LAM SIU PO v. COMMISSIONER OF POLICE

HCAL 7/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS

NO. 7 OF 2003

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J U D G M E N T

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Introduction

1.  This is an application for judicial review.  The applicant was a police constable whose service with the respondent was terminated on 23 October 2002 when he was compulsorily retired from the Police.

Proceedings Prior to 25 October 2004

2.  The application for leave to apply for judicial review was made on 21 January 2003.  At that time, the applicant acted in person and lodged with court what can be called a “home-made” “Notice of Application for Leave to Apply for Judicial Review” (“Form 86A”) (in Chinese).

3.  Direction was given for the application for leave to be heard inter partes.  At the scheduled hearing on 24 March 2003, the applicant sought, and was granted, an adjournment to enable an amended Form 86A to be lodged with court.

4.  The Amended Form 86A was lodged with court on 28 March 2003.  Having perused it, I granted leave in relation to para. 6 to 9 (heading “重要契約條款不容以行政手法單方面更改”), 21 to 25 (heading “重新聆訊違反香港人權法條例”), 26 to 27 (heading “發還重審的決定遠超法定時限”), 33 (heading “警隊的紀律聆訊違反香港人權法第一條”), 35(1) to 35(2) and 35(4) (heading “重審前後的不公平事項”) thereof.  Pursuant to RHC Ord. 52 r. 3(3), I also directed that there be an inter partes hearing if the applicant wishes to be heard in relation to para. 10, 11 to 19, 20, 28 to 32, 34(1) to 34(4), 35(3), 35(5), 36 to 38, 39 to 44 and 45 to 55 thereof.

5.  At another hearing on 5 January 2004, the applicant was represented by solicitors assigned by the Director of Legal Aid.  His solicitor sought, and was granted, an extension of time to file and serve a notice of motion (in compliance with Ord. 53 r. 5(1) and 5(5)).  He also confirmed the applicant would only rely on the grounds of application for which leave had earlier been granted.

6.  The applicant took out an application for leave to re-amend the Amended Form 86A on 18 October 2004.  The draft Re-Amended Form 86A sets out 7 grounds of application:-

(1)     the original disciplinary hearing was materially irregular and unfair (para. 9 thereof);

(2)     the verdict of the original disciplinary hearing was based on a mistake of law (para. 10 to 18 thereof);

(3)     the re-hearing order was ultra vires and unlawful (para. 19 thereof);

(4)     the re-hearing was materially unfair (para. 20 thereof);

(5)     unconstitutional restriction of choice of representation at the disciplinary hearings (para. 21 thereof);

(6)     the award was disproportionate; alternatively, it was Wednesbury unreasonable (para. 22 to 23 thereof);

(7)     overall unfairness (para. 24 to 26 thereof).

The application also seeks leave to proceed with grounds 1, 2 and 6 above.  The marginal note to the summons refers to Ord. 53 r. 3.  This must have been a reference to Ord. 53 r. 3(6) which reads:-

“… the Court hearing an application for leave may allow the applicant's statement to be amended, whether by specifying different or additional grounds or relief or otherwise … ” (emphasis supplied).

That provision only applies to an application for leave.  However, by reason of the history of the proceeding set out above, by 18 October 2004. leave was already granted, and the hearing was for the judicial review application.  It would appear the more appropriate provision is Ord. 53 r. 6(2) which provides:-

“The Court may on the hearing of the motion … allow the applicant to amend his statement, whether by specifying different or additional grounds or relief or otherwise …” (emphasis supplied).

I shall consider this part of the application on the basis it was made pursuant to this rule.

The Application for Leave to Re-amend the Amended Form 86A

7.  The applicant argues that the proposed re-amendments are mainly a “tidying up exercise” involving no new facts.  The respondent disagrees and contends that proposed grounds 1, 2, 4, 6 and 7 are new grounds.

8.  Shortly into the hearing, I suggested the parties to address the court on both the application for leave to re-amend and the judicial review application at the same time and they did so.

9.  Both applications will therefore be considered together in the paragraphs below.

Background Leading to the Judicial Review Application

10.  The background facts are largely undisputed.  The applicant joined the Police as a constable in November 1988.

11.  In 2000, the applicant petitioned for his own bankruptcy after having incurred substantial debts.  His reason for the indebtedness was unsuccessful investment in the stock market.

