CLARENCE CHAN v. COMMISSIONER OF POLICE

FAMV No. 15 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2010 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMP NO. 2824 OF 2004)

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Between:

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1.  This applicant, then a police officer, was adjudicated bankrupt in late 2001.  That adjudication was followed by disciplinary proceedings against him for financial imprudence leading to serious financial embarrassment which impaired his operational efficiency.  Acting pursuant to subsidiary legislation which barred legal representation, the disciplinary tribunal refused to permit him to be legally represented.  He was found guilty.  And on 1 June 2004 he was compulsorily retired from the police force.

2.  He sought leave to apply for judicial review of the finding of guilt made against him in the disciplinary proceedings.  He put forward five grounds.  Dealing with the matter on the papers, the High Court granted him leave to apply on two grounds and directed an oral hearing in regard to the other three grounds.  Following that hearing, leave to apply on those three grounds was refused.  That refusal was affirmed by the Court of Appeal on 29 November 2004.  The Court of Appeal, rightly in our view, entertained the appeal on the merits.  An applicant who has been granted leave to apply for judicial review on one or more but not all of the grounds that he puts forward may appeal by treating such grant as a refusal.  We reject the suggestion to the contrary which appears to have been made by another division of the Court of Appeal in Chiu Kin Ho v. Commissioner of Police, CACV No.374 of 2004, 2 March 2005.

3.  On 26 March 2009, more than 4 years after the Court of Appeal had given judgment in the present case on 29 November 2004, the Court of Final Appeal handed down, in the case of Lam Siu Po v. Commissioner of Police (2009) 12 HKCFAR 237, a judgment which vindicated two of the points of law covered by the grounds which the applicant was not given leave to advance by way of judicial review.  Of these points of law, the first is to the effect that the bar to legal representation at disciplinary proceedings is inconsistent with the right to a fair hearing guaranteed by art.10 of the Bill of Rights, so that the question of whether such representation is to be permitted is a matter of discretion.  And the second point of law is to the effect that impairment of operational efficiency is not simply to be presumed from serious financial embarrassment but must instead be proved.  Placing reliance on the judgment in Lam’s case as one which corrected material misapprehensions of the relevant law, the applicant took out an application to the Court of Appeal for leave to appeal out of time to the Court of Final Appeal.  That application was taken out on 10 November 2009, which is about 7½ months after judgment had been handed down in Lam’s case.  On 19 May this year, the Court of Appeal refused leave to appeal out of time to the Court of Final Appeal.  And the applicant now asks us to grant him such leave.

4.  In asking us to grant him leave to appeal out of time to the Court of Final Appeal, he relies on both limbs of s.22(1)(b) of the Court’s statute.  We say at once that we can see no basis on which it would be appropriate to grant leave under the “or otherwise” limb in this case if this is not an appropriate case for leave under the “question of law” limb.

5.  So we turn now to the questions of law which are put forward on the applicant’s behalf as ones which merit the Court of Final Appeal’s attention. As set out in the Amended Notice of Application, these questions are :

“(1) whether finality as stated in the principle for extension of time in [HKSAR v. Hung Chan-wa (2006) 9 HKCFAR 614] is engaged in extending time in an application for judicial review which involves the constitutionality or legality of a statute of great public interest and importance;

(2) whether, in the alternative, finality is engaged before the substantive hearing of the application for judicial review;

(3) whether under [Order 53, r.3 of the Rules of High Court, the High Court] has jurisdiction to exclude part of the grounds stated in the Statement of the Notice of Application (Form 86).”

In the course of the argument, Ms Gladys Li SC for the applicant said that all five grounds put forward by the applicant were inextricably inter-linked so that it was an erroneous exercise of discretion to grant leave on only some of those grounds.  We see no basis for allowing this argument on discretion to proceed to the Court of Final Appeal.  So we turn now to consider the three questions of law.

6.  As to the first two questions, we see no reasonable argument in favour of restricting the Hung Chan-wa principle in either of the ways suggested on the applicant’s behalf.  That principle is of general application.  And as for the third question, it is in our view clear beyond reasonable argument to the contrary that leave may be granted to apply for judicial review on one or more grounds while refusing such leave on another or other grounds.  The wording of the rule permits it, and the purpose of the rule demands it.  Otherwise the filter mechanism constituted by the rule would not work as it should and as it does.  What is left?  Simply this.

7.  It is in the nature of our legal system that the view of the law on which a litigant lost may be overruled in another case decided after the time for him to appeal has expired.  Finality in litigation being so important, such overruling cannot of itself justify an extension of time for appealing.  There can of course be exceptional circumstances that would justify such an extension.  But such circumstances are so exceptional that they would very rarely arise.

8.  When refusing the applicant leave to appeal out of time from their decision, the Court of Appeal said that “[t]he circumstances in the present case are not exceptional much less so exceptional that leave to appeal out of time should be granted”.

9.  In the present case, the Court of Appeal made no pronouncement on the question of whether impairment of operational efficiency is simply to be presumed from serious financial embarrassment or must instead be proved.  They dealt with the issue of such impairment by declaring themselves satisfied that the Commissioner of Police had presented sufficient evidence to prove it.  But that is not say that the state of the evidence on that issue might not have been materially more favourable, or at least materially less unfavourable, to the applicant if he had been legally represented at the disciplinary proceedings.  And he had been erroneously deprived of an exercise of discretion which might have resulted in his being legally represented thereat.

10.  So this application for an extension of time for appealing cannot simply be brushed aside as pointless.  But that said, the applicant still faces the obstacle of having to show that the circumstances are so exceptional as to justify the extension which he seeks.  Such circumstances are not, as Ms Li contended, supplied merely by the fact that the fairness of disciplinary proceedings is involved.  And all things considered, we are of the view that the applicant has not overcome the obstacle confronting him.  Accordingly, leave to appeal out of time is – not without sympathy for the applicant and despite the able arguments prepared and presented on his behalf – refused.

[Discussion on costs]

11.  There will be no order as to costs as between the parties.  We order legal aid taxation of the applicant’s own costs.  And we thank counsel for their assistance.