LAM WAI IP v. THE SECRETARY FOR JUSTICE

CACV 435/2020, [2023] HKCA 721

On appeal from [2020] HKCFI 1773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 435 OF 2020

(ON APPEAL FROM HCA NO 2827 OF 2016)

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REASONS FOR JUDGMENT

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Hon Kwan VP (handing down the Reasons for Judgment of the Court):

1.  This is the plaintiff’s appeal against the judgment of Deputy High Court Judge M K Liu handed down on 30 July 2020 (“Judgment”)[1] dismissing his action against the Secretary for Justice (“SJ”) for malicious prosecution after a four-day trial. The plaintiff was granted legal aid in bringing this action but his legal aid certificate was discharged in December 2019. He acted in person at the trial in July 2020 and in this appeal[2]. We allowed the appeal at the conclusion of the hearing and ordered a new trial before another judge of the Court of First Instance. These are the reasons for allowing the appeal.

Background

2.  The plaintiff’s claim arose out of the criminal proceedings brought against him in HCCC 383/2014, in which he was prosecuted for the offence of trafficking in a dangerous drug, namely, three packets of crystalline solid, being 55.27 gm of methamphetamine hydrochloride (commonly known as “Ice”).

3.  As related in the Judgment, the case of the prosecution and that of the accused at the criminal trial may be summarised as follows:

“2. The prosecution’s case in HCCC 383/2014 is as follows:

(1) On 15 May 2014, a team of 8 police officers (collectively “the Officers”) from the Anti-triad Squad of the Kwai Tsing Police District, acting upon police intelligence and armed with a search warrant, laid ambush at the rear staircase outside the premises known as Flat 21A, 1^st Floor, Hang On Tong Building, Hang On Street, Sau Mau Ping, Kowloon (“Flat 21A”). At around 10:20 am, P [the plaintiff] appeared outside Flat 21A and, as perceived by the Officers, was acting in a furtive manner. The Officers therefore intercepted P outside Flat 21A, and conducted a search of P’s body.

(2) 3 transparent re-sealable plastic bags containing suspected dangerous drugs were found in the right front pocket of the long sport trousers that P was wearing at the time (“Trousers A”). The contents of these plastic bags were later confirmed by Government Chemist to contain a total of 55.27g of methamphetamine hydrochloride (“the Drug”).

(3) P was thereupon arrested and cautioned. Under caution, P said that the Drug was for his own consumption. The Officers then took P into one of the rooms (“Room D”) inside Flat 21A. P claimed that he resided in that room. Inside Room D, dangerous-drug-related paraphernalia were found, and a female (whom P claimed to be his girlfriend) was also inside the room at that time. After searching and carrying out certain routine procedures at the scene, P and the female were brought back to the police station.

3. P does not dispute that he was intercepted and arrested by the Officers outside Flat 21A on 15 May 2014. In his pleadings and witness statements filed in these proceedings, he denies any dangerous drug being found on his body at the time of the arrest, and he also denies any drug-related paraphernalia being found inside Room D on that date.

4. The crux of P’s case is that Trousers A did not have any pocket, and hence it would not be possible for the Officers to find anything inside the right front pocket of the Trousers. According to P, the Officers have fabricated evidence to frame him up (“the alleged fabrication”).

5. P did not make any bail application when he appeared in the magistrates’ courts on 11 July 2014[3] and on 15 July 2014. P first applied for bail on 22 August 2014[4] when he appeared in a magistrate’s court but the application was refused. In all these court hearings, P did not raise the alleged fabrication.

6. P first raised the alleged fabrication on 5 September 2014, when he appeared in the Eastern Magistracy for the committal proceedings. P’s application for bail in that hearing was refused, and P through his legal representatives consented to the case being committed to the Court of First Instance for trial without holding a preliminary inquiry.

7. Subsequently, P applied to the Court of First Instance for bail on 15 September 2014 and 8 October 2014, but both attempts were unsuccessful. P remained in custody in the Lai Chi Kok Reception Centre (“LCKRC”) until his acquittal on 25 August 2015.

8. A pair of trousers was produced as evidence in the trial in HCCC 383/2014[5]. That pair of trousers no longer had any pocket. The pouches of the trousers had been cut off, and all the openings had been sewn up. P was represented by counsel in the criminal trial. P’s counsel did not make an application for no case to answer. The trial judge saw fit to leave the case to the jury to decide. P elected not to give any evidence. After hearing all the evidence and the submissions, the jury unanimously found that P was not guilty as charged[6].”

