RE LAM KIN CHUNG

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is an application for judicial review of Police disciplinary proceedings resulting in the dismissal of the applicant from the Royal Hong Kong Police Force, in which he was serving as a constable. He seeks an order of certiorari to quash the relevant orders.

2. The matter arose in the following way. On 21st March 1989 the applicant was assaulted. Shortly thereafter, on 4th April 1989 he was issued a police form of attendance at a magistrate's court, where two persons were to be prosecuted for wounding him. He duly attended on 16th May 1989. The accused were acquitted apparently because they could not be identified.

3. On 11th June 1989 a statement was taken from him about his dress on the occasion he gave evidence at the magistrate's court on 16th May. On 28th June he gave a second statement to Sgt 2169 Ng, this time confirming that two exhibits, a T shirt and a pair of black trousers, were the garments he had worn when he gave evidence.

4. On 18th October 1989 discipinary or defaulter proceedings, to use the Police expression, were commenced against him in respect of the following two charges:

Three witnesses gave evidence for the prosecution, and in addition the two statements made by the applicant to Sgt. 2167 Ng were put in evidence by agreement. The applicant gave evidence and called four witnesses i.e. his brother and three police constables. After some adjournments the hearing was completed by Mr. K.S. Pearce, the Adjudicating Officer on 27th October 1989. On the 28th October gave the following judgment:

5. Thereafter having heard what was submitted in mitigation, he concluded that the applicant's previous disciplinary record warranted the matter being referred to a Senior Officer. Accordingly it came before Senior Officer Mr. Halliday who awarded dismissal on 7th November 1989. The Applicant then appealed to the Commissioner of Police who dismissed the appeal on 12th January 1990.

6. Mr. Bernard Yuen for the applicant relies upon the following four grounds :

7. First, that the Police General Orders did not apply to the Applicant since he appeared before the magistrate in his private capacity as the victim of an assault and not as a police officer.

8. Second that the Adjudicating Officer arrived at his decision that the Applicant was guilty by comparing the credibility and discrepancies of the prosecution witnesses' and defence witnesses' evidence and not upon the charges being established beyond reasonable doubt.

9. Third, that there is no evidence to show what clothing the Applicant wore on 16th way.

10. And fourth, that there is no objective criteria to enable a tribunal to decide whether the Applicant's clothing was in breach of the Police General Orders alleged to have been breached i.e. P.G.O. 06-02 31.

11. Before I proceed to consider these four grounds, in deference to the submissions of Mr. William Marshall Q.C. who appears for the Respondent, I remind myself that given the provisions of the Police Ordinance and more particularly those of the Police (Disciplinary) Regulations, the disciplinary proceedings against the Applicant had to be conducted by police officers and not by lawyers. I do not overlook the following words of Lord Loreburn quoted by Lord Justice Geoffrey Lane in R. v. Hull Prison Board of Visitors, ex parte St. Germain & others (No.2) [1979] 3AER 545; 550:

"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be setteld by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."

Also of assistance is the following passage from the judgment of Megaw L.J. in R. V. Hull Prison Board of Visitors, ex parte St. Germain and others [1979] 1 All ER 701, 713:

"I referred early in this judgment to the submission of counsel that proceedings of boards of visitors in respect of offences against discipline are 'subject to judicial review, at any rate where the allegations are of breaches of the procedure laid down in the Prison Rules and/or rules of fairness and natural justice'. I think that is too widely stated. It is certainly not any breach of any procedural rule which would justify or require interference by the courts Such interference, in my judgment, would only be required, and would only be justified, if there were some failure to act fairly, having regard to all relevant circumstances, and such unfairness could reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice which was capable of remedy."

 

12. Finally I remind myself of what Lord Justice Diplock (as he then was) said in R v. Deputy Industrial Injuries Commissioner, Ex parte Moore, [1965], 1 Q.B., 456, at 488:

13. Mr. Marshall is concerned that the procedures and requirements in the Police Ordinance and the Regulations thereunder and their administrative nature as. oppose to the trial procedures of the courts should not be overlooked. He points to the large number of disciplinary proceedings in the four Disciplines Services in Hong Kong which in 1985 alone totalled. some 1500. I need only say that the nature of disciplinary proceedings is hod clear from the foregoing and indeed other authority. They accord due recognition to the administrative nature of the task entrusted by statute to the authorities concerned.

