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Martnok Thanradee v Commissioner Of Police And Another

Judgment Cited authorities 19 Cited in Precedent Map Related
Vincent
Judgment Date24 January 2014
Subject MatterCivil Action
Judgement NumberHCA789/2011
CourtHigh Court (Hong Kong)
HCA789/2011 MARTNOK THANRADEE v. COMMISSIONER OF POLICE AND ANOTHER

HCA 789/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 789 OF 2011

________________________

BETWEEN

MARTNOK THANRADEE Plaintiff
and
COMMISSIONER OF POLICE 1st Defendant
SECRETARY FOR JUSTICE 2nd Defendant

________________________

Coram: Deputy High Court Judge Marlene Ng in Chambers
Date of Hearing: 9 December 2013
Date of Handing Down Decision: 24 January 2014

________________________

DECISION

________________________

I. INTRODUCTION

1. The plaintiff, who was/is a Thai national and a Hong Kong permanent resident, claimed to be the proprietor of a karaoke pub business known as Grow Karaoke (which later changed its name to Royal Pub) at G/F, 69 Tak Ku Ling Road, Kowloon City, Hong Kong (“Premises”). She was the liquor licensee of Grow Karaoke and Royal Pub from 18 August 2006 to 17 June 2009.

2. The plaintiff claimed that she operated Grow Karaoke jointly with her husband. The 1st and 2nd defendants did not admit the precise role of the plaintiff’s husband in the business being carried on at the Premises, but agreed he had on several occasions represented himself to be the person-in- charge of Grow Karaoke and/or Royal Pub when the plaintiff was absent from the Premises.

3. There was no dispute that:

(a) on 19 December 2006 information was laid by the police before a magistrate that (i) the plaintiff had contravened sections 4(1) and (3) of the Noise Control Ordinance Cap 400 in inter alia making music which was a source of annoyance on 9 November 2006, and (ii) the plaintiff had failed to personally supervise the Premises on 15 November 2006 in contravention of item no 4 of her liquor licence conditions contrary to sections 46(1) and (3) of the Dutiable Commodities Ordinance Cap 109, which secured the issuance by a magistrate of two summonses directing the plaintiff to appear at a magistrates’ court;

(b) on 18 January and 26 April 2007, the plaintiff appeared before a magistrates’ court, and after summary trial of the said information the summonses were dismissed whereupon the prosecution was determined.

4. The plaintiff summarised her claim (which the 1st and 2nd defendants denied) in her affirmation filed on 27 November 2013 (“Plf Aff”) as follows:

(a) In 1995, the plaintiff married a Hong Kong resident who was then a senior fire officer of the Hong Kong government. In 2006, the plaintiff’s husband reached at the age of 55 years and retired as a senior fire officer. By then the plaintiff had lived in Hong Kong for over ten years, established a network of friends, and became familiar with a lot of people of the Thai ethnic group.

(b) As the plaintiff and her husband were still relatively young and energetic, they discussed and decided to take over a karaoke business in the Kowloon City area. In/about March 2006, they took over a karaoke business known as “Aqua Snack Bar” from the liquor licensee Mr Joe Chan. In April 2006, she applied to the Liquor Licensing Board to change the liquor licensee and name of the business. In/about July 2006, such application was approved.

(c) Grow Karaoke was a very small business with a self-service bar and no waiter service, which meant the customers had to go to the wet bar to take their drinks and pay for them on the spot.

(d) After the plaintiff became the liquor licensee of the karaoke/bar, the police wanted her and her husband to appoint a “watcher” to their liking for accepting secret money. A police officer once told her if she were not cooperative they could play her to death, and police officers also told her and her husband that they had better close down the business otherwise the police would keep prosecuting her until she would go bankrupt. The plaintiff’s husband refused to yield, so the police took action to cause harm to her and her business.

(e) On the night of 27 September 2006, two women police constables went inside the karaoke disguised as customers for an operation against anti-erotic activities, but did not find any such activities. However they framed a false case against a Thai customer by saying he worked as a waiter serving customers and cleaning up tables after the customers asked for the bill. But there was in fact no waiter service and the customers did not ask for their bills. Due to such false allegations, the plaintiff was arrested that night for employing an unemployable person, detained in a police station for several hours, and was subsequently released on bail with a condition for regular reporting to the police station. The Thai customer was subsequently charged, tried, convicted and sentenced to 12 weeks’ imprisonment. But his conviction was quashed on appeal. After the Thai customer’s case was completed, the plaintiff did not have to report to the police station anymore.

