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HCPI001509/2000
HCPI 1509/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 1509 OF 2000
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TSO YUNG
(represented by WAH PO HING, Next Friend) |
Plaintiff |
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AND |
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CHENG YEUNG HING |
1st Defendant |
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SECRETARY FOR JUSTICE
for and on behalf of COMMISSIONER OF POLICE |
2nd Defendant |
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Coram: Deputy High Court Judge Fung in Court
Dates of Hearing: 17-20 December 2002 and 6-7 January 2003
Date of Handing Down Judgment: 26 February 2003
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J U D G M E N T
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1. The plaintiff is suing by her husband and next friend, Wah Po Hing ("Wah"), for damages for nervous shock and consequential losses. The trial is both on liability and quantum.
The plaintiff's claims
2. The pleaded cause of action against the 1st defendant is false imprisonment, and as against the 2nd defendant, the tort of intimation. The plaintiff is also relying on the tort of misfeasance in public office against the 2nd defendant raised earlier at the striking out proceedings. Since the plaintiff is not legally represented, counsel for the 2nd defendant has invited the court to consider also the tort of intentional infliction of injury in respect of the 2nd defendant. The plaintiff has not pleaded negligence, and Wah has indicated that he is not relying on negligence.
3. The trial was conducted in Chinese. I hand down the judgment in English because of the legal submissions and psychiatric evidence involved. There is a summary of the salient points in Chinese for reference only.
The background
4. Wah formerly traded as Manlut Transnational (HK) Co. ("Manlut HK"). The 1st defendant was a director and shareholder of Speedy Union International Limited ("Speedy Union"). This case arose out of an attempt by the plaintiff and Wah to collect a debt from the 1st defendant on 20 April 2000. The debt itself is no longer in dispute, as on 15 March 2002, judgment was entered by consent in favour of Manlut HK against Speedy Union in the sum of HK$80,000.39 with interest under the action DCCJ No.3917 of 2001.
5. In early 2000, the plaintiff went to the 1st defendant's office in Star House, Tsimshatsui ("TST") on numerous occasions to collect the debt but was without success. On 19 April 2000, the plaintiff had to leave the 1st defendant's office after the 1st defendant called in the police.
6. On 20 April 2000 at about 10 a.m., Wah accompanied the plaintiff to the 1st defendant's office. After 15 minutes, the 1st defendant called in the police again. This time, Wah and the plaintiff refused to leave. The sergeant concluded that it was a civil matter and there was nothing he could do in the absence of an injunction from the court. The officers left but the plaintiff and Wah stayed behind.
The plaintiff's evidence
7. Sometime before lunch time, Wah wanted to go to the toilet and then lunch. He agreed with the plaintiff that they would take turn to have lunch so that one of them would remain in the 1st defendant's office. Their intention was not to leave until the 1st defendant had paid.
8. At lunch time, the plaintiff was inside the conference room. Suddenly, the lights and the air conditioning went off. She rushed outside and saw the 1st defendant was locking the glass door from outside. She patted on the glass door and asked the 1st defendant to open the door but the 1st defendant ignored her. The plaintiff was locked in. She tried to ring Wah but the telephone line was cut off. She patted on the glass door and asked a girl next door to ring Wah to inform him of the situation.
9. Wah came to the premises and dialed 999. The police arrived and contacted the 1st defendant. The 1st defendant returned to unlock the door. The plaintiff insisted the police should arrest the 1st defendant for false imprisonment. All parties were brought back to TST Police Station.
10. Wah said the plaintiff was very calm when he arrived. She was even more calm when the police arrived because she trusted the police and had nothing to fear.
11. At TST Police Station, the plaintiff was questioned by the Station Sergeant Shum Wai Keung ("S/Sgt Shum") and she insisted on pressing the charge of false imprisonment against the 1st defendant. Later, she was brought to a room while Wah waited outside. She was questioned by Senior Inspector ("SIP") Truhol and SIP Burnett through the interpretation of S/Sgt Shum. The plaintiff said as soon as she said she wanted to press charge against the 1st defendant, SIP Truhol waved his hand and raised his voice and threatened to charge her for obstructing police and wasting police time. The plaintiff wanted to explain and SIP Truhol shouted at her to shut up. She was given 10 minutes to consider the matter.
12. The plaintiff went outside and repeated the conversation almost ad verbatim to Wah. Wah demanded to see SIP Truhol but was refused by an officer at the counter. Wah demanded a case number card in order to make a complaint. They saw the 1st defendant went upstairs and thought there must be a conspiracy with the police. Then the plaintiff became disoriented and unclear in her mind as she went home. Later, a complaint was made to CAPO.
The plaintiff's medical evidence
13. After the plaintiff went home from TST Police Station, she was very upset emotionally. On 26 April 2000, Wah accompanied the plaintiff to consult Dr Alexander Lo, clinical psychologist in private practice. Wah asked Dr Lo to write a medical report right away in order to file a writ.
