1. I,
the plaintiff, filed a suit S 257/2013 on 1 April in the High Court against the
Attorney-General (AG) for wrongful arrest/false imprisonment (against the
police), malicious prosecution (against the police) and abuse of process (against
the AG) etc.
2. The
learned AR ruled on 3 July that most claims should be struck out because they were
time barred by a 3-year filing limitation period and were not supported by the
facts. The plaintiff’s appeal (RA 227/2013) was dismissed on 21 August without
giving grounds.
3. While
the judgments have been made in favor of the defendant, the plaintiff would
argue with respect that the counsel of the defendant’s analysis unreasonable as
it is against the common sense and the well-established legal principles. The
plaintiff would request the AG to confirm the counsel’s position regarding the following
two questions in public.
4. There
are two questions at the heart of this case. One is whether a claim for damages
for false imprisonment equals to a claim for damages for loss of liberty. The
other question is whether an arrested person ought to be produced before a
Magistrate within 48 hours of the arrest.
Facts
5. While
arrived in the plaintiff’s flat in response to the plaintiff’s call for
assistance on 19 July 2009, the police officer prohibited the plaintiff from making
a report and arrested him for a breach of Personal Protection Order (PPO). The
plaintiff was detained in the police station overnight and released the next
day on police bail. The PPO was later discovered to be expired two weeks before
the arrest and the police consulted the Attorney-General’s Chambers (AGC) some
2 months later.
6. The
AGC satisfied the lawfulness of the arrest and accepted the incident as an
investigation so directed the police to take no further action, as no offence
was disclosed. The plaintiff was neither charged nor was brought before a
Magistrate.
Limitation period
7. The
general limitation period for filing an action against such a legal wrong
(tort) is 6 years (6-year rule) [1] but it can be 3 years (3-year rule) [2] if
the legal wrong satisfies both two criteria. One is that the wrong is caused by
negligence or nuisance or breach of duty; the other is that the claim for damages
is a personal injury claim.
8. Personal
injury “includes any disease and any
impairment of a person’s physical or mental condition” [3]. The most common
types of personal injury claims are road traffic accidents and damages cover
compensation for pain and suffering, emotional distress, medical expenses, loss
of earnings, etc. However, it is well-established
that the loss of liberty (loss of dignity and harm to reputation) is not a form
of "injury" [4].
English Court’s position
9. House
of Lord of the UK held that a claim for damages for false imprisonment was a
personal injury claim and that false imprisonment is a tort of strict
liability.
10. The
Lord Woolf MR has made it clear that “there
can be two elements to an award of damages for false imprisonment; the first
being compensation for loss of liberty and the second being the damage to
reputation, humiliation, shock, injury to feelings and so on which can be
result from the loss of liberty” [5]. A suspect restrained in a room in a
hotel will never experience the sense of hopelessness, or the power of the
imprisonment. Lord Hope said plainly that “The
tort of false imprisonment is a tort of strict liability” [6].
11. The
English Court of Appeal held that the limitation period for a suit of false
imprisonment was 6 years [7]. On 18 Nov 2011, Lianhe zaobao
reported a local
wrongful arrest/false imprisonment suit ([2011] SGDC 311) in which the AG applied
to strike it out on the ground of 6-year rule, which was confirmed by the High
Court.
The counsel’s position
12. The
counsel has argued that a claim for damages for false imprisonment equals to a
claim for damages for loss of liberty only so is not a personal injuries claim [8]. When requested to justify the
difference between his and Lord Woolf’s position, the counsel kept silent.
13. Without
challenging the Lord Hope’s judgment, the counsel argued [9] the false
imprisonment is founded on breach of duty by citing the seminal concept
formulated by Lord Denning [10] that “there
is a duty owed by every man not to injure his neighbor in a way forbidden by
law. … So is false imprisonment, malicious prosecution or defamation of
character”.
14.While
a police office may breach his general duty if he locks his wife against her
will, this officer’s use of force against a suspect when putting him under
arrest will not be forbidden by law. Despite of the basic presumption that
people go about their own business in their own interests, the police act in
the public interest and make decisions by their professional assessments but
not their subject beliefs of the guilt of suspects. The counsel didn’t challenge
this view.
