CHAN CHI WAI v. COMMISSIONER OF POLICE

HCAL 18/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 18 OF 2010

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BETWEEN

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D E C I S I O N

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I. INTRODUCTION

1.  Mr Chan, a former police constable, seeks leave to apply for judicial review against decisions made in disciplinary proceedings against him.  Those disciplinary proceedings took place between February and August 2004. There has consequently been a delay of about 6 years between the time of those proceedings and Mr Chan’s application for judicial review.

2.  Mr Chan says that his decision belatedly to seek judicial review has been prompted by the Court of Final Appeal’s recent judgment in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575.  Prior to Lam, Police (Discipline) Regulations (PDR) rr. 9(11) and (12) prohibited police officers from being represented in disciplinary hearings by lawyers who were not also police officers.  On 26 March 2009, the Court of Final Appeal in Lam struck down that blanket prohibition in PDR rr. 9(11) and (12) as contrary to Article 10 of the Hong Kong Bill of Rights.

3.  Normally, a judicial review must be brought within 3 months of a relevant decision.  I am prepared to accept that, after the decision in Lam, Mr Chan acted promptly in bringing his application.  Nonetheless, there remains the stark reality that the decisions complained off were made many years ago.  Mr Chan is thus undoubtedly long out of time.  He requires the 3-month limitation for judicial review to be extended by this Court.

4.  However, “time should not be extended ... only on the ground that an authoritative judgment has held the previous understanding of the law to be incorrect”.  If time for bringing judicial review is to be extended, Mr Chan must show “exceptional circumstances” justifying the grant of such an extension.  See Li CJ in HKSAR v Hung Chan Wa (2006) HKCFAR 614 at paras. 24-25.  In my view, High Court Ordinance (Cap. 4) s. 21K(6) (giving the Court jurisdiction to extend time for the brining of judicial review) must be read subject to the common law principle articulated by the Court of Final Appeal in Hung.

5.  Ms Margaret Ng (appearing for Mr Chan) submits that there are 2 bases for extending time in the present case.  Those are:-

(1)	The 2004 disciplinary proceedings were unfair and unlawful because Mr Chan was deprived of the opportunity to be represented by a lawyer of his choice in those proceedings.  If Mr Chan had been represented by a lawyer of his choice, the outcome of the proceedings may well have been different.
(2)	There was “error on the face of the record” because the relevant disciplinary tribunals simply accepted Mr Chan’s guilty plea on the question of liability.  The tribunals should have rejected the plea.

6.  I have to decide whether the bases advanced by Ms Ng constitute “exceptional circumstances” justifying the grant of an extension of time to apply for judicial review.

II.      BACKGROUND

7.  Mr Chan joined the police on 6 August 1984 after training as a cadet.

8.  In March 2002 he had accumulated debts totalling $811,140.  According to him, those debts resulted from helping his father to acquire and furnish a house in the Mainland and from financing his girl-friend’s unsuccessful venture into the restaurant business in New York.  Mr Chan strenuously denies that any of his debts were the result of gambling.

9.  Mr Chan petitioned for bankruptcy on 4 March 2002.  He was adjudicated bankrupt on 27 May 2002.

10.  Following an internal investigation, the police brought 5 disciplinary charges against Mr Chan.  He was charged with failing to report his bankruptcy petition to his command unit contrary to Police General Order (PGO) 6-01(4) (Charge A); financial imprudence leading to operational impairment contrary to PGO 6-01(8); and conduct “calculated to bring the public service into disrepute” in that he had furnished false information about his indebtedness on 3 separate occasions between December 2000 and August 2001 (Charges C, D and E respectively).

11.  On 23 February 2004 there was a disciplinary hearing on the 5 charges before Mr Lee Ying Min as Adjudicating Officer.  Mr Chan was represented by a police officer.  He agreed to the Brief Facts and Exhibits and pleaded guilty to all charges.  Mr Lee found him to be guilty and referred the matter to Mr D W F O’Brien (a Senior Police Officer (SPO)) for sentencing.

12.  On 5 March 2004 Mr Chan appeared before the SPO.  The SPO asked Mr Chan whether, before sentence was passed, Mr Chan wished “to make any further representations either verbally or in writing”.  Mr Chan replied in the negative.  The SPO then confirmed the findings of guilt and imposed a severe reprimand on Charge A and a sentence of compulsory retirement with deferred benefits on Charges B to E.

13.  The matter then went to Mr Chan Wai Ki (Force Discipline Officer (FDO)) on 7 April 2004 for confirmation.  The FDO agreed with the severe reprimand on Charge A.  But he held that the SPO’s sentences on Charges B to E had been made in excess of the SPO’s powers.  The FDO thought that a severe reprimand plus an additional sentence of compulsory retirement with deferred benefits was appropriate on Charge B.  On Charges C to E, the FDO thought that severe reprimands were warranted.  The FDO invited Mr Chan to make written representations as to why the FDO’s proposed sentences on Charges B to E should not be made.

