CHIU HOI PO v. COMMISSIONER OF POLICE

CACV 200/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 200 OF 2006

(On Appeal from HCAL No.105 of 2003)

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JUDGMENT

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Hon. Yuen JA:

1.  This is an appeal by Chiu Hoi Po from a judgment of Chung J. given on 26 April 2006 refusing his application for judicial review against the Commissioner of Police (‘the Commissioner’).

Issues

2.  The following issues arose in the course of the appeal:

(1)	whether Mr Chiu is entitled to run an argument based on Article 10 of the Hong Kong Bill of Rights when it had not been raised below:
(2)	whether a judgment of a two-judge court in an interlocutory appeal is binding on the court of appeal;
(3)	whether on the facts of this case, judicial review should have been ordered as matters had been wrongly taken into account by the adjudicating officer, and also due to disparity between charges, evidence and findings;
(4)	the construction of the word “calculated” in the regulation disciplining officers for conduct calculated to bring the public service into disrepute.

Background

3.  Mr Chiu was a police officer.  Between 1998 and 2001, he was involved in certain incidents which led to disciplinary proceedings being taken against him. 

4.  In disciplinary proceeding KT DR 7/99, he was convicted of one charge of ‘Conduct calculated to bring the public service into disrepute’, contrary to Regulation 3(2)(m) of the Police (Discipline) Regulations Cap. 232.  The eventual punishment was a Severe Reprimand and a Dismissal Warning valid for 12 months.

5.  In disciplinary proceeding SSPO DR 10/02, he was convicted of two charges of ‘Conduct calculated to bring the public service into disrepute’.  In respect of Charge (A), he was given a Severe Reprimand.  In respect of Charge (B), he was given a Severe Reprimand and an order for Compulsory Retirement with deferred benefits.  After a review by the Force Disciplinary Officer and an appeal by Mr Chiu to the Commissioner, he was compulsorily retired with effect from 29 August 2003.

6.  Both sets of disciplinary proceedings were conducted pursuant to the procedure set out in Police (Discipline) Regulations, of which Regulations 9(11) and (12) provide:

“	(11)	A defaulter may be represented by –
		(a)	an inspector or other junior police officer of his choice; or
		(b)	any other police officer who is qualified as a barrister or solicitor,
		who may conduct the defence on his behalf.
	(12)	Subject to paragraph (11), no barrister or solicitor may appear on behalf of the defaulter”.

Mr Chiu conducted his defence in person.  The prosecuting officers and the adjudicating officers were also not legally qualified.

Legal proceedings

7.  On 17 October 2003 Mr Chiu then acting in person filed a Form 86A for leave to apply for judicial review in respect of both sets of proceedings.  On 21 October 2003 he was given leave.

Mr Chiu’s case before Chung J

8.  The application for judicial review was heard by Chung J. in December 2005.  Mr Chiu was represented by counsel Mr Stephen Tang.  The judge gave Mr Chiu leave to amend his application to argue in effect (§16):

(1)	that his conduct was not such that disciplinary proceedings (and the resultant convictions) could properly be founded;
(2)	that Regulations 9(11) and (12) were unconstitutional as being inconsistent with Article 35 of the Basic Law which provides (where material):
	“	35.	Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies”.  (Emphasis added).

Chung J reserved judgment. 

9.  It would be noted that the reference to legal representation under Article 35 BL is predicated upon the relevant proceeding being in ‘the courts’.   

Reliance on Court of Appeal judgment in New World

10.  At the time of the hearing before Chung J in December 2005, Mr Chiu had relied on the judgment of this court (Cheung and Yeung JJA and Reyes J) in May 2005 in New World Development Co Ltd v Stock Exchange of Hong Kong Ltd [2005] 2 HKLRD 612 which held that the Disciplinary Committee of the Stock Exchange was a ‘court’ and thus within the scope of Article 35 BL.   

Court of Final Appeal judgment in New World

11.  However on 6 April 2006 the Court of Final Appeal gave judgment in New World reversing the Court of Appeal.  It held that when Article 35 BL referred to ‘the courts’, it meant courts of law entrusted with the exercise of judicial power, and not tribunals which are not courts of law  (see in particular §50 - 51).

Chung J’s judgment

12.  Twenty days after the Court of Final Appeal’s judgment in New World, Chung J. handed down judgment in this case.  Following the Court of Final Appeal, he held that Article 35 BL did not apply to the Police Force’s disciplinary hearings as they were not conducted in a court of law.  So Mr Chiu’s argument under Article 35 BL fell at the first hurdle.  (I refer to it as the ‘first hurdle’ because the Court of Final Appeal also held that even if it had found that the Disciplinary Committee was a ‘court’ for the purpose of Article 35 BL, there was the further issue whether restricting legal representation was proportionate in the circumstances: §91).