15. If
the counsel is right on the breach of duty, the judgment of 2011 case will be
wrong because a claim for damages for false imprisonment is obviously a
personal injury claim. When questioned the correctness of the judgment of 2011
case, the counsel kept silent.
Lack
of prosecution and judicial process
16.The
counsel argued that the plaintiff’s claims of malicious prosecution and abuse
of process fail as the plaintiff was not prosecuted [11] and there was no
judicial proceeding against him [12]. To prosecute is to set the law in motion by an appeal to some people
clothed with judicial authority [13], so now the question is whether it is an
arrested person’s fundamental right to be brought by the police officers who
present the evidence before the Magistrate to set the law in motion. (I don’t
touch on the issue of the “Malice” here due to space limits).
48-Hour rule and probable cause hearing
17. While
a police officer is allowed to arrest a suspect without a warrant, the suspect
is entitled to an independent judicial review of the probable cause of arrest against
arbitrary
detention. Article 9(4) of
the Constitution provides that “Where a person is arrested and not released, he shall, without
unreasonable delay, and in any case within 48 hours (excluding the time of any
necessary journey), be produced before a Magistrate”.
18.The
counsel argued that “there was no requirement
at law for the plaintiff to be brought before a Magistrate” because “he was detained less than 24 hours before he
was released on bail” [14]. When questioned whether the custody officer
should brought the plaintiff in front of a Magistrate before he was released on
bail, the counsel answered that this question was irrelevant to the case. A
probable cause hearing is a judicial process meant to protect the arrested
persons against arbitrary arrest.
19. If
the 48-Hour rule doesn't run from the point of the arrest, the police will be
constitutionally entitled to deprive a person of his right to liberty by arresting,
detaining and releasing this person. This interpretation contradicts the
article 9(1) of the Constitution that provides “No person shall be deprived of his life or personal liberty save in
accordance with law”.
20. 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 violation of his due-process rights.
21. The AG has no power to interfere with a
person’s constitutional right [15] so the AG’s direction not to produce the
plaintiff before a Magistrate is unlawful and technically helped the police
escape their liability for unlawful arrest. As such, the plaintiff’s non-attendance
before a Magistrate should be disproved by the Court and in this sense
the counsel’s defence fails.
22.The
arrest is caused by the police officer’s ignorance of law but the AG has
intentionally violated the plaintiff’s constitutional right when the AG was informed
of the unlawful arrest. The plaintiff thinks that the AG has made greater
mistakes by contradicting his role in administering justice to the society.
23.The plaintiff
requests the Attorney-General to justify his position in public, especially his
position on an arrested person’s right for probable cause hearing. The plaintiff
requests the High Court to release the grounds of the decision at the trial’s
judge’s earliest convenience.
. Thank
you for your attention.
Mr. Yan
Mr. Yan
Reference:
- Section 6 (1)(a) of the
Limitation Act (Cap 163)
- Section 24A of the
Limitation Act (Cap 163)
- Section 2(1) of the
Limitation Act (Cap 163)
- New South Wales v Williamson [2012] HCA 57 at para 34
- R v Governor HM Prison
Brockhill [1998] EWCA Civ 1042
- R v Governor of Brockhill
Prisoner ex parte Evans [2000] UKHL 48
- Padmore
v Commissioner of Police
(Unreported) 15 November 2000, False
imprisonment by Nigel Joseph Ley (ISBN: 0853086893) at Page 269.
- Defendant’s skeletal
Submission for RA No. 227/2013 page 25, footnote 47.
- Defendant’s skeletal
Submission for RA No. 227/2013 page 10, para 34.
- Letang v Cooper [1964] EWCA Civ 5 at page
241
- Defendant’s skeletal Submission
for RA No. 227/2013 page 26, para 70(1)
- Defendant’s skeletal Submission
for RA No. 227/2013 page 28, para 74
- Clerk
& Lindsell on Torts
(18ed, 2000), page 825, papa 16-08
- Defendant’s skeletal Submission
for RA No. 227/2013 page 28, para 73.
- Law Society of
Singapore v Tan Guat Neo Phyllis [2008] 2 SLR 239 at 148