(f) In the meantime, on 19 December 2006, the police laid information for the issuance of the two summonses referred to in paragraph 3 above.

(g) After dismissal of the summons for failure to personally supervise the karaoke/bar for no case to answer, the police was called upon by the magistrate to explain why the police commenced prosecution without proper investigation, and the magistrate reiterated that the police ought to conduct thorough investigation before commencing any prosecution.

(h) Despite such observations by the magistrate, the police continued to prosecute the plaintiff on the other summons for making music that was a source of annoyance. Such summons was also dismissed with no case to answer. Thereafter, the police informed the magistrate via the prosecutor that the plaintiff’s husband took a photograph of the prosecution witness inside a lift in the court building, which was untrue. The conduct of the police was nothing more than revenge against the plaintiff for successfully resisting the summons, but the plaintiff’s husband was arrested and detained for a few hours by the police before being released on bail. Subsequently, he was unconditionally discharged.

(i) The police afterwards caused nuisance to the customers of the karaoke/bar and damage to the plaintiff’s business which rapidly deteriorated. In/about August 2008, the plaintiff and her husband were going to close down the business, but they wanted to test whether they would be fine if they appointed a “watcher” to the police’s liking. So the plaintiff asked around and eventually approached “Ah B” and paid him $3,000 per month as “watcher” Since then, the police did not cause any more nuisance to the plaintiff’s business, which made the plaintiff and her husband realise it was the payment to “Ah B” that made the police treat them differently. They lost confidence in the police and did not want to continue the karaoke/bar business, but no one was interested when they put up the business for sale. The plaintiff and her husband became very depressed. In April 2009, they gave up and closed down the business.

(j) The depression suffered by the plaintiff’s husband gradually developed into cancer and he died of it in March 2011. After her husband died, the plaintiff became sadder still. When she commenced the present action against the police in May 2011, she was afraid the relevant police officers would cause her harm, so she went into hiding and she did not work when she was in Hong Kong. When she was in Thailand, she stayed at home most of the time to look after her sick mother who had a traffic accident resulting in a broken leg.

(k) Before her husband’s death, the plaintiff lived on his pension. After he died, his family members supported her living when she was in Hong Kong.

5. The plaintiff further claimed (and the 1st and 2nd defendants denied) inter alia that:

(a) the aforesaid prosecution by police officers under the direction/control of the 1st defendant were malicious and without reasonable/probable cause;

(b) as a result, the police (who knew or ought to have known they had no power to act in such manner) were in breach of their duty not to abuse their power and to cause injury to the plaintiff and/or to commit misfeasance in public office;

(c) the arrest of the plaintiff on/about 27 September 2006 was wrongful, and as a result she was locked in a cell and falsely imprisoned for several hours in Kowloon City Police Station before being released on police bail.

6. The plaintiff claimed damages in the total sum of $20,470,000 as follows:

(a) general damages for the alleged malicious prosecution ($1,000,000), misfeasance in public office ($1,000,000) and false imprisonment ($200,000);

(b) special damages for losses to her business when she had to attend court hearings for the aforesaid summonses ($20,000);

(c) damages for scrapping facilities/equipment and writing off other capital investments following closure of her business at the Premises due to repeated nuisance caused by the police and loss of confidence by reason of the alleged malicious prosecution and/or misfeasance in public office ($200,000);

(d) pre-trial aggravated damages for not being able to carry on with her business as a result of the alleged malicious prosecution and/or misfeasance in public office ($4,050,000);

(e) alternatively, pre-trial special damages for losses caused to her business since April 2007 as a result of the alleged misfeasance in public office ($4,050,000);

(f) future aggravated damages for not being able to carry on with her business as a result of the alleged malicious prosecution and/or misfeasance in public office ($12,000,000);

(g) exemplary damages ($2,000,000).

II. PROCEDURAL HISTORY

7. Since the commencement of the present action, the plaintiff was legally represented by PansyLeung, Tang & Chua (“Former Solicitors”).

8. On 19 December 2012 (ie more...

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