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Attorney General v Wong [1995] SBCA 7; CA-CAC 4 of 1994 (23 March 1995)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Civil Appeal No.4 of 1994

BETWEEN:

THE ATTORNEY GENERAL
Appellant

AND:

WILSON WONG
Respondent

Connolly P.
Savage JA
McPherson JA

Hearing: 23 March 1995

Counsel:
P M Afeau for the Appellant
F Waleilia for the Respondent

JUDGMENT - SAVAGE JA

The respondent in this appeal, Wilson Wong, commenced an action in the High Court against one Chin Foot Hap, as first defendant, and Eric Erekali, Police Constable, as second defendant. He claimed damages on two causes of action, malicious prosecution and false imprisonment. At some stage in the proceedings the Attorney-General, now the appellant, was added as a third defendant. He appears to have accepted responsibility for the actions of the second defendant, the police constable who appears to have been dropped from the proceedings.

The circumstances on which the two causes of action were based may be stated briefly, and in an abbreviated way, as follows. On the 8th June 1990 Chin Foot Hap, the first defendant, reported to the police that the plaintiff, now the respondent, Wilson Wong, had stolen certain fishing gear and other materials worth some @4,000, and which was his property, from a site at White River. The theft, it was said, occurred in 1988. The police made some further inquiries, including obtaining a statement from Mr. Chin which stated that the property in question actually belonged to a company of which Mr. Chin and a Mr. Su, a Taiwanese who had now left the country, were directors. Further, that Wilson Wong had taken the stolen property to the residence of a Mr. Wang Peng Chia and left it there. At some point Mr. Chin had also informed the police that he had a witness, a man who worked for him, named Chris, and a Mr. Wang of Henderson, in relation to the taking of the property. At all events the police eventually charged the appellant with simple larceny. He appeared before the Central Magistrates Court at Honiara on the 8th October 1990 and pleaded not guilty; and the case was then adjourned to the 6th November. On that date it was further adjourned to the 11th December because it was said, not all witnesses had been served. It was called again on the 11th December and the police offered no evidence on the charge and the appellant was acquitted. The false imprisonment claim arose out of the fact that on each occasion that the appellant appeared at the Court he spent some time in the cells at the Court waiting till his case was called. This, it appears, is the regular procedure at the Court and is carried out under instructions from the Court, as a matter of administrative convenience, to ensure that accused who have surrendered to their bail do not then disappear while the Court deals with other cases.

The action was heard in the High Court before Palmer J. in September 1993 and he gave a reserved judgment on the 14th January 1994. In this careful and thorough judgment the learned trial judge canvassed the background facts and considered the broad principles of law that apply to claims for malicious prosecution, which it might be added, are far from straightforward. He postulated five matters that a plaintiff must always establish to succeed in such an action. I set them out, as he did, because although only one of them remained in contention on this appeal I found it helpful in considering the nature of the issues before us, namely, malice.

To succeed in a claim for malicious prosecution a plaintiff must establish:

1. That he was prosecuted and as a result suffered damage.

2. That the prosecution was instituted or continued by the defendant.

3. That the prosecution was terminated in his favour.

4. That the defendant acted without reasonable and probable cause.

5. That trial defendant acted maliciously.

Palmer J. took this postulation from a work entitled “Civil Actions against Police” by Richard Clayton and Hugh Tomlinson and I accept that it accurately sets out the position though no doubt it could be, and in various textbooks is, dealt with in somewhat different ways.

The judge considered these elements in turn. He was satisfied that the first was established and though the notice of appeal challenged this finding the challenge was abandoned before us. The nature and the quantum of the damages will be referred to again later in this judgment as they were the subject of a cross-appeal by the respondent. The second element that the prosecution was instituted or continued by the defendants was held not to be established against the first defendant Chin Foot Hap and accordingly the claim against him failed and he was dismissed from the proceedings. It was, however, established against the Attorney-General and there has been no challenge to that finding.

The third element was not in dispute and the judge moved on to the fourth, namely, had the police acted without reasonable and probable cause. His Lordship canvassed this issue at some length and arrived at the conclusion that the investigating officer, that is, Constable Erekali, had acted in instituting and pursuing the prosecution without reasonable and probable cause. The Attorney-General in his notice of appeal challenged this finding but before us Mr. Afeau for the Attorney-General abandoned it. It is, however, helpful to refer to his Lordship’s reasons for his findings on this issue for they bear upon the question that is in issue, malice. His Lordship cited the classic statement by Hawkins J. in Hicks v. Faulkner (1881) QBD 167 at 171:

“I should define reasonable and probable cause to be an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of estate of circumstances, which, assuming them to be true would reasonably lead an ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.”

