RE NGAI KIN-WAH

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JUDGMENT

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1. This is an application for judicial review of a decision of the Disciplinary Tribunal of the Customs and Excise Department set up under the Customs and Excise Service (Discipline) Rules pursuant to Chapter 342.

2. On the 25th October 1984 the applicant appeared before the Tribunal of the Customs and Excise Department charged under the regulations that on the 13th April 1981 at the Customs Examination Hall on the first floor of the Air Cargo Terminal he improperly involved himself with cargo clearance whilst off duty in that he requested another Customs Officer on duty there to stamp a set of a Shipment Release Form bearing the purported signature of Senior Inspector YU Wai-ming with a 'RELEASED' chop. Such conduct, it was alleged was prejudicial to the good order and discipline of the Customs and Excise Service. The charge was laid under rule 3, (m) of the Customs and Excise Service (Discipline) Rules.

3. Presiding was a senior officer of the department and a senior inspector prosecuted. The gravamen of the charge was that the applicant had come to Kai Tak when off duty and obtained the release of certain valuable goods which were held in customs by persuading a fellow employee of the department to stamp two release forms. The only evidence to connect him with the alleged offence was that of his fellow employee, Mr. KWOK Kong-wing. As part of the background to the matter it ought to be said that the applicant had suffered criminal proceedings in which he was charged with a number of offences of which he has been acquitted, but one of them concerned the alleged forgery by him of a senior officer's signature on the two release forms. That fact in itself was quite irrelevant so far as the Tribunal was concerned end quite immaterial on this application, but it explains the form of cross-examination of the witness KWOK before the Tribunal. KWOK did not make his allegation that the applicant had approached him and asked him to obtain the release chop on these forms for some eight months or so after the event to which the charge relates. No action was taken by the department on that first statement for approximately three years when KWOK was again interviewed on two successive occasions, the last being, in October 1984. On each of those occasions he repeated the allegation that it was the applicant who had approached him on the 13th April 1981. It is following the last of those statements by the witness KWOK that proceedings were instituted against the applicant. He was interviewed himself. He was never cautioned but he nevertheless declined to answer any of the questions which were put.

4. The charge would have been made out if the adjudicator had been satisfied, as indeed in the event he was, that the witness KWOK was speaking the truth when he said that it was this defendant who approached him on one of his off duty days with the two forms and obtained on them the release chops. Nothing more was necessary. There was nothing for the adjudicator to consider with regard to forgery or with any other kind of impropriety and it appears from the affirmation which has been put before me from the adjudicator that he did only concern himself with relevant matters.

5. A Tribunal set up under the Customs and Excise Service (Discipline) Rules must follow the procedure laid down under those rules and more particularly that set out in rule 8. In this application criticism is made of the manner in which the adjudicator conducted the proceedings in that he did not observe the provisions of rule 8. It is common ground that at the end of the evidence presented by the prosecutor the applicant was invited to call any witness he might have which he did, and only after that was done was he asked whether he wished to give evidence himself, an invitation which I may say he declined. He was never asked whether he wished to submit that there was no prima facie case against him. Here, I interpose, to say, that the rules do not require that he should be so asked nor would I have thought that it was incumbent upon the adjudicator to do so. In the circumstances of this case had he been asked I suspect that he would not have made any such submission, or if he had, that it was not for one moment capable of being sustained.

6. Apart from any failure to observe the provisions of rule 8 complaint is made that the prosecutor had not supplied the applicant with all of the statements and records of interview which had been obtained from the witness KWOK. That much is conceded. Indeed the prosecutor himself has gone on affidavit to confess his fault and he is to be commended for his openness. Rule 7(c) requires that any such statement or record should be supplied to a person facing a charge such as this. That rule is consistent with the practice in criminal cases and it is to give an opportunity to a person facing the charge to consider the nature of the evidence against him and also to mark out any differences between the various versions that have been given at different times by any particular witness. Here it is said that by not being given all three statements the applicant was deprived of the opportunity of noting as discrepancy which occurred as between the past of the statements and the earlier ones. It is this. Only in the latest statement, that of October 1984, was reference made to the applicant asking for the forms to be stamped on account of a request he received from a friend. That piece of evidence was repeated by the witness KWOK before the adjudicator, but it does not appear in the two earlier statements. Mr. Van Buuren has argued that it may be a small discrepancy but nevertheless if known to the applicant it might have provided him with ammunition with which to cross-examine the witness to effect. Further criticism is made of the prosecutor in that he referred to those earlier statements in addressing the adjudicator and claimed in making that address that they were entirely consistent with the evidence which had been given at the hearing. That of course is not a proper thing to do. The prosecutor has conceded as much in his affidavit. Once again I commend his frankness, I hope it is a mistake from which he has learned, but the adjudicator has affirmed himself that it was not a matter to which he paid any regard and I do not imagine that it was.

