HCA 890/2020

[2021] HKCFI 2371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 890 OF 2020

____________

BETWEEN
THAPA KAMALA Plaintiff

and

TONG MING-KAY (PC4374) 1st Defendant

CHEUNG SIU WA 2nd Defendant
FRANCIS HADDON-CAVE 3rd Defendant
KWAN, STEVEN M.W. (關⽂渭) 4th Defendant
TERESA CHENG, 5th Defendant
SECRETARY FOR JUSTICE

____________

Before: Hon Au-Yeung J in Chambers

Date of 16 April 2021
Hearing:
Date of 16 August 2021
Decision:

_____________

DECISION

_____________
 Index Paragraph
A. Introduction 1
B. Undisputed facts 6
C. The pleaded case 16
D. Legal principles 24
E. Abuse of process 36
F. Judicial review 42
G. Malicious prosecution 43
H. Misfeasance in public office 122
I. Conclusion 125

A. INTRODUCTION

1. The plaintiff (“TK”) was the defendant in a summons for negligently

endangering her safety (“Traffic Summons”). She was tried before a Special
Magistrate for over 90 days, spread over 21 months. The procedural history was
chequered. In the course of the trial, there were 2 judicial reviews initiated by TK
against the Special Magistrate and 2 applications for her recusal. There was a case
for TK to answer but she was eventually acquitted. The Special Magistrate took
another 12 months to come to a decision refusing to grant costs to TK, finding that
TK had brought suspicion to bear upon herself.

2. By a writ of summons issued on 4 June 2020, TK sues:

(1) The investigating officer of the accident (D1), the Station Sergeant
who laid information before the Magistrates’ Court to commence
prosecution of TK (D2) and the Secretary for Justice (“SJ”, D5). D1 &
D2 shall collectively be referred to as the “Police Officers”. These 3
Defendants are represented by Ms Siu.

(2) Counsel-on-Fiat, ie Mr Haddon-Cave (D3) and Mr Kwan (D4),

who were engaged one after another for the Criminal Trial. They are
represented by Mr Pang SC and Mr Yau.
3. It is TK’s case that the Defendants and one Dr Tam (forensic scientist who gave
evidence for the prosecution) had maliciously prosecuted her; and the Police
Officers and Counsel-on-Fiat committed misfeasance in public office. TK claims
that SJ, on behalf of the HKSAR, is vicariously liable for the torts committed by
the other 4 Defendants and Dr Tam.

4. SJ’s group of Defendants and the Counsel-on-Fiat have applied, by 2 separate

summonses, to strike out TK’s pleading and to have the claim dismissed on the
grounds that:

(1) It is an abuse of the process of the Court to mount a collateral

attack on an earlier decision made by another court of competent
jurisdiction, which was a final decision that has not been set aside on
review or appeal;

(2) It is also an abuse of process to seek to challenge a public law

decision of SJ to refuse to terminate the prosecution against TK in a civil
action, bypassing the strict requirements for judicial review;

(3) In respect of the claim in malicious prosecution,

(a) The Police Officers and Counsel-on-Fiat were not

prosecutors for the purpose of this tort;

(b) There was reasonable and probable cause for prosecution

and there were no pleaded circumstances which would have
required the termination of the Criminal Trial;

(c) The allegations of malice are without foundation and are

insufficient to give rise to malice; and

(d) There was no damage disclosed which were known to or

foreseen by the prosecution or the Counsel-on-Fiat.

(4) In respect of the claim in misfeasance in public office,

(a) Counsel-on-Fiat were not public officers;

(b) There was no abuse/excess of power on the part of the

Counsel-on-Fiat; and
 (c) The evidence demonstrated a reasonable prospect of
conviction and there was no malice disclosed.

5. On the other hand, TK has applied for re-amendments to her statement of

claim. The parties have proceeded to argue the strike-out summonses on the basis
of the draft re-amended statement of claim (“DRASOC”). Accordingly, if the
DRASOC is not struck out, there will be leave to amend.

B. UNDISPUTED FACTS

6. At about 7:45 pm on 25 April 2016, the Subject Taxi was travelling along the
northbound Tai Tam Road. The centre of Tai Tam Road was divided by a solid
white line on the northbound side of the road and a broken white line on the
southbound side of the road.

7. An unknown taxi had stopped on the southbound Tai Tam Road outside
American Club. Upon walking past the rear end of the unknown taxi, TK stepped
out of the northbound carriageway. As a result, the offside front corner of the
Subject Taxi rammed into her. TK sustained injuries and was hospitalized for 2
months.

8. A CCTV camera of American Club recorded the accident. The average speed
of the Subject Taxi for the section captured by the CCTV was found to be 49+1-5
km/HKSAR, when the speed limit was 50 km/hr. However, the collision was
blocked by a stationary vehicle, such that it was not clear if the accident happened
on the north- or south-bound lane.

9. The prosecution’s case was that TK, in walking past the rear end of the
unknown taxi, failed to exercise due care and attention to the presence and
approach of the Subject Taxi at her nearside.

10. The Traffic Summons first came before a Magistrate, Mr Kenneth PC Chan,
on 5 June 2017. On reading the brief facts of the case, the learned Magistrate
noted that TK was a victim of the accident who suffered serious injuries and was
hospitalized for about 2 months. He pointed out that the maximum penalty for the
offence was a fine at $2,000 and queried whether it was of public interest to
prosecute TK. The matter was adjourned for 4 weeks for the prosecution to
consider an alternative way of disposal.
11. Despite the sensible view of Magistrate Chan and a letter from How & Co
(TK’s solicitors) dated 19 June 2017 requesting the prosecution to withdraw the
Traffic Summons, the prosecution insisted on proceeding. The salient events
during the Criminal Trial were as follows:

10.1.2018 Criminal Trial commenced before the Special

Magistrate. Mr Haddon-Cave was Counsel-on-
Fiat.
27.9.2018 Mr Kwan took over as Counsel-on-Fiat when
Mr Haddon-Cave retired.
19.12.2018 How & Co wrote the second time, this time to Mr
Kwan, asking the latter to “stop the proceedings”
(“How & Co’s Letter”).
21.12.2018 Chief Court Prosecutor on behalf of DoJ refused to
withdraw the Traffic Summons, after having
“considered [TK’s] representations, the available
evidence and the circumstances of the case
including the considerations set out in the
‘Prosecution Code’.” (“CCP Decision”)
2.1.2019 Galbraith Ruling that TK had a case to answer.
14.10.2019 Special Magistrate acquitted TK but observed that
in choosing not to use the pedestrian crossing but
to cross the road at the back of a car while her view
to the left was blocked, TK was very unwise and
brought suspicion upon herself.
6.10.2020 Special Magistrate declined to grant TK costs and
ordered TK’s solicitor and counsel to bear wasted
costs.