He then went on to consider the position of Constable Erekali by testing it with four questions which encapsulate the factors contained in the statement of Hawkins J. Two of the questions, which relate to the honesty of the belief of Constable Erekali and which are subjective, he found in his favour: he held that the constable honestly believed Wilson Wong was guilty and that the circumstances on which he based that belief did exist. The two other questions, which are objective, he held against him; he held that the constable’s belief or conviction was not based upon reasonable grounds. He canvassed a number of matters which satisfied him that the constable had not taken reasonable steps, in a number of directions, to inform himself of the true state of the case; he had failed to get adequate evidence as to the ownership and nature of the property involved, to get statements from the alleged witnesses including “Chris” and some others. It is not necessary to catalogue all the matters but they included failing to assess what evidence was admissible and what was not and failing to obtain advice from some appropriate source. In passing, I record my view that in ordinary straightforward and clear cases an experienced police officer should be able to make a decision upon whether to prosecute or not without taking legal advice; in cases which are not straightforward and clear - and an experienced police officer should be able to recognise such cases he should, as Palmer J. suggests, put the file before the Head of the Prosecution Branch of the Royal Solomon Islands Police. At all events, on the matter of reasonable and probable cause the judge was clearly of the view that when looked at objectively the constable had been negligent, had failed to act properly and competently, and therefore had acted without reasonable and probable cause.

The fifth and final element to be established was that the police had acted maliciously. Palmer J., after canvassing what is meant by the term “malicious”, held that he was so satisfied and accordingly the respondent was entitled to succeed. I shall discuss this finding shortly, but first refer very briefly to the claim based on the alleged false imprisonment and the matter of the damages awarded. The judge rejected that claim on the basis that it arose out of the processes of the Court. The police in holding persons in the cells at the court were acting on directions from the Court to ensure that the work of the Court was carried on in an orderly and expeditious manner. There has been no challenge to that determination. In respect of the claim based on malicious prosecution in which the respondent had succeeded the judge awarded him $3,000 general damages and $1,626 special damages.

The appellant, the Attorney-General, appealed against this judgment and the respondent, Wilson Wong, cross-appealed against the quantum of both general and special damages awarded. The appellant’s notice of appeal raised three grounds but, as already indicated, he abandoned two of them and has pursued only that one which relates to the finding that the police acted maliciously. The notice of cross-appeal by the respondent was against the dismissal of the claim based on false imprisonment and the assessment of damages. Mr. Waleilia for the respondent informed us that the false imprisonment appeal was abandoned. In result there were only the two contested issues before the Court of the finding of malice and the quantum of damages.

I turn to consider first the question of malice. What does “malicious” mean in relation to malicious prosecution? That question has been postulated and answered in many cases. The language used has varied but in substance, in my view, malice means no more than an improper motive and any motive other than a desire to bring a criminal to justice is an improper motive. See as examples Alderson B. in Stevens v. Midland Counties Rly (1854) 10 Ep. 352 at 356; Mitchell v. Jenkins [1833] EngR 829; (1833) 5 B& Ad 588 per Parke J. at 595; Brown v. Hawkes [1891] UKLawRpKQB 123; (1891) 2 QB 718 per Cave J. at 722; Trobridge v. Hardy [1955] HCA 68; (1955) 94 CLR 147 at 155, 162 and 174; Glinski v. McIver (1962) AC 726 at 766; Commercial Union v. Lamont [1988] NZCA 247; (1989) 3 NZLR 187 at 202. How is such malice to be proved? Cave J. in Brown v. Hawkes (supra) at p.722, in a classic statement said:

“; and malice can be proved, either by showing what the motive was and that it was wrong, or by showing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor.”

