LAW CHUN LOY v. SECRETARY FOR JUSTICE

HCAL 3838/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATION LAW LIST
NO. 3838 OF 2001

_____________

_____________

_______________

J U D G M E N T

_______________

1. This is an application for judicial review to challenge a sequence of decisions made against the Applicant by the Police Force as a result of disciplinary proceedings against him. The proceedings arose from his report to the police on 18 January 2000 that he was blackmailed by a Mr Li Siu Ki ("Li") in relation to an alleged conspiracy to obtain property by deception.

2. The Applicant joined the Police Force on 18 January 1988 as a police constable. He was promoted to the rank of sergeant on 11 October 1996. On 1 March 1999, the Applicant was invited by the ICAC for a video-interview. The interview related to an investigation of an allegation of conspiracy between the Applicant and Li to deceive. On 7 December 1999, the Applicant was formally charged with "conspiracy to obtain property by deception" by the ICAC. The charge was eventually dismissed upon the prosecution offering no evidence.

3. However in the meantime, on 18 January 2000, the Applicant made a report to Wanchai Police Station while he was off duty. He reported that Li, a prosecution witness in the ICAC case against him, phoned him and demanded a sum of HK$150,000.00 from him in return for not testifying against him in court. On the same day, the Applicant was interviewed by a police officer and a written statement was taken. In the statement, he stated that he had never seen or known Li before 1 March 1999, i.e. the date when he was invited by the ICAC for the video-interview.

4. Further police investigation revealed evidence suggesting that the Applicant and Li had met and known each other before 1 March 1999. Following further investigation, on 30 August 2000 the Applicant was formally informed that one disciplinary charge was laid against him. The charge was framed as follows:

"Charge A:	making a statement which is false in a material particular in connection with the discharge by the police force of any of its duties.
	Contrary to Regulation 3(2)(j) of the Police (Disciplinary) Regulations, Cap. 232A.
Particulars:	SGT 47661 LAW Chun-Loy of the Hong Kong Police Force, you are charged that at about 2300 hours on 18 January 2000, at Room 207 of Wanchai Police Station, in Hong Kong, you did make a statement in connection with the discharge by the police force of one of its duties to WDSGT 18364, namely, that you had never seen or known a male named LI Siu-ki before 1 March 1999, such a statement being false in a material particular."

5. The Applicant was convicted of the charge after a hearing by a Tribunal set up under the Police (Discipline) Regulations on 8 December 2000. On 11 December 2000, the Tribunal awarded the Applicant a severe reprimand. On 22 December 2000, a Senior Police Officer reviewed the proceedings before the Tribunal and confirmed the conviction. The Senior Police Officer accepted the Applicant's complaint that before the Tribunal, there was a shift of the burden. However, he upheld the conviction and imposed an award of reduction in rank in addition to severe reprimand. By a memo dated 21 January 2001, the Force Discipline Officer confirmed the conviction and award of reduction in rank against the Applicant. Following an appeal to the Commissioner of Police by way of petition on 20 August 2001, the Deputy Commissioner upheld the decision of the Force Discipline Officer and dismissed the appeal of the Applicant on 31 October 2001.

6. The present challenge of the Applicant relates only to the proceedings before the Tribunal. It is accepted that other consequential decisions would stand or fall depending on whether the Applicant is able to succeed in his challenge of the Tribunal's decision.

7. The grounds of challenge are basically as follows. First, the Tribunal was erroneous and irrational in finding that there was a "false material particular". Secondly, the Tribunal misdirected itself as to the burden of proof and erroneously shifted the burden to the Applicant to prove his innocence. Thirdly, the disciplinary proceedings were criminal in nature and the Tribunal applied the wrong (i.e. civil) standard of proof.

Disciplinary offence

8. Under section 30 of the Police Force Ordinance (Cap. 232) every police officer is bound to obey all lawful orders and to conform to police regulations and orders made under the Ordinance. Regulation 3 of the Police (Discipline) Regulations made under section 45 of the Ordinance provides as follows:

" (1) Any inspector or junior police officer who commits any disciplinary offence specified in paragraph (2), and -

(a) pleads guilty before an appropriate tribunal; or

(b) is found guilty by an appropriate tribunal,

may be punished by such tribunal in accordance with these regulations.

(2) The offences against discipline are -

.....

(j) making a statement which is false in a material particular in the course of his duty or in connexion with the discharge by the police force of any of its duties or functions;

....."