13.  At the hearing before Chung J, Mr Chiu had not advanced any arguments under the common law of procedural unfairness due to lack of legal representation.  (Insofar as it is now suggested in para. 11 of Mr Chiu’s draft amendment to the Supplementary Notice of Appeal that this had been argued, I do not agree.  Paragraph 36 of the Skeleton Submission before Chung J, on which Mr Chiu now relies, does not support this argument).  In any event in his judgment, Chung J also mentioned that had procedural unfairness been argued, he would still have found no merit in the argument, referring to his decision in Lam Siu Po v Commissioner of Police HCAL 7/2003, 23 August 2005, unrep. (§33 - §37).

Mr Chiu’s appeal

14.  On 6 June 2006 Mr Chiu served a notice of appeal containing a ground of appeal that Regulations 9(11) and (12) contravened Article 10 of the Hong Kong Bill of Rights.  (A supplementary notice of appeal was also served on 11 December 2006). 

Argument based on Article 10 Bill of Rights

15.  Article 10 BOR provides:

“Equality before courts and right

to fair and public hearing

All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.  The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public), or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children”.  (Emphasis added).

16.  On appeal, counsel for Mr Chiu (who did not appear for him below) sought to argue that Article 10 BOR applied and that Mr Chiu did not have a ‘fair’ hearing as Regulations 9(11) and (12) prohibited him from instructing lawyers other than police officers at the hearing. 

Issue (1) Whether Mr Chiu is entitled to run an argument based on Article 10 of the Hong Kong Bill of Rights when it had not been raised below                                                 

‘State of the evidence’ bar

17.  The first problem Mr Chiu faces is that the argument based on Article 10 BOR had not been run before the judge (as his counsel accepts).  Leading counsel for the Commissioner says that the appellant should not be permitted to raise this new point for the first time on appeal. 

18.  It is a well-established principle that where a party seeks to raise a new point on appeal, he is barred from doing so unless there was no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the other party if the point had been taken below.  This has been called the ‘state of the evidence’ bar (Flywin Co Ltd v Strong & Associates Ltd [2002] 2 HKLRD 485, §38). 

Argument for Mr Chiu on ‘state of the evidence’ bar

19.  Counsel for Mr Chiu argued that the evidence for the argument based on Article 10 BOR would have been the same as that adduced for the argument based on Article 35 BL.  The ground for his argument was that there were two stages in an Article 35 BL inquiry: the first stage was whether the relevant tribunal qualified as a ‘court’; the second stage was whether it was proportionate to restrict legal representation in the circumstances – this inquiry “mirrors” the inquiry undertaken at common law based on principles of procedural fairness (per Ribeiro PJ in New World §91).  And since Ribeiro PJ also said that “the applicability of the common law principles of fairness makes it unnecessary to embark on a parallel inquiry into the applicability of art. 10 [BOR]" (§94), counsel for Mr Chiu argued that it followed that the inquiry into the issue of fairness is the same, whether it is undertaken under the second stage of Article 35 BL or the common law or Article 10 BOR, and the same evidence would have been adduced.

No evidence on fairness adduced by the Commissioner in this case

20.  I would pause to note that in fact in the present case, the Commissioner did not adduce any evidence on the aspect of fairness.  Mr Chiu’s original Form 86A did not rely on Article 35 BL (nor the common law in respect of procedural fairness).  The affirmation filed on behalf of the Commissioner on 23 December 2003 was made with reference to the contents of Form 86A as it then stood. 

21.  In October 2005 Mr Chiu sought leave to amend his Form 86A to include the argument under Article 35 BL (but not the common law).  Leave to amend was given by Chung J at the hearing in December 2005.  The Commissioner did not seek an adjournment to file additional evidence.  That may or may not have been a tactical decision on the part of the Commissioner’s advisers.  At the time both parties were aware that the New World case was going to be heard by the Court of Final Appeal, where the first issue was whether Article 35 BL applied to tribunals which were not courts of law.  At the time however Mr Chiu had not advanced any arguments on the common law.  If the Commissioner had requested an adjournment, during the period of adjournment Mr Chiu might have sought to add the common law to his arguments.  So the Commissioner obviously took a risk when he decided to proceed with the hearing and not apply for an adjournment, but as events transpired he made the right choice because the Court of Final Appeal’s judgment resulted in Mr Chiu’s case on Article 35 BL falling at the first hurdle.

Argument for the Commissioner on ‘state of the evidence’ bar

22.  On appeal, leading counsel for the Commissioner (whilst disputing that Article 10 BOR applied) says that if the BOR point had been taken below, the Commissioner would have adduced evidence on the issue of equality of arms in the disciplinary proceedings.  Under the present regime the prosecuting officer and the adjudicating officer were – like Mr Chiu – not legally qualified.  If Mr Chiu were to have the right to instruct lawyers at the hearing, there would be serious ramifications as the Police Force would also then need to instruct lawyers to prosecute the proceedings and to advise the adjudicating officer (and perhaps also the officers involved in further stages of the disciplinary process). 

