others to lie to the authorities in order to try to have another person prosecuted on a criminal charge.  This, however, is not enough.  The lie must also “at least” have influenced the relevant prosecution authority to prosecute : - see Commercial Union at 196 (lines 20-25).

(3)       Even if the above is satisfied, it still does not follow even at this stage that the complainant can be treated as the prosecutor.  The final step (and this, I emphasize, is critical) is it must be demonstrated that the lie and the circumstances of the case were such that it became virtually impossible for the prosecuting authorities to exercise any independent discretion or judgment as to whether or not to prosecute.  Put another way, where it is shown that the prosecuting authorities were able to and did exercise an independent discretion or judgment in investigating the case and in the decision to prosecute the Plaintiff, the nexus between the lie (as told or procured by the complainant) and the prosecution is broken and the complainant will not in these circumstances be held to be the prosecutor.  This last requirement is emphasized in the authorities, to which I now turn.

(4)       In Commercial Union, Richardson J, in a judgment that critically analyzed the authorities in a number of common law jurisdictions on this point, said at 193 : -

“The tension is particularly acute where the defendant has given false and incriminating information to the police who have then exercised their own judgment in deciding to prosecute.”

           At 199 (lines 3-38) in an important passage he continued : -

“        In the modern New Zealand context particular weight should in my view be given to two considerations.  One is that the police have the training and experience to investigate a possible offence impartially and with skill and in that process to assess whether the evidence justifies the invoking of the criminal process.  Then if it does to commence and conduct that process.  And the police have the professionalism to critically weigh and test the reliability of complaints and information which may be affected by self-interest or ill-will.  To proceed on the premise that wherever it emerges the false information was given to the police the intelligent exercise of the discretion to prosecute was impossible, does not reflect the ordinary performance by the New Zealand police of their important responsibilities.

          The other is that members of the community should be encouraged to carry out their civic responsibility to support the police in the performance of the central function of investigating and prosecuting apparent breaches of the criminal law. Members of the community should be secure in the knowledge that in providing the police with information they are not exposing themselves to an allegation of malicious prosecution.  So the circumstances in which they are to be regarded as having instigated a prosecution should be rare and exceptional.  In this regard it needs to be remembered that there are other sanctions against misconduct on the part of those ostensibly assisting the police.  Making a false statement to the police is an offence under s 24 of the Summary Offences Act 1981 and perjury is of course a crime; and civil liability may arise in defamation or for sale imprisonment.

          It does not follow that there is any call for modifying the test which has been developed in the decisions of this Court for determining whether a third party is responsible in an action for malicious prosecution for criminal proceedings instituted by the police.  What is required is a cautious application of that test where the police have conducted an investigation and decided to prosecute.  The core requirement is that the defendant actually procured the use of the power of the State to hurt the plaintiff.  One should never assume that tainted evidence persuaded the police to prosecute.  In some very special cases, however, the prosecutor may in practical terms have been obliged to act on apparently reliable and damning evidence supplied to the police.  The onus properly rests on the plaintiff to establish that it was the false evidence tendered by a third party which led the police to prosecute before that party may be characterised as having procured the prosecution.”

           And at 200, dealing with the facts of the case : -

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

(5)       In the same case, McMullin J referred to false information which “virtually compels” an officer to lay an information : - at 207 (line 54).  At 208 (lines 15-16) he said :

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

           Barker J agreed with the 2 judgments preceding his.  He then alluded to the judgment of Dixon J in the High Court of Australia in Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 where he made reference to “the discretion [of the police][being] misled by false information or is practised upon in order to procure the laying of the charge”.

