ATTORNEY GENERAL v. TSUI KWOK LEUNG

Civil Appeal No. 7 of 1990

Headnote

                In police disciplinary proceedings the civil standard of proof applies. Tarnesby v GMC Privy Council Appeal No 21 of 1969 (unreported) and Khawaja v Secretary of State for the Home Department [1984] AC 74 followed in preference to Lanford v GMC [1990] AC 13.

                The Court made this choice following Eaton Baker v R [1975] AC 774.

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JUDGMENT

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Kempster, JA (giving the judgment of the court) :

1. This is an appeal by the Attorney General from the judgment and order of Bokhary J, given and made on 10 November 1989 after the judicial review of certain findings made in the course of proceedings brought pursuant to the Police (Discipline) Regulations (Cap 232), quashing both those findings and the consequential punishment awarded.

2. On 20 March 1989 Police Constable Tsui Kwok Leung ("the defaulter"), who had a good record of service in the Royal Hong Kong Police Force over a period of some 15 years, appeared before Superintendent Peter Man at Wanchai Police Station; being an appropriate tribunal for the purposes of Part II of the Regulations. It was also a domestic tribunal at which no legal adviser or legal representatives are present and where evidence is not given on oath. The defaulter pleaded not guilty to one charge of conduct calculated to bring the public service into disrepute and to two charges of neglect of duty contrary to regs 3(2)(m) and (h) respectively. Viva voce evidence was given by a number of witnesses including the defaulter himself.

3. The Superintendent's "judgment", part of which is the subject of complaint, reads as follows: -

4. Holding on to Hung Wai Man's tie constituted the conduct on the part of the defaulter calculated to bring the public service into disrepute and failing to produce his warrant card and to inform Hung of the reason for his arrest the instances of conduct amounting to neglect of duty.

5. The "judgment" or findings were referred to a senior police officer, as defined in reg 2, for confirmation and for awards of punishment pursuant to reg 11(6). On 3 May the defaulter was paraded before Chief Superintendent Prew and the material part of his "Record of Proceedings", also the subject of complaint in part, reads: -

"I advised the defaulter that I had carefully considered the record of defaulter proceedings and found that there was more than sufficient evidence, on the balance of probabilities, to confirm the findings of guilty on three disciplinary charges by the Adjudicating Officer, Mr Man Skiing Hon, SP, ADC A WCH, under s 14(1) (a)(i) of the Police (Discipline) Regulations Cap 232. The defaulter had acted in a personal capacity when dealing with Mr Hung at. the Jaffe road Off-Course Betting Centre on 7 April 1988, was off-duty at the time, and there was no reason for him to nave exercised his powers of arrest."

6. The findings and awards were further confirmed by the Force Discipline officer on 17 May pursuant to reg 14(5) and on 28 June the Commissioner rejected a petition lodged by the defaulter on the 7th pursuant to reg 15. On 9 September Boknary J granted the defaulter leave to apply for judicial review of the findings and awards just described.

7. As regards the Superintendent's findings the words impugned were: -

"The defence has not managed, in my view, to rebut the case presented by the prosecution."

The judge found that he thereby erred in his approach to the onus and consequentially to the standard of proof and showed that he did not appreciate that it was for those who brought the charges to prove them and that no evidentiary burden rested on the defaulter.

8. Looking at the Superintendent's findings as a whole it is clear beyond a peradventure that on all material issues he accepted the testimony of the prosecution witnesses and rejected that given by those called on behalf of the defaulter. Neither the Superintendent nor the Chief Superintendent were lawyers but would have had available to them the guidance as to burden and standard of proof appearing in paragraphs 16 to 18 of Annex J to the Police Discipline Manual. Like "the Guide" referred to by Webster J, whose general conclusions we do not accept, in R v Home Secretary ex p Tarrant, [1985] 1 QB 251 at p 284, it is a document warmly to be commended. With all respect to the judge who, like us, was working from the record, we construe the critical words, in context, as meaning no more than that the defence evidence had not caused the Superintendent to change the favourable view of the prosecution witnesses which, provisionally, he had formed.

9. Turning to the Chief Superintendent's "Record of Proceedings" the words impugned were: -

"I ... found that there was more than sufficient evidence on the balance of probabilities to confirm the findings of guilty."