The plaintiff’s claim as pleaded

4.  After his acquittal, the plaintiff commenced this action for malicious prosecution on 28 October 2016. The defendant named in the writ was “The Secretary for Justice (on behalf of The Commissioner of Police)”. On 13 June 2019, the writ was amended as regards the name of the defendant by deleting the words in brackets. A re-amended statement of claim (“RASOC”) was filed on the same day and the relevant parts read as follows:

“6. It is the Plaintiff’s case in the criminal proceedings that:-

(a) The Plaintiff never possessed the Three Packets of Ice, the Green Glass Bottle, the Transparent Plastic Bag and the Scale;

(b) He had never made any confession saying that ‘the dangerous drugs is for my own consumption’;

(c) The pockets that were originally in the Trousers, including the right front pocket were cut away and the openings were sewn together before 15 May 2014; and

(d) There were simply no pockets and no pouches in the Trousers on 15 May 2014.

7. Government laboratory found that:-

(a) There was no fingerprint or fibre of the Trousers on the Three Packets of Ice;

(b) There was no dangerous drugs residue on the Trousers;

(c) There was no control substance contained in the liquid inside the Green Glass Bottle;

(d) There was no DNA and fingerprint on the Green Glass Bottle; and

(e) There is no fingerprint found on the Scale and on the Transparent Plastic Bag.

……

Malicious Prosecution

10. The police had fabricated evidence and framed the Plaintiff up, wrongfully arrested him and malicious [sic] prosecuted him, particulars as follows:-

Particulars

(a) The Plaintiff was returning to the Premise at around 10:22 a.m. on 15 May 2014;

(b) The police intercepted the Plaintiff when the Plaintiff pulled out his key to open the door of Flat 21A. The police took away the keys;

(c) The Plaintiff was taken by the police to the Rear Staircase. The police asked the Plaintiff to open his shoulder bag and the police took a look inside, seeing some money;

(d) The Police then took the Plaintiff back to 2^nd Floor of Hang On Mansion, Sau Mau Ping. The Plaintiff found the door of Flat 21A had already been opened. The Plaintiff was taken inside Flat 21A and to the hallway leading to the Premise. The Plaintiff found the door of the Premise had already been open. His serious girlfriend was sitting on the sofa inside the Premise;

(e) Two policemen in the hallway showed the Plaintiff a bag containing various items such as the Scale;

(f) The Police then demanded the Plaintiff to admit possession of dangerous drugs and threatened the Plaintiff that if he did not make admission, they would arrest the Plaintiff’s girlfriend. The Plaintiff refused to make admission;

(g) The Police then searched the Premise. Nothing extraordinary was found during the search in the Plaintiff’s presence;

(h) The Plaintiff was never in possession of the Three Packets of Ice, the Green Glass Bottle, the Transparent Plastic Bag and the Scale;

(i) The Three Packets of Ice could not have been found inside any pockets of the Trousers as alleged by the Police and the Prosecution because the Trousers simply had no real pockets and no pouches at the material times;

(j) The pockets that were originally in the Trousers, including the right front pocket were cut away and the openings were sewn together well before 15 May 2014;

(k) The Green Glass Bottle, the Transparent Plastic Bag and the Scale were never inside the Premise;

(l) The search warrant that the police obtained targeted the entire Flat 21A, not just a specific room or against a specific person. But the police only searched the Plaintiff and the Premise; and

(m) The Police arrested the Plaintiff, charged him and later gave evidence in the criminal proceedings against the Plaintiff.

11. The Plaintiff raised the issue as pleaded in paragraph 10(i) herein as early as 5 September 2014 to a Magistrate at the Eastern Magistrates’ Courts during a hearing after the committal bundle had been served on him and he had found out the police’s allegations against him in details on the case papers contained in the committal bundle.

12. Notwithstanding that under the Prosecution Code a prosecutor must be satisfied that the evidence demonstrates a reasonable prospect of conviction and must take into account the rights of the accused including the right to freedom under Article 5 of the Hong Kong Bill of Rights Ordinance, Cap. 383 in determining whether to continue a prosecution, the prosecution nonetheless decided to continue to prosecute the Plaintiff and object to the Plaintiff’s bail applications despite the fact that they were aware of the said issue as pleaded in paragraph 10(i) above which had been raised by the Plaintiff to the Magistrate.

12A. Further, the Police continuously gave untrue evidence in the criminal proceedings against the Plaintiff despite the fact that they were aware of the matters pleaded in paragraphs 6 and 7 herein.

13. The police fabricated the evidence against the Plaintiff. The conduct as particularized in paragraphs 10 to 12A of the above amounts to an abuse of process of the court by wrongfully setting the law in motion without any reasonable and probable cause.

