FAN LOK MAN v. COMMISSIONER OF POLICE

HCAL 3486/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 3486 OF 2001

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J U D G M E N T

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Introduction

1. The applicant was a serving police constable of the Hong Kong Police. This is his application for judicial review of the following decisions:-

(a) the Force Disciplinary Officer's decision (contained in a memo dated 17 April 2001) imposing an award of "Order to resign immediately without salary in lieu of notification" (pursuant to regulation 14(5) of the Police (Discipline) Regulations (Cap. 232) ("the Regulations"));

(b) the Deputy Commissioner of Police's decision (contained in a memo dated 20 June 2001) dismissing the applicant's appeal (pursuant to regulation 15(1) of the Regulations);

(c) the Commissioner of Police's decision dated 22 June 2001 dismissing the applicant with immediate effect.

2. The above decisions were made subsequent to the decision of the adjudicating officer of 29 December 2000 which found the applicant guilty of a disciplinary charge of "conduct calculated to bring the public service into disrepute" (contrary to regulation 3(2)(m) of the Regulations). The conviction followed a disciplinary hearing held on 25 September and 15 and 29 December 2000. The penalty imposed by the adjudicating officer was "reprimand suspended for 12 months". On 5 January 2001, the adjudicating officer reviewed his sentence and substituted it with "reprimand without suspension". On 9 January 2001, the conviction and sentence were confirmed by a Senior Police Officer.

3. The sentence imposed against the applicant was however varied by the Force Disciplinary Officer to "Order to resign immediately without salary in lieu of notification" (see above). This was confirmed by the appellate authorities (see also above).

4. Leave to apply for judicial review was given on 10 December 2001.

Background Facts

5. The background facts are undisputed.

6. The applicant was born in March 1978 and is now 23 years old. He joined the Hong Kong Police in May 1999 as a police constable. As stated above, he was dismissed on 22 June 2001 (having served as a police constable for about 2 years).

7. He was on leave on 13 May 2000 and went to Macau alone for a day trip. His explanation for going there was he has just broken up with his girlfriend and decided to go there to relax. He left Hong Kong at about 2 p.m. After arriving at Macau he went to a casino to gamble. He lost $4,000 after about one and half hours. He then withdrew $3,000 from his bank account using an ATM machine. By 7 p.m., he also lost that sum. The applicant was approached by a male called Alex who invited the applicant to gamble inside the VIP room. The applicant ignored Alex and went outside the casino to withdraw another $3,000 but Alex followed him and kept on persuading him to go to the VIP room. The applicant finally agreed.

8. Only so-called "mud-chips" (non-cashable chips) were used for gambling in the VIP room. Alex suggested the applicant to exchange all of his $3,000 for mud-chips which he did. The applicant also lost this sum. By now, the applicant has lost altogether $10,000.

9. A male who claimed to be Alex's friend then placed $10,000 worth of mud-chips in front of the applicant and told him to use them to gamble. The applicant asked the male if the chips were interest free and the male said they were. Various reasons were given by the male to explain why the chips were interest free. The applicant has more than $30,000 in his bank account and so he took the mud-chips. Again, he lost all of them. The male then placed another $10,000 worth of mud-chips in front of the applicant, also telling him that they were interest free. The applicant also gambled with the chips and, again, he lost them all. By now, the applicant has lost $30,000 (including the $20,000 worth of mud-chips).

10. When the male placed another $10,000 worth of mud-chips in front of the applicant, the applicant refused to accept them. He then left the casino and tried to use his bank card to withdraw $20,000 to repay the male. As he has exceeded the withdrawal limit for the day, the applicant was unable to withdraw any money through the ATM machine. He was only able to obtain $3,000 at the cashier counter of the casino by using his credit card. This sum was paid to the male as part repayment.

11. The applicant was then taken to a nearby restaurant where he was asked for his identity card number and personal particulars. He told the male his address and home telephone number. He concealed his police identity and told the male he was a garage worker. The applicant's mobile phone was surrendered to Alex. Alex then asked another male called Ah Man to accompany the applicant back to Hong Kong.

