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[Unlawful Dismissal] Jupiter General Insurance Co Ltd v Shroff

The manager of the life insurance department of an insurance company recommended the issue of an endowment policy upon a life which the managing governor had a few days earlier refused to re-insure. He was thereupon dismissed, being given his current month’s salary and a month’s salary in lieu of notice:—

Held – (i) upon the facts the manager was entitled to more than one month’s notice, and the dismissal must be treated as a summary dismissal.

(ii) the one act of misconduct of the manager justified a summary dismissal.

Per Cur. The immediate dismissal of an employee is a strong measure, and it can be only in exceptional circumstances that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence.

Cases referred to

Baster v London & County Printing Works [1899] 1 QB 901; 34 Digest 79, 563, 68 LJQB 622, 80 LT 757.

Bombay Cotton Manufacturing Co Ltd v Motilal Shivlal (1915) LR 42Ind App 110.

Clouston & Co Ltd v Corry [1906] AC 122; 34 Digest 74, 509, 75 LJPC 20, 93 LT 706.

Edwards v Levy (1860) 2 F & F 94; 34 Digest 78, 553.

Appeal

Appeal from a judgment of the High Court of Judicature at Bombay in its appellate jurisdiction (Sir John Beaumont CJ, Rangnekar J), dated 19 March 1935, allowing (in part) the respondent’s appeal from the decree of that court in its ordinary original civil jurisdiction (Davar J), dated 23 August 1934, and awarding him the sum of Rs 17,000 as damages for wrongful dismissal from the service of the appellant company. The facts of the case are set out in the judgment of their Lordships, delivered by Lord Maugham.

R P Croom-Johnson KC and C P Harvey for the appellant company, referred to Baster v London County Printing Works, Bombay

[1937] 3 All ER 67 at 68

Cotton Manufacturing Co Ltd v Motilal Shivlal, Clouston & Co Ltd v Corry.

A M Dunne KC, Sir Thomas J Strangman KC and S P Khambatta for the respondent, referred to Edwards v Levy.

R P Croom-Johnson KC and C P Harvey for the appellant company.

A M Dunne KC, Sir Thomas J Strangman KC and S P Khambatta for the respondent.

15 April 1937. The following judgments were delivered.

Various questions were argued in the courts below, but the only question with which their Lordships find it necessary to deal is whether, assuming that, upon the true construction of the contract of service between the parties, the respondent’s employment was not terminable on one month’s notice, the appellant company was entitled summarily to dismiss the respondent from its service. In the view their Lordships take of the appeal, it is unnecessary to express an opinion upon the true construction of the contract of service, or on the question as to the proper measure of damages, if any were recoverable.

The appellant company carries on a large insurance business in Bombay. A firm called Lalji Naranji & Co were the managing agents, and Mr Lalji Naranji is, or was, the chairman of the board of directors of the appellant company. A Mr Mody was the managing governor, and was authorised to do all the business of the company, subject to the control of the managing agents. The respondent was at first in the service of the appellant company from 1 June 1925 until 1 June 1926, as a canvasser. In May 1928, the appellant company opened a life insurance department, and in that month the respondent re-entered its service as manager of that department. His salary began at Rs 200 a month. On 24 January 1930, after some other increases, it was raised to Rs 400 a month, as from 1 January, and, by a letter of 24 January, it was agreed that, in the event of the life department showing certain annual increases in the business, his salary would be gradually increased up to a maximum of Rs 700 a month. The letter concluded by saying: “In the event of your not being able to fulfil the guarantee mentioned above we have the right to terminate your engagement at any time thereafter by one month’s prior notice of our intention to do so.” The letter contained no other statement as to the notice to which the respondent was to be entitled if he was dismissed. It was contended on behalf of the respondent that, upon the true construction of the letter, he was entitled to continue in his employment for at least 31/2 years (afterwards extended to 41/2 years) subject only to the right to terminate under the concluding paragraph of the letter, in the event of the so-called guarantee as to increase of business not being fulfilled. Their Lordships do not think it necessary to express any opinion on this part of the case. The respondent was in fact dismissed from his employment on 21 December 1931, by a letter stating that his services were no longer required, and that the cashier had been instructed to pay him his salary for the current month, and also one month’s salary in lieu of notice. The letter was signed by Mr Mody as managing governor of the company, and both he and the secretary of the company deposed to the fact that the letter was written in that form

[1937] 3 All ER 67 at 69

out of consideration for the respondent, and in order that he should not find it difficult to obtain service elsewhere. Their Lordships were not persuaded that one month’s notice was sufficient unless the clause at the end of the letter of 24 January 1930, could be relied on, a question which depends on facts on which there have been findings in favour of the respondent. Their Lordships, therefore, must approach the matter as if the case was one of summary dismissal without notice, though clearly the position of the appellant company is not worse than it would have been if no salary in lieu of notice had been paid. The respondent, at the trial, and before their Lordships, has placed much reliance on a circular bearing date 31 October 1929, and circulated among the superior officials of the company. It was prepared by Mr Mody, who was therein described as the “managing governor,” for the guidance of the office establishment, and it stated that it had been found that no responsibility was fixed on any of the officers for any work, and it had therefore been decided to divide the work in the manner mentioned. To the managing governor was allocated the business of fire, marine and accident (foreign and up-country). To the secretary was allocated the business of fire, marine and accident (local business). There followed the words: “the life department, both local and up-country, will be looked after by the secretary entirely.” The circular stated that the company had two officers, namely, the managing governor and the secretary, and that the work of both these officers was supervised by the managing agents, and there was a number of other references to the duties of the managing governor. The respondent was not mentioned in the circular, nor was his position therein defined. The respondent has contended that the managing governor had no concern with the life insurance department, and that he was entitled to resent any action by the managing governor in supervising that department as being officious and intermeddling. The trial judge, however, refused to accept this view. The respondent was driven to admit, in the course of cross-examination, that the secretary, a Mr Iyer, had to be in constant consultation with Mr Mody about the details of the proposals for life insurance. Further, a number of documents was produced in court which showed Mr Mody’s habitual supervision of the life insurance business. Not only were the respondent’s statements with reference to this matter thus proved to be ill-founded, but, according to the judge, he was driven to invent falsehoods in order to get over the effect of the documents. Moreover, in addition to the evidence given by Mr Mody and Mr Iyer, which, according to the judge, stood unchallenged, there was evidence given by a Mr Shangji Narsingh Nagarmutt, the managing agent of several Indian insurance companies, who had been in constant touch with Mr Mody, and that evidence satisfied the judge beyond a doubt that the respondent’s story that Mr Mody was a figure-head in the office, so far as the life department was concerned, was a tissue of falsehood. Their Lordships have thought it right to mention these facts because so much reliance has been placed

[1937] 3 All ER 67 at 70

on the circular and its effect, both by the respondent and by the judges in the appellate court, but, for reasons which will appear later, they attribute a minor importance only to this matter.

The material circumstances are as follows. On 10 December 1931, the appellant company received by letter from the Bombay Mutual Life Assurance Society Ltd, an advice that it had received a proposal for life insurance from one Keshavji Manekchand, and the appellant company was requested to re-insure the risk up to Rs 10,000. This letter was immediately placed before Mr Iyer, the secretary of the appellant company, and was passed on by him in the ordinary course to Mr Mody, who occupied the same room in the office as Mr Iyer. It so happened that Mr Mody was well acquainted with the life proposed to be insured, he having been a neighbour of his for 10 years. Taking the view that Keshavji’s life was not a good one, and that the re-insurance was not in the interest of the appellant company, he wrote the word “declined” on the letter of 9 December, and initialled it. The letter and papers went back to the respondent as the branch manager of the life department. On 11 December or 12 December, the respondent (in accordance with the usual practice) had an interview with Mr Mody with reference to other life business, and he asked Mr Mody what objection there was to the acceptance of the proposal of re-insurance on the life of Keshavji. Mr Mody told him that Keshavji was his next-door neighbour and a friend, and that he knew more about him than anyone in the office did, and he did not want to entertain the proposal. The respondent started grumbling by saying that, if they refused proposals of that kind, they could not be expected to do a large business, to which Mr Mody replied that he did not want his company to get into trouble by accepting such risks, and that he would not change his decision. Accordingly, on 15 December, a letter was written to the Bombay Mutual Life Assurance Society declining the re-insurance proposition. It was prepared under the directions of the respondent, who initialled it, and it was signed on behalf of the appellant company by Mr Iyer.

On 19 December, there was laid before Mr Iyer a proposal for the direct life assurance of the same Keshavji for the sum of Rs 50,000. The accompanying papers included a note, initialled by the respondent, recommending the issue of a 10 years’ endowment policy. Mr Iyer, who habitually signed the appellant company’s letters on many subjects, dealing sometimes with as many as 300 in a day, had no recollection of having signed the letter of 15 December, refusing the proposal of re-insurance, and the note initialled by the respondent recommending the acceptance of the risk did not contain any reference to this refusal, nor to Mr Mody’s personal doubts as to the life proposed to be insured. On 21 December, the respondent again brought the papers to Mr Iyer, and pointed out that Mr Lalji Naranji, who was said to have been a friend of Keshavji, had written the word “accept” on the office note. The papers were left on Mr Iyer’s table, and the latter mentioned casually to Mr Mody,

[1937] 3 All ER 67 at 71

who was in the office, that the appellant company had accepted a direct insurance proposal for Rs 50,000 on the life of Keshavji. Mr Mody, who was surprised to find that Mr Iyer had not been informed of the refusal by himself of the re-insurance proposal, wrote the words “I am against this acceptance” on a slip which he attached to the papers, and he sent them back to the respondent’s department.

Mr Mody then sent for the respondent, Mr Iyer remaining in the room. Mr Mody reminded the respondent of the previous re-insurance proposal, and asked him why he had not made any reference to this fact in the note submitted to Mr Iyer on 19 December. Thereupon the respondent became very angry, and told Mr Mody that he had no business to ask him any question, and added that Mr Mody did not know how to behave himself. He then said: “I do not care for this job, and I can find such jobs anywhere.” Mr Iyer, who had kept silent, made a gesture suggesting that the respondent should be sent out of the room. Mr Mody asked the respondent to leave but he declined. Mr Mody then said, “All right, stand,” and on that the respondent left the room. Mr Mody and Mr Iyer held a short consultation, which resulted in the letter of dismissal being sent to the respondent. In considering the importance of the incident, it should be added that the proposed risk was of an exceptional character, both as to amount and as to the age of the proposer. The practice of the office was not to insure persons above the age of 50, and Keshavji was 52 at this time. Further, the practice was not to remain liable on any life in respect of a sum exceeding Rs 10,000, and it would therefore be necessary to re-insure for no less than Rs 40,000. Having regard, however, to the fact that Keshavji was insuring his life for a large sum with the Bombay Mutual Life Assurance Society, and that that society had been unsuccessfully seeking to re-insure with the company, it was obvious that a re-insurance to the amount of Rs 40,000 in respect of such a life might be very difficult to obtain on satisfactory terms.

The trial judge, as already stated, found that the respondent in his evidence had invented false incidents, imagined interviews which never took place, placed falsehoods into the mouths of people whom he did not venture to call as witnesses, and had put forward a fraudulent document. With regard to the proposals for re-insurance and for direct insurance on the life of Keshavji Manekchand, the respondent gave evidence that the proposal for direct insurance was received before the proposal for re-insurance, and that the reason why the latter proposal was refused was that Mr Iyer and the respondent, having discussed the matter together, agreed that there was no object in accepting a reinsurance proposal when the appellant company had already got a direct proposal for a larger amount. The judge, however, wholly disbelieved this story, and found that the facts were as set out above. The respondent went so far as to suggest in his evidence that the word “Decline” and the initials of Mr Mody on the re-insurance proposal dated 9 December

[1937] 3 All ER 67 at 72

1931, from the Bombay Mutual Society were not in fact written on the document at any time before the respondent’s dismissal, but were added by Mr Mody at some subsequent date, for the purpose of supporting the appellant company’s defence to the action. These suggestions also were wholly rejected by the trial judge. As regards the interview of 21 December 1931, which resulted in the respondent’s dismissal, it may be noted here as a remarkable fact that from first to last the respondent has given no intelligible explanation, apart from the false one above mentioned, of his conduct in recommending the risk (in the form of a 10 years’ endowment policy) without any reference to the fact that Mr Mody had, to his knowledge, and for a good reason, declined the re-insurance on the same life. It is not in dispute that, at the interview of 21 December, Mr Mody, with the consent of Mr Iyer, who was present throughout, began by asking for an explanation of the respondent’s conduct. It cannot be doubted that his conduct called for explanation. He, in fact, gave none. His own account of the interview at the trial, even if it could be believed, is wholly unsatisfactory. According to him, when he came into the room Mr Mody was very angry, and banged his fist on the table and asked in a loud tone why he had recommended Keshavji Manekchand’s proposal to the directors, and he said that he himself said that since the proposal had been received in the office it ought to be put before the directors, that Mr Mody thereupon said in a very loud tone, “I do not want this business to be accepted,” to which the respondent replied that it was his duty to put forward the papers, and that he was not taking any instructions from Mr Mody. The evidence of Mr Mody and Mr Iyer, which the judge accepted, was as set out above. The main point of difference between their version and the respondent’s was that they denied that Mr Mody had spoken angrily, and they spoke of the rudeness and violent manner displayed by the respondent.

Even if their Lordships could accept the view that the respondent was entitled to conduct the life insurance business without question or interference from Mr Mody, as to which they have above expressed their opinion, the respondent’s behaviour, according to his own statement, was intolerable. It is important to remember that, on the one hand, Mr Mody had, only a week before, told the respondent that Keshavji was his next-door neighbour, and that he did not approve of the risk. It could not be in any way proper to approve the risk and to forward it to the directors without a statement of these facts. Even if Mr Mody had no authority in the matter his view, founded on special knowledge, ought not to have been in effect suppressed. In the second place, Mr Iyer, who was admittedly the official in charge of the life department, and the respondent’s superior, was present, and, if the latter really doubted the authority of Mr Mody to require an explanation, what could be easier than to ask Mr Iyer if he authorised the question and desired an answer? According to his own account, the respondent refused to explain his conduct, and Mr Mody and Mr Iyer might very

[1937] 3 All ER 67 at 73

well come to the conclusion that it was not capable of any proper or satisfactory explanation. As regards the explanation which Mr Mody asked for, it should be added that he was clearly in a position which required him to make inquiries as to every matter touching discipline and the rightful conduct of business. To take a strong illustration, suppose that there was ground for thinking that an official had been bribed in relation to the acceptance of a risk, could anyone doubt that it would be the duty of the managing governor to make inquiries, and to submit the result of them to the managing agent? The notion that the circular (or any possible construction of it) furnishes an excuse for the respondent’s refusal to explain or to defend his action and omission, in relation to the risk, to both Mr Mody and Mr Iyer seems to them to be without foundation.

Their Lordships do not take the view that the outrageous conduct of the respondent at the trial, including his inventions of interviews, his false charges, and the tissues of falsehoods of which the trial judge has found him guilty, has any direct bearing, other than an evidential one on the question whether he was properly dismissed, but they must observe that, in so far as anything turns on the correctness of the view formed by Mr Mody and Mr Iyer as to whether it was reasonably possible for the company any longer to employ the respondent, his behaviour in the witness-box makes it exceedingly difficult to conclude that their view was a wrong one. If there were any doubt as to the real meaning of the respondent’s conduct at the interview, it would be removed by the letter written by his attorneys (on 13 January 1932), after his dismissal. They state their client’s view as follows:

‘On the 21st ultimo Mr. Mody tried to interfere with our client’s work and to dictate to him certain things which he had no right to do and which in our client’s opinion was a most improper thing to do. Our client naturally did not agree with Mr. Mody’s instructions. … Our client rightly resented this interference from Mr. Mody and stated to him that he was not prepared to take any instructions from him in the matter.’

Their Lordships find it impossible to understand how the managing governor of the company could properly supervise the business if a subordinate officer chose, not only to adopt this attitude, but in effect to overrule the decision of his superior, in a case in which the latter had peculiar means of knowledge as to the danger of accepting a risk. Nor did the respondent improve matters by instructing his solicitors, on 1 February 1932, to write a letter containing serious charges against Mr Mody of giving “improper instructions” to the respondent—charges which there was no attempt whatever to justify at the trial.

Their Lordships recognise that the immediate dismissal of an employee is a strong measure, and they have anxiously considered the evidence with a view to determine the question whether the trial judge was right in his finding that the respondent was guilty of gross negligence, which, coupled with his conduct at the interview of 21 December, was sufficient to justify his dismissal. On the one hand, it can be in exceptional circum-

[1937] 3 All ER 67 at 74

stances only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence; on the other, their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. Sir John Beaumont CJ was stating a proposition of mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded. Placing, however, all proper weight on these considerations, their Lordships have yet to determine, in view of the facts found by the trial judge, apart, of course, from the vital finding that the circumstances justified dismissal, whether the misconduct of the respondent was not such as to interfere with and to prejudice the safe and proper conduct of the business of the company, and therefore to justify immediate dismissal. It must be remembered that the test to be applied must vary with the nature of the business and the position held by the employee, and that decisions in other cases are of little value. We have here to deal with the business of life insurance. A mistake in accepting a risk may lead to a very considerable loss, and repetition of such mistakes may lead to disaster. The undertaking is one in which the undertaking of each individual risk is necessarily hazardous, and it is only by unremitting care and prudence that the business can profitably be carried on. If an officer of a life insurance company, whatever his motive may be, withholds from his superiors information which will in all probability lead them to refuse a risk, and a fortiori if it is one of exceptional character and magnitude, it would seem to be very difficult for his superiors to be confident that he will, in the future, properly carry out the important duties entrusted to him. In other words, if a person in charge of the life assurance department, subject to the supervision of superior officers, shows by his conduct or his negligence that he can no longer command their confidence, and if, when an explanation is called for, he refuses apology or amendment, it seems to their Lordships that his immediate dismissal is justifiable.

Some, at least, of the above considerations seem not to have been present to the minds of the judges on the appeal to the High Court. In particular, their Lordships cannot agree that the respondent was guilty of a mere error of judgment. They are satisfied, from the evidence given at the trial, that the respondent recommended the issue of the endowment policy, well knowing that the managing governor would have rejected it, and in the hope or the expectation that Mr Iyer would not remember the facts as to the re-insurance proposal. They take a serious view as to the interview of 21 December, and they draw a different inference from that of the judges as to the true meaning of the respondent’s behaviour. Further, and with all respect to the judges in the Appeal Court, they are of opinion that it is a mistake to consider the action of the respondent in approving the risk, and his conduct at the interview,

[1937] 3 All ER 67 at 75

as if these two matters could separately be excused or explained. They are in truth inseparable from the point of view of the action of Mr Mody and Mr Iyer in giving the notice of dismissal. On a review of the whole case, their Lordships must come to the conclusion that the trial judge was justified in his view of the facts, and in the conclusion at which he arrived.

For the reasons above stated, their Lordships are of opinion that the appeal should be allowed, the decree of the Division Bench set aside, and the decree of the trial judge restored. The respondent will pay to the appellant company its costs of the appeal to the Division Bench and of this appeal, in addition to the costs awarded by the trial court. They will humbly advise His Majesty accordingly.

Solicitors: E F Turner & Sons (for the appellant company); T L Wilson & Co (for the respondent).

T A Dillon Esq Barrister.

[Unlawful Dismissal] Sinclair v Neighbour

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The plaintiff was employed by the defendant, a bookmaker and the proprietor of betting shops, as the manager of one of the defendant’s betting shops at a salary of £22 per week and 5 per cent. commission on the net profits of the shop. The plaintiff took £20 out of the till, £5 for petty cash expenses and £15 which he borrowed for the purpose of placing a bet in another betting shop. He knew that if he had asked the defendant for permission to borrow money from the till for gambling, it would have been refused. The plaintiff put an IOU for £15 into the till, which he took out the next day when he repaid the money into the till, his bet having turned out to be successful. The defendant, on hearing

[1967] 2 Q.B. 279 Page 280

of what had happened, dismissed the plaintiff summarily. In an action by the plaintiff against the defendant for damages for wrongful dismissal, the judge held that, although the plaintiff’s conduct was improper and reprehensible, it was not dishonest, and, therefore, the defendant was not entitled to dismiss the plaintiff summarily; he, accordingly, awarded the plaintiff £88 damages (being four weeks’ salary) and ordered the registrar to take an account of the commission due to the plaintiff.

On appeal by the defendant:-

Held, allowing the appeal, that even though the plaintiff’s conduct might not have been dishonest, it was nevertheless conduct of such a grave and weighty character as to undermine the relationship of confidence which should exist between master and servant, and, therefore, the defendant’s summary dismissal of the plaintiff was justified (post, pp. 287D, 289A-C, 290B).

Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch.D. 339, C.A. applied.

APPEAL from Judge Baxter, sitting at West London County Court.

The plaintiff, Gerald Sinclair (hereinafter called “the manager”), was employed by the defendant, George Neighbour (hereinafter called “the employer”), who was a bookmaker and proprietor of betting shops, as the manager of the employer’s betting shop at Warwick Road, Kensington, W.8, in the county of Greater London. He commenced employment with the employer on March 23, 1965, as a settler and on March 29, 1965, was appointed manager at a salary of £22 per week and 5 per cent. commission on the net profits of the shop, commission to be payable monthly. On April 26, 1965, the manager came to the shop and found that he had no money on him. He said that he inadvertently left his wallet at home. He was a compulsive gambler and could not resist the urge to bet. He, therefore, took £20 out of the till, of which £5 was for petty cash expenses. He borrowed the remaining £15 for the purpose of placing a bet on his own behalf in another betting shop, putting an IOU for £15 into the till. He knew that the employer, if asked for his permission, would not have approved of borrowing from the till for the purposes of gambling. He placed his bet in another betting shop, which turned out to be successful, and on the next day he replaced the £15 in the till and took out the IOU. He told the two other employees in the shop, one of whom was a boy of some 18 or 19 years who was the grandson of the employer and the other an elderly man employed as a boardman, that he was borrowing the money. The boy told him that money had been borrowed from the till by

[1967] 2 Q.B. 279 Page 281

the previous manager. The other employee informed the employer on April 27, 1965, of what had transpired, and the employer thereupon summarily dismissed the manager.

In an action by the manager against the employer for damages for wrongful dismissal, the judge held that, although the manager’s conduct was improper and reprehensible, it was not dishonest and, therefore, the employer was not entitled to dismiss the manager summarily. He, accordingly, awarded the manager £88 damages (being four weeks’ salary at £22 per week) and ordered the registrar to take an account of the commission due to the manager. The employer appealed on the ground that the judge ought to have found that the manager’s conduct was dishonest or, alternatively, if not dishonest, that it was of such a character that the employer was entitled to dismiss the manager without giving notice.

Peter Bruce for the employer. This case is important for betting shops where large sums in cash pass through the hands of managers and other employees. In the present case the turnover of the shop in question was £1,000 per week. The judge accepted that the manager’s conduct was utterly reprehensible, and he said that he himself would have dismissed the manager immediately, but would have given the manager wages in lieu of notice. What that means on the judge’s findings is that an employer must pay £88 to an employee who has acted in this reprehensible way or else continue in employment a man who is completely unreliable. The employer submits that on the judge’s findings he should have held that the manager was dishonest and, therefore, that the employer’s summary dismissal of the manager was justified.

The judge has adopted the wrong test for deciding what amounts to dishonesty in cases of wrongful dismissal: he applied the test which is applicable in criminal law where a servant is accused of larceny, namely whether the particular accused person acted with a dishonest intent. That is a purely subjective test which is appropriate in criminal law. But in civil proceedings the test is not subjective, but objective. The position in civil proceedings for wrongful dismissal is that where a servant is guilty of a gross breach of good faith his employer is entitled to dismiss him for dishonesty. The employer submits that the taking of money by an employee out of the till when the employee knew that it would be forbidden by the employer, if the employer were asked for permission, is dishonest. The test in civil cases of dishonesty where

[1967] 2 Q.B. 279 Page 282

the question arises whether a dismissal is justifiable is: has the employee acted dishonestly, having regard to his obligations vis-à-vis the employer? The judge relied on the fact that the two other employees in the betting shop knew that the manager had borrowed the money and also upon the fact that the manager’s loan was not surreptitious. But those matters can have no relevance where the test is objective, although they may be highly material where the question is whether the employee subjectively had a dishonest intent.

The point in the appeal is whether a servant who, without consent, puts his hand into the till to do his own betting can be summarily dismissed. The employer submits that such conduct merits the term “dishonest”. It is per se dishonest.

Even if the manager is only to be regarded as guilty of gross misconduct, the employer was entitled to dismiss him summarily.

[SELLERS L.J. You pleaded that he dishonestly misappropriated the money in the till.]

If, though an employer pleads dishonesty, he proves gross misconduct he is still entitled to succeed. There is no onus on the employer to establish every word which he puts in his pleading. The question is whether he establishes sufficient to justify summary dismissal. Even if the employer be confined strictly to his pleadings, he can succeed by way of amendment. In any event, it is a rule of pleading that the greater includes the less. Even in criminal proceedings on indictment if the charge be that a servant stole £800 the prosecution does not fail simply because it is proved that he stole only £300. The judge here has misdirected himself in relying on the burden of the criminal law, whereas here the appropriate test is the approach of the civil law. Once the position is obtained that a man as manager admits to being a compulsive gambler with access to the till and admits that he has borrowed money without permission from the till he is unsuitable to continue as a manager, and his employer is entitled to dismiss him summarily. Otherwise the employer would be left in the quandary of having to keep in employment a person who is obviously unfit for the job: the law would never be so foolish as to require that. The fact that the servant does not think that what he has done is wrong is not a relevant matter: see perFry, L.J. in Boston Deep Sea Fishing and Ice Co. v. Ansell.1

The question here arises in contract, not crime. The question is: has the conduct of the employee amounted to a repudiation

1 (1888) 39 Ch.D. 339, 369, C.A.

[1967] 2 Q.B. 279 Page 283

of the obligations which he has undertaken under his contract of employment? If he has committed an act which is incompatible with the due discharge of his obligations under the contract, the employer can dismiss him summarily; see per Lord Esher M.R. in Pearce v. Foster,2 where a clerk who had speculated in differences on the stock exchange was held to have been justifiably dismissed summarily. The same principle is set out in Halsbury’s Laws of England, 3rd ed. vol. 25 (1958), p. 485, para. 934. The principle there stated is that if an employee does anything incompatible with the due and faithful discharge of his duty to his employer, his employer can dismiss him summarily. Even misconduct outside the course of a servant’s employment justifies summary dismissal. It must a fortiori be justifiable if it becomes impossible in practice for an employer to continue to employ an employee because of some act which he has done which is incompatible with his duty. The principle of Boston Deep Sea Fishing and Ice Co. v. Ansell3 is that, if a servant puts himself in a position where he has the temptation not to perform his duty faithfully, he can be dismissed without notice. The Court of Appeal there repudiated the view that, if the act in question was an isolated act, it could not be a breach by the employee of his employment which would justify his dismissal without notice: see per Bowen L.J.4 He said4 that if there is a violation of the relationship of confidence which should exist between an employer and an employee he can be dismissed. The employer submits that the manager’s misconduct in the present case was of such a gross nature and so immediate in its effect that it properly merited and required peremptory dismissal. Here is a man in a position of trust with money in his care and with employees under his supervision who abused that trust and dishonestly interfered with that money. The judge was in error in saying that he would dismiss the employee and yet pay him money in lieu of notice. If an employer is entitled to dismiss his employee, there is no need for the employer to offer any money to the employee. An employer can always dismiss an employee by giving him notice, or by offering him wages in lieu of notice, without assigning any reasons. It is only where there is a breach of contract which goes to the root of the employment that the employer is entitled to dismiss the employee without notice. Where he is entitled to dismiss the employee without notice, he need not offer any money.

2 (1886) 17 Q.B.D. 536, 539; 2 T.L.R. 534, C.A.
3 39 Ch.D. 339.
4 Ibid. 363.