(6)       In Martin, Lord Keith of Kinkel said at 86G-87A : -

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

           What this passage highlights is the situation where the facts of the alleged offence are exclusively within the knowledge of the complainant.  In this ‘one on one’ situation, it may become virtually impossible for the police (or other public prosecutor) to exercise any independent discretion or judgment.  This is not to say that an independent discretion or judgment simply cannot be exercised even in this situation, because if it is shown to have been exercised, the nexus is also broken.  It is all a matter of degree and dependent on the circumstances of the case.  The Judge emphasized this latter point in paragraph 44 of his judgment referring to the Privy Council case of Pandit Gaya Parshad Tewari v Sardar Bhagat Singh (1908) 24 TLR 884.

(7)       In Mahon, Brooke LJ (delivering the principal judgment with which the other members of the Court of Appeal agreed) developed the passage from the speech of Lord Keith of Kinkel in Martin set out above, as well as reviewed the relevant Commonwealth authorities.  The following points were emphasized in his judgment : -

(a)     A distinction existed between a simple case like Martin (which involved 2 neighbours in Orpington, one accusing the other of indecent exposure – a ‘one on one’ situation) and other cases (such as Mahon itself, involving an alleged commercial fraud) where the prosecutor is in receipt of evidence from a variety of sources on the basis of which he has to decide on whether or not to prosecute : - see 2205H-2206A (paragraph 268).

(b)     In a simple case, the following test was said to be appropriate : -

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

(c)     In a more complex case, the test is the same but they should cautiously applied where the prosecutor has conducted an investigation and critically appraised the evidence : - see 2206B-D (paragraph 270).  Reference was made to that part of Richardson J’s judgment in Commercial Union referred to in paragraph (4) above.

20. Mr Lee did not really dispute these principles but laid emphasis instead on a passage in the judgment of McMullin J in Commercial Union at 207-208 where he said : -

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

21. Mr Lee argued that the passage should be read disjunctively : if a plaintiff could satisfy one or more of the 3 situations there referred to, it would then follow that the complainant would be treated as a prosecutor.

22. In my judgment, this argument ignores what I have described above as a critical step, namely, the requirement that the lie (or dishonest withholding of information) made it virtually impossible for the prosecuting authorities to exercise any independent discretion or judgment.  This step was one that McMullin J himself expressly recognized in the passage at 208 of his judgment where he refers to the importance of a supervening event (see paragraph 19(5) above).  Mr Lee’s submissions amount to saying no more than where a person (acting maliciously and without reasonable cause) provides information or testimony to the prosecuting authorities in the absence of which the prosecutor would not have proceeded or withheld information that, if known, would have resulted in no prosecution being brought, then this is enough to make that person a prosecutor.  This is far too broad a test and is one that is not borne out by the authorities, in particular the 3 main authorities in this area.  I accept that taken in isolation, the passage in the judgment of McMullin J may support the Plaintiff’s contention, but they must be read in the context of what the learned judge himself said in other passages.  On analysis, all that McMullin J was seeking to do in that passage was to make good the point that a prosecutor for the purposes of the tort of malicious prosecution, is not restricted only to the person who formally or officially lays the charges.

23. Where a sophisticated and established prosecuting authority such as the Hong Kong Police Force or the Department of Justice is involved in a prosecution, caution must be exercised before identifying anyone else as a prosecutor : - see Mahon at 2206C.  Afterall, the tort involves the malicious prosecution of another person, not a malicious reporting to the authorities.  In Gregory, Lord Steyn said this at 426C-F regarding the policy behind the narrow definition of the tort : -

“             The paradigm is the tort of malicious prosecution of criminal proceedings.  A distinctive feature of the tort is that the defendant has abused the coercive powers of the state.  The law recognises that an official or private individual, who without justification sets in motion the criminal law against a defendant, is likely to cause serious injury to the victim.  It will typically involve suffering for the victim and his family as well as damage to the reputation and credit of the victim.  On the other hand, in a democracy, which upholds the rule of law, it is a delicate matter to allow actions to be brought in respect of the regular processes of the law.  Law enforcement agencies are heavily dependent on the assistance and co-operation of citizens in the enforcement of the law.  The fear is that a widely drawn tort will discourage law enforcement: it may discourage not only malicious persons but honest citizens who would otherwise carry out their civic duties of reporting crime.  In the result malevolent individuals must receive protection so that responsible citizens may have it in respect of the hazards of litigation.  The tort of malicious prosecution is also defined against the backcloth that there are criminal sanctions, such as perjury, making false statements to the police, and wasting police time, which discourage the mischief under consideration.  Moreover, the tort must be seen in the context of overlapping torts, such as defamation and malicious falsehood, which serve to protect interests of personality.”