12.  Subsequently, disciplinary proceedings were commenced in December 2000 wherein he faced a disciplinary charge of contravention of police order PGO 6-01(8).  The charge read:-

“… you are charged that on 26 September 2000, in Hong Kong, you did fail to be prudent in your financial affairs by incurring unmanageable debts of about HK$620,000 that resulted in serious pecuniary embarrassment as evidenced by the making of a bankruptcy order against you whereby your operational efficiency as a police officer was impair … ”.

13.  The applicant was convicted of that charge on 2 March 2001.  On 13 March 2001, that conviction was confirmed and the penalty imposed was dismissal.

14.  On 9 August 2001 (about 5 months later), the Force Disciplinary Officer (“FDO”) set aside the conviction and ordered a re-hearing of the charge.  The applicant objected the re-hearing but the decision was maintained by the FDO.

15.  The re-hearing commenced on 14 December 2001.  The applicant was unrepresented and was found guilty on 27 March 2002.  The original penalty imposed on 4 April 2002 was “compulsory retirement with deferred benefits” suspended for 12 months.  However, on 15 July 2002, the FDO increased the penalty to immediate execution.  As stated above, the applicant was compulsorily retired on 23 October 2002.

(1)   Proposed Ground 1

16.  The applicant complains that the adjudicating officer breached the rules of natural justice in that he convicted the applicant without giving the defence an opportunity to address the disciplinary tribunal.  The applicant asks for the guilty verdict to be quashed.

17.  The respondent’s short answer to this complaint is the original disciplinary proceedings were already set aside by the FDO on 9 August 2001.  The re-hearing never relied on the findings made, or penalty imposed, in the original proceedings.  Therefore, this complaint is futile.  The court should not grant leave to re-amend to permit this ground to be raised.

18.  In short, I agree with the respondent’s above argument.  It is inconceivable the original disciplinary proceedings would be relied upon by the respondent any more, or that the applicant would suffer any substantial prejudice because of those proceedings since 9 August 2001 (the date of the re-hearing order).

19.  In this connection, I repeat what was said in the decision in Building Authority v. Appeal Tribunal (Building) and Another HCAL 8/2004:-

“Having considered the decision in Leung Fuk Wah Oil v. Commissioner of Police [2002]3 HKLRD 653, this application should be refused irrespective of the validity of these complaints [concerning alleged procedural irregularities in the determination].

The court of appeal said in Leung Fuk Wah Oil:-

‘These two lines of views [one line emphasising the importance of procedural irregularities and the other emphasising substantial prejudice] were drawn together recently by Lord Steyn in Boddington v. British Transport Police[1999] 2 AC 143 at page 174 when he said :

“It is true that cases could occur where it might be right in regard to an established ground of judicial review to refuse a discretionary remedy and in that respect absence of prejudice may be a relevant factor .... But that is altogether different from saying that prejudice is an element that an applicant must prove to establish a ground of review. ”

Judicial review is a discretionary remedy. If the breach of the principle of fairness does not produce a substantial prejudice to Building Authority, the court is bound to take this into account in deciding whether relief should be given. This is consistent with the concept that the court should not substitute its own decision for that of the decision-maker’ (para. 40);

‘Having considered all the circumstances of this case, it is abundantly clear that the disclosure of the new documents to [the respondent] would not have made the slightest difference to his petition to the [applicant]. Despite the submission that new matters were raised in the undisclosed materials, many were not new matters. Also, he could either have made the representation in the petition or the matter is so apparent that no amount of arguments would have made a difference to the outcome of the appeal.

Judicial review being a discretionary remedy, if [the respondent] does not, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision. This is what happens here. As the judge was not invited to consider the question of discretion, we are entitled to exercise the discretion ourselves. The discretion should be exercised against the granting of any relief. The [applicant’s] appeal must be allowed’ (para. 75 to 76)” (emphasis supplied)  (para. 38 and 39 thereof).

(2)   Proposed Ground 2

20.  Similar to proposed ground 1 above, this relates to the original disciplinary proceedings.  It concerns the lack of evidence regarding the impairment of the applicant’s operational efficiency.  Reliance is placed on certain parts of the testimony of the applicant’s superior officers, namely, sergeant 50271, inspector Li Hon Lam and CIP Wong Koon-ho.  The applicant argues that the disciplinary tribunal should have found he has no case to answer.