[1967] 2 Q.B. 279 Page 284

David Croft for the manager. The basic finding of the judge is that the manager was not dishonest. The manager inadvertently left his wallet at his home and he had sufficient money in his wallet to repay the money which he borrowed from the till. Moreover, he had an intention to repay. Where there is an intention by a person who borrows money to repay that money and he has a capacity to repay that money there cannot be a finding of dishonesty: Reg. v. Williams.5

[SELLERS L.J. That is evidence of whether there is dishonesty to go before the jury in a criminal case. But do you require conviction for dishonesty before you can dismiss your servant?]

Honesty must be the same in civil as in criminal law. It is not suggested that any act which is not criminal cannot be dishonest. It is admitted that the two are not necessarily co-extensive. But having shown that the manager took the money from the till, then unless it can be proved that there was a dishonest intent on his part it would not be a crime and would not constitute dishonesty. The quality of the act must be the same in whatever branch of the law the court is concerned. The test of honesty must depend on whether there is a corrupt intent. A lie need not necessarily be dishonest; it can be a white lie which is told to prevent humiliating someone’s feeling. The case here was throughout treated on the basis of whether the manager was dishonest. The employer was entitled to dismiss the manager only if the manager was dishonest, and he was not entitled to dismiss him on the ground that the manager had been guilty of some improper conduct which fell short of being dishonest. First, because the employer pleaded his case in that way and should be bound by his pleadings. An allegation of dishonesty is a serious allegation, and it was the allegation which was made in the pleadings, the correspondence between the parties before action, and throughout the case at the trial. Secondly, the manager having been dismissed on the ground of dishonesty and of theft, had then to find other employment where he had to be prepared to meet the allegation. It was a serious allegation to make reflecting as it does on his character and he was entitled to rebut it. Therefore, the sole question before the judge was whether he was guilty of dishonesty, that is to say of a corrupt intent. Although the question here arises in contract, one must decide whether the conduct of the manager was dishonest. For this purpose the principle that the greater includes the less does not apply because the misconduct

5 [1953] 1 Q.B. 660; [1953] 2 W.L.R. 937; [1953] 1 All E.R. 1068, C.C.A.

[1967] 2 Q.B. 279 Page 285

different character. A servant cannot be dismissed on the ground of misconduct merely because of a lapse on his part: see per Lord Esher M.R. in Proctor v. Bacon.6

[SELLERS L.J. There the reason given for the dismissal was a trivial one.]

In the present case the allegation of dishonesty was raised and, if that had been proved by the employer, that would have been sufficient to justify the summary dismissal of the manager. But if he has to rely on misconduct, then there are two elements to consider: first, the breach of the relationship of confidence between the employer and the employee, and secondly, the gravity of the breach of that relationship. It is necessary in weighing the gravity of the breach to go into all the circumstances of the case. The court would need to investigate the relationship in the present case between the manager and the grandson of the employer who was employed in the betting shop and also the question whether the manager could reasonably assume that he need not telephone the employer for permission for the loan. In view of the nature of the pleadings the judge did not investigate the relationship between the parties in all the circumstances of the case. All that was investigated was the fact that the manager borrowed the money from the till, repaid it the next day, and that the employer would not have given permission for that loan. There is also the fact that it was an isolated case of borrowing from the till when the manager had inadvertently left his wallet at home. There is no suggestion that the manager permitted the other employees to borrow from the till nor any suggestion that he habitually gambled while he was in charge of the shop or habitually borrowed from the till. It is necessary to look at the manager’s behaviour and at the background to the whole case to see if his misconduct was sufficiently serious to merit instant dismissal. If an allegation of misconduct had been pleaded in the alternative by the employer, those matters would have been investigated. Failure on the part of the employer to plead misconduct as a ground for dismissal of the manager has meant that these matters were not investigated in the court below. Therefore, the employer should be bound strictly by his pleading and since he pleaded dishonesty and relied on dishonesty as a ground for dismissing the manager he should prove it or else fail in his defence.

6 (1885) 2 T.L.R. 845.

[1967] 2 Q.B. 279 Page 286

[SACHS L.J. An employee takes money without his employer’s knowledge, behind his employer’s back and against his wishes. Is that not dishonest?]

There would be no dishonesty if there was no corrupt intention. The court would not be whittling down any standard of conduct by saying that that conduct would not be dishonest. The note to R.S.C., Ord. 18, r. 12 at p. 385 of The Annual Practice (1966) says that the facts relied on as particulars of misconduct must be stated with especial particularity and care. In the present case that was not done. Unless the employer can prove dishonesty on the part of the manager, he is not entitled to succeed in his defence. For that was the ground upon which he relied and that is the ground which it falls upon him to make out. The fact that the manager’s conduct was improper cannot be investigated now so as to see whether it was sufficiently serious to justify dismissal without notice. For the Court of Appeal is not aware of all the circumstances of the case and unless it is aware of all the circumstances that matter cannot be decided. The judge’s finding that the manager was not dishonest was right and should not be disturbed. Therefore, the appeal should be dismissed.

Peter Bruce was not called upon to reply.

SELLERS L.J. In this case the employer might well have been content in all the circumstances to have left the judgment of the judge where it was. But he has thought fit to appeal, and this court has to deal with it and seek to draw the right conclusions from the evidence. The manager claimed damages for wrongful dismissal. He had been employed for very little more than a month. He had come on the staff for a short time in the employer’s business and had been made on March 29, 1965, the manager of a betting shop in Warwick Road, Kensington, the employer being a bookmaker and the owner of that and other shops as well. The manager was given peremptory notice of dismissal on April 27, 1965. The ground of dismissal which was alleged against him in the pleading was misconduct, which in the particulars was developed into dishonest misappropriation of some money. It appears that in that short interval of time the manager had taken some money out of the till because he wished to place a bet – outside the business. He seems, on the day before he was dismissed, on April 26, to have taken £5 out of the till – which he said he was entitled to take for petty cash: the matter is left obscure as to what happened to that – and in addition he

[1967] 2 Q.B. 279 Page 287

took £15, went outside, and used it to back some venture. Apparently, that was successful. It is said that he put in an IOU; and he repaid the money the next day.

This case turns on the attitude which the employer could properly take to that conduct. It seems that the manager not infrequently used to telephone to the employer. He said he did it too often and so he did not think he would do it again over this matter. He took the money without asking. He thought that if he had asked, the employer might have lent him the money for some purposes, but that if he had told the employer that it was for betting the employer would not have agreed. He would not have permitted it. In my view, whether such taking of the money would have resulted in a conviction for larceny or for dishonest misappropriation of the money does not arise. On these facts a jury might have taken the view that they would not convict. But whether it is to be described as dishonest misconduct or not, I do not think matters. Views might differ. It was sufficient for the employer if he could, in all the circumstances, regard what the manager did as being something which was seriously inconsistent – incompatible – with his duty as the manager in the business in which he was engaged.

To take money out of the till in such circumstances is on the face of it incompatible and inconsistent with his duty. Some people might well say that to take money out of the till, when the manager knew that if he had asked if he could do it for the purpose which he might have had to disclose it would have been refused, is dishonest conduct. The question for this court to decide is whether, in the circumstances of this case, it was conduct in its nature, as it has been described, quite irrespective of any point of pleading, which justified the employer instantly dismissing the manager.

I think that it was. Counsel referred to some of the cases. I do not think that I need refer to them further. The whole question is whether that conduct was of such a type that it was inconsistent, in a grave way – incompatible – with the employment in which he had been engaged as a manager.

There was an aggravating feature, I think, in that there were in the office two others, including one boy who was only some 18 or 19 years of age who had said something about borrowing money out of the till and it was said that it had been done before. On a new manager coming in, I should have thought that the one thing that was incumbent upon him was to keep the

[1967] 2 Q.B. 279 Page 288

till inviolate. The practice of taking money out of the till in that way, as all who have had experience in criminal courts know, can lead to endless trouble.

On the short facts of this case, and applying the law as I understand it, since we have been asked to do so, I would not hesitate to say that the dismissal was justified. I would allow the appeal accordingly.

DAVIES L.J. I agree.

The judge, in his very careful judgment, concentrated really on the employer’s pleading, in which was set out the alleged justification for the summary dismissal of the manager. In paragraph 3 it was stated:

“It was an implied term of the contract that the [manager] should not misconduct himself in the [employer’s] service, but before [April 27, 1965] the [manager] so misconducted himself and thereupon the [employer] dismissed him. …”

Under the particulars of that it was said:

“On April 26, 1965, the [manager] dishonestly appropriated to his own use the sum of £20, being money belonging to the [employer], or, in the alternative, money received by the [manager] for the use of the [employer] or his firm.”

There were various other further and better particulars.

It is perfectly true, as Mr. Croft pointed out in his argument, that the allegation throughout was one of dishonesty. The judge, having found the facts as they have been indicated by my lord, said:

“The reason given in the defence” – that is, for the dismissal – “is that the [manager] dishonestly misappropriated his employer’s money. He certainly misappropriated the £15. He knew that his employer would not have given leave to take the money for gambling. But I doubt that he took the money dishonestly. He was responsible for all money and would have to replace losses: he put in an IOU. He knew he would have to find the money as manager. He did return the money and before he was found out. He called attention to the fact that there was a deficiency and thereby invited an investigation. He told his subordinates that he was borrowing the money. He made no secret of the matter, though he could have borrowed surreptitiously. I have to come to the conclusion that, much as I disapprove of the [manager’s] conduct and sympathise with the [employer], I do not think that the [manager] was dishonest; his conduct was misguided foolish, improper and reprehensible, but not dishonest and that is what is pleaded.”

[1967] 2 Q.B. 279 Page 289

With the greatest respect to the judge, I think that he fell into error in attaching too much weight to the label and not enough to the facts. The facts were established. The fact that the manager took the money from his employer’s till behind his back knowing that the employer would not consent was established; and it seems to me that it does not really matter very much whether that justifies the label “dishonest” or not. The judge ought to have gone on to consider whether even if falling short of dishonesty the manager’s conduct was nevertheless conduct of such a grave and weighty character as to amount to a breach of the confidential relationship between master and servant, such as would render the servant unfit for continuance in the master’s employment and give the master the right to discharge him immediately.

In my judgment, on the facts of this case the manager’s conduct clearly fell within that latter category; and I have no doubt at all that the employer was, therefore, entitled to dismiss him.

I would merely add something on another point made by Mr. Bruce for the employer. The judge, as I have said, came to the conclusion that the manager’s conduct was quite reprehensible and that, had the judge been the master in similar circumstances, he would himself have dismissed the manager instantly. Nevertheless, the judge, having come to the conclusion that he did, went on to hold that the manager was entitled to £88, which was four weeks’ wages, in lieu of notice, plus commission for the appropriate period. It does seem to me to throw a most tremendous burden on an employer, who finds that his servant has been guilty of “reprehensible, foolish, improper, misguided conduct,” that he must either leave him in office for whatever is the appropriate period of notice, when ex concessis he is unfit for the office, or, alternatively, give him wages in lieu of notice, and, semble, pay somebody else to do the job. That would seem, in the circumstances of this case, to be a wholly unreasonable position for the master to be forced into. I agree that the appeal succeeds.

SACHS L.J.: It is well-established law that a servant can be instantly dismissed when his conduct is such that it not only amounts to a wrongful act inconsistent with his duty towards his master but is also inconsistent with the continuance of confidence between them. That was said by Bowen L.J. in his classic judgment in Boston Deep Sea Fishing and Ice Co. v. Ansell.1

1 (1888) 39 Ch.D. 339, 363, C.A.

[1967] 2 Q.B. 279 Page 290

Here we have a case where the manager of a betting shop, responsible for the conduct of the shop and of the other employees there, quite deliberately takes out of the till money for his own personal purposes, in circumstances which he knew quite well his employer, if asked, would not permit.

To state those facts quite simply seems to me enough to make plain that here indeed there was beyond a peradventure misconduct of a type which justified instant dismissal; and I agree with the judge’s view where he uses the adjectives “utterly reprehensible” and “improper” in regard to that conduct.

I would add that, where you get such wrongful conduct as goes to the basis of confidence between employer and employee, it is wrong to suggest (as the judge did) that such a set of circumstances ought in law not to be met by immediate dismissal, unless accompanied by a payment of money in lieu of notice.

For my part, I go a little further, as regards my description of the conduct of a manager which I have just described. As between the employer and the employee (and that seems to me to be the cardinal matter), where the former deliberately takes money illicitly behind the back of his employer and appropriates it, even temporarily, for his own use, knowing that the employer would disapprove, that is sufficient, to my mind, to establish that as between the employer and the employee that conduct is dishonest. I agree, and would allow the appeal.

Solicitors: Bower, Cotton & Bower for Kidd, Rapinet, Badge & Co., Slough; Donald Silk & Co.

N. P.

[Unlawful Dismissal] Laws v London Chronicle

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A few weeks after the plaintiff had joined the employ of the defendant company she was dismissed summarily for disobeying an order given by the chairman and managing director. During a business meeting which the plaintiff had been required to attend, the plaintiff’s immediate superior, D., had an altercation with the chairman and managing director and D. left the meeting, inviting the plaintiff and another employee to accompany him. The chairman and managing director told the two employees to stay where they were but they both left the room. Having been summarily dismissed, the plaintiff brought proceedings:—

Held , that this single act of disobedience did not justify the summary dismissal of the plaintiff; it was not an act showing a wilful disregard of the essentials of the contract of service which amounted to a repudiation of the contract by the plaintiff; accordingly the plaintiff was entitled to damages for wrongful dismissal.

Dictum of Lord James of Hereford in Clouston & Co. Ltd. v. Corry [1906] A.C. 122, 129 applied.

Turner v. Mason (1845) 14 M. & W. 112 distinguished.

[1959] 1 WLR 698 at 699

APPEAL from Judge Dale, sitting at the Westminster County Court.

By a letter dated May 28, 1958, the defendant company offered the plaintiff employment as an “advertisement representative” at a weekly salary of £10 with 5 per cent. commission. The employment was expressed to be terminable on either party giving one month’s notice. The letter was signed by one Delderfield, the manager of the advertising staff. On Friday, June 20, the plaintiff and the other members — of the advertisement staff were required to attend a meeting in the room of the chairman and managing director, a Mr. Brittain. The meeting was convened to hear observations of a Mr. Blakey, on matters of business efficiency. During the meeting Mr. Brittain had an altercation with Delderfield. It was suggested that Delderfield was drunk and that he needed black coffee to calm him. He said that he would stand no more and would go “taking the staff” with him. He did leave, inviting his two juniors to accompany him. Brittain said to them “Stay where you are,” but they both left the room.

On the following Monday, June 23, when the plaintiff attended the defendants’ premises she was handed a letter, addressed to her by the secretary, which stated:

As a result the plaintiff left the service of the defendant company.

She brought proceedings for wrongful dismissal and claimed damages. The defendants denied that she had been dismissed, but said that, if there was dismissal, it was not wrongful. The county court judge awarded her £45 damages and costs, and the defendants appealed on the issue of wrongful dismissal only.

LORD EVERSHED M.R. stated the facts and continued: It is the corner-stone of Mr. Stable’s case that there was in truth nothing that a self-respecting employer could do but to dismiss summarily: for here was an order given — “Stay where you are” — and disobeyed. Mr. Stable has cited authority — of antiquity, but none the less of respectability — to show that disobedience (as he contends) of any order that is lawful entitles the employer to dismiss the servant summarily. In Turner v. Mason³ a domestic servant — quite deliberately, because she had made a request[1959] 1 WLR 698 at 700which was rejected — absented herself during a certain night when she should have been on duty; and her plea of justification was that her mother was desperately ill — though it is not clear that she so informed her employer. She was dismissed; and the court of Queen’s Bench affirmed the view that the dismissal was justified. I will not read the judgments of Parke C.B. and Barons Alderson and Rolfe; but it would in my judgment be going too far to say that any of those judges laid it down as a proposition of law that every act of disobedience of a lawful order must entitle the employer to dismiss. I think that cannot be extracted from the judgments; and I am satisfied that it is too narrow a proposition as one of law.

The law to be applied is stated (for example) in the paragraphs of Halsbury’s Laws of England, 3rd ed., Vol. 25, at pp. 485 and 486, to which Mr. Stable referred us in reply; and I will cite a sentence or two as a foundation to what follows. “Wilful disobedience to the lawful and reasonable order of the master justifies summary dismissal.” Then, a little later,

Later, again,

And in one of the footnotes on that page there is a further statement, in reference to Edwards v. Levy,⁴ observing that in that case

To my mind, the proper conclusion to be drawn from the passages I have cited and the cases to which we have been referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that the question must be — if summary dismissal is claimed to be justifiable — whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard — a complete disregard — of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master, and that unless he does so the relationship is, so to speak, struck at fundamentally.

In the passages which I have read, it will be remembered, there is a statement “… there is no fixed rule of law defining the degree of misconduct which will justify dismissal.” That statement is derived from the judgment of the Privy Council delivered by Lord James of Hereford in the case to which Mr.[1959] 1 WLR 698 at 701Stewart referred of Clouston & Co. Ltd. v. Corry.⁵ I will read a rather larger passage which provides the context. Lord James said:

In the present case, the judge, in the course of his judgment, said:

and later he concluded, in the plaintiff’s favour, that what she had done, or not done, on June 20 was not sufficiently grave to justify dismissal.

With all respect to the judge, I think that his proposition is not justified in the form in which he stated it. I think it is not right to say that one act of disobedience, to justify dismissal, must be of a grave and serious character. I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that you find in the passages I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.

If I have stated correctly the basis of the law to be applied, let me return to the facts of this case. I do not narrate again the circumstances in the chairman’s room on the afternoon of June 20, 1958. But the plaintiff said:

I have no doubt that the judge (who saw the witnesses) believed her: for, in the final paragraph of his judgment, he said:

As I have said, I take it (and no ground for a contrary view has been put to us) that the judge did accept her as a witness of truth. The situation was plainly one which was as embarrassing as it was unpleasant for her; and in the circumstances, with her immediate superior walking out and asking her to follow, I am satisfied that it cannot be said that her conduct[1959] 1 WLR 698 at 702did amount to such a lawful disobedience of an order, such a deliberate disregard of the conditions of service, as justified the employer. in saying “I accept your repudiation: I treat the contract as ended: I summarily dismiss you.”

I am a little comforted, I must say, by the circumstance that, when Mr. Campbell wrote his letter on Monday, June 23, he did, after all, refer to Mr. Brittain’s remark “You stay where you are,” not as an order, but as a “request.” It was in truth not really an order related to her duties as advertisement representative: it was a wise direction for him to have given in order to try to create out of disorder something more seemly in his room on the afternoon in question.

For those reasons, though I have, as I say, felt that the judge in his brief statement may not quite correctly have stated the law to be applied, and to that extent I accept the argument put to us by Mr. Stable, none the less in the end I come — and I come, I must say, unhesitatingly — to the same conclusion as the judge; and would dismiss the appeal.

LORD JENKINS. I agree; and cannot usefully add anything.

WILLMER L.J. I also agree.

E. D.

[Unlawful Dismissal] Denco Ltd v Joinson

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The employee, who was a sheet metal worker and who was also a trade union shop steward, was an authorised user of the employers’ computer with his own password which permitted him entry to the menu containing engineering information. He was accused by the employers of using the identity code and password belonging to an employee of the employers’ wholly owned subsidiary company, which used the same computer, to obtain access to information which could be of use to him in his trade union activities and hostile to the interests of the company. The employee admitted that he had obtained access to unauthorised information but claimed that he had done so by accident. He was summarily dismissed for gross misconduct and on his complaint of unfair dismissal, an industrial tribunal found that the employers were reasonable in concluding that the employee had deliberately gained access to unauthorised information but that they had not given any reasonable ground for their conclusion that his purpose was illegitimate and that his dismissal was therefore unfair.

On the employers’ appeal: —

Held , allowing the appeal, that if an employee deliberately used an unauthorised password in order to enter a computer known to contain information to which he was not entitled, that was of itself gross misconduct which prima facie would attract summary dismissal; that the industrial tribunal had misdirected themselves in law in requiring the employers to show reasonable grounds for believing that the employee had an illegitimate purpose in obtaining access to a particular programme and the case would be remitted to the tribunal for further hearing (post, p. 335A–B, E–G).

Per curiam. Unauthorised use of or tampering with computers is an extremely serious industrial offence. However it is clearly desirable to reduce into writing rules concerning the access to and use of computers and not only to display them but to leave them near the computers for reference (post, p. 336B–D).

The following cases are referred to in the judgment:

Parsons (C.A.) & Co. Ltd. v. McLoughlin [1978] I.R.L.R. 65, E.A.T.

Polkey v. A.E. Dayton Services Ltd. [1987] 1 W.L.R. 1147; [1987] I.C.R. 301; [1987] 1 All E.R. 984, C.A.; [1988] A.C. 344; [1987] 3 W.L.R. 1153; [1988] I.C.R. 142; [1987] 3 All E.R. 974, H.L.(E.)

No additional cases were cited in argument.

APPEAL from an industrial tribunal sitting at Hereford.

In April 1988, the employee, Michael Joinson, presented a complaint that he had been unfairly dismissed by the employers, Denco Ltd. By a decision sent to the parties on 20 September 1988, the industrial tribunal upheld his complaint. The employers appealed on the ground that the[1991] 1 WLR 330 at 331industrial tribunal had erred in law in failing to hold that the employee was guilty of gross misconduct because he deliberately used an unauthorised password to gain access to the computer and that his motive was immaterial.

The facts are stated in the judgment.

Cur. adv. vult.

14 November. WOOD J. handed down the following judgment of the appeal tribunal. By an originating application of April 1988 Mr. Joinson, the employee, complained that he had been unfairly dismissed by his employers, Denco Ltd. An industrial tribunal sitting at Hereford under the chairmanship of Mr. Bird heard the case on 15 June 1988 and found in his favour. The employers now appeal. The matter came before us on 4 October 1989 at a preliminary hearing, when it was adjourned for full argument inter partes as the industrial members then sitting and those who are now sitting hold the view that it raises important aspects of conduct in the modern industrial world where computers play such a large role.

The industrial tribunal heard a number of witnesses and we have been supplied with admirably clear notes of evidence given by them. There were also a number of exhibits including a statement from the computer manager, Mr. Baker, and several computer print-outs. The industrial tribunal did not express any clear preference for the evidence of one witness rather than another save in connection with an interview and conversations between the employee and Mr. Walker, the manufacturing director, shortly after the crucial events of the night of 2 to 3 March 1988 in which instance they preferred the version given by the applicant. Otherwise, the facts do not seem to be seriously at issue and it is in the interpretation of those facts that the questions lie. The employers, from premises at Hereford, manufacture air drying and conditioning equipment used with computers. They employ some 300 people. Also based at Hereford is a wholly-owned subsidiary which makes raised module floors for computer suites. It is called, Intek Floors Ltd. (“Intek”).

At the relevant time the employee was aged 42. He had worked with the employers since 1967. He was a skilled sheet metal worker. He became a shop steward with the Amalgamated Engineering Union (“A.E.U.”) and had been appointed chairman of the joint representative committee comprising the A.E.U. and three other trade unions. Whilst the employees at the employer company had been represented by trade unions for some time, it was only recently that the A.E.U. had been recognised at Intek. There is nothing to say when that change came about. The employee was someone trusted by management and to whom in the past confidential information had been given — presumably in connection with his trade union responsibilities.

Some time before March 1988, described by the industrial tribunal as “recently,” the employers installed a new computer. Prior to that it was “positively encouraging people to operate the V.D.U. even if their jobs did not strictly require it.” Upon reading the evidence and as we have had it explained to us, the system existing at the beginning of March[1991] 1 WLR 330 at 3321988 was as follows. The same computer was in use for the employers and Intek. It had some 30 terminals. Within the computer there were a number of different sections or “menus” which were designed to provide all the information which was considered necessary for a particular department or departments within the company. Once a “menu” was on display the user could proceed further under various headings to obtain other and more detailed information. The reasons for the menus were two-fold. First to protect the information against accident, such as power cuts or malfunction, and secondly, for security and confidentiality.

In order to obtain access to a menu a user was required to enter a user identity code, usually the christian name of the authorised user, or where there was a group of authorised users, the christian name of the most senior. The next requirement was to insert the password. One would think it too obvious to need further explanation but a password was issued to limit access to the menus and thereafter the detailed information within it only to those authorised to have and to use it. This whole system was on a “need to know basis” and it was presumably because passwords might become more generally known during daily use within a department that they were changed every four to six weeks.

The system also had a history file built into it. Every single key stroke at any terminal was recorded on that system with the exception of passwords and the printouts were kept for a period of some two to three weeks. By reference to the history file it was possible to reconstruct all steps that were being taken in relation to any matter should this be necessary for the management to know.

The employee was an authorised user of the computer. He was a charge-hand on the night shift and a temporary supervisor. He was in a position of trust and had his own password which permitted him entry to the menu relevant to his position and expertise as a skilled sheet metal worker. This would be in the main engineering information.

To exit from the computer one pressed “two” then “four” then “enter.” This the employee knew as indeed did the other users.

The employee has a daughter — then aged 16. She had recently started training as an employee at Intek. Mrs. Tegwin Morse worked in the wages department at Intek. She and presumably those working with her had a password to gain access to a menu. The employee’s daughter had heard the password and also Mrs. Morse’s identity of “Teg” short for “Tegwin.”

The employee told the industrial tribunal that on 3 March he knew three passwords, including his own and one which he had heard from his daughter within the previous two to three weeks. She had explained during tea time at home that she had been working on the V.D.U. She told her father that the user identity being used was “Teg” and that the password was “Taff.” When told of the user identity the employee knew that this was Mrs. Morse. During that same conversation he in fact told his daugher his own password. We cannot think why.

On the night of 2 to 3 March 1988 the employers were running a major data processing operation on the central system. It was being done overnight because it required considerable computer time. The employee was working on the night shift in charge of the sheet metal workers and it was only that group or department which would have required any information from the computer during the night.

When the senior programmer arrived at the company on the morning of 3 March he called up the history file to ascertain whether the[1991] 1 WLR 330 at 333appropriate functions had been carried out for the overnight operation. He noted with surprise that other later operations were also shown which appeared to be unauthorised. This matter was brought to the attention of Mr. Baker, the computer manager.

The relevant printout was before the industrial tribunal and it showed that at 03.58 hours Mrs. Morse’s user identity “Teg” had been inserted, followed by a password. The first time that the password was entered it was incorrect and subsequently the correct password “Taff” was inserted. This clearly shows an intent deliberately to obtain access to that menu. Thereafter the menu appeared on the V.D.U. and this showed a choice of 13 operations. Number three was “printlist of customers.” The printout shows that no. 3 button was then pressed followed by the “enter” button. In fact nothing thereafter showed on the V.D.U. because an embargo had been placed on the screen in respect of the list of customers. However, at the master console from which the history file was being recorded a list of customers was in fact printed out. At the end of that operation the user signed off using first “two,” then “four,” and then “enter.” We would only add that of course you can erase if you make a mistake.

Mr. Baker spoke to the manufacturing director, Mr. Walker. He made inquiries of a Mr. Harman, the supervisor and Mr. Lewis, his equivalent on the day shift. He then tried to telephone the employee but the telephone was engaged. The employee learnt that Mr. Walker wished to see him and telephoned on the evening of Thursday 4 March and came in to see him at about 6 p.m.

It was clear from the printout that prior to the entries which gave rise to the inquiries the employee had quite properly and legitimately obtained necessary engineering information from the computer during that night.

At the interview Mr. Walker asked about the entries on the printout to which we have referred above. Initially the employee denied all knowledge. However, it is common ground that within a very short time he admitted to Mr. Walker and to Mr. Harman and the production manager, Mr. Chatterley, who were present, that he had gained access to the Intek file. His case was that he had been reluctant to disclose the fact because the information had come from his daughter; that he had done so by accident; that he had tried to get out; and then had pressed the wrong button.