12. At about 8:40 p.m. on that day, the applicant's mother received several telephone calls at home. The male caller told her the applicant was with them in Macau. He also said the applicant lost $100,000 in Macau and asked her to settle the debt for the applicant.

13. The applicant's mother discussed with other family members and they decided to report the matter to the police which they did at about 10:30 p.m. The report was made by a Mr Lam, the boyfriend of the applicant's sister.

14. The applicant and Ah Man arrived Hong Kong at about 10:50 p.m. and were met by 3 males. One of the males called himself Mr Ko. They took the applicant to a restaurant in Yaumatei. A number of telephone calls were made by the males and the applicant was asked to talk to Mr Lam over the phone. Mr Lam asked him if he had owed other people $100,000 to which the applicant replied he only owed them $17,000. Later, the males and the applicant left the restaurant and went to a karaoke.

15. From the late evening of 13 May 2000 to the early morning of 14 May 2000, numerous phone calls were made to the applicant's home asking for the repayment of the debt. Mr Lam managed to bargain the sum down to $25,000. This was later paid into a bank account. The applicant was released at about 1:15 a.m. on 14 May 2000. After the applicant spoke to his relatives, he then realised that his family was tricked into paying $25,000 instead of $17,000.

16. When the applicant telephoned his family, he was told to report the matter to the police. While the applicant was going to the Mongkok Police Station to do so, he saw one of the males who accompanied him earlier. He called the police but by the time the police arrived, the male was already gone. The applicant later gave a statement at the Yaumatei Police Station about the incident.

The Disciplinary Proceedings and the Internal Appeal

17. On 11 September 2000, the applicant was informed that a disciplinary charge would be laid against him. The charge was that his conduct had brought the public service into disrepute, contrary to r. 3(2)(m) of the Regulations. The particulars of the charge were that the applicant borrowed money from persons of undesirable reputation in Macau as a result of which he was accompanied back to Hong Kong and required to remain in the company of persons suspected to be loan sharks until his family had repaid the money owed. The charge further stated that such acts were conduct calculated to bring the public service into disrepute.

18. The disciplinary hearing presided by the adjudicating officer was commenced on 25 September 2000 and continued on 15 and 29 December 2000. The applicant was convicted of the charge on 29 December 2000 and sentenced to "reprimand suspended for 12 months". On 5 January 2001, the adjudicating officer reviewed the sentence and imposed one of "reprimand without suspension". Both the conviction and sentence were confirmed by a Senior Police Officer on 9 January 2001.

19. On 3 April 2001, the Force Disciplinary Officer informed the applicant that he proposed to award an "Order to resign immediately without salary in lieu of notification" and invited him to show cause. On 10 April 2001, the applicant submitted his representations but these were limited to his sentence and no point was raised regarding his conviction. On 17 April 2001 the Force Disciplinary Officer imposed the heavier sentence he proposed earlier.

20. On 9 May 2001 the applicant appealed to the Commissioner of Police. The appeal covered matters relevant to both conviction and sentence. On 14 June 2001, the Deputy Commissioner of Police upheld the decision of the Force Disciplinary Officer and dismissed the applicant's appeal.

21. When the applicant did not resign as ordered, the respondent dismissed him on 22 June 2001.

The Applicant's Conviction

22. Because the "Notice of Application for Leave to Apply for Judicial Review" (Form 86A) dated 23 November 2001 and Notice of Motion dated 13 December 2001 only seek to challenge the decisions set out above, the respondent assumed that the applicant did not challenge the propriety of the decision to find him guilty of the disciplinary charge.

23. However, during the hearing on 2 September 2002, counsel for the applicant argued that the applicant is also challenging his conviction for the disciplinary charge. Counsel for the respondent objected and submitted that, in view of the way in which the applicant's case is set out on paper, it is not open to the applicant to do so.