14. Turning then to Mr. Yuen's first ground, the relevant provisions of the Police General Orders are as follows:

15. Understandably, it is not suggested on the Respondent's behalf that PGO 15-01, 1-6 apply. On the contrary it is submitted, although not in precisely the following words, that not withstanding the common meaning of "deport" in PGO 6.02, 31, in its present context it embraces the wearing of clothing in circumstances not expressly provided by PGO 15.02 where the clothing is of such a nature as to constitute conduct and bearing of a sort not likely to reflect credit on the Force. Although no submissions were made on the point, it seems to me that the Police General Orders are to be construed in accordance with the usual principles applied to the construction of deeds and statutes. As far as I can see PGO 15-02 does not purport to deal with dress exhaustively; accordingly there is room for PGO 6-02, 31 to apply in residual circumstances such as this. Nevertheless I find the point of some difficulty and obscurity, and since it is not necessary to do so I propose neither to decide it nor to found my decision upon the application of it to the Applicant. It may, however, be thought worthy of clarification on the next occasion the Orders are being amended.

16. I turn then to the Applicant's second ground, which turns upon the following massage in the Adjudicating Officer's judgment :

"The Tribunal has therefore to decide if discrepancies of a particular witness or witnesses, be it prosecution or defence, are sufficient enough to justify a finding of guilty or order an acquittal."

 

17. On the authority of Chan Wing-Yuen (1977) HKLR 186 and R. v. Chan Sek Hung and another Mag. Cr. App. No.1795 of 1988 (unreported) Mr. Yuen submits, that in deciding whether a charge has been proved beyond reasonable doubt it is wrong to balance the prosecution and defence stories; the prosecution must stand on its own feet and should not be accepted merely because the defence story has been rejected. With respect, although said in relation to criminal proceedings, that seems to me to be equally applicable to the subject defaulter proceedings. However, despite that somewhat infelicitously expressed passage in the judgment and regrettably not the only one, it does not seem to me that was what the Adjudicating Officer did. I think it must be inferred from his two immediately following paragraphs that he did find the prosecution version proved beyond reasonable doubt.

18. As to the Applicant's third ground, that there is no evidence to show what clothing the Applicant wore, it must be said that from the careful record of the proceedings, it is clear that the prosecution evidence of what the Applicant was wearing when he gave evidence is far from consistent. It was of course open to and quite reasonable for the Adjudicating Officer to believe one or other of the prosecution witnesses and likewise reject the evidence of the defence witnesses particularly in the light of its substance and circumstances, which I do not propose to detail. But as can be seen, he simply came to the general conclusion "that the events of 16th may 1989 did occur and substantially in the way as described in the evidence by the prosecution". It is particularly in this context that the lack of the most material particulars in the so-called "Particulars" of Charge (A) can be seen i.e. what precisely it was alleged the Applicant was wearing. So while the Adjudicating Officer could reasonably nave come to a conclusion as to what the Applicant was wearing e.g. by accepting the first prosecution witness's evidence of dart coloured trousers, short in length, Jean like of thick woollen material, and of prosecution witnesses 2 and 3 as to the T shirt, (and rejecting their other evidence) it is not possible to infer Prom the judgment that he did so. Indeed it seems that he did not think it necessary to do so. I shall return to that point.

19. Proceeding to the Applicant's fourth and final ground, i.e. that no objective criteria is provided as to what clothing meets the requirements of PGO 6.02-31 and what does not, I will say at once that I find no merit on this ground. The standard must be that Police Officers acting as adjudicating officers, and brining with them their experience and knowledge of inter alia the requirements of the Force, consider appropriate. In that regard I reject also Mr. Yuen's contention that the prosecution witnesses should not have been allowed to give evidence of their opinions that the Applicant was not properly dressed for attendance at court. As already shown, the technical rules of evidence do not apply and the opinions of the prosecution witnesses who were serving police officers tend logically to have some probative force i.e. in indicating that the Applicant's clothing was below the appropriate standard (see ex parte Moore).