14. The conduct of the police as particularized in paragraphs 10 to 13 specifically intended to injure and harm the Plaintiff and/or the police acted intentionally being aware that it would in the ordinary course directly cause loss and harm to the Plaintiff which is the type of loss and harm complained hereof. The criminal proceedings was instituted and/or carried on maliciously causing the Plaintiff to be wrongfully detained for 468 days and suffers monetary and other loss.

15. The police was clearly acting within the scope of their employment as servants of the Government. The Government is therefore vicariously liable to the police’s conduct.”

5.  The defence filed by the SJ denied the alleged fabrication and averred that the Drug was found in the right front pocket of the trousers worn by the plaintiff when he was arrested. Further, it was averred that on 17 October 2014, DPC 8503 (Chan Wai Hang; “Chan”) seized a pair of blue trousers from LCKRC and the logical inference is that the trousers had been tampered with and/or replaced in circumstances unknown to the police and/or the prosecution prior to the seizure. The allegations of malicious prosecution in §§10(a) to (l) of RASOC were denied.

The Judgment

6.  To succeed in an action of malicious prosecution, the plaintiff must prove four elements and the burden of proving each of the elements is on him. The four elements are[7]:

(1)  he was prosecuted by the defendant;

(2)  the prosecution was determined in his favour;

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

(4)  the prosecution was malicious; to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique motive” and that improper purpose must be the sole or dominant purpose actuating the prosecutor[8].

7.  There is no dispute about the 2^nd element.

8.  In respect of the 1^st element, the judge took the view that on the plaintiff’s pleaded case, the plaintiff “is not saying that the police or the Officers are the prosecutor”. He noted that the plaintiff has also made allegations against the prosecution, and has named the SJ as the defendant in these proceedings. He held that the plaintiff “is saying that the SJ is the prosecutor in [his] claim founded on malicious prosecution” and “has pleaded a case of malicious prosecution against the SJ”[9].

9.  The judge considered the evidence[10] in respect of the 3^rd and 4^th elements. He referred to the following evidence given by the plaintiff concerning the trousers:

“26. In his evidence, P said that some time before the incident on 15 May 2014, he bought 3 pairs of trousers at a low price. The 3 pair of trousers were of the same style and of two different colours. All these trousers had pockets. After wearing them for a few times, the pockets were torn. At one time, his part-time domestic helper discovered that the pockets in one pair of trousers were torn and took the initiative to repair the trousers. The domestic helper took away the trousers and returned the trousers to P at a later time. When the domestic helper gave the trousers back to P, P saw that all the pockets had been cut away. On 15 May 2014, he wore this pair of trousers to go out to have breakfast and to do some grocery shopping. When he returned to Flat 21A, he was intercepted and arrested by the police. At that time, he was wearing a pair of trousers with no pocket.”

“28. P has made 2 significant admissions[11] against his interest in his evidence:

(1) The New Trousers Episode

Under cross-examination, P mentioned the following out of his own motion. He said that on 15 May 2014, after being arrested by the police outside Flat 21A, the police took him into Room D. Inside Room D, a police officer[12] suggested to him that he should have a shower and get changed. P did so. After having a shower and after changing his clothing (including his trousers), the police officers took him to the police station. The pair of trousers worn by him when he left Flat 21A was not Trousers A[13] but was another pair of trousers (“Trousers B”).”[14]

10.  Chan maintained in his evidence that when he intercepted and searched the plaintiff outside Flat 21A, the plaintiff was wearing a pair of trousers with pockets. When he seized a pair of trousers in LCKRC on 17 October 2014, he realized that all the pockets had been cut away and this pair of trousers no longer had any pockets, although this pair was of the same style and colour as the trousers worn by the plaintiff at the time of arrest. In cross-examination, the plaintiff put to Chan that inside Room D, a police officer suggested to the plaintiff that the plaintiff should take a shower and get changed and the plaintiff did so. Chan disagreed[15].

11.  The plaintiff also put to PC 13455 (Ng Chi Wai; “Ng”), who intercepted the plaintiff together with Chan, these two matters: the Drug was not found from the right front pocket of his trousers and the New Trousers Episode. Ng disagreed[16].