Burden of proof

9. For a reason which will become immediately apparent, I will deal with this ground of challenge relied on by the Applicant first. The Applicant says that the Tribunal misdirected itself as to the burden of proof and erroneously shifted the burden to the Applicant to prove his innocence.

10. As I said, the charge in question related to whether the Applicant had seen and known Li prior to the video-interview. Before the Tribunal, evidence was adduced to the effect that the Applicant's wife was the registered subscriber of a mobile telephone no. 9141 2699 and she gave the mobile phone to the Applicant for his use who paid for the monthly subscriptions and had the use of the mobile phone. Further, there was evidence that another mobile phone number 9043 1243 belonged to and was apparently used by Li. There was documentary evidence before the Tribunal that between 8 July 1998 and 13 July 1998, i.e. a period well before the ICAC video-interview, there were 19 outgoing calls from the Applicant's mobile phone to Li's mobile phone. At the end of the prosecution's case before the Tribunal, which comprised oral evidence from witnesses including Li and documentary evidence including the mobile phone records, there was made a submission of no case to answer. The Tribunal ruled against the submission and commented on the state of evidence before the Tribunal.

11. After that ruling, the Applicant called evidence in defence of the charge.

12. In his Judgment convicting the Applicant as charged, the Adjudicating Officer manning the Tribunal said as follows:

" All witnesses, both for the prosecution and the defence, can in no way be described as honest upstanding citizens. Their oral evidence can carry little weight, especially DW 1 and DW 3 who admit that their versions to ICAC were different to the ones given to this tribunal. I also find the claims by both DW 1 and DW 3 that they both borrowed 'D's mobile phone to be unbelievable.

The one constant and reliable evidence in this case relates to the written telephone records submitted by the prosecution. I refer back to the final part of my ruling on the defence's No Case to Answer submission. I reproduce it below:-

"... I am satisfied at this stage, until the contrary can be proved, that 'D' was the person holding mobile phone number 91412699 and making the telephone calls to telephone number 90431243 on 1998-07-10. From this I must assume that 'D' was acquainted with PW 1 at least some 8 months before 1999-03-01. I therefore find a Case to Answer against 'D'"

The defence has failed to convince me "to the contrary" as regards 'D's use of his phone to contact PW 1.

The standard of proof required in the criminal case by ICAC against 'D' and PW 1 is very high indeed - i.e. beyond all reasonable doubt. However the same standard need not be applied in this discipline charge; this must be viewed in isolation, notwithstanding that it has flowed from a serious criminal investigation. The proof delivered in this disciplinary case has exceeded "on the balance of probabilities" and this is sufficient for me to find 'D' "GUILTY" of the charge." (emphasis added)

13. In these proceedings, the Applicant argues that the Tribunal quite clearly misdirected itself on the burden of proof and erroneously shifted the burden to the Applicant to prove that he did not make the relevant telephone calls in question. The Applicant relies in particular on the sentences italicized by me in the above extracts from the Judgment.

14. In this regard, there is no dispute that regardless of the applicable standard of proof, the burden of proof rested with the prosecution. The only question between the parties in these proceedings is whether the Tribunal has shifted the burden of proof to the Applicant as argued by the Applicant.

15. In my judgment, it is quite plain from the passages extracted above that that was what actually happened at the Tribunal below. By the end of the prosecution's case, the Tribunal was obviously much impressed by the objective documentary evidence relating to the making of calls between the two mobile phones. It came to the conclusion that despite the unsatisfactory oral evidence adduced by the prosecution, the documentary proof was sufficient to find a prima facie case against the Applicant. That by itself, in my judgment, was unobjectionable.

16. Where it went wrong was that the Tribunal went on to say that this would remain the position "until the contrary can be proved" and until that could be done, the Tribunal would "assume" that the Applicant was acquainted with Li at least some 8 months before the ICAC video-interview. With that approach in mind, the Tribunal went on to hear the case of the Applicant, and after hearing the case of the Applicant and submissions from the parties, the Tribunal reached its finding as recorded in the written Judgment. The finding eventually reached was, as is plain from the above extracts from the Judgment, equally tainted by the approach adopted by the Tribunal in the no case to answer ruling. So the Tribunal repeated what it said in its ruling earlier and went on to say that the defence had "failed to convince [the Tribunal] to the contrary as regards [the Applicant's] use of his phone to contact [Li]".

17. In short, starting from the end of the prosecution case, the Tribunal had adopted the approach that it was for the Applicant to prove that he was not the maker of the relevant telephone calls in question, and since in the opinion of the Tribunal, the defence failed to convince the Tribunal that that was indeed the case (i.e. "to the contrary"), the Tribunal concluded that the Applicant was the maker of those telephone calls in question and therefore further concluded that the Applicant was acquainted with Li well before the ICAC video-interview.