21.  The respondent likewise submits that such a complaint is pointless because the original proceedings have already been set aside.

22.  For the reasons set out under the previous sub-heading (especially para. 19 above), I also agree with the respondent.

23.  Because the matter may be relevant to other grounds below (see, for example, “(5) Proposed Ground 5”), I should point out it is not entirely correct to say there was no evidence regarding the impairment of the applicant’s operational efficiency (as opposed to his personal competence and performance).  Three prosecution witnesses testified about this aspect: sergeant 50271, inspector Li and CIP Wong.

24.  In brief, the sergeant’s testimony was focused on the applicant’s personal competence and performance.  However, the adjudicating officer was quite entitled to treat the following parts of the testimony of inspector Li and CIP Wong as evidence of impairment of operational efficiency:-

(a)	inspector Li’s testimony to the effect the applicant has to report to his superiors and seek assistance when the applicant has to handle public money and that consequently the applicant could not be tasked to perform special duties such as cash escort to court;
(b)	CIP Wong’s testimony to the effect that, in accordance with the Administrative Instructions, the applicant could not be posted to certain units and duties or to handle cash, public money and exhibits.

(3)   Proposed Ground 3

25.  This is a ground for which leave has earlier been given (in relation to the Amended Form 86A).  In essence, the applicant contends the re-hearing order was ultra vires and unlawful.

26.  The reasons put forth in the draft Re-Amended Form 86A in support can be summarised as follows.

27.  R. 14(1)(a), Police (Discipline) Regulations (Cap. 232A) provides:-

“Within 14 days from the date of any finding or award made by an appropriate tribunal, a senior police officer shall … in respect of the finding … set aside the finding and order a rehearing of the case on the same or other charges by another appropriate tribunal …” (emphasis supplied).

28.  On 13 March 2001, the senior police officer has already notified the applicant that, in exercise of his power under r. 14(1)(a)(i), he confirmed the conviction and, in exercise of his power under r. 14(1)(c), imposed the award of dismissal.

29.  The senior police officer having done so, the FDO has no power under r. 14(1)(a) to order that there be a re-hearing.  He is only empowered to order a re-hearing by r. 14(5)(a)(iii) which reads:-

“Within 14 days of the receipt by him of a Defaulter Report forwarded to him under [r. 14(4)] the Force Discipline Officer shall, except where a senior police officer has ordered a rehearing of the case under [r. 14(1)(a)(iii)] … in respect of the finding … set aside the finding and order a rehearing of the case on the same or other charges by another appropriate tribunal … ” (emphasis supplied).

However, the factual situation in this application does not fall within that provided for in r. 14(5)(a)(iii).

30.  The above complaint has no merit.  The powers exercisable by the senior police officer pursuant to r. 14(1)(a) has nothing to do with those exercisable by the FDO pursuant to r. 14(5)(a); they are independent of each other.  Subject to the complaint about delay (which will be dealt with below), I do not agree that r. 14(5)(a) was inapplicable to the facts involved in this application.  As the respondent correctly points out, the senior police officer merely confirmed the findings of the adjudicating officer in the original disciplinary hearing.  It is clearly not a case:-

“… where a senior police officer has ordered a rehearing of the case under [r. 14(1)(a)(iii)] … ”.

31.  It should be noted the reasons put forth in the applicant’s skeleton submission in support of this ground are different from those summarised above; they are similar to (but not exactly the same as) those set out in para. 26 to 27, Amended Form 86A (both of which focus on the question of delay in the exercise of the FDO’s powers).  The reasons put forth in the skeleton submission are briefly as follows.

32.  The FDO has failed to make the re-hearing order within the time stipulated in r. 14(5)(a)(iii).  Instead, he purported to do so on 8 August 2001, about 5 months after the Defaulter Report was received by him (on 15 March 2001).  Further, para. 27 of the Amended Form 86A complains that the delay has caused injustice to the applicant in that (a) his defence representative was unavailable at the re-hearing; (b) his defence witness refused to attend the re-hearing and (c) he was under tremendous anxiety and stress.

33.  The respondent’s reply to the complaint set out in para. 32(b) above will be dealt with under the next sub-heading.  The complaint set out in para. 32(a) above is not pursued in the applicant’s skeleton submission.  In fact, the applicant decided to act in person at the re-hearing.

