Chan Hoi v The Commissioner Of Police And Another

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO.52 OF 1967

(On appeal from O.J. Action No.643 of 1966)

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JUDGMENT

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1. The appellant was arrested by a police officer who took from him certain electrical goods claimed to be of the value of $11,202.26. The appellant sued the respondents (who are the Commissioner of Police and the Attorney General, of the Colony respectively) in detinue and conversion. He was unsuccessful in his action and now appeals against the decision of the learned trial judge.

2. No evidence was adduced at the trial by either party, but certain admissions were made by counsel. It is necessary to examine, in some detail the state of the pleadings and the extent to which proof was dispensed with by reason of such admissions. The statement of claim averred that the Commissioner of Police, on the 20th Oct. 1965, through his servants or agents, seized the goods and that they were then in the physical possession of the appellant; that the Commissioner detained the goods despite demand made; and, further, or in the alternative, that he converted them to the use of a third party. The respondents admitted the seizure by the Commissioner through his servants or agents. Paragraph 3 of the defence was as follows -

"3. If, as is denied, the said goods were in the physical possession of the Plaintiff as pleaded in paragraph 3 of the Statement of Claim, then such physical possession was lawfully terminated and taken out of the Plaintiff by force of law by the First Defendant through his servants and/or agents upon such seizure being made in pursuance of section 45(6) Police Force Ordinance (Cap.232)."

However, the ease was conducted throughout on the basis that the goods were taken out of the physical possession of the appellant.

Paragraphs 4 and 5 of the Defence were as follows -

3. Section 45(6) of the Police Force Ordinance (Cap.232) has since been re-enacted. At the relevant time it was as follows -

" (6) Where any person is apprehended by a police officer it shall be lawful for such officer to search for and take possession of any newspaper book or other document or any portion or extract therefrom and any other article or chattel which may be found on his person or in or about the place at which he has been apprehended and which the said officer may reasonably suspect of throwing light on the character or activities of such person or his associate: Provided that nothing in this subsection shall be construed in diminution of the powers of search conferred by any particular warrant."

4. Section 48 of the Magistrates Ordinance (Cap.227) - also now re-enacted - took the following form at the relevant time -

" 48. (1) Where any property has come into the possession of the police in connexion with any criminal offence whether committed in the Colony or not, a magistrate may -

5. At the trial, counsel for the appellant said that he was prepared to concede that the appellant had been arrested by a police officer and that the goods had been taken out of his physical possession then or shortly thereafter by the police. With regard to the alleged criminal conviction the learned trial judge held that this was not proved in the proceedings before him; no point is taken by the respondents on the appeal before us that the judge was in error in this respect, and we must therefore assume that there was no offence proved against the appellant in connection with his possession of the goods. It was conceded on behalf of the respondents that he made no admission of unlawful possession or of any offence in respect of the goods.

6. The judgment in the court below contains the following passage -

"The Crown maintains, and counsel for the plaintiff concedes, that the taking into possession by the police of the equipment now in dispute was effected under what was at that time sec.45(6) of the Police Force Ordinance (Cap.232), which sub-section is now repeated verbatim as sec.50(6) of the same Ordinance."

This passage has led to some confusion on the appeal. Counsel for the appellant, who represented him in the court below also, says that he did not intend to concede that the seizure was made in exercise of the statutory powers conferred by the sub-section, but to concede no more than that the seizure was made by a police officer at or about the time of his arrest. Crown Counsel, who also appeared in the court below, says that his understanding was the same as that of the learned judge. With the consent of both counsel we have referred to the following extracts from the judge's notes of what counsel for the appellant said -

"If it will help the defence, I will concede plaintiff apprehended by a police officer and the goods taken out of his possession then or shortly thereafter ........"

Later he said -

It is unfortunate that confusion should arise on a point which might have proved crucial to the determination of the case. Counsel for the appellant relies on an implied joinder of issue on paragraph 3 of the defence (see R.S.C. Order 18 r.14), and on the limited nature of his first 'concession' which did not extend to admitting that the goods were seized in the circumstances in which, under the terms of the sub-section, goods may be seized; that is to say he did not admit that the goods were seized 'in or about the place at which (the appellant) has been apprehended', nor that the goods were goods which 'the said officer may reasonably suspect of...