14. According to the brief psychological report of Dr Lo, the plaintiff was fearful and tearful when she recounted the event of 20 April. She was angry and dissatisfied with the police. She complained of anger, poor appetite, insomnia, loss of interest in sexual activities and everything but no psychotic symptoms were noted. Dr Lo diagnosed her to be suffering from post-traumatic stress according to DSM-IV (i.e. Edition 4, Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association) and was moderately depressive. The plaintiff had another counselling session with Dr Lo prior to 2 June 2000.
15. On 2 June 2000, the plaintiff attended the Accident and Emergency Department ("A&E") of Princess Margaret Hospital ("PMH"). The record shows that she was suffering from insomnia with emotional upset and suicidal ideas for one month. There was also delusion of persecution. She refused to be hospitalised against medical advice. She was referred to South Kwai Chung Psychiatric Centre ("SKCPC").
16. The plaintiff's medical expert is Dr Li Ching For of SKCPC. Dr Li is the plaintiff's handling doctor since 4 January 2002. He diagnosed the plaintiff to be suffering from severe depressive episode with psychotic symptoms. He based his diagnosis on the previous diagnosis of moderate depressive episode by his predecessor Dr Cheng Ka Tak, and the additional report of paranoid delusion by the plaintiff on 11 July 2001. Dr Li only referred to the three medical reports of Dr Cheng. He has not discussed the case with Dr Cheng.
17. In the medical report of Dr Cheng dated 17 July 2000 ("Dr Cheng's 1st Report"), it was stated that the plaintiff was first seen by Dr Cheng on 12 June 2000. She was found to be of depressed mood with tiredness, lack of interest in daily activities, neglecting household chores and child care, decreased libido and sexual activities, irritable and sensitive to noise and slightly decreased appetite. Dr Cheng observed the plaintiff to have reasonable self-care. She was depressed and on the verge of tears. Her affect was appropriate. Her speech was coherent and relevant. She denied any suicidal ideas because of her two young children. No psychotic symptoms were elicited. She was fully oriented with normal cognitive function. She knew that she was depressed and agreed on regular treatment. She was diagnosed to be suffering from moderate depressive episode. She was treated with antidepressant and arranged to see a clinical psychologist.
18. Dr Cheng's 1st Report stated that on 7 July 2000, the plaintiff saw Dr Cheng again. Wah reported to Dr Cheng that the plaintiff still had irritability and sensitivity to noise, still did not take up household chores completely, and still had low mood and was tensed. Dr Cheng concluded that the plaintiff was still suffering from moderate depressive episode and needed continual psychiatric care. She was prescribed with dothiepin, an anti-depressant and diazepam, a sedative.
19. In the medical report of Dr Cheng dated 12 February 2001 written for the Legal Aid Department ("Dr Cheng's 2nd Report"), it was stated that since 12 June 2000, the plaintiff attended follow-ups regularly and her condition gradually improved. She was last seen on 8 September 2000. She reported that she felt much settled and less irritable. She still had some degree of forgetfulness and decreased concentration. Her sleep was fair and her appetite was maintained. She reported regular drug taking. Mental state examination revealed that she had stable mood and was not depressed. Her speech was coherent and relevant. She had no suicidal ideas or psychiatric symptoms. She was fully oriented in time place and person. Her condition improved after psychiatric treatment. Since the plaintiff defaulted follow-ups since October 2000, her current condition then could not be ascertained, except permanent disability from depression was not expected and she was mentally fit to give instructions in litigation.
20. In the medical report of Dr Cheng dated 26 May 2001 written for the Legal Aid Department ("Dr Cheng's 3rd Report"), it was stated that the plaintiff was last seen on 9 May 2001. She reported that she felt much settled and less irritable. Her sleep was fair and appetite was maintained. She reported regular drug taking. Mental state examination revealed that she had stable mood and was not depressed. In summary, the plaintiff had been suffering from moderate depressive episode in 2000 and her condition improved after psychiatric treatment. Permanent disability from depression was not expected.
21. Dr Li saw the plaintiff on 4 January, 21 June and 30 August 2002 before he wrote the medical report dated 18 September 2002. It stated that the plaintiff had defaulted follow-ups from October 2000 to February 2001. She resumed attending SKCPC on 26 February 2001 and reported increased irritability, poor sleep, with depressed mood. The dosage of dothiepin was increased.
22. On 11 July 2001, the plaintiff revealed that she had a paranoid delusion of being followed. She was directed by the Legal Aid Department to see Dr Ho Pang Nin, a private psychiatrist. The plaintiff said the psychiatrist was in fact a policeman who had checked her identity card at Mei Foo in the past. Trifluoperazine, an anti-psychotic drug was added and the dosage was increased on 26 July 2001. Her condition improved gradually, but she still suspected some unknown person followed her and would sue her at times.
23. On 30 August 2002, the plaintiff was seen again. She appeared calm. Her mood was neutral. She was oriented. She denied auditory hallucination or delusion. She denied suicidal ideas. She said she stayed at home mostly and complained of drowsiness at daytime. Dr Li diagnosed the plaintiff as suffering from severe depressive episode with psychotic symptoms. The cause of this mental illness remained unclear, but the unhappy experience of being entrapped in April 2000 may be a precipitating factor. In view of her fluctuating mental condition, it is expected that she needs further psychiatric treatment for years.