18. In my judgment, the Tribunal's approach went beyond what is sometimes described as the "shifting of evidential burden". It actually required the Applicant to prove "the contrary".

19. In R v Sin Yau-ming [1992] 1 HKLR 127, the Court of Appeal clearly held that a statutory presumption of possession of dangerous drugs "until the contrary is proved" had the effect of reversing the burden of proof and placing the legal burden on the accused to prove that the dangerous drugs were not in his possession (section 47(1) of the Dangerous Drugs Ordinance (Cap. 134)).

20. By way of contrast, in R v Wong Hiu-chor [1993] 1 HKCLR 127 concerning a statutory presumption of intent "in the absence of evidence to the contrary", the Court held that that merely placed an evidential burden upon the accused, i.e. to introduce evidence or indicate evidence in the prosecution's case that created a reasonable doubt that such intent was present. The words did not have the effect of shifting the legal burden to the accused to disprove intent.

21. These cases, of course, turn on statutory construction. In the present case, I am not concerned with statutory construction but words used by the Tribunal in its ruling of no case to answer and in its written Judgment convicting the Applicant of the disciplinary offence. But on a fair reading of the whole Judgment, as well as the record of proceedings, I cannot say that what was involved in the error of requiring the Applicant to prove the contrary regarding the real maker of the telephone calls in question was merely a slip of tongue. In other words, I cannot say that what the Tribunal had intended to say was merely that the Applicant bore the evidential burden in relation to who made the telephone calls. In my judgment, the Tribunal went further than that and required positive proof from the Applicant that he was not the maker.

22. This requirement is wrong. It was for the prosecution to prove all essential elements of the offence according to the applicable standard of proof. It is conceptually wrong to require the Applicant to prove anything (subject to what I will mention below about the shifting of the evidential burden.) The error may be further illustrated thus: Assuming that the applicable standard of proof was the civil standard of proof. In order to succeed, the prosecution would have to prove its case on a balance of probabilities, i.e. a probability of more than 0.5 on a scale from zero (impossibility) to one (certainty). Proof of the Applicant being the maker of the telephone calls on a probability of 0.5 only would not suffice. By requiring the Applicant to prove "the contrary", the Tribunal was, however, requiring the Applicant to prove, in relation to whether he was the maker of those telephone calls in question, a probability of more than 0.5 that he was not the maker. The proof of a probability of 0.5 only by the Applicant, for instance, would not suffice. Yet, if one bears in mind that it was the burden of the prosecution to prove its case on a probability exceeding 0.5, the Tribunal's approach that the Applicant would fail if the probability of the Applicant being the maker of those telephone calls was only 0.5 contradicted fundamentally the standard of proof in relation to the case. Thus analyzed, the approach of the Tribunal, with respect, must have been erroneous.

23. For the sake of completeness, I should add that even if it were open to treat what was said by the Tribunal as meaning no more than the shifting of the evidential burden to the Applicant relating to the real maker of the telephone calls in question, the Tribunal was still in error in considering - as is plainly apparent from the above extracts from the Judgment - that the Applicant could not succeed in his defence without discharging the evidential burden thus placed on him. The true position is clearly explained in Phipson on Evidence (15th ed.) para. 4-13 in relation to the shifting of evidential burden in criminal cases (which is equally applicable, mutatis mutandis, to a civil trial):

"In criminal cases, the prosecution discharge their evidential burden by adducing sufficient evidence to raise a prima facie case against the accused. If no evidence is called for the defence, the tribunal of fact (which will normally be the jury) must decide whether the prosecution has succeeded in discharging its persuasive burden by proving its case beyond a reasonable doubt. For example, it was insufficient for the prosecution to adduce evidence that a defect was probably present in a breaking system to establish that a defence had used a motor vehicle which had defective brakes. The fact had to be established beyond reasonable doubt. In the absence of any defence evidence, the chances that the prosecution has so succeeded are plainly greater. Hence the accused may be said to be under an evidential burden if the prosecution has established a prima facie case. Discharge of the evidential burden by the defence is not a prerequisite to an acquittal. The accused is entitled to be acquitted "if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner." (emphasis added)

24. In short, even if the Tribunal were only talking about a shifting of the evidential burden and even if the Tribunal was of the view (as it did) that the defence evidence was not credible, it did not necessarily follow that the prosecution had proven its case according to the requisite standard of proof. As is well known, the fact that the prosecution has established a prima facie case and a court has ruled that there is a case to answer does not necessarily mean that if the defence does not call any evidence, a guilty verdict must follow.

