RE ROBERT JAMES STAIRMAND

CACV 283/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 283 OF 2009

(ON APPEAL FROM HCAL NO. 137 OF 2009)

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J U D G M E N T

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Hon Ma CJHC :

1.  By a determination made on 16 December 2009, Wright J dismissed the application of the Applicant for leave to institute judicial review proceedings which sought to overturn a decision of Ms Bernadette Woo (Acting Principal Magistrate at Fanling Magistrates’ Court) made in November 2009. The Magistrate’s decision was the refusal to issue a summons (under section 8 of the Magistrates’ Ordinance, Cap. 227), in which the Applicant wished to institute a private prosecution against a detective police constable (“PC Lo”) for, allegedly, false imprisonment and assault.

2.  A number of unsustainable legal points were advanced by the Applicant before Wright J, now no longer pursued before us. The Applicant’s submission is now essentially that the Magistrate’s decision was wrong on the basis that there was sufficiently compelling evidence to justify a summons being issued against PC Lo.

3.  Details of the factual circumstances surrounding the case are contained in the Notice of Application for Leave to Apply for Judicial Review, in the Magistrate’s written Ruling, the Judge’s determination and in the new affirmations filed for the purposes of the present appeal. The Applicant and his wife are embroiled in what he describes as “acrimonious divorce proceedings”. On 11 July last year, his wife contacted the police making a complaint that the Applicant had stolen from their home US$15,000 and a document or some documents relating to the ownership of a property in Vietnam.

4.  On 23 July 2009, the Applicant was arrested on suspicion of having committed the offence of theft. From that date through to 11 September, the Applicant was subjected to a number of interviews by PC Lo. All this formed the basis of the assertion that the Applicant had been unlawfully detained. The assault was said to have taken place when the Applicant was asked to provide fingerprints.

5.  Many allegations are made by the Applicant, but the grounds for his submission that a prosecution could reasonably be established against PC Lo for the two alleged offences, essentially boil down to the following : ‑

(1)	The Applicant was at all times fully cooperative in answering all questions that were asked of him.  At no stage did PC Lo express any doubts over the truthfulness of his answers nor of the materials supplied by him.
(2)	The Applicant also expressed considerable doubts as to the truthfulness and bona fides of his wife, the complainant.  For example, he pointed to the fact that his wife had not been truthful about the extent of her means for the purpose of applying for Legal Aid.  He had told the police to investigate this but, according to him, this was not done.  He also pointed out to the police that the document or documents he was accused of stealing (relating to the Vietnam property) were in fact already disclosed in proceedings in the Family Court (in fact they were provided to him by the wife’s solicitors).
(3)	Yet, despite the above, the police (and specifically PC Lo) arrested him.  He made the point forcefully before us that there was really no need to do that; it was not as if he was being uncooperative or had threatened to leave the police station.
(4)	It is the Applicant’s case that there came a point when no police officer could reasonably have continued to suspect that he had committed the thefts of which he was accused.  Once that point was reached, any requirement on the police’s part to question him further amounted to false imprisonment.
(5)	The above matters demonstrated bad faith on PC Lo’s part.  It was the Applicant’s position that there was never any evidence to justify his arrest for theft, yet he was subjected to questioning over a lengthy period of time.

6.  Given the requirements to be proved before charges of false imprisonment and assault can be established (not to mention the applicability of the criminal standard of proof), I cannot for my part find fault with the decision of the Acting Principal Magistrate. In my view, on the facts before us, the Applicant’s arguments are unsustainable, or in terms of the test laid down in Po Fun Chan v Winnie Cheung[2008] 1 HKLRD 319, the submissions are not reasonably arguable : ‑

(1)	It is true that from the time the Applicant was arrested on 23 July 2009, he maintained his innocence and cast doubts on the genuineness of his wife’s complaint.  However, it is to be noted that the Applicant also argued that the offence of which he was accused, was not an arrestable offence in Hong Kong.  This argument, which was maintained by the Applicant right up to the hearing before Wright J (and used by him to claim that he ought not therefore have been subjected to any police investigations in the first place) is now no longer run before us; it is an unsustainable argument.
(2)	Up to 11 September 2009 (when police investigations stopped), the police (through PC Lo) were investigating the matter and, as can be seen by the correspondence from the Applicant (and his lawyers) and from the statements made by him, the Applicant was asked to (and did) provide answers to the police’s inquiries.  I have read this material.  In my view, they evidence a normal course of police investigations.  Even as late as 7 September 2009 (by a letter from the Applicant to PC Lo of that date), the Applicant was providing information “which I trust may be useful to your investigation”.  It is extremely difficult to see any realistic basis for the assertion that there was bad faith on the police or PC Lo’s part.
(3)	At no stage was there any contemporaneous complaint made by the Applicant that he was being questioned or detained unreasonably, except that it was his erroneous view (now no longer maintained) that the offence with which he was charged, was not a known offence under Hong Kong law.
(4)	The Applicant argued that his intended private prosecution of PC Lo was supported by the fact that eventually, he was not charged with theft (at least so far he has not been so charged).  With respect, this forms no basis by itself to justify any prosecution along the lines suggested by him.

7.  The Magistrate concluded on an examination of the materials before her that there was insufficient evidence to support the complaints made by the Applicant. Wright J agreed and was of the view that leave to institute judicial review proceedings ought therefore not be given.

8.  While we understand the frustration felt by the Applicant (and this was made clear to us in the course of his restrained and realistic submissions before us), we are of the view that the learned judge was entirely correct in his conclusion that the intended judicial review does not demonstrate a reasonable prospect of success. The appeal is accordingly dismissed.

Hon Lunn J :

9.  For the reasons set out in the judgment of Ma CJHC I agree that the appeal must be dismissed.