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Attorney General v Wong [1995] SBCA 9; CA-CAC 4 of 1994 (19 May 1995)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Civil Appeal No.4 of 1994

BETWEEN:

THE ATTORNEY GENERAL
Appellant

AND:

WILSON WONG
Respondent

Before:
Connolly P.
Savage J. A.
McPherson J.A.

JUDGMENT - CONNOLLY P. & MCPHERSON J. A.

Delivered the 19th day of May 1995

This is an appeal against a judgment of the High Court (Palmer J.) awarding $3,000 damages for malicious prosecution and costs. The circumstances out of which the action arose are these. The first defendant in the action Chin Foot Hap (“Chin”) and one Su Ching Kuo (“Su”) were the sole shareholders in a company by the name of May Seafood Limited. It was intended that this company should carry on business in the exportation of Cray fish from Solomon Islands. The venture does not appear to have been a success and in 1987 Su and Chin seem to have wound its affairs up informally, Su returning to Taiwan. Chin appears to have been a resident of Solomon Islands. The equipment belonging to the company would appear to have been left at a house at White River and on 26 June 1990 a report was made to the police by Chin that the respondent Wilson Wong had stolen property from the house in question comprising fishing gear, packing cases, packing materials and parking (presumably packing) equipment of a value of SI$4,000 sometime in 1988. The report was investigated by Detective Constable Erekali who ultimately laid a charge of simple larceny against the respondent. Erekali took a statement from Chin in June 1990 and a further statement from one Wang Peng Chia (“Wang”) on 2 July 1990. On 8 October 1990 the respondent appeared in Court and a plea of not guilty was entered. After an adjournment, the case came on for hearing on 11 December 1990 when it was withdrawn for want of a necessary witness or witnesses and the respondent was acquitted pursuant to s.189(2)(b)(i) of the Criminal Procedure Code.

The respondent then brought proceedings for damages for malicious prosecution and false imprisonment. The appeal is not concerned with the question of false imprisonment which was in fact rejected by Palmer J. However his Lordship found the charge of malicious prosecution made out and made an award of damages. The appeal is concerned solely with the finding of the learned trial Judge that Erekali had acted maliciously in prosecuting the respondent.

The learned trial Judge directed himself properly as to the elements of the tort of malicious prosecution. They are of course (1) the initiation of legal proceedings, (2) maliciously and (3) without reasonable and probable cause, (4) which terminate in favour of the accused and (5) causing him damage.

The material before the police was as follows. Chin, who made the complaint, said that he did so on information he received from a boy by the name of Chris from weather Coast who had been living at White River and who had been employed by Su. The allegation was that Chris had told Chin that the goods which were stored in the house had been taken by Wong by car at night sometime in 1988. Chris was not called at the trial and no statement from him was ever taken. There was thus no proof of the description of the goods said to have been taken or of the fact that the respondent took them. The other information obtained by Erekali was in the form of a statement by Wang who said that the respondent brought goods to his house by night saying that he had bought them. There was no evidence to identify these goods as goods taken from the house at White River. The police took possession of the goods in question and they included items, notably 44 knives, 4 spark plugs, staples, a stapler and a yellow plastic coil which do not seem to have been the subject of Chin’s original complaint. In the circumstances there was no evidence before the police which would have been admissible at the hearing of the charge as to the property in the goods at White River, the fact of their removal, the identity of the person who removed them, the property in the goods taken to Wang’s house by Wong (if they were not the property of Wong) and of course no evidence that they were goods which had come from White River.

The only other circumstance which assumed some importance at the trial was that Su had sent a fax in Chinese from Taiwan which would appear to have complained that his goods had been stolen by the respondent. The learned Judge had no difficulty in finding that there was no reasonable or probable cause for the laying and prosecution of the charge of simple larceny. This conclusion was inevitable. Reasonable and probable cause in this context is accepted as having the meaning given by Hawkins J. in Hicks v. Faulkner (1881) 8 Q.B.D. 167, 171:

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

This proposition was approved by the House of Lords in Herniman v. Smith [1938] A.C. 305.

In this connection it should also be mentioned that property alleged to have been stolen from White River was not found at the respondent’s house at Marovo. When asked at the trial why he had proceeded with the charge in the absence of two key witnesses Su and one Tsai, an expert who had been employed by the company and who presumably could have identified the relevant goods, he stated that he was hoping that a conviction could be obtained against the respondent anyway. As there was a complete absence of admissible evidence this proposition can only mean that he hoped, that the respondent might change his plea that he had acted on the contents of the fax from Su.

The learned Judge was not satisfied that reasonable steps had been taken by Erekali to inform himself of the true state of the case on admissible evidence. However, his Lordship also found that, in laying the charge of larceny, Detective Sergeant Erekali held an honest belief in the guilt of the plaintiff. The critical question on appeal is whether, in view of this finding, the judgment for damages in favour of the plaintiff can be sustained.