25. Mr Kwok, appearing for the Respondent, took me through the record of proceedings and evidence before the Tribunal and sought to demonstrate how strong the prosecution's case was or perhaps more correctly, how poor the defence case was. But despite the good effort of Mr Kwok, I do not think that this is of much help in this case. I do not sit here to try the disciplinary charge. There is clearly an error of law on the face of the record. The wrong approach and wrong burden of poof were applied by the Tribunal in evaluating the case as presented before it and in particular, in evaluating the defence case put forward by the Applicant. It is not for me to substitute any finding based on the material available before the Tribunal for the finding of the Tribunal, nor is it legitimate for me to seek to uphold the finding of the Tribunal by reference to the evidence presented before the Tribunal. Given the fundamental mistake relating to the burden of proof, there is no alternative but to quash the decision of the Tribunal.

26. So for all these reasons, I am with the Applicant on this ground and the decision of the Tribunal below cannot stand.

Standard of proof

27. Given my above conclusion, I need very briefly deal with the other two grounds of challenge also relied on by the Applicant in these proceedings. It is perhaps more convenient to deal with this ground of standard of proof first. It is plain from the above extracts from the Judgment that the Tribunal either adopted the civil standard of proof or an unspecified standard exceeding the civil standard of proof on a balance of probabilities. The Applicant says the Tribunal was in error because the applicable standard was the criminal standard of proof (i.e. proof beyond reasonable doubt). The Applicant argues that disciplinary proceedings are not necessarily civil in nature where the events giving rise to the charges would also found serious criminal charges, and therefore require a higher standard of proof. In the present case, a contravention of regulation 3(2)(j) would also amount to the commission of a criminal offence under section 64(b) of the Police Force Ordinance. The section says :

"Any person who knowingly misleads any police officer by giving false information or by making false statements or accusations shall be guilty of an offence and shall be liable on summary conviction to a fine of $1,000.00 and to imprisonment for 6 months."

28. Furthermore, the Applicant says that the disciplinary offence in question is a serious one as is evidenced by the fact that after conviction, he was issued a "warning for dismissal (general), valid for 3 years" in addition to the penalty of "reduction in rank".

29. For all these reasons, the Applicant argues that the applicable standard was the criminal standard and therefore once again, the Tribunal fell into error.

30. Very briefly, in my judgment, the position is as follows:

(1) In disciplinary charges, where the events giving rise to the charges would also found serious criminal charges, it may be appropriate that the onus and standard of proof should be those applicable to a criminal trial: McAllister v General Medical Council [1993] AC 380 (PC); Tse Lo Hong v Attorney General [1995] 3 HKC 428, 442E (per Bokhary JA) and 444B (per Godfrey JA).

(2) However, where the events giving rise to the charges would not also found serious criminal charges, it is neither necessary nor desirable to adopt the criminal standard of proof even though a serious disciplinary charge is involved: Ibid.

(3) Where the criminal standard of proof is inapplicable, there is no question of adopting a sliding scale. What should be applied instead as the standard of proof would be the civil standard of proof, i.e. proof on a preponderance of probabilities, regardless of the seriousness of the disciplinary charge. However, since the seriousness of an allegation is usually inversely proportional to the inherent probability of the act having been committed, the correct approach in applying the civil standard of proof is that the more inherently improbable the act in question, the more compelling will be the evidence needed to satisfy the court on a preponderance of probabilities: Re H(Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586 to 587; Aktieselskabet Dansk Skibsfinansiering ("ADS") v. Brothers (2000) 3 HKCFAR 70, 77J - 79D.

31. To the above, I need add a few footnotes. Phipson suggests at para. 4-37 that in the light of Re H, in future, the balance of probabilities will be applied in absence of express rules providing for a criminal standard. Phipson does not elaborate on its suggestion but apparently its suggestion is based on the understanding that the previous requirement of applying the criminal standard of proof to disciplinary charges also founding serious criminal charges was based on the underlying rationale that the standard of proof must be commensurate with the gravity of the charge; and since this latter preposition has now been clarified by Re H as meaning no more than that the more inherently improbable the act in question, the more compelling will be the evidence needed to satisfy the court on a preponderance of probability, it is no longer necessary or indeed correct (strictly speaking) to talk about the application of the criminal standard in a disciplinary charge involving also a serious criminal offence. This may well be the correct analysis, but so far as this case is concerned, first, this question of the appropriate standard of proof does not require a definite determination by me as I have already found in favour of the Applicant on another point. Secondly, Tse Lo Hong is a Court of Appeal authority binding on me and notwithstanding the decision of the House of Lords in Re H and its possible implications, it is not appropriate for me to depart from the Court of Appeal authority and seek to develop or redefine the law on first principles.