24. A fair reading of the following documents for use in this application does not show that the applicant's conviction is in issue:-

(a) Form 86A;

(b) Notice of Motion;

(c) Skeleton Arguments for the Applicant ("the applicant's skeleton");

(d) Supplemental Skeleton Arguments for the Applicant ("the applicant's supplemental skeleton").

This is because:-

(1) none of these documents refer to the decision of the adjudicating officer to convict the applicant on 29 December 2000. Nor do they challenge the decision of the Senior Police Officer which on 9 January 2001 confirmed the adjudicating officer's decision;

(2) as set out above in the beginning of this judgment, in the Form 86A, the decisions of the Deputy Commissioner of Police and the Commissioner of Police are referred to immediately after the decision of the Force Disciplinary Officer (to use the words appearing in the Form 86A) "imposing an award of 'Order to resign immediately without salary in lieu of notification'";

(3) the Form 86A relies broadly on two grounds: "unreasonableness/proportionality" and "procedural impropriety: failure to provide adequate disclosure". The first ground is clearly only related to the applicant's sentence: see para. 69, 72 and 75 thereof. Although the second ground is not expressly restricted to sentence, the question of sentence has featured prominently in the court documents. The context in which the relief sought has been referred to in sub-para. (2) above. Further, under the heading "The Charge", the question of sentence is set out in detail at para. 35 to 38, 40 to 42 and 46 thereof;

(4) the two sets of skeleton arguments of the applicant also rely broadly on the above two grounds in support of this application. Similar to the Form 86A, the first ground is clearly related to the applicant's sentence only: see, for example, para. 5, 12, 14 and 15 of the applicant's skeleton. In relation to the second ground, although it is not expressly restricted to sentence, there is nothing in the documents which makes it clear that the judicial review should cover both conviction and sentence.

25. In fact, in view of the way in which the Form 86A was drafted, when leave was given by this court for the applicant to judicially review the decisions, the court also thought that only the applicant's sentence is involved. Not unusually, the applicant's affirmation dated 23 November 2001 in support merely confirms the Form 86A and exhibits the documents in support and does not clarify this matter.

26. As mentioned above, only two grounds have been put forth by the applicant in this application. The first ground (unreasonableness/ proportionality) has no relevance to the applicant's conviction. In fact, during the hearing on 6 March, when submissions relating to this ground were made, the applicant's conviction was not raised at all.

27. Counsel for the applicant first mentioned the applicant's conviction when he was addressing the court on the second ground (procedural impropriety: failure to disclose) during the hearing on 2 September. He did so when he was queried on the relevance of a document known at the hearing as "document (j)" [staffing notes]. Up to then, neither the respondent nor the court was aware that the applicant's conviction is in issue.

28. As will be discussed later (under the heading "Procedural Impropriety: Failure to Disclose"), the applicant argues that the decisions under challenge should be quashed because the applicant relied on 3 documents (other documents are accepted by his counsel to be irrelevant) not disclosed to the applicant at the material time. During the hearing of this application, these documents were respectively called "document (f)" [letter dated 27 April 2001 from the Junior Police Officers' Association to the respondent], "document (j)" [staffing notes] and "document (k)" [minutes of defaulter report] because they appear at para. 3(f), (j) and (k) of the affirmation of Lee Ming Kwai dated 7 February 2002. When it was pointed out that "document (j)" (except point (G) thereof) was only related to the applicant's conviction, counsel for the applicant submitted that it is still relevant because the applicant's conviction is also challenged herein.

29. The dispute caused by the argument of applicant's counsel raised during the hearing on 2 September relating to the applicant's conviction illustrates the need for the applicant's case to be clearly set out in the Form 86A. In the light of the documents referred to above, because:-

(a) on a fair reading of the documents set out above, only the propriety of the applicant's sentence has been raised by him in this application;

(b) on a fair reading of the documents presented to the court at the ex parte application, when the court gave leave to apply for judicial review, the court only intended to give leave relating to the applicant's sentence,

the applicant should not be allowed to raise arguments relating to his conviction in this application. Basic procedural fairness, which is one of the fundamental elements in our judicial system, generally requires litigants to conduct proceedings with openness and adequate notice being given to their opponents. The duty of full and frank disclosure to the court at ex parte applications applies to both the presentation of evidence and the nature of the case relied upon (or to be relied upon) by the applicant.