We have no reason to doubt that he too followed the guidance contained in Annex J to the Police Discipline Manual and flexibly applied the civil standard of proof. When he used the words "more than sufficient evidence" we take it that he was expressing a degree of satisfaction approximating to the criminal standard. At the very least the respondent, on whom the burden lies, has not satisfied us to the contrary. In the premises it falls to determine whether Bokhary J was right in holding that he should have applied a more rigorous test than that apt for civil proceedings. The judge's actual words were: -

"In my judgment, on the authority of the privy Council's recent decision, [Lanford v GMC (1990) AC 13] the best guidance which the courts can give disciplinary tribunals is to tell them that when they are dealing with allegations of wrongdoing so serious as to have a grave effect, if proved, on a person's career or livelihood, they ought not to find such person guilty of such wrongdoing if they nave a reasonable doubt - and it is of course a reasonable doubt, not a fanciful doubt - as to whether he is indeed guilty. Of course, such tribunals should understand - and be given to understand if necessary - that the more serious an allegation the more compelling must be the evidence to remove reasonable doubt of guilt."

while we accept that, the established minima apart, there are no absolute standards of proof in criminal or civil proceedings it is immediately apparent that such guidance would require the laymen presiding over disciplinary . tribunals to direct themselves more strictly and more abstrusely than professional judges when summing-up to juries in criminal proceedings on the lines suggested in R v Lee Yuk Wan and Ors [1985] HKLR 193.

10. One authority tending, at least at first blush, to support the application of the criminal standard of proof to disciplinary proceedings is Bnandari v Advocates Committee (1956) 1 WLR 1442; an appeal to the Privy council from the Court of Appeal for Eastern Africa. At p 1452 Lord Tucker advised: -

"With regard to the onus of proof the Court of Appeal said: 'We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a nigh standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.' This seems to their Lordships an adequate description of the duty of a tribunal such as the Advocates Committee and there is no reason to think that either the committee or the Supreme Court applied any lower standard of proof."

It was understood to import the criminal standard by McNeill J in R v Police Board exp Madden [1983] 1 WLR 447 but in Tarnesby v GMC Privy Council Appeal No 21 of 1969 (unreported), to which he was not referred, Lord Pearson, giving the advice of the board, had said: -

Thus Lord Tucker's words were not then construed as supporting the application of the criminal standards to disciplinary proceedings.

11. The real authority relied upon by the applicant before Bokhary J and before this court is Lanford v GMC where, at pp 19 and 20, Lord Lowry, expressing the opinion of the Board, said: -

"Mr Cox (rightly, as their Lordships consider) submitted that the onus and standard of proof in these disciplinary proceedings and the relevant legal principles were those applicable to a criminal trial."

As in R v Home Secretary ex p Tarrant this was a finding by concession. However, it is not for this court to suggest that Lord Lowry's words were spoken per incuriam. Broome v Cassell [1972] AC 1027 at pp 1054 and 1131. We nonetheless observe that Lanford v GMC was cited in argument before the Privy Council in Carmichael v General Dental Council [19901 1 WLR 134 but hot referred to in the opinion of the Board given by Lord Templeman. He said, at p 138, that: -

"The task of the committee was to determine whether in fact the drugs administered by the dentist resulted in loss of consciousness by his patients. It was for the committee to evaluate the evidence of the dentist, Professor Robinson and Dr Buxton, taking into account the manufacturers' instructions with regard to the drugs administered and in the light of the knowledge of dental practice of members of the committee. Seven of the eight members of the committee had practical experience. The Board can only interfere with a finding of fact by the committee if the determination was not supported by credible evidence or if the weight of the evidence was overwhelmingly against the view taken by the committee."

This authority, not cited below, was very much to the same effect as Allinson v General Council of Medical Education and registration, [1894] 1 QB 750, in which the judgments of the Court of Appeal, given by Lord Esher MR, Lopes and Davey LJJ may be thought to pose for a disciplinary tribunal the question: -

"Was there evidence capable of satisfying reasonable men that the defendant was guilty of the conduct alleged?"

Allinson was cited with approval in GMC v Spackman [1943] AC 627 at d 644 and effectively followed in Edouard Le Scroog v General optical Council [1982] 1 WLR 1238 at p 1241. The respective standards of proof are not, it must be acknowledged, specifically referred to and the concern of the several tribunals was rather with concepts of professional ethics than with facts.