20. Reverting then to the general thrust of the Applicant's four grounds and of the ancillary points made by Mr. Yuen, the crucial ingredient of Charge (A) is clearly the likelihood that the Applicant's clothing would reflect discredit or would not reflect credit on the Force. I have referred to the absence of particulars in the charge. However from the Applicant's statements to Sgt 2169 Ng and the record of the disciplinary proceedings it is sufficiently clear that the Applicant and indeed the Adjudicating Officer were well aware of that crucial ingredient. The latter referred to it in the second and third sentences of the second paragraph of his judgment. In the ordinary way he could therefore have been presumed to have satisfied himself upon it. Regrettably however, he seems to have concerned himself unduly with weighing the discrepancies between the prosecution and defence witnesses. That, as I have conluded, although not without some unease, is not fatal to his judgment. But nowhere is there any clear indication that he consciously satisfied himself as to the crucial ingredient I have mentioned i.e. that the clothing that the Applicant was wearing was such as to constitute conduct that failed to reflect credit on the Force. On the contrary he seems not to have appreciated the necessity of the clothing being identified by the evidence. If he simply accepted the evidence of the prosecution witnesses that in their opinion for court attendance the Applicant was not dressed properly, without himself considering the essential ingredient, then his finding cannot stand. It seems to me that his judgment not merely leaves that possibility open out points to it as what actually occurred as a result of the way in which he, the Adjudicating Officer, approached his task i.e. in weighing the discrepancies on both sides. It follows that in my judgment the proceedings and orders in respect of Charge A must be called up and quashed.

21. I proceed to Charge B. The submissions on both sides, particularly those on behalf of the Applicant, were concerned more with Charge A and rather less with Charge B. However even it were established that the Plaintiff's clothing failed to reflect credit, it would not follow that the charge that he made a false statement that he had worn the shirt and trousers exhibited must fail. On the contrary once the evidence of the defence is rejected and that of the prosecution accepted i.e. that the shirt any trousers exhibited, which the Applicant claimed in his statement to have worn were in fact not worn by the Applicant when he attended the magistrate's court, Charge B is fully proved. The precise description of what he wore before the magistrate would not be needed. The lack of consistency in the prosecution evidence of what the Applicant's clothing was therefore does not avail the Applicant. Nor does Mr. Yuen's submission that the conviction is unsafe (which I do not necessarily accept). Rather the test is whether an Adjudicating Officer properly directed could not reasonably have reached the conclusion that the Applicant was guilty under Charge B. In my judgment, once the prosecution evidence was accepted, not only was the guilt of the Applicant a reasonable conclusion, it was an inescapable conclusion. I have not been shown any good reason why the prosecution witnesses could not reasonably be believed and why defaulter proceedings in respect of the conviction on Charge B should be interfered with. There is therefore no reason to interfere with the conviction on Charge B.

22. However a single award of dismissal was made in respect of both charges, and cannot stand as such. It will in any event be quashed in the context of Charge A. I accept Mr. Marshall's view that the proper order in these circumstances is therefore to remit the matter to a Senior Officer to make an appropriate aware. That is what, even if not necessarily required, is nonetheless clearly the most appropriate. Moreover I do not see it as a matter of formality. With one of the two charges removed from consideration, notwithstanding that it is the lesser, clearly the penalty imposed must be reassessed. That is all the more appropriate where the penalty set aside was inevitably accompanied, as was fully appreciates by the Senior Police Officer, by the loss of all retiring benefits in relation to some 10 years service. The latter is claimed on the Applicant's behalf to be of the order of $100,000 worth. Even if only half of that, it is prima facie a very severe punishment bearing in mind the nature and circumstances of the offence and the primary punishment of dismissal.

23. Moreover it may be considered that an officer who is thought to be miscast as a Police Officer and an increasing liability should no longer be retained in the Force but not be deprived altogether of his pension or gratuity having been allowed to remain in the Force for the very substantial period of 10 years, but that of course is a matter for the Senior Officer and the Commissioner.

24. Before I leave the matter it is necessary for me to record that Counsel very properly agreed that the relevant standard of proof to be regarded as applicable was that beyond reasonable doubt. This avoided unnecessary involvement in the legal position and the effect of Lanford v. General Council [1989] 2 All E.R.921 which is in any case to be reviewed by the Court of Appeal in the context of earlier proceedings. Moreover, although the civil standard of proof, particularly, is recognised as adapting itself to the gravity of the issues (e.g. see Hornal v. Neuburger [1957] 1QB 247), in the present case Charge B, in my view, is clearly a serious charge and likewise Charge A, at any rate in the light of the penalty it attracted.

25. Accordingly the orders made in the defaulter proceedings, other than that convicting the Applicant on Charge B, are brought up and quashed, and the matter is remitted to a Senior Officer for an award to be made on the conviction on Charge B.

26. I will now hear Counsel on costs.