Application of law to facts

24. I have earlier noted the fact it has been assumed for the limited purposes of the strike out application that the second to fourth elements of the tort are reasonably arguable in the present case.

25. The Plaintiff submits that the assumption must therefore be that the Defendant lied to the police when she reported the alleged assault on her by the Plaintiff.  She being the complainant, as well as the subject matter of the charge, it simply becomes impossible at the strike out stage to say that what otherwise might have been the independent discretion and judgment on the part of the police in prosecuting the Plaintiff, was not tainted by the lie.  Mr Lee essentially says this : - but for the lie, there would have been no prosecution; the Defendant was the main witness, the “prima donna” (as he described her status).  Her lie therefore (at least arguably) made the independent exercise of discretion or judgment by the police “virtually impossible”.

26. Forcefully though these arguments were put, they do not in my view adequately address the critical point of the exercise of discretion or judgment by the prosecuting authorities in the present case.  The argument proceeds on the premise it is sufficient merely to show that but for the lie, the police would not have prosecuted the Plaintiff.  I have already dealt with this view of the law in paragraphs 20 to 22 above.

27. In my judgment, it is clear on the evidence (even at this stage) to conclude that however much the Defendant may have lied about the assault (and I assume here she has lied totally about the incident and has acted maliciously and unreasonably), the prosecuting authorities (meaning the police and the Department of Justice) did exercise an independent discretion or judgment on the decision to prosecute the Plaintiff.  In short, the nexus between the Defendant and the prosecution of the Plaintiff was severed by the intervention of the police and the Department of Justice.  It is in my view not reasonably arguable that the Defendant’s lie has somehow made it “virtually impossible” for the independent exercise of discretion or judgment by the prosecuting authorities in the present case.  The following facts and matters lead to these conclusions : -

(1)     The police, in investigating the alleged assault and considering whether or not to prosecute, were not faced with a ‘one on one’ situation.  Statements were obtained from a number of witnesses to the incident, among them the Defendant’s husband, a houseguest, a neighbour and her friend.  All provided statements to the police in which there was described an assault on the Defendant by the Plaintiff.  It of course later transpired that the neighbour and her friend were some 60 metres away from the Plaintiff and the Defendant at the time of the incident but given the content of their statements, there was some independent evidence for the police to take into account.  On analysis, this was not a case in which the facts were “peculiarly” within the Defendant’s knowledge.  As the judge said in paragraph 51 of his judgment : -

“The Defendant might be an important witness but she was by no means the only witness which the prosecution could rely upon in establishing the charge”.

(2)     In the Investigation Report of DCIP Stone dated 18 July 2001, in the course of his investigations, he also interviewed and obtained statements from the Plaintiff’s wife, their maid and 2 of their neighbours.  A statement was also taken from another neighbour who witnessed the incident, although she did not say she saw an assault.  Even a vet was interviewed.  DCIP Stone himself paced the relevant distances at the site of the alleged assault.  He was also well aware of the enmity that had built up between the Plaintiff and the Defendant originating from the death of the Plaintiff’s dog.  The police knew there was a history of ill feeling between them.

(3)     The police carried out extensive investigations before the decision to prosecute was made.  Although the incident took place on 9 September 2000, it was not until 16 February 2001 that the Plaintiff was charged.  The Investigation Report to which I have earlier referred, provides much detail on the police investigations that were carried out.  It is clear that the police were not simply taking the Defendant’s word on the assault without the exercise of any independent discretion or judgment.  They evaluated the Defendant’s version against the whole of the evidence and against what other people were saying.