24. Dr Li said the plaintiff is not suffering from phobia of the police. Psychological counselling is more effective in treating phobia. The plaintiff was referred to psychological treatment by Dr Cheng but she never attended any.
25. Dr Li said at present, the plaintiff's condition has improved. But since her condition is fluctuating, he still maintains the diagnosis of severe depressive episode. Dr Li said the cause of the plaintiff's condition was not known, but it could be precipitated by the incident of lock up at the 1st defendant's office.
The 1st defendant's evidence
26. The 1st defendant said after the police had left for the first time, he told the plaintiff and Wah to leave repeatedly but they refused. He rang up his friends for advice but all they could say was to call the police. He rang up the TST Police Station again for advice. The officer told him to use minimal force to evict the unwelcome persons. He did not do so as the plaintiff is a female, and Wah had a walking problem. He was afraid of unnecessary allegations.
27. Sometime before 12:30 p.m., Wah left. The 1st defendant had told the plaintiff to leave at least four to five times.
28. At about 12:55 p.m., the 1st defendant asked the plaintiff to leave as he and his clerk Miss Wong Pui Yue ("DW1") had a luncheon appointment to meet. He said he would turn off the lights and the air conditioning and lock up the office. The plaintiff understood him and he gave her time to act. The plaintiff said she would leave only after she received the money. DW1 and he left the office and he locked the door.
29. DW1 said that the 1st defendant had also explained to the plaintiff that if she refused to leave, she would be locked in the office until they returned after lunch.
30. At about 1:20 p.m., the 1st defendant was contacted by the police. He returned to the office at about 1:30 p.m. to open the door. He told the officers that he told the plaintiff to leave before he locked up the office but the plaintiff did not have any action.
31. The 1st defendant denied locking up the plaintiff against her will. He knew that the fact that the plaintiff refused to leave before lunch did not mean that he could lock her up during lunch. He said the plaintiff and Wah were disrupting the normal operations of his office and were personae non gratae. All the morning he was trying to get rid of them without success. The least he wanted to do was to detain the plaintiff. He only locked up the office because both he and his clerk had to go out for lunch and the plaintiff had refused to leave even then.
The 2nd defendant's evidence
32. Sergeant 3430 Yuen Yu- Kwong attended the scene. The 1st defendant said he asked the plaintiff to leave, otherwise he would lock up the place. The plaintiff denied that the 1st defendant has said so. As Sgt Yuen thought each side was maintaining its version, they were brought back to TST Police Station.
33. S/Sgt Shum was the duty officer of TST Police Station at the material time. He asked the 1st defendant whether he had asked the plaintiff to leave and he said yes. Then he asked the plaintiff why she did not leave when the 1st defendant was about to lock the door and the plaintiff said she would not leave because she did not receive the money. S/Sgt Shum was also aware of the previous requests for assistance by the 1st defendant. Hence, he formed the view that the plaintiff was not deprived of her liberty and there was no prima facie case of false imprisonment against the 1st defendant. He decided not to refer the case to the Criminal Investigation Department. He said neither SIP Truhol nor SIP Burnett nor himself was threatening or rude to the plaintiff.
34. SIP Truhol said he was not investigating the case. He was merely trying to help S/Sgt Shum to explain the situation to the plaintiff. He asked the plaintiff whether she was asked to leave and she said she would not leave until they paid her. He asked again whether she was asked to leave and she said she was kidnapped and asked him to arrest the 1st defendant. He thought the plaintiff was offered the chance to leave but she refused and that did not constitute false imprisonment. He never forced the plaintiff to drop her case by threatening to charge her with obstructing the police or wasting police time. At that time, the plaintiff was lividly angry and was intent on causing trouble on the other party. He did not know whether the plaintiff know the seriousness of her accusation and he did not want the plaintiff to get in trouble of making a false accusation. He did tell the plaintiff to stop interjecting, but he did not shout at her. He asked the plaintiff to think about the matter and left. He only saw the plaintiff for three to four minutes.
35. SIP Burnett said he was just a bystander.
The 2nd defendant's medical evidence
36. The plaintiff was examined by Dr Peter Yu, psychiatric expert for the 2nd defendant on 11 and 17 September 2001.
37. In his report dated 24 September 2001, Dr Yu concentrated on the incident at TST Police Station. But for his doubt of the credibility of the plaintiff, his conclusion also applied to the effect of the incident at the 1st defendant's office.
38. Dr Yu said the plaintiff was not suffering from any major depressive episode, whether of mild, medium or severe degree. She was angry, irritable, and there was no reason to disbelieve she had sleep and concentration problems. However, these are only mental symptoms of mild intensity, not amounting to any depressive episode. In short, there is temporary depression, with mental symptoms raising concern but not amounting to mental illness. The plaintiff was exaggerating and dramatizing the symptoms.