7. In the statement filed pursuant to Order 53, several matters were relied upon. In the first place the failure to comply with rule is made a ground. If it can be said that by being denied access to those statements the applicant was denied a fair hearing there may be some substance in the point.

8. The second ground depends upon the admission by the fad adjudicator of evidence that the signature on the release documents had been forged. That, says Mr. Van Buuren, was highly prejudicial evidence. Since it was not alleged at the hearing, nor could it have been in the light of the previous acquittal of the applicant, that the forgeries had been carried out by the applicant I do not see that that in itself is a matter which can take the applicant very far.

9. The third ground is that evidence of the interview at which the applicant refused to answer any questions was adduced. The point, I think, that Mr. Van Buuren is making there is that there having been no caution prior to the asking of the questions, the questions and answers which followed ought not to have been admitted. Since there is nothing in any of the answers which could be taken to be evidence against the applicant in any way I think that ground too has little merit.

10. The fourth ground relied upon is that at the close of the case the adjudicator failed to inform the applicant as required by the rules that he had the right to address him for the purpose of showing that no prima facie case had been established. That ground is misconceived. The rules do not require the adjudicator to advise the applicant or the person charged of the existence of that right. They simply require, as one would expect, the adjudicator to listen to such a submission if the person charged chooses to make one.

11. The fifth ground is that the applicant was told at the close of the prosecution evidence to call any witness he might have rather than being invited to give evidence himself   if he chose to do so. It is conceded that that happened. It is conceded that that is in breach of the rules. The witness that the applicant chose to call was, so it seems to me hardly relevant. The purport of the evidence was to show that this witness being in the vicinity on the day in question did not himself see the applicant. After that witness had been called the adjudicator recognised his mistake and gave the applicant the opportunity, if he chose to take it, to give evidence. The applicant decided not to do so as was his right. The fact that the sequence prescribed by the rules was not observed, might on occasion lead to injustice or the denial of a fair trial, but in this case it seems to me that it did not. A mere breach of the rules in itself is not enough to support an application for judicial review.

12. The sixth ground depends upon a failure on the part of the prosecution to produce a letter which the applicant had sent in answer to a letter of complaint from the Assistant Superintendent (Prosecutions) of the Customs and Excise Service in which the applicant denied any misconduct on his part. Except in relation to a matter which I shall mention latter I do not think that in itself has any relevance. The letter itself could not be evidence before the Tribunal, unless the applicant himself went into the witness box.

13. It is then said that the adjudicator did not act fairly in that he failed to follow the correct procedure. Those are the matters to which I have adverted already.

14. It is a ground that the adjudicator did not tell the applicant that if he failed to give evidence the prosecution would be entitled to comment on it. Had the adjudicator done that he would have been entirely wrong.

15. Next, it is said that he permitted the prosecutor to comment on the defendant's failure to give evidence. That the prosecutor did do so in an oblique fashion is correct, but not in such a way as I think would vitiate the hearing, provided always that it was a comment which the adjudicator disregarded.

16. Next, it is a ground that the adjudicator failed to consider the effect of the evidence of the principal prosecution witness, that is the witness KWOK, in that he could not say which of two shipment release forms had been presented by the applicant on the 13th April 1981, it does not appear whether the adjudicator did consider that matter. Certainly it does not appear from anything he said in the course of the hearing that he did; at the same time it does not appear that he did not.

17. Next, it is said the adjudicator failed to consider the effect of an inconsistency in KWOK's evidence. Once again it is impossible to say from the short reasons which the adjudicator gave on the day that he did or did not consider any such inconsistency in KWOK's evidence.