32. I need also mention that I disagree with counsel's suggestion that the Court of Appeal decision in Tse Lo Hong no longer represents good law following the Court of Final Appeal decisions in ADS and Fu Kin Chi v Secretary for Justice [1998] 1 HKLRD 271. ADS was a civil case involving serious allegations of misconduct including fraud. The Court of Final Appeal discussed Re H as well as the previous case law, and clarified the standard of proof to be adopted by a civil court in respect of serious allegations of misconduct. It did not concern directly a disciplinary charge or the applicable standard of proof.

33. As for Fu Kin Chi, it did involve disciplinary proceedings against a police officer but in issue was whether the officer's common law privilege against self-incrimination could be taken away by legislation in respect of the disciplinary proceedings. It was in that context that the Court of Final Appeal drew a distinction between disciplinary proceedings under the Police Force Ordinance and its subsidiary regulations and a criminal charge involving the same facts, and concluded that the privilege could legitimately be removed by legislation in relation to the disciplinary proceedings. The case was not concerned with the standard of proof in such proceedings and the distinction drawn did not relate to the applicable standard of proof in such proceedings.

34. I should also add that in X v United Kingdom App. No. 8496/97, 21 DR 168, a decision of the European Commission in 1980, involving disciplinary proceedings against a police officer in the United Kingdom, the Commission came to the conclusion that the proceedings were not criminal in nature by considering three criteria, namely, whether the provisions defining the offence charged belong according to the legal system of the respondent state to criminal law, disciplinary or both concurrently; the very nature of the offence; and the degree of severity of the penalty that the person concerned risks incurring. On the facts of that case, it should be noted that the disciplinary charge did not involve any criminal offence at all.

35. It is quite apparent that the criteria adopted by the European Commission are not exactly the same as that mentioned by the Privy Council in McAllister which was followed by the Court of Appeal in Tse Lo Hong. Both latter decisions focused on whether the disciplinary charge would also involve a serious criminal offence, but neither case said that this should be the sole criterion. In my judgment, there is scope for taking into account the degree of severity of the penalty in determining whether the criminal standard of proof should be applied, although as pointed out by the Court of Appeal that is not by itself a sufficient reason for applying the criminal standard. That said, I am further of the view that whether the disciplinary charge would also involve a serious criminal offence must remain the most important criterion.

36. Turning to the facts in the present case, I accept that the facts involved in the disciplinary charge could also found an offence under section 64(b) of the Police Force Ordinance referred to above. As to whether this would be a "serious" criminal offence, I note that in Tse Lo Hong, the disciplinary charge there could also give rise to a criminal charge of indecent assault and the Court of Appeal concluded that that was a serious criminal offence and therefore, the criminal standard of proof should be applied in the disciplinary proceedings. It is much more doubtful whether in the present case an offence under section 64(b) of the Ordinance, the punishment for which would involve a maximum fine of $1,000.00 and imprisonment of 6 months, constitutes a "serious" criminal offence for the present purpose.

37. Yet if one takes into account also the degree of severity of the potential punishment, and looks at the matter in the round, for my part, I would tend to say that on balance this is a case, albeit a marginal one, for the application of the criminal standard of proof.

38. But as I say, I need not express any definite view on this point given my conclusion on the burden of proof point.

False in a material particular

39. Lastly, I come to this ground of complaint, i.e. that what was said by the Applicant was not false "in a material particular". Essentially the Applicant argues as follows: The Applicant lied about his prior acquaintance with Li; but that lie in the context of his making a report of blackmail to the Police Force, and in the course of his giving a statement to the police, was not a "material" falsity. This is because whether he was previously acquainted with Li would not materially influence the police in accepting or rejecting his complaint of blackmail against Li, and whether he had met and known Li before a particular date was quite immaterial to any of the essential ingredients of the offence of blackmail that he was complaining about. It is argued that the word "material" must be controlled by the "discharge by the police force of any of its duties or functions" in taking this statement from the Applicant during which the Applicant told the lie.