12.  The judge found the plaintiff’s evidence untruthful on various material aspects set out in §§27(a) to (g) of the Judgment. He refused to accept the plaintiff’s evidence save for the two admissions (one being the New Trousers Episode) made against the plaintiff’s own interest and decided to attach “full weight” to the admissions[17]. Despite the denials of Chan and Ng of the New Trousers Episode, the judge found that this incident did occur. He took the view that the event occurred more than six years before the trial of the civil action, that the police officers would have handled many cases over the past six years, and that in the absence of written record it would not be possible for them to remember every detail of what happened on 15 May 2014. He accepted the evidence of Chan and Ng save for their denials of the New Trousers Episode[18].

13.  The judge went on to find that as the New Trousers Episode did occur, the pair of trousers worn by the plaintiff when he was taken to the police station on 15 May 2014 was not the pair of trousers worn by him when he was intercepted and searched by the police outside Flat 21A on that day. He then made these crucial findings: (1) Trousers A (the pair worn at the time of arrest) had pockets; (2) when the plaintiff was intercepted and searched by the police outside Flat 21A, the police did find the Drug from the right front pocket of Trousers A worn by the plaintiff; and (3) the pair of trousers produced as an exhibit at the criminal trial was Trousers B, a different pair of trousers with all the pockets cut off and sewn up[19]. He ruled that the alleged fabrication, which is the root of the plaintiff’s claim, is untrue[20].

14.  In light of the above findings and by reason of the New Trousers Episode, the judge held that the plaintiff’s claim based on malicious prosecution cannot succeed in any event, as it would not be fair and just to hold the defendant liable under those circumstances. The judge referred to this extract in Clerk & Lindsell under the heading of “Guilt of claimant”, which reads as follows:

“It has been said that if, in an action of malicious prosecution, it be found as a fact that the claimant was guilty of the offence charged, the absence of reasonable and probable cause is thereby negated even though the defendant did not believe him guilty. On the other hand, where the jury found in effect that the claimant had been guilty of obtaining money by false pretences, but that the defendant at the time when he prosecuted did not believe that the claimant had intended to defraud, the judge directed a verdict for the claimant. Although this seems more in accordance with the principle that reasonable and probable cause depends, not on the actual facts, but upon the facts of which the prosecutor had knowledge or believed on reasonable grounds to exist, it is obvious that a claimant whom the jury considers really guilty, even if he is entitled to a bare verdict, cannot well be entitled to more. …”[21]

15.  Even putting aside the New Trousers Episode, the judge found that the plaintiff has failed to establish the 3^rd element (absence of reasonable and probable cause to prosecute) and the 4^th element (malice) and the action must fail on liability. His reasoning was as follows:

“50. Even putting aside the New Trousers Episode, I am of the view that the decision to prosecute P for trafficking in a dangerous drug cannot be said as having no reasonable and probable cause and cannot be said as a decision with malice. There has been clear evidence from the police officers that the 3 packets of substance were found inside the right front pockets of P’s trousers when P was intercepted and searched by the police. When P was brought to the police station on 15 May 2014, the pair of trousers worn by P was not immediately seized by the police. The pair of trousers was only seized as an exhibit by the police inside LCKRC on 17 October 2014. All the pockets of the pair of trousers seized by the police had been cut off and the openings were all sewn up. The prosecution was of the view that the police’s evidence was true, and the trousers had been somehow tempered while P was detained inside LCKRC. Obviously, the prosecution took the view that the correctness of this prosecution theory should be a matter to be determined by the criminal court.

51. In my view, while the evidence gathered by the prosecution before the criminal trial may not be sufficient to secure a criminal conviction, it cannot be said that the evidence does not show a prima facie case against P. The fact that all the pockets of the trousers seized by the police in LCKRC on 17 October 2014 had been cut off and all the openings had been sewn up is something requiring an explanation. That there is a prima facie case against P in the criminal trial is supported by the fact that the counsel representing P in the criminal trial did not apply for no case to answer after the close of the prosecution case. In the light of all these, it cannot be said that the prosecution did not have an honest belief that there was a proper case to lay before the criminal court. It also cannot be said that the dominant purpose of the prosecution was a purpose other than the proper invocation of the criminal law. I do not regard the decision to prosecute P for trafficking in a dangerous drug is a decision without reasonable and probable cause and with malice.”

The New Trousers Episode and related findings

16.  Of the four grounds of appeal raised by the plaintiff, it is necessary to deal with only his first ground.

17.  The plaintiff attacked the finding that “The trousers identified by Chan in the criminal trial were the trousers seized by him in LCKRC”[22]. He submitted that this finding is contrary to Chan’s evidence in the criminal proceedings that the trousers produced as an exhibit were the trousers worn by the plaintiff when he was arrested. He referred to the summing up of Barnes J at the criminal trial, which read as follows[23]:

“There is no question of there are two identical pairs of pants, this one[24] is now a different pair. The arresting officer agreed and testified before you that was the very pair, some [same] pair that the defendant was wearing. He just said that at the time there were pockets. He could not understand why the pockets are not there now.”