30. Counsel for the applicant insisted that the court documents filed herein are already sufficient to enable him to challenge the applicant's conviction. No application for leave to amend the application was made. But even if such an application had been made, I would have refused it on the ground of delay and the lack of any evidence explaining the delay.

31. I have concluded that it is not open to the applicant to challenge his conviction. For completeness, I will also discuss the merits of the applicant's challenge regarding his conviction assuming that somehow the applicant should be permitted to do so in this application.

32. Counsel for the applicant submits that there was no or insufficient evidence to establish that the applicant's conduct was "calculated to bring the public service into disrepute". This submission is, first, as the respondent points out, contrary to the applicant's own admission in his written representations to the Force Disciplinary Officer that :-

"[t]hough the mass media and public know nothing about this, the reputation of the Force may also be tarnished because of me. If I commit any wrongful act, not only will I have to bear its consequences, the reputation of the Force or public service will also be greatly damaged".

Secondly, at the time when the applicant was questioned about his personal particulars, he concealed his police identity and falsely claimed that he was a garage worker. This must have been because he considered the reputation of the police would have suffered if he had told those people he was a policeman. This submission is therefore rejected.

33. In relation to the applicant's argument regarding the respondent's failure to disclose document (j) [staffing notes] (other than point (G) thereof), I agree with the respondent:-

(1) the first section thereof was "Background" to which the applicant could not have raised any objection;

(2) the second section thereof was concerned with the salient points of the appeal. The first matter was about a point of law, namely, whether the applicant's statement taken without caution could be used against him in disciplinary proceedings. The law was correctly stated and no valid complaint could have been made by the applicant;

(3) the second matter under the second section was about the adjudicating officer's finding as to whether the persons from whom the applicant borrowed money were illegal money lenders or undesirable characters and whether the applicant knew he had to repay $25,000 at the time when he borrowed $17,000 from them. The author of the staffing notes merely stated that the adjudicating officer had weighed all the evidence and considered the defence argument before he made the finding. This statement was factual and could not be disputed;

(4) the third matter under the second section was concerned with the adjudicating officer's finding that the people who demanded payment from the applicant's family were in the same syndicate as the illegal money lenders. Again, the author of the staffing notes merely stated that the finding was made after the adjudicating officer had considered all the evidence before him. This could not be contraverted by the applicant;

(5) the fourth matter under the second section was related to whether the adjudicating officer's finding was based only on the applicant's statement. The author of the staffing notes stated that, apart from the statement, there were the agreed facts and documentary exhibits in support of the prosecution case. Again, this was factual;

(6) the fifth matter under the second section was about the adjudicating officer's finding that the applicant's conduct was "calculated to bring the public service into disrepute". The author only stated (in essence) that it was within the province of the adjudicating officer to make such a finding after having carefully considered the issue. This is a matter of the proper approach to be adopted and could not be disputed by the applicant;

(7) the sixth matter under the second section was concerned with whether the adjudicating officer had adopted the correct standard of proof. The author of the staffing notes pointed out the proper standard of proof should be akin to that for criminal conviction. If there is any error in saying so, it was an error in the applicant's favour.

34. Hence, the applicant cannot validly complain that he has suffered any prejudice by the respondent's failure to disclose to him document (j).

35. Document (k) is the minutes of defaulter report. The item numbered as M.5 said the following in relation to the applicant's conviction. The charge was properly laid and framed and the proceedings were in order. The prosecution evidence was overwhelming and the defence was weak. The adjudicating officer has given due consideration to the evidence from both sides and he was satisfied that the charge was proven. The applicant's conviction was thus safe and in order.