It must be recognised, however, that if it is established that the prosecutor was honest in his belief in the guilt of the person charged then it is not sufficient to rely for proof of malice by imputing it from the circumstances of the prosecution alone; independent evidence of malice, that is an improper motive, must be adduced. Plainly if the prosecutor honestly believes the person charged is guilty of the offence then the circumstances alone cannot lead to the inference that his motive must have been improper. The belief may have been based on unreasonable grounds, defective memory, bad judgment or other reason but so long as it is shown he honestly believed in the guilt of the person charged it cannot be said that his motive must have been an improper one. Lord Esher in Brown v. Hawkes (supra) at p.726 said this:

“Now, although it is correct to say that want of reasonable and probable cause for the prosecution is some evidence of malice, it goes before the jury with the other facts of the case which go to establish the existence of malice. In this case the jury have found the defendant did honestly believe in the full charge that he laid before the Magistrates. Under these circumstances, we have to see whether there was any evidence beyond the absence of reasonable and probable cause on which the jury might find that the defendant was malicious in fact. It might be shewn that although the defendant thought the plaintiff was guilty, yet in preferring the charge he was not acting upon that view, but from some indirect motive. No such evidence has been pointed out to us, and, indeed, its existence is negatived by the finding of the jury as to the honest belief of the defendant.”

Here the learned trial judge, as has already been noted, expressly found that Constable Erekali honestly believed in the respondent’s guilt. What then was the basis upon which he held that nevertheless the constable acted upon an improper motive? He referred to a number of matters relating to the question of reasonable and probable cause and the constable’s knowledge of those matters and inferred from them an improper motive. He clearly, and it would seem to me, correctly concluded that the constable had not done a number of things that he should have done; he considered there were other matters relating to the evidence that the constable knew or ought to have known, and he said this:

“The investigating officer knew or should have known that was so. And if he says he did not know, then it was because he did not apply his mind to it when he should have done. It is no excuse or defence to say, ‘Oh, I did not think about that’.

In seeking to bring offenders to justice, he must not only act honestly, but properly and competently. If he is forgetful, careless or incompetent, then that is evidence in my view of knowledge or constructive knowledge.”

Unhappily, if understandably, I think his Lordship confused knowledge, actual or constructive, with motive. In my view though a person’s motives will generally be linked closely or loosely to a person’s knowledge in relation to a particular matter, they are not always logically so. A person’s motive for a particular action may well be directed at achieving a particular end yet because of forgetfulness, incompetence, ignorance, stupidity, neglect or other reason the action taken may not be in accord with, or indeed may conflict with, the motive when viewed objectively in the light of the person’s knowledge. The following passage from The Law of Torts by Salmond and Heuston, 20th Edn at p.411, is apposite:

“No action will lie for the institution of legal proceedings, however destitute of reasonable and probable cause, unless they are instituted maliciously - that is to say from some wrongful motive. Malice and absence of reasonable and probable cause must unite in order to produce liability. So long as the legal process is honestly used for its proper purpose mere negligence or want of sound judgment in the use of it creates no liability;”

I add that it should also, in my view, be borne in mind that people frequently act with mixed motives. It may be a combination of motives that causes a person to act and, in such a case of more than one motive, it is a matter for the Court to determine whether in the particular circumstances the motive that is not directed at bringing an offender to justice so taints the prosecution that it might properly be called malicious.

Mr. Afeau’s principal submission for the appellant was that the learned trial judge had found that the constable had honestly believed in the charge against the respondent and had then inferred malice, or a wrongful motive, from factors which bore upon the objective question of whether there was reasonable and probable cause for the prosecution and not upon the question of the constable’s actual motive. I think that is correct. Mr. Afeau said his case was essentially contained in a passage from the judgment of Kay LJ in Brown v. Hawkes (supra) at p.728. Kay LJ said:

“Now, if he honestly believed the charge which he made against the plaintiff, some distinct evidence is required to prove malice, and the only question before us is, what is relied on as evidence of malice. As I understand the argument for the plaintiff, it was said that the evidence to prove malice was that the defendant did not make proper inquiry as to the facts of the case. If that is all, and if that evidence is sufficient, the result would be that the finding on the first question put to the jury, that the defendant did not take proper care to inquire into the facts of the case, would, without more, determine the action in favour of the plaintiff. That cannot be so, and when I look at the evidence (as I have done with care) to find what evidence there was of sinister motive, I can find none on which the jury could reasonably find that the defendant was actuated by malice.”

I cannot in this case find any other evidence upon which it would be reasonable to find that the constable was actuated by malice.

I would allow the appeal and it follows that the cross- appeal must therefore fail.

SAVAGE JA