A person can recover general damages for wrongful arrest which includes compensation for injured feeling. In addition. he can recover special damages for any loss which he has incurred provided it is not remote. He may also rely on aggravation of the general damages on the circumstances attending the imprisonment and on any facts in the conduct of the defendent at the time of before or after the imprisonment which show malice.
140. What are the precise circumstances in which damages for unlawful can be recovered? (SR 162 Paragraph 82)
In Hong Kong, there is separation of power between the legislature, executive and judiciary. The police and citizens have right to arrest offenders against the law; and such offenders are brought before an independent judiciary which tries the guilt or innocence of the person so arrested.
If a person convicted by the trial court has his conviction quashed on appeal, he is not entitled to compensation for false imprisonment or unlawful arrest as such from the trial judge or judiciary. As in United Kingdom, every judge and magistrate in Hong Kong is entitled to protection from liability or damages for anything done while acting judicially. As long as he acts under the honest belief that his conduct was within his jurisdiction, he is protected even though a mistake of law or fact led him outside his jurisdiction. Negligence even on the part of the judiciary does not give rise to a claim for damages against the judiciary.
However compensation can be recovered against the person making the arrest for unlawful arrest or against the prosecuting authority for malicious prosecution.
In Hong Kong, citizens as well as the police have statutory power under the Criminal Procedure Ordinance to arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence. An arrestable offence means any offence for which the sentence is fixed by law or for which a person may be sentenced to imprisonment for a term exceeding 12 months, and any attempt to commit any such offence. Similar power of arrest also exists in respect of certain offences under the Marine Stores Protection Ordinance and Crimes Ordinance. Also at common law both citizen and policeman may arrest where they have reason to apprehend that a breach of the peace is about to be committed. Whether the arrest is lawful thus depends on whether the person arresting has reasonable ground to suspect that the person arrested is guilty of an arrestable offence or is about to commit a breach of the peace.
In addition, a police officer has power to arrest under a warrant. The warrant is issued upon information laid and substantiated on oath to warrnat is that the officer is thereby completely protected from an action for false imprisonment or unlawful arrest. Accordingly, where there is no urgency, it is usual to apply for a warrant to arrest notwithstanding the existence of a general power which could be used.