Later on Friday 4 March the employee was told by Mrs. Griffiths, the personnel manager, that both he and his daughter were suspended on full pay pending further investigation. This surprised him because he had understood from his conversations with Mr. Walker that a less serious view might be taken of the position.

On 8 March he attended a meeting and was interviewed by Mr. Walker, Mr. Carter and Mrs. Griffiths. The employee explained that he was “playing around with the system” but this was not accepted by the management. A meeting was held the following day, Wednesday 9 March, and the employee was told that he was to be dismissed for gross misconduct. He launched an appeal which was heard on Friday 11 March by Mr. Carter; Mr. Walker was again present. His appeal was dismissed. On the following Thursday, 17 March, the local A.E.U. organiser and the area organiser spoke to Mr. Walker and Mrs. Griffiths in the presence of the employee accepting that he had done wrong but asking for leniency. The decision to dismiss was upheld.

[1991] 1 WLR 330 at 334

As set out in paragraph 15 of the industrial tribunal’s reasons the employers’ case was put as follows. They claimed that the decision to dismiss was reasonable for seven reasons:

“1. What the employee did was not considered accidental i.e. he intended to call up on the V.D.U. screen information about Intek. 2. The employee’s daughter had just joined Intek in the marketing department. 3. The employee had no business entering Intek’s password and playing around with Intek data. 4. The Intek company file contained confidential information and other options could have been chosen which also contained confidential information. 5. He used the code/password of Mrs. Morse who was responsible for wages. 6. He was A.E.U. representative for the respondent shop floor and the shop floor at Intek had also recently become members of the A.E.U. 7. It was obvious and clear that confidential information related to Intek and its customers, size of orders, wages and salaries of staff could be useful to the A.E.U. at Intek in negotiations with management.”

Of the seven reasons the industrial tribunal say this in paragraph 17:

The tribunal then continue in paragraph 18:

Later in paragraph 21 they say:

The employers argue that their case has been misunderstood. First, it was not necessary that in order to found a dismissal for gross misconduct management should be satisfied that there was a particular motive. It is quite sufficient to prove that an employee has deliberately used an unauthorised password to enter the computer. In fact, in the present case the employee was in a position of trust, knew how to operate the computer and was authorised to use it for some limited purposes.

[1991] 1 WLR 330 at 335

Secondly, the employers argue that if the motive of the employee is in any way material, it would only be that the management entertained a reasonable suspicion that the entry was for an improper motive.

The industrial members are clear in their view that in this modern industrial world if an employee deliberately uses an unauthorised password in order to enter or to attempt to enter a computer known to contain information to which he is not entitled, then that of itself is gross misconduct which prima facie will attract summary dismissal, although there may be some exceptional circumstances in which such a response might be held unreasonable. Basically, this is a question of “absolutes” and can be compared with dishonesty. However, because of the importance of preserving the integrity of a computer with its information it is important that management should make it abundantly clear to its workforce that interfering with it will carry severe penalties. Although it is not necessary to decide the practice in this case, cases may yet arise where evidence will show that the very tampering itself could produce malfunction with consequent damage and loss of information.

An analogy may be drawn with a situation where an employee enters the management offices of a company where he has no right to be, goes into an office, sees a key on the desk which he knows is the key to the filing cabinet which contains information to which he is not entitled and thereafter opens the filing cabinet and takes out a file.

If in the present case it had been material to consider whether there was evidence which in all the circumstances entitled management reasonably to have suspicion about the employee’s motive or purpose, then the present industrial members take the view that there was abundant such evidence. I agree with them.

When considering the issue of motive the industrial tribunal at one point say:

With respect that does not seem to us to be the point. The issue is what did the employee contemplate he might obtain by way of information by using the password of the wages department at Intek — a company by which he was not employed and the only connection with which would have been as a negotiator of pay.

It follows therefore from what we have said that we take a different view from that of the industrial tribunal of what can constitute gross misconduct in this case and also of the analysis of the employers’ argument. The employers have therefore succeeded in showing that there is a flaw in the industrial tribunal’s reasoning. What should we do? Are the facts so clear that we can safely reach our own conclusion on the approach which we have indicated or should the case be remitted?

The industrial tribunal was extremely critical of the security arrangements made by the employers in connection with use of the computer. It may be that in the light of the indications made above another industrial tribunal would take a less serious view. We have in mind a comment made in an earlier decision of this appeal tribunal, C.A. Parsons & Co. Ltd. v. McLoughlin [1978] I.R.L.R. 65. The conduct which was suggested to be gross misconduct in that case was[1991] 1 WLR 330 at 336fighting and the passage to which we would refer is in the judgment given by Kilner Brown J. where he said, at p. 65, para. 3:

It must surely be common sense that where a system such as the present has been instituted that the unauthorised use of a password is a very serious matter indeed. If it is not so realised by industry generally then perhaps this case will make it so. Unauthorised use of or tampering with computers is an extremely serious industrial offence. However it is clearly desirable to reduce into writing rules concerning the access to and use of computers and not only to post them but to leave them near the computers for reference.

This industrial tribunal was also by implication somewhat critical of the procedures without reaching a conclusion. It therefore seems to us that the employee should be entitled to re-argue his case on the fresh approach which we have indicated and to seek to persuade a fresh industrial tribunal that the principle of Polkey v. A.E. Dayton Services Ltd. [1987] 1 W.L.R. 1147 applies.

It also seems to us rather too bold a step, upon the assumption that this was a dismissal rendered unfair on procedural grounds, to proceed to the conclusion which may eventually become self-evident that this is not a case where any award should be made: section 74(1) of the Employment Protection (Consolidation) Act 1978.

We are therefore of the view that justice requires that this case be remitted for rehearing in accordance with any directions which may be given by the regional chairman.

J. W.

[Police Power] Collins v Wilcock [1984] 3 All ER 374

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Two police officers on duty in a police car observed two women in the street who appeared to be soliciting for the purpose of prostitution. One of the women was known to the police as a prostitute but the other, the appellant, was not a known prostitute. When the police officers requested the appellant to get into the car for questioning she refused to do so and instead walked away from the car. One of the officers, a policewoman, got out of the car and followed the appellant in order to question her regarding her identity and conduct and to caution her, if she was suspected of being a prostitute, in accordance with the approved police procedure for administering cautions for suspicious behaviour before charging a woman with being a prostitute, contrary to s 1^a of the Street Offences Act 1959. The appellant refused to speak to the policewoman and walked away, whereupon the policewoman took hold of the appellant’s arm to detain her. The appellant then swore at the policewoman and scratched the officer’s arm with her fingernails. The appellant was convicted of assaulting a police officer in the execution of her duty, contrary to s 51(1)^b of the Police Act 1964. She appealed against the conviction, contending that when the assault occurred the officer was not exercising her power of arrest and was acting beyond the scope of her duty in detaining the appellant by taking hold of her arm. The police contended that the officer was acting in the execution of her duty when the assault occurred because the officer had good cause to detain the appellant for the purpose of questioning her to see whether a caution for suspicious behaviour should be administered.

^a Section 1, as far as material, is set out at p 376 e f, post

^b Section 51(1), so far as material, provides: ‘Any person who assaults a constable in the execution of his duty … shall be guilty of an offence … ‘

Held – (1) Except when lawfully exercising his power of arrest or some other statutory power a police officer had no greater rights than an ordinary citizen to restrain another. Accordingly, whether a police officer’s conduct was lawful when detaining a person to question him in circumstances where the officer was not exercising his power of arrest or other statutory power depended on whether the physical contact the officer used to detain the person was no more than generally acceptable physical contact between two citizens for the purpose of one of them engaging the attention of the other and as such was lawful physical contact as between two ordinary citizens. If the conduct used by the officer went beyond such generally acceptable conduct, eg if the officer gripped a person’s arm or shoulder rather than merely laying a hand on his sleeve or tapping his shoulder, the officer’s conduct would constitute the infliction of unlawful force and thus constitute a battery (see p 378 j and p 379 a to e, post) dictum of Parke B in Rawlings v Till (1837) 3 M & W at 29, Kenlin v Gardiner [1966] 3 All ER 931, Ludlow v Burgess (1971) 75 Cr App R 227 and Bentley v Brudzinski (1982) 75 Cr App R 217 applied; Wiffin v Kincard (1807) 2 Bos & PNR 471 and Donnelly v Jackman [1970] 1 All ER 987 distinguished.

(2) The 1959 Act did not confer power on a police officer to stop and detain a woman who was a prostitute for the purpose of cautioning her. Furthermore, the fact that the

[1984] 3 All ER 374 at 375

reason an officer detained a woman was to caution her regarding her suspicious behaviour did not render the officer’s conduct lawful if in detaining her he used a degree of physical contact that went beyond lawful physical contact as between two ordinary citizens (see p 380 b to f, post).

(3) Since the policewoman had not been exercising her power of arrest when she detained the appellant, and since in taking hold of the appellant’s arm to detain her the policewoman’s conduct went beyond acceptable lawful physical contact between two citizens, it followed that the officer’s act constituted a battery on the appellant and that she had not been acting in the execution of her duty when the assault occurred. Accordingly the appeal would be allowed and the conviction quashed (see p 380 f g, post).

Cases referred to in judgment

Bentley v Brudzinski (1982) 75 Cr App R 217, DC.

Cole v Turner (1704) 6 Mod Rep 149, 90 ER 958, NP.

Coward v Baddeley (1859) 4 H & N 478, 157 ER 927.

Donnelly v Jackman [1970] 1 All ER 987, [1970] 1 WLR 562, DC.

Kenlin v Gardiner [1966] 3 All ER 931, [1967] 2 QB 510, [1967] 2 WLR 129, DC.

Ludlow v Burgess (1971) 75 Cr App R 227, DC.

Rawlings v Till (1837) 3 M & W 28, 150 ER 1042.

Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684.

Wiffin v Kincard (1807) 2 Bos & PNR 471, 127 ER 713.

Case stated

Alexis Collins appealed by way of a case stated by a metropolitan stipendiary magistrate sitting at Marylebone Magistrates’ Court, against her conviction by the stipendiary magistrate on 20 January 1983 of assaulting the respondent, Wpc Tracey Wilcock, in the execution of her duty at Craven Road, London W2 on 22 July 1982, contrary to s 51(1) of the Police Act 1964. The question for the opinion of the High Court was whether a police constable was acting in the execution of her duty when detaining a woman against her will for the purpose of questioning her regarding her identity and her conduct which was such as to lead the constable to believe that she might have been soliciting men for the purpose of prostitution. The facts are set out in the judgment of the court.

W John Jones for the appellant.

Grant Armstrong for the respondent.

16 April 1984. The following judgment was delivered.

There is before the court an appeal by way of a case stated by a metropolitan stipendiary magistrate sitting at Marylebone, under which the appellant, Alexis Collins, appeals against her conviction on 20 January 1983, of assaulting the respondent, Tracey Wilcock, a constable of the Metropolitan Police Force, in the execution of her duty at Craven Road, London W2, on 22 July 1982, contrary to s 51(1) of the Police Act 1964.

The magistrate found the following facts. (a) On 22 July 1982 the respondent and

[1984] 3 All ER 374 at 376

Police Sgt Benjamen were on duty in a police vehicle and saw two women walking along the street; one of the two was a known prostitute, the other was the appellant. (b) The officers observed the two women, both of whom appeared to them to be soliciting men in the street. (c) The officers, without alighting from their vehicle, asked the two women to get into the police car so that they could have a word with them. One woman got into the car, the appellant refused to do so. (d) The officers repeated their request to the appellant, who again refused and walked away, followed by the police car which then pulled up alongside her. She again walked away. (e) The respondent, got out of the car and followed the appellant on foot, asking her why she didn’t want to talk to the police, and also for her name and address. The appellant again started to walk away. The respondent told her that she had not finished talking to her and the appellant replied, ‘Fuck off’, and started to walk away yet again. (f) The respondent took hold of the appellant by the left arm to restrain her and the appellant shouted, ‘Just fuck off, Copper’ and scratched the respondent’s right forearm with her fingernails. (g) The appellant was then arrested for assaulting a police officer in the execution of her duty.

Before the magistrate, the contentions of the parties were as follows. For the appellant, it was contended that the respondent was not acting in the execution of her duty at the time when the assault (if any) took place, having gone beyond the scope of her duty in detaining the appellant in circumstances short of arresting her. It was contended by the respondent, on the other hand, that there was on the evidence good ground for her to make inquiries and administer a caution under the Street Offences Act 1959, and that she was therefore acting in the execution of her duty at the time when the assault took place.

It may be convenient if at this stage we refer to the relevant provisions of the 1959 Act. Section 1(1) provides as follows:

‘It shall be an offence for a common prostitute to loiter or solicit in a street or public place for the purpose of prostitution.’

Section 1(3) provides:

‘A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section.’

We should also refer to the system of cautioning which is adopted by the police. The procedure in the Metropolitan Police District has been described as follows (see Home Office circular 109/59):

‘On the first occasion when a woman who has not previously been convicted of loitering or soliciting for the purpose of prostitution is seen loitering or soliciting in a street or public place for that purpose, the officer seeing her will obtain the assistance of a second officer as a witness, and when both officers, after having kept the woman under observation, are satisfied by her demeanour and conduct that she is in fact loitering or soliciting for the purpose of prostitution, they will tell her what they have seen and caution her. Details of the caution will subsequently be recorded at the police station and in a central register for the Metropolitan Police District. The two officers, after administering the caution, will ask the woman if she is willing to be put in touch with a moral welfare organisation or a probation officer, and invite her to call at the police station at a convenient time to see a woman police officer for these arrangements … ‘

This system, which has been encouraged by the Home Office as a way of discouraging young women from becoming prostitutes, is extra-statutory. It has nevertheless received statutory recognition in that s 2 of the 1959 Act provides a procedure for applying to a court for an order that no entry be made in respect of a caution and that any entry already made be expunged. This procedure enables a respectable woman, who has been mistakenly identified by the police as a common prostitute, to have the records corrected.

[1984] 3 All ER 374 at 377

We were told that, in practice, the system of cautioning is carried into effect as follows. A police officer who observes a woman in a street or public place, whom he believes to be a common prostitute loitering or soliciting there for the purposes of prostitution, will approach her and ask her for her name and address. Having been given it, he will check by radio with the police station to ascertain whether there are any cautions on her record. If there are none, he will caution her; if there is one, he will administer a second caution; and if there are two, he will arrest her on suspicion of committing an offence under s 1(1). The system of cautioning, although intended to provide a warning, has the advantage that it will generally avoid any argument on the question whether a woman charged with an offence under s 1(1) is a ‘common prostitute’, an expression apparently lacking statutory or judicial definition or interpretation. The system also requires the co-operation of the woman in question in providing her name and address; and, since the system is designed to discourage women from embarking on a career of prostitution, it is understandable that police officers may think it right to persist in an attempt to give the caution, despite initial non-co-operation, rather than proceed without more ado to exercise the power of arrest under s 1(3) of the Act.

We turn back to the case stated by the magistrate. Having referred to certain authorities, the magistrate expressed himself as follows:

‘The facts of the case before me disclose that the Appellant and her companion had through their observed actions, given the Respondent and her police colleague good cause for believing that they were soliciting for the purposes of prostitution. Having that belief, the Officers were under a clear duty to investigate the question of an offence against Section 1 of The Street Offences Act, 1959. The ingredients of the offence include not only the actions of soliciting but also the status of the person concerned. Section 1 of that Act states that it is an offence for a common prostitute to loiter or solicit in a street or public place for the purposes of prostitution. The Appellant, unlike her companion, was not known to the Respondent to be a common prostitute at the time her actions were observed; accordingly, her status had to be established before a decision could be made as to future action by way of caution or arrest. To establish that status it was necessary to question the Appellant but the Appellant was completely uncooperative. I was of the opinion that the Respondent had a clear duty to persist in her enquiries and to require the Appellant to remain with her until the enquiry was complete. I considered that in the circumstances the placing of her hand on the Appellants arm to restrain her from moving away, yet again, was within her duty and was not unreasonable. Being satisfied that the Appellant had assaulted the Respondent I found the Appellant guilty and ordered her to pay a fine of £50·4300.’

The magistrate then stated the following question for the opinion of the court:

‘The question for the consideration of the High Court is whether a Police Constable is acting in the execution of her duty when detaining a woman against her will for the purpose of questioning her regarding her identity and her conduct which was such as to lead the Constable to believe she may have been soliciting men.’

In considering this question, which is drawn in wide terms, we think it important to observe that in this case it is found as a fact that the respondent took hold of the appellant by the left arm to restrain her. Before considering the question as drawn, we think it right to consider whether, on the facts found in the case, the magistrate could properly hold that the respondent was acting in the execution of her duty. In order to consider this question, it is desirable that we should expose the underlying principles.

The law draws a distinction, in terms more easily understood by philologists than by ordinary citizens, between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and

[1984] 3 All ER 374 at 378

battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint on another’s freedom of movement from a particular place. The requisite mental element is of no relevance in the present case.

We are here concerned primarily with battery. The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery. So Holt CJ held in 1704 that ‘the least touching of another in anger is a battery’: see Cole v Turner 6 Mod Rep 149, 90 ER 958. The breadth of the principle reflects the fundamental nature of the interest so protected; as Blackstone wrote in his Commentaries, ‘the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner’ (see 3 Bl Com 120). The effect is that everybody is protected not only against physical injury but against any form of physical molestation.

But so widely drawn a principle must inevitably be subject to exceptions. For example, children may be subjected to reasonable punishment; people may be subjected to the lawful exercise of the power of arrest; and reasonable force may be used in self-defence or for the prevention of crime. But, apart from these special instances where the control or constraint is lawful, a broader exception has been created to allow for the exigencies of everyday life. Generally speaking, consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped (see Tuberville v Savage (1669) 1 Mod Rep 3, 86 ER 684). Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life. We observe that, although in the past it has sometimes been stated that a battery is only committed where the action is ‘angry, or revengeful, or rude, or insolent’ (see 1 Hawk PC c 62, s 2), we think that nowadays it is more realistic, and indeed more accurate, to state the broad underlying principle, subject to the broad exception.

Among such forms of conduct, long held to be acceptable, is touching a person for the purpose of engaging his attention, though of course using no greater degree of physical contact than is reasonably necessary in the circumstances for that purpose. So, for example, it was held by the Court of Common Pleas in 1807 that a touch by a constable’s staff on the shoulder of a man who had climbed on a gentleman’s railing to gain a better view of a mad ox, the touch being only to engage the man’s attention, did not amount to a battery (see Wiffin v Kincard (1807) 2 Bos & PNR 471, 127 ER 713; for another example, see Coward v Baddeley (1859) 4 H & N 478, 157 ER 927). But a distinction is drawn between a touch to draw a man’s attention, which is generally acceptable, and a physical restraint, which is not. So we find Parke B observing in Rawlings v Till(1837) 3 M & W 28 at 29, 150 ER 1042, with reference to Wiffin v Kincard, that ‘There the touch was merely to engage a man’s attention, not to put a restraint on his person.’ Furthermore, persistent touching to gain attention in the face of obvious disregard may transcend the norms of acceptable behaviour, and so be outside the exception. We do not say that more than one touch is never permitted; for example, the lost or distressed may surely be permitted a second touch, or possibly even more, on a reluctant or impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of a duty. In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend on the facts of the particular case.

The distinction drawn by Parke B in Rawlings v Till is of importance in the case of

[1984] 3 All ER 374 at 379

police officers. Of course, a police officer may subject another to restraint when he lawfully exercises his power of arrest; and he has other statutory powers, for example, his power to stop, search and detain persons under s 66 of the Metropolitan Police Act 1839, with which we are not concerned. But, putting such cases aside, police officers have for present purposes no greater rights than ordinary citizens. It follows that, subject to such cases, physical contact by a police officer with another person may be unlawful as a battery, just as it might be if he was an ordinary member of the public. But a police officer has his rights as a citizen, as well as his duties as a policeman. A police officer may wish to engage a man’s attention, for example if he wishes to question him. If he lays his hand on the man’s sleeve or taps his shoulder for that purpose, he commits no wrong. He may even do so more than once; for he is under a duty to prevent and investigate crime, and so his seeking further, in the exercise of that duty, to engage a man’s attention in order to speak to him may in the circumstances be regarded as acceptable (see Donnelly v Jackman [1970] 1 All ER 987, [1970] 1 WLR 562). But if, taking into account the nature of his duty, his use of physical contact in the face of non-co-operation persists beyond generally acceptable standards of conduct, his action will become unlawful; and if a police officer restrains a man, for example by gripping his arm or his shoulder, then his action will also be unlawful, unless he is lawfully exercising his power of arrest. A police officer has no power to require a man to answer him, though he has the advantage of authority, enhanced as it is by the uniform which the state provides and requires him to wear, in seeking a response to his inquiry. What is not permitted, however, is the unlawful use of force or the unlawful threat (actual or implicit) to use force and, excepting the lawful exercise of his power of arrest, the lawfulness of a police officer’s conduct is judged by the same criteria as are applied to the conduct of any ordinary citizen of this country.

We have been referred by counsel to certain cases directly concerned with charges of assaulting a police officer in the execution of his duty, the crucial question in each case being whether the police officer, by using physical force on the accused in response to which the accused assaulted the police officer, was acting unlawfully and so not acting in the execution of his duty. In Kenlin v Gardiner [1966] 3 All ER931, [1967] 2 QB 510 it was held that action by police officers in catching hold of two schoolboys was performed not in the course of arresting them but for the purpose of detaining them for questioning and so was unlawful (see [1966] 3 All ER 931 at 934, [1967] 2 QB 510 at 519 per Winn LJ). Similarly, in Ludlow v Burgess (1971) 75 Cr App R 227 at 228 per Lord Parker CJ it was held that ‘this was not a mere case of putting a hand on [the defendant’s] shoulder, but it resulted in the detention of [the defendant] against his will’, so that the police officer’s act was ‘unlawful and a serious interference with the citizen’s liberty’ and could not be an act performed by him in the execution of his duty.

In Donnelly v Jackman the police officer wished to question the defendant about an offence which he had cause to believe that the defendant had committed. Repeated requests by the police officer to the defendant to stop and speak to him were ignored. The officer tapped him on the shoulder; he made it plain that he had no intention of stopping to speak to him. The officer persisted and again tapped the defendant on the shoulder, whereupon the defendant turned and struck him with some force. The justices convicted the defendant of assaulting the officer in the execution of his duty, and this court dismissed an appeal from that conviction by way of case stated. The court was satisfied that the officer had not detained the defendant, distinguishing Kenlin v Gardiner as a case where the officers had in fact detained the boys (see [1970] 1 All ER 987 at 989, [1970] 1 WLR 562 at 565). It appears that they must have considered that the justices were entitled to conclude that the action of the officer, in persistently tapping the defendant on the shoulder, did not in the circumstances of the case exceed the bounds of acceptable conduct, despite the fact that the defendant had made it clear that he did not intend to respond to the officer’s request to stop and speak to him; we cannot help feeling that this is an extreme case.

Finally, in Bentley v Brudzinski (1982) 75 Cr App R 217 it was found by the justices that

[1984] 3 All ER 374 at 380

the police officer, having caught up with the defendant, said, ‘Just a minute’; then, not in any hostile way, but merely to attract attention, he placed his right hand on the defendant’s left shoulder. The defendant then swore at the police officer and punched him in the face; and a struggle ensued. The justices considered that the act of the police officer amounted to an unlawful attempt to stop and detain the defendant, and so dismissed an information against the defendant alleging that he assaulted the police officer in the execution of his duty. This court dismissed the prosecutor’s appeal by way of case stated; it appears that they considered that, having regard to all the facts of the case as found by the justices, they were entitled to hold that the police officer’s act was performed not merely to engage the attention of the defendant, but as part of a course of conduct in which the officer was attempting unlawfully to detain the defendant.

We now return to the facts of the present case. Before us, counsel for the respondent police officer sought to justify her conduct, first by submitting that, since the practice of cautioning women found loitering or soliciting in public places for the purposes of prostitution is recognised by s 2 of the 1959 Act, therefore it is implicit in the statute that police officers have a power to caution, and for that purpose they must have the power to stop and detain women in order to find out their names and addresses and, if appropriate, caution them. This submission, which accords with the opinion expressed by the magistrate, we are unable to accept. The fact that the statute recognises the practice of cautioning by providing a review procedure does not, in our judgment, carry with it an implication that police officers have the power to stop and detain women for the purpose of implementing the system of cautioning. If it had been intended to confer any such power on police officers that power could and should, in our judgment, have been expressly conferred by the statute.

Next, counsel for the respondent submitted that the purpose of the police officer was simply to carry out the cautioning procedure and that, having regard to her purpose, her action could not be regarded as unlawful. Again, we cannot accept that submission. If the physical contact went beyond what is allowed by law, the mere fact that the police officer has the laudable intention of carrying out the cautioning procedure in accordance with established practice cannot, we think, have the effect of rendering her action lawful. Finally, counsel for the respondent submitted that the question whether the respondent was or was not acting in the execution of her duty was a question of fact for the magistrate to decide; and that he was entitled, on the facts found by him, to conclude that the respondent had been acting lawfully. We cannot agree. The fact is that the respondent took hold of the appellant by the left arm to restrain her. In so acting, she was not proceeding to arrest the appellant; and since her action went beyond the generally acceptable conduct of touching a person to engage his or her attention, it must follow, in our judgment, that her action constituted a battery on the appellant, and was therefore unlawful. It follows that the appellant’s appeal must be allowed, and her conviction quashed.

We turn finally to the question posed by the magistrate for our consideration. As we have already observed, this question is in wide general terms. Furthermore, the word ‘detaining’ can be used in more than one sense. For example, it is a commonplace of ordinary life that one person may request another to stop and speak to him; if the latter complies with the request, he may be said to do so willingly or unwillingly, and in either event the first person may be said to be ‘stopping and detaining’ the latter. There is nothing unlawful in such an act. If a police officer so ‘stops and detains’ another person, he in our opinion commits no unlawful act, despite the fact that his uniform may give his request a certain authority and so render it more likely to be complied with. But if a police officer, not exercising his power of arrest, nevertheless reinforces his request with the actual use of force, or with the threat (actual or implicit) to use force if the other person does not comply, then his act in thereby detaining the other person will be unlawful. In the former event, his action will constitute a battery; in the latter event, detention of the other person will amount to false imprisonment. Whether the action of a police officer in any particular case is to be regarded as lawful or unlawful must be a question to be decided on the facts of the case.

[1984] 3 All ER 374 at 381

Having regard to the facts of the present case, we have no doubt that the magistrate framed his question having in mind the act of the respondent in taking hold of the appellant’s arm to restrain her, which we have held to be a battery and so unlawful. But, having regard to the distinctions we have drawn, we consider the question itself to be so widely drafted as not to be susceptible of a simple answer. We therefore prefer not to answer it; and we shall exercise our power to amend the case by adding the following further question which arises on the facts of the case, viz whether, on the facts found by the magistrate, the respondent was acting in the course of her duty when she detained the appellant. That question we shall, for the reasons we have already given, answer in the negative.

Solicitors: Sears Blok (for the appellant); D M O’Shea (for the respondent).

N P Metcalfe Esq Barrister.

[Police Power] Donnelly v Jackman [1970] 1 All ER 987

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The appellant was walking along the pavement when a police officer in uniform came up to him with a view to making enquiries about an offence which the officer had cause to believe that the appellant might have committed. The appellant ignored the officer’s repeated requests to stop and speak to him. At one stage the officer tapped the appellant on the shoulder, and shortly after the appellant tapped the officer on the chest. It became apparent that the appellant had no intention of stopping. The officer then again touched the appellant on the shoulder with the intention of stopping him (but neither then nor previously had the officer any intention to arrest the appellant), whereupon the appellant struck the officer with some force. The appellant was charged with and convicted of assaulting the officer in the execution of his duty. On appeal,

Held – The touching of the appellant’s shoulder was a trivial interference with his liberty and did not amount to a course of conduct sufficient to be outside the course of the officer’s duties; accordingly the appeal would be dismissed (see p 989 f to h, post).