In an action for damages for malicious prosecution, “malice” is a distinct element which must be established by the plaintiff: J.G. Fleming: The Law of Torts, 6th ed., at 586-587. In this context as Kitto J. said in Trobridge v. Hardy [1955] HCA 68; (1955) 94 C.L.R. 147, 162:

“malice forms the subject of a separate issue of fact on which the party alleging it must establish that the conduct of which he complains was actuated solely or predominantly by a wrong or indirect motive. This means, where that conduct could only be justified by reference to authority possessed by the actor to perform functions for the enforcement of law, that he acted ‘from an indirect and improper motive, and not in furtherance of justice’: Arbrath v. North Eastern Railway Co. [1883] UKLawRpKQB 122; (1883) 11 Q.B.D. 440, 455. That is to say, from some desire other than ‘to discharge his public duty’ Cruise v. Burke [1919] 2 I.R. 182, 186.”

Although the onus of proving malice is on the plaintiff, whose action will fail if that onus is not discharged, the defendant may succeed in defeating the action by adducing affirmative evidence that, in promoting the prosecution complained of, he acted from the best of motives. This is the explanation of Rapley v. Rapley [1930] NSWStRp 9; (1930) 30 S.R. (N.S.W.) 94, where a son instituted lunacy proceedings against his mother which resulted in her being charged under s.4 of the Lunacy Act 1898 (N.S.W.) with being an insane person “wandering at large”. The son was well aware that his mother was not “wandering at large”, and the charge laid against her terminated in her favour. But there was no doubt she was insane, and his motive in laying the charge was to protect her by depriving her of control of her property, which she was planning to sell. The jury having found that the defendant was not actuated by malice against his mother, the Full Court held that judgment was rightly entered in his favour. If, said street C.J. [1930] NSWStRp 9; (30 S.R. (N.S.W.) 94, 99) the defendant:

“honestly believed that the course which he took was for his mother’s benefit, and was in her interest, and, if he had no motive in acting as he did except a filial desire to do what was best in the circumstances, how can it be said that he was acting maliciously, and in bad faith. There was ample evidence, if the jury chose to accept it, to show that he had no ulterior purpose or motive, and in my opinion their verdict cannot be disturbed.”

Properly considered Rapley v. Rapley is a case which is in some ways different from this. In that instance there was no reasonable or probable cause for the charge; but the motive actuating it was found to be inconsistent with malice on the part of the defendant. Here there was little affirmative evidence from the defendant that Erekali acted from proper motives, apart from his own evidence (which the learned trial judge accepted) that, in laying the charge of larceny, he honestly, if foolishly and unreasonably, believed in the guilt of the plaintiff.

One would nevertheless be disposed to think that an honest belief in the plaintiff’s guilt was logically inconsistent with the notion of malice or improper purpose on the part of a defendant in laying the charge. Some textwriters come close to saying that is so, and it appears to be implicit in the reasoning in Wershof v. Commissioner of Police for the Metropolis [1978] 3 All E.R. 540, 553, where May J. said:

“It follows from my finding that Sgt. Brand did not and indeed could not reasonably have believed that the plaintiff was ‘wilfully’ obstructing him in the execution of any duty that he may have had, that in my judgment Sgt. Brand did initiate the prosecution of the plaintiff without reasonable or probable cause. As I have already indicated, I do not think Sgt. Brand ever applied his mind to the nature of what he considered to be the unnecessary recalcitrance of the plaintiff. Nevertheless, I am by no means satisfied that Sgt. Brand acted maliciously. As I have indicated, I think Sgt. Brand honestly believed that he had a right to seize the ring. Further, when he brought the plaintiff back to the police station and told the station sergeant the facts, the latter was himself prepared to accept the charge against the plaintiff and did, in fact, so charge him. In these circumstances I am certainly not prepared to hold that Sgt. Brand initiated the plaintiff’s prosecution for any improper motive. Consequently, I reach the conclusion that insofar as the plaintiff’s claim herein is based on the alleged malicious prosecution, this must fail.”

The decision in Wershof v. Commissioner of Police may be viewed as authority for the saying that a finding of honest belief on the part of the defendant in the guilt of the plaintiff is by itself a complete defence to an action for malicious prosecution. There are, however, other authorities in England and America which do not support so broad a proposition considered as a matter of law. In Brown v. Hawkes [1891] UKLawRpKQB 123; [1891] 2 Q.B. 718, on which Mr. Afeau for the Attorney-General relied, the jury found that, in instituting the prosecution against the defendant, the plaintiff had not taken reasonable care to inform himself of the true facts of the case. Although this amounted to a finding of absence of reasonable and probable cause, they also found that the defendant believed in the charge which was laid. However, the jury answered a third question put to them by saying that the defendant was actuated by malice and indirect motives in taking the proceedings against the plaintiff. In giving judgment for the defendant on appeal, Lord Esher M.R. said ([1891] 2 Q.B. 718, 727);

“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 that 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 they jury might find that the defendant was malicious in fact. It might be said 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.”