34.  As regards the 5-month or so period taken for the FDO to order a re-hearing, the respondent puts forth the following explanation (through the affirmation of Lee Chi Wai dated 15 March 2004). 

35.  The applicant was convicted after the original disciplinary hearing on 2 March 2001.  His mitigation was sent in on 8 March 2001.  The adjudicating officer sent the Defaulter Report to the divisional commander on 9 March 2001.  The Divisional commander forwarded the Defaulter Report to the FDO and it reached the police headquarters on 15 March 2001.  In accordance with the usual procedure, the headquarters staff prepared staff notes for the FDO’s consideration.  The period from April to August 2001 was said to have been taken up by the investigation work arising from the applicant’s complaint to the Chief Executive’s Office and the Civil Service Bureau.

36.  Mr. Lee also deposed that the Defaulter Report was only received personally by the FDO on 8 August 2001 and the FDO made the re-hearing order on the following day.  Hence, (so the respondent contends) the FDO acted within the time stipulated in r. 14(5)(a)(iii).

37.  I disagree with the respondent.  In the factual context of this application, I consider the receipt of the Defaulter Report by the police headquarters in March 2001 to amount to its receipt by the FDO at that time.  Accordingly, the FDO has not complied with r. 14(5)(a) in that he failed to order a re-hearing within the prescribed time.

38.  Having so concluded, I need to consider what is the consequence of the delay in relation to r. 14(5)(a).  Hartmann J. was faced with a similar compliant in relation to r. 14(1)(a) in the first instance decision in Leung Fuk Wah Oil v. The Commissioner of Police HCAL 371/2001.  He concluded that r. 14(1)(c) intends that there should be strict compliance with the prescribed time limit: para. 40.  This is because:-

“Delay prejudices the efficiency of the force and places an unacceptable strain on individual officers facing punishment” (para. 40).

39.  But the learned judge opined that that conclusion has to be considered together with the questions of:-

“… whether a failure of strict compliance is capable of being waived and, if so, can it and should it be waived in this particular case? …

… If it is not capable of being waived, or is not waived, what is the consequence?” (para. 41).

In Leung, he answered the first questions above in the affirmation.  In relation to the last question in the above quote, he made the following remarks:-

“The consequence, in my view, would lead to a hiatus in the disciplinary proceedings which would benefit neither the police force nor the officer facing punishment. Indeed, I would go so far as to say that it would lead to an absurdity never contemplated by the law-makers. Non-compliance with regulation 14(1) does not, in my judgment, in any way undermine or vitiate the earlier defaulter proceedings which resulted in a conviction. Accordingly, if non-compliance could not be waived, it would mean that no punishment could be visited upon an officer who quite lawfully (and in the best interest of both the force and the public) had been convicted of a disciplinary offence. What would be the consequence of that? Would it mean that a convicted officer, for the sake of a day's delay, would, in practical terms, escape any form of punishment? That would lead to a justifiable sense of grievance on the part of all right-thinking police officers. Would it mean, therefore, that the particular process of determining and awarding a punishment would be quashed so that it would have to start again? That surely would only increase delay rather than reducing it and, in my view, would do so for no good cause; in particular, I do not see how it could assist a convicted officer who is entitled to be promptly advised of his punishment. After all, if aggrieved by the punishment, that officer still has the appeal procedure open to him” (emphasis supplied) (para. 42).

40.  It must be noted the delay in Leung was just one or two days, and prejudice to the applicant therein has not been suggested or discerned: para. 44 of the judgment in Leung.

41.  The delay involved in this application is far longer than that in Leung.  However, by reason of the matters set out below (“(4) Proposed Ground 4” and “(5) Proposed Ground 5”), I find no prejudice has been caused to the applicant as a result.

42.  The complaint set out in para. 32(c) above is not sufficient to justify an application for judicial review.

(4)   Proposed Ground 4

43.  This is a complaint that the re-hearing was materially unfair.  Several reasons are given in support:-

(a)	it is important to the applicant to know of the reasons for the re-hearing order.  He was hampered in conducting his defence without knowledge of those reasons;
(b)	the Police was not entitled to order a re-hearing to give itself an opportunity to close a gap in the prosecution’s evidence;
(c)	the Police adduced new evidence to close such a gap at the re-hearing;
(d)	the defence witness was no longer available at the re-hearing.