14.  Mr Chan made written representations to the FDO on 16 April 2004.

15.  The FDO confirmed his proposed sentences on 19 April 2004.  Mr Chan was so informed on the next day.

16.  Mr Chan appealed to the Commissioner against his sentences in May 2004.  On 2 June 2004 the Commissioner invited him to make written representations in support of his appeal.  For that purpose, the Commissioner provided Mr Chan with a copy of a Staffing Note prepared by the Discipline Division of the police in connection with Mr Chan’s appeal.  Mr Chan submitted written submissions on 24 June 2004.

17.  In July 2004 Mr Foo Tsun Kong (Acting Deputy Police Commissioner (Manpower)) dismissed Mr Chan’s appeal.  On 4 August 2004 the Commissioner so informed Mr Chan and directed that Mr Chan be compulsorily retired from 7 August 2007.

18.  By this application for judicial review, Mr Chan seeks to quash the decisions of Mr Lee, the SPO, the FDO and Mr Foo and the decision and acts of the Commissioner consequent upon such decisions.

19.  Apart from the disciplinary charges summarised above, Mr Chan had an unblemished police record.  His performance has variously been described as “very good” and “good”.

III.     DISCUSSION

A.      Ground 1: Unfair denial of legal representation

20.  Lam concerns the availability of legal representation in a disciplinary hearing.  The Court of Final Appeal held that PDR rr. 9(11) and (12) were unconstitutional insofar as they categorically barred a police disciplinary tribunal from even considering whether, in the interests of justice and fairness, an officer should be allowed legal representation.

21.  It will be noticed that the decisions of the FDO and Mr Foo were based on documents and written submissions alone.  There was no oral hearing before the FDO and Mr Foo.  Nothing in PDR rr. 9(11) and (12) prevented Mr Chan from consulting lawyers of his choice in connection with the written submissions which he addressed to the FDO and Mr Foo.  Nothing in those regulations prohibited Mr Chan from instructing lawyers to draft his submissions.  It follows that the ratio of Lam has no bearing or relevance on the proceedings before the FDO and Mr Foo.  Mr Chan had every opportunity to seek legal advice and assistance in the preparation of his written submissions to the FDO and Mr Foo.  There can be no question as far as those decisions are concerned of an unfair denial of legal representation.

22.  Insofar as the decision of Mr Lee is concerned, there was no dispute as to the relevant facts (all of which Mr Chan accepted).  There was no oral hearing of the evidence.  Nor did Mr Chan dispute his guilt on the 5 charges.  Instead, when asked, he simply pleaded guilty to the 5 charges.

23.  Nothing in PDR rr. 9(11) and (12) prevented Mr Chan from consulting whatever lawyers of his choice prior to appearing before Mr Lee.  Nothing prohibited Mr Chan, in advance of his hearing, from seeking legal advice on whether to agree the Brief Facts and Exhibits relied upon by the prosecution and whether to plead guilty.  There is nothing in the evidence before me to explain whether Mr Chan consulted a lawyer for such purposes and (if not) why not.

24.  Further, there is nothing in the evidence filed in support of Mr Chan’s present judicial review to suggest that he was somehow coerced into agreeing the facts and pleading guilty.  Mr Chan must be presumed to have acted as he did (in agreeing facts and pleading guilty) of his own free will and in the context of having had every opportunity to consult lawyers before so doing.

25.  I am therefore unable to see how Lam supports a conclusion that the hearing before Mr Lee was procedurally unfair insofar as conviction on the 5 charges is concerned.  It is true that sentencing remained a live issue following Mr Chan’s guilty plea.  But Mr Lee did not sentence Mr Chan.  Mr Lee referred the question of sentencing to the SPO.

26.  The SPO’s decisions on Charges B to E were quashed by the FDO on the latter’s own motion.  There is therefore nothing of the SPO’s decisions on Charges B to E left for the Court to quash.  The SPO’s decisions on Charges B to E are simply nullities.

27.  That leaves the SPO’s decision on Charge A.  On this, it is to be noted that the SPO gave Lam the opportunity to make further written or oral submissions.  Nothing prevented Mr Chan from consulting lawyers prior to the hearing before the SPO as to what submissions (if any) he should make on sentencing.  Nothing prohibited Chan from accepting the SPO’s invitation to file written submissions.  Those written submissions could (if Mr Chan wished) have been drafted by a lawyer of his choice.

28.  Mr Chan, however, opted to make no submissions of any sort on sentencing to the SPO.  There is no evidence that Mr Chan was somehow cowed by whatever circumstance into making no submissions.  Again Mr Chan must be assumed to have so acted of his own volition and in the context of having had every opportunity to consult lawyers beforehand as to what he should do.