23.  Leading counsel for the Commissioner says Chung J. would then have had to consider “amongst other matters, the practical consequences of allowing legal representation in disciplinary proceedings against junior police officers, e.g. the nature of the charges and the issues normally dealt with by the tribunal, the number of cases per year, the availability of lawyers and the costs of appointing lawyers to act as prosecuting officers and as the tribunal or chairman of the tribunal, the need to deal with lawyers’ letters on an on-going basis, the likely increase in costs and length of a more formal hearing, etc”.

24.  Accordingly, it was argued on behalf of the Commissioner that it would be wrong for this court to allow Mr Chiu to raise the Article 10 BOR argument now, when the Commissioner has not filed any such evidence relating to fairness. 

Discussion

25.  “For article 10, in order to decide whether the right to a fair hearing has been infringed by reason of the denial of legal representation, by the nature of things, the facts and particular circumstances in an individual case must be closely looked at.”  I would echo with respect those words of A. Cheung J in Chik Po Yee v Vocational Training Council and anor HCAL 59/2005, 6 Dec. 2005, unrep. (§68) where he compared the evidence that would be relevant to an argument based on Article 35 BL with one based on Article 10 BOR.  As he rightly said (§71): 

“

By comparison, in determining whether the same facts (i.e. a denial of legal representation) would infringe the right to a fair hearing conferred under article 10 of the Hong Kong Bill of Rights, the various considerations that have been pointed out by Webster J in [Regina v Secretary of State for the Home Department and anor. ex p Tarrant [1985] 1 QB 251]which are really fact-sensitive factors, as well as any other relevant matters, would have to be looked at”.

26.  In my view, at least some of the matters to which the Commissioner has referred would have been relevant to Chung J’s consideration of whether Mr Chiu had a ‘fair’ hearing without lawyers present.  Clearly there would be repercussions if only one side (be it the Police Force or the ‘defaulter’) had lawyers at the hearing and the other not.  Although Regulations 9(11) and (12) permit representation of ‘defaulters’ by police officers who are barristers or solicitors, the proceedings remain internal hearings of a disciplined service where all participants have knowledge and experience of the procedures and the demands of the force.  Proceedings are less formal and conducted more expeditiously than in a court of law.  That would no longer be the case were lawyers outside the Force to be instructed at the hearing.  On the other hand, it may be argued that where a ‘defaulter’ faces serious consequences such as dismissal or requirement to resign, some factors may be of less weight when considering whether it was ‘fair’ for him to be denied legal representation at the hearing.  Evidence as to the proportion of cases involving possible dismissal or requirement to resign may also be relevant.

27.  Further in my view an inquiry into whether Article 10 BOR applies may also be informed by evidence on the nature of the proceeding in question.  In New World Ribeiro PJ said:

“

94.

... Certain questions arise as to art. 10's scope and applicability to disciplinary proceedings (which, for instance, may or may not be a ‘suit at law”).  But even assuming that it does apply, the parties are agreed that it does not add anything to the common law rules on procedural fairness.  I therefore propose to say nothing more about art. 10”.  (Emphasis added).

28.  There may well be evidence relevant to the issue whether the Police Force’s disciplinary proceedings should be regarded as a ‘suit at law’ for Article 10 BOR to apply.  That evidence would not necessarily be identical to evidence relevant to the issue whether the tribunal was a ‘court’.

29.  Accordingly we did not think the appellant could overcome the state of the evidence bar.  When the court gave that indication, Mr Chiu’s counsel then applied for an adjournment of the appeal and for an order that the Commissioner adduce fresh evidence on the issue during the adjournment.  In the exercise of our discretion we rejected this application which was contrary to the principles founding the state of the evidence bar.  Accordingly we did not permit the appellant to argue the grounds of appeal based on Article 10 BOR.

Issue (2) Whether a judgment of a two-judge court in an interlocutory appeal is binding on the court of appeal

Previous decisions of this court in Chan Kang Chau and Lam Siu Po

30.  In any event I consider that we are bound by the judgment of this court (Yeung JA and Tang J, as he then was) in Chan Kang Chau v Commissioner of Police HCMP 2824/2004, 29 December 2004, unrep. and that of this court (Tang VP, Yeung JA and Yam J) in Lam Siu Po v Commissioner of Police CACV 340/2005, 8  November 2007, unrep. which held that Regulations 9(11) and 9(12) did not contravene Article 10 BOR.