44.  In relation to para. 43(a) above, I do not see how not knowing the reason for making the re-hearing order per se could hamper the conduct of the applicant’s case at the re-hearing.

45.  Further, as a matter of fact, the FDO’s letter dated 16 August 2001 informed the applicant he had decided to set aside the guilty finding and had ordered a re-hearing.  I agree with the respondent that this must mean a hearing ­de novo.  In addition, the re-hearing commenced on 14 December 2001 (by way of a brief hearing in the nature of a call-over).  When it resumed on 27 December 2001, the adjudicating officer recorded that the reason of the re-hearing had been explained to the application.

46.  The first prosecution witness did not testify until 22 January 2002.  In a letter dated 8 January 2002, the applicant was informed:-

“[The original disciplinary hearing] and the FDO’s reasons for ordering the [re-hearing] will not have any bearing on the [re-hearing]”.

This letter also stated the reasons for the re-hearing order:-

“The FDO made that decision after considering the allegations you raised concerning the procedures and conduct of the [original disciplinary hearing] in order to ensure a fair hearing of the case”.

The above was in effect repeated in another letter dated 5 February 2002.

47.  In relation to para. 43(b) above, by reason of the matters set out in para. 23 to 24 above, I disagree that there was a gap in the prosecution’s evidence at the original disciplinary hearing.  This complaint is accordingly not substantiated on the facts.  I pause to note this application does not challenge the propriety of r. 14(5)(a)(iii) (the regulation empowering the FDO to order a rehearing, except (among other things) where the finding at the original disciplinary hearing was one of not guilty).

48.  The above reasoning applies to the complaint set out at para. 43(c) above.

49.  In relation to para. 43(d) above, the respondent responds that:-

(1)	the applicant’s honesty was not in issue at the re-hearing;
(2)	the defence witness was expected to say that the applicant never engaged in “speculative trading of a reprehensive nature” or “gambling” and that he suffered loss as a result of “honest but inexperienced investment”.  The difference between the two is, at best, a matter of opinion.  This defence witness testified at the original disciplinary hearing she was a “housewife” but with some experience in investing in stocks since 1994;
(3)	it was not part of the findings that the applicant engaged in speculative trading;
(4)	in fact, whether he engaged in speculative trading was irrelevant to the applicant’s conviction under PGO 6-01(8).

Hence, the applicant could not have been prejudiced by the absence of the defence witness.

50.  In the factual circumstances related to the re-hearing, I agree with the respondent’s submission set out above.

51.  Accordingly, I find that there is no substance in this ground.

(5)   Proposed Ground 5

52.  This is a ground for which leave has earlier been given.  This concerns the restriction of the choice of representation at the re-hearing.  R. 9(11) and (12) are relevant.  They provide:-

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

53.  Reliance is placed by the applicant on Articles 1 (entitlement to rights without distinction), 10 (equality before courts and right to fair and public hearing) and 11, Hong Kong Bill of Rights Ordinance (Cap. 383), as well as Article 35, Basic Law.

54.  Article 11, Hong Kong Bill of Rights provides inter alia that a person is entitled to defend himself through legal assistance of his own choosing.  But this provision is limited to criminal offences and thus does not apply to disciplinary proceedings.

55.  Article 35, Basic Law provides:-

Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies … ” (emphasis supplied).

56.  The applicant points out the court of appeal has in two recent decisions extended the meaning of “court” in Article 35 to other tribunals.  In Dr. Ip Kay Lo Vincent v. Medical Council of Hong Kong (No. 2) [2003] 3 HKC 579, the court of appeal (Cheung JA: para. 8 and 9; Burrell J agreed) concluded that that word includes tribunals performing judicial functions (Yuen JA found it unnecessary to consider this matter: para. 93).  In A Solicitor v. The Law Society of Hong Kong, CACV 302/2002, the court of appeal concluded that the word includes tribunals which exercise a judicial function and its jurisdiction is not private or consensual: see para. 173 to 175 and 179.  Consequently, the Medical Council and the Solicitors Disciplinary Tribunal were respectively found to fall within Article 35.

57.  Based on the above, the applicant submits that r. 9(11) and (12) offend Article 35 insofar as they limit his choice of representation.