And Kay L.J. said ([1891] 2 Q.B. 718, 728-729):

“The judge, in this case, decided that here was an absence of such cause. That left to the jury to decide merely the question of whether the defendant was actuated by malice. 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 that 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. Upon that ground I agree that the appeal should be allowed.”

What was said in Brown v. Hawkes raises the possibility that, even in the face of a finding that the defendant honestly believed in the guilt of the plaintiff, liability in an action for malicious prosecution may still follow if the defendant is shown to have acted from an indirect or improper motive in instituting the proceedings against the plaintiff. The American authorities tend in the same direction. Absence of reasonable and probable cause is considered as “some” evidence of malice, but only “in so far as it tends to show that the accuser did not believe in the guilt of the accused. Restatement of Torts (2d) §669; Harper James Gray: Law of Torts, 2nd ed., §4.6; Prosser Keeton: Torts, 5th ed. at 883-884. Referring to that proposition in the Restatement, the New York Court of Appeals in Martin v. City of Albany (1977) 364 N.E. 2d. 1304, 1307, said:

“In other words, probable cause to initiate a criminal proceedings may be so lacking as to reasonably permit an inference that the proceeding was maliciously instituted.”

The result, as it seems to us, is that there are three principal classes of case. One is where the defendant proves by affirmative evidence a proper motive for instituting the proceedings, in which event the action for malicious prosecution fails. Rapley v. Rapley is an instance of this kind. At the opposite extreme is the case where the plaintiff proves by affirmative evidence an improper motive or purpose on the part of the defendant, in which event the action will succeed if the other elements of the cause of action are also established. The third, which is the intermediate and probably the most common class of case, is where the plaintiff proves absence of reasonable and probable cause, and on that basis invites the inference that the defendant must have acted with malice. In this instance the plaintiff will ordinarily succeed, unless the defendant shows that in instituting the proceedings, he genuinely believed in the guilt of the plaintiff (Wershof v. Commissioner of Police). In that event, the action may be expected to fail unless the plaintiff is able to point to other evidence, over and above that showing absence of reasonable and probable cause, which proves indirect or improper purpose or motive on the part of the defendant (Brown v. Hawkes).

Cases falling within the limits of the last category are bound to be uncommon. It must be rare indeed for a defendant, who honestly believes in the guilt of the plaintiff, to institute proceedings for some improper reason or motive; but the possibility cannot be entirely discounted. The question here is whether this is such a case. According to the findings made at the trial Detective Sergeant Erekali honestly believed the plaintiff Wilson Wong to be guilty of larceny at the time he laid the charge against him, even if his belief in the plaintiff’s guilt was not objectively justified or justifiable. In these circumstances the question is whether there is any evidence to support a finding that in laying the charge Erekali was actuated by any improper motive.

Before the charge was laid, the plaintiff and Erekali were not acquainted, and there is therefore no history of personal animosity between them. Apart from Erekali’ s belief in the plaintiff’s guilt, the only explanation of why he laid the charge was that he received an instruction to do so from his superior officer. It is not suggested that the superior officer was actuated by any improper motive which was adopted by Erekali in laying the charge. In these circumstances it is difficult to see that he acted from any motive other than a desire, however misplaced or wrongheaded it may in the circumstances have been, to bring a, wrongdoer to justice. The case is not, like Trobridge V. Hardy [1955] HCA 68; (1955) 94 C.L.R. 147, one in which a police officer can be seen to have acted out of vindictiveness, or from an arrogant resolve to assert his authority over someone who had defied it or had wounded his self-esteem. When asked what the improper purpose here might have been, Mr. Waleilia of counsel for the plaintiff on appeal thoughtfully suggested that it might have been to abuse the legal process. But that is more a description of the outcome than an explanation of why the criminal proceedings were set in motion in this case.

In the result, we have reached the conclusion that there was no evidence to support the finding that, in instituting criminal proceedings for larceny against Wilson Wong, Detective Sergeant Erekali was actuated by any improper purpose or indirect motive. It follows in our opinion that the appeal should be allowed with costs; the judgment should be set aside; and judgment should now be given in the action against the plaintiff. The cross-appeal should in consequence also be dismissed.

As to costs both of the appeal and of the action, the plaintiff has, ultimately through no fault of his own, already incurred considerable expense through an error in the administration of the law. It may be that in these circumstances the Attorney-General would be prepared not to insist on orders for costs against the plaintiff. In any event, we propose before making any order in the matter of costs to allow a period of two weeks within which the Attorney may make a written application for costs, and a further two weeks thereafter for the respondent plaintiff to reply in writing to that submission.

The costs are therefore reserved until after those times have expired.

Connolly P.
McPherson J.A.