39. Dr Yu said the plaintiff also suspected him to be a policeman. It is very rare for mental patients to disbelieve doctors, let alone think they are police. If the patient has such delusion, it is an extreme case of serious depressive episode. Hospitalization is required as the patient will be too fearful to live independently. There will be significant loss of weight, recurrent suicidal thoughts, feeling of worthlessness or excessive guilt. They will be looking downward, and display facial expressions of mouth drooping down, and stooping or curling up in a foetal posture. They will also be slow in speech and low in volume. Moreover, with true phobia, the patients will be so fearful once the subject of police is mentioned, and will avoid the source of fear by asking others to turn off the television or to take away newspapers with such subject mentioned. Dr Yu noted these were absent in the plaintiff's case.
40. Dr Yu also pointed out there were inconsistencies in the plaintiff's allegation of fear of police and delusion that she was followed by police. Dr Yu said he was told in the interview that such symptoms occurred immediately after the incident. It is noted that in the referral note of PMH dated 2 June 2000, delusion or persecution was mentioned. However, in Dr Cheng's report dated 17 July 2000, it was stated there was no psychotic symptoms, which would include paranoia delusion.
41. Further, while the referral note of PMH dated 2 June 2000 mentioned suicidal idea, it was negatived in all subsequent reports.
42. Dr Yu said the interview was dominated by Wah. Apart from the Mini-Mental State Examination ("MMSE"), about 80% of the questions were answered by Wah. Dr Yu said the plaintiff was able to speak fluently, and during the MMSE, the plaintiff volunteered that she also did the Series-7 test with Dr Ho. Dr Yu did not stop Wah as he believed that would antagonize the plaintiff and Wah.
43. As to the earlier diagnosis of depressive episode of moderate degree, Dr Yu said looking at Dr Cheng's 1st report, the only basis that could lead to such a conclusion was the loss of ability to do household chores. By reason of the inconsistencies which led him to conclude the plaintiff was exaggerating and dramatizing, Dr Yu also ruled out depressive episode of moderate degree. He said the plaintiff was very angry and dissatisfied. She was motivated by perceived wrongs of others and a desire to get even.
Assessment of the evidence
44. For the liability, I have to resolve the following issues of facts :
(1) Whether the plaintiff was locked up against her free will by the 1st defendant or she refused to leave after it was made clear to her that the office would be locked up during lunch time;
(2) Whether the plaintiff said to S/Sgt Shum that she would not leave until after she was paid when S/Sgt Shum asked her why she did not leave when the 1st defendant was going to lock up the office;
(3) Whether SIP Truhol forced the plaintiff to drop the charge of false imprisonment by threatening to charge her with obstructing police.
45. Wah submitted that DW1 is an employee of the 1st defendant and she is naturally biased and not credible.
46. Wah pointed out inconsistencies in the 1st defendant's evidence. Wah said in the Defence of the 2nd defendant, it was stated that the 1st defendant informed the 2nd defendant it was his staff who locked the door but he now said he locked the door. This inconsistency was between the Defence of the 2nd defendant and the evidence of the 1st defendant. This point is not resolved but I note that in both S/Sgt Shum and Sgt Yuen's statements, they stated that it was 1st defendant who locked the door.
47. Wah submitted that it is a matter of fact that the plaintiff was locked up inside the 1st defendant's office. As Sgt Yuen said each side was maintaining its version, the police was under the duty to investigate the case and to charge the 1st defendant with false imprisonment. It is then up to the court to decide whether the plaintiff had said she would not leave unless she was paid.
48. On the other hand, I find the plaintiff was exaggerating in her evidence about the lock up. She said the telephone line was cut off. She was asked to describe what she heard on the handset. At first, she said it was an intermittent engaged tone. When it was suggested to her that she did not press to secure the line, she changed to say there was no sound at all. She also said the electricity was cut. However, she did not try to turn on the lights although she knew where the switch was.
49. The plaintiff's pleaded case included phobia of the police. She said she is fearful of the police. Dr Li said the plaintiff is not suffering from phobia of police, but only severe depressive episode. Dr Yu said that the plaintiff was exaggerating and dramatising her fear of the police. I have observed the plaintiff closely when she gave evidence. She was verbose and forceful. She was not fearful when she mentioned the police and the expatriate inspectors. I find that it is inconsistent with phobia of police.
50. Dr Li said when he first saw the plaintiff, he asked her about her report of delusion of persecution to A&E of PMH on 2 June 2000. She said the police was nasty to her, following her. Dr Li said the plaintiff's account of the delusion was mainly being followed, but it was inconsistent each time. In answer to the question as to why Dr Cheng's reports stated that there was no psychotic symptoms (such as delusion) and there was no record of investigation of the delusion of persecution by Dr Cheng, Dr Li said perhaps on 2 June 2000, the plaintiff was still very angry with the police and she felt aggrieved and emotionally upset, and she might have expressed her feelings in a more serious way. I find that Dr Li was suggesting that the plaintiff might possibly be exaggerating her complaints because of her anger with the police.
51. There was also inconsistencies as to whether the plaintiff had suicidal ideas. Apart from the referral note of PMH dated 2 June 2000, all other medical reports negatived suicidal ideas. When the plaintiff was giving evidence, she casually mentioned that she thought of committing suicide by throwing herself off the building when she failed to collect the debts, but did not do so because she thought of her children.
