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Singh Arjun By His Next Friend Singh Anita Guruprit v Secretary For Justice And Another

Judgment Cited authorities 39 Cited in Precedent Map Related
Vincent
Judgment Date30 May 2016
Year2016
Judgement NumberDCEO9/2011
Subject MatterEqual Opportunities Action
CourtDistrict Court (Hong Kong)
DCEO9A/2011 SINGH ARJUN by his next friend SINGH ANITA GURUPRIT v. SECRETARY FOR JUSTICE AND ANOTHER

DCEO 9/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 9 OF 2011

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BETWEEN
SINGH ARJUN by his next friend
SINGH ANITA GURUPRIT		 Plaintiff
and
SECRETARY FOR JUSTICE 1stDefendant
HUNG KAI KAM 2ndDefendant

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Coram :His Honour Judge Ko in Court
Dates of Hearing : 7 – 10, 14 – 17, 22 & 23 April, 11 – 15 August & 18 September 2014
Date of Judgment: 30 May 2016

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JUDGMENT

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CONTENTS

Paragraph
A. Introduction 1
B. An overview of the incident 6
C. The disputes 14
C1. The legal disputes 15
C2. The factual disputes 18
D. The evidence 28
E. General credibility of the witnesses 32
E1. The defence witnesses 38
E2. The plaintiff’s witnesses 43
F. What happened between Arjun and Madam Chan beforepolice arrived? 58
G. What happened after the arrival of the police? 66
G1. Did PC Hung arrest Arjun without investigation? 69
G2. Did PC Hung ignore Arjun and Mrs Singh and communicate with them in a reprehensive manner? 89
G3. Did PC Hung ignore Arjun’s injury and damaged sweater? 99
G4. Were there other witnesses of the incident? 109
G5. Did the police neglect to watch the CCTV recording at the scene? 122
G6. Did the police tell MW that they were just scaring Arjun? 131
G7. How was Arjun cautioned? 136
H. Did the police coax Arjun into admitting his guilt? 140
I. What happened at the police station?
I1. Appearance before the Duty Officer 150
I2. The Punjabi language interpreter 158
I3. Had Arjun been denied arrangement suitable for children under arrest and in police custody? 180
I4. Had Arjun or Mrs Singh been denied food or water? 187
I5. Was Mr Singh not allowed to attend Arjun’s interview initially? 199
I6. Was Arjun released promptly on 6 January 2010? 208
J. Did the police withdraw the caution and charge against Arjun promptly? 214
K. Did the police refuse to investigate Arjun’s complaint? 217
L. Summary of my factual findings 250
M. The law on racial discrimination 251
M1. The purposive approach to statutory interpretation 258
M2. An overview of the RDO 264
M3. The plaintiff’s argument 286
M4. The EOC’s argument 314
M5. The defendants’ argument 333
M6. My interpretation of section 27 of the RDO in relation to police activities 351
M7. On burden of proof 377
M8. On proof of direct discrimination 388
M9. Summary of the applicable legal principles 403
N. Did the police discriminate against Arjun in breach of section 27? 408
N1. Racial profiling and institutional racism of the police? 409
N2. Discrimination at the MTR station? 441
N3. Discrimination at the police station? 463
N4. Refusal to investigate after Arjun’s release? 474
N5. Conclusion 477
O. Was Arjun’s arrest unlawful? 478
O1. Did PC Hung suspect Arjun to be guilty of common assault? 482
O2. Was there reasonable cause of the suspicion? 489
O3. Was the arrest unlawful on Wednesbury grounds? 506
O4. Conclusion 524
P. Relief 525
Q. Disposition 537

A. Introduction

1. Arjun is Indian by race and Punjab by ethnicity. He was 11 years old when he encountered the incident that I shall recount shortly. The incident has given rise to allegations of racial discrimination, unlawful arrest and false imprisonment against the police.

2. As Arjun is a minor, this action was commenced by his next friend, his mother “Mrs Singh”.[1] The Secretary for Justice representing the Government is named the 1st defendant and Police Constable Hung Kai Kam (“PC Hung”) is named the 2nd defendant.[2]

3. The plaintiff’s claim is essentially for a declaration that the police have discriminated against Arjun on the ground of race, an apology, and an order directing the Commissioner of Police to investigate and discipline the officers concerned. There is also a claim for damages.

4. Over the course of a 16-day trial, the parties have combed through the evidence in minute detail and, with the participation of the Equal Opportunities Commission (“EOC”) as amicus curiae,[3] debated the pertinent legal issues. A total of 12 witnesses testified and over 170 authorities were cited in argument. No stone was left unturned.