12. The evidence adduced at the Criminal Trial comprised of a set of Agreed
Facts and 8 witnesses’ evidence.
 (1) On the prosecution’s side, there were the taxi driver, D1, and
Dr Tam who reconstructed the accident with the CCTV footage, to
determine the speed of the taxi.

(2) On TK’s side, there were (i) TK, (ii) Mr Lo who was to give
evidence to rebut Dr Tam’s evidence but was disallowed by the Special
Magistrate on the ground, amongst others, that Mr Lo “lacked clarity of
mind”, (iii) Dr Tang (land surveyor who gave evidence as to the angle
drop of the CCTV camera), (iv) Mr Johnston (expert on traffic
accidents) and (v) Mr Yu.

13. In the course of the trial, there had been 2 judicial reviews initiated by TK
against the Special Magistrate’s rulings. In the judgment of the second judicial
review (Thapa Kamala v SJ [2019] 4 HKLRD 304), Chow J (as he then was)
commented that the offence was a trivial one, but the trial lasting 89 court days (up
to then) could only be described as “extravagant in the extreme”, which amounted
to a completely disproportionate use of judicial resources and brought the
administration of criminal justice in Hong Kong into disrepute.

14. On 4 June 2020, the Plaintiff commenced the present action.

15. The above background illustrated the foresight of Magistrate Chan; the apt
comments of Chow J; the lack of proper case management, and lack of a sense of
proportionality on the part of the Special Magistrate, the prosecution and the
Counsel-on-Fiat in conducting the Criminal Trial. Much public funds had been
incurred. There was little public justice achieved in prosecuting TK. But are
these sufficient to found a case of malicious prosecution and misfeasance in public
office?

C. THE PLEADED CASE

16. As against the Police Officers, the allegations are that they, without reasonable
and probable cause and with malice or ill will (DRASOC, §29), did the following
acts to prosecute her:
 (1) D1 recorded that “after [TK] stepped onto the southbound lane [of
Tai Tam Road], she suddenly dashed onto the northbound lane thus was
hit”, but the CCTV footage did not show that TK had ever stepped onto
the northbound lane or dashed onto the road (DRASOC, §16) (“PO
allegation 1”);

(2) D1 attempted to obtain a cautioned statement from TK, treating

her as a suspect of crime when there was no evidence which pointed to
any criminal offence committed by her; (DRASOC, §19) (“PO
allegation 2”);

(3) D1 obtained another statement from the taxi driver, in an attempt

to elicit evidence for the purpose of supporting the intended wrongful
and malicious prosecution against TK; (DRASOC, §23) (“PO
allegation 3”);

(4) D1, in breach of his duty to investigate impartially/ recklessly

indifferent as to whether TK would suffer any injury, did not investigate
the taxi driver but continued to interrogate TK; (DRASOC, §§22, 24-25)
(“PO allegation 4”);

(5) D1 and/or D2 did not have honest belief or were recklessly

indifferent as to whether the evidence of the taxi driver would be
accepted by any court (DRASOC, §§26-27) (“PO allegation 5”);

(6) D2 laid information before the Magistrate that TK, being

a pedestrian at the northbound lane, endangered her own safety, when
there was no evidence that TK was at the northbound lane (DRASOC,
§28) (“PO allegation 6”).

17. In doing so, the Police Officers committed misfeasance in public office
(DRASOC, §§30-34).

18. As against Dr Tam, TK alleges that the prosecution maliciously and without
probable cause instructed him. Dr Tam gave “uninstructed opinion”, unsupported
by evidence, which was plainly wrong and misleading to the Court. Dr Tam knew
or had no honest belief or was recklessly indifferent as the falsity of the
uninstructed opinions (DRASOC, §§42-47).
19. As against the Counsel-on-Fiat, TK alleges that they had failed to invite the
Special Magistrate “to stop the proceedings”, contrary to the Prosecution Code.
There are 3 pleaded bases:

(1) Before commencement of the Criminal Trial, it became clear that

Dr Tam’s report was on its face contradicted by that of Mr Lo (intended
expert for TK) and the prosecution had no answer to Mr Lo’s opinion
(DRASOC, §§47-56) (“Report Issue”);

(2) At the commencement of the Criminal Trial, it became clear that

the Admitted Facts would contradict the intended evidence of the
prosecution’s only factual witness (DRASOC, §§58-62) (“Admitted
Facts Issue”);

(3) Before the ruling on no case to answer, How & Co’s Letter had
alluded to the lack of evidence and public interest in continuing with the
prosecution, but the invitation to withdraw the prosecution was declined
(DRASOC, §66A) (“Letter Issue”).

20. Specifically, against Mr Haddon-Cave, TK alleges that he demonstrated

malice against her by not inviting the Special Magistrate to give no weight to
Dr Tam’s evidence (which was not in his statement) and even further elicited
evidence from Dr Tam.

21. Specifically, against Mr Kwan, TK alleges that he conducted the trial in such
a way which demonstrated either a lack of reasonable and probable cause or
malice on his part. These included 4 pleaded instances of evidence and 2 of law:

(1) Adducing TK’s cautioned statement, contrary to Mr Haddon-

Cave’s prior indicationtothecontrary:DRASOC, §§59 & 70.

(2) Challenging Mr Lo’s qualifications as an expert witness on traffic

accident reconstruction:DRASOC,§§63, 64 & 74-77.

(3) Challenging Dr Tang’s evidence on whether the taxi had crossed

the centreline of the road by (i) not admitting his report under of section
65B of the Criminal Procedure Ordinance (“CPO”) and (ii) asking
“irrelevant questions”:DRASOC,§§81-82B.
 (4) On evidence, refusing to admit Mr Johnston’s evidence by way of
section 65B or 65C of CPO and asking “irrelevant questions”:
DRASOC, §§83-84.