52. I also find it quite disturbing that the plaintiff is withholding the report of Dr Ho Pang Nin. Looking at her medical history broadly, Dr Cheng's 1st Report dated 17 July 2000 diagnosed her with moderate depressive episode. Dr Cheng's 2nd Report dated 12 February 2001 stated that she had improved upon treatment, but since she defaulted follow up since October 2000, her current condition could not be ascertained save that permanent disability was not expected. Then on 26 February 2001, the plaintiff resumed follow up and complained increased irritability. According to Wah, the plaintiff saw Dr Ho sometime between April and May 2001. Dr Cheng's 3rd Report dated 26 May 2001 stated that the plaintiff's condition improved upon treatment and permanent disability was not expected. Then on 11 July 2001, the plaintiff reported that she had the delusion that Dr Ho was a policeman (back in April or May). It seems that Dr Ho's medical report is a crucial missing link. Further, as pointed out by Mr Shum for the 2nd defendant, it seems more than co-incidental that the plaintiff only thought Dr Ho and Dr Yu were policemen, but not Dr Cheng and Dr Li.
53. For the purpose of credibility and liability, I have considered whether the plaintiff was exaggerating and dramatizing her symptoms. Taking into account the inconsistencies mentioned, I accept the opinion of Dr Yu. Besides, Dr Yu is a qualified specialist in psychiatry and has given expert evidence over 100 times. Dr Li has only the general qualification of a Licentiate of the Medical Council with clinical experience in psychiatry. He has only given evidence once before in the magistracy. He has seen the plaintiff three times of about 10 to 15 minutes before writing his medical report. He relied on the medical reports of Dr Cheng without discussing with Dr Cheng. He admitted that he had not received training to detect whether a mental patient is exaggerating or dramatising. I find the evidence of Dr Yu of much higher quality.
54. Wah was also an exaggerating witness. He was convinced that there was a conspiracy between the 1st defendant and the police. He claimed that the maternal uncle of the 1st defendant was the "No.1" or person in charge of TST Police Station. When asked how he came to know about that, he then conceded he only guessed so.
55. Wah said he demanded the case report card from an officer at the counter of the Report Room so that he could file a complaint. When asked why he did not ask the officer to fill in the name of the officer handling the case, he said there was no need to do so. When queried that there was no reason to leave the entry blank if he were minded to file a complaint, he changed to say that he had so asked but was refused.
56. Wah had also exaggerated the plaintiff's role in his business. He claimed the plaintiff to be an equal partner with him. That is contrary to the description of Manlut HK as a sole proprietorship under Business Registration. Wah claimed that the plaintiff was the registered proprietor of the branch business in South Africa. No document was produced. That was inconsistent with the medical report of Dr Li which stated that the plaintiff was a full time housewife after marriage. Wah admitted so telling Dr Li but explained that one needed not be bothered with details.
57. It was suggested to Wah that the plaintiff was emotionally upset when their home, shop and warehouse in South Africa were looted. Wah said the plaintiff was not affected at all because when one emigrated to South Africa, one would naturally expect such things to happen.
58. I have considered whether the plaintiff did tell S/Sgt Shum that she would not leave until she was paid when S/Sgt Shum asked her why she did not leave when the 1st defendant was going to lock up, while Sgt Yuen said the plaintiff denied the 1st defendant ever asked her to leave before he locked up the office. Upon being questioned by the 1st defendant why she did not leave together with Wah when he went out for lunch, the plaintiff said, "If I left, would you open the door for me to come back?" Although that was not directly referring to the time when the 1st defendant was going to lock up the office, I find that the plaintiff had a strong motive in not leaving the office of the 1st defendant.
59. I have also considered whether Wah and the plaintiff were willing to leave the police station without being threatened by SIP Truhol. I find that Wah and the plaintiff are intransigent in their ends, but not necessarily in their means. Granted that the police were not persuaded with the pressing a charge of false imprisonment, I am not surprised to find that they would pursue alternative route in order to meet their ends.
60. After looking at all the evidence and observing the witnesses, I find the 1st defendant, DW1 and all the police officers to be credible witnesses, and I do not find the plaintiff or Wah to be credible witnesses.
61. I make the following findings of facts :
(1) The 1st defendant did ask the plaintiff to leave and told her that he was locking up his office during the lunch time and would be returning after lunch;
(2) The plaintiff had deliberately refused to leave upon being so told;
(3) The plaintiff did say to S/Sgt Shum that she would not leave until after she was paid when S/Sgt Shum asked her why she did not leave when the 1st defendant was going to lock up the office;
(4) SIP Truhol never forced the plaintiff to drop the charge of false imprisonment by threatening to charge her with obstructing police and wasting police time;
(5) SIP's intent was to explain to the plaintiff the serious consequences of making an allegation of false imprisonment without grounds.
Tort of false imprisonment
62. According to Clerk & Lindsell on Torts (18th Ed., 2000), the tort of false imprisonment is established on proof of : (1) the fact of imprisonment; and (2) absence of lawful authority to justify that imprisonment (para.13-19). The maxim volenti non fit injuria applies to actions for false imprisonment (para.13-24).