40. I do not agree with this submission for a number of reasons. It is common ground that the duties or functions of the Police Force include the detection of crimes and offences and apprehension of offenders: section 10(b) and (d) of the Police Force Ordinance. Put at the lowest, the information relating to whether the Applicant was previously acquainted with Li was material to the discharge of the Police Force's duty or function in the apprehension of offenders. In other words, if for instance, the Applicant had known Li previously, what he knew about Li such as his address, his employment and other personal particulars of his, would be quite relevant and material to the police's apprehension of Li in relation to the alleged offence of blackmail, if the police should conclude that a prima facie case was made out by the Applicant against Li.

41. Moreover, in relation to the Police Force's function or duty in the detection of crimes, i.e. the detection of an alleged offence of blackmail in the present case, whether the Applicant was previously acquainted with Li would be a piece of material information to the police. So for instance, very often whether words spoken by an alleged offender amounted to words of threat or blackmail, or how those words were understood or intended to be understood would depend on the relationship between the alleged offender and the alleged victim. Was the alleged offender merely playing a practical joke on the supposed victim? Was he serious? How were certain words spoken by the alleged offender to be understood? All this, depending on the facts, could be related to whether the two persons were acquainted with each other and their degree of acquaintance and so forth. In this regard, in my judgment, the word "material" simply means "relevant".

42. Finally, I think it is at least arguable that the contention of Mr Kwok in his written submission is correct, i.e. that in considering whether this statement was false in a material particular, one need only focus on the very statement containing the lie in question, rather than the whole witness statement taken by the police from the Applicant. In other words, if the Applicant told a lie to the police officer who was taking his statement, then regardless of whether the lie was material to the subject matter of complaint (i.e. blackmail) or the subject matter of his witness statement, that would suffice for the purpose of a charge under regulation 3(2)(j). In other words, under the regulation any lie would do. (C.f. Yu Yau-tak v Commissioner of Police HCAL 67/1997, Findlay J, 4/11/97, relied on by the Applicant, which turns more on a pleading point than a proper construction of regulation 3(2)(j).) The statement in question was simply that the Applicant had never seen or known Li prior to the ICAC video-interview date. Since the Applicant had in fact met and known Li prior to that date, the statement was false in a material particular.

43. In this regard, one must bear in mind that one is concerned with a disciplinary offence of an inspector or junior police officer. I see nothing wrong with counsel's construction of the regulation, making it a disciplinary offence for such an inspector or junior police officer to tell a lie, either "in the course of his duty" as an inspector or police officer, or "in connexion with the discharge by the police force of any of its duties or functions". As a member of a disciplinary force, a very high standard of integrity and discipline is expected from him. If, in the course of his own duty as a police officer or in the course of his colleagues' discharge of duty, he (with the appropriate mental element) told a lie or made a statement which was false in a material particular by reference to the statement itself, I do not see why he should not be disciplined for his lying.

44. Moreover, in this regard, I note that section 64(b) of the principal Ordinance which applies not only to police officers but to everyone in the society actually makes it a criminal offence for anybody to knowingly mislead a police officer "by giving false information or making false statements or accusations". There is no requirement under this section or offence that the false information, statement or accusation must be false in a "material particular" vis-à-vis any particular subject.

45. If the Applicant's argument were correct, it would mean, borrowing the facts in the present case, that the Applicant had committed an offence under section 64(b) of the Ordinance when he misled the police officer who took his statement about his complaint of blackmail by giving false information relating to his previous acquaintance with Li; yet he was not guilty of any disciplinary offence under the Regulations including regulation 3(2)(j). I do not think that it is intended that the standard applicable to a police officer should be lower than that applicable to the public in general; I do not think as a matter of good statutory construction that this result is warranted.

46. So for all these reasons, if it had been necessary for me to decide the point, I would have concluded that this ground of challenge is invalid.

Outcome

47. It is accepted by Mr Kwok on behalf of the Respondent that the consequential decisions flowing from the primary decision of the Tribunal would stand or fall depending on whether the Applicant is able to succeed in his challenge of the Tribunal's decision.

48. In the circumstances, I make an order in terms of the relief sought in paragraphs (1) to (4) of the Notice of Motion dated 5 March 2002, essentially quashing the decision of the Tribunal and all other consequential decisions, there being no dispute relating to the extension of time to allow the Applicant to bring this application under O. 53, r. 4(1) in respect of three of the decisions involved.

49. As regards costs, they should follow the event. I make an order that the Respondent pay to the Applicant his costs of these proceedings to be taxed if not agreed. With no disrespect to counsel, I do not see fit to grant a certificate for two counsel.