36. Up to now, the applicant has not lodged any complaint against the charge itself, nor as to the manner of the disciplinary proceedings. In relation to the strength of the prosecution case, in the circumstances of this case, the writer of M.5 was correct in observing that the prosecution case was overwhelming, the defence was weak and the adjudicating officer has given due consideration to the case.

37. The principles or observations of the court of appeal in Leung Fuk Wah Oil v Commissioner of Police CACV No. 2744 of 2001 will be referred to in more detail under the sub-heading "(2) Procedural Impropriety: Failure to Disclose". Adopting the approach of the court of appeal in that judgment, and having concluded that the applicant has not suffered any substantial prejudice, my discretion should be exercised in refusing this part of the application.

The Applicant's Sentence

38. As stated above, the sentence originally imposed by the adjudicating officer on 29 December 2000 was "reprimand suspended for 12 months". On 5 January 2001, the adjudicating officer reviewed his award and substituted it with "reprimand without suspension". This substituted award was confirmed by a Senior Police Officer on 9 January 2001. This penalty has not been challenged in this application.

39. The first time when the sentence now challenged was mentioned was when the Force Disciplinary Officer informed the applicant on 3 April 2001 that he proposed to award an "Order to resign immediately without salary in lieu of notification". The applicant submitted his representations on 10 April 2001. The sentence under challenge was then imposed on 17 April 2001. This was confirmed on appeal on 20 June 2001. When the applicant refused to resign, he was dismissed on 22 June 2001.

40. The applicant puts forth two grounds in support of this application. They will be discussed below under separate sub-headings.

(1) Unreasonableness/Proportionality

41. Submissions relating to this ground were made during the hearing on 6 March 2002. The applicant argues in essence that it is a cardinal principle that executive decisions may be held to be unreasonable if they are unduly oppressive, or that they subject the complainant to excessive hardship, or they amount to an onerous infringement of his interest. Authorities relied upon in support include:-

(a) de Smith, Woolf & Jowell's Principles of Judicial Review (1999) pp. 323-327 and 488-519;

(b) R v Barnsley Metropolitan Borough Council, ex p Hook [1976] WLR 1052, 1057H;

(c) R v Admiralty Board of the Defence Council, ex p Coupland [1996] COD 147;

(d) R v (on the application of Alconbury Development Ltd) v Secretary of State for the Environment, Transport and the Regions and other cases [2001] 2 All ER 929, 976e.

42. The applicant relies on the following findings of the adjudicating officer:-

(1) there is no evidence that the incident was (widely) known outside the police force;

(2) the applicant has only served with the police force for about 5 months (should be one year) before the incident;

(3) he was only 22 years old at the time of the incident;

(4) the sum owed by the applicant was fairly small and he was able to repay it immediately;

(5) the applicant has not gambled beyond his means;

(6) the incident would not have been known to the police if the applicant had not disclosed it himself (when he sought police assistance to arrest one of the suspects);

(7) the applicant was remorseful and his family has gone through a traumatic experience;

(8) the applicant has a good working record.

43. The reasons given by the Force Disciplinary Officer for imposing a heavier sentence can be found in his memo dated 3 April 2001 to the applicant to show cause. He said in that document:-

"[I consider] the award of 'Reprimand' grossly inadequate to reflect the very serious nature and circumstances of the charge. [I view] that your misconduct has cast very serious doubt on your suitability to continue to perform constabulary duties. Not only were you indulged in gambling, you borrowed from persons of undesirable reputation, knowing clearly the serious embarrassing consequence you would end up in. This is a manifestation of your total reckless and irresponsible attitude as well as your complete disregard of the Force's well-publicized stance against excessive gambling and financial imprudence. Your misconduct is totally unacceptable. It has brought the Force into serious disrepute and therefore must not be condoned. Having taken into consideration of your young age, short service and satisfactory performance so far, [I am] considering increasing the award ... to an 'Order to Resign forthwith without salary in lieu of notice' ..."