(5) On law,
arguingthatTremaynevHill[1987]RTR131wasnotfollowedinHong Kong
when it was: DRASOC, §§71-72.

(6) On law, embarkingon“lengthydiscussions”

withtheSpecialMagistrate on whether TK had a duty to call a defence
witness who had given part of his evidence but was unavailable to
continue doing so. Mr Kwan ought to have known that there was no law
imposing a duty on a defendant to call a particular witness: DRASOC,
§§84A-84F.

22. As against SJ, TK sues her in her capacity as prosecutor and on behalf of the
Government of HKSAR for vicarious liability. There is no independent factual
allegation against SJ.

23. TK relies on substantially the same factual allegations to mount her claim on
malicious prosecution and misfeasance in public office. Accordingly, the merits
of both causes will rise and fall together.

D. LEGAL PRINCIPLES

D1. Striking out

24. It is only in plain and obvious cases that the Court would consider striking out
a claim. There should be no trial upon affidavit. Disputed facts are taken in favour
of the party whose pleading is sought to be struck out. The claim under attack
must be obviously unsustainable, the pleadings must be unarguably bad and it
must be impossible, not improbable, for the claim to succeed. Even if a case only
has a slim chance of success, this is not sufficient for striking out. See Hong Kong
Civil Procedure 2021, Vol 1, §18/19/4.
25. The jurisdiction should not be exercised if it requires a minute and protracted
examination of the documents and facts of the case in order to see whether the
plaintiff really has a cause of action. Where an application to strike out pleadings
involves a prolonged and serious argument, the court should as a rule decline to
proceed with the argument unless, in the rarest of cases, he not only harbours
doubts about the soundness of the pleading and considers it likely that he may
reach the conclusion that the pleading should be struck out, in that the ultimate
issue is quite simple, but is also satisfied that striking out the pleading would
obviate the necessity for a trial or will so substantially cut down or simplify the
trial as to make the risk of proceeding with the hearing sufficiently worthwhile.”
See Hong Kong Civil Procedure 2021, Vol 1, §18/19/4.

26. A reasonable cause of action means one with some chance of success when
only the allegations in the pleading are considered: Hong Kong Civil Procedure
2021, Vol 1, §18/19/5. No evidence is admissible on an application for strike-out
on the ground that the statement of claim discloses no reasonable cause of action:
Order 18, rule 19(1)(a).

27. A proceeding is frivolous when it is not capable of reasoned argument,

without foundation or cannot possibly succeed. Where the claim is on its face so
manifestly misconceived that it can have no prospect of success, it may be deemed
frivolous and an abuse of process. A proceeding is vexatious when it is oppressive
and/or lacks bona fides. See Yifung Properties Ltd v Manchester Securities Corp,
HCA 1341 &1359/2014, 19 October 2015, §§12-14, Au-Yeung J.

28. Abuse of process connotes that the process of the court must be used bona
fide and properly and must not be abused. The court will summarily prevent its
machinery from being used as a means of vexation and oppression in the process
of litigation. See Hong Kong Civil Procedure 2021, Vol 1, §18/19/9.

29. A collateral attack on a judicial decision of competent jurisdiction, both in

civil and criminal matters, in proceedings in which the intending plaintiff had a
full opportunity of contesting the decision, amounts to an abuse of process and is
therefore liable to be struck out. Choy Bing Wing v Chief Executive of HKSAR &
ors [2016] 1 HKLRD 666 at §11, Lam J (as Lam PJ then was); and Hunter v Chief
Constable of West Midlands Police & ors [1982] AC 529, 541B, Lord Diplock.
30. This power to strike out exists regardless of the nature of earlier proceedings
and even though it may not be strictly between the same parties. Wong Kwai Sang
v The Bar Council [2021] 1 HKLRD 455, Lam VP (as Lam PJ then was).

31. Adopting a broad merits-based assessment, the Court’s power to strike out
abusive private law claims is to reflect the importance of finality in litigation. Ho
Kin Man v Commissioner of Police [2014] 3 HKLRD 478, §§14 & 21, Lam VP
(as Lam PJ then was)

D2. Malicious prosecution

32. In an action of malicious prosecution, the plaintiff must show that:

(1) he was prosecuted by the defendant, that is to say, that the law was
set in motion against him on a criminal charge;

(2) the prosecution was determined in his favour;

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

(4) the prosecution was malicious.

The onus of proving every one of these elements is on the plaintiff: Jae Hoon Oh v
Richdale [2005] 2 HKLRD 285, §12, Ma CJHC (as he then was).

33. Element (2) is not in dispute.

D3. Misfeasance in public office

34. The essence of the tort is abuse of public office in bad faith. The plaintiff
must establish that:

(1) the conduct was that of a public officer exercising power in that
capacity;

(2) the officer must have either intended to injure the plaintiff by his
acts (targeted malice), or knowingly or recklessly acted beyond his
powers and the act would probably injure the plaintiff (untargeted or
reckless untargeted malice); and
 (3) damage must thereby be caused to the plaintiff in circumstances
where the public officer knew the act would probably cause damage of
the type suffered.

Martnok Thanradee v Commissioner of Police [2016] HKEC 1546 (unreported,

HCA 789/2011, 14 July 2016, DHCJ M Ng (as she then was), at §§32 and 33.

35. These are grave allegations that must be supported by pleaded facts which, if
proved at trial, are capable of establishing liability. See Tang Nin Mun v Secretary
for Justice [2000] 2 HKLRD 324 at p329H-I, CA.

E. ABUSE OF PROCESS

36. TK has to rely on a lot of facts pertaining to the Criminal Trial to establish her
case. She already had full opportunity at the Criminal Trial to contest the
prosecution case. To the extent she alleges that the prosecution was without
reasonable and probable cause, this amounts to a collateral attack on the rulings of
the Special Magistrate, including the ruling of a case to answer, the ruling that the
expert evidence of Mr Lo was inadmissible and the findings as to how TK crossed
the road in the verdict. Subject to what I have to say about Mr Kwan’s conduct in
Section G1.3 below, this claim is an abuse of process: Choy Bing Wing and
Hunter.

37. Mr Leung, counsel for TK, submits that the rulings do not bind this Court.
This bold submission is contrary to binding authority which held that those rulings
were final determinations: HKSAR v Yamin(CACC 360/2016, 1 December 2017)
at §59, McWalters JA.