31.  In this respect Mr Chiu sought to undermine the binding effect of those judgments by arguing in respect of Chan, that it was a judgment of a two-judge court and for that reason we are not bound by it; and in respect of Lam, that even though that was a judgment of a three-judge court, that court was in error in thinking that it was bound by the judgment in Chan, so we are not bound by Lam either.

32.  Counsel for Mr Chiu argued

(1)	first, that the judgment of the 2-judge court of appeal in Chan is not binding by reason of the application of Boys v Chaplin [1968] 2 QB 1 (CA);
(2)	in any event, that the 2-judge court of appeal in Chan was only hearing an application for leave to appeal and as such the judgment was not binding, following the reasoning in Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988; and
(3)	finally, that the court of appeal in Lam was therefore per incuriam as it considered itself bound by the judgment in Chan.

Boys v Chaplin

33.  I shall deal first with the Boys v Chaplin argument.  It was held by the English Court of Appeal in that case that the full court of appeal was not precluded by its own rule of stare decisis in respect of final decisions from overruling an interlocutory decision of two judges of the court of appeal which the court considers to be wrong (pp.23E-F, 30B-C, 35F-36C).  Diplock LJ (as he then was) explained why that was so (p.35G):

“

In interlocutory appeals the Court of Appeal does not usually have the benefit of a reasoned judgment by the judge against whose order the appeal is brought.  The statute constituting the Court of Appeal treats interlocutory appeals as being in a lower category than final appeals: the appeal may be heard by two lords justices, ... instead of by three.  In practice lengthy and detailed argument in interlocutory appeals is discouraged. ... These differences in practice in interlocutory and final appeals to the Court of Appeal detract from the weight to be attached to the reasons given for an interlocutory order of the Court of Appeal.  Young’s case ... does not ... preclude this court from declining to follow the ratio decidendi of a previous interlocutory order of the Court of Appeal if this court thinks that the ratio decidendi was wrong. ...” .

Diminution of scope of Boys v Chaplin in England

34.  It appears clear that this ‘rule’ - introduced in 1967 - has been considerably diminished in its application in England in recent years.  In an “admittedly obiter” statement in Langley v North West Water Authority [1991] 1 WLR 697, the Master of the Rolls Lord Donaldson noted that when Boys v Chaplin was decided, two-judge courts received only brief arguments and dealt only with cases of minimal general importance.  That is no longer the case.  Accordingly he said (p.710E-H):

“

The authority of a two-judge court should today be regarded as being the same as that of a three-judge court. ... Any departure from previous decisions of this court is in principle undesirable and should only be considered if the previous decision is manifestly wrong.  Even then it will be necessary to take account of whether the decision purports to be one of general application and whether there is any other way of remedying the error, for example by encouraging an appeal to the House of Lords”.

35.  Although that statement was obiter, the English Court of Appeal embraced it completely in Limb v Union Jack Removals Ltd [1998] 1 WLR 1354 where it held (§34):

“

From these authorities the following five principles can be derived.  (1) Where the court has considered a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a point of law.  (2) A decision of a two-judge Court of Appeal on a substantive appeal (as opposed to an application for leave) has the same authority as a decision of a three-judge or a five-judge Court of Appeal.  (3) The doctrine of per incuriam applies only where another division of the court has reached a decision in ignorance or forgetfulness of a decision binding upon it or of an inconsistent statutory provision, and in either case it must be shown that if the court had had this material in mind it must have reached a contrary decision. (4) The doctrine does not extend to a case where, if different arguments had been placed before the court or if different material had been placed before it, it might have reached a different conclusion.  (5) Any departure from a previous decision of the court is in principle undesirable and should only be considered if the previous decision is manifestly wrong.  Even then it will be necessary to take account of whether the decision purports to be one of general application and whether there is any other way of remedying the error, for example by encouraging an appeal to the House of Lords”.  (Emphasis added).

36.  I note that Limb was decided before the passing of the Access to Justice Act (“AJA”) 1999 which introduced the new Civil Procedure Rules in England. 

37.  Limb was applied by the Court of Appeal after the introduction of the CPR in Cave v Robinson Jarvis & Roff (a firm) [2002] 1 WLR 581, where the court adopted the same reasoning, particularly since the distinction between “interlocutory” appeals and “final” appeals no longer existed after the AJA 1999.

38.  It would therefore appear that in England, the ‘rule’ in Boys v Chaplin has now been severely reduced in scope to apply only in cases where the two-judge court’s decision was one dealing with leave to appeal.  This reduced form of the rule was stated by the Court of Appeal in Arthur JS Hall & Co. v Simmons [2002] 1 AC 615 as follows (§45):

“	Since [a previous decision] was an interlocutory decision of two Lords Justices refusing leave to appeal, the strict doctrine of stare decisis does not apply to it: see Boys v Chaplin [1968] 2 QB 1”.  (Emphasis added).