44. The reasons given by the Deputy Commissioner of Police for dismissing the applicant's appeal were:-

(a) he was satisfied that the applicant's conviction was a safe one;

(b) he was satisfied that the applicant's conduct was calculated to bring the public service into disrepute;

(c) the applicant was young and had one-year's service at the time of offence. However, the nature of the incident leading to the offence was extremely serious. Police officers at all levels were frequently reminded of the danger of being involved in gambling. When the applicant lost all his money in gambling, he borrowed from persons of undesirable reputation, hence leading to the subsequent events. The Force Disciplinary Officer's award was correct;

(d) having considered the applicant's appeal, the Deputy Commissioner of Police was satisfied that his intervention was not warranted

(see the affirmation of Lee Ming Kwai dated 7 February 2002).

45. It is obvious from the above passages that both the Force Disciplinary Officer and the Deputy Commissioner of Police have taken into account all relevant matters relating to the question of sentencing. Some of the matters were in the applicant's favour while others were adverse to him. In view of the authorities set out below, what sentence should be imposed on a convicted person is to a large extent a matter within the province of the sentencing tribunal.

46. As this court observed in Tu Kin Yip v Secretary for Justice, HCAL No. 1475 of 2001 (19 April 2002):-

"29. ... it is usually inappropriate in a judicial review for the court to conduct an examination of the minutiae of the materials given at a disciplinary hearing so as effectively to usurp the responsibility of the tribunal:-

(1) Yu Yau Tak v Commissioner of Police and Anor. [2001] 2 HKC 627;

(2) Reid v Secretary of State for Scotland [1999] 2 AC 512,

even less to act as a court of appeal:-

(1) Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1173;

(2) Leung Fuk Wah Oil (first instance), para. 24 of the judgment;

(3) R v ITC exp TSW Broadcasting Ltd [1996] JR 185;

(4) Au-Yeung Kwok Hing v The Attorney General for and on behalf of the Commissioner of Police , unrep., Civ. App. No. 205 of 1994;

(5) Kwok Wai-hung v Commissioner of Police , unrep., Civ. App. No. 104 of 1996;

(6) So Chung v Commissioner of Correctional Services, unrep., HCAL No. 2438 of 2000.

This is so with regard to disciplinary proceedings for disciplined forces:-

(1) Tong Poh Wah v Hong Kong Society of Accountants [1998] 2 HKLRD 427;

(2) Leung Fuk Wah Oil, para. 25 of the judgment;

(3) Chan Kim Hung v Commissioner of Police , unrep., HCAL No. 2400 of 2000.

I do not find any justification in this application for departing from the above approach."

47. In Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] FSR 113, the House of Lords discussed the function of an appellate court:-

"... because the decision involves the application of a not altogether precise legal standard to a combination of features of varying importance, I think that this falls within the class of case in which an appellate court should not reverse a judge's decision unless he has erred in principle: see Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605 at 612-613. I agree with Buxton LJ in Norowzian v Arks Ltd (No. 2) [2000] F.S.R. 363 at 370 when he said:

... [W]here it is not suggested that the judge has made any error of principle a party should not come to the Court of Appeal simply in the hope that the impression formed by the judges in this court, or at least by two of them, will be different from that of the trial judge" (at p. 122).

The above passages were concerned with the role of the court of appeal regarding the trial judge's finding that there was copying of the plaintiff's copyright work. But they can equally be applicable to a disciplinary tribunal's (whether first instance or appellate) power of sentencing. The applicant's sentence may be considered by some to be too severe and it may be considered by others to be too light. But, at the end, none of the decisions relating to the applicant's sentence can properly be said to be out of proportion to the nature of the charge for which he has been convicted.

48. The police force has made it well known to its officers its firm stance against their involvement in gambling. The applicant has not only gambled, he has put himself in a position where he had to borrow from persons of undesirable reputation. Any police officer should know that this would result in his being detained by them, and being escorted back to Hong Kong where his family would be coerced (or tricked) into paying an exorbitant sum for his release. As it turned out, the applicant, and his family, was in fact so treated (or mistreated) by those persons.