63. According to Clerk & Lindsell, at para.3-72 :
"The meaning of volenti Volenti non fit injuria is a voluntary agreement by the claimant to absolve the defendant from the legal consequence of an unreasonable risk of harm created by the defendant, where the claimant has full knowledge of both the nature and extent of he risk. When it applies it is a complete defence; the claimant recovers nothing. On this basis there are at least three requirements for the defence to apply:
(1) Agreement by the claimant to waive a claim against the defendant;
(2) This agreement must be voluntary, not due to compulsion by the defendant or external circumstances;
(3) The claimant should have full knowledge of the nature of the risk."
64. In Nettleship v. Weston [1971] 2 691, Lord Denning said at p.701 :
"Now that contributory negligence is not a complete defence, but only a ground for reducing the damages, the defence of volenti non fit injuria has been closely considered and in consequence, it has been severely limited. Knowledge of the risk of injury is not enough. Nor is willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant."
65. I have found that the 1st defendant did tell the plaintiff that he would be locking the office up during lunch time and for reasons best known to herself, the plaintiff deliberately refused to leave. The plaintiff has freely and voluntarily consented to remaining in the office while it was locked up during lunch time. The plaintiff must be taken to have waive any cause of action in false imprisonment against the 1st defendant.
66. I do not find that the tort of false imprisonment is made out.
Tort of intimidation
67. According to Morgan v. Fry & ors [1968] QB 710 Lord Denning MR, at p.724C, stated the essential ingredients of tort of intimidation:
"According to the decision in Rookes v. Barnard [1964] AC 1129, the tort of intimidation exists, not only in threats of violence, but also in threats to commit a tort or breach of contract. The essential ingredients are: there must be a threat by one person to use unlawful means (such as violence or a tort or a breach of contract) so as to compel another to obey his wishes: and the person so threatened must comply with the demand rather than risk the threat being carried into execution. In such circumstance the person damnified by the compliance can sue for intimidation."
68. In Hodges v. Webb [1920] Ch 70, it was held that the threat must be to do an unlawful act, something one is not legally entitled to do. Peterson J said at p.89 :
"A threat is only an intimation by one to another that unless the latter does or does not do something the former will do something which the latter will not like. But it is impossible to say whether such a threat is or is not lawful until it has been ascertained what it is that is threatened to be done. If the threat is to use violence to person or property, it is obviously an intimation that the threatener intends to use unlawful means for the purpose of attaining his end : and no one would doubt that a threat to do that which is unlawful cannot be defended. Where the threat is part and parcel of a conspiracy or unlawful combination, it may be affected by the illegality of the conspiracy. But omitting cases of conspiracy or combination, I do not understand the legal basis for contending that it is unlawful for a man to threaten to do merely that which he is entitled to do. The act itself is immune from attack, yet an intimation that it will be done is to be a ground of liability. It may be that the idea is due to the belief that the threat is a menace or intimidation, and that it is unlawful, because it puts unlawful pressure upon the person who is subjected to it. If a threat amounts to intimidation or a menace of violence it cannot be defended; but assuming that it does not, the question remains whether it does in fact exercise pressure of an unlawful kind. Omitting cases of conspiracy or combination, I venture to doubt whether the pressure of a mere statement that the speaker intends to do something which he is legally entitled to do if the man to whom he is speaking does not adopt a particular course, can be unlawful pressure."
69. I have found that the plaintiff did tell S/Sgt Shum that she would not leave until after she was paid when she was asked why she did not leave when the 1st defendant said he was going to lock up the office. I also believe SIP Truhol that he never threatened the plaintiff to shut up or else he would charge her with obstructing police or wasting police time. Upon being satisfied that the plaintiff did tell S/Sgt Shum that she did not want to leave until she got paid (as incidentally it is so found by me now), it was reasonable and lawful for SIP Truhol to tell the plaintiff to consider the seriousness of her accusation as he did not want her to get in trouble of making a false accusation.
70. I do not find that the tort of intimidation is made out.
Tort of misfeasance in public office
71. In Three Rivers District Council and ors v. The Bank of England (No.3) [2000] 3 All ER 1, the House of Lords clarified the ingredients of the tort of misfeasance in public office. From the judgment of Lord Steyn at p.8, I summarize the ingredients of the tort as follows :
(1) The defendant must be a public officer;
(2) The second requirement is the exercise of power as a public officer;
(3) The third requirement concerns the state of mind of the defendant;
(4) Duty to the plaintiff;
(5) Causation;
(6) Damages and remoteness.
72. Lord Steyn also stated that it is not disputed that the principles of vicarious liability apply as much to misfeasance in public office as to the other torts involving malice, knowledge or intention.
73. In Tang Nin Mun v. Secretary for Justice [2000] 2 HKC 749, Ribeiro JA (as he then was) surveyed the opinions of their Lordships in Three Rivers District Council which illuminate the state of mind that must be established for the tort of misfeasance in public office, and stated the position at pp.752H to 754H :
"As Lord Steyn put it [at p 12a], the choice for the House of Lords was between the subjective test requiring knowledge on the part of the officer that his decision or act would probably damage the plaintiff and the objective test of reasonable foreseeability of such harm.