38. Under section 113(1) of the Magistrates Ordinance (Cap 227):

“Any person aggrieved by any conviction, order or determination of a magistrate in

respect of or in connection with any offence, who did not plead guilty or admit the
truth of the information or complaint, may appeal from the conviction, order or
determination…”. (underline added)

39. Section 113(1) is not confined to appeals brought by convicted defendants but
any person (like TK) who was aggrieved by a determination: HKSAR v Mark
Sutherland [2019] HKCFA 44, 19 November 2019, Appeal Committee.

40. In this case, the proper method to challenge the Special Magistrate’s rulings
wasbywayofappeal:Choy Bing Wing. TK has not appealed, except as to costs.
41. TK is merely, by changing the form of the proceedings into a civil case,
attempting to set up the same case again: Hunter, at p542A-C). Considering the
broad, merits-based approach of Ho Kin Man, there is clear public interest in
ensuring finality of litigation and to avoid wastage of the court resources on
relitigation. On the abuse of process ground alone, subject to Section G1.3 below,
TK’s claims ought to be struck out as against the Police Officers and Mr Haddon-
Cave.

F. JUDICIAL REVIEW

42. I accept Mr Pang SC’s submission that TK ought to have followed the strict
procedure for judicial review had she felt aggrieved by the CCP Decision (an
administrative act) and not by this civil action.

G. MALICIOUS PROSECUTION

G1. The power to prosecute

43. Under Article 63 of the Basic Law, “the Department of Justice (“DoJ”) of the
Hong Kong Special Administrative Region shall control criminal prosecutions,
free from any interference.” The discretion to decide whether to prosecute is
vested in the SJ in charge of DoJ. It is her responsibility to control and conductthe
prosecution.

44. Under section 7 of the Legal Officers Ordinance, Cap 87, SJ may authorize
any legal officer to exercise and discharge any of the rights and duties which SJ is
by law or by any enactment entitled to exercise or required to discharge.

45. Under section 12 of the Magistrates Ordinance, SJ is “entrusted with the duty
and discretion of conducting the prosecution of all offences cognizable by a
magistrate”.

46. Under section 13 of the Magistrates Ordinance, the SJ may appoint any public
officer or class of public officers to act as official prosecutors and to conduct
generally on her behalf any prosecution before a magistrate or any particular case.
Any official prosecutor so appointed may without any written authority appear and
plead before a magistrate any case of which he has charge which is being tried.
47. The “discretion of conducting the prosecution” includes all those common law
powers which bring a prosecution to an end, such as withdrawing the charge or
offering no evidence:CookevDPP(1992)95CrAppR233atp236(perWatkins LJ).

48. By virtue of section 5 of the Legal Officers Ordinance, it is only SJ and her
authorized legal officers (as defined in sections 2 and 7 and Schedule 1) who may
make a decision to abort aprosecution. A barrister in private practice is not within
the definition of legal officer.

49. Under Article 63 of the Basic Law,

theultimateprosecutorialdecisionistobetakenbytheDoJ,evenif legal advice is sought
from counsel or solicitors in private practice. See the paper titled “Prosecution
Policy of the Department of Justice”(CB(4)452/18-19(03))submittedon28 January
2019 to the Legislative Council Panel on Administration of Justice and Legal
Services.

50. The duties of prosecuting counsel may be summarized asfollows:

(1) Aprosecutorworksinanadversarialandaccusatoriallitigationsystem.
The prosecutor’s advocacy role must be conducted temperately and
with restraint; nevertheless, a prosecutor is entitled to advocate firmly
and courteously the prosecution’s position on an issue and to test and,
ifnecessary,attackthepositionadoptedorevidenceadvancedonbehalf of an
accused. See: Prosecution Code (2013 ed) at §3.3.

(2) The duty of prosecuting counsel is not to obtain a conviction at all

costs but to act as minister of justice. Counsel have a duty to see that all
available legal proof of the facts is presented. It should be done firmly
and pressed to its legitimate strength, but it must also be done fairly. It
is only if the departurefrom good practice is so gross, or so persistent or
so prejudicial as to be irremediable that the appellate court will hold that
the trial was unfair and quash the conviction: Benedetto v R[2003] 1
WLR 1545 at §54 (per Lord Hope).

51. Other persons (such as a complainant) can be treated as a prosecutor for the
purpose of the tort of malicious prosecution if:
 (1) He/she has abused the criminal process of the Court to set in
motion a prosecution on a criminal charge in order to secure the
wrongful conviction of another person;

(2) He/She has lied or procured others to lie to the authorities in order
to try to have another person prosecuted on a criminal charge; the lie
must also at least have influenced the relevant prosecution authority to
prosecute; and

(3) The lie and the circumstances of the case were such that it became
virtually impossible for the prosecution authorities to exercise any
independent discretion or judgment as to whether or not to prosecute.
Where it is shown that the prosecution authorities were able to and did
exercise an independent discretion or judgment in investigating the case
and in the decision to prosecute the plaintiff, the nexus between the lie
(as told or procured by the complainant) and the prosecution is broken
and the complainant will not in these circumstances be held to be the
prosecutor.

Jae Hoon Oh, §§19 and 27.

G1.1 SJ, the Police Officers and Dr Tam

52. SJ does not dispute that she was the prosecutor in the Criminal Trial.

53. However, the Police Officers were not, as they did not set the law in motion.
The claim against them has no prospect of success.

54. In relation to Dr Tam:

(1) Giving an expert report which was eventually held insufficient to

found a conviction could not, without more, amount to having set the
law in motion: Chin Kam Chiu v FTI Consulting, Inc & ors [2020] 2
HKLRD 878, G Lam J (as he then was).
 (2) TK claims that Dr Tam’s analyses were plainly and obviously
wrong and he knew or ought to have known that they were untrue. This
is an allegation involving fraud for which the utmost particularity is
required: Chin Kam Chiu, §39. And yet the pleaded allegations are
merely directed at Dr Tam’s opinion but not his dishonest state of mind.

(3) There is no allegation that any “wrong/untrue” evidence which

Dr Tam gave had made it virtually impossible for the prosecuting
authority to exercise any independent discretion or judgment as to
whether to prosecute TK: Jae Hoon Oh.