Dicta of Ashworth J in R v Waterfield, R v Lynn (1963) 3 All ER at 661 and of Lord Parker CJ in Rice v Connolly [1966] 2 All ER at 651 applied.

Davis v Lisle [1936] 2 All ER 213 and Kenlin v Gardiner [1966] 3 All ER 931 distinguished.

Cases referred to in judgment

Davis v Lisle [1936] 2 All ER 213, [1936] 2 KB 434, 105 LJKB 593, 155 LT 23, 100 JP 280, 15 Digest (Repl) 852, 8201.

Kenlin v Gardiner [1966] 3 All ER 931, [1967] 2 QB 510, [1967] 2 WLR 129, Digest (Cont Vol B) 191, 8225a.

Rice v Connolly [1966] 2 All ER 649, [1966] 2 QB 414, [1966] 3 WLR 17, 130 JP 322, Digest (Cont Vol B) 191, 8219b.

R v Waterfield, R v Lynn [1963] 3 All ER 659, [1964] 1 QB 164, [1963] 3 WLR 946, 128 JP 48, 48 Cr App Rep 42, Digest (Cont Vol A) 416, 8201a.

Case stated

This was a case stated by justices for the county of Surrey in respect of their adjudication as a magistrates’ court sitting at Farnham on 12 June 1969. The respondent, Maurice Jackman, preferred an information against the appellant, Michael James Donnelly, charging him with assaulting Edward Roy Grimmett, a police officer, whilst acting in the execution of his duty. The facts are set out in the judgment of Talbot J.

C P B Purchas for the appellant.

J M Wright for the respondent.

27 January 1970. The following judgments were delivered.

The facts found by the justices were these; at about 11.15 am on Saturday, 5 April, the appellant was lawfully walking along a pavement when Pc Roy Grimmett in uniform came up to him for the purposes of making enquiries about an offence which the officer had cause to believe the appellant had committed or might have committed. The officer spoke to the appellant asking him if he could have a word with him. The appellant ignored that request, and continued to walk along the pavement away from the officer. The officer followed close behind him, and apparently repeatedly asked him to stop and speak to him. At one stage the officer tapped the appellant on the shoulder, and apparently shortly after that the appellant turned round and in turn tapped the officer on the chest saying ‘Now we are even, copper’.

It became apparent to the officer, so the finding proceeds, that the appellant had no intention of stopping to speak to him. The officer then again touched the appellant on the shoulder with the intention of stopping him, whereupon the appellant then turned round and struck the officer with some force. The finding is that the officer did not touch the appellant for the purpose of making any formal arrest or charge, but solely for the purpose of speaking to him. Following the striking of the officer, the appellant was arrested for assaulting the officer in the execution of his duty and taken to the police station. The justices convicted the appellant, finding the summons proved.

The principal question it seems to me is whether the officer was acting in the execution of his duty, and a secondary question, whether anything he did caused him to cease to be acting in the execution of his duty. When considering what the duties of the officer were, I do not think that I can do better than cite the words of Lord Parker CJ in Rice v Connolly ([1966] 2 All ER 649 at 651, [1966] 2 QB 414 at 419), when he said:

‘It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury.’

Furthermore, in considering the problem whether the officer went outside the ambit of his duties so as to be ceasing to be acting therein, I would refer to the words of Ashworth J taken from R v Waterfield, R v Lynn ([1963] 3 All ER 659 at 661, [1964] 1 QB 164 at 170), and this is the way it was put:

‘In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.’

The main point taken by counsel for the appellant is that the result of what the officer did was such that he was not acting in the execution of his duty. He had, argued counsel, no right to stop the appellant or any other person other than by arrest.

[1970] 1 All ER 987 at 989

In support of his argument he cited several authorities in which officers, whilst it is alleged acting in the execution of their duties, had been assaulted, in which the court had found that in fact that was not so, they were not acting in the execution of their duties. The first one was Davis v Lisle. That was a case where a police officer, taking these facts from the headnote, believing that an offence had been committed by the servant of the appellant of causing an obstruction on the highway with a motor lorry, was making enquiries, and he went to the appellant’s garage and he went into the garage. The appellant asked him to leave and as a result of not leaving he was assaulted. It was held that even if the respondent police officer had a right to go into the garage and make enquiries, he became a trespasser after he had been told to leave, and henceforward was not acting in the execution of his duty.

That seems to me a very different case from the present one which we are considering. There the police officer had gone so far as to make himself a trespasser. The other authority quoted by counsel for the appellant was Kenlin v Gardiner. There two schoolboys apparently were visiting a number of premises and caused certain police officers to be suspicious; the police officers therefore went up to make enquiries, they said that they were police officers and asked the boys what they were calling on these houses for. Apparently the boys were acting perfectly innocently and had a perfectly lawful reason for what they were doing. However, the upshot of it was that they became alarmed and the police officers seized them by the arm, with the result that these boys retaliated and assaulted the police officers. There again in my judgment the facts of that case are vastly different from those that we are considering because there each officer had taken hold of one of the boys and had in fact detained him.

Turning to the facts of this matter, it is not very clear what precisely the justices meant or found when they said that the officer touched the appellant on the shoulder, but whatever it was that they really did mean, it seems clear to me that they must have felt that it was a minimal matter by the way in which they treated this matter and the result of the case. When one considers the problem: was this officer acting in the course of his duty, in my view one ought to bear in mind that it is not every trivial interference with a citizen’s liberty that amounts to a course of conduct sufficient to take the officer out of the course of his duties. In my judgment the facts that the justices found in this case do not justify the view that the officer was not acting in the execution of his duty when he went up to the appellant and wanted to speak to him. Therefore the assault was rightly found to be an assault on the officer whilst acting in the execution of his duties, and I would dismiss this appeal.

I agree.

Solicitors: Vizard, Oldham, Crowder & Cash agents for Mellersh & Lovelace, Godalming (for the appellant); McNamara Ryan & Co, Chertsey (for the respondent).

Rosalie Long Barrister.

[Police Power] Kenlin v Gardiner [1967] 2 QB 510

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Crime – Assault – Police – Self-defence – Detention by police officers to question – Decision to arrest not made – Genuine belief that officers not policemen – Assault on officers in ensuing struggle – Whether technical assault by police officers – Whether justified – Whether self-defence justification for assault on police officers – Police Act, 1964 (c. 48), s. 51 (1).

Crime – Self-defence – Assault by police – Right of self-defence.

Two schoolboys, aged 14, in fact innocently visiting a number of premises for the purpose of reminding certain members of their school rugger XV of a forthcoming match, aroused the suspicions of police officers on duty in plain clothes, who approached the boys. One of the police officers produced his warrant card and said:”We are police officers, here is my warrant card. What are you calling at houses for?” but the boys did not read, nor comprehend the nature of, the warrant card, and did not believe them to be genuine police officers. One boy made as if to run away, and one of the police constables caught hold of his arm, said: “Now look, son, we are police officers, what have you been up to?” and cautioned him. The boy started to struggle violently, punching and kicking the officer. The other officer came to his assistance and the boy asked for his warrant card. That was not produced owing to the struggle.

____________

[Reported by GRAHAM GARNER, ESQ., Barrister-at-Law.]

[1967] 2 Q.B. 510 Page 511

The other boy started to run away and one of the police officers let go of the first boy and grasped him, when the boy struck the officer. Each boy was charged with assaulting a police constable in the execution of his duty, contrary to section 51 (1) of the Police Act, 1964.1 The justices found that the officers were at all times acting properly in the execution of their duty, but that the boys did not accept that they were police officers and were genuinely frightened when they struggled. They concluded that the violence shown to the police officers amounted to technical assault and convicted the boys, granting each an absolute discharge.

On appeal:-

Held, that the justification of self-defence was available to a charge of assault under section 51 (1) of the Police Act, 1964, as in the case of any other assault, provided that the prior assault by the police officer was not justified; that the prior assault by the police constables, in taking hold of an arm of each of the boys, was not justified in that it was not done as an integral step in the process of arresting the boys but in order to secure an opportunity, by detaining them, to question them so as to satisfy the officers whether or not it would be right in the circumstances to arrest them; and that, accordingly, there being a technical unjustified assault by the police officers, the plea of self defence was available to the boys and their conviction would be quashed.

Per Winn L.J. Knowledge that the man attacked is a police officer is not a necessary ingredient of the offence under section 51, but a genuine mistake of fact as to his character, e.g., a genuine and reasonable belief that he was a thug and not a police officer, would be material in judging the reasonableness of the resistance exerted and the degree of force falling within the justification of self-defence (post, pp. 519G – 520B).

CASE STATED by Hackney juvenile court justices.

On October 22, 1965, informations were laid by two police constables, Holga Gardiner and William Peters, against the defendants, Ian Kenlin and David sowoolu, that the defendant Kenlin, on October 22, 1965, at Maury Road, N.16, assaulted Police Constables Gardiner and Peters, and that Sowoolu on the same date and at the same place assaulted Police Constable Gardiner, in the execution of their duty, contrary to section 51 (1) of the Police Act, 1964.

The following facts were found by the justices: At about 1 p.m. on Thursday, October 22, 1965, the two defendants, who were both schoolboys aged 14, were engaged in visiting a number

1 Police Act, 1964, s. 51 (1): “Any person who assaults a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence …”

[1967] 2 Q.B. 510 Page 512

of premises in the Stoke Newington area of London for the purpose of reminding certain members of their school rugby XV of a forthcoming match. The two police constables, who were on duty in plain clothes, saw the defendants as they knocked at the door of a house facing Stoke Newington Common. Having become genuinely but erroneously suspicious of the two defendants, the police constables followed them into Maury Road, where they saw the first defendant, Kenlin, knock at the door of No. 77 whilst the second defendant, Sowoolu, remained at the gateway of the house. Kenlin in fact spoke to a Miss Edwards at No. 77 but from the position that the officers were keeping observation they were unable to see that.

After the two defendants had left that address and were walking along Maury Road together and away from No. 77, the police officers went up to them. Police Constable Gardiner produced his warrant card to them and said to them: “We are police officers, here is my warrant card. What are you calling at houses for?” Neither of the defendants was able to readwhat appeared on the warrant card nor to comprehend the nature of the document. Further, both defendants were alarmed at being accosted in that way by strangers and, although both the police constables were dressed respectably, the defendants did not think that they were, in fact, genuine police officers. Neither defendant made any reply and Kenlin made as if to run away. Immediately Police Constable Gardiner caught hold of Kenlin’s left arm and said: “Now look, son, we are police officers, what have you been up to?” and then cautioned him. Kenlin immediately started to struggle violently and punched Police Constable Gardiner several times with his only free arm, namely, the right one, about the chest and body and kicked Police Constable Gardiner about the legs in an effort to free himself.

The defendant Sowoolu was told by Police Constable Peters to stand against the hedge and not to run away. Police Constable Peters then left Sowoolu and went to the assistance of Police Constable Gardiner. Kenlin called upon Peters to produce his warrant card (as he had not done so) but owing to the struggles of Kenlin, Peters did not do that and, in fact, never produced his warrant card to either defendant. The defendant Sowoolu, seeing the struggle between Kenlin and the two police constables, took fright and started to run away. That was seen by Police Constable Gardiner, who then let go of Kenlin, chased after Sowoolu and caught hold of Sowoolu’s right arm. Sowoolu then turned

[1967] 2 Q.B. 510 Page 513

towards Police Constable Gardiner and struck the officer with his free arm and also attempted to kick the officer, who lost his grip upon the defendant. Sowoolu then made off and went straight home, where he was later arrested. In the meantime, the defendant Kenlin had been struggling with Police Constable Peters. In the course of that struggle, he aimed a blow at the police constable but did not strike him, wriggled out of the officer’s grasp and ran away. Police Constable Peters pursued Kenlin and with the assistance of a passer-by driving a motor car, namely, a Mr. Howes, finally succeeded in catching Kenlin in Evering Road. After a struggle during which Kenlin shouted: “You’re not police officers” and “Don’t let them take me away,” Police Constable Peters and Mr. Howes succeeded in placing Kenlin into the motor car. There he continued to struggle until it became clear that they were, in fact, driving to a police station and, accordingly, Kenlin then appreciated that the two police constables were truly police officers and gave no further trouble.

In that episode, neither of the police constables received any injuries and out of the two defendants only Kenlin suffered a slight reddening below his right eye.

It was contended on behalf of the defendants that each of them had acted under a genuine and honest belief, reasonably held, that the constables were not police officers but were strangers committing a crime against the defendants, and, therefore, the defendants were entitled in law to use such force as was necessary to defend themselves.

The justices found that the officers had reasonable grounds for suspecting, and genuinely believed, that the defendants might be loitering with intent to commit a felony and were justified in approaching them, and that nothing that the defendants said or did thereafter acted in any way to allay their suspicions. They, accordingly, found that the officers were at all times acting properly in the execution of their duty; and that the defendants did not accept that the police constables were police officers and were genuinely frightened when they struggled.

They concluded that the violence shown to the police officers amounted in law to technical assaults only, convicted the appellants and granted each of them an absolute discharge on each of the informations.

The defendants appealed and the questions for the opinion of the High Court were: (1) Was the defence of “self-defence” open to a defendant in answer to a charge laid under section 51 (1)

[1967] 2 Q.B. 510 Page 514

of the Police Act, 1964? (2) Was “mens rea” an element required in proving an “assault” within the meaning of section 51 (1) of the Police Act, 1964? (3) Could a genuine mistake of fact alone, or considered together with the defence of “self defence,” amount to a defence to a charge laid under section 51 (1) of the Police Act, 1964? (4) What distinction was to be drawn between the word “assault” in section 51 (1) of the Police Act, 1964, and the word “resists” in section 51 (3) of the same Act?

J. W. Rogers for the appellants. This case falls between the basic liberties of the individual and the anxiety of the law to protect its officers. No police constable has any right to detain a person forcibly for an enquiry. Where an assault on a police constable is alleged under section 51 (1) of the Police Act, 1964, the word “assault” bears its ordinary meaning in law and has no special construction. That being so, the normal defences open to any person to a charge of assault are open in an allegation under section 51, i.e., self defence, or, here, that the personalleged to have done the assault was acting under such a fundamental mistake of fact that it negatived any animus or mens rea. If it be a requirement of the law that a mistake of fact be reasonable in order to provide excuse for the assault, then the fact that a mistake is made should reduce an assault to mere resistance: see section 51 (3).

The definition of assault set out in Archbold, 35th edn. (1962), p. 1046, para. 2631, is “an attempt to commit a forceable crime against the person of another.” There must be an intention to assault. If a complete stranger grabbed me as I stepped off the pavement before a bus which I had not seen, and I mistook his motive and used force to make him let go, this would be a mistake of fact and not blameworthy.

[WINN L.J. This all goes to justification. In the bus case you would have consented to the force had you known about the bus.]

The officers were concerned with a breach of the Vagrancy Acts. The appellants were not in the categories of idle or disorderly persons, or reputed thieves, which leaves suspected persons. And the boys never came into the category as far as the police were concerned. The officers had been put on inquiry, nothing more. They made an initial inquiry and never identified themselves to the appellants as neither read what was on the warrant card. Then there was a complete clash of misunderstandings which caused the young appellant Kenlin to start

[1967] 2 Q.B. 510 Page 515

to take flight. The first officer seized Kenlin. His reason was to ask the mere question “Now look son, we’re police officers. What have you been up to?” The fact that a person takes flight might deepen an officer’s suspicions and lead to arrest. But here the officer just grabbed the boy and questioned him. If this was the finding of fact, then it was impossible to argue that the police constable could equally well have said “I suspect you of being up to no good, and intend to arrest you as a suspected person” if he had by then decided to arrest, see Christie v. Leachinsky.2 It cannot be suggested that any different reason applied to the attempt by the same officer to seize Sowoolu.

The officer’s powers of arrest stem either from (1) The Vagrancy Act, 1824, s. 6, (2) the Metropolitan Police Act, 1839, s. 64, or (3) section 66 of the same Act. In section 6 the operative words are “to apprehend any person found offending” with the qualification that if the officer reasonably holds an honest belief that a person is offending, then that is justification in apprehending.

[LORD PARKER C.J. Where does one find that there is power to detain short of arrest?]

There is no direct authority on the point: see Rice v. Connolly3 which is as near as possible, and suggests there is none.

[LORD PARKER C.J. The whole point is whether the men were acting in the execution of their duty? If not, was the assault by the boys justified on the grounds of self defence?]

Michael Worsley for the respondents. (1) The officers were acting in the course of their duty. (2) To act in self defence involves acting on reasonably held grounds, and there was no finding of fact that the mistake was reasonable. There is a power to intervene to prevent felony. This is not to be found in current textbooks, but is in Hale’s Pleas of the Crown.

[LORD PARKER C.J. But on the facts the question “what have you been doing?” related to suspicions in the past and not in the future.]

One must take what happened as a whole. The officers have the power of arrest having regard to what they have already seen.

[LORD PARKER C.J. That cannot be right. If there is an arrest, then the law comes into force. Can the officers say “we are not going to arrest you, but just going to hold you?”]

See Rice v. Connolly3 and 2 Hale’s Pleas of the Crown, 1800

2 [1947] A.C. 573; 63 T.L.R. 231; [1947] 1 All E.R. 567, H.L.
3 [1966] 2 Q.B. 414; [1966] 3 W.L.R. 17; [1966] 2 All E.R. 649, D.C.

[1967] 2 Q.B. 510 Page 516

ed., p. 94 et seq. A constable could arrest where a felony had not yet been committed but was in danger of being committed. This book was an authority, as on Sir Matthew Hale’s death Parliament ordered it to be published and printed: see Rex v. Casement.4

[WINN L.J. Whatever the power to arrest or seize a man may be, since he was not arrested, what has Hale to do with it? The officers were using some force not part of the process of arresting. Where is the finding that they intended to arrest?]

One cannot doubt that arrest would have followed if no satisfactory explanation had been given. If there was a right of arrest, the fact that the officer asked a question which he need not have asked, and asked it in favour of the defence in case the boy had an explanation which might remove a reasonable suspicion, cannot alter the officer’s position to his detriment.

[WINN L.J. But he seized the boy before the explanation.]

Anyway this cannot justify the assault by the boy.

[LORD PARKER C.J. If so, this is a matter for the magistrates. The case will have to be sent back.]

I am not instructed to ask that it should be sent back. The Crown is not disposed to oppose the appeal on the merits, only on the principle. If a person acts under a mistake of fact that a person is not a police constable, and strikes the constable, that mistaken impression must be reasonably held: see Reg. v. Reynhourdt5 and Reg. v. Mark.6

WINN L.J. This is an appeal upon a case stated by two justices for the Metropolitan Area Inner London Juvenile Courts, who were sitting in Hackney as a juvenile court on November 22, 1965, when two boys of 14 were charged before them with assaulting two police officers in the execution of their duty and were convicted. This is a most unfortunate case which really might better have died down in the teacup in which the storm first began to arise.

These two police officers were acting in a perfectly proper way, apart from the merest technicality to which it will be necessary subsequently to refer. The boys were perfectly innocent and engaged in no improper behaviour of any kind. Mr. Rogers used an expression when addressing the court, which with his permission I will adopt: the whole thing was a clash of misunderstandings; the police officers misunderstood what the boys were

4 [1917] 1 K.B. 98, 140; 32 T.L.R. 601, C.C.A.
5 (1962) 107 C.L.R. 381.
6 [1961] Crim.L.R. 173.

[1967] 2 Q.B. 510 Page 517

doing, and the boys misunderstood what the police officers, as in fact they were, were doing to them. These police officers were in plain clothes, and in all probability not in their best plain clothes. As the justices have found, the boys thought that, so far from being police officers, these men were thugs.

It seems that in the middle of the day on a date in October, 1965, these two lads were going to a number of houses in the Stoke Newington area in order to remind members of their school rugger XV of the date or place at which a forthcoming match was to be played, a perfectly innocent errand, and they were going together from house to house knocking on the doors. The police officers saw them engaged in that manner, and, as the justices thought, became genuinely but erroneously suspicious of the two boys. Just what they suspected is not expressly found in the case; maybe they thought they were going from house to house begging; it may be they thought they were going from house to house looking for a door or window which was not secure with a view to breaking in and committing felonies in the house. At any rate, one of the officers went up to the two boys, properly acting in a reasonable and correct way, produced his warrant card and showed it to them and said: “We are police officers, here is my warrant card. What are you calling at houses for?” Unfortunately the warrant card in its talc case, one supposes, could not be readily read; whether these boys did not read quickly, whether they were frightened, or what was the explanation, the fact is that they did not appreciate from the displaying to them of the warrant card that these men were police officers, and they were frightened by being so accosted. Neither of them said anything; one of them made away. He tried to run away, whereupon one of the police officers, acting in a sensible, normal and natural way – but unfortunately, here comes the technical difficulty – caught hold of him by the left arm, using no violence to him, but merely seeking to hold him from escape, and said: “Now look, son, we are police officers, what have you been up to”; then he cautioned him. Immediately the boy began to struggle violently and punched the officer several times with one of his arms, in fact the only free one, the right arm, about the chest and body andkicked him about the legs. The other lad was told by the other officer to stand against the hedge and not to run away; the first boy, who was, one might say, a stalwart for his rights as a citizen, demanded that his warrant card should be produced by the second officer. He really could not get at that

[1967] 2 Q.B. 510 Page 518

because of the struggle, and so the other boy took fright also and started to run away; but he was chased and caught by the right arm, he then turned and struck that officer with his free arm and tried to kick him; then he went off and ran away home, either to his mother, or more probably to his father to tell him how bravely he had conducted himself. So the strusggles went on until one of these boys with the help of a passer-by who happened to come along with a motor car, was put into the car; he went on shouting: “You’re not police officers. Don’t let them take me away”; and he went on in that fashion until he realised that the car was bound for the police station, then he calmed down and everythingwas quiet. There was no more trouble until they came before the magistrates, who came to the conclusion that the violence shown to the police officers amounted in law to technical assaults – only technical – so after conviction they very sensibly granted each of the boys an absolute discharge on each of the informations. Now this case comes before this court with – I say this deliberately though without any intention to be insulting to either counsel – some tendency to put it forward as a cause célŠbre, a state trial. In my own view it is nothing of the kind; it is quite a simple and normal case where misunderstandings led to an unfortunate consequence which need not have involved any prosecution.

The boys undoubtedly assaulted the police officers: there cannot be any doubt about that, they struck them and kicked them; but the question is whether that was a justifiable or unjustified assault; and that again, as Mr. Rogers agreed, depends entirely on whether the answer of self-defence was available to these two boys in the particular circumstances. Of course, in the case of a charge of assault under section 51 (1) of the Police Act, 1964, as in the case of any charge of assault, the defence or justification – I prefer to call it a justification, because it must always be borne in mind that it is for the prosecution to exclude justification and not for the defendant to establish it – the justification of self-defence is available just as it is in the case of any other assault. That is subject to this, that if the self-defence, in this case self-defence by the two boys against a prior assault such as had been committed, in a technical sense, by the police officers taking hold of an arm of each of these boys, was self-defence against an assault which was justified in law, as, for instance, a lawful arrest, then in law self-defence cannot afford justification for assault in resistance to justified assault by police officers. So

[1967] 2 Q.B. 510 Page 519

one comes back to the question in the end, in the ultimate analysis: was this officer entitled in law to take hold of the first boy by the arm – of course the same situation arises with the other officer in regard to the second boy a little later – justified in committing that technical assault by the exercise of any power which he as a police constable in the precise circumstances prevailing at that exact moment possessed?

I regret, really, that I feel myself compelled to say that the answer to that question must be in the negative. This officer might or might not in the particular circumstances have possessed a power to arrest these boys. I leave that question open, saying no more than that I feel some doubt whether he would have had a power of arrest: but on the assumption that he had a power to arrest, it is to my mind perfectly plain that neither of these officers purported to arrest either of these boys. What was done was not done as an integral step in the process of arresting, but was done in order to secure an opportunity, by detaining the boys from escape, to put to them or to either of them the question which was regarded as the test question to satisfy the officers whether or not it would be right in the circumstances, and having regard to the answer obtained from that question, if any, to arrest them.

I regret to say that I think there was a technical assault by the police officer. From which it follows that the justification of self-defence exerted or exercised by these two boys is not negatived by any justifiable character of the initial assault. It is plain in my own view that it was within the province of the justices to decide whether there was any excess in exercising privilege of self-defence. The court is not asked to send back this case to the justices – that would have given it a quite inflated importance – for them to decide just what was the ambit of the self-defence permissible in the circumstances, what were the reasonable or unreasonable features of the conduct of the boys in seeking to defend themselves. It suffices to say that the self defence justification was available to these boys, and that it is not shown on the facts found by the justices that there was an excess of that liberty.

The justices have asked certain questions, as my Lord said, rather in the nature of an examination paper. It is not necessary to give any detailed answers to them, but in case they themselves want to know the answer, since they have consulted the court, to question (1) the answer is: yes as to any assault unless the assault resisted was itself justifiable; No. (2): yes, but knowledge

[1967] 2 Q.B. 510 Page 520

that the person assaulted was an officer in the execution of his duty does not have to be proved; No. (3): knowledge that the man attacked is a police officer is unnecessary, but a genuine mistake of fact as to the character of the person concerned, e.g. genuine and reasonable belief that he was a thug and not a police officer, would be highly material in judging the scope of reasonableness of the resistance exerted and the degree of force falling within the liberty or justification of self-defence. As to No. (4), it really does not need an answer: what is the difference between assault and “resists”? The two words have quite different meanings. “Resists” does not necessarily involve an assault.

For these reasons I think that this appeal should be allowed and this conviction quashed.

WIDGERY J. I agree.

LORD PARKER C.J. I also agree and I would only add that I think it is most unfortunate that these proceedings were ever brought, and saw the light of day; at the end the justices found that the offences committed by the boys amounted to technical assault, and as my Lord has just said, the action of the police amounted to technical assault.

Solicitors: Prothero & Prothero; Solicitor, Metropolitan Police.

[Fundamentals] Lee Kwong-Kut

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Hong Kong – Bill of Rights – Presumption of innocence – Statutory provision creating offence imposing burden on defendant – Whether inconsistent with presumption of innocence – Whether repealed – Summary Offences Ordinance (Laws of Hong Kong, 1989 rev., c. 228), s. 30 – Drug Trafficking (Recovery of Proceeds) Ordinance (Laws of Hong Kong, 1989 rev., c. 405), s. 25(1)(4)(a)(b) – Hong Kong Bill of Rights Ordinance 1991 (Laws of Hong Kong, c. 383), ss. 3(2), 8, art. 11(1)

The Hong Kong Bill of Rights Ordinance 1991 came into operation on 8 June 1991. Section 3(2) provided that all pre-existing legislation that did not admit of a construction consistent with the Ordinance was to the extent of the inconsistency repealed. Section 8

[1993] A.C. 951 Page 952

contained the Hong Kong Bill of Rights, article 11(1) of which provided: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”

The defendant in the first appeal was charged on an information preferred under section 30 of the Summary Offences Ordinance1 that on 17 November 1990 he had in his possession cash reasonably suspected of having been stolen or unlawfully obtained. In September 1991 he appeared before a magistrate, who dismissed the information, holding that section 30 was inconsistent with article 11(1) of the Bill of Rights Ordinance 1991 and had therefore been repealed by section 3(2). The Attorney-General appealed to the High Court and the judge reserved the appeal to the Court of Appeal, which upheld the magistrate’s decision.

The defendants in the second appeal were each charged on indictment with one count of assisting another to retain the benefit of drug trafficking, contrary to section 25(1)(a) of the Drug Trafficking (Recovery of Proceeds) Ordinance.2 The judge in the High Court ruled that section 25(1) and section 25(4)(a)(b) had been repealed by section 3(2) of the Ordinance of 1991 since they were inconsistent with article 11(1), and he quashed the indictment.