Their Lordships unanimously chose the former option. They decided that the test was a subjective one, with any of three variants (or as Lord Millett approached it, perhaps two variants) [at pp 48-49] of the requisite mental state being sufficient to found liability. Lord Hobhouse's convenient labels for these variants were 'targeted malice', 'untargeted malice' and 'reckless untargeted malice' respectively [at pp 44g-45b].
'Targeted malice' involves conduct by the official 'specifically intended to injure a person or persons' (per Lord Steyn)[at p 8e]; or done 'intentionally with the purpose of causing loss to the plaintiff, being a person who is at the time identified or identifiable' (per Lord Hobhouse)[at p 44h]; or 'with intent to harm the plaintiff or a class of which the plaintiff is a member' (per Lord Millett)[at p 49a].
'Untargeted malice' involves action by the official 'in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual or individuals' (per Lord Steyn)[at p 9c]; or when he 'actually knew that he had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does' (per Lord Hutton). Lord Hobhouse explained this mental state as follows [at pp 44j-45a]:
'Here the official does the act intentionally being aware that it will in the ordinary course directly cause loss to the plaintiff or an identifiable class to which the plaintiff belongs. The element of knowledge is an actual awareness but is not the knowledge of an existing fact or an inevitable certainty. It relates to a result which has yet to occur. It is the awareness that a certain consequence will follow as a result of the act unless something out of the ordinary intervenes. The act is not done with the intention or purpose of causing such a loss but is an unlawful act which is intentionally done for a different purpose notwithstanding that the official is aware that such injury will, in the ordinary course, be one of the consequences.'
To Lord Millett, the first two limbs of 'targeted' and 'untargeted' malice were 'merely different ways in which the necessary element of intention is established.'[at p 49a-b] He saw the first limb as established by evidence and the second by inference, explaining this approach as follows [at 49d-f] :
'The rationale of the second limb is not so transparent. The element of knowledge which it involves is, in my opinion, a means of establishing the necessary intention, not a substitute for it. But intention does not have to be proved by positive evidence. It can be inferred. Proof that the official concerned knew that he had no power to act as he did and that his conduct would injure the plaintiff is only the first step in establishing the tort. But it may and will usually be enough for the necessary intention, and therefore of the requisite state of mind, to be inferred.... If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not 'intend' the consequences or that the act was not 'aimed' at the person who, it is known, will suffer loss.'
Lord Millett stressed that the inference of malice 'cannot be drawn unless the official did foresee the consequences. It is not enough that he ought to have foreseen them if he did not do so in fact.' [at p 50a-b]
What Lord Hobhouse called 'reckless untargeted malice' was also accepted as a sufficient mental state to found liability. Lord Steyn approved the approach that had been taken by Clarke J and the Court of Appeal below, as follows [at p 9e-g] :
'Clarke J lucidly explained the reason for the inclusion of recklessness [1996]3 All ER 558, 581:
'The reason why recklessness was regarded as sufficient by all members of the High Court in Mengel is perhaps most clearly seen in the judgment of Brennan J. It is that misfeasance consists in the purported exercise of a power otherwise than in an honest attempt to perform the relevant duty. It is that lack of honesty which makes the act an abuse of power.'
The Court of Appeal accepted the correctness of this statement of principle: [2000]2 WLR 15, 61G-62A. This is an organic development, which fits into the structure of our law governing intentional torts. The policy underlying it is sound: reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form.'
It is therefore established that 'subjective recklessness on the part of a public officer in acting in excess of his powers is sufficient' (per Lord Steyn)[at pp 9-12]. This is a state of mind involving 'recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not' (per Lord Steyn); or 'reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce' (per Lord Hutton, citing Brennan J in Northern Territory of Australia v Mengel (1995) 69 ALJR 527 at 546); or '... 'a conscious disregard for the interests of those who will be affected by' the exercise of the power' (per Lord Millett, citing Blanchard J in Garrett v Attorney General [1997]2 NZLR 332 at 349).
As Lord Steyn's speech makes clear, the plaintiff must come within the ambit of the offending public officer's intent, knowledge or recklessness in two ways. First, the officer must have acted 'in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member'. Secondly, the officer's intent or knowledge 'must be directed at the harm complained of, or at least to harm of the type suffered by the plaintiffs."
74. I wish to refer further to what Lord Millet said in Three Rivers District Council, at p.48g-j :
"The tort is an intentional tort which can be committed only by a public official. From this two things follow. First, the tort cannot be committed negligently or inadvertently. Secondly, the core concept is abuse of power. This in turn involves other concepts, such as dishonesty, bad faith, and improper purpose. These expressions are often used interchangeably; in some contexts one will be more appropriate, in the other contexts another. They are all subjective states of mind.
It is important to bear in mind that excess of power is not the same as abuse of power. Nor is breach of duty the same as abuse of power. The two must be kept distinct if the tort is to be kept separate from breach of statutory duty, which is not necessarily found a cause of action. Even a deliberate excess of power is not necessarily an abuse of power. Just as a deliberate breach of trust is not dishonest if it is committed by the trustee in good faith and in the honest belief that it is for the benefit of those in whose interests he is bound to act, so a conscious excess of official power is not necessary dishonest..."