Position in Hong Kong

39.  In Hong Kong, Boys v Chaplin was first referred to by this court (Pickering JA, McMullin and Leonard JJ) in de Lasala v de Lasala [1977] HKLR 1 but there was no discussion relevant to the issue in this appeal.

Murjani v Bank of India

40.  In Mohan Bhagwandas Murjani v Bank of India [1989] 2 HKLR 358, this court (Kempster and Clough JJA and Mortimer J) discussed Boys v Chaplin in obiter dicta.  In that case, a three-judge court of appeal was hearing an interlocutory appeal.  In the course of argument, counsel for the Bank relied on a decision of a three-judge court (Sir Alan Huggins V-P, Fuad and Kempster JJA) in an earlier interlocutory appeal (Hong Kong Industrial and Commercial Bank v Tommy Wong, Civ. App. No.22 of 1986, unrep.).  As events transpired, the conclusion of the court in Murjani was the same as that in the Wong case so it was not necessary for the court to inquire whether it was bound by the earlier decision in Wong.

41.  However, in obiter dicta, Kempster JA held (p.361G-H):

“

The Hong Kong Court of Appeal has regarded itself as bound by its own decisions at least since Ng Yuen-shiu v Attorney General [1981] HKLR 352 subject to only three exceptions akin to those stated in Young v Bristol Aeroplane Co Ltd [1944] KB 718 namely where it is confronted by  conflicting decisions of its own, where the previous decision cannot stand with a subsequent decision of the Privy Council or of the House of Lords and where the previous decision was given per incuriam”.

It would be noted that no distinctions were made between decisions in final appeals and interlocutory appeals, nor between decisions of two-judge courts and three-judge courts.

42.  As for the argument advanced on behalf of Mr Murjani that although the decision in Wong was not per incuriam, nevertheless it was made in relation to an interlocutory issue (relying on Boys v Chaplin), Kempster JA first noted that the point in question had not been canvassed in the House of Lords (the Hong Kong Court of Appeal not being bound by decisions of the English Court of Appeal).  He did not expressly adopt Boys v Chaplin as one would have expected had he intended to follow that decision.  He did however refer to a passage in Diplock LJ’s judgment which said that Young’s case did not preclude the court of appeal from declining to follow the ratio decidendi of a previous interlocutory order of the Court of Appeal if the court thought that the ratio decidendi was wrong.   Kempster JA then said:

“

Since the principles of Young’s casewere subsequently and unequivocally indorsed by the House of Lords in Davis v Johnson [1979] AC 264 and I do not think that the ratio decidendi of the three judgments given in [Wong]was wrong I hold that we are bound by it and am happy so to do in the interests of legal certainty”.

43.  I do not read that passage as a pronouncement that the Hong Kong Court of Appeal has adopted the Boys v Chaplin ‘rule’.  Reading that passage in the context of the entire judgment (in particular the clearly stated principle reproduced at §41 above), I consider that the court of appeal was simply indicating that even if the Boys v Chaplin ‘rule’ were to be applied, the result would have been the same.

Discussion

44.  The position in Hong Kong is therefore that there is no detailed discussion by this court of the issue whether the judgment of a two-judge court (or a three-judge court for that matter) in interlocutory appeals is or is not binding on the court of appeal.

45.  Approaching this issue afresh but with the advantage of judicial wisdom on the subject articulated in the cases I have summarized earlier, I consider that in present-day Hong Kong there is no reason why the acknowledged benefits of legal certainty conferred by the stare decisis principle should not be allowed to apply to judgments of two-judge courts in interlocutory appeals.  Times have changed since the anxieties expressed by the English Court of Appeal in Boys v Chaplin some forty years ago.  Decisions of two-judge courts are no longer confined to hearings of simple issues without full argument from the parties.  Under modern conditions, there are hardly any cases where a judge at first instance does not provide a reasoned (even if brief) decision.  And on appeal, although lengthy oral arguments are discouraged, counsel’s skeleton submissions are required to be provided well in advance.  Since all judgments are published on-line when they are handed down, there is a constant updating of the database of the decisions of all divisions of the court of appeal.  And of course it should be remembered that what is binding is not the result of an appeal, but the reasons for it - an unreasoned decision would have no binding effect.  When all these matters are taken into consideration, there is in my view no longer any reason to doubt the authority of decisions of two-judge courts.     

Binding effect of Chan’s case

46.  Applying these considerations, there is no reason why the decision of the two-judge court in Chan should not have been binding on the three-judge court in Lam (this is quite apart from the coincidence of identity of two of the judges in both cases).  This was obviously the view of the court in Lam where Tang VP (giving the judgment of the court) said on no less than three occasions that it considered itself bound by the decision in Chan (§7, 10 and 12). 