29.  Thus, on the SPO’s decision in relation to Charge A, Lam has no real relevance.  It is true that Mr Chan could not have made oral submissions to the SPO through a lawyer.  But he had been given a chance to submit something in writing which could have been drafted by a lawyer.  Mr Chan chose not even to do that.  As far as legal representation before the SPO is concerned then, I am unable to see substantive unfairness in the procedure.

30.  The Commissioner directed Mr Chan to resign as a result of Mr Foo’s rejection of Mr Chan’s appeal.  Given that I am unable to see how Lam has any bearing on Mr Foo’s decision, it follows that Mr Chan likewise has no basis for impugning the Commissioner’s conduct.

31.  In summary, Mr Chan grounds his late application for judicial review on the fact that Lam has only recently been conclusively decided.  But, on closer analysis, even ignoring a need to show exceptional circumstances, it is apparent that the ratio of Lam has no real or significant application to Mr Chan’s disciplinary proceedings.  Ground 1 fails as a basis for extending time.

B.      Ground 2: Error on the face of the record

32.  PGO 6-01(8) requires a police officer to be prudent in one’s financial affairs.  It provides that serious pecuniary embarrassment which leads to the impairment of an officer’s operational efficiency will result in disciplinary action.

33.  Ms Ng submits that there is “error on the face of the record” because all decision makers assumed that Mr Chan’s bankruptcy was irrefutable evidence that his “operational efficiency” as a policeman had been impaired.  In so assuming, the various disciplinary tribunals (Ms Ng says) wrongly applied the Court of Appeal’s decision in Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653.  Ms Ng contends that the disciplinary tribunals ought for this reason to have rejected Mr Chan’s guilty plea.

34.  In Leung the Court of Appeal suggested (at para. 28) that the fact of bankruptcy would render “inevitable” a conclusion that an officer’s operational efficiency had been impaired and (at para. 84) “it was not necessary to adduce further evidence on the impairment of efficiency”.

35.  But, as Ribeiro PJ observed in Lam (at paras. 153-162), Leung was concerned with the 1993 version of PGO 6-01(8).  The text of that provision is significantly different from that of the 1999 version under which Mr Chan was charged.  In particular, on the wording of the 1999 version, it cannot be assumed that proof bankruptcy without more automatically implies operational impairment.

36.  I shall assume that the various decision-makers here took it for granted that Leung was applicable and blindly applied Leung to Mr Chan’s case.  By “error on the face of the record” Ms Ng means little more that on the available documents there is evidence that different decision-makers relied on Leung in coming to their decision.  But I note that the totality of evidence before me suggests that in actuality the various decision-makers, while aware of Leung, did not simply apply that case to the facts.  The decision-makers also appear to have considered the sufficiency of the evidence in respect of operational impairment.

37.  Nonetheless, even on the favourable assumption which I have made, plainly Mr Chan did not have to wait for the decision in Lam to mount a judicial review against the relevant proceedings.  On the evidence before me, nothing prevented Mr Chan from seeking judicial review in 2004 against all the decisions on the basis that there was no or no sufficient evidence on which a reasonable tribunal could conclude that there was operational impairment within the terms of the 1999 version of PGO 6‑01(8).  Indeed, Mr Chan himself raised the point on operational impairment in his written submissions to various disciplinary tribunals (such as the FDO and Mr Foo).  For whatever reason, he opted not to pursue the point on a judicial review at the time.

38.  One did not need to wait for Lam to argue that, to the extent that relevant disciplinary tribunals had relied on Leung, they had acted impermissibly.  A lawyer carefully reading Leung in 2004 could readily have ascertained that which Ribeiro PJ observed in Lam in 2009, namely, that Leung concerned a superseded version of PGO 6-01(8).

39.  It follows that the recent decision in Lam provides no basis for excusing the delay in bringing judicial review, much less a ground for extending time.

C.      Summary

40.  The authorities are clear that the clarification to the law recently brought about by Lam is by itself insufficient ground for extending time.

41.  In reality, Ms Ng is unable to point to any exceptional circumstance for extending time other than what (Ms Ng submits) should now be recognised as unfairness in light of the Court of Final Appeal’s decision in Lam (including Ribeiro PJ’s comments there on Leung).  But even ignoring the requirement of exceptional circumstance and just applying the ratio of Lam to the circumstances of Mr Chan’s case, I do not see how Lam has a substantive bearing on the validity of the relevant decisions.

42.  Accordingly, however I sympathise with Mr Chan’s position, I can discern no good explanation or excuse for the unduly long time which it has taken to bring this judicial review.

IV.     CONCLUSION

43.  Leave to apply for judicial review is refused.