On the Attorney-General’s appeals to the Judicial Committee against the judgment of the Court of Appeal and the order of the High Court: –

Held, (1) that exceptions from strict application of the fundamental rule that throughout a trial the burden was on the prosecution to prove the guilt of the defendant beyond reasonable doubt were permissible provided that the responsibility for showing the guilt of the defendant remained primarily that of the prosecution; and that a provision under which the prosecution had to prove to the requisite standard the important elements of the offence as identified from the substance and reality of the statutory language, but an onus was reasonably imposed on the defendant to establish a proviso or exemption or similar matter, would not infringe the right conferred by article 11(1) to be presumed innocent until proved guilty according to law (post, pp. 969D, F-970A, 972F-G).

Hadley v. Perks (1866) L.R. 1 Q.B. 444 applied.

Dicta of Viscount Sankey L.C. in Woolmington v. Director of Public Prosecutions [1935] A.C. 462, 481, H.L.(E.) and of Lawton L.J. in Reg. v. Edwards [1975] Q.B. 27, 39-40, C.A. considered.

(2) Dismissing the first appeal, that on a charge under the Summary Offences Ordinance the defendant’s inability to give a satisfactory explanation as to how he came to be in possession of the property in question was not a special defence but the most important element of the offence under section 30 of the Summary Offences Ordinance; and that since the burden onthe prosecution was thereby reduced to proving matters which were likely, in the majority of cases, to be merely formal, the section unjustifiably contravened article 11(1) and had been repealed by section 3(2) of the Ordinance of 1991; that the presumption of

1 Summary Offences Ordinance, s. 30: see post, pp. 960H-961A.

2 Drug Trafficking (Recovery of Proceeds) Ordinance, s. 25(1)(4): see post, pp. 963C-E, H-964B.

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innocence had been established by article 11(1) on the date on which the Ordinance of 1991 had come into operation and applied in any subsequent trial irrespective of the date on which the alleged offence was committed; and that, accordingly, the information preferred against the defendant in the first appeal had properly been dismissed (post, pp. 961H-962B, 973B-C, G, 974A-B, 975D).

(3) Allowing the second appeal, that the essential ingredients of the offence under section 25(1)(a) of the Drug Trafficking (Recovery of Proceeds) Ordinance were those contained in that subsection, whereby the burden was on the prosecution to prove that the defendant had been involved in an arrangement relating to another person’s proceeds of drug trafficking knowing or having reasonable grounds to believe that person was connected with drug trafficking; that although subsection (4) prescribed special defences which the defendant had to prove on a balance of probabilities, such an onus on the defendant was justifiable in the context of the war against drug trafficking; and that, accordingly, neither section 25(1) nor 25(4) infringed article 11(1), and since both subsections remained in force the judge’s order quashing the indictment would be set aside (post, pp. 964E-F, 973D-F, G, 975E).

Reg. v. Colle (1991) 95 Cr.App.R. 67, C.A. applied.

Decision of the Court of Appeal of Hong Kong [1992] 2 H.K.C.L.R. 76 affirmed.

Decision of the High Court of Hong Kong reversed.

The following cases are referred to in the judgment of their Lordships:

Attorney-General v. Chiu Man-lun [1989] 1 H.K.L.R. 99

Attorney-General v. Lo Man-cheuk [1980] H.K.L.R. 687

Attorney-General of The Gambia v. Momodou Jobe [1984] A.C. 689; [1984] 3 W.L.R. 174, P.C.

Hadley v. Perks (1866) L.R. 1 Q.B. 444

Leary v. United States (1969) 23 L.Ed. 2d 57

Minister of Home Affairs v. Fisher [1980] A.C. 319; [1979] 2 W.L.R. 889; [1979] 3 All E.R. 21, P.C.

Mok Wei Tak v. The Queen [1990] 2 A.C. 333; [1990] 2 W.L.R. 898, P.C.

Patterson v. State of New York (1977) 53 L.Ed. 2d 281

Reg. v. Appleby (1971) 21 D.L.R. (3d) 325

Reg. v. Chaulk (1990) 62 C.C.C. (3d) 193

Reg. v. Colle (1991) 95 Cr.App.R. 67, C.A.

Reg. v. Downey (1992) 90 D.L.R. (4th) 449

Reg. v. Edwards [1975] Q.B. 27; [1974] 3 W.L.R. 285; [1974] 2 All E.R. 1085, C.A.

Reg. v. Holmes (1988) 50 D.L.R. (4th) 680

Reg. v. Hunt (Richard) [1987] A.C. 352; [1986] 3 W.L.R. 1115; [1987] 1 All E.R. 1, H.L.(E.)

Reg. v. Oakes (1986) 26 D.L.R. (4th) 200

Reg. v. Sin Yau-ming [1992] 1 H.K.C.L.R. 127

Reg. v. Whyte (1988) 51 D.L.R. (4th) 481

Salabiaku v. France (1988) 13 E.H.R.R. 379

Woolmington v. Director of Public Prosecutions [1935] A.C. 462, H.L.(E.)

The following additional cases were cited in argument:

Director of Public Prosecutions v. Hutchinson [1990] 2 A.C. 783; [1990] 3 W.L.R. 196; [1990] 2 All E.R. 836, H.L.(E.)

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Hunter v. Southam Inc. (1984) 11 D.L.R. (4th) 641

Lingens v. Austria, 11 December 1981, Application No. 8803/79, 26 D. &. R. 171

Martin v. Ohio (1987) 94 L.Ed. 2d 267

Mullaney v. Wilbur (1975) 44 L.Ed. 2d 508

Ong Ah Chuan v. Public Prosecutor [1981] A.C. 648; [1980] 3 W.L.R. 855, P.C.

Pham Hoang v. France (unreported), 25 September 1992, E.C.H.R.

Reg. v. Governor of Pentonville Prison, Ex parte Chinoy [1992] 1 All E.R. 317, D.C.

Reg. v. Ireco Canada II Inc. (1988) 43 C.C.C. (3d) 482

Reg. v. Richards [1992] 2 All E.R. 572, C.A.

Reg. v. Schwartz (1988) 55 D.L.R. (4th) 1

Reg. v. Wholesale Travel Group Inc. (1991) 84 D.L.R. (4th) 161

Ulster County Court v. Allen (1979) 60 L.Ed. 2d 777

Winship, In re (1970) 25 L.Ed. 2d 368

APPEALS (Nos. 59 and 60 of 1992) with special leave by the Attorney-General of Hong Kong from the judgment of the Court of Appeal of Hong Kong [1992] 2 H.K.C.L.R. 76 (Cons Acting C.J., Kempster J.A. and Bokhary J.) given on 18 June 1992 dismissing the Attorney-General’s appeal from the dismissal on 2 September 1991 by a permanent magistrate (Mr. J. L. Acton-Bond) of an information preferred against the first defendant, Lee Kwong-kut under section 30 of the Summary Offences Ordinance; and by the Attorney-General of Hong Kong from the order of Gall J. on 4 August 1992 in the High Court of Hong Kong quashing an indictment against the second defendants, Lo Chak-man and Tsoi Sau-ngai, charging each with one count of assisting another to retain the benefit of drug trafficking, contrary to section 25(1)(a) of the Drug Trafficking (Recovery of Proceeds) Ordinance.

The facts are stated in the judgment of their Lordships.

Nicolas Bratza Q.C. and Steven Bailey, Senior Assistant Crown Prosecutor, Hong Kong, for the Attorney-General. The presumption of innocence is directed at the burden and standard of proof which rests on the prosecution in criminal proceedings to establish the essential elements of the offence. The presumption does not prevent the legislature from creating statutory defences or require the Crown to justify them, and is not violated where, as in section 30 of the Summary Offences Ordinance and section 25 of the Drug Trafficking (Recovery of Proceeds) Ordinance, the legislature has laid down elements of the offence and a defence which the defendant has to prove on a balance of probabilities.

The correct approach to the Hong Kong Bill of Rights Ordinance 1991 was stated by Silke V.-P. in Reg. v. Sin Yau-ming [1992] 1 H.K.C.L.R. 127, 137-142. The provisions of article 11(1) are virtually identical to those of article 14(2) of the International Covenant on Civil and Political Rights, article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) and section 11(d) of the Canadian Charter of Rights and Freedoms. There is no such provision in the Constitution of the United States but the requirement that a person should not be deprived of life,

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liberty or property without due process of law embraces the right to be presumed innocent until proved guilty beyond reasonable doubt.

The meaning of the presumption of innocence was stated by Viscount Sankey L.C. in Woolmington v. Director of Public Prosecutions [1935] A.C. 462, 480-482. The presumption involves two principles. (1) The prosecution bears the burden of proving the essential ingredients of the offence charged and there is no onus on the defendant to disprove any of them. (2) The standard by which the defendant’s guilt of the offence must be established is proof beyond reasonable doubt. The duty of the prosecution to prove the defendant guilty is subject to any statutory exceptions, such as that reflected in Hong Kong in section 94A of the Criminal Procedure Ordinance (Laws of Hong Kong, 1988 rev., c. 221) and in England in section 101 of the Magistrates’ Courts Act 1980 (formerly section 81 of the Magistrates’ Courts Act 1952), whereby the burden of proving the exception is on the defendant. [Reference was made to Reg. v. Edwards [1975] Q.B. 27; Reg. v. Hunt (Richard) [1987] A.C. 352; Ong Ah Chuan v. Public Prosecutor [1981] A.C. 648; Salabiaku v. France (1988) 13 E.H.R.R. 379; Reg. v. Sin Yau-ming [1992] 1 H.K.C.L.R. 127; Reg. v. Holmes(1988) 50 D.L.R. (4th) 680; Reg. v. Schwartz (1988) 55 D.L.R. (4th) 1; Lingens v. Austria, 11 December 1981, Application No. 8803/79, 26 D. & R. 171; Patterson v. State of New York (1977) 53 L.Ed. 2d 281 and Martin v. Ohio (1987) 94 L.Ed. 2d 267.] In Reg. v. Whyte (1988) 51 D.L.R. (4th) 481 the Supreme Court of Canada adopted a much wider formulation of principle than that in Reg. v. Oakes (1986) 26 D.L.R. (4th) 200, holding that the distinction between essential elements of the offence and other aspects of the charge was irrelevant to an inquiry under section 11(d) of the Canadian Charter and that the exact characterisation of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. Although this broad statement of principle has been followed and applied in Canada, it does not correctly represent the scope and effect of the presumption of innocence and should not be followed in Hong Kong. The provisions of article 11(1) of the Hong Kong Bill and of the equivalent articles of the International Covenant and the European Convention, being essentially procedural in nature, are not concerned to control or restrict the substantive content of the criminal law: in principle the legislature remains free, consistently with the requirements of the presumption of innocence, to prohibit particular acts by means of the criminal law and to define the constituent elements of the resulting offence.

Section 30 of the Summary Offences Ordinance contains no implicit mental element of dishonesty and no presumption that the property was obtained dishonestly. The prosecution must prove possession of the property by the defendant and that the circumstances, viewed objectively, raise a suspicion in the mind of a reasonable man that the property was stolen. There can be no conviction unless the defendant has failed to give a satisfactory account of how the property came into his possession, but such failure is not an essential element of the offence. [Reference was made to Attorney-General v. Lo Man-cheuk [1980] H.K.L.R. 687 and Mok Wei Tak v. The Queen[1990] 2 A.C. 333.] Giving a satisfactory account is a statutory defence, and so the imposition of a burden on a

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defendant to provide an explanation does not offend the presumption of innocence.

The defendant’s alleged offence was committed before the Ordinance of 1991 came into force. Even if section 30 of the Summary Offences Ordinance was repealed by section 3(2) of the Ordinance of 1991 such repeal has no effect on the prosecution of the defendant, and the information against him should not have been dismissed by the magistrate. [Reference was made to sections 2 and 23 of the Interpretation and General Clauses Ordinance (Laws of Hong Kong, 1989 rev., c. 1).]

In relation to section 25(1) of the Drug Trafficking (Recovery of Proceeds) Ordinance, the prosecution does not have to prove knowledge or suspicion that the moneys were the proceeds of drug trafficking; nor does subsection (4) raise a presumption of such knowledge which must be rebutted by the accused. The legislature in subsection (4)(a) has provided that it is a defence to the offence in subsection (1) if the accused can show on a balance of probabilities that he neither knew nor suspected that the arrangement related to the proceeds of drug trafficking. [Reference was made to Reg. v. Colle (1991) 95 Cr.App.R. 67.]

The principle laid down in Reg. v. Oakes, 26 D.L.R. (4th) 200, was expanded and explained in Reg. v. Chaulk (1990) 62 C.C.C. (3d) 193 and Reg. v. Downey (1992) 90 D.L.R. (4th) 449. The judge erred in holding that the onus placed on the defendants by section 25(4) was neither rationally justifiable nor proportionate. He paid insufficient attention to the legislature’s object in imposing that burden. Section 25 is aimed at those who assist drug traffickers to retain the benefit of their trafficking. Subsection (3) is designed to encourage disclosure to the authorities, and subsection (4) is intended to be an added incentive to make disclosure. There is nothing to suggest that the legislature’s choice of means to achieve its objective was arbitrary, or that the objective could have been achieved as effectively by adopting alternative means. Four factors are relied on in relation to proportionality: (i) before an obligation is imposed on an accused the prosecution must establish beyond reasonable doubt all the matters specified in section 25(1); (ii) subsection (3) provides protection for those who become involved in money laundering transactions; (iii) the matters which an accused is required to prove under subsection (4) are within his own knowledge and the proof is on a balance of probabilities, and (iv) the importance of the interest of society is clear and there is nothing unfair or improper in the provisions of section 25. Subsection (4) does not impose a particularly onerous burden on an accused or one disproportionate to the objective intended by the legislature. Alternatively, the judge was not entitled to hold that section 25(1) and (4)(a) and (b) had been repealed. The only inconsistency with article 11(1) is in the words “to prove” in subsection (4), and if those words were removed an accused would no longer have a legal or persuasive burden of establishing a defence under subsection (4), but would merely have an evidential burden of raising the issue, and that would not contravene article 11(1). Such limited repeal would be permissible: see Reg. v. Ireco Canada II Inc. (1988) 43 C.C.C. (3d) 482.

G. J. X. McCoy and Keith Oderberg (both of the English and Hong Kong Bars), for the defendant Lee Kwong-kut, were not called upon.

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[23 March. LORD KEITH OF KINKEL. Their Lordships will advise that the first appeal should be dismissed for reasons to be delivered later.]

Alan Hoo Q.C. and Kevin Chan (both of the English and Hong Kong Bars) for the defendant Lo Chak-man. A provision had to be implied into the Hong Kong Bill enabling any breaches to be justified. On the Canadian approach to an equivalent statute, the first question would be to ask whether there has been an infringement of article 11(1) of the Hong Kong Bill and if so whether it can be justified: see Reg. v. Oakes, 26 D.L.R. (4th) 200. On the approach of the European Court of Human Rights and the European Commission, the only question the court has to decide is whether there has been an infringement, although a margin of limitation is built into that question, and it is unnecessary to deal with justification on a case by case basis because the right itself is confined within reasonable parameters: see Salabiaku v. France, 13 E.H.R.R. 379. [Reference was made to section 1 of the Canadian Charter of Rights and Freedoms and articles 6(2), 7(1)(2) and 10(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.] On the European approach, presumptions of fact or of law must be confined within reasonable limits, and a presumption which involves an essential ingredient of an offence or an inculpatory factor can never fall within those reasonable limits; but if the presumption involves an exculpatory factor then the boundaries will not be exceeded if the provision strikes a proper balance between the needs of society and the fair trial of a defendant. [Reference was made to Salabiaku v. France, 13 E.H.R.R. 379 and Lingens v. Austria, 11 December 1981.]

Article 11(1) underpins the whole concept of a fair trial. It provides that guilt can only be established where (1) the elements constituting the offence have been proved by the prosecution; (2) there is no exculpating factor established by the defendant, and (3) no possibility of a reasonable doubt in respect of guilt exists. [Reference was made to Reg. v. Holmes, 50 D.L.R. (4th) 680 and Mok Wei Tak v. The Queen [1990] 2 A.C. 333.] There are two limbs to the protection afforded under article 11(1). The first is the right to be presumed innocent, which at the trial stage means that the burden of proving the guilt of the accused should lie on the prosecution. The second limb provides that the presumption of innocence continues until the accused is proved guilty according to law, that is, until the requisite standard of proof has been discharged by the prosecution in the trial process. The decision in Reg. v. Whyte, 51 D.L.R. (4th) 481 is anchored on this premise in its analysis of a criminal provision.

Where a factor is an essential element in a criminal offence any reversal of the onus of proof (the persuasive burden) in relation to that factor is a breach of article 11(1). Furthermore, if a criminal provision allows a conviction when the requisite standard of proof (i.e., proof beyond reasonable doubt) has not been satisfied then that provision is also a breach of article 11(1), whether or not the provision concerns a reverse onus situation or statutory defence or excuse situation. The legislature intended the offence under section 25 of the Drug Trafficking (Recovery of Proceeds) Ordinance to apply to those who knew or had reasonable grounds to believe they were assisting in facilitating the

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retention or control by a drug trafficker of his proceeds from drug trafficking. Such knowledge is an essential element of the offence. [Reference was made to Reg. v. Governor of Pentonville Prison, Ex parte Chinoy [1992] 1 All E.R. 317; Reg. v. Colle, 95 Cr.App.R. 67; Patterson v. State of New York, 53 L.Ed.2d 281 and Mullaney v. Wilbur (1975) 44 L.Ed. 2d 508.] If section 25 infringes article 11(1), merely to excise the words “to prove” from section 25(4) would not be an effective remedy. The court should be slow to excise words from a statute, for to do so may be to build into the statute something which is contrary to the legislative intention. The responsibility of the court is to strike down legislation which is inconsistent with article 11(1). Any further remedy is for the legislature to determine. [Reference was made to Hunter v. Southam Inc. (1984) 11 D.L.R. (4th) 641.]

Martin Thomas Q.C. and Philip Dykes (of the English and Hong Kong Bars) for the defendant Tsoi Sau-ngai. The Hong Kong Bill should be given as generous and purposive a construction as possible: see Minister of Home Affairs v. Fisher [1980] A.C. 319, 329, per Lord Wilberforce and Attorney-General of The Gambia v. Momodou Jobe [1984] A.C. 689, 700, per Lord Diplock. The problem is the extent to which the individual rights and freedoms guaranteed by the Hong Kong Bill may be limited by the legislature in the interests of society as a whole.

The provisions of the International Covenant on Civil and Political Rights have been incorporated into the law of Hong Kong. [Reference was made to article VII(3) of the Hong Kong Letters Patent 1991 (No. 2), L.N. 226 of 1991; the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (1985) U.K.T.S. No. 26 (Cmnd. 9543), and article 39 of The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (1990) 29 I.L.M. 1511.] The legislature must have envisaged the likelihood of existing statutory provisions in Hong Kong being inconsistent with the Ordinance of 1991, which repeals such provisions and sets the standard for future legislation.

The European jurisprudence is less well developed in these areas than that of the United States and Canada. In Hong Kong decisions as to the constitutionality of a statutory provision are made at every level, and so clear principles should be set out which every court can apply. The Ordinance of 1991 was drafted with the experience of the Canadian Charter of Rights and Freedoms in mind and there are similarities between them. The approach in Reg. v. Whyte, 51 D.L.R. (4th) 481 should be applied in Hong Kong. Whenever a burden of proof is placed on a defendant, so that he may be convicted even though there is reasonable doubt of his guilt, the presumption of innocence is contravened. A jury may be unsure whether a defendant has established, on a balance of probabilities, a statutory defence and thus convict him despite the presumption of innocence. [Reference was made to Leary v. United States (1969) 23 L.Ed. 2d 57; Reg. v. Downey, 90 D.L.R. (4th) 449; Ulster County Court v. Allen (1979) 60 L.Ed. 2d 777; In re Winship (1970) 25 L.Ed. 2d 368; Reg. v. Oakes, 26 D.L.R. (4th) 200; Mok Wei Tak v. The Queen[1990] 2 A.C. 333; Salabiaku v. France, 13 E.H.R.R.

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379; Ong Ah Chuan v. Public Prosecutor [1981] A.C. 648; Reg. v. Whyte, 51 D.L.R. (4th) 481 and Reg. v. Sin Yau-ming [1992] 1 H.K.C.L.R. 127.] The question is whether a particular provision limits the guarantee afforded by the presumption of innocence, and, if so, whether that limitation is acceptable. The court must weigh the limitation of the guaranteed right against the social benefit which the limiting provision seeks to attain.

The judge applied the proper tests and reached the correct conclusion. The Crown failed to show that the laundering of drug money by third parties was a serious problem in Hong Kong. The Drug Trafficking (Recovery of Proceeds) Ordinance is concerned with the tracing, confiscation and recovery of the proceeds of drug trafficking. The particular offence in section 25 is only a minor part of the Ordinance. The judge recognised the importance of the presumption of innocence and that section 25(1) and (4) was potentially a serious breach of it. He was entitled to hold that the Crown had not proved that those provisions could be justified.

Difficulties would arise if only subsection (4)(a) and (b) or the words “to prove” are excised. To delete the words “to prove” from subsection (4) would alter the nature of the offence under subsection (1). As to textual severability, see Director of Public Prosecutions v. Hutchinson [1990] 2 A.C. 783.

Dykes following. Article 2 of the International Covenant on Civil and Political Rights imposes an obligation on states which are parties to the Covenant to respect the rights set forth therein and to ensure that they are implemented, although each state is given a discretion to decide how to do so. In 1991 the Covenant became part of the domestic law of Hong Kong.

The effect on other rights has to be taken into account when considering the imposition of limitations on the presumption of innocence in article 11(1) of the Hong Kong Bill. [Reference was made to Reg. v. Wholesale Travel Group Inc. (1991) 84 D.L.R. (4th) 161.]

If, in order to convict a defendant under section 25 of the Drug Trafficking (Recovery of Proceeds) Ordinance it is not necessary for the prosecution to prove that he knew that the proceeds were related to drug trafficking, it is anomalous that the prosecution in seeking a confiscation order should then have to establish that the defendant knew that moneys received were received in connection with drug trafficking: see Reg. v. Richards [1992] 2 All E.R. 572. The Drug Trafficking (Recovery of Proceeds) Ordinance was modelled on the United Kingdom Drug Trafficking Act 1986.

Bratza Q.C. in reply. The courts regularly have to identify what the essential elements of an offence are and in most cases there is no difficulty. In Salabiaku v. France, 13 E.H.R.R. 379, the European Court of Human Rights was not dealing with an exculpatory provision. It is incorrect to suggest that under the European system the imposition of a burden of a defendant is only justifiable if the imposition relates to exculpatory factors. [Reference was also made to Pham Hoang v. France (unreported), 25 September 1992.]

Great weight should be given to the views of the local legislature. It was unnecessary for the Crown to adduce evidence to show why section

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25 of the Drug Trafficking (Recovery of Proceeds) Ordinance was framed as it was since that was plain from the legislation itself.

Cur. adv. vult.

19 May. The judgment of their Lordships was delivered by LORD WOOLF.

These appeals illustrate the effect on existing legislation of adopting a Bill of Rights. On 8 June 1991 the Hong Kong Bill of Rights Ordinance 1991 (Laws of Hong Kong, c. 383) (“the Hong Kong Bill”) came into force.

After a hearing on 2 September 1991, at which no evidence was called, a magistrate dismissed an information preferred against Lee Kwong-kut (“the first defendant”) under section 30 of the Summary Offences Ordinance (Laws of Hong Kong, 1989 rev., c. 228) (“section 30”) on the ground that section 30 had been repealed by section 3(2) of the Hong Kong Bill. The Attorney-General of Hong Kong appealed against that decision and on 18 June 1992 the Court of Appeal of Hong Kong [1992] 2 H.K.C.L.R. 76 dismissed that appeal.

On 4 August 1992 Gall J. quashed an indictment against Lo Chak-man and Tsoi Sau-ngai (“the second defendants”), charging each of the second defendants with one count of assisting another to retain the benefit of drug trafficking contrary to section 25(1) of the Drug Trafficking (Recovery of Proceeds) Ordinance (Laws of Hong Kong, 1989 rev., c. 405) (“section 25”). Gall J. quashed the indictment as a result of his ruling that section 25(1) and section 25(4)(a) and (b) had been repealed by section 3(2) of the Hong Kong Bill.

In relation to the rulings in both cases, the Attorney-General sought special leave to appeal and this was granted on 17 November 1992. In both cases the rulings were made on the grounds that the respective sections were inconsistent with section 8, article 11(1) (“article 11(1)”) of the Hong Kong Bill, which provides: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” Both appeals were heard together. This was a convenient course to adopt on what is the first appeal to come before the Board as to article 11(1) since it has enabled the Board to consider a wide ranging argument about section 30 and section 25 which have very different structures. It was not however necessary for their Lordships to call upon counsel for the first defendant since, having heard the argument on behalf of the Attorney-General in relation to the appeal in his case, their Lordships were satisfied that the appeal could not succeed. Their Lordships have humbly advised Her Majesty accordingly.

It is desirable at the outset to explain the different structure of the two offences before turning to consider the possible effects of the Hong Kong Bill.

The structure of section 30

The terms of section 30 are:

“Any person who is brought before a magistrate charged with having in his possession or conveying in any manner anything which may be

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reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account, to the satisfaction of the magistrate, how he came by the same, shall be liable to a fine of $1,000 or to imprisonment for three months.”

The way in which the present information was worded shows how a charge under section 30 is approached in practice. What is alleged is that the first defendant had on 17 November 1990 (at a named place) in his possession cash $1.76m. Hong Kong currency, reasonably suspected of having been stolen or unlawfully obtained. The failure to give an account to the magistrate is not mentioned.

In his judgment in the Court of Appeal [1992] H.K.C.L.R. 76, 79, relating to the first defendant, Kempster J.A. points out that section 30’s source, like similar provisions in the laws of each of the states of Australia and of a number of former British colonies in Africa, was the former offence under section 24 of the Metropolitan Police Courts Act 1839 (2 & 3 Vict. c. 71) (which was repealed by the Criminal Law Act 1977) and that its history in Hong Kong goes back to section 36 of the Summary Offences Ordinance 1845.

For a proper understanding of section 30 it is useful to have in mind the powers given to the Hong Kong Police by section 55 of the Police Force Ordinance (c. 232), which is comparable to part of what was section 66 of the Metropolitan Police Act 1839 (2 & 3 Vict. c. 47). Section 55 of the Police Force Ordinance states:

“It shall be lawful for any police officer to stop, search and detain any vessel, boat, vehicle, horse or other animal or thing in or upon which there is reason to suspect that anything stolen or unlawfully obtained may be found and also any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained; …”

As has been decided in England in Hadley v. Perks (1886) L.R. 1 Q.B. 444 and in Hong Kong in Attorney General v. Chiu Man-lun [1989] 1 H.K.L.R. 99, section 30 and section 24 of the Metropolitan Police Courts Act 1839 are to be regarded as supplemental to the powers of arrest given respectively by section 55 of the Police Force Ordinance and section 66 of the Metropolitan Police Act 1839. Construed in this way section 30 created an offence with which a person could be charged after he was stopped and arrested by a police officer in circumstances where there was a suspicion that he had committed an offence but where it was not possible to establish that he was guilty of what were the more serious offences of larceny or receiving. The nature of that offence was made clear by Lush J. in Hadley v. Perks, L.R. 1 Q.B. 444, 462, when he said of section 24:

“It makes it an offence for a person to have in his possession, or convey in any manner, anything which may be reasonably suspected of being stolen or unlawfully obtained, without being able to give a satisfactory account of how he came by it.”

Section 30 is therefore an offence which contains three elements: (1) the possession or conveying of the property by the defendant, (2)

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the reasonable suspicion that the property has been stolen or unlawfully obtained and (3) the inability of the defendant to give a satisfactory account of how the property came into his possession.