12. Reference was also made on behalf of the respondent defaulter to decisions of the Canadian and New Zealand courts antedating Bhandari v Advocates Committee and Hornal v Neuberger. In New Zealand at least the Hornal v Neuberger principles now prevail. Two earlier decisions of the Privy Council support the respondents'contentions. They are People of the State of New York v Phillips' Heirs [1939] 3 All ER 952 and Narayanan Chettyar v official Assignee, High Court Rangoon (28) AIR 1941 Privy Council 93. There is an even earlier authority holding that the civil standard applies to criminal allegations made in civil proceedings. Doe d. Devine v Wilson [1855] X Moo 501. That Was a decision of the Privy Council oh appeal from the High Court of New South Wales.

13. Generally in civil proceedings, which, in our opinion, must include those conducted within the parameters of the Police (Discipline) Regulations, it remains good law that the civil standard of proof obtains albeit when considering, for example, an allegation of fraud, a higher degree of probability will be required than when considering an allegation of negligence. The degree of probability, falling short of satisfaction beyond all reasonable doubt, must be commensurate with the occasion even when the liberty of the subject is at risk. In cases of great gravity and in the realm of vendor and purchaser of land the civil standard may well approximate to the criminal. R v wolverhampton Coroner ex parte McCurbin [1990] 1 WLR 720; MEPC Ltd v Christian-Edwards & Ors [1981] AC 205; Authority for this general proposition is to be found in Bater v Bater [1951] p 35; Hornal v Neuberger Products Ltd; Blyth v Blyth; R v Hampshire shire County Council ex parte Ellerton [1985] 1 WLR 749, a decision which the respondent contends was made in error, and Khawaja v Secretary of State for the Home Department [1984] HC 74. It would also seem that what might be a reasonable doubt in a criminal context would not be a reasonable doubt in civil proceedings.

14. In Hong Kong the decisions in Tarnesby and Khawaja have successively been followed by this court. Longstaff v the medical Council of Hong Kong [1980] HKLR 858; Keeson Shum v the Medical Council of Hong Kong [1980] HKLR 868; Tai Hing Cotton Hill v Liu Cheong Hing Bank Ltd & Ors [1984] HKLR 95. At p 114 my Lord Cons V-P, referring to extracts from the opinions of the Board in People of the State of New York v Phillips' Heirs and Narayanan Chettyar v Official Assignee, concluded: -

The judgment of Slade LJ in R v Hampshire County Council at p 761, quoting the judgment of McCullough J, is to like effect. No question as to the standard of proof arose when the Privy Council heard an appeal against the decision of this court. Tai Hing Cotton Mill v Liu Cheong Hing Bank Ltd [1986] AC 80; [1987] HKLR 1041.

15. The same principles were applied in Re a Solicitor [1988] 2 HKLR 37, Khawaja not being cited in the judgments, and by Nazareth J in The Matter of an application for Judicial Review by Constable Lo wing Tong MP No 2496 of 1988 (unreported). That judge found that there was evidence upon Which the adjudicating officer could properly come to the decision he reached. There was no ground for interference. On appeal, [1990] 1 HKLR 325, the question was not canvassed.

16. Assuming that the massage in Lanford v GMC quoted above was the ratio decidendi of that decision we are faced with the predicament outlined by Lord Diplock in Eaton Baker v R [1975] AC 774 when the Privy Council was considering an appeal from the Court of Appeal of Jamaica. At p 788 Lord Diplock explained that courts in Jamaica were bound as a general rule to follow every part of the ratio decidendi of a decision of the Board but that: -

"To this general rule there is an obvious exception, viz where the rationes decidendi of two decisions of the board conflict with one another and the later decision does hot purport to overrule the earlier. Here the Jamaican courts may choose which ratio decidendi they will follow and in doing so they may act on their own opinion as to which is the more convincing.''

These words are equally applicable to us. Perhaps influenced by the length of the period during which the principles of Tarnesby and Khawaja have been accepted in Hong Kong we find them more convincing than those expressed in Lanford. Indeed we gratefully adopt the extract from the speech of Lord Scarman in Khawaja, at p 112, quoted by Boknary J in his judgment: -

"My Lords, I have come to the conclusion that the choice between the two standards is not one of any great moment. It is largely a matter of words. There is no need to import into this branch of the civil law the formula used for the guidance of juries in criminal cases. The civil standard as interpreted and applied by the civil courts will meet the ends of justice."

If Lord Lowry's statement as to the standard of proof was not part of the ratio decidendi in Lanford cadit quaestio.

17. We should, perhaps, add that on the record of evidence there is no question of a wrong verdict having been entered. If there was no injustice the findings and awards here in question should not, in any event, be quashed. R v Wolvernampton Coroner.

18. It follows that this appeal must be allowed and the order of 10 November 1989 discharged.