Criticism of the Grounds of Judgment of SUM 2310/2013

1. I filed a suit S 257/2013 in the High Court against the Attorney-General for a wrongful arrest made by the police. Most of the claims were struck out in a recent hearing as they are barred by a 3 years limitation period (3 years rule).   

2. I think there are two flaws in the grounds of the judgment. One is that the Court admitted a fact established on the violation of my due process of law. The other is that the Court has applied different limitation periods (3 years rule v 6 years rule) against the same legal wrong. 

Facts 

3. While arrived in my flat in response to my call in 2009, the police officers refused to take my report and arrested me for breach of Personal Protection Order (PPO). The PPO was later discovered to be expired before the arrest so the police consulted the Attorney-General’s Chamber (AGC). 

4. The Honorable Attorney-General (AG) directed the police to take no further action against me as no offence was disclosed, though the police refused to justify what offence it was. I was neither charged nor brought before Court.  

Violation of due-process of law 

5. Two things are clear. One is that the arrest is unlawful as the police had no probable cause, or the existence of the PPO. The other is the AG’s abuse/unconstitutional exercise of prosecutorial power which has violated my due process of law. 

6. Every arrested person must be brought before a Magistrate within 48 hours for the Judge’s independent determination of the probable cause of a arrest. 48-Hours rule is meant to protect the arrested persons but not the police. 

7. While in a position to discontinue proceedings at any stage, the AG cannot contravene constitutional rights so he has no power to interfere the default procedure in a confirmed unlawful arrest case [1]. 

Malicious Prosecution

8. To prosecute is to set the law in motion by an appeal to some people clothed with judicial authority [2]. The police may prosecute a person by either charging him or bringing him before a Magistrate. Citing Martin v Watson [3], the learned counsel of the defendant concluded that I was not prosecuted. 

9. Suppose that a person failed to answer a police bail because the police station’s guard intentionally refused to let him in. The failure to answer the bail ought to be disproved by the Court as it was founded on the police’s violation of this person’s due-process rights.  

10. In the present case, the police were supposed to bring me before a Magistrate to submit information about my PPO violation and later request the Magistrate to withdraw the information due to the expiration of the PPO. 

11. As my absence before a Magistrate is caused by the AG’s unconstitutional direction, the absence ought to be disproved by the Court. In other words, I was supposed to be brought before a Magistrate by the police.  

Abuse of process (or: abuse/unconstitutional exercise of prosecutorial power)

12. The learned counsel argued that this claim failed as “no judicial proceedings [process] were brought against you”. Under 48-Hours rule, the judicial proceedings were meant to protect the arrested persons and the failure to initiate them technically helped the police to escape their responsibility for wrongful arrests. It is clear that the lack of judicial proceedings ought to be disproved by the Court as a result of the AG’s unconstitutional direction.   

Application of different limitation periods against the same legal wrong

13. According to a report of lian he zao bao in 2011, the time bar has been ruled as 6 years for false imprisonment claims. In the 2011 case [6], a man was wrongfully arrested by the police and unlawfully detained for some 3 years. While confirmed the use of the 6 years rule in 2011 case, the High Court in the present case adopted 3 years rule without justification.  

14. The learned counsel explained that the 3 years and the 6 years rules apply to personal injury and non-personal injury claims, respectively. Moreover, false imprisonment claim was a non-personal injury claim and was the sole claim in the 2011 case so 6 years rule applied. In the present case, claims other than false imprisonment have been made so the 3 years rule comes into force.  

False imprisonment = loss of liberty?

15. It is established that the only non-personal injury claim is loss of liberty claim [7], so the counsel assumed that false imprisonment equals to loss of liberty. 

16. The false imprisonment would certainly do persons harm other than loss of liberty such as physical injury, mental harm, loss of income etc. Moreover, the wrongful arrest and false imprisonment are interchangeable in police misconduct so the arrested persons must have suffered assault and battery. 

17. The counsel’s assumption is illogical and apparently contradicts the facts but was accepted by the Court so I leave it to the public to judge the nature of false imprisonment claims.