49. In relation to whether the sentence was too severe, the respondent further relies on the point that, since the applicant was a police officer with a relatively short period of service (of less than 10 years), he could have been dismissed by the respondent with not less than 1 month's advanced notice or 1 month's wages in lieu: s. 23(1), Police Force Ordinance (Cap. 232). In view of the conclusion reached above, I do not find it necessary to decide the correctness of this point. Without making a definitive conclusion, it appears that this point may assist the respondent's case.

50. The decision-makers have not committed any error in principle. Counsel for the applicant complains that the decision-makers have erred in saying the applicant has been a habitual gambler when he alleged that the applicant "indulged in gambling". I disagree because, in context, all that the decision-makers were saying was that the applicant gambled.

51. Counsel for the applicant also challenges the respondent's comments that the applicant's gambling was excessive on the ground that the applicant has the means to repay the amount he lost. With respect, it is within the respondent's province to make the comment in view that the applicant lost $30,000 in one day when his salary in one month was much less than that.

52. For the above reasons, this part of the application is also rejected.

(2) Procedural Impropriety: Failure to Disclose

53. When this application was heard on 6 March 2002, judgment was reserved by the court of appeal in the appeal in Leung Fuk Wah Oil v Commissioner of Police CACV No. 2744 of 2001 (the hearing dates of the appeal were 28 February and 4 March 2002). It was known from the first instance court judgment that a similar point has been raised in that judicial review application. Both the court and counsel for the respondent considered it desirable to adjourn this part of the application to await the court of appeal's decision. For this reason, the hearing was adjourned despite the contrary view of counsel for the applicant. Judgment in Leung Fuk Wah was handed down on 28 March 2002. The hearing of this application was resumed on 2 September when arguments related to this ground were advanced.

54. The court of appeal has made some observations in Leung Fuk Wah regarding the way in which the courts should deal with allegations of a failure to disclose documents in the context of judicial review applications. Counsel for the parties herein accept during the hearing on 2 September 2002 that those observations are highly relevant to the facts in this application. Before turning to the facts in the present application relating to this ground, it is of help to refer to the relevant observations in Leung Fuk Wah.

55. Similar to this application, the appeal in Leung Fuk Wah was concerned with a judicial review brought by a police sergeant who has been convicted of a disciplinary charge and was penalised by (among other things) dismissal from the police. One of the grounds advanced by him in the judicial review proceedings was, as in this application, procedural impropriety in failing to disclose to the applicant materials which were considered by the appellate tribunal.

56. The court of appeal agreed with the first instance court that the principle of fairness applies to the statutory power of the respondent relating to disciplinary appeals to him. Applying R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531, the court of appeal concluded that:

"Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf ... Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

57. The court of appeal then noted two lines of authorities. One line decided in effect that, once there is non-disclosure of materials, it is not for the court to inquire whether the materials not disclosed to the applicant in fact prejudiced him, it is sufficient if they might do so; the court will not examine the likelihood of prejudice, such a risk is enough: see, for example, B Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322, General Medical Council v Spackman [1943] AC 627 and Chan Tak Shing v Chief Executive of the HKSAR [1999] 2 HKLRD 389. On the other hand, the other line of authorities emphasised the importance of looking at the substantial prejudice to the applicant. For instance, it has been said:-

"A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain": Malloch v Aberdeen Corporation [1971] 1 WLR 1578;

"On reading those cases, it seems to me that there is no such thing as a 'technical breach of natural justice' ... You should not find a breach of natural justice unless there has been substantial prejudice to the applicant ... ": George v Secretary of State for the Environment and Anor. [1979] 77 LGR 689.

58. The court of appeal in Leung Fuk Wah reconciled the two lines of authorities by concluding that, because judicial review is a discretionary remedy, the court is bound to take into account a breach of the principle of fairness which does not involve a substantial prejudice to the applicant. This is consistent with the principle that the court should not substitute its own decision for that of an administrative decision-maker.

59. At the end, the court of appeal in Leung Fuk Wah found that the materials undisclosed to the appellant did not add anything to those already disclosed to him and, hence, the administrative decision would have been the same even if proper disclosure had been made. The court of appeal exercised its own discretion (since the first instance court did not find it necessary to do so) to refuse the judicial review application.