5. In the end, I am quite satisfied that, whilst what happened must have been unpleasant to Arjun, the plaintiff has failed to establish his claim.

B. An overview of the incident

6. In the afternoon of 6 January 2010, Arjun was returning home after a tuition class. He took the Mass Transit Railway (“MTR”) and alighted at the Wanchai MTR Station.

7. He bumped into a middle-aged Chinese lady (identified as “Madam Chan” at the trial) on his way up to the ground level. When the pair reached the top of the escalator at Exit A3 at around 15:50 hours, a scuffle broke out between them. There were cross-accusations and they, as well as two passersby, called 999. In addition, Arjun called his mother. Some MTR staff intervened and Mrs Singh arrived shortly to accompany Arjun.

8. PC Hung and Senior Police Constable Kwan Wing Yiu (“SPC Kwan”) were dispatched to the scene in response to the emergency calls. The precise course of event that took place after their arrival is subject to serious dispute. There are allegations of discriminatory conduct on the part of the officers. Eventually, Madam Chan was taken to the hospital and Arjun was arrested by PC Hung for assaulting Madam Chan. It is the plaintiff’s case that the arrest was unlawful.

9. Arjun and Mrs Singh were then taken to the Wanchai Police Station, leaving the MTR station at around 16:41 hours. What happened en route to and during their stay at the police station is also disputed. The plaintiff alleges that Arjun was coaxed into admitting his guilt and had been treated discriminatorily. It is common ground that Arjun’s police interview did not commence until around 19:55 hours because of the wait for the Punjabi language interpreter Kuldip Singh (“KS”). After the interview, Arjun was released on bail and left the police station at around 22:30 hours.

10. Arjun’s bail was extended once at the end of January and he attended a second police interview on 3 February 2010. When he returned to the police station again on 5 March 2010 to answer his bail, he was released unconditionally with his bail money refunded.

11. On 12 March 2010, the plaintiff’s solicitors made representations to the Director of Public Prosecutions on behalf of Arjun regarding the incident. The solicitors complained that Madam Chan had acted aggressively and that the arrest was arbitrary, making references to Arjun’s racial background and his inability to speak Cantonese. They argued that it would not be appropriate to prosecute Arjun and suggested, instead, that the “inappropriate behavior” of Madam Chan be investigated and the “policing mistakes” corrected.

12. In a reply dated 13 April 2010, the Deputy Director of Public Prosecutions (“DDPP”) expressed that:

“I have recommended no further action. I consider that the complainant behaved inappropriately in the circumstances. I wish to apologize for any anguish caused to Master Singh over the incident.”

13. On 16 November 2011, the plaintiff commenced this action.

C. The disputes

14. The plaintiff has pleaded two causes of action: (i) racial discrimination, and (ii) unlawful arrest. The plaintiff says that the unlawfulness of the arrest has plagued the subsequent detention.[4]

C1& The legal disputes

15. The racial discrimination claim is founded on section 27 of the Race Discrimination Ordinance, Cap 602 (“RDO”). In gist, that section renders unlawful racial discrimination in the provision of goods, facilities or services. It is the plaintiff’s case that the police had refused or deliberately omitted to provide “services” to Arjun on the ground of his race, arguing that section 27 is engaged in all stages of the activities of the police. The defendants, on the other hand, argue that only some (but not all) of the police activities amounted to the provision of service. The EOC favours the liberal approach of the plaintiff. There is therefore a dispute on the scope of application of section 27 to police activities. [Issue 1]

16. Since this is the first time a claim based on section 27 has reached the trial stage, the plaintiff has invited me to issue general guidelines under section 73E(5) of the District Court Ordinance, Cap 336 (“DCO”) to regulate the burden of proof in racial discrimination claims. Both the defendants and the EOC are against the idea. [Issue 2]

17. Turning to the unlawful arrest claim, apart from challenging the factual basis of the arrest, the plaintiff argues that it was unnecessary for PC Hung to arrest Arjun. The parties dispute as to whether there is a necessity test for arrest in Hong Kong. [Issue 3]

C2. The factual disputes

18. The same factual matrix underlies both causes of action. The plaintiff has raised many factual disputes in argument and urged me to bear in mind the totality of the evidence, especially when assessing his racial discrimination claim.

19. It is the experience of the English courts that cases of racial discrimination tend to be long, as there...

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