55. Accordingly, the claim against SJ as the prosecutor (responsible for the acts of
Dr Tam) has no prospect of success.

G1.2 Counsel-on-Fiat

56. TK’s claim against the Counsel-on-Fiat is premised on their failure to “stop
the proceedings”.

57. First of all, the Counsel-on-Fiat were not prosecutors. They were members of
the private Bar and not “legal officers” appointed or authorized under section 7 of
the Legal Officers Ordinance: R v Yuen Ching Kin [1997] 4 HKC 536 at p538C-D,
Kempster JA. Nor were they “public officers” appointed as official prosecutors
under section 13 of the Magistrates Ordinance.

58. Mr Leung submits that it appears from the judgment of Martnok Thanradee,
at §2,that it is possible to allege that the conduct of Counsel-on-Fiat amounted to
malicious prosecution.

59. With respect, §2 of Martnok Thanradee dealt with torts committed by police
officers, not counsel-on-fiat. That paragraph does not support the proposition of
Mr Leung.

60. Accordingly, it is plain and obvious that the Counsel-on-Fiat did not have the
power to terminate the prosecution.
61. Secondly, the CCP Decision showed that it was DoJ, instead of Counsel-on-
Fiat, who made the decision not to terminate the prosecution. Accordingly, the
nexus between the Counsel-on-Fiat’s impugned act and the prosecution was
broken by the independent judgment of DoJ: JaeHoon Oh, at§§19 & 27. Mr
Kwan was merely bound by DoJ’s instructions and continued the prosecution.

62. Thirdly, TK alleges that in reply to How & Co’s Letter, Mr Kwan, whilst
echoing the CCP Decision and pointing to Article 23 of the Basic Law, omitted to
state that he had no power to withdraw the Traffic Summons.

63. With respect, Mr Kwan’s omission was irrelevant to the question of whether
he had power. Worse still, TK’s allegation was contrary to How & Co’s Letter
wherein the solicitors themselves stated that “[Mr Kwan] indicated that it was not
for [him], as a prosecutor, to decide whether to continue with the prosecution or
not…”.

64. If that was all, I would have found that there was no case for asserting that
any of the Counsel-on-fiat was a prosecutor.

G1.3 Mr Kwan’s conduct

65. TK pleaded that, on 20 December 2019, when addressing the Special

Magistrate on costs, Mr Kwan submitted that TK’s legal team should have stopped
the cross-examination of Dr Tam after the first day of the trial for the reason that it
was then clear that there was insufficient evidence to convict (“Mr Kwan’s
Submission”). Mr Kwan therefore impliedly admitted that the Counsel-on-Fiat
each failed in their duty under the Prosecution Code to invite the court to
terminate the proceedings after the first day of trial (DRASOC, §85).

66. There is no transcript evidence in support of this plea. Mr Pang SC fairly

concedes that he has nothing to contradict this plea, which must be taken to be true
for the purpose of the striking out applications. However, he submits that this
subjective intent was not relevant to the question of whether there was reasonable
and probable cause for prosecution.
67. I am unable to agree. Mr Kwan’s Submission showed that he might not have
held the belief that there was reasonable and probable cause to continue with the
prosecution at least since the 2nd day of trial. The Criminal Trial had lasted for
8 months already when Mr Kwan took over as Counsel-on-Fiat and another 3
months until the Galbraith Ruling. There was nothing to show that in those
3 months he had informed DoJ or the Special Magistrate of his view before the
CCP Decision and the Galbraith Ruling were made. Mr Kwan’s Submission was
deployed in his submission on costs, successfully resisting TK’s application for
costs and obtaining an order for wasted costs. These decisions on costs are under
appeal but that does not undermine the fact that Mr Kwan’s Submission had been
deployed.

68. On the current state of pleading and evidence, it is arguable that:

(1) The conduct of withholding his view from DoJ and the Special
Magistrate might be beyond inadvertence, error of judgment, mistake or
incompetence.

(2) Whilst it might not have been a lie, the failure of Mr Kwan to
disclose his view of the case might be a material omission which made it
impossible for DoJ/the Chief Court Prosecutor to make an informed
judgment as to whether or not to continue the prosecution: Jae Hoon Oh.

(3) Arguably, the nexus between Mr Kwan’s impugned conduct was

not broken by the CCP Decision: Jae Hoon Oh.

69. On these bases and for the purpose of the strike-out applications, Mr Kwan
could arguably be regarded as the prosecutor.

70. However, Mr Kwan’s Submission did not bind Mr Haddon-Cave as there was
nothing to show that Mr Haddon-Cave shared the same view. There is no basis to
regard Mr Haddon-Cave as the prosecutor.

G2. Lack of reasonable and probable cause

71. TK’s case contains 2 limbs: lack of reasonable and probable cause (i) to
prosecute and (ii) to continue the prosecution.
72. The question of “reasonable and probable cause” breaks down into 2 tests.
The first is a subjective question, namely, whether the prosecutor has no honest
belief that there is a case fit to be tried (Lord Devlin, at p767). The second is the
objective question of whether the circumstances were such that they would lead an
ordinary prudent and cautious man to conclude that the person charged was
probably guilty of the offence (Lord Radcliffe, at p754). See Howarth v Chief
Constable of Gwent [2011] EWHC 2836 (QB) at, §12, per Eady J, summarizing
the principles in Glinski v McIver[1962] A.C. 726 (HL); Martnok Thanradee at
§23.

73. Sometimes, it is possible to infer the absence of an honest belief from a lack
of “reasonable and probable cause”; but malice cannot of itself lead to an
inference that “reasonable and probable cause” was lacking (Martnok Thanradee,
at §23).

74. Thetestofwhethertheobjectiveaspectissatisfiediswhether the evidenceis

sufficient to make out a prima facie case to warrant the
preferringofacriminalcharge,eventhoughitmaynotbeenoughin itself to justify a
finding of guilt, ie that there is adequate material to place before a jury, rather than
to attempt to predict what the jury will conclude: Howarthat §§16-17.

75. A prosecutor neither has to believe in the probability of conviction: Glinski, at

p766, Lord Devlin; nor does he have to test the credibility of witnesses. It is
sufficient if he had proceeded on such information as an ordinarily prudent and
cautious man would have: Glinski.