58.  Indeed, the applicant argues that tribunals such as the Small Claims Tribunal (set up pursuant to the Small Claims Tribunal Ordinance (Cap. 338)) and the Labour Tribunal (the Labour Tribunal Ordinance (Cap. 25)) also fall within that article.  This is because they are statutory tribunals performing judicial functions.

59.  The respondent does not accept that the police disciplinary tribunal falls within Article 35.  In this connection, the decision in New World Development Co. Ltd. v. The Stock Exchange of Hong Kong Ltd. [2004] 2 HKLRD 1027 and the remarks of Woo VP and Burrell J in CACV 302/2002 were referred to.  In New World Development, Hartmann J declined to extend the applicability of Article 35 to the Listing Committee of the Hong Kong Stock Exchange.  In CACV 302/2002, Woo VP was inclined to accept that the Solicitors Disciplinary Tribunal was not a “court” but felt himself bound by the Dr. Ip Kay Lo Vincent decision: para. 74 and 76; Burrell J also concluded that the Solicitors Disciplinary Tribunal was not a “court”: para. 223 to 225.

60.  If the matter had been free from authorities, I would have concluded that the police disciplinary tribunal is not a “court” referred to in Article 35 either.  However, the respondent sensibly recognises the above court of appeal decisions are binding on this court.  It is however argued that a police disciplinary tribunal, being a tribunal constituted exclusively to deal with disciplinary matters of a discipline force, is in a unique category.  This kind of tribunal should be limited to personnel within the force and cases should be decided relatively speedily without excessive technicality.  Neither the adjudicating officer hearing, nor the prosecuting officer prosecuting in, the re-hearing was legally qualified.

61.  In relation to the above, the respondent refers to several pre-1986 decisions both here and in England:-

(a)     Maynard v. Osmond [1977] 1 QB 240, 254, 256 and 259;

(b)     Fraser v. Mudge [1975] 1 WLR 1132, 1133-3;

(c)     Re Fong Hin-wah [1985] HKLR 332, 334-6.

I note that they are pre-Bill of Rights and pre-Basic Law decisions.

62.  Secondly, the respondent contends that the right to legal representation in civil matters should not be absolute.  The Hong Kong Bill of Rights does not guarantee such a right.  The courts have decided that such right is not absolute and restrictions are permitted.  The extent of restrictions depends on the nature and subject-matter of the right in issue.

63.  In relation to the above, the respondent relies on the following decisions:-

(1)     Gurung Kesh Bahadur v. Director of Immigration [2002] 2 HKLRD 775, 784H;

(2)     Enderby Town Football Club Ltd. v. Football Association Ltd. [1971] Ch 591, 605;

(3)     R v. Secretary of State for the Home Department, ex p Tarrant [1985] QB 251, 270-2 and 295-6;

(4)     Hone v. Maze Prison Board of Visitors [1988] 1 All ER 320.

64.  If Article 35 is given a literal interpretation, it confers an absolute right to litigants (litigation in this context includes proceedings before tribunals exercising a judicial function) to have legal representation of his own choice.  But the respondent submits a literal interpretation is inapt.  The remarks of the Court of Final Appeal in relation to Article 39, Basic Law in Gurung Kesh Bahadur is relied upon in this connection.

65.  The material part of Article 39, Basic Law states:-

“… The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law … ”.

The following remarks of the Court of Final Appeal in Gurung Kesh Bahadur are relied upon by the respondent-

“… But it does not follow that rights found only in the Basic Law can be restricted without limitation provided the restrictions are prescribed by law. The question of whether rights found only in the Basic Law can be restricted and if so the test for judging permissible restrictions would depend on the nature and subject matter of the rights in issue. This would turn on the proper interpretation of the Basic Law and is ultimately a matter for the courts” (emphasis supplied) (para. 28).

66.  The respondent further seeks support from Article 103, Basic Law the relevant part of which provides:-

“… Hong Kong's previous system of recruitment, employment, assessment, discipline, training and management for the public service, including special bodies for their appointment, pay and conditions of service, shall be maintained … ” (emphasis supplied).

67.  It is undisputed the current system of disciplinary proceedings is (at least as regards the right to legal representation) identical to that which existed before July 1997.  The respondent submits Article 35, being a general provision, should be interpreted as subject to the more specific provision in Article 103.