18.  Mr Simon Lam, who appeared for the SJ on appeal and below, submitted there is a material difference in the evidence given at the criminal trial and the civil action. It is correct that at the criminal trial, Chan did testify there was a difference between the trousers worn by the plaintiff at the time he was intercepted and the trousers seized in LCKRC five months later in that all the pockets of the trousers seized had been cut off and sewn up. However, in the civil action, new evidence emerged being the plaintiff’s admission in cross-examination of the New Trousers Episode, that he had two pairs of trousers of the same style and colour and one had all the pockets cut off and sewn up, and that he had showered and changed his trousers at the suggestion of the police before he was taken to the police station. The judge accepted this evidence of the plaintiff and found that the trousers seized by the police (which the plaintiff had changed into after his arrest, with all the pockets cut off and sewn up) were not the trousers he wore when he was intercepted (which had pockets).

19.  The judge declined to find on the evidence that the trousers had been tampered with or replaced in circumstances unknown to the police and/or the prosecution prior to the seizure of the trousers five months after the arrest, as pleaded in the defence of the SJ. He was at pains to find a reasonable explanation why the pair of trousers produced in the criminal trial was different from the trousers worn by the plaintiff at the time of the arrest. He found that the New Trousers Episode provided a reasonable explanation[25], notwithstanding the denials of Chan and Ng of this incident.

20.  The judge’s findings on the New Trousers Episode and related findings are findings of fact. The appeal court will only interfere with such findings where it can be shown that the trial judge palpably erred in making a finding not supported by any evidence, misunderstanding the evidence, failing to take account of relevant evidence or taking irrelevant matters into account, or that the finding is plainly wrong (United Muslim Association of Hong Kong v Yusuf Yu [2018] 4 HKLRD 22 at §39). Although the transcript of the criminal trial was placed before the judge, and he had read the transcript[26], his attention was not drawn by either side (and the judge seems to have failed to consider) to the evidence of Chan and Ng regarding two searches of the plaintiff conducted by Chan at Kwai Chung Police Station on 15 and 16 May 2014.

21.  Chan made a witness statement in this action adopting the statement he gave on 16 May 2014, which was annexed to his witness statement. In the annexed statement, he stated that on 15 May 2014 at 14:40 hours, he with Ng and PC 8554 (Mok Ting Chung; “Mok”) brought the plaintiff from Sau Mau Ping Police Station to Kwai Chung Police Station. At 15:14 to 15:19 hours, inside a search room in the report room of Kwai Chung Police Station, Chan conducted a “1^st category search” (一級搜查) on the plaintiff in the presence of Mok, and did not find any illegal item. On 16 May 2014 at 01:55 hours, Chan, Ng and other police officers again brought the plaintiff from Sau Mau Ping Police Station to Kwai Chung Police Station. At 02:37 to 02:41 hours, inside a search room in Kwai Chung Police Station, Chan conducted a “2^nd category search” (二級搜查) on the plaintiff in the presence of Ng, and did not find any illegal item.

22.  Mok and Ng made witness statements in this action and annexed their statements dated 16 May 2014, which they adopted as their evidence. Mok confirmed that he witnessed Chan’s search of the plaintiff at Kwai Chung Police Station on 15 May 2014 as described by Chan and Ng did likewise in respect of the search the following day.

23.  At the criminal trial, Chan gave evidence concerning the searches at Kwai Chung Police Station in this manner[27].

24.  In respect of the first search on 15 May 2014[28]:

“A. I conducted the search.

Q. All right. And was that in a special room designated for searching?

A. Yes, inside a search room in the Kwai Chung Police Station. Inside the report room of the Kwai Chung Police Station.

Q. All right, and it’s right to say nothing further incriminating or suspicious was found?

A. That’s right.

Q. Just help us about this: was he still wearing the trousers that he’d been wearing when you first came across him?

A. Yes.

Q. This is our P27 of course, now before the court. Would that search have involved the trousers again? That search when you were at Kwai Chung Police Station?

A. Yes.

Q. Would it have involved you putting your hand in the pocket of the trousers?

A. Yes.

Q. And at that time, did you have any difficulty putting your hand in the pockets of the trousers, or not?

A. No.

Q. All right.

COURT: Were you able to put the whole hand in the pocket, or just part of the fingers, or what? Each pocket. I assume you have taken - - right, for each pocket. Just one by one.