76. The duty of a prosecutor is not to find out whether there is a probable defence:
Glinski, at 745, Viscount Simonds; or to test the full strength of the defence, or to
investigate the truth of every assertion made by a suspect: Coudrat v
Commissioners of Her Majesty’s Revenue and Customs [2005] STC 1006 at §42
(CA).

77. The test for reasonable and probable cause to prosecute is similar to that for
ruling of no case to answer, the test is similar, ie whether there was adequate
material to place before a jury: Howarth, at §§16-17. The test has been laid down
in R v Galbraith (1981) 1 WLR 1039 at p.1042B-D:

“How then should the judge approach a submission of “no case”? ... where there is
 “How then should the judge approach a submission of “no case”? ... where there is
some evidence but it is of a tenuous character, for example because of inherent
weakness or vagueness or because it is inconsistent with other evidence. (a) Where
the judge comes to the conclusion that the prosecution evidence, taken at its highest, is
such that a jury properly directed could not properly convict upon it, it is his duty,
upon a submission being made, to stop the case. (b) Where however the prosecution
evidence is such that its strength or weakness depends on the view to be taken of a
witness's reliability, or other matters which are generally speaking within the province
of the jury and where on one possible view of the facts there is evidence upon which a
jury could properly come to the conclusion that the defendant is guilty, then the judge
should allow the matter to be tried by the jury.”

78. Galbraith is a highertest that requires the judge to consider if the evidence
available at the trial could satisfy all elements of the offence and decide if a jury
could properly come to the conclusion that a defendant is guilty. By that stage, the
defendant would already have the opportunity to cross-examine the prosecution
witnesses to expose the unreliability and inconsistency in their evidence.

79. Merely showing that public interest did not require the prosecution or that the
prosecution was contrary to public interest did not meet the requirement of
showing lack of reasonable and probable cause: Besnik Qema v News Group
Newspapers Ltd [2012] EWHC 1146 (QB), Sharp J, §77.

80. There might have been reasonable and probable cause before prosecution
starts. After that, to show that a prosecutor has a duty to stop the prosecution
requires some new circumstances and failure of the prosecutor to inform the court
of those new facts. In Tims v John Lewis & Co Ltd (1951) 2 KB 459. Lord
Goddard CJ said at 472:

“It is quite easy to imagine a case in which a person was thoroughly justified in
bringing proceedings, and then in the course of the case something comes to light
which shows the prosecution to be in fact groundless. Then if the prosecutor insists on
continuing the prosecution without at any rate informing the court of the facts which
he has since discovered, he will possibly have no reasonable or probable cause for
continuing the prosecution and at any rate will be guilty of malice. …”

81. Paragraph 3.5(e) of the Prosecution Code provides that “in litigation, a
prosecutor must fairly invite the court to stop the proceedings if it becomes
reasonably apparent to the prosecutor that there is no longer a reasonable prospect
of conviction”.

82. This is a higher test than that for establishing reasonable and probable cause.
In Rudall v Crown Prosecution Service [2018] EWHC 3287 (QB) at §80, Lambert
J:
 I do not accept that the evidential Code test [the UK equivalent of the
HK Prosecution Code] is the correct test to apply for the purpose of
examining whether there is reasonable and probable cause. The exercise
undertaken by the prosecutor in that context is to identify whether there
is a realistic prospect of conviction which is a different, and higher,
threshold than that which I must apply when considering whether there
is a case fit to be tried or a proper case to lay before the court. The
intensiveness of the scrutiny to be applied to the evidence is
correspondingly different and greater than that relevant to the
consideration of reasonable and probable cause. The evidential stage of
the Code test includes an analysis of, not just the admissibility of the
evidence, but the importance of the evidence, whether the evidence is
reliable and credible and the impact of any defence or other information
put forward by the suspect. By contrast, my role, in examining whether
there is a reasonable basis for an honest belief in the charge by the
prosecutor, is to address the question of whether there is prima facie
admissible evidence in respect of each element of the offence (see Smith
LJ in Coudrat), setting aside evidence which is plainly admissible.”

83. Applying the above principles, the DRASOC discloses the existence of
reasonable and probable cause for the prosecution of TK.

84. Firstly, the taxi driver’s evidence was that TK suddenly crossed the road from
the gap between cars on the opposite lane and he believed that TK was chasing a
public light bus. The expert evidence from Dr Tam was that the accident was
unavoidable from the perspective of the taxi driver and that TK was walking at a
speed that doubled the typical walking speed (DRASOC, §42).

85. On such a pleaded case, there was sufficient evidence for the prosecution to
make out a prima facie case of “negligently endangering own safety” fit to be
tried. PO allegations 1-6 did not undermine the existence of this prima facie case.

86. Secondly, the Galbraith Ruling supported the existence of a reasonable and
probable cause. There was no appeal against it.
87. Thirdly, in her verdict, the Special Magistrate held that TK chose not to use
the pedestrian crossing nearby but instead crossed the road at the back of a car
while her view to the left was blocked.

88. Fourthly, the Police Officers were not required to investigate TK’s defence
before trial: Coudrat.

89. Insofar as the claim against Counsel-on-Fiat is concerned, the Report Issue,
Admitted Facts Issue and the Letter Issue should and had been addressed at the
Criminal Trial.

90. With regard to the Report Issue, the DRASOC has not alleged why, before
commencement of the Criminal Trial, Dr Tam’s report would necessarily be
rejected at the Criminal Trial. The prosecution had no duty to investigate Mr Lo’s
report: Coudrat. The existence of an expert report of the defence that contradicted
the prosecution’s was not equivalent to a lack of reasonable and probable cause.
In fact, the prosecution’s challenge to Mr Lo’s qualification as an expert was
successful such that Mr Lo’s evidence was excluded.

91. With regard to the Admitted Facts Issue, the “potential variance” between the
Admitted Facts and the intended evidence of the only prosecution witness was the
difference in the taxi driver’s speed. Even so, it did not follow that the taxi
driver’s evidence as a whole would not be accepted by the court.

92. With regard to the Letter Issue, DoJ had independently decided, after
“carefully considered [TK’s] representations, the available evidence and the
circumstances of the case including the considerations set out in the Prosecution
Code”.