18. Next, it is said that he failed to consider whether or not the charge had been proved beyond reasonable doubt. There is a question as to what is the standard of proof to be achieved in a hearing such as this. For my part having regard to the wording of the rules I think that the applicant sets the standard too high. I think that what is required here is a standard of proof equivalent to the standard in civil proceedings bearing in mind the gloss imposed by authority where the allegation is one of misconduct or fraud namely that the burden must be discharged by clear proof.

19. It is also said that there was an error of law on the face of the record in that the evidence did not substantiate the charge beyond a reasonable doubt. The same observation, I think applies with regard to that, but in any event that error, if ever there was, does not appear upon the record.

20. I allowed by way of late amendment a further ground namely that there was a breach of the rules of natural justice and/or an error of law on the face of the record, in that in determining the guilt of the applicant, the adjudicator permitted himself to take into account the fact that the applicant had not given evidence during the proceedings and thus had not denied the allegation in regard to the 2 copies of Shipment Release form. That arises out of some words of the adjudicator at the conclusion of the hearing. I read the whole of the relevant paasage. Having indicated that after considering the case he believed that the applicant had involved himself in the particular incident, the adjudicator said this :

"However it is beyond my power which is dictated by the rules to make further decisions here as to awarding you. I will refer this case to the Commissioner for his personal scrutiny. Within 14 days from now on if you wish to make any representation you may forward them to the Commissioner in writing. On the whole the evidence adduced today has substantiated the charge that you are off duty on that day and you did appear at the place as alleged. No stage in the proceedings have you denied the allegation in regard to the two shipment release forms. In other words I believe that you did visit the Terminal and you did what has been alleged."

21. Originally Mr. Van Buuren was not inclined to take the point and as follows from the fact that amendment was necessary it was not included as a ground for relief. It was, however, a ground relied upon in a petition which the applicant made to the Governor, as he is entitled to by way of appeal under the rules. I interpose to say that no point is taken that the rejection of the applicant's appeal is a matter open to review and should have been made the subject of this application. Mr. Burdett takes the view, and I am not disposed to say he is wrong without hearing the matter argued further, that if the original hearing can be attacked on the ground of either some breach of the rules of natural justice or on the ground that some error of law appears on his record, it is sufficient if the application relates to that original hearing alone. Even though the matter was not taken initially, as a result of an interchange between myself and Mr. Van Buuren, Mr. Van Buuren decided that he wished the point to be taken. The application to amend was objected to by Mr. Burdett, who said it was late in the day and that the applicant had had notice of the point, witness the fact that it had appeared in his petition to the Governor. But Mr. Burdett very fairly conceded that he would not be prejudiced if the point were taken now and that he was prepared to argue it. I allowed the amendment to be made. So the point is now for my determination.

22. I think there are only two matters of any substance in this application, one relating to the failure to supply the witness' statements which may have put the applicant at some disadvantage in cross-examining a key witness in the case; a witness who, on any view, if not telling the truth in identifying the defendant as Someone who approached him on the 13th April 1981 had an interest of his own to serve because the finger of suspicion necessarily pointed at him, and therefore, who was to be treated for all practical purposes as an accomplice, and whose evidence in consequence was to be regarded with circumspection. Therefore the effect of cross-examination of that witness as to credit may have proved important as to whether or not the applicant gave evidence himself. Any small piece of material, therefore, which might have gone to show that that witness evidence was not reliable was important in my judgment. Although the discrepancy which Mr. Van Buuren has been able to point to between the earlier statements and the last statement and between the earlier statements and the evidence which was given was a small one, nonetheless handled skilfully, and have no reason to doubt the applicant's ability to handle the material skilfully may have made an impression. After all the first statement was made very much earlier than the second two and something like three to four years ahead of the time of living evidence. I think the fact that the applicant was not given access to those earlier statements and to the ammunition which they provided or mighf have provided for cross-examination was a serious omission on the part of the prosecutor which may have led, in the circumstances of this case, to a denial of justice.