47.  I further note that in Chiu Kin Ho v Commissioner of Police CACV 374/2004, 2 March 2005, this court (Cheung JA and Yam J) also held that the issue whether police disciplinary proceedings contravened Article 10 BOR had already been decided in Chan.  As a result the appellant’s appeal in that case from Chu J’s refusal to give leave for judicial review on that ground was dismissed (§7-8).   To like effect was the decision of this court (Cheung JA and Chung J) in Au Chi Ho v Commissioner of Police CACV 332/2004, 2 March 2005, unrep.

48.  In any event, even if the Boys v Chaplin test had been applied, it is clear that the court in Lam would not have considered its previous decision in Chan to have been wrong.  The case of Mark Grieves v The United Kingdom (Application No. 57067/2000) had already been cited to the court in Chan and considered by it (§40).        

49.  In conclusion I take the view that the court of appeal in Lam was correct when it considered itself bound by the earlier decision in Chan.  For the same reasons, this court is also bound by Chan.

Binding effect of Lam’s case

50.  If I am wrong and the decision in Chan is not binding because it was a decision of a two-judge court, there is still the further question in our case whether we are bound by the decision in Lam, which is the decision of a three-judge court. 

51.  I consider that we are bound by it.  I am not persuaded that the decision was per incuriam.   It was not reached in ignorance or forgetfulness of any decision binding upon it, and even if that includes the converse situation - i.e. that it was reached in the mistaken belief that a decision (Chan) was binding when it was not, it must still be shown that the court must have reached a contrary decision otherwise (Limb §34).  Reading the judgment of the court in Lam as a whole, I am not persuaded that if the court had not considered itself as bound by Chan, that it would definitely have reached the contrary result.

Alternative reasons in Lam?

52.  Counsel for Mr Chiu also argued that the decision in Lam was based on two alternative reasons, first that Regulations 9(11) and (12) did not contravene Article 10 BOR, and secondly that the conviction was inevitable as Mr Lam had been made bankrupt (§22).  It was argued that where there were two alternative reasons, this court may choose between them, or at least reject the reason which does not withstand scrutiny.  For this proposition, counsel for Mr Chiu relied on a passage in Wesley-Smith, The Sources of Hong Kong Law (p.74). 

53.  Leading counsel for the Commissioner questioned the proposition and took us to each of the cases cited in support of it (fn. 71) to demonstrate that the proposition represented the view of only one individual judge.  With no disrespect to leading counsel and his industry, I do not think we need to determine this issue.  It is clear that Lam was not decided on two alternative reasons.  From a reading of the judgment as a whole, it is clear that the court decided that it was bound by Chan with which decision the court in Lam had no disagreement, and “moreover” that Mr Lam’s conviction was inevitable whether he had legal representatives at the hearing or not (§22). 

Decision in Chan not an application for leave to appeal

54.  Finally on this aspect, counsel for Mr Chiu also argued (relying on Arthur JS Hall) that at least the Boys v Chaplin rule has survived where the 2-judge court was dealing with an application for leave to appeal and he says the judgment in Chan was of such an application.  He relied on Clark v University of Lincolnshire and Humberside where Lord Woolf MR held (in proceedings governed by the Civil Procedure Rules) that judgments on applications for permission to appeal to the court of appeal were not binding. 

55.  Lord Woolf’s justification for this decision was (§41-42):

“

the reality of what happens on an application for permission.  If there is an oral hearing on an application for permission, the hearing is normally intended to last no more than 20 minutes.  A judge may deal with seven or eight applications in the one day.  In each he will give judgments of differing lengths. ... Until recently it would be unusual for any judgment on an application for permission to be reported. ... Furthermore the judge is not usually referred to reports of other cases, or if he is referred to reports, he will have them drawn to his attention in a much more summary manner than would be the case on the hearing of an appeal”.

56.  It would be noted that as none of the above aspects of “reality” applies to the situation in Hong Kong at present, I am not persuaded that we need to impose the same exception.  In any event whatever the position with applications for permission to appeal in England, Chan was not such a case.  Mr Chan had sought leave to issue judicial review on 5 grounds.  Chu J gave leave for 2 grounds but refused leave for the other 3 grounds.  Mr Chan then appealed (out of time) that part of Chu J’s order refusing leave for the other 3 grounds.  Woo VP dismissed his application and the matter then came to be heard by the two-judge court.  The case was considered on its merits as an appeal under Order 53 rule 3(4) RHC.  Chan was therefore not a judgment on an application for leave to appeal.    