93. Specifically, with regard to Mr Haddon-Cave, Dr Tam’s evidence was

relevant. There is no plea that the act of Mr Haddon-Cave undermined TK’s
defence at the Criminal Trial in in irremediable way: Benedetto,at §54. TK had,
through her own counsel, full opportunity to cross-examine Dr Tam and, in fact,
any prosecution witness.

94. Specifically, with regard to 4 instances of evidence pleaded against Mr Kwan,

there is no suggestion that they were irrelevant.
 (1) The prosecution must seek to have relevant and credible evidence
placed fully and intelligibly before the court. If the defence evidence
(including the qualification of an expert) lacked credibility, the
prosecution was entitled to challenge it: paragraph 50 above.

(2) The weight to be given to a piece of evidence was ultimately

a matter for the Special Magistrate: Chin Kam Chiu, at §39.

(3) Unlessthere were circumstances which would render itunfair to an

accused to tender a cautioned statement, it was to be expected that
theprosecutorwouldtenderthatevidence iftheprosecutorialduty wastobe
met: Nguyen v Rat §41 (HC of Australia).

(4) TK could have challenged the admissibility of the cautioned

statement at the Criminal Trial.

(5) There is no plea that circumstancesexistedto

makeitirremediablyprejudicialtoadducethecautionedstatement: Chin
Kam Chiuat §39.

(6) The fact that Mr Kwan resiled from an earlier promise of

Mr Haddon-Cave of not admitting TK’s cautioned statement might be
relevant to costs but not reasonable cause.

(7) Similarly the unreasonable refusal of the prosecution to agree to

admit evidence would, at best, be a ground for TK to seek costs if that
refusal had lengthened the trial.

95. With regard to the 2 instances of legal submission pleaded against Mr Kwan,
a prosecutor may put forward a proposition of law if he believes on reasonable
ground that it is “capable of reasonably contributingtoadecisionofthecourt”:
cf §3.6 of the Prosecution Code (2013 ed).

96. Debates between counsel as to the applicability of law is a common facet in

courts. Making submissions on law cannot, in itself, display lack of reasonable
and probable cause. TK’s lawyers had had the opportunity to make submissions to
the contrary at the Criminal Trial.
97. The extracts from transcripts showed that Mr Kwan made submission on
compelling a defence witness to give evidence to assist the Special Magistrate in
making her decision, which could not in any way connote malice:

“Madam, I have looked through all the relevant textbooks and cases and I am unable
to find a case on the dutywedebatedyesterdaybut,frommyresearch,itappearsthatthe
duty cannot be enforced directly but can only be enforced indirectly through two
ways. One is through section 21(3) of the Magistrates Ordinance and the other way is
to enforce it through section 21(4). That is subsection (3) or subsection (4) of the
Ordinance.”: (Transcript p421B-E)

98. In any case, the pleaded legal submission concerning whether to compel a
defence witness to continue giving evidence arose in the defence case. It could not
have any impact on whether there was reasonable and probable cause to prosecute.

99. The 6 pleaded instances of evidence and legal submission could not, taken
individually or collectively, form the bases for asserting lack of reasonable and
probable cause to prosecute.

100. For the reasons given in this section, the claim against the Police Officers
and Mr Haddon-Cave has no prospect of success.

101. In respect of the continuation of the prosecution, given the analyses in

Section G1.3 above, arguably there was lack of reasonable and probable cause to
continue the prosecution as from the time Mr Kwan took up the case. That lack
was known to Mr Kwan and deployed by him even till the argument on costs at
the Criminal Trial.

G3. Prosecution was malicious

102. Malice covers not only spite and ill-will but also any motive other than a
desire to bring a criminal to justice: Chin Kam Chiu at §37.

103. Theremustbeexplanationastowhytheactscomplainedof wereonly consistent

with bad faith, malice, and/or reckless indifference: Young v Chief Constable of
Warwickshire Police & anor [2020] EWHC 308 (QB) at [26].

104. Malice may be inferred from facts but if what is pleaded as giving rise to an
inference is equally consistent with mistake, negligence, incompetence,
unintended fault or omissions of the prosecution then such a pleading will be
insufficient and will be liable to be struck out. Young at §26; BT v Crown
Prosecution Service [1997] EWCA Civ 3000 at p9, Judge and Chadwick LJJ.
105. Malice may be considered for different stages of the prosecution: BT v CPS.

106. With regard to the Police Officers, a mere assertion in the DRASOC (§29)
that they prosecuted TK not for bringing her to justice does not disclose spite or
ill-will:

(1) PO allegations 1, 5 and 6 invite the Court to infer malice out of

what was at worst, negligence, incompetence of the Police Officers or
their misjudgment of the evidence. Not doing what a “right-minded”
police officer would have done, as Mr Leung submits, was negligence
but not malice.

(2) Under PO allegations 2-4, it is far-fetched to suggest malice in the

Police Officers who investigated a person whom they considered to be at
fault. There is no suggestion that the Police Officers had personal
knowledge of the taxi driver or TK, or personal interest in the traffic
accident.

There is no prospect of establishing malice against the Police Officers.

107. With regard Counsel-on-Fiat, the allegation focussed on their failure to stop
the Criminal Trial, which must fail because they did not have the power. They
should have better managed the evidence and legal submission, and the length of
the Criminal Trial. However, there are no bases to say that their conduct was
malicious, subject to Section G1.3.

108. TK pleads that continuation of the prosecution was for Mr Kwan to earn
more fees. Applying Tims v John Lewis and for present purposes, there is basis to
infer malice, in that the intention of continuing the prosecution was not to bring
TK to justice but to bring Mr Kwan personal gain.

109. Insofar as SJ was concerned, the only factual basis was the CCP Decision.
There was no assertion of malice against DoJ in coming to the CCP Decision.
However, SJ is arguably liable for the conduct of Mr Kwan.

G4. Loss and damage

110. The plaintiff must specifically plead and properly particularize both the
damage and why the public officer must have foreseen it. A pleading that fails to
do so is liable to be struck out: Young at §26; Chin Kam Chiu at §38.

111. If the causal nexus between the tort and the loss suffered is lacking, the court
may decide that the claim is bad: Lee See Woo v Chu Hong Pong[2020] 5 HKLRD
196 at §42 (per DHCJ Jin Pao SC).

112. Actual knowledge on the part of the officer that his decision or act would
probably damage the plaintiff is required: Three Rivers District Council at p.195E
(per Lord Steyn) and p.231A (per Lord Hobhouse).