(4)     At the Plaintiff’s trial, DCIP Stone was cross-examined on whether he had appraised the evidence before deciding to prosecute.  He said he had.  DCIP Stone also said that consideration had been given to the Plaintiff’s complaint that in fact it was he who was assaulted by the Defendant’s husband and the houseguest.

(5)     The decision to prosecute was not of course made by the police on its own.  Legal advice from the Department of Justice was sought.  We have seen the correspondence passing between the Defendant’s solicitors and the Department of Justice in which this is clearly made out.  The letter dated 6 May 2003 from the Department of Justice to the Defendant’s solicitors (Messrs Deacons) states, “After due consideration, advice was given to the police to charge [the Plaintiff]”.  DCIP Stone also replied to the inquiry made by the solicitors.  In his letter in reply, he says this : -

“I can confirm that the police investigated the various allegations which arose out of the incident which occurred at Wo Tong Kong Village, Clearwater Bay Road on 9th September 2000.  A fair, thorough and impartial investigation was conducted.  The results of the investigation were forwarded to the Department of Justice for consideration.  The Department of Justice advised that the Plaintiff in your case should be charged.  Thereafter the case (KTCC 10357/01) was prosecuted by Government Counsel.

I can confirm that the results of the police investigation were not in any way influenced by any pressure exerted by your client.”

(6)     There is no doubt in the present case that the police and the Department of Justice exercised an independent discretion or judgment in evaluating the evidence when it decided to prosecute the Plaintiff.  We have been referred to relevant passages in the Prosecution Policy of the Department of Justice published in 1998, in particular those dealing with general principles and the sufficiency of evidence to prosecute.  I have no doubt on the facts that the Policy has been adhered to.  No evidence exists in any form to suggest that the witnesses colluded with each other in somehow inculpating the Plaintiff (even though the Statement of Claim pleads that the Defendant procured untrue and tainted evidence to be provided to the police).  Nor is there any evidence to support the Plaintiff’s case that the Defendant had applied undue pressure on the police to prosecute him.  In his affidavit, the Defendant referred to a letter dated 30 January 2001 from the Defendant, her husband and their maid to the police inquiring about progress.  Reference was also made to a letter from their solicitors (Messrs Baker and Mckenzie) to the Director of Public Prosecutions in which reference was made to 6 summonses that the Plaintiff had privately taken out against the husband regarding his dogs.  Neither letter in my view remotely supports the point that the Defendant and her husband were applying undue pressure on the prosecuting authorities.

28. I do not see how these conclusions can change at trial, much as Mr Lee has urged us to the contrary on this point.  The objective facts, mostly contained in documents, speak for themselves and lead inevitably to the conclusion that the nexus between the Defendant’s “lie” and the Plaintiff’s prosecution has been broken.  This was the view of Deputy High Court Judge Lam and with respect, I agree.  Moreover, the Plaintiff has already had an opportunity to raise (and did raise) the issue of malicious prosecution during his trial in the Magistrates’ Court.  Although I agree that the focus of that trial was different in nature to the present proceedings, nevertheless they are obviously connected.  Nothing in the cross-examination of DCIP Stone in particular leads one to think that any more progress can be made by the Plaintiff if the present action were permitted to go to trial.  The Plaintiff is then really in the position of hoping that something will eventually turn up at trial.  Nothing persuades me that this is the correct view to take in the present case.

Conclusion

29. For my part, the Judge was entirely correct in striking out the Statement of Claim and dismissing the action.  His judgment was one that carefully analyzed the relevant legal principles which were then applied to the facts.  The appeal is therefore dismissed.  I will also make an order nisi that the costs of the appeal should be to the Defendant, such costs to be taxed if not agreed.