60. In this application, counsel for the applicant relies on 3 documents which admittedly have not been disclosed to the applicant: the documents known herein as "document (f)", "document (j)" and "document (k)". Document (j) [staffing notes] (except point (G) thereof) is related solely to the applicant's conviction and has been dealt with herein earlier.

61. Document (f) was the letter dated 27 April 2001 from the Junior Police Officers' Association to the respondent. This was written apparently as a result of the applicant seeking assistance from the Association. The letter drew the respondent's attention to the following:-

(a) the applicant was remorseful;

(b) if the applicant lost his work, his family would suffer financially because his elderly parents rely on the applicant's income;

(c) the applicant's superiors and colleagues all regarded him as hard-working, obedient and willing to shoulder up responsibilities;

(d) the incident was disclosed by him of his own volition.

The above matters were all in the applicant's favour. I do not accept the contention of counsel for the applicant that the failure to disclose this document has prejudiced the applicant.

62. Point (G) of document (j) was about the relevance of the applicant's good background to the sentence to be imposed. The author of the staffing notes stated that the sentence awarded by the Force Disciplinary Officer was imposed after careful consideration of all the circumstances including the applicant's mitigation and written representation. This was factual and did not warrant any further comment by the applicant.

63. Document (k) was the minute of defaulter report. There were 12 items respectively numbered M.1 to M.12. M.1 to M.4 were not concerned with the sentence now under challenge and so are irrelevant for present purposes. Only M.5 and M.6 touched on the reasons for increasing the applicant's sentence to the one now under challenge (M.6 was written by the Force Disciplinary Officer himself). However, the reasons given therein were in essence the same as those which the Force Disciplinary Officer stated in his memo dated 3 April 2001 asking the applicant to show cause why his sentence should not be increased. The applicant has had the opportunity to (and in fact did) submit his representations on 10 April 2001. M.7 merely set out a summary of the applicant's representation and stated that none of the points he raised have sufficient merits to overturn the increased sentence. M.8 contained the same comment as in M.7. M.10 was concerned with the applicant's request for the record of proceedings and time extension for appeal. M.12 recommended the dismissal of the applicant's appeal and relied on the reasons given in the staffing notes (see the paragraphs relating document (j) above).

64. The applicant's contention that he has suffered prejudice because of the non-disclosure of the above documents is set out in a document headed "Points By Way Of Reply".

65. In relation to document (f), he contends that he would be able to rely on the sympathetic stance expressed in that document. I do not see how the position could have been different. The sympathetic stance in the letter must have been known to the respondent. The letter was written with the specific purpose of mitigating for the applicant.

66. In relation to documents (j) and/or (k), the applicant's contention amounts to no more than what he had advanced during the disciplinary proceedings and his written representations dated 10 April 2001. In fact, some of the points of contention are plainly unmeritorious. For example, the applicant contends that:-

(1) when he was cross-examined during the disciplinary proceedings, he did not back down from his earlier assertion that he reported to the police not because of the unlawful detention but because his family had been deceived of the money;

(2) there was no evidence the persons who lent money were of undesirable reputation;

(3) at the time when he borrowed money, he was unaware of the serious embarrassing consequence he would end up with;

(4) he was not financially imprudent;

(5) he was unaware of what was the police force's well publicised stance against excessive gambling and financial imprudence;

(6) there was no evidence his conduct has brought the police force into disrepute.

67. In short, I agree with the respondent's argument that the applicant has not been prejudiced by the non-disclosure of documents. My discretion should be exercised in refusing this part of the application as well.

Conclusion

68. To conclude, the application is refused.

Costs

69. There is no apparent reason to justify a departure from the usual rule that costs should follow the event. There will be a costs order nisi that costs of this application (including any reserved costs) be to the respondent to be taxed if not agreed. The applicant's own costs are to be taxed in accordance with the Legal Aid Regulations.