(3) Whether on the facts of this case, judicial review should have been ordered as matters had been wrongly taken into account by the adjudicating officer, and also due to disparity between charges, evidence and findings

57.  This ground was contained in Mr Chiu’s draft amendment to the Supplementary Notice of Appeal.  Leading counsel for the Commissioner has not objected to arguing it and accordingly leave is granted to amend the Supplementary Notice accordingly.  In respect of this ground, submissions have only been made in respect of the latter set of disciplinary proceedings SSPO DR 10/02.  This involved the dishonour and late settlement of two cheques.  

1^st dishonoured cheque

58.  Briefly what happened was that in February 2000, Mr Chiu dishonoured a cheque in the sum of $5794 drawn in favour of the Government for the renewal of a vehicle licence by the Transport Department (“the 1^st dishonoured cheque”).  After the cheque was dishonoured, the Transport Department sent two demand letters to Mr Chiu at his address - the first was sent by ordinary post.  Mr Chiu claims he did not receive it.  The second letter was sent by ordinary and registered post.  The Post Office was unable to deliver the registered letter.  The Department of Justice was consulted and there then followed correspondence between that department and Mr Chiu.        

59.  Nearly a year later, on 2 February 2001 Mr Chiu issued a claim in the Small Claims Tribunal for maladministration by the Transport Department and the Department of Justice.  The next day the Department of Justice lodged a claim against him in the same tribunal for the 1^st dishonoured cheque with interest and costs. 

60.  In March 2001, Mr Chiu discontinued his claim and consent judgment was given against him for the 1^st dishonoured cheque which sum was subsequently paid.

2^nd dishonoured cheque

61.  Two days after he paid the sum of the 1^st dishonoured cheque, Mr Chiu drew a second cheque in favour of the Government for $6,506.30 for the renewal of the vehicle licence fee by the Transport Department for that year.  It was again dishonoured on presentation on 21 March 2001 (“the 2^nd dishonoured cheque”).  Mr Chiu did not pay this sum until some time in July 2001.

Hearing before Adjudicating Officer

62.  Three disciplinary charges relevant to these two dishonoured cheques were brought against Mr Chiu.  The hearing took place in April 2003.  The Adjudicating Officer (a superintendent) convicted him of the three charges. 

Report to Senior Police Officer

63.  The case was then reported to a Senior Police Officer under Regulation 11(6) who in May 2003 confirmed the Adjudicating Officer’s finding on two of the three charges.  In respect of Charge (A) of ‘Conduct calculated to bring the public service into disrepute’ relating to the 1^st dishonoured cheque, the Senior Police Officer gave Mr Chiu a Severe Reprimand.  In respect of Charge (B), a similar charge relating to the 2^nd dishonoured cheque, he was given a Severe Reprimand and an order for Compulsory Retirement with deferred benefits.

Report to Force Disciplinary Officer and appeal to Commissioner

64.  The matter was then reported to the Force Disciplinary Officer under Regulation 14(4).  This officer confirmed the decision in June 2003.  Mr Chiu then appealed to the Commissioner under Regulation 15.  His appeal was dismissed in August 2003.  Mr Chiu then issued judicial review proceedings.             

Other dishonoured cheques

65.  It is one of Mr Chiu’s grounds of appeal that it was improper for the Adjudicating Officer to have asked Mr Chiu about other cheques that he had dishonoured as shown in his bank statements (Appeal Bundle B pp.45-46) and that the Senior Police Officer had also improperly attached importance to the other dishonoured cheques. 

Discussion

66.  I do not think there is anything objectionable to this line of questions about other cheques which were dishonoured in the period closely proximate to the two cheques in question.  The questions were permissible to test Mr Chiu’s explanation for dishonouring the two cheques, which was that he had sufficient funds originally, but it so happened that on both occasions his wife withdrew money from his account without his knowledge using blank cheques that he had given her.  I would add that the Adjudicating Officer did ask Mr Chiu whether his wife would make a statement but Mr Chiu did not indicate that he wished her to do so.

67.  As for the Senior Police Officer, what this officer had referred to in his memorandum to the Force Disciplinary Officer (Appeal Bundle B p.65) was Mr Chiu’s attitude to dishonouring cheques as shown in his own submissions (Appeal Bundle B p.56).  Mr Chiu had submitted:

“

With regard to the charges (A) and (B), the prosecution accused me of making out two bounced cheques bearing different amounts on 2000-02-09 and 2001-03-19 respectively, my conduct was calculated to bring the public service into disrepute.  Previously, I had several cheques bounced out, why didn’t the prosecution charge me with conduct calculated to bring the public service into disrepute for the several bounced cheques?  I have a record of bounced cheques, it indicates that my ability to manage my finance is really bad, however, it is not tantamount to my conduct calculated to bring the public service into disrepute”.  (Emphasis added).

68.  Given Mr Chiu’s admission of that cavalier attitude to the management of his finances, in my view the Senior Police Officer was justified in stating that “the public has a right to expect officers of the Hong Kong Police to pay on the nail and honour their commitments.  If not how can they be trusted to uphold the law and protect the public?” (Appeal Bundle B p.65).  