75. In Tang Nin Mun, the plaintiff and his wife were stabbed and seriously wounded in an unprovoked attack by one Ho. The constable who investigated the case induced the plaintiff and his wife to sign blank sheets of paper on which the constable subsequently concocted statements falsely purportedly to have been made by the complainants, wrongly stating that the attack had been preceded by a dispute between Ho and the plaintiff's wife, and also significantly understated the seriousness of the injuries inflicted by Ho. As a result, Ho was charged with relatively minor offences and he pleaded guilty and was sentenced to a suspended sentence. When the plaintiff discovered that the course of justice had been so perverted, he suffered mental distress and developed a psychiatric condition of clinical depression with consequential loss of earning capacity. He sued the Government as vicariously liable for the tort of misfeasance in public office by the constable. The defendant sought to strike out the Statement of Claim. The Court of Appeal ordered that the pleading be struck out and the action dismissed.
76. Ribeiro JA said at pp.754H to 755A :
"It follows that the plaintiff's claim in the present case is only viable if he is in a position to allege and ultimately to establish that in abusing his police powers of investigation, the constable either intended to injure the plaintiff or knew that such conduct would in the ordinary course directly cause injury to the plaintiff of the type actually suffered (that is, cause him to suffer psychiatric disorder and disability) or that he was reckless indifferently as to whether such injury would ensue."
His Lordship continued at p.755G-H :
"In our view, the draft put forward does not save the pleading. An action for misfeasance in public office involves the allegation that a public officer acted in bad faith and dishonestly abused his powers, knowing that the plaintiff was likely in the ordinary course to suffer injury of the type actually suffered as a result of the officer's wilful conduct. These are grave allegations that, in fairness to the defendants, must be supported by pleaded facts which, if proved at reial, are capable of establishing liability.
In the present case, there is quite plainly no realistic prospect of the plaintiff establishing that the constable was subjectively aware that his fabrication of the evidence would, in the ordinary course of events, lead to the plaintiff suffering psychiatric disorders of the type of which he complains. We do not therefore consider that the action should be allowed to continue."
77. From my findings in this case, there is absolutely no basis to suggest either SIP Truhol or S/Sgt Shum was dishonest or malicious in handling the plaintiff. Based on the background of the case and what the plaintiff had told him, S/Sgt Shum formed the honest belief that there was no prima facie case of false imprisonment. And based on this information, SIP Truhol tried to explain the situation to the plaintiff. There was no ulterior motive in protecting the 1st defendant or abuse of power or whatsoever.
78. None of the police officers intended to inflict any injury on the plaintiff. Further, none of the officers had the knowledge that the plaintiff was particularly susceptible to psychiatric injury. On the contrary, it is noted that Wah said the plaintiff was very clam when he returned to the 1st defendant's office, and more calm when the police arrived. I do not find that the it can be imputed to the police officers any intention to injure the plaintiff by reason of their knowledge and conduct, nor that they were subjectively reckless as to any injury to the plaintiff.
79. I do not find that the tort of misfeasance in public office is made out.
Tort of intentional infliction of injury
80. The principle of intentional infliction of injury is stated in Wilkinson v. Downton [1897] 2 QB 57 per Wright J at p.58-9 as follows :
"The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff - that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant."
81. The facts in Wilkinson v. Downton as per the headnote is as follows :
"The defendant, by way of a practical joke, falsely represented to the plaintiff, a married woman, that her husband had met with a serious accident whereby both his legs were broken. The defendant made the statement with intent that it should be believed to be true. The plaintiff believed it to be true, and in consequence suffered a violent nervous shock which rendered her ill."
82. Wright J said at p.59 :
"It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any be exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs. The other question is whether the effect was, to use the ordinary phrase, too remote to be in law regarded as a consequence for which the defendant is answerable. Apart from authority, I should gave the same answer and on the same ground a the lest question, and say it was not too remote."
His Lordship considered the authorities and held that the facts constituted a good cause of action.
83. The dictum of Wright J at pp.58-59 was cited with approval by Bankes LJ in Janvier v. Sweeney & anr [1919] 2 KB 316, 322.
84. Mr Shum for the 2nd defendant accepted that intention in this regard includes recklessness (see Mullany and Hanford on Tort Liability for Psychiatric Damage, 1993 at p.288).
85. In so far as this case is concerned, the analysis for this tort is similar to the tort of misfeasance in public office. I have found against any intention, knowledge or recklessness on the part of the police officers. Hence, this cause of action is also not made out.
Conclusion
86. I find that the 1st and 2nd defendants are not liable to the plaintiff as claimed.
87. In view of my finding on liability, it is not necessary for me to consider quantum.
Costs
88. I make an order that the plaintiff do pay the costs of the 1st and 2nd defendants in this action.
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(signed) |
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(B. Fung) |
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Deputy Judge of the High Court |
Representation:
The Plaintiff (represented by Mr Wah Po Hing, next friend), present
The 1st Defendant, in person, present
Mr Edward Shum, instructed by the Department of Justice, for the 2nd Defendant
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