Hon Cheung JA :

Facts

^30. In modern times the prosecution of a criminal case is generally conducted by a prosecution authority, such as the Department of Justice in Hong Kong.  Following the investigation by the police on the information provided by a complainant this authority will decide whether a prosecution will be lodged against a defendant.

^31. In this case the plaintiff was prosecuted by the Department of Justice on a charge of common assault based on the complaint of the defendant.  He was found by the magistrate to have no case to answer to the charge and the charge was dismissed.  He is now suing the defendant for malicious prosecution.

^32. The defendant succeeded in striking out the plaintiff’s claim.  The application was based on the ground that the action was an abuse of the process of the court, it was also frivolous and vexatious.  The plaintiff now appeals.

Ingredients of the claim

^33. In order for the plaintiff to succeed on malicious prosecution he has to establish the following four ingredients :

(1)   The defendant was the prosecutor who set the law in motion against him;

(2)   The prosecution was determined in his favour;

(3)   The prosecution was without reasonable cause and probable cause; and

(4)   The prosecution was maliciously made.

^34. The plaintiff bears the onus of proving each of these ingredients : Martin v. Watson [1996] A.C. 74.

Who is the prosecutor?

^35. he issue in this appeal turns solely on whether the defendant was the prosecutor.

^36. The principles on whether a complainant of a crime or someone who had provided information to the police can be treated as a prosecutor were discussed in the Australian case of Commonwealth Life Assurance Society Limited v. Brain [1934-1935] 53 CLR 343, the New Zealand case of Commercial Union Assurance Company of New Zealand Limited v. Lamont [1989] 3 N.Z.L.R. 187 and the English case of Martin v. Watson [1996] 1 A.C. 74.  The principles in these cases were considered and applied in the recent case of Mahon v. Rahn (No. 2) [2000] 1 W.L.R. 2150.

The Australian case

^37. In Brain, Dixon J of the High Court of Australia held that :

“   The legal standard of liability for a prosecution which is instituted neither by the defendant nor by his servant is open to criticism on the ground of indefiniteness.  It is clear that no responsibility is incurred by one who confines himself to bringing before some proper authority information which he does not disbelieve, even although in the hope that a prosecution will be instituted, if it is actually instituted as the result of an independent discretion on the part of that authority (Danby v. Beardsley (1880) 43 L.T. 603; Fanzelow v. Kerr (1896) 14 N.Z.L.R. 660).  But, if the discretion is misled by false information, or is otherwise practised upon in order to procure the laying of the charge, those who thus brought about the prosecution are responsible (Pandit Gaya Parshad Tewari v. Sardar Bhagat Singh (1908) 30 All E.R. 525; Black v. Mackenzie (1917) N.Z.L.R. 729).  Further, the Privy Council has said in a judgment delivered by Lord Dunedin :—“In any country where, as in India, prosecution is not private an action for malicious prosecution in the most literal sense of the word cannot be raised against any private individual.  But giving information to the authorities which naturally leads to prosecution is just the same thing.  If that is done and trouble caused an action will lie.”  Their Lordships, however, held in the case before them that, as the information supplied to the police was ample cause for the initiation of prosecution proceedings, the plaintiff must, in order to succeed in his action, go the whole way of showing that it was false to the defendant’s knowledge (Balbhaddar Singh v. Badri Sah (1926) The Times, 17 March, page 5, a case containing dicta apparently inconsistent with the decision of this Court in Davis v. Gell (1924) 35 C.L.R. 275).  The rule appears to be that those who counsel and persuade the actual prosecutor to institute proceedings or procure him to do so by dishonestly prejudicing his judgment are vicariously responsible for the proceedings.  If the actual prosecutor acts maliciously and without reasonable and probable cause, those who aid and abet him in doing so are joint wrongdoers with him.”  (emphasis added)

The New Zealand approach

^38. In Lamont, the Court of Appeal of New Zealand considered authorities from various jurisdictions including Brain.  Richardson J held that,