Delay in payment

69.  In fact the Adjudicating Officer had accepted in Mr Chiu’s favour that there was a reasonable doubt whether he knew there would be insufficient funds to honour the cheques at the time he issued them.  However the charges also included the accusation of late settlement of the cheques (Appeal Bundle B pp.9 and 11) and it is clear from the transcript of the hearing before the Adjudicating Officer that Mr Chiu was well aware of this aspect of the charges.  The Adjudicating Officer found that this delay constituted conduct calculated to bring the public service into disrepute. 

Discussion

70.  As to this delay in settlement, I do not think there is any significance in the dispute over receipt of the Transport Department’s demand letters.  That is because in any event Mr Chiu’s bank would have informed him of the dishonour, at the latest by the time of the statements.  The bank statements produced at the hearing before the Adjudicating Officer by consent were provided monthly.  The one for the period 25 January 2000 to 29 February 2000 (Appeal Bundle B p.127) showed clearly that the 1^st dishonoured cheque for $5,794 had been returned.  Mr Chiu never alleged that he did not receive his bank statement.  Indeed there was other evidence before the judge (although not before the Adjudicating Officer) indicating that Mr Chiu was well aware that he had dishonoured the 1^st cheque (see the decision of the Administrative Appeals Board §1).

71.  That the 2^nd dishonoured cheque for $6,506.30 had been returned was also clearly shown in the bank statement for the period 22 February 2001 to 30 March 2001 (Appeal Bundle B p.140).  Mr Chiu did not pay this sum until more than 4 months after the date of the cheque.  No satisfactory explanation was given for the delay.  The Adjudicating Officer was entitled to find on the evidence that Mr Chiu was deliberately delaying settlement (Appeal Bundle B p.50-51).  

72.  By reason of the above, I have no doubt that there was no material disparity between the charges, the evidence and the findings and that the judge was entitled to refuse to order judicial review.

Issue (4) - The construction of the word “calculated” in the regulation disciplining officers for conduct calculated to bring the public service into disrepute

73.  Finally I come to the argument based on the construction of the word “calculated” in Regulation 3(2)(m) under which Mr Chiu was charged.  It was held by Deputy Judge A. Cheung (as he then was) in Chu Ping Tak Tim v Commissioner of Police [2002] 3 HKC 663 that in the context ofthe Police (Discipline) Regulations, the word meant “likely” (§45).  See also Sit Wai Lok v Commissioner of Police and anor, HCAL 69/2004, 20 June 2005, unrep. per Hartmann J. §22-23.   Counsel for Mr Chiu does not dispute that in English, the word “calculated” may have this meaning but he argues that when the Chinese text (刻意致使) is taken into account, what is required is a “subjective intention” to bring the public service into disrepute.

Discussion

74.  With respect I do not agree.  Regulation 3(2)(m) has been in force since 1977.  As a matter of statutory drafting, the contrast between the words “calculated” and “intended” is well-established (Norweb plc v Dixon [1995] 3 All ER 952, 961F-962F quoting Turner v Shearer [1972] 1 WLR 1387, which in turn refers to a number of other authorities).  If the draftsman had intended to mean “subjectively intended to”, he could easily have used those words.

75.  As for the argument based on the Chinese text, there is nothing to indicate that when that was authenticated in 1994 by LN(C)35 of 1994 under the Official Languages Ordinance, that effected a change of intention on the part of the maker of this piece of subsidiary legislation to restrict the ambit of this regulation so significantly.  If there had been such a change of intention, one would have expected the English text to have been amended to reflect that clearly, given the authorities referred to earlier. 

76.  Further it has been held by the Court of Final Appeal that the purpose of this regulation is to maintain the integrity and efficiency of and public confidence in the police force (Fu Kin Chi v Secretary for Justice (1997-8) HKCFAR 85, at 100A-C).  If Mr Chiu’s contention is correct, a police officer who behaves atrociously and whose conduct clearly brings the public service into disrepute – but who had other motives than to harm the reputation of the Force – would then be immune from prosecution under this regulation.  As a matter of purposive interpretation, the ambit of Regulation 3(2)(m) could not have been intended to be confined to the limited situation suggested on behalf of Mr Chiu.

Order

77.  For these reasons I would give leave to amend the Supplementary Notice of Appeal to include ground 10 in the Schedule to the summons filed 18 January 2008 but I would dismiss the appeal with an order nisi that Mr Chiu pay the Commissioner’s costs of the appeal and an order that the appellant’s own costs be taxed in accordance with Legal Aid regulations.

Hon Lam J:

78.  I agree and have nothing to add.

Hon A Cheung J:

79.  I agree.