A. In respect of all the pockets, I was able to put my whole hand inside the pocket.

…

COURT: Can I just see your hand? Just - - right, so not particularly big, right. Yes, I think the members of the jury can see his hand. So the whole hand can go in, yes.”

25.  For the second search on 16 May 2014[29]:

“Q. As I said, you took him back, having done those procedures with regard to the exhibits with the exhibits officer and I think other officers, you then returned to Kwai Chung Police Station?

A. Correct.

Q. And it seems that, yet again, you were under the rules and procedures, you had to issue another search form, a body search form, once you were back at Kwai Chung, is that right?

A. Correct.

Q. And did you, having dealt with that, did you then yourself conduct yet another search on the defendant?

A. Correct.

Q. Was he still wearing the same trousers that we’ve been referring to, please, our trousers P27, the dark blue trousers?

A. Yes.

Q. And, again, at the time of the search, what do you say about the pockets, please, of those trousers? What do you have to say about those?

A. Those pockets still existed.

Q. All right. To what extent did you put your hand on, near or inside the pockets on that side?

A. I put my hand into the pockets of that pair of trousers.

Q. You had said earlier that there were in fact three pockets, two front and one rear. Is that right?

A. Correct.

Q. Do you remember, and again, please don’t guess at it, would you have put your hand into each of the pockets?

A. Yes.”

26.  Barnes J summarised the evidence from the police concerning the plaintiff’s trousers in her summing up to the jury in this way[30]:

“Now, you will have to consider all the evidence and decide whether the pair of trousers worn by the defendant on 15 May 2014 was the same, in the same state as it was when it was taken into custody by the AO [arresting officer] when he went to Lai Chi Kok to collect it in October last year and then shown to you in court. You will have to consider whether they were the same or whether something had done to it in the meantime.

You will have to consider whether originally it appeared to have pockets but in fact there were no pockets, no pouches, or there were real pockets in which the officer, the arresting officer could put his hand in. As he said, he put his hand in in order to get the three packets out. He searched the defendant twice in the Kwai Chung Police Station. Each time after coming back to the Sau Mau Ping Police Station, in the search room, each time he put his hand into each pocket: the front, the right front, the left front and the back pocket. So there was no question about it. From the arresting officer’s evidence, it is very clear the pockets were there. He could put his hand in.

But is that what happened, really that there were pockets? But somehow after the defendant was taken into custody, those pockets disappeared, had been cut away, quite clearly had been cut away and sewn together. … So you will have to consider is that possible? How could that have been possible? …”

“So if it is not possible for him to either alter the pants himself or have someone alter it and somehow bring it back to him so that he can now come to court and say, ‘Look, there are no pockets in my pants,’ then your conclusion could only be there were just no real pockets in the first place; that the pants were the same as he was wearing.

If there is what you are satisfied with, the police must be lying that the drugs were not inside the pocket, but somehow they thought that they were real pockets, so they just say it, but in fact they were not. And then they made up all this about - - the arresting officer made up all this whole hand putting into the pocket, inserting into it three times, the first time during the search of the drugs, the second time in Kwai Chung after they first came back from Sau Mau Ping, third time, again in Kwai Chung, after going to Sau Mau Ping in the middle of the night in order to do the sealing of the dangerous drugs; three times.”

27.  The two searches of the plaintiff at Kwai Chung Police Station are clearly material evidence that should be taken into account in assessing and weighing the evidence before the judge was to make any finding about the New Trousers Episode and about the general credibility of the police officers. The credibility of the police witnesses is particularly important to the finding regarding the alleged fabrication, which formed the basis of the plaintiff’s claim and which the judge found to be untrue. The evidence of Chan at the criminal trial regarding the searches at Kwai Chung Police Station (and the evidence of Ng and Mok, who supported Chan as would appear from their statements of 16 May 2014), is clearly at odds with the judge’s finding that the plaintiff had changed into trousers with no pockets before he was taken to the police station. The police officers all made their statements on 16 May 2014, and gave evidence at the criminal trial just over a year after the plaintiff’s arrest. The judge would need to consider whether there could be honest mistake due to the lapse of time or whether it was a deliberate lie.

28.  For the above reasons, the judge’s finding of the New Trousers Episode and related findings cannot stand. Accordingly, we decided to remit the case to another judge of the Court of First Instance for retrial.

The pleaded case regarding the prosecutor for the purpose of the 1^st element

29.  The omission to consider material evidence is not the only error that would warrant a retrial. The judge also erred in his understanding of the plaintiff’s pleaded case as regards the prosecutor for the purpose of the 1^st element in the claim for malicious prosecution.