“   To summarise the New Zealand authorities.  A defendant who has procured the institution of criminal proceedings by the police is regarded as responsible in law for the initiation of the prosecution.  Expressions such as “instigate”, “set in motion” and “actively instrumental in putting the law in force”, while evocative do not provide an immediate touchstone for the decision of individual cases.  That requires close analysis of the particular circumstances.  In the difficult area where the defendant has given false information to the police that in itself is not a sufficient basis in law for treating the defendant as prosecutor.  That conduct must at least have influenced the police decision to prosecute.”  (emphasis added)

The House of Lord’s decision

^39. Lord Keith in Martin v. Watson at page 86-7 considered both Brain and Lamont andheld that,

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

Independent judgment

^40. In my view the ultimate question to be asked before one can decide whether the complainant, who had given false information to the authority, is the prosecutor is whether the prosecuting authority has exercised an independent judgment in the prosecution.  If the answer is yes, then the complainant cannot properly be regarded as the prosecutor.  If the answer is no, then the complainant can be so regarded.

^41. How the question is answered in each case will depend on the facts of the case.

^42. The presence of independent witnesses and other forms of evidence such as documentary or forensic evidence are clearly relevant factors to be taken into account on the question of whether the prosecuting authority has considered all the relevant factors and exercised an independent judgment in deciding to prosecute the plaintiff. 

The different situations

^43. Between the extreme situations such as where the facts of the case are within the sole knowledge of the complainant (e.g. Martin v. Watson, allegation of sexual misconduct) and where there are overwhelming supporting documentary evidence (e.g. Mahon v. Rahon, allegation of fraud in commercial transactions), there are inevitably grey areas such as in Lamont and the present case where the evidence are capable of being construed both in favour of the exercise of an independent judgment and the lack of it.

Judgment prejudiced?

^44. In this case, one of the most significant factors is whether the Department of Justice, if it had known the complainant had dishonestly supplied the information, would still pursue with the prosecution.

^45. Common sense will tell that it would not do so because this is contrary to its prosecution policy.  But the supply of false information by the complainant may equally have prejudiced its exercise of judgment.  If this is the case the complainant is to be treated as the prosecution.  Hence despite the presence of other witnesses who said they had witnessed the assault, the evidence from the complainant of the assault is clearly one of importance.

^46. Two of the witnesses who informed the police that they had seen the assault conceded at the trial that their view was blocked by the defendant. 

^47. The other two witnesses who likewise had said to have seen the assault were the husband of the defendant and a friend.  If, despite the evidence of the defendant and these two witnesses, the magistrate would, without even hearing the plaintiff, find that there was no case for him to answer on the assault charge, then something must have seriously gone wrong with their evidence.  This being the case the extent to which the defendant’s information had influenced the decision to prosecute becomes of vital importance.  This is a question of fact.

Assumed facts

^48. In this case it is properly conceded by Mr. Sussex S.C., counsel for the defendant, that for the purpose of the striking out application, the second, third and fourth ingredients of the tort must be assumed in favour of the plaintiff.  This assumption would necessarily include the facts pleaded by the plaintiff in support of his claim, namely the defendant deliberately provided false information which she knew to be false to the police and deceived the police by supplying false information.

^49. Although the only issue that the Court is concerned with is whether the defendant is the prosecutor in this case, clearly the concession has a significant impact on the first issue.

Inference to be drawn

^50. The impact is that the plaintiff is entitled to argue that the evidence are capable of giving rise to the inference that the Police and the Department of Justice were indeed prejudiced by the complaint and their judgment on the matter was impaired. 

^51. I have to disagree with Mr. Sussex’s argument that the plaintiff had not shown an iota of evidence that the decision to prosecution was not the result of an independent judgment.  For the purpose of the striking out, the facts which are assumed in the plaintiff’s favour together with the matters I will now deal with form the foundation upon which the necessary inference can be drawn.