The third element is not a special defence as is contended by Mr. Bratza in his extremely persuasive argument, on behalf of the Attorney-General, but an ingredient of the offence which places the onus on the defendant, in order to avoid a finding of guilt, to establish that he is able to give an explanation as to his innocent possession of the property.

This third ingredient is the most important element of the offence since, were it not for the third ingredient, it is not difficult to envisage circumstances in which a defendant in possession of property could be guilty of an offence without any behaviour on his part to which it would be appropriate to attach the strictures of the criminal law. He could, for example, be in possession of the property without having any knowledge of any of the circumstances which gave rise to the reasonable suspicion that the property was either stolen or obtained unlawfully which justified the police officer detaining him. Section 30 therefore does not create an offence of the class identified in Reg. v. Edwards [1975] Q.B. 27, 39-40, by Lawton L.J. when, in giving the judgment of the court, he said after examining a line of authority dating from the 17th century:

“this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified auth- orities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisoes, exemptions and the like, then the prosecution can rely upon the exception.”

This does highlight the very special nature of section 30 since, as Lord Griffiths said of the formulation of the exception by Lawton L.J. in Reg. v. Edwards in Reg. v. Hunt (Richard) [1987] A.C. 352, 375:

“the occasions upon which a statute will be construed as imposing a burden of proof upon a defendant which do not fall within this formulation are likely to be exceedingly rare.”

On this point section 30 can be compared with the approach adopted by the majority of the Board in Mok Wei Tak v. The Queen [1990] 2 A.C. 333 concerning section 10(1)(a) of the Prevention of Bribery Ordinance (c. 201), where in the words of Lord Roskill, at p. 349, “the offence is the maintaining of a standard of living which cannot be satisfactorily explained.” Here the offence is being in possession of the suspicious property without being able to give a satisfactory explanation.

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In adopting this approach to the nature of section 30 it is also not intended to cast any reflection on the correctness of the decision in Attorney-General v. Lo Man-cheuk [1980] H.K.L.R. 687 that it was not necessary to make any reference to the failure of the accused to give an account to the satisfaction of the magistrate of his possession of the property reasonably suspected of being stolen or unlawfully obtained in a charge under section 30. The correctness of this decision was not in issue before their Lordships.

The structure of section 25

The respective counts of contravening section 25(1)(a) on which the second defendants were to be tried were identical; the particulars of each count alleged that between 6 and 20 December 1989 they had respectively been concerned in an arrangement whereby the retention or control of another’s proceeds of drug trafficking was facilitated, knowing or having reasonable grounds to believe that the other person carried on or had carried on drug trafficking or had benefited from drug trafficking.

The relevant provisions of section 25 are:

“(1) Subject to subsection (3), a person who enters into or is otherwise concerned in an arrangement whereby – (a) the retention or control by or on behalf of another (‘the relevant person’) of the relevant person’s proceeds of drug trafficking is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or (b) the relevant person’s proceeds of drug trafficking – (i) are used to secure that funds are placed at the relevant person’s disposal; or (ii) are used for the relevant person’s benefit to acquire property by way of investment, knowing or having reasonable grounds to believe that the relevant person is a person who carries on or has carried on drug trafficking or has benefited from drug trafficking, commits an offence. (2) In this section, references to any person’s proceeds of drug trafficking include a reference to any property which in whole or in part directly or indirectly represented in his hands his proceeds of drug trafficking. (3) Where a person discloses to an authorised officer a suspicion or belief that any funds or investments are derived from or used in connection with drug trafficking or any matter on which such a suspicion or belief is based – (a) if he does any act in contravention of subsection (1) and the disclosure relates to the arrangement concerned, he does not commit an offence under this section if the disclosure is made in accordance with this paragraph, that is – (i) it is made before he does the act concerned, being an act done with the consent of the authorised officer; or (ii) it is made after he does the act, but is made on his initiative and as soon as it is reasonable for him to make it; (b) the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by contract or by rules of professional conduct; and (c) he shall not be liable in damages for any loss arising out of – (i) the disclosure; (ii) any act done or omitted to be done in relation to the funds or investments in consequence of the disclosure. (4) In proceedings against a person for an offence under this section, it is a defence to

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prove – (a) that he did not know or suspect that the arrangement related to any person’s proceeds of drug trafficking; or (b) that he did not know or suspect that by the arrangement the retention or control by or on behalf of the relevant person of any property was facilitated or, as the case may be, that by the arrangement any property was used as mentioned in subsection (1); or (c) that – (i) he intended to disclose to an authorised officer such a suspicion, belief or matter as is mentioned in subsection (3) in relation to the arrangement; but (ii) there is reasonable excuse for his failure to make disclosure in accordance with subsection (3)(a). (5) A person who commits an offence under this section is liable – (a) on conviction upon indictment to a fine of $5,000,000 and to imprisonment for 14 years; …”

The only significant difference between section 25 and section 24 of the (United Kingdom) Drug Trafficking Offences Act 1986 is in relation to the knowledge which is required of the status of “the relevant person” before an offence is committed. Section 25(1) refers to “knowing or having reasonable grounds to believe” whereas the United Kingdom legislation refers to “knowing or suspecting.”

The language of section 25 makes the purpose of the section clear. It is designed to make it more difficult for those engaged in the drug trade to dispose of the proceeds of their illicit traffic without the transactions coming to the knowledge of the authorities. Once a person has knowledge or has reasonable grounds to believe that a relevant person carries on or has carried on drug trafficking or has benefited from drug trafficking, then it will be an offence to become involved with “the relevant person” in any of the wide-ranging activities referred to in the section, unless the activity is reported in accordance with subsection (3) or the person who engages in the activity is in a position to establish the defence provided for in section 25(4). The section therefore creates an offence, which involves an absolute prohibition on engaging in the activities referred to in the section with someone whom you know or have reasonable grounds to believe is a person who carries on or has carried on or has benefited from drug trafficking, subject to an exception contained in section 25(3) and a special defence contained in subsection (4). Section 25 is an offence which falls within the classes referred to by Lawton L.J. in the passage cited from his judgment in Reg. v. Edwards [1975] Q.B. 27, 39-40.

As was held in Reg. v. Colle (1991) 95 Cr.App.R. 67, in relation to that special defence, the legal or persuasive burden of proof is on a defendant, the standard required being proof on a balance of probabilities. Furthermore the only “mens rea” which the prosecution is required to establish, if mens rea is an appropriate description of the necessary mental element, is that the defendant should know or have reasonable grounds to believe that the relevant person is connected with drug trafficking. This mental element can exist, even if the defendant does not have the required belief, if there are reasonable grounds for his holding the belief. The offence is therefore a Draconian one.

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The application of article 11(1) of the Hong Kong Bill

The Hong Kong Bill was enacted by the Governor of Hong Kong, with the advice and consent of the Hong Kong Legislative Council. Its provisions are for the time being entrenched under the Hong Kong Letters Patent 1991 (No. 2). The Ordinance is designed to achieve “the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong; …” (“the International Covenant”). Section 3 of the Hong Kong Bill provides:

“Effect on pre-existing legislation. (1) All pre-existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction. (2) All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed.”

“Pre-existing legislation” means legislation enacted before the commencement date of the Hong Kong Bill so both section 30 and section 25 are pre-existing legislation.

The close link between the Hong Kong Bill and the International Covenant is emphasised by section 4 which states:

“Interpretation of subsequent legislation. All legislation enacted on or after the commencement date shall, to the extent that it admits of such a construction, be construed so as to be consistent with the International Covenant on Civil and Political Rights as applied to Hong Kong.”

Part II of the Ordinance consists of section 8 which contains the 23 articles which constitute the Hong Kong Bill. Each of those articles refers in terms to the equivalent articles of the International Covenant. Article 11(1), the terms of which have been referred to earlier, is to be compared with article 14 of the International Covenant and it should be considered together with that part of article 10 of the Hong Kong Bill which provides:

“In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

Article 11(2) is also of relevance since it provides:

“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality … (g) not to be compelled to testify against himself or to confess guilt.”

The decision of the Court of Appeal in the case of the first defendant [1992] 2 H.K.C.L.R. 76 was not the first appeal heard by that court which involved article 11(1) of the Hong Kong Bill. In Reg. v. Sin Yau-ming [1992] 1 H.K.C.L.R. 127 the Court of Appeal (Silke V.-P., Kempster and Penlington JJ.A.) gave admirably clear judgments which were intended to provide guidance to the Hong Kong courts as to the

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proper approach to the application of article 11(1) of the Hong Kong Bill. The judgment was in relation to offences of possession of dangerous drugs for the purpose of unlawful trafficking. In their decision, the Court of Appeal decided that certain of the provisions of sections 46 and 47 of the Dangerous Drugs Ordinance (c. 134) were repealed as being inconsistent with article 11(1).

Although this is the first appeal in which the Hong Kong Bill has been considered by the Board, the Board has had from time to time to consider earlier constitutional orders which contain similar provisions and in his judgment in the Sin Yau-ming case, Kempster J.A., at p. 155, referred to the general approach to the interpretation of constitutions and bills of rights, indicated in the previous decisions of the Board in Minister of Home Affairs v. Fisher [1980] A.C. 319 and Attorney-General of The Gambia v. Momodou Jobe [1984] A.C. 689. In Minister of Home Affairs v. Fisher [1980] A.C. 319, 328, in relation to the Bermuda Constitution Order 1968 (S.I. 1968 No. 182), Lord Wilberforce stated, of instruments of this nature, that they “call for a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism,’ suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.” In Attorney-General of The Gambia v. Momodou Jobe [1984] A.C. 689, 700, Lord Diplock said:

“A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction.”

Lord Diplock’s comment was as to the Constitution of the Republic of The Gambia 1970 but, as in the case of the statement of Lord Wilberforce, the approach indicated is equally applicable to the Hong Kong Bill.

Reference was also made in the judgments in the Sin Yau-ming case [1992] 1 H.K.C.L.R. 127 to decisions in other common law jurisdictions, including the United States of America and Canada and of the European Court of Human Rights in relation to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). Such decisions can give valuable guidance as to the proper approach to the interpretation of the Hong Kong Bill, particularly where the decisions in the other jurisdictions are in relation to an article in the same or substantially the same terms as that contained in the equivalent provision of the Hong Kong Bill. However, it must not be forgotten that decisions in other jurisdictions are persuasive and not binding authority and that the situation in those jurisdictions may not necessarily be identical to that in Hong Kong. This is particularly true in the case of decisions of the European Court of Human Rights, as Silke V.-P. recognised. The European Court of Human Rights is not concerned directly with the validity of domestic legislation but whether, in relation to a particular complaint, a state has in its domestic jurisdiction infringed the rights of a complainant under the European Convention; whereas, in the case of the Hong Kong Bill, the Hong Kong courts, and on appeal

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the Board, have to determine the validity of domestic legislation having regard to the entrenched provisions of the Hong Kong Bill.

Of the various authorities to which the Court of Appeal were referred in the Sin Yau-ming case[1992] 1 H.K.C.L.R. 127 and on the appeal in the case of the prosecution of the first defendant [1992] 2 H.K.C.L.R. 76, the Court of Appeal in Hong Kong found that the decisions of the Supreme Court of Canada provided the most assistance, in particular on the interpretation of article 11(1). In the Sin Yau-ming case all three judges and, on the Attorney-General’s appeal in the case of the first defendant, Kempster J.A. relied heavily on the judgment of Dickson C.J.C. in the Supreme Court of Canada in Reg. v. Oakes (1986) 26 D.L.R. (4th) 200, while on that appeal Cons Acting C.J. and Bokhary J. followed the subsequent judgment of Dickson C.J.C. in Reg. v. Whyte (1988) 51 D.L.R. (4th) 481. When giving his ruling in the second defendants’ case, Gall J. also applied the approach which was identified by Dickson C.J.C. in Reg. v. Whyte. In both cases Dickson C.J.C. was applying section 11(d) of the Canadian Charter of Rights and Freedoms which is the equivalent of article 11(1) of the Hong Kong Bill. In Reg. v. Whyte a stricter approach was adopted to section 11(d) than that which had been adopted in the earlier case of Reg. v. Oakes. Mr. Bratza accepts that the approach in Reg. v. Whyte now represents the accepted approach in Canada, as is confirmed by later decisions of the Canadian Supreme Court: for example, in Reg. v. Downey(1992) 90 D.L.R. (4th) 449. However on behalf of the Attorney-General he submits that it is not desirable for the Hong Kong courts to follow that approach in relation to article 11(1) as it is more intrusive in its effect on existing legislation than the approach adopted in other jurisdictions.

So far as the present appeals are concerned, their Lordships are of the opinion that, whether what can be described as the Whyte approach or the less intrusive approach adopted in other jurisdictions is applied, the outcome would be the same. However in order to assist the Hong Kong courts in the future and in view of the carefully reasoned decisions of the Court of Appeal already referred to, the Board feel it is necessary to give some assistance as to the correct approach for the courts to adopt in relation to article 11(1) and in particular as to whether it is appropriate to adopt the Whyte approach in Hong Kong as a matter of course.

Before examining the approach adopted in Canada it is helpful to consider the language and objectives of article 11(1) and the approach adopted in other jurisdictions apart from Canada to similar provisions.

Article 11(1) of the Hong Kong Bill is part of a group of provisions contained both in that article and in article 10 which are designed to ensure that, before an individual is convicted of a criminal offence, he will have a fair trial and that justice will be done. Article 11(1) would be described in the United States as a due process provision. In his case the first-named of the second defendants draws attention to the fact that article 11(1) is not subject to any express limitation. Reference is also made to the comments by the United Nations Human Rights Committee at its twenty-first session on article 14 of the International Covenant, which include the statement that:

“The burden of proof of the charge is on the prosecution and the accused has the benefit of the doubt. No guilt can be presumed

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until the charge has been proved beyond all reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial.”

However, it should not be assumed from this statement that the comparable article in the International Covenant to article 11(1) does not permit the degree of flexibility which is normally assumed to be implicit in any provision of general application which is of the same nature as article 11(1) of the Hong Kong Bill. Placing to one side for the moment the decisions in Canada all of the many decisions in different jurisdictions, to which their Lordships were referred, recognise that provisions similar to article 11(1) are always subject to implied limitations so that a contravention of the provisions does not automatically follow as a consequence of a burden on some issues being placed on a defendant at a criminal trial. In the common law jurisdictions, Viscount Sankey L.C.’s famous statement in Woolmington v. Director of Public Prosecutions [1935] A.C. 462, 481, that:

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.”

is regularly treated as a starting point for the approach to provisions equivalent to article 11(1). If that statement is taken together with the comments of Lawton L.J. in Reg. v. Edwards [1975] Q.B. 27, 39-40, and Lord Griffiths in Reg. v. Hunt (Richard) [1987] A.C. 352, 375, referred to earlier, and if it is also remembered that it is the substance rather than the letter of the language of the statute which is important when considering whether there is an exemption or proviso, this statement is also a useful starting point when considering the effect of article 11(1) itself.

Mr. Bratza relied on the decision in the United States Supreme Court in Patterson v. State of New York (1977) 53 L.Ed. 2d 281 as showing that that court had rejected an argument that the “due process” clause of the Fourteenth Amendment required a state to disprove beyond reasonable doubt every fact constituting any offence and all affirmative defences relating to the culpability of the accused. He also relied upon the cases before the European Court of Human Rights which were referred to in the judgments in the Sin Yau-ming case [1992] 1 H.K.C.L.R. 127. Here reference can be usefully made to the decision of the European Court of Human Rights in Salabiaku v. France (1988) 13 E.H.R.R. 379, 388, where the judgment, which has been followed in later cases in that court, contains the following statement as to the equivalent provisions to article 11 of the Hong Kong:

“Presumptions of fact or of law operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law. If, as the Commission would appear to consider paragraph 2 of article 6

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merely laid down a guarantee to be respected by the courts in the conduct of legal proceedings, its requirements would in practice overlap with the duty of impartiality imposed in paragraph 1. Above all, the national legislature would be free to strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance, if the words ‘according to law’ were construed exclusively with reference to domestic law. Such a situation could not be reconciled with the object and purpose of article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law. Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.”

This statement provides a valuable illustration of the collective effect of the decisions in other jurisdictions, apart from Canada, to which their Lordships have been referred on equivalent provisions to article 11(1) in other constitutional documents. Even though they are not subject to any express limitation they are considered to have an implicit degree of flexibility. The situation is the same in relation to article 11(1).

This implicit flexibility allows a balance to be drawn between the interest of the person charged and the state. There are situations where it is clearly sensible and reasonable that deviations should be allowed from the strict applications of the principle that the prosecution must prove the defendant’s guilt beyond reasonable doubt. Take an obvious example in the case of an offence involving the performance of some act without a licence. Common sense dictates that the prosecution should not be required to shoulder the virtually impossible task of establishing that a defendant has not a licence when it is a matter of comparative simplicity for a defendant to establish that he has a licence. The position is the same with regard to insanity, which was one of the exceptions identified by Viscount Sankey L.C. in the passage of Woolmington v. Director of Public Prosecutions [1935] A.C. 462, 481, which has already been cited. The other qualification which Viscount Sankey L.C. made as to statutory exceptions clearly has to be qualified when giving effect to a provision similar to article 11(1).

Some exceptions will be justifiable, others will not. Whether they are justifiable will in the end depend upon whether it remains primarily the responsibility of the prosecution to prove the guilt of an accused to the required standard and whether the exception is reasonably imposed, notwithstanding the importance of maintaining the principle which article 11(1) enshrines. The less significant the departure from the normal principle, the simpler it will be to justify an exception. If the prosecution retains responsibility for proving the essential ingredients of the offence, the less likely it is that an exception will be regarded as unacceptable. In deciding what are the essential ingredients, the language of the relevant statutory provision will be important. However what will be decisive will be the substance and reality of the language creating the offence rather

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than its form. If the exception requires certain matters to be presumed until the contrary is shown, then it will be difficult to justify that presumption unless, as was pointed out by the United States Supreme Court in Leary v. United States (1969) 23 L.Ed. 2d 57, 82, “it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”

Turning to the recent decisions of the Canadian Supreme Court, they contain remarks of considerable value. In particular the majority judgment of Dickson C.J.C. in Reg. v. Oakes, 26 D.L.R. (4th) 200 contains a number of helpful statements.

His general conclusion, at p. 222, after examining the authorities in various other jurisdictions, was in the following terms with which, with its reference to “important element” and “essential element,” their Lordships would respectfully agree:

“In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence … If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue.”

It is, however, important when considering the decision in Reg. v. Oakes and the cases in which it has been followed, to remember that prior to the adoption of the Canadian Charter, Canada had a Bill of Rights and that while the Bill of Rights did not have an express limitation on the effect of its specific provisions, the Charter does have such a limitation in section 1:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Having regard to this express limitation, it is understandable that Dickson C.J.C. in Reg. v. Oakes, at p. 223, considered that “it is highly desirable to keep sections 1 and 11(d) (of the Canadian Charter) analytically distinct.” Having adopted a two-stage process, it is again understandable that the Canadian Supreme Court has adopted a strict approach as to when there had been a contravention of section 11(d). This is in contrast to the flexible approach which had been adopted by the Canadian Supreme Court in Reg. v. Appleby (1971) 21 D.L.R. (3d) 325, to section 2(f) of the Canadian Bill of Rights which is the equivalent provision to section 11(d) of the Canadian Charter. Dickson C.J.C. in Reg. v. Oakes, 26 D.L.R. (4th) 200, 224-225, regarded section 1 of the Charter as stating “explicitly the exclusive justificatory criteria … against which limitations on those rights and freedoms (set out in the

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Charter) must be measured.” Having come to this conclusion, in Reg. v. Whyte, 51 D.L.R. (4th) 481, the Canadian Supreme Court, as already indicated, applied a stricter approach to the application of section 11(d) of the Charter than had been adopted not only in Reg. v. Oakes, 26 D.L.R. (4th) 200, but in the subsequent case of Reg. v. Holmes (1988) 50 D.L.R. (4th) 680. In the passage of his judgment in Reg. v. Oakes, 26 D.L.R. (4th) 200, 222, cited above, Dickson C.J.C. regarded presumptions in relation to “an important element” or “an essential element” as offending section 11(d) of the Canadian Charter. In Reg. v. Whyte, 51 D.L.R. (4th) 481, his approach was not confined to these elements as appears from the following passage of his judgment, at p. 493:

“In the case at bar, the Attorney-General of Canada argued that since the intention to set the vehicle in motion is not an element of the offence, section 237(1)(a) does not infringe the presumption of innocence. Counsel relied on the passage from Oakes quoted above, with its reference to an ‘essential element,’ to support this argument. The accused here is required to disprove a fact collateral to the substantive offence, unlike Oakes where the accused was required to disprove an element of the offence. The short answer to this argument is that the distinction between elements of the offence and other aspects of the charge is irrelevant to the section 11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.”

It was the approach reflected in this passage of Dickson C.J.C.’s judgment (“the Whyte approach”) which was followed in these cases, in the Court of Appeal by Cons Acting C.J. and Bokhary J. in the first defendant’s case, and by Gall J., in the second case.

Applying the Whyte approach, even to place the onus on a defendant to prove insanity as a “defence” to murder has now been held to contravene the presumption of innocence guaranteed by section 11(d) of the Canadian Charter: Reg. v. Chaulk (1990) 62 C.C.C. (3d) 193. However, the Supreme Court was able to justify the conventional position in relation to insanity under section 1. This result illustrates the fact that, applying the two-stage approach, the courts in Canada in the end tend to come to the same conclusion as would be reached in other jurisdictions.

This does not mean that the adoption of a two-stage as opposed to a single stage approach does not have practical consequences. In relation

[1993] A.C. 951 Page 972

to the second stage, the section 1 of the Charter stage, formal criteria which need to be satisfied have been established. In Reg. v. Chaulk, 62 C.C.C. (3d) 193, 216-217, Lamer C.J.C., Dickson C.J.C. concurring, described the reasoning to be followed when there is an attempt to rely on section 1 of the Canadian Charter in the following terms:

“1. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

“2. Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must: (a) be ‘rationally connected’ to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right or freedom in question as ‘little as possible,’ and (c) be such that their effects on the limitation of rights and freedoms are proportional to the objective.”

In applying these tests, the Canadian Supreme Court has injected a degree of flexibility. In particular in Reg. v. Chaulk it was made clear that reliance on section 1 would not be prevented because Parliament had failed to search out and adopt the least possible intrusive means of attaining its objective as long as it has chosen from a range of means which impairs section 11(d) as little as is reasonably possible.

Notwithstanding this, it is their Lordships’ opinion that, in applying the Hong Kong Bill, it is not necessary, at least in the vast majority of cases, to follow the somewhat complex process now established in Canada in order to assess whether an exception to the general rule that the burden of proof should rest upon the prosecution throughout a trial is justified. Normally, by examining the substance of the statutory provision which is alleged to have been repealed by the Hong Kong Bill, it will be possible to come to a firm conclusion as to whether the provision has been repealed or not without too much difficulty and without going through the Canadian process of reasoning. The application of a test along the lines suggested by Lawton L.J. in Reg. v. Edwards [1975] Q.B. 27, 39-40, in the manner already indicated will often be all that is required. The court can ask itself whether, under the provision in question, the prosecution is required to prove the important elements of the offence; while the defendant is reasonably given the burden of establishing a proviso or an exemption or the like of the type indicated by Lawton L.J. If this is the situation article 11(1) is not contravened.

In a case where there is real difficulty, where the case is close to the borderline, regard can be had to the approach now developed by the Canadian courts in respect of section 1 of their Charter. However in doing this the tests which have been identified in Canada do not need to be applied rigidly or cumulatively, nor need the results achieved be regarded as conclusive. They should be treated as providing useful general guidance in a case of difficulty. This is particularly true in relation to what was said in Reg. v. Chaulk, 62 C.C.C. (3d) 193, 216-217

[1993] A.C. 951 Page 973

about proportionality since it is the need to balance the interests of the individual and society which are at the heart of the justification of an exception to the general rule.

The application of article 11(1) to sections 30 and 25

So far as the first issue in the present appeals is concerned, that is whether the Hong Kong Bill has repealed the statutory provisions, their Lordships regard the answer as being straightforward once the substance of the offences has been identified. In the case of the first defendant the substantive effect of the statutory provision is to place the onus on the defence to establish that he can give an explanation as to his innocent possession of the property. That is the most significant element of the offence. It reduces the burden on the prosecution to proving possession by the defendant and facts from which a reasonable suspicion can be inferred that the property has been stolen or obtained unlawfully, matters which are likely to be a formality in the majority of cases. It therefore contravenes article 11(1) of the Hong Kong Bill in a manner which the Attorney-General could not justify.

This is by contrast to the situation in relation to the second defendants’ case and section 25. It is not important whether section 25(4) is regarded as creating a defence or an exception if it does not constitute part of the substance of the offence. The substance of the offence is contained in section 25(1) as to which the onus is on the prosecution. Unless the prosecution can prove that the defendant has been involved in a transaction involving the relevant person’s proceeds of drug trafficking (within the wide terms of section 25(2)) as set out in section 25(1) and that at that time he had the necessary knowledge or had reasonable grounds to believe the specified facts the defendant is entitled to be acquitted. However once the defendant knows or has reasonable grounds to believe that the relevant person is a person who carries on or has carried out drug trafficking or has benefited from drug trafficking, then the defendant knows that he is at risk of committing an offence and that he can only safely deal with that person if he is in a position to satisfy section 25(3) or (4). If the defendant chooses not to take the precautionary action under section 25(3) then he knows he can only safely proceed by relying on section 25(4). To be able to achieve this the defendant will have to take any steps necessary to ensure that he does not have the knowledge or suspicion referred to. An example would be, by insisting on seeing documents establishing the untainted source of the funds. If the defendant has done this then he will be aware of the relevant facts and it is reasonable that he should be required to establish them. It would be extremely difficult, if not virtually impossible, for the prosecution to fulfil the burden of proving that the defendant had not taken those steps. In the context of the war against drug trafficking, for a defendant to bear that onus under section 25(4) is manifestly reasonable and clearly does not offend article 11(1). Indeed section 30 and section 25 can be regarded as examples of situations close to the opposite ends of the spectrum of what does and does not contravene article 11(1).

It was argued on behalf of the Attorney-General that, as the first

[1993] A.C. 951 Page 974

defendant’s alleged offence was committed prior to the coming into force of the Bill of Rights, section 3 should not be invoked so as to repeal retrospectively section 30. In support of this argument Mr. Bratza relied on section 23 of the Interpretation and General Clauses Ordinance (Laws of Hong Kong, c. 1) which corresponds closely to section 16(1) of the Interpretation Act 1978. However, quite independently of section 3, section 8 and article 11(1) established a defendant’s right “to be presumed innocent until proved guilty according to law.” That right came into existence on the coming into force of the Hong Kong Bill and so it would apply in any trial taking place thereafter. It is not the date of the offence but the date of trial which is conclusive. If it had been necessary to do so, the same result could have been achieved by saying that in this context a contrary intention appears, so section 23 of the Interpretation and General Clauses Ordinance does not apply: see section 2 of the Ordinance.

The Attorney-General did not contend that it was possible to save section 30 by treating it as being only partly repealed. Having come to the conclusion that section 25(4) does not offend article 11(1), the appeal of the Attorney-General in respect of the proceedings against the second defendants must inevitably be allowed. However, it is desirable that their Lordships indicate that if they had not come to that conclusion, then, contrary to the judgment of Gall J., they would have regarded only the words “to prove” as being repealed by section 3(2) of the Hong Kong Bill. Section 3(2) repeals existing legislation “to the extent of the inconsistency” and if the words “to prove” are removed from section 25(4) the second defendants would be no longer under a legal or persuasive burden of proof to establish the defence contained in section 25(4). Instead they would be under an evidential burden merely requiring them to raise the issue. This burden could not conceivably contravene article 11(1).