113. TK prays for the following relief arising from the malicious prosecution:

(1) General damages for anxiety, mental distress and loss of dignity;

(2) Aggravated damages due to extensive reporting by the media of

the case following which the topic was widely discussed amongst
netizens for prolonged period; TK’s privacy was seriously intruded;

(3) Damages for the time and trouble in giving instructions to and
receiving advice from lawyers;

(4) Costs for attending court hearings and defending the Traffic
Summons; the total legal costs are still accruing; and

(5) Exemplary damages as the conduct of the Defendants was

arbitrary and/or oppressive.

114. With regard to prayer (1), there is no plea that the Defendants had actual
knowledge of or foresaw that their acts would have caused this type of damage to
TK.

115. TK asserts that Mr Kwan knew that she had a claim against the taxi driver
for damages (HCPI 574/2018) and the prolonged trial would affect such a claim
(DRASOC, §69). With respect, I am unable to see the causal nexus between the
two, as the HCPI case was commenced within the limitation period.
116. With regard to prayer (2), there is no plea on the causal nexus between the
malicious prosecution and the media reporting/netizen’s discussion; and that any
of the Defendants foresaw this type of damage.

117. With regard to prayer (3), Mr Leung clarifies in his oral submission that it is
concerned with the Criminal Trial. TK had to travel to the solicitor’ firm, and take
time off from her employment. With respect, these are neither particularized nor
are they recognized forms of damage. If the loss had arisen from the Criminal
Trial, TK should have applied for costs before the Special Magistrate and not in
this action.

118. With regard to prayer (4), it is also a matter of costs in the Criminal Trial. It
is not for the Court of First Instance to usurp the function of the Special Magistrate
or the Court of Appeal in the related appeal.

119. Prayer (5) is a claimable item: McGregor on damages, 21st ed, §44-013. It is
questionable how, if the aforesaid 4 prayers are not claimable, there can be
exemplary damages awarded.

120. TK complains that the conduct of Counsel-on-Fiat was for their personal
gains in earning more fees. Even if that is established, it had caused the public
revenue to suffer, not TK.

121. In the premises, even if malicious prosecution is established against Mr

Kwan and hence SJ based on Section G1.3, it will be futile as no damages claimed
could be awarded in this action.

H. MISFEASANCE IN PUBLIC OFFICE

122. Insofar as the commencement and maintenance of a criminal prosecution is

concerned, a key element of determining whether such power was not an abuse of
the Defendants’ public power would be “whether the evidence demonstrates a
reasonable prospect of conviction”: Prosecution Code,at §5.5.

123. The Police Officers were public officers. The analyses in Sections G2 and
G3 above on existence of reasonable and probable cause and lack of sufficient
plea of malice equally apply to misfeasance in public office. The claim against the
Police Officers must fail.
124. The Counsel-on-Fiat were persons whose capacity to act was entirely a
creature of contract with the executive arm of government and not any executive
power. They provided services of a professional character to the executive. They
were not public officers for the purpose of the tort of misfeasance in public office:
Leerdam v Noori (2009) 255 ALR 553 at §§18 and 51, Spigelman CJ. The claim
against the Counsel-on-Fiat must fail on this ground alone.

I. CONCLUSION

125. Subject to the analyses on Mr Kwan’s conduct in Section G1.3, the present
claim on both causes of action are an abuse of process, as it is a collateral attack
on the final determinations in the Criminal Trial.

126. In respect of malicious prosecution:

(1) The claim against the Police Officers and the claim based on
Dr Tam’s conduct must fail primarily, because they were not the
prosecutors. In any case, the conduct of the Police Officers and Dr Tam
had not made it virtually impossible for SJ to exercise any independent
judgment as to whether to prosecute TK. There was reasonable and
probable cause for prosecution, lack of sufficient plea of malice and the
damages were not caused by or within the knowledge or foreseeability
of the Police Officers.

(2) The claim against Mr Haddon-Cave must fail for the same reasons
in sub-paragraph (1). Additionally, Mr Haddon-Cave did not have
power to “stop the proceedings”.

(3) In the light of Mr Kwan’s Submission, it is arguable that Mr Kwan

was the prosecutor; that there was lack of reasonable and probable cause
to continue the prosecution; and that there was malice. Even so, the
damages were not caused by or within Mr Kwan’s knowledge or
foreseeability. Any claimable reliefs are for costs of the Criminal Trial
and not this Court. The claim against Mr Kwan must fail.
 (4) SJ was the prosecutor. She was liable for Mr Kwan’s conduct and
the CCP Decision made without the CCP knowing about Mr Kwan’s
Submission. However, the claim against her must fail for reasons given
in sub-paragraph (3).

127. In respect of misfeasance in public office:

(1) The claim against the Police Officers must fail because the
elements of lack of reasonable and probable cause for prosecution,
malice, causation for the damage, and knowledge/foreseeability of the
damage to TK are lacking.

(2) The claim against the Counsel-on-Fiat must fail because

they were not public officers.

(3) Accordingly, the claim against SJ must also fail.

128. Despite the length of the DRASOC and arguments, there is no complexity
involved. The DRASOC plainly and obviously does not disclose a reasonable
cause of action and is frivolous or vexatious. The defective claims are not curable
by amendments.

129. I therefore order as follows:

(1) The Plaintiff’s summonses dated 22 March and 8 April 2021 for
re-amendment to the amended statement of claim are dismissed;

(2) The amended statement of claim is struck out and the action is
dismissed;

(3) On a nisi basis, the Plaintiff should bear the costs of the
Defendants including costs of the action, with certificates for 2 counsel
in respect of D3 and D4;

(4) The costs are summarily assessed and allowed, on a nisi basis, in
the sum of $207,042 in respect of D1, D2 and D5; $700,000 in respect
of D3 and D4.

130. I thank counsel for their assistance.

 (Queeny Au-Yeung)
Judge of the Court of First Instance
High Court

Mr Kelvin Leung, instructed by How & Co, for the Plaintiff

Ms Carmen Siu, Senior Government Counsel, of the Department of Justice, for the
1st, 2nd and 5th Defendants

Mr Robert Pang, SC and Mr Jeff TF Yau, instructed by Reynolds Porter

Chamberlain, for the 3rd and 4th Defendants