Inquiry with the police and the prosecution

^52. The plaintiff had not inquired with the police inspector in charge of the case and the prosecuting counsel on their decision to prosecute if they had known that the defendant had indeed provided false information to them.  On the other hand, the defendant’s lawyer had made inquiries.  He asked the Department of Justice and the Police to confirm that the decision to charge the plaintiff “was made independently on the basis of all the material evidence and that the decision was not influenced by any pressure exerted by our client”.

^53. The response from the Department of Justice was that the decision to prosecute was based on Article 63 of the Basic Law, the Prosecution Policy, ‘due consideration’ of the case and was made ‘according to laws’.  It refused to give the answer in an affidavit. 

^54. The Police replied that ‘A fair, thorough and impartial investigation was conducted.  The results of the investigation were forwarded to the Department of Justice for consideration.  The Department of Justice advised that the plaintiff in your case should be charged’.  The letter concluded by saying that ‘the results of the police investigation were not in any way influenced by any pressure exerted by your client’.

^55. The fact that the plaintiff had not made the inquiries does mean that the matter is now conclusive against him.  Even if one is to look at the correspondence and not merely at the assumed facts, the responses from the Department of Justice and Police do not conclusively answer the real question of whether their judgment had been prejudiced.  What the Department of Justice and Police had said must be subject to cross examination.  In Lamont the answers elicited by the cross examination of the police officer in charge of the criminal prosecution in the action for malicious prosecution were relied upon as evidence in support of that action.

^56. Apart from that, what transpired at the criminal case and its outcome further provide the evidential basis for the plaintiff to mount this action.  First of all, if, despite the ‘thorough investigation’ of the police, two of the witnesses admitted in court that their views were blocked which contradicted their claim to the Police that they saw the assault by the plaintiff, a real question arises as to whether an independent judgment had in fact been exercised in the investigation by the Police.  Surely it was not difficult to ascertain during the investigation whether these witnesses’ vision was blocked.  Further, if the prosecution could not even satisfy the magistrate that there was a prima facie case of assault, this clearly is a very strong indication that the evidence of the defendant, her husband and their friend was totally unsatisfactory in court.

^57. All these unsatisfactory features in fact lend support to the plaintiff’s case that first of all the Police was so much affected by the defendant’s alleged claim of assault that it had coloured or prejudiced its judgment in the investigation.  The absence of pressure from the defendant towards the Police does not mean that the latter’s judgment could not be impaired.  In view of the relationship between the defendant, her husband and their friend,it is arguable that the latter two could not be treated as truly independent witnesses which, somehow, might have provided the Police with evidence in support of the defendant’s claim.  In fact this case is more akin to the situation in Martin v. Wilson where the source of information came from the complainant.  This is not an unarguable point.

^58. Moving to the position of the Department of Justice, it is a manner of common sense that when the Police presented its investigation to the Department of Justice for advice, it would not simply provide it with statements of the witness only.  One expects that the Police would include its own input, in terms of its assessment of the strength of the case and the credibility of the witnesses.  If the advice to prosecute by the Department of Justice was based on an investigation which was prejudiced, I am not prepared to say at a striking out application that, nonetheless, the nexus between the alleged false claim by the defendant and the prosecution must necessarily be broken by the independent judgment of the Department of Justice.  The plaintiff’s case is by no means a strong one, but in my view there is enough material to allow him to pursue the claim.

Opportunity to deal with the matter

^59. Nor am I impressed with the argument that the plaintiff had the opportunity of cross-examining the inspector at the criminal trial and could have explored this issue.  Counsel  for the plaintiff at the criminal trial was focusing on a different issue altogether.  Matters relating to the timing of the criminal charge against the plaintiff, the prosecution of another offence of criminal damage when the owner of the damaged property did not even wish to pursue the matter and other matters were all related to the question of whether the police itself had a grudge against the applicant.