30.  It is well established that a person other than the official prosecuting authority may be a prosecutor for the purposes of the 1^st element in an action for malicious prosecution. The circumstances in which this may occur have been authoritatively established by the House of Lords in Martin v Watson [1996] AC 74 and the legal test has been applied in Hong Kong (see Jae Hoon Oh v Richdale (2006) 9 HKCFAR 649 at §4)[31].

31.  The relevant parts of RASOC have been set out. On a proper reading of RASOC, it is quite clear that the police were alleged to have maliciously prosecuted the plaintiff in that they had fabricated evidence and framed him up, wrongfully arrested and charged him, and gave evidence against him in the criminal proceedings (§§10(a) to (m), 12A, 13, 14 and 15). It was also pleaded that the prosecuting authority, ie the SJ, was aware that the Drug could not have been found inside any pockets of the trousers worn by the plaintiff at the time of arrest, this having been raised by the plaintiff to a magistrate on 5 September 2014, and, despite this awareness, the SJ determined to continue to prosecute the plaintiff and objected to his bail applications and the criminal proceedings were instituted and/or carried on maliciously (§§10(i), 12 and 14).

32.  It might be that the judge was under the misapprehension that the plaintiff had dropped his claim against the police as the prosecutor in causing the writ of summons to be amended. The judge mentioned specifically that when the plaintiff commenced the proceedings, the defendant named was “The Secretary for Justice (on behalf of The Commissioner of Police)” and “changed the identity of the defendant to ‘The Secretary for Justice’ ” with the amendment of the writ[32]. He stated that with this amendment of identity and as the SJ has the authority to control all the criminal prosecutions in Hong Kong, it would be correct and proper to name the SJ as the defendant in this claim for malicious prosecution[33].

33.  The amendment of the defendant’s name in the writ of summons could be explained, though not for the reason as postulated by the judge. Prior to the amendment of the writ and the re-amendment of the statement of claim, the plaintiff pleaded a claim of malicious prosecution against the police as the prosecutor. Hence, the defendant in the writ was “The Secretary for Justice (on behalf of The Commissioner of Police)”. The purpose of amending the defendant’s name by deleting “(on behalf of The Commissioner of Police)” was to make clear that the SJ was sued not just “on behalf of The Commissioner of Police” but was sued also in his own capacity as the head of the prosecution authority. RASOC was filed at the same time the amended writ was filed. Notably, none of the allegations against the police were dropped in RASOC. An additional allegation was pleaded in §12 of RASOC that the prosecution authority decided to continue with the prosecution notwithstanding the requirement in the Prosecution Code that a prosecutor must be satisfied that the evidence demonstrates a reasonable prospect of conviction and despite their awareness of what the plaintiff raised before a magistrate on 5 September 2014.

34.  As a matter of pleading, the judge is clearly wrong to hold that in RASOC the plaintiff “is not saying that the police or the Officers are the prosecutor” and that the plaintiff “is saying that the SJ is the prosecutor in [the plaintiff’s] claim founded on malicious prosecution”[34]. On the case as pleaded, the allegations as to the identity of the prosecutor are not mutually exclusive.

35.  As a matter of law, it is permissible to bring an action of malicious prosecution in respect of the same prosecution against the investigating authority as the prosecutor in addition to the official prosecuting authority. An example of this is Grier v Chief Constable of the Police Service of Scotland and Grier v The Lord Advocate [2022] CSOH 2. The pursuer first brought an action against the Chief Constable for malicious prosecution alleging wrongdoings in the police investigation and later raised an action against the Lord Advocate alleging failure to carry out a proper case analysis and complicity in the police wrongdoings and the two actions were heard together. This authority was decided after the Judgment and hence not cited to the judge.

36.  The judge took an erroneous view of the plaintiff’s claim as pleaded and assessed the evidence on the 3^rd and 4^th elements of malicious prosecution solely on the basis of a claim against the SJ as the prosecutor. He failed to consider the 3^rd and 4^th elements with regard to the claim against the police as the prosecutor. His approach is flawed and plainly wrong. The holding that the plaintiff’s claim must be dismissed for failing to establish these elements cannot be upheld. This is an additional reason for a retrial before another judge.

The 3^rd and 4^th elements in the claim for malicious prosecution

37.  In the retrial, the court would need to consider the 3^rd and 4^th elements with regard to the separate cases against the police as the prosecutor and against the SJ as the prosecutor.

38.  As this action is to be retried, it is not necessary for us to determine the correct legal principles in establishing the 3^rd element (without reasonable and probable cause) and the 4^th element (malice).

