WONG TAI WAI, DAVID v. THE HONG KONG SAR GOVERNMENT

HCA4309/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.4309 OF 2001

---------------------

----------------------

-----------------------

D E C I S I O N

-----------------------

1. This is an application by the defendant to strike out the plaintiff's Statement of Claim and dismiss his action.

The plaintiff's claim

2. The plaintiff's claim is enormous. In gist, he complained that he was being victimized by the investigation of a fraud case by the police and/or ICAC in about March 1998. He was ill-treated by the authorities. He has been kept under constant investigation and surveillance up to now. He raises as causes of action the tort of criminal harassment, the tort of intentional and reckless infliction of emotional distress, negligence against the defendant as an employer when he worked as a government servant between June 1998 and March 2000, breach of human rights under the United Nation's Declaration of Human Rights. He claims damages including punitive damages of HK$100,000 million. In respect of the punitive damages, he intends to donate half of it to the Liberation Army in Hong Kong for their service and the balance to relevant bodies for promotion the awareness human rights, including the British Council.

Striking out

3. It is trite law that a plaintiff must show that he has a cause of action recognized by the law. It is not sufficient for him to show simply that he was aggrieved by the conduct of some public officers or that such conduct has caused him losses. The matters complained of must constitute causes of action known to the law and are properly formulated in accordance with the law : see Wai Hung Stationery Co. & others v. Hong Kong SAR & others, FAMV No.1 of 1998.

4. I have read the Statement of Claim and the plaintiff's affidavits and considered his submissions carefully. Mr Tam, Senior Government Council, submitted and I agree that the only possible cause of action which the plaintiff's complaints may be capable of giving rise to is the tort of misfeasance in public office. That said, I do not consider the plaintiff has shown a reasonable cause of action in that regard. I will explain why below.

5. In Tang Nin Mun v. Secretary for Justice, CACV13/2000, the Court of Appeal dealt with the law relating to the tort of misfeasance in public office comprehensively. There, the plaintiff complained against the police's misconduct in the criminal investigation of a wounding case in which he was the victim in May 1994. He alleged that the police's misconduct had resulted in the perpetrator being charged with less serious offences than was proper and receiving a lighter sentence than was proper. That caused him mental anguish, distress and depressive illness. He therefore claimed damages against the police force.

6. Riberio JA (as he then was) held that the plaintiff's claim 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 in question either intended to injure him (targeted malice) or knew that such conduct would in the ordinary course directly cause injury to him of the type actually suffered (that is, cause him to suffer psychiatric disorder and disability untargeted malice) or that he was recklessly indifferent as to whether such injury would ensue: see page 7 of the judgment. He went on to say at page 8 of the judgment :

"... 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 unlawful conduct. These are grave allegations that, in fairness to the defendants, must be supported by pleaded facts which, if proved at trial, 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 orders of the type of which he complains. We do not therefore consider that the action should be allowed to continue."

7. The plaintiff's pleadings are convoluted and at times difficult to follow. So are his affidavits and submissions. Having considered them carefully, I am of the view that the Statement of Claim does not disclose any reasonable cause of action known to the law, including the possible tort of misfeasance in public office. The necessary ingredients of any causes of action known to the law are simply missing, despite the very serious allegations of misconduct raised. On this basis, the Statement of Claim must be struck out and the plaintiff's action dismissed.

Abuse of process

8. Mr Tam further relied on abuse of process as a ground of striking out. He referred to two cases lodged by the plaintiff in the Small Claim Tribunal (SCTC034635/01 and SCTC02102/01) in which he raised similar complaints. The claims were all dismissed. So was the plaintiff's application for leave to appeal.

9. In light of my ruling in paragraph 7 above, it is not necessary for me to determine if the plaintiff is re-litigating any questions already decided by another tribunal of competent jurisdiction. Mr Tam is in any event not raising any issue estoppel as such. I would however rule that it is an abuse of process to prosecute a claim which does not disclose any reasonable cause of action. This is exactly the case here. On this basis, the Statement of Claim must likewise be struck out and the action dismissed.

Conclusion

10. For the above reasons, I will strike out the Statement of Claim and dismiss the action with costs including the costs of the present application, to be taxed if not agreed.