68.  Bearing in mind the various matters put forth by the respondent (set out in para. 60 to 67 above), I agree with the respondent that the challenge against r. 9(11) and (12) is unmeritorious.

69.  The respondent also contends that, even if the applicant should enjoy a right to legal representation at the re-hearing, by reason of the strength of the prosecution evidence, a conviction would still have been inevitable.  It is strictly unnecessary to consider this, but if it were otherwise, I am inclined to agree with the contention.  Para. 19 above is repeated for this purpose.

(6)   Proposed Ground 6

70.  As stated above, the penalty imposed against the applicant was compulsory retirement with deferred benefits.

71.  This complaint is based on the Wednesbury unreasonableness test, alternatively, disproportionality test.  It is argued that the penalty is unreasonable and/or disproportionate.

72.  There is also a further complaint of procedural impropriety in that the lesser penalties were not considered.

73.  It cannot be (and was not) contended that the penalty imposed against the applicant is wholly out of line with that imposed after a conviction for the same disciplinary offence.  Even if it were so contended, I adopt what I said in Lo Hon Sun v. Commissioner of Police HCAL 13/2004:-

“基於以上案例，申請人聲稱答辯人施加於他的懲罰，不合乎“公平”原則，甚至嚴重違反行政法要求，行使行政權人士需符合“一致性”的原則：－
(a)	R v. Hertfordshire County Council exp. Cheung, The Times, 4 April 1986;
(b)	Secretary of State for the Home Department v. Mohammed Yasin [1995] Imm AR 118, 120-121;
(c)	de Smith, Woolf & Jowell: Judicial Review of Administrative Action 第5版第576頁；
(d)	Edwards v. SOGAT [1971] Ch 354, 376D。
另方面，香港法院在以下案例中，重覆地指出，在涉及專業人士或紀律部隊人員的紀律聆訊的司法覆核案中，法庭在考慮紀律聆訊庭施加的懲罰是否應予以覆核時，一般會尊重專業團體或紀律部隊的紀律聆訊庭的判斷。除非有關處分是全不合理（即是，任何合理審裁機構都不會施加如此懲罰），否則法庭不會予以覆核：－
(1)	陳國雄對香港警務處處長曾蔭培，HCAL 86/2003（2004年5月17日），第44段；
(2)	Lau Kwok Fai Bernard v. Commissioner of Police HCAL 95/2003（2004年12月29日），第32至35段；
(3)	Chan Kim Hung v. Commissioner of Police HCAL 2400/2000 （2001年5月4日），第17至22段；
(4)	Au Yeung Kwok Hing v. Attorney General MP No. 3513/1992 （1994年10月6日），第4(g)及18至19段；
(5)	何建民對香港警務處處長HCAL 23/2005（2005年4月22日），第17段；
(6)	陳庚秋對香港警務處處長HCMP 2824/2004（2004年12月29日），第22及44段；
(7)	區志豪對香港警務處處長CACV 332/2004（2005年3月2日）第7及11段。
法庭過往曾處理的案件顯示，違反警察通令6-01(8)施加的懲罰，包括迫令退休，押後發放退休金福利及即時辭職。” (para. 29 to 31)

74.  For the above reasons, there is no merit in this complaint.

(7)   Proposed Ground 7

75.  In essence, this ground is constituted by the rolling-up and lumping together of all the above grounds of application.

76.  It is not (nor can it properly be) suggested that, by rolling-up and lumping together the above grounds, it can be inferred that there was a conspiracy to harm the applicant by convicting him, or there was evidence the conviction at the re-hearing was pre-determined, or evidence of some impropriety such as the re-hearing was merely “staged” or bias on the part of the adjudicating officer at the re-hearing.

77.  In the above paragraphs, I have found that each of the above grounds has no merit.  I do not find that by rolling them up, or lumping them together, the applicant’s complaints above are somehow strengthened; nor can an additional or independent ground of complaint somehow be constituted.

Conclusion Relating to the Application for Leave to Re-Amend

78.  Insofar as this application is concerned with an application for leave, it is refused.

Conclusion Relating to the Judicial Review Application

79.  Insofar as this application is concerned with an application for judicial review, it is dismissed.

Costs Order Nisi

80.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application be paid by the applicant to the respondent to be taxed if not agreed.

81.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations (Cap. 91A).