23. The second matter concerns the applicant's decision not to give evidence and the comment which the adjudicator made in giving his reasons. First of all I have to decide what that comment means. It is, I suppose, capable of meaning more than one thing. It could mean that "I have come to the conclusion that I can accept witness KWOK as a witness who is reliable and truthful for one reason because his evidence is uncontradicted." If that is what he meant and what he said then I do not think he could be criticised. It could mean, however, and I think the more natural meaning to be attributed to those words is, "that I taken it that because you have declined to go into the witness box to give evidence, that you are the more likely to be guilty". In other words he was adopting the comment made by the prosecutor and putting it in a much more straightforward way and saying to himself that the failure of the applicant to give evidence was in itself positive evidence of guilt. That, of course, in a criminal trial, would be a wholly wrong approach, as is conceded by Mr. Burdett. Mr. Burdett argues, however, that this proceeding was not analogous to a criminal trial, and that the rules which should guide the Tribunal are those and only those which appear in the Customs and Excise Service (Discipline) Rules and one ought not to import to the procedures of this Tribunal concepts appropriate to a criminal hearing. He referred me to the case of The Queen v. Deputy Industrial Injuries Commissioner ⁽¹⁾ , a decision of the English Court of Appeal which was concerned with the procedure laid down for the Industrial Injuries Tribunal, in which Lord Justice Wilmer said :

"It will be seen that the effect of the Act of 1946 and the Regulations is to provide for a considerable degree of latitude in procedure; indeed, Regulation 26(1)(b) confers an almost unfettered discretion on the Commissioner as to how he shall proceed. He is not bound to hold any hearing at all, even where the applicant has asked for one. If the applicant does not ask for a hearing it must, I think, be obvious that the Commissioner is free to obtain information from any source which is available to him. If there is a hearing, witnesses may or may not be called, and, if called, may or may not be sworn. It is to my mind abundantly clear that Parliament intended that there should be a minimum of formality. As was pointed out by Diplock, J. in R. v Medical Appeal Tribunal (North Midland Region), Exparte Hubble, the inquiries, is small in the nature of an inquest than a lis inter partes."

24. To my mind there is a considerable distinction to be made between the kind of tribunal with which the Court of Appeal in that case had to deal and the kind of tribunal which is set up under the Customs and Excise Service (Discipline) Rules. In that case as Lora Justice Wilmer observed, the Commissioner was conducting, in essence, an inquest. In this case what is contemplated is very much a lis inter partes. The procedures are closely analogous to those followed in the criminal courts. The rules even provide for a prosecuting officer. Whatever the standard of proof that has to be achieved it is beyond question in my judgment that the burden of proof in the circumstances which face this applicant rested upon the prosecutor. At the end of the prosecution case there was an opportunity to submit no case. If there was no case then the applicant would be entitled to have the charge against him dismissed. It cannot be said in those circumstances that a failure on his part to give evidence or a decision on his part not to give evidence could in any circumstances amount to proof against him of the charge laid. If, as it appears to me, the adjudicator so regards his failure to give evidence then with respect the adjudicator misdirect himself at law. It is a misdirection which appears on the face of the record. It is one in my view which is serious enough to warrant the granting of this application, taken together as it must with the fact that the applicant was deprived of his best opportunity to cross-examine the only important witness against him by reason of the prosecution's failure to supply all that witness statements. In the circumstances I think it right that this matter should go back to the Tribunal to be re-heard, having regard to the reasons which I have now given for my decision. Therefore, there will be an order of certiorari quashing the decision of the adjudicator as confirmed by the Commissioner. There will be an order of mandamus directed to the Commissioner to re-constitute a Tribunal for the hearing of this matter de novo.

                Out of deference to his argument I ought to deal with a matter which was raised by Mr. Burdett, I think at the beginning when Mr. Burdett raised the question of whether or not the application ought to be debarred from relief by reason of the lateness of his application for leave. I was most helpfully referred to a ⁽²⁾ decision of Mr. Justice Rhind given quite recently on an application for leave where the applicant was out of time and his observations in that case with which I respectfully agree. Here the situation is somewhat different. The application for leave was out of time but leave was granted and it must be presumed that the learned Judge who gave leave took into account the fact that the application was made out of time. Thereafter the applicant has proceeded within the time limits prescribed by the rules. There was some excuse for delay in this case in that the applicant was awaiting the outcome of his appeal to the Governor, though that in itself could not account for all the time taken. But in the circumstances if it does fall to me to consider the question of delay I would exercise my discretion in the applicant's favour. As I have said I believe in the circumstances it does not. I think it was matter for the learned Judge before whom the application for leave arose.

(1) [1965] 1 All E.R. 81

(2) re WAN Kam-wing, unreported HCMP No. 658 of 1985