^60. The plaintiff’s counsel at the criminal trial was not concerned with the issue that has to be decided in this case.  To decide otherwise would be imposing too high a burden on the plaintiff who, after all, despite being a lawyer, would still have to be guided in this case by specialists in this area of the law.

Lamont revisited

^61. It must be a matter of common sense to say that one must not assume that wherever it emerged that false information had been given to the police the intelligent exercise of the discretion to prosecute was impossible (per Richardson J in Lamont).  Ultimately it is a matter of fact in each case as whether the independent judgment was impaired or not.

^62. Indeed Lamont itself is the best illustration of this approach.  In that case, the criminal prosecution of the plaintiff on insurance fraud was conducted by the New Zealand prosecuting authority.  It was based on the investigation of the police who had received information provided by the insurer of the plaintiff.  At the trial the plaintiff was found to have no case to answer to the charge.  He then sued the insurer for malicious prosecution. 

^63. The same question like the one in the present case arose as to whether the insurer was the prosecutor.  While there was evidence which was capable of showing that the police had exercised an independent judgment, it was held by Barker J that equally the jury could find that the insurer had dishonestly supplied false information to the police (which the jury in an earlier trial had already so found) and the information could be said to have prejudiced the judgment of the police.  He ordered a retrial. 

^64. Richardson J was of the same view.  He stated that,

“   As Anderson J (i.e. the trial judge) observed, although in his evidence Detective Newman tended to diminish the extent and influence of the company’s (i.e. the insurer’s) involvement, the evaluation of his evidence and of the evidence overall was a matter for the jury.  While on paper the case for the plaintiff in this respect could by no means be regarded as strong, and while Detective Newman’s evidence, if accepted by the jury, pointed to an independent exercise of judgment by the police not tainted by misrepresentations or misconduct on the part of employees of the company, there is in my view a proper basis in the evidence on which a jury was entitled to answer question 1 (i.e. Did the defendant prosecute the plaintiff?) in favour of the plaintiff.”

^65. Although Richardson J did not expressly say so, the basis of such evidence must be those relating to the false information provided by the insurer from which the jury may decide whether such false information if dishonestly given had prejudiced the independent judgment of the prosecuting authority.

^66. McMullin J also ordered a retrial but on a different basis, namely, on the wrong direction by the judge.

Question of fact

^67. In Lamont the Court of Appeal was dealing with an appeal from the decision of the jury in a trial.  While Richardson and Barker JJ’s decision on the retrial is not a proposition of law which one needs to follow, clearly it highlights the point that whether an independent judgment has been exercised or not is ultimately a question of fact depending on the circumstances of the case. 

^68. It is correct that one must not assume that even in a case of false evidence being given, the prosecuting authority may necessarily be prejudiced, equally it must not be assumed that such an impairment of judgment could never occur at all. 

^69. In my view, if this can be said of a trial, this should apply equally, if not with greater force, to a striking out application where some fundamental facts have already been assumed in favour of the plaintiff and where there are other evidence which are capable of showing the judgment of the Police and the Department of Justice had indeed been prejudiced.  This is a fact sensitive issue.  In my view it cannot be said that at this stage of the proceedings it is so plain and obvious that the plaintiff is bound to fail in his claim.

^70. While it is one in rare and exceptional circumstances that a malicious prosecution can be lodged against a private individual after a failed criminal prosecution that had been instituted and conducted by the prosecuting authority, one must not apply this principle as a matter of routine at an interlocutory stage so as to preclude a plaintiff from pursuing his claim.

Conclusion

^71. I would allow the appeal and set aside the judgment below.

Hon Ma CJHC :

72. This court being equally divided on the outcome of the appeal, the order made by Deputy High Court Judge Lam striking out the Statement of Claim and dismissing the action with costs remains intact and the appeal is accordingly dismissed.  We also make an order nisi as to costs as proposed in my judgment.  Under section 34B(5), it is open to either party to apply to have the matter re-argued before a court comprising an uneven number of appeal judges.