The final matter to which reference should be made is that Gall J. was of the view that the Crown had failed to adduce the necessary evidence to establish that the interference with the interests of the individual for the benefit of the state contained in section 25 was justified. As to this he was in the difficulty that the issues before him were presented on the basis that he was required to adopt the two-stage process laid down in Reg .v. Whyte, 51 D.L.R. (4th) 481, in circumstances where the Crown was conceding before him that there had been a prima facie contravention of article 11(1). This concession having been made, on the basis of the Canadian authorities, the burden on the Crown was a heavy one and his conclusion that the evidence which was available to him was not sufficient to enable him to be satisfied has to be understood in this context. However as was apparent from his judgment, Gall J. had ample knowledge to hold the balance appropriately between the individual and the government in relation to section 25 without any evidence being called. The need to prevent the laundering of the proceeds of drug trafficking is common knowledge. He was entitled to have regard to the policy which the legislature had made clear by enacting section 25. He was in a position to assess the extent of the burden which section 25(4) imposed upon the second defendants. If he

[1993] A.C. 951 Page 975

had adopted, as he should have done, a broad unified approach to the application of article 11(1) to section 25, he should have had no difficulty on the material which was before him in coming to the conclusion that the section did not contravene the article. The fact that he found this process as complex as he did illustrates the disadvantage that can flow from seeking strictly to emulate the current approach of the Canadian Supreme Court. While the Hong Kong judiciary should be zealous in upholding an individual’s rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public. In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature’s attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime. It must be remembered that questions of policy remain primarily the responsibility of the legislature: see Reg. v. Downey, 90 D.L.R. (4th) 449, 466, and Reg. v. Chaulk, 62 C.C.C. (3d) 193, 222. It would not assist the individuals who are charged with offences if, because of the approach adopted to “statutory defences” by the courts, the legislature, in order to avoid the risk of legislation being successfully challenged, did not include in the legislation a statutory defence to a charge.

For these reasons, their Lordships have humbly advised Her Majesty that the appeal of the Attorney-General in the case of the first defendant ought to be dismissed and they will humbly advise Her Majesty that the appeal of the Attorney-General in the case of the second defendants ought to be allowed and the order of Gall J. set aside. The Attorney-General must pay the costs of the first defendant before their Lordships’ Board. There will be no order as to costs in the case of the second defendants.

Solicitors: Macfarlanes; Phillips & Co.; Kennedys; Philip Conway Thomas.

S. S

R v Manunta [Jury Direction]

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R v Manunta

Court

Supreme Court of South Australia

Judges:

King CJ, Legoe J, Bollen J

Judgment Date:

28/7/1989

Jurisdiction:

Australia (South Australia)

Citations

(1989) 54 SASR 17

Legal Representatives:

S W Tilmouth QC and A P Strappazzon, for the appellant.; W C Chivell, for the Crown.

Classification:

Criminal law
>
Procedure
>
Summing up

HEADNOTE

Supreme Court of South AustraliaIn Banco

R v Manunta

20 June 1989;

28 July 1989

Criminal — Procedure — Failure of defence counsel to cross-examine prosecution witnesses as to matters deposed to by accused and/or defence witness — ‘Rule in Browne v Dunn’

Three police officers raided a workshop which was leased by the appellant and in which he operated a motor mechanical business. They testified that as they drove the police car into a driveway leading to the workshop they observed the appellant who was then standing just outside the open roller door entrance to look at the police car and then run into the workshop. The first two police officers out of the car stated that they saw the appellant coming back into the workshop through a “personnel door” which led to a rubbish dump area outside of the workshop. The last police officer out of the car stated that he saw the appellant walking back towards the front of the workshop but did not see where he came from. A plastic bag in the rubbish area was found to contain amphetamine and other drugs were found inside the workshop. The lining of the left pocket of the jeans of the appellant was seen to be inside out and hanging out of the jeans. The appellant denied all knowledge of the drugs and gave evidence that a man named Wally (whose information to the police led to the raid) had had access to the workshop earlier in the week when the appellant was not present and may have planted the drugs and informed the police to curry favour and obtain leniency with respect to drug offences in which he was involved. The appellant denied that he had run when he saw the police car and said that he had been in conversation with one Aldous at the roller door entrance when the phone rang and had gone to the workshop to answer it after which he had walked back towards the roller door and only then saw the police officers for the first time.

During the cross-examination of the appellant he was asked whether he had been given the opportunity to read and sign the notes of police officer Davies and he then said that he thought that the notes which Davies had made on the day were made in a note pad or small book rather than in the form produced to him in the witness box. This suggestion had not been put to the police in cross-examination or by the appellant in examination-in-chief.

The effect of the evidence of Aldous who was called by the appellant was that he had indicated to the police officers when they approached him that the appellant had just gone in the direction of the telephone. This was directly contrary to the police evidence that the appellant emerged from the “personnel door” but this contradiction had not been put to the police during cross-examination.

Aldous also stated that at the time of the arrival of the police officers he and the appellant were together in conversation at the roller door and this too had not been put to the police in cross-examination.

The learned trial judge directed the jury that the above matters were three aspects of the evidence of the appellant and the witness Aldous that may have some bearing on the jury’s consideration of the case. His Honour directed the jury as to a rule of practice and the inferences that were open to the jury in the present case in the terms that appear in the judgment of King CJ and it was argued on appeal that the trial judge had erred in giving those directions.

Held: (per King CJ, Legoe and Bollen JJ concurring) The argument put by the Crown that the items of evidence referred to were untruths or embellishments put forward to serve the appellant’s interests was legitimately open for the consideration of the jury.

The cogency of the point in the present case may be questioned since although it is legitimate to draw appropriate conclusions from counsel’s failure to cross-examine on matters to which his client or his witnesses subsequently deposed, it is a process of reasoning which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses which may include counsel misunderstanding his instructions, witnesses not having been fully co-operative in providing statements, forensic pressures having resulted in looseness or inexactitude in the framing of questions or the simple overlooking of the matter. Consequently where such an argument is to be left to the jury then there should generally be directions as to these sorts of factors. However, in the present case such matters were explained to the jury and the appellant had not demonstrated appealable error.

The appeal against the sentence of imprisonment for two years and nine months for possession of amphetamine for sale and three years and six months for possession of cocaine for sale to be served concurrently with a non-parole period of two years and six months would be dismissed. The sentences and non-parole period were moderate and the complaint that the judge had refused to suspend the sentences could not be sustained in view of the fact that present offences were by no means venial examples of possession for sale, the kind of offence in relation to which punishment and deterrence must be the dominant considerations.

Appeal to the court of criminal appeal

S W Tilmouth QC and A P Strappazzon, for the appellant.

W C Chivell, for the Crown.

JUDGMENT

Cur adv vult

28 July 1989

King CJ.

The appellant was found guilty by a jury in the Supreme Court of the crimes of possessing amphetamine for sale and of possessing cocaine for sale. He has appealed to this Court against the convictions.

On 29 May 1987, the police raided a workshop situated at Grange Road, Flinders Park, which was leased by the appellant and in which he operated a motor mechanical business. Three police officers were involved in the raid and each gave evidence. Their evidence was that as they drove the police car into a driveway leading to the workshop, they observed the appellant, who was standing just outside the open roller door entrance to the workshop, to look at the police car and then run into the workshop. The police car pulled up in front of the roller door entrance. The first two police officers to get out of the car gave evidence that they saw the appellant coming back into the workshop through a “personnel door” which leads to a rubbish dump area on the southern side of the workshop. The other police officer, who was the last out of the police car, saw the appellant walking back towards the front of the workshop but did not see where he came from. The police officers saw another man in the vicinity. He was undoubtedly a man by the name of Aldous who was called as a witness for the defence. The police officers gave evidence that when they saw the appellant in the workshop the lining of the left pocket of his jeans was inside-out and hanging out of the jeans. The police found a plastic bag in the rubbish area near the back fence and that bag was found to contain 27.5g of white powder of which 1.754g was pure amphetamine. The police found in a brake fluid container in the workshop seven plastic bags and a plastic bullet all containing white powder to a total of 26g of which 4.982g was pure cocaine with a small amount of amphetamine powder. A plastic bag was found in a radiator hose in the workshop and it contained about 10g of powder of which .699g was pure amphetamine. The appellant denied all knowledge of the drugs.

The appellant gave evidence in his own defence. He repeated the denial which he had made to the police of any knowledge of the drugs. He gave evidence that a man named Wally, whose information to the police led to the raid, had had access to the workshop earlier in the week at a time when the appellant was not present. The theory advanced by the defence was that Wally had planted the drugs and informed the police, probably motivated by the desire to curry favour and obtain leniency with respect to drug offences in which he was involved. The appellant denied that he ran when he saw the police car. He said that he had been in conversation with Aldous at the roller door entrance when the phone rang. He had gone into the workshop to answer the phone and at that time had not seen the police. He said that after he had finished on the phone he walked back towards the roller door and then saw the police officers for the first time. Aldous gave evidence confirming that while he was in conversation with the appellant at the roller door entrance, the telephone rang and the appellant went to answer it. Aldous said that the police arrived while the appellant was on the telephone. In the examination-in-chief the following two questions and answers occurred:

“Q. What did you see him do? A. He went over and picked up the phone and then I was looking at the people coming down the driveway and they got out of the car in a bit of a hurry and I looked back and he was just hanging up on the telephone and they came running inside and the first thing they said to me, ‘where did he go, where did he go’ and I pointed them in the direction of the telephone. …

Q. What happened from there? Tell us not what was said but who did what. A. The police came in and sort of they went to all sections of the workshop and they were asking me exactly where did he go. I said ‘he just went over by the telephone, that’s where he was’.”

The sole point taken on the appeal is that the learned judge erred in directions which he gave to jury as to inferences which might be drawn from the failure of counsel for the defence to cross-examine the police witnesses as to certain matters. I quote in full a passage in the summing up in which his Honour dealt with these matters:

“Ladies and gentlemen, there are three aspects of the evidence of Mr Manunta and his witness, Mr Aldous that may have some bearing on your consideration of the case for the Crown and your assessment of the case for the defence. First, there is the allegation by Mr Manunta that the notes used by Mr Davies during the trial and adopted by Eckert and Van Meeteren, such notes made by Davies on 29 May 1987, were not in fact the notes made by Davies on that day. The defendant said before you that the notes made by Davies were made in a notebook or a smaller written page. Secondly, there is the evidence of Mr Aldous that one of the police officers said to him, ‘Where did he go, where did he go?’ and that Aldous’ reply was ‘He went over there to the phone’. The third matter is somewhat more involved, and I will return to it shortly. The suggestion by Mr Manunta that the police officers have used notes to refresh their memory that were different to the notes made on the day of the arrest is very serious. It is open to the inference that he is saying that the officers gave false evidence.

Mr Aldous’ evidence is also very important. At all times Mr Manunta has maintained his innocence. Among other things he told you, when giving evidence, that he disputed the police evidence that he ran when he saw them, that he disputed the police evidence that he had gone through the door in the southern wall — he told you that he told the police that he had gone to answer the phone and his witness, Mr Aldous, not only supports that statement in his evidence, but he also says that he, Mr Aldous, stated that fact to the police when one of them said to him ‘Where did he go, where did he go?’

There is a rule, ladies and gentlemen, and it is, no more than a rule of practice, that it is necessary to put to an opponent’s witnesses (in this case, the three police officers) in the course of their cross-examination, the nature of the case upon which it is proposed to rely in contradiction of the police evidence. The rule serves the purpose of giving the police officers the opportunity to respond to the proposed contradictory evidence, and the opportunity to deal with any inference to be drawn from it. It also gives the other party, in this case the Crown, the opportunity to lead further evidence in respect of the evidence given by one or other of the witnesses. You may be satisfied that it is clear that neither of these two matters were put to any of the three police officers, and the matter for you to determine, ladies and gentlemen, for it is for you to decide, is the consequence, if any of that flows from the defendant’s failure to cross-examine the three police officers on those two issues, and perhaps the third issue which I am yet to identify. A failure to comply with the rule cannot compel a jury to a conclusion on an issue of fact. It cannot compel you to find a crime proved. It does not relieve the Crown of its obligation to prove the ingredients of the charge. Questions of fact still remain to be decided within the province of the jury irrespective of compliance or non-compliance of any rule of practice; but failure to comply with the rule may have a marked effect upon the view which the jury takes of the evidence. Whether that is the case here, ladies and gentlemen, it is for you to determine but you are entitled to consider what might have been the answers of the three police officers if [ [sic] ] it had been put to them in cross-examination that they were refreshing their memory from a set of notes which was not the set compiled on the day of the arrest, that they had been told by Mr Aldous almost immediately on their arrival that Mr Manunta went ‘over there to the phone’. You are entitled, for example, to ask yourselves, ladies and gentlemen, could these be matters of recent invention concocted by the defendant and his witness in an attempt to cast doubts on the evidence of the police officers without giving to the police officers the opportunity to contradict those propositions?

I turn now to the third issue, which as I said is a little more complex. The case for the defence is that Mr Manunta and Mr Aldous were together at the roller door. The phone rang and Mr Manunta answered the phone. The police car then arrived. Was it ever put to the police officers that Manunta and Aldous were talking either side by side or facing each other, either at the roller door or at the driveway or out in the driveway, when the police car arrived?

To consider this issue I need to briefly refer to the evidence and then the cross-examination of each of the three police officers. First, the evidence of Detective Davies at p 5. He said,

‘As I pulled in or turned into the driveway at 208 Grange Road I saw Mr Manunta standing in the area directly outside the roller door of his workshop.

When the cross-examination on that particular aspect of his evidence at pp 31 and 32, the question was,

‘When you got to the scene the accused was standing pretty well in the roller door area, wasn’t he? A. No, my recollection of it was he was more towards the centre of the driveway than in the roller door area.

Mr Eckert’s evidence in chief is a p 59. He said,

‘As we drove from Grange Road I saw the accused standing just outside the entrance to his premises and this person quickly shot back inside of the premises.

He was cross-examined at pp 74 and 75. The question was,

‘When you got to the scene first the accused was really in the area of the roller door, wasn’t he? If you brought the roller door down, you might have brought it down on him. That’s what I am suggesting. A. From what I was suggesting he was a little way out of the roller door, perhaps a couple of paces, so it is probably around the mark. He was in that area close proximity to the roller door.

Q. There was with him another civilian wasn’t there? A. Yes.

Q. Did he eventually appear to be associated with the white American car that was there? A. Yes.

Q. Did you see that chap drive away later in that car? A. I didn’t personally see him drive away, no.

Q. But you saw he was gone and the car was gone? A. Yes.

Lastly, there is the evidence in chief of Mr Van Meeteren at pp 83 and 84.

‘As we drove into the driveway he was standing out the front of the garage.

When he was asked, how was he physically positioned, Mr Van Meeteren said,

‘I’m not sure. I think I remember him turning around and looking at us as we drove along the driveway and then he ran into the garage from there.

His cross-examination is at pp 99 and 100.

‘Q. When you turned up at the workshop, Mr Manunta didn’t run inside the shop, did he? A. Yes.

Q. Did you see where he went? A. After he ran into the workshop, that’s where I lost sight of him. I saw him a short time later as to where he was in the workshop and where he was walking to.

Q. You later discovered two phones in that workshop, didn’t you? A. I remember one phone.

Q. There is one in the office, wasn’t there? A. Yes.

Q. Also one near the shelves near the personal [ [sic] ] door? A. I’m sorry; I don’t remember that.

Q. You took the particulars of the man who was there with the accused when you arrived? A. Yes, I spoke to him. I asked for his driver’s licence.

Q. Did you discover that he came from Angas Engineering? A. I’m not sure. I can’t remember. I think he told us that he was a customer there and the accused was looking at his car or something similar.

Ladies and gentlemen, they are the passages in the evidence in chief and in cross-examination respectively of the three police officers to which I direct your attention because it is for you to determine, ladies and gentlemen, whether these passages of cross-examination put the nature of the defence case sufficiently to each of the three police officers.

Just the same, it is for you to determine what if any consequences adverse or otherwise might flow against the accused if you decide that it was not put to the police officers correctly.”

As to the first matter mentioned by his Honour, it is not in dispute that counsel for the defence did not put to any of the police officers in cross-examination that the notes made by Detective Davies, to which all three police officers referred, were not in fact the notes made by Davies on the day in question. Neither was that topic dealt with in the examination-in-chief of the appellant. The prosecuting counsel cross-examined the appellant as to whether he had been given the opportunity to read and sign Davies’ notes. For that purpose the actual notes to which Davies referred in evidence were placed in the appellant’s hands in the witness box. He then said that he thought that the notes which Davies made on the day were made in a notepad or small book and not on paper like those produced to him. After some questions and answers he committed himself to the proposition that the notes which Davies made were definitely not those produced to him and that he was positive about that. It seems to me that the failure of counsel to cross-examine the police officers on the topic left open the inference that the challenge to the notes was an afterthought on the part of the appellant and was simply a lie told in cross-examination because he though it would serve his interests. The cogency of such an inference might be open to question. It is possible that the idea that the police were referring to notes other than those made at the time might not have occurred either to the appellant or to his legal advisers. The appellant may have realised it only when the notes were placed in his hands during cross-examination. No such explanation, however, was elicited in re-examination. I think that the point was open for the consideration of the jury; its weight was for them to determine.

As to the second matter, the defence counsel did ask the police officers about the whereabouts of Aldous; he did not put to them, however, that in response to a question as to where the appellant had gone Aldous had pointed in the direction of the telephone or that he had said, “He just went over by the telephone”. It is perhaps a pity that in his comment to the jury the learned judge focussed on the words used rather than on the gesture. Counsel for the defence intimated to the judge in the absence of the jury that he had deliberately refrained from cross-examination as to the words used because of his belief that such questions would be inadmissible as being directed to elicit hearsay. That this was counsel’s view is confirmed by the passage which I have quoted above from the examination-in-chief of Aldous in which counsel admonished the witness not to state anything that was said. But the substance of the point was nevertheless open to the jury, because the real thrust of Aldous’ evidence was that he had indicated to the police the appellant’s position at the telephone. This was directly contrary to the police evidence as to the appellant emerging from the “personnel door”. It was open to the jury to draw the conclusion that that piece of evidence by Aldous was an embellishment put forward to serve the appellant’s interests. Once again I think that there is a serious question as to how much weight should be attached to the omission to put the precise position to the police officers. Nevertheless the point was legitimately open for the consideration of the jury.

The third matter raised by his Honour was in substance whether the failure of counsel for the defence to put to the police officers in cross-examination that the appellant and Aldous were together in conversation at the roller door on their arrival should lead to an inference that the evidence of the appellant and Aldous to that effect was an untrue embellishment designed to assist the appellant. This matter is obviously closely linked to the second matter. It is, I suppose, a matter of impression and interpretation as to whether what counsel put to the police officers sufficiently conveyed the substance of the evidence subsequently given by the appellant and Aldous. The learned judge read the relevant passages to the jury and left it to their judgment. I cannot see much substance in the point but it was a matter for the jurors who heard the evidence and the cross-examination. I do not think that the learned judge can be criticised for leaving it for their consideration.

I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial. I must say that the points raised with the jury based upon the failure to cross-examine do not seem to me to possess much weight. They were explained to the jury, however, quite fairly and their weight was a matter for the jury. I do not think that any error has been demonstrated.

In my opinion the point raised on the appeal cannot succeed and I would dismiss the appeal.

There is also an appeal against sentence. The sentences imposed were imprisonment for two years and nine months for possession of amphetamine for sale and three years and six months for possession of cocaine for sale, the sentences to be served concurrently. A non-parole period of two years and six months was fixed. The sentences and non-parole period are moderate and there was no complaint about them. It was contended, however, that the judge was wrong in refusing to suspend the sentences.

The appellant is a man aged 29 years and has had a good work history. At the time of the offences he was self-employed as a motor mechanic. He came into conflict with the law as a juvenile. His convictions as an adult have been minor except for a conviction for larceny in 1978 in respect of which he was released on a bond. They include a conviction for possession of Indian hemp. I agree with the judge’s comment that the record is not that of a hardened criminal but the appellant nevertheless is not a first offender.

Mr Tilmouth relied upon s 11(1) of the Criminal Law (Sentencing) Act 1988. His reliance was misplaced. This defendant has been previously convicted of offences punishable by imprisonment, namely larceny and escaping from lawful custody, vide s 11(1)(c). Apart from that, the Court in determining pursuant to par (d) whether any sentence other than imprisonment would be inappropriate having regard to the gravity or circumstances of the offence, is required, in my opinion, to give the usual weight to the traditional purposes of sentencing, namely the observation of a just proportion between the seriousness of the offending and the punishment, general deterrence, personal deterrence and rehabilitation.

The maximum sentence provided in the statute indicates Parliament’s view of the gravity of the offence. The present offences are by no means venial examples of possession for sale. Punishment and deterrence must be the dominant considerations in offences of this kind. The learned judge was correct, in my opinion, in refusing to suspend.

Legoe J.

A jury convicted the appellant of (1) possession of amphetamine for sale, and (2) possessing cocaine for sale. The convictions are challenged on the ground that the learned trial judge, in his summing up, should not have directed the jury

“by making (i) any reference at all to the failure of defence counsel to put matters to the Crown witnesses Eckert and Van Meeteren (ii) the references he did make to the failure of defence counsel to put matters to the Crown witnesses Eckert and Van Meeteren.”

There were three matters which the learned trial judge referred to in his summing up. They were, inter alia:In the reasons of the learned Chief Justice, these three matters are more elaborately explained and discussed. I need not refer further to the details of the three separate issues.

(i)that the notes used by the Crown witness, Davies, during the trial, and adopted by Eckert and Van Meeteren and their evidence as to the notes made by Davies on that day (29 May 1987) were not, in fact, the notes made by Davies on that day;
(ii)evidence by the defence witness, Mr Aldous, that one of the police officers said to him, “where did he go, where did he go” and that Aldous replied, “he went over there to the ‘phone’”; and
(iii)the position that the appellant and his witness, Mr Aldous, were at the time the police car arrived, namely, were they talking together either side by side facing each other at the roller door of the premises or out in the driveway?

In the reasons of the learned Chief Justice, these three matters are more elaborately explained and discussed. I need not refer further to the details of the three separate issues.

The fact of the matter is that, in the absence of the jury, the learned trial judge put to both counsel the text of what he proposed to put to the jury as part of his summing up in relation to these three matters. After his Honour had outlined the text that he proposed to put, and did eventually put to the jury as set out in the reasons of the learned Chief Justice, counsel for the accused submitted that, “To put any of that would be to distort the case presented to the jury.” The transcript then contains a detailed discussion between the learned trial judge and counsel as to the particular passages in the evidence of the police officers where certain matters were put and where some of these matters were not put in cross-examination to any or either of the three police officers concerned. At the end of that discussion, counsel for the accused, maintained that not only should that not be put as “a Browne v Dunn direction” but the more that was put in relation to the three matters, the worse it would become. Counsel submitted that it would distort the focus of the trial for the jury. As counsel pointed out, the focus of the trial is to direct their attention to the disputes between the accused’s evidence and that of his witnesses on the one hand, and the police officers’ evidence on the other. Counsel for the accused further submitted that he had paid little attention to these matters in his final address to the jury. Furthermore, counsel took the view that the statement in Mr Aldous’ evidence relating to what had been said when the police officer called out, “Where is he?”, was hearsay material and that, as counsel for the accused, he had deliberately omitted any reference to that oral statement which may have been out of the earshot of the accused at that particular time in the course of his cross-examination of the police officers. However, counsel for the Crown had addressed on each of these matters in his final address to the jury. The learned judge ruled that it was proper for him to give a direction in the terms that he had read out in relation to the references to the passages of the evidence which he had drawn attention to in the course of discussion. At the conclusion of the summing up and after the direction had been given, including the passage which is set out in full in the reasons for judgment of the learned Chief Justice, counsel for the accused objected to that part in the summing up which he described as the Browne v Dunn (1894) 6 R 67 directions. However, counsel for the accused did not ask the learned trial judge to alter or amend the wording of that direction. His objection was to the whole passage or part of the summing up which related to these three matters and applied, in effect, for the whole passage to be withdrawn from the jury with the appropriate corrections by way of a redirection.

As to the first of the three matters, there was some discussion between the judge and counsel which indicated that on its own the question of whether the notes were the same notes as had been transcribed at the time of the conversation was a relatively minor matter and on its own would not have warranted any attention in the summing up. What the accused had said in his evidence was to the effect that he thought the notes were different. The learned trial judge indicated that he had included this matter because it was “one of two certain and three probable matters”.

It is clear from the evidence and from a reading of the transcript combined with the summing up, that this is not a case where it could be suggested nor has it ever been suggested that the learned trial judge misstated the position in directing the jury in relation to the facts concerning the cross-examination or lack of cross-examination. The issue, so far as the opposed portion of the summing up was concerned, was confined to the question as to whether the learned trial judge should say anything on these matters at all. The Crown prosecutor, having addressed on these points as part of his summing up, left the issues before the jury without any real mention or certainly without any detailed submissions from the defence. What was the judge to do in these circumstances? Say nothing? No, that would be a misdirection by omission and leaving the jury with the impression that the submissions of the Crown prosecutor were the only guidance for them to follow. Was the learned trial judge merely to refer to the remarks made by counsel for the Crown in his final address and say nothing about the defence? No, that would be worse, as it would leave an even greater emphasis on the submissions made by the Crown prosecutor. What the learned trial judge did was to give a full and detailed explanation as to the rule of practice and the issues that arose in the case out of the three particular matters which he had isolated by topic. In my judgment, the learned trial judge did not misstate any fact. He accurately put the matters upon which there had been cross-examination of the police officers, and those upon which there had been no cross-examination. In that he emphasised certain aspects and indicated the importance of those matters so far as the jury’s deliberations were concerned, was to do no more than assist the jury in their essential task of assessing the evidence and how to fit those matters into the jury’s fact-finding function.

For these reasons, the test stated in R v Leggatt [1971] VR 705 at 708 is not applicable to the complaints made in this case about the directions. There is no misstatement, “as to the effect of the evidence”. In any event, according to the test approved in that case:

“The appellant has the burden of showing that the misstatement probably affected the verdict, whereas in the case of an error of law the appeal will be allowed unless the Crown shows that the error did not affect the verdict.”

See Simic v The Queen (1980) 144 CLR 319 at 327 and Cleland v The Queen (1982) 151 CLR 1 at 10-12, per Gibbs CJ.