39.  We would only mention there is a divergence in approach in the context of public prosecutions between Miazga v Kvello [2009] 3 RCS 339, a decision of the Supreme Court of Canada, and the other authorities. It is well established that the reasonable and probable cause requirement for instituting a prosecution has both a subjective and an objective component[35]. The Supreme Court of Canada considered the question whether the inquiry into the prosecutor’s subjective state of belief in sufficient cause properly belongs to the third stage of the test where the claim is brought against a public prosecution authority. It was emphasised that the court must be careful not to transpose the principles developed in an era that predates the institution of public prosecutions without making necessary modifications.

40.  These are among the relevant propositions established in Miazga v Kvello:

(1) The reasonable and probable cause inquiry in a public prosecution is not concerned with the prosecutor’s personal views as to the accused’s guilt, but with his or her professional assessment of the legal strength of the case. Given the burden of proof in a criminal trial, belief in “probable” guilt means that the prosecutor believes, based on the existing state of circumstances, that proof beyond a reasonable doubt could be made out in a court of law (§63).

(2) As a matter of logic, the plaintiff, who bears the burden of showing an absence of reasonable and probable cause, can succeed on the 3^rd element by showing either an absence of subjective belief or an absence of objective reasonable grounds (§70).

(3) That the plaintiff should succeed at the third stage upon showing an absence of objective grounds, even though the prosecutor believed they existed, is consistent with the rationale underlying the 3^rd element. A purely subjective belief in a person’s guilt without any basis in actual fact can hardly constitute sufficient justification for initiating a criminal prosecution against the plaintiff (§71).

(4) Conversely, however, the prosecutor’s mere lack of subjective belief in sufficient cause, where reasonable grounds do in fact exist, cannot provide the same determinative answer on the 3^rd element in the context of a public prosecution. The public prosecution authority is duty bound to act solely in the public interest in deciding whether to initiate or continue a prosecution. Where objective reasonable grounds did in fact exist at the relevant time, it cannot be said that the criminal process was wrongfully invoked (§73).

(5) In the context of a public prosecution, the 3^rd element necessarily turns on an objective assessment of the existence of sufficient cause (§73). The objective existence or absence of grounds is a question of law to be decided by the judge (§74). In carrying out the objective assessment, care must be taken in retroactively reviewing the facts actually known to the prosecutor at the relevant time when the decision to initiate or continue the proceeding was made (§76).

(6) The presence or absence of the prosecutor’s subjective belief in sufficient cause is nonetheless a relevant factor on the 4^th element, the inquiry into malice (§73). This is a question of fact requiring evidence that the prosecutor was impelled by an improper purpose inconsistent with his office (§78). It follows that if the prosecutor initiated or continued the prosecution based on an honest, albeit mistaken, professional belief that reasonable and probable cause did in fact exist, he or she will have acted for the proper purpose of carrying the law into effect and the action must fail (§79)[36].

(7) The inverse proposition is not true. The absence of a subjective belief in sufficient grounds, while a relevant factor, does not equate with malice, as the prosecutor’s failure to fulfil his or her proper role may be the result of inexperience, incompetence, negligence or even gross negligence. Malice requires the plaintiff to prove that the prosecutor wilfully perverted or abused his office or the process of criminal justice (§§80, 89) and this requires an assessment of the “totality of all the circumstances” (§85).

41.  We would add that malice may be inferred from recklessness in some instances (Robertson v Keith 1936 SC 29 at 47; Willers v Joyce [2018] AC 779 at §55).

42.  The approach in Miazga v Kvello was followed by Lord Tyre of the Outer House, Court of Session in Grier v Chief Constable of the Police Service of Scotland and Grier v The Lord Advocate (at §71). The position under Scots law is that the 3^rd element is satisfied if it is proved that the prosecution had no objective reasonable and probable cause, without also having to prove that the prosecutor had no subjective belief there was a proper case to lay before the court. On appeal to the Inner House, Court of Session, this statement of the law was not disturbed ([2022] CSIH 57).

Conclusion and orders

43.  For the above reasons, we have allowed the plaintiff’s appeal. The Judgment is set aside and this case is remitted for retrial before another judge of the Court of First Instance. The costs order of the judge is set aside and it is ordered that the costs below be in the cause of the retrial.

44.  As for the costs of this appeal, we have ordered the SJ to pay the plaintiff’s costs, to be taxed if not agreed, such costs to include the costs incurred in respect of the plaintiff’s application for leave to serve a notice of appeal out of time.