In the present case the so-called rule in Browne v Dunn first articulated by Lord Herschell LC in 1894 and only reported in the sixth volume of a limited series of reports known as “The Reports”, has been the subject of much discussion by academics and judges, particularly in recent times. The points which have emerged from these discussions and comments include the following:

1.It is a rule of practice which is of importance to the fair and orderly conduct of trials, both civil and criminal: see R v Costi (1987) 48 SASR 269 at 270, per King CJ.
2.It applies to the conduct of the case and is particularly relevant to the manner in which issues emerge at the hearing.
3.In civil proceedings, those issues arise in the pleadings and thus notice may be given to the parties of the facts upon which a party will rely. In criminal proceedings the Crown leads evidence by way of allegations to set up the particular facts and the defence cross-examine those witnesses for the purpose of giving such notice in respect of contested facts or different versions of those facts.
4.There are two limbs or aspects to the rule:
- (a)When cross-examining, counsel are required to put to a witness so much of the case for that particular party as concerns that particular witness.
- (b)Where an allegation is to be made against a witness or where a point is to be made which reflects on the conduct of that witness, then the party, through counsel, is required to bring to the witness’s attention the allegation or particular point, fairly and distinctly so that the witness may have an opportunity of admitting or denying or otherwise qualifying the allegation or point in evidence. See R v Costi (supra).
5.In considering the application of the rule, it often becomes crucial for the court to determine whether a witness or a number of witnesses has or have been cross-examined at all in relation to allegations or particular points or, in the alternative, whether some cross-examination has been directed to the allegation or issue and it cannot therefore be said that there has been no challenge at all to the evidence given by the other party: see Thomas v Van Den Yssel (1976) 14 SASR 205 at 207, per Bray CJ.
6.The two matters referred to in 5 (above) frequently overlap when considering the rule. The court must often determine first whether a challenge has been mounted to the truth of the evidence given by a witness or is the challenge made by contradicting some particular fact or qualifying some particular fact from which an inference may be drawn: see Thomas v Van Den Yssel (supra); and Reid v Kerr (1974) 9 SASR 367.
7.The rationale of the rule was explained by Lord Herschell LC when, at 71 of Browne v Dunn, his Lordship said that there was no obligation to raise such a matter in cross-examination in circumstances where it is “perfectly clear that (the witness) has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling” and concluded by saying, “All I am saying is that it will not do to impeach the credibility of a witness upon a matter in which he has not had an opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted”. Lord Halsbury and Lord Morris expressed concurring opinions in their two speeches, per Lord Halsbury (at 76-77) and per Lord Morris (at 78-79).
8.The various so-called rules which emerge from the decision in Browne v Dunn have been variously stated by text book writers, for example, Byrne & Heydon, Cross on Evidence (2nd Aust ed, 1981), par 10.50 and Buzzard, May and Howard, Phipson on Evidence (12th ed, 1976), par 15.93. Attempts to formulate these rules have been discussed in Bulstrode v Trimble [1970] VR 840, particularly per Newton J (at 846, 848) and Unsted v Unsted (1947) 47 SR (NSW) 495 at 500 and the South Australian cases which I have mentioned above, of Reid v Kerr (supra) and Thomas v Van Den Yssel and R v Costi. Newton J, in Bulstrode v Trimble (supra) at 846, suggested that the rule of practice or procedure is first based upon general principles of fairness designed to achieve fairness to a witness and a fair trial between the parties and, secondly, the rule relates to the weight or cogency of the evidence.
9.In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1, Hunt J discussed many of these cases and pointed out in relation to the application of the rule, that it may have particular significance where the case relies upon inferences to be drawn from other evidence in the proceedings: see at 16.

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LIABILITY

“safe system” – English v Wilsons & Clyde Coal Co Ltd [1938] AC 57 -> Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371
traffic accident – “agony of the moment” – Chu Fung Ping v Wong Wai Leung (HCPI 420/2014, unrep., Deputy Judge Cooney SC, 28 July 2017)
lift accident – Kong Lin Fat Johnny v The Incorporated Owners of Chang Pao Ching Building & Anor (DCPI 1580/2010, unrep., Deputy District Court Judge Stanley Siu, 12 September 2014)
Montgomery v Lanarkshire Health Board [2015] 1 AC 1430
medical negligence – anaesthetist – Frank Yu Yu Kai v Chan Chi Keung (2009) 12 HKCFAR 705
medical negligence – loss of chance – Gregg v Scott [2005] UKHL 2; Wright (A Child) v Cambridge Medical Group (A Partnership) [2011] EWCA Civ 669 (09 June 2011)
wrongful life – Lam Wing Hei (a minor suing by her mother and next friend Lam Tsz Kiu) & Anor v Hospital Authority [2018] 2 HKLRD 1441
the tort of scienter – 王鉄英訴方展禹及另一人 [2006] 3 HKLRD 547
vicarious liability – Barclays Bank Plc v Various Claimants [2018] EWCA Civ 1670 (17 July 2018)

QUANTUM

restitutio ad integrum – “[damages are] that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting compensation or reparation” per Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39
unliquidated vs liquidated damages
general vs special damages – Jefford v Gee [1970] 2 QB 130
itemisation
PSLA – (i) pain; (ii) suffering (iii) loss of amenities
the Lee Ting Lam [1980] HKLR 657 categories as a “cross-check” – Chan Yuk v Dragages et Travaux Publics (HK) Ltd [2000] 3 HKLRD 1, para. 16
conventional nature of non-pecuniary damages – e.g. per Lloyd LJ in Alsford v British Telecommunications plc (1986) CA, 30 October 1986 [“Everybody accepts that awards of damages in this field are necessarily conventional, and that they are based on a scale of comparative seriousness which is also conventional. I do not suggest that the scale is immutable. It may change gradually over time, as indeed may the level of damages generally. If judges consistently award damages move up the scale of relative seriousness. But in my judgment not be open to a judge to award damages outside the range because he regards as being too low”] – c.f. Lord Scarman’s speech in Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 at 189 [rejecting the defendant’s submisison the PSLA award should be greatly reduced on the basis that the issue had been settled by previous House of Lords authority – “We are in the area of “conventional awards” for non-pecuniary loss, where comparability matters. Justice requires that such awards continue to be consistent with the general level accepted by the judges. If the law is to be changed… it should be not judicially but legislatively within the context of a comprehensive enactment dealing with all the aspects of damages of personal injury”] – Wells v Wells [1999] 1 AC 345 [per Lord Clyde – “In respect of pain and suffering money can only be a conventional medium of compensation and the assessment of it to cover the past and the future must necessarily be imprecise and open to differences of view. But the accumulation of precedent and experience and the careful analysis of the nature and effects of particular injuries can go a long way towards establishing levels of award which may be generally recognised and accepted as reasonable in particular circumstances. If necessary those levels may be open to adjustment or even correction from time to time by those courts which are best qualified to review what must in essence be a factual assessment of the kind sometimes referred to as a jury question”]
interest fixed at 2% a year by the House of Lords in Birkett v Hayes [1982] 1 WLR 816; [1982] 2 All ER 70. This was confirmed as appropriate by the Court of Appeal in Lawrence v Chief Constable of Staffordshire [2000], The Times, 25 July.
PSLA & Inflation
Disaster Category (see previous research note)
- Ng Kwok Wing HCPI 1013/1995 (23 May 1996)
- Chan Yuk HCPI 1066/1998 (2 February 2000)
- Lee Suk Yin HCPI 439/2000 (28 September 2001)
- Tam Ting Yee HCPI 1120/2002 (3 September 2004)
- Cham Cheung Sing HCPI 206/2003 (20 June 2007)
- Leung Kwok Biu HCPI 810/2008 (21 November 2012)
- Irene Kwok HCPI 261/2011 (25 November 2013)
the forensic nature of pre-trial loss vs the crystal-ball-gazing nature of post-trial loss – Lai Jianxing v Sakoma (HK) Ltd & Ors [2011] 5 HKLRD 329, paras. 40-41
“loss” – nominal income or income net of tax? restitutio ad integrum – British Transport Commission v Gourley [1956] AC 185
loss of earnings – illegal earnings not allowed – Chung Sui Cheong the administrator of the estate of Chung Wai Man Joseph Deceased v Tsang Wai Hung (HCPI 1058/2015, unrep., Wilson Chan J, 3 November 2017)
pre-trial vs post-trial loss – no deduction is made for contingencies – Pritchard v JH Cobden Ltd & Anor [1988] Fam 22 [“Loss of earnings between the date of the accident, when the cause of action accrued, and the date of trial have always been claimed as special damages. Since the decision of the House of Lords in British Transport Commission v Gourley [1956] AC 185, it is the loss of wages net of income ta that has to be ascertained. This has always been done as a straight calculation and no one has suggested that, when the total figure has been ascertained as best the court can in an individual case, any deduction should be made for the mere chance that during that period the plaintiff might not have earned his wages because, for example, he might have fallen ill or lost his job and been unable to get one as remunerative as the one that he held“]
reason for all the fuss with post-trial loss – the lump sum approach – Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 at 182 [per Lord Scarman: “The course of the litigation illustrates, with devastating clarity, the insuperable problems implicit in a system of compensation for personal injuries which (unless the parties agree otherwise) can yield only a lump sum assessed by the court at the time of judgement… The award, which covers past, present, and future injury and loss, must, under our law, be of a lump sum assessed at the conclusion of the legal process. The award is final; it is not susceptible to review as the future unfolds, substituting fact for estimate. Knowledge of the future being denied to mankind, so much of the award as is to be attributed to future loss and suffering – in many cases the major part of the award – will almost surely be wrong. There is really only one certainty: the future will prove the award to be either too high or too low“]; also Chan Pak Ting v Chan Chi Kuen & Anor [2013] 1 HKLRD 634 at para. 5 – LRC’s Consultation Paper on Periodical Payments for Future Pecuniary Loss
annuity approach – multiplicand/multiplier model – per Lord Oliver of Aylmerton in Hodgson v Trapp [1989] AC 807 at 826: “Essentially what the court has to do is to calculate as best it can the sum of money which will on the one hand be adequate, by its capital and income, to provide annually for the injured person a sum equal to his estimated annual loss over the whole of the period during which that loss is likely to continue, but which, on the other hand, will not, at the end of that period, leave him in a better financial position than he would have bee apart from the accident. Hence the conventional approach is to assess the amount notionally required to be laid out in the purchase of an annuity which will provide the annual amount needed for the whole period of loss”
multiplicand – future inflationary changes are not to be taken into account – Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174. So, the multiplicand will
adopt the monthly earnings as at notional date of trial; But if there is evidence to indicate that, but for the Accident, there is a real prospect for the plaintiff to be promoted at work, then the multiplicand can be calculated taking into account any salary raise as a result of the promotion: Lam Pui Yi Anita v Secretary for Justice [2011] 1 HKLRD 56.
multiplicand – if a plaintiff is too young to be employed, the court must make the best possible estimate on what career the child would have pursued ad use that estimate to calculate future earnings. This is the case even for a very young child, as demonstrated in the Privy Council case of Jamil bin Harun v Yang Kamsiah [1984] AC 529
multiplier – function of the multiplier – per Hobhouse J in Wilett v North Bedfordshire Health Authority [1993] PIQR Q166 at 167, “The function of the multiplier of an annual sum is first to convert one or more annual sums, that is, items of expenditure, into a single capital sum. It is, secondly, to allow for the advancement of the payment or payments that are being made. It is, thirdly, to allow for contingencies and other adjusting factors that have to be taken into account.”
multiplier – possibility of having different discount rates for earning-based loss and non-earning-based loss – Chan Pak Ting v Chan Chi Kuen & Anor (No. 2) [2013] 2 HKLRD 1 [“39. In my judgment, the difference of 0.43% is not significant enough for me to set two Discount Rates. I find, having regard to current economic conditions, that the current small difference is likely to persist, at least in the near term. However, this issue must be revisited if changes in the economy produce a difference between wage inflation and price inflation that approaches or exceeds 1%.“]
multiplier – Ogden Tables – now a starting point – Wells v Wells [1999] 1 AC 345 [per Lord Lloyd, at 379F-G, “I do not suggest that the judge should be a slave to the tables. There may well be special factors in particular cases. But the tables should now be regarded as a starting-point, rather than a check. A judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, or by reference to ‘a spread of multipliers in comparable cases’ especially when the multiplier were fixed before the actuarial tables were widely used”] – CAVEAT: possibility to deviate from the tables to cater for individual circumstances recognised in Biesheuvel v Birrell [1999] PIQR Q40 [where Eady J started with a multiplier arrived at by applying a 3% rate of return but provided for a substantial uplift on account of the incidence of tax in the Netherlands, where the plaintiff would stay, at Q48] – but in Van Oudenhoven v Griffin Inns Ltd [2000] 1 WLR 1413, Stuart-Smith LJ warned against the pitfall of finding an exceptional case by the mere fact that the plaintiff would be subject to Dutch tax
multiplier – Ogden Tables – admissible under s. 10(1) of the Civil Evidence Act 1995 in the UK – no equivalent in HK – widely adduced and adopted as a matter of judicial practice instead
multiplier – development in UK – Cookson v Knowles [1979] AC 556 [a 4.5% return from investment in equities] -> Wells v Wells [1999] 1 AC 345 [the injured person should not be forced to take unnecessary risks such as that attendant upon investment in equities in order to achiever a higher rate of return; the following should be taken into account: (a) injured persons have little control over, for instance, when the expenses for care are to be incurred, which means a fair degree of liquidity is required; (b) investment vehicles with long and inflexible maturity period will not be suitable; (c) injured persons, who normally have no other means of subsistence, are not well-placed to absorb the risk of investment loss, particularly, where they may be forced to absorb such loss by depleting the capital; rather, the following assumptions are made: (a) a hypothetical claimant would invest only in ILGS and would hold them until maturity; (b) the return was assessed on the 3-year average of all ILGS; (c) ILGS with maturity not exceeding 5 years were excluded; (d) inflation was estimated at 5% and Standard Tax Rate of 25% was taken into account] -> the Damages (Personal Injury) Order 2001 by Lord Irvine (Lord Chancellor) on 25 June 2001 pursuant to s. 1(1) of the Damages Act 1996 setting the discount rate at 2.5% -> Simon v Helmot (Guernsey) [2012] UKPC 5 [upholding the Court of Appeal’s decisions that (a) it is no longer realistic to follow the 2.5% discount rate under the 2001 order; (b) the starting position is that the gross return is only about 1%; due to the higher rate of inflation of wages, a discount rate of -1.5% should be applied for earning-based losses and 0.5% for non-earning-based losses]
multiplier – development in HK – Chan Pui Ki v Leung On & Anor [1996] 2 HKLRD 401 -> Chan Pak Ting v Chan Chi Kuen & Anor [2013] 1 HKLRD 634 & (No. 2) [2013] 2 HKLRD 1 [Commentaries on Hong Kong Lawyer – Part 1; Part 2; Commentaries by Deacons] – Simon v Helmot (Guernsey) [2012] UKPC 5 considered – affirmed in Chan Wai Ming v Leung Shing Wah [2014] 4 HKLRD 669
multiplier – how the plaintiff actually invests the damages is irrelevant [per Lord Clyde in Wells v Wells [1999] 1 AC 345 at 394H-395B “Whether he is proposing to invest it or spend it, or, more particularly, exactly how he is going to invest it or spend it, does not affect the calculation of the award. No distinction is recognised here between misers and spendthrifts. While it may be evident that there are certain ways in which he could prudently invest the award in other ways in which he could be impairing his own future comfort by his employment of the award, the quantification of the sum to which he is entitled in compensation takes no account of the course which he may in the event choose to adopt.” – cited by Bharwaney J in Chan Pak Ting (No. 2) [2013] 2 HKLRD 1, para. 75] – the fact that insurance premium will go up due to downward adjustment of the discount rate (resulting in higher multiplier) should not affect the plaintiff’s entitlement to full compensation [per Lord Hutton in Wells v Wells [1999] 1 AC 345 at 405D-F “The consequence of the present judgments of this House will be a very substantial rise in the level of awards to plaintiffs who by reason of the negligence of others sustain very grave injuries requiring nursing care in future years and causing a loss of future earning capacity, and there will be resultant increases in insurance premiums. But under the present principles of law governing the assessment of damages which provide that injured persons should receive full compensation plaintiffs are entitled to such increased awards. If the law is to be changed it can only be done by Parliament which, unlike the judges, is in a position to balance the many social, financial and economic factors which would have to be considered if such a change were contemplated” – cited by Bharwaney J in Chan Pak Ting (No. 2) [2013] 2 HKLRD 1, para. 140]
post-trial loss – multiplicand/multiplier model – crystal ball gazing using evidence about the past – not an exact science – the speech of Lord Oliver of Aylmerton in Hodgson v Trapp [1989] AC 807 at 833C [“There are, I think, four considerations which have to be borne in mind at the outset. First and foremost is the fact that the exercise upon which the court has to embark is one which is inherently unscientific and in which expert evidence can be of only the most limited assistance. Average life expectations can be actuarially ascertained, but to assess the probabilities of future political, economic and fiscal policies requires not the services of an actuary or an accountant but those of a prophet“] – see also Chan Pui Ki v Leung On & Anor [1996] 2 HKLRD 401; Simon v Helmot (Guernsey) [2012] UKPC 5, para. 113
multiplier – split – Ali Mehboob v Yuk Kwan Construction Engineering Ltd & Anor (unrep., HCPI 1370/2014, Recorder Winnie Tam SC, 3 May 2018)
loss of earning capacity – Smith v Manchester Corp [1974] EWCA Civ 6 – Moaliker v A Reyrolle & Co Limited [1977] 1 W.L.R. 132; Chan Wai Tong v Li Ping Sum [1985] HKLRD 176 (PC) [local adaptation; Lord Fraser described the claim for damages under this head as follows: “A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The court has to evaluate the present value of the future risk.”] – in Wong Tang Keung v Lee Wai Engineering Co Ltd [2013] 4 HKLRD 150, the Court of Appeal clarified that this award can be granted for both the pre-trial and the post-trial periods in which the plaintiff suffers such a disadvantage; the relevant factors: Thapa Surendra v E W Cox Hong Kong Ltd (HCPI 451/2009, unrep., Deputy Judge Seagroatt; 11 July 2011) [age, and the time away from the natural retirement; nature of the plaintiff’s injury; (e.g. construction worker suffering from not being able to lift heavy objects is obviously different from civil servant who suffers from back pain); overall condition; the limited type of work which he could carry out; the risk of being unemployed for lengthy periods frequently; and the risk of having to give up work before the normal time simply because he would become unemployable]
loss of earning capacity – too speculative if the injured person is very young – Man Kwok Ngai v Fong Hok Wong & Anor (HCPI 1033/2001, unrep., Seagroatt J, 26 March 2003) [In that case, the claimant was a 7 years old boy. He was injured in an incident in which a large quantity of hot soup was spilt over him. Seagroatt J ruled that the claim for loss of earning capacity was too speculative and refused to award any sum under this head]
future expenses – see an old example in Ta Xuong v The Incorporated Owners of Sun Hing Building [1997] 4 HKC 171; a more recent example in Wok Hoi Wan Irene aka Guo Haiyun suing by her husband and next friend Cheng Yuk Ching v HA (HCPI 261/2011, unrep., Master de Souza, 25 November 2013)
special damages – low standard of proof – as long as more probable than not that such expenses have been occurred & such expenses were reasonable – in the absence of detailed receipts, would make reasonable estimation [For example, Roberts CJ in Yu Ki v Chin Kit-lam & Anor [1981] HKLR 419 at 421, in considering a claim for nourishing food, said: “However, it seems to me to be proper, even in the absence of the necessary evidence required as to the advisability or suitability of the food, to allow a nominal sum, where relatives have spent this on food which the injured person or the relative reasonably believes to be helpful to the plaintiff’s recovery.” See also Chan Si Mui v Kong Hung Keung & Ors (HCA 4977/1991, unrep., Jerome Chan J, 13 September 1994) and Tsang Hing Yuen v Nishimatsu Kumagai Joint Venture (a firm) (HCPI 906/1998, unrep., Suffiad J, 17 March 2000)] – importance of pleading a breakdown – Slater (HCPI 646/2012, unrep., Bharwaney J, 7 July 2017)
special damages – medical expenses – cosmetics – Swift v Carpenter [2018] EWHC 2060 (QB) (06 July 2018)
cost of care – gratuitously care by a relative – to be broadly assessed, not by a “stop-watch” approach – Lai Pui Ling suing by her brother and next friend Lai Hin Ho v Ho Chi Keung & Anor [2016] 3 HKLRD 329
loss of congenial employment – the observation of Deputy Judge Leighton-Williams QC in Lane v Lake [2007] EWCA Crim 970; [2007] All ER (D) 258 at §21: “21. … Mr Gore says such a head of damage is in practice reserved for policemen, firemen and the like. Such awards are frequently made to policemen and firemen but that is because it has become almost a tradition to claim such award in such cases. In my judgment such an award ought to be confined to those who truly have suffered a loss under this head and not be awarded merely by reference to the type of employment nor automatically as an extra.” – cited by Bharwaney J in Slater(HCPI 646/2012, unrep., 7 July 2017)
fatal – development in UK – Claims for Wrongful Death (Report) [1999] EWLC 263; Gregg v Scott [2005] UKHL 2; Knauer v Ministry of Justice [2016] UKSC 9
fatal – development in HK – overview – Fung Suen Sim v Liu Chun Pong & Anor (HCPI 896/2007, unrep., Bharwaney J, 23 December 2011) – CAVEAT: note that the judgment was pre-Chan Pak Ting; a more recent example in Kan Wai Ling & Fan Mei Na the co-administratrices of the estate of Kan Siu Hong, deceased v Kan Chi Fai (HCPI 232/2011, unrep., Bharwaney J, 9 May 2018)
fatal – causes of action – FAO; LARCO; common law
fatal – common law – claim for pre-trial loss of earnings is possible if period of time between accident and trial is considerable
fatal – FAO – loss of dependency – multiplier – previous approach was to determine the multiplier from the date of death, then deduct from the multiplier the number of years between the date of death and the date of trial – such approached criticised in Knauer v Ministry of Justice [2016] UKSC 9, where Lord Neuberger and Lady Hale held that the multiplier should be calculated from the date of trial [because the multipliers in the Ogden Tables are calculated with the discount for early and accelerated receipt taken into account – when the previous authorities Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808 were decided, Ogden tables were not used for calculating multipliers; and the judges in those cases were talking about contingencies instead of early receipt]
fatal – FAO – bereavement – interest at judgment rate – Bushra Bibi v Method Building & Engineering Works Ltd [2015] 2 HKLRD 402
fatal – claim for diminution in a loss of dependency claim, arising from negligence possible (based on common law) – Haxton v Philips Electronic UK Limited [2014] 1 WLR 2721
fatal – loss of personal attention and material affection – The basis for this kind of claim seems to be found in Hay v Hughes [1975] QB 790 where Lord Edmund-Davies, having stated the rule that only pecuniary loss was to be awarded for loss of services, went on to say that it might have to be considered whether:- “…it may be argued that the benefit of a mother’s personal attention to a child’s upbringing, morals, education and psychology, which the services of a housekeeper, nurse or governess could never provide, has in the long run a financial value for the child, difficult as it is to assess.”; In Chan Ki v Travel Trade Communication Network and Marketing Services Ltd [1998] 2 HKC 57, Master Cannon made an award for loss of personal attention and maternal affection in favour of 3 adult children in their twenties and one child aged 17 who had lost their mother. They had all lived in family with the mother before her death. The learned Master considered various authorities and awarded $10,000.00 each to the older children and $20,000.00 to the youngest
fatal – loss of service claim only allowed under FAO not LARCO – see e.g. Lee Wai Man v Wah Leung Finance Ltd [2004] 1 HKLRD 1023 at 1044H-J
fatal – “loss years” claim no longer applicable by virtue of LARCO – still applicable in non-fatal cases though
fatal – LARCO – (i) PSLA; (ii) loss of accumulation of wealth; (iii) funeral expenses
fatal – loss of accumulation of wealth – traditionally a lump sum, now the multiplicand/multiplier approach adopted (see e.g. Fung Suen Sim v Liu Chun Pong & Anor, HCPI 896/2007, unrep., Bharwaney J, 23 December 2011) – see previous note.
fatal – loss of accumulation of wealth – Lam Pak Chiu v Tsang Mei Ying (2001) 4 HKCFAR 34 [per Bokhary PJ – pre-death savings pattern not a prerequisite]
fatal – loss of dependency & loss of accumulation of wealth – conventional percentages for maintenance and savings – Harris v Empress Motors [1984] 1 WLR 212 at 216-217 [“In the course of time, the courts have worked out a simple solution to the … problem of calculating the net dependency under the Fatal Accident Acts in cases where the dependants are wife and children. In times past, the calculation called for a tedious enquiry into how much housekeeping money was paid to the wife, who paid how much for the children’s shoes etc. This has all been struck away and the modern practice is to deduct the percentage from the net income figure to represent what the deceased would have spent exclusively on himself. The percentages have become conventional in the sense that they are used unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided on its own facts. Where the family unit was husband and wife, the conventional figure is 33% and the rationale of this is that broadly speaking, the net income was spent as to one-third for the benefit of each and one-third for the joint benefit … Where there are children, the deduction falls to 25%.”]
fatal – apportionment

EVIDENCE

adducing expert report – Fung Chun Man v HA & Anor (HCPI 1113/2006, Bharwaney J, 24 June 2011)
- whether expert evidence is necessary in a traffic case – generally traffic reconstruction expert evidence is not admissible – Chan Chun Kit v Huen Wai Keung (unrep., HCPI 123/2016, Bharwaney J, 10 May 2017)
the court has the jurisdiction to vary a previous consent order re expert evidence – Wong Man Kin v SfJ (for and on behalf of the Director of Highways) & Anor [2017] 4 HKLRD 412
assessment of credibility of witness – Lee Fu Wing & Anor v Yan Paul Po Ting & Anor [2009] 5 HKLRD 513, para. 53
how to analyse medical reports? Yuen Macie v Yeung Ying Kit (HCPI 528/2015, unrep., Master Leong, 24 November 2016), paras. 67-74; Chu Kwong Fu & Anor v Wonder Gold Investment Ltd (HCPI 295/2014, unrep., Master Leong, 21 May 2015) [GIGO principle; “what was important was the condition of the plaintiff accepted by the court and not how his condition was termed medically”]; Gurung Kamala v Hong Wei Ltd (DCPI 1660/2010, unrep., Deputy District Judge Leong, 26 March 2012) [“78. However, when reading medical documents like records and reports, the court must be aware that it is not the usual duty of the attending doctors (and therapists) to judge whether a patient’s subjective complaints (e.g. pain and tenderness) are truthful or not. A doctor is bound by “doctor-patient trust” and it is not a doctor’s role to “test” the evidence or to “cross-examine” the patient, so as to say, to ascertain their truthfulness.”]
pre-trial loss – sick leave – Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 c.f. Tse Hing Wan v Choy Yuen Keung & Ors (HCPI 889/1998, unrep., Chung J, 24 January 2000) where the Court considered that the treating government doctor should be in a better position to decide the appropriate period of sick leave
post-trial loss – presumption that the injured plaintiff has an average life expectancy and it is for the defendant to prove the contrary – Rowley v London and North Western Railway (1873) LR 8 Ex 221 – reference be made to Hong Kong Life Tables – expert medical evidence normally required to rebut the presumption – Rawlinson v Cooper [2002] EWCA Civ 392
pre-existing conditions – Chan Kam Hoi v Dragages et Traaux Publics [1998] 2 HKLRD 958 [affirming the principles laid down in the first instance judgment HCPI 815/1995, unrep., Deputy Judge Woolley, 7 March 1997)
hearsay evidence Zheng Biao v Kwok Wai Lung & Ors (CACV 241/2004, unrep., 19 May 2005)

PROCEDURE

Leave to serve further witness statements before trial – Gurung An Parsad v Great Wealthy Engineering Co Ltd & Anor [2012] 3 HKLRD 705
Sanctioned Payment – Shih Pik Nog v G2000 (Apparel) Ltd [2011] 4 HKLRD 121; Golden Eagle International (Group) Ltd v GR Investment Holdings Ltd [2010] 3 HKLRD 273
Costs & ECA Fund Board – Kwan Kam Pui v Fung Man & Ors [2014] 6 HKC 361

UNCLASSIFIED & MISCELLANEOUS

LAI KWONG KEE v. HONGKONG UNITED DOCKYARDS LTD [1987] HKCA 24; CACV 129/1987 (16 December 1987)
Churchill Insurance v Charlton [2001] EWCA Civ 112 (2 February 2001)
defect in an Industrial Summons – Hong Kong Lawyer
regulation 38A of the Construction Sites (Safety) Regulations, Cap. 59 – Rainfield Design & Associates Ltd v Siu Chi Moon (2000) 3 HKCFAR 134

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[Unlawful Dismissal] Jupiter General Insurance Co Ltd v Shroff

Cases referred to

Appeal

[Unlawful Dismissal] Sinclair v Neighbour

[Unlawful Dismissal] Laws v London Chronicle

[Unlawful Dismissal] Denco Ltd v Joinson

[Police Power] Collins v Wilcock [1984] 3 All ER 374

Cases referred to in judgment

Case stated

[Police Power] Donnelly v Jackman [1970] 1 All ER 987

Cases referred to in judgment

Case stated

[Police Power] Kenlin v Gardiner [1967] 2 QB 510

[Fundamentals] Lee Kwong-Kut

R v Manunta [Jury Direction]

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