CHAN KAR YIU v. CIVIL SERVICE BUREAU AND ANOTHER

[English Translation – 英譯本]

HCAL 10/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS NO. 10 OF 2004

-------------------------------------

BETWEEN

-------------------------------------

------------------------

JUDGMENT

------------------------

Background

1. The Applicant was a senior Customs officer.  He joined the Customs and Excise Service (“CES”) in 1980 as Customs officer and was promoted to senior Customs officer in 1990.

2. In late 1999, the Applicant was arrested by the ICAC for suspected involvement in a criminal case concerning acceptance of advantage and being an informer.  On 22 June 2000, the ICAC formally laid charges against the Applicant, alleging that he had solicited advantage from two persons by the surnames of Cheng and Lam respectively (hereinafter “Cheng” and “Lam”), contrary to Section 4 of the Prevention of Bribery Ordinance (Cap. 201).  Those two persons were allegedly the owner and assistant, respectively, of a shop which sold pirated CDs.  One of the charges alleged that the Applicant asked Cheng and Lam for $100,000 each month as remuneration for being an informer; the other charge alleged that the Applicant accepted the provision of dancing girls by Cheng and Lam and also the immoral services arranged for the Applicant by Cheng and Lam.  After trial by a magistrate, the Applicant was acquitted of the charges on 8 January 2001.

3. However, having considered the magistrate’s Reasons for Verdict, the CES believed that the Applicant had committed an offence against discipline, and therefore instructed its internal investigation officers to conduct a disciplinary investigation on the case.

4. On 17 August 2001, the investigation team interviewed the Applicant at the office with a view to investigate into a matter regarding a Customs officer having accepted advantage from people who sell pirated CDs in return for informing them of arrests to be made by Customs officers.  However, the Applicant refused to answer any question by the team at the interview.  He said that, in the absence of a lawyer and not having discussed the relevant legal issues with a lawyer, he would neither answer any question nor sign any record of interview or copies thereof.

5. Upon further investigations by the team, and having offered the Applicant an opportunity to submit an explanation in writing, the Commissioner of Customs and Excise (“Commissioner”) concluded that a prima facie case of disciplinary offences against the Applicant had been made out, and therefore preferred four disciplinary charges against the Applicant, two of which, namely Charges 2 and 4, were alternatives to Charges 1 and 3 respectively.  Charges 1 and 3 read as follows:

Charge 1

Charge (1):                            Neglecting or refusing to obey lawful orders given by superior officers orally or in writing, including the Standing Orders made under Section 20 of the Customs and Excise Service Ordinance

Statutory basis of charge:       Contrary to Rule 3(e) of the Customs and Excise Service (Disciplinary) Rules (Cap. 342, Sub. Leg.)

Details of charge:                   Senior officer Chan Kar Yiu, you are accused of neglecting or refusing to obey lawful orders given by superior officers in accordance with Paragraph 5.3 of Chapter 5 of the Standing Orders (1990 Edition) between June and September 1999, namely having dealings with Lam Ha Fook, an undesirable character, and arranging through him to obtain prostitution service.

…

Amended Charge 3

Charge (3): Neglecting or refusing to obey lawful orders given by superior officers orally or in writing

Statutory basis of charge: Contrary to Rule 3(e) of the Customs and Excise Service (Disciplinary) Rules (Cap. 342, Sub. Leg.)

Details of charge: Senior officer Chan Kar Yiu, you are accused of neglecting or refusing to obey lawful orders given by a superior officer on 17 August 2001 at the office of the Customs and Excise Investigation Team in Middle Road, Tsimshatsui, namely refusing to answer questions put to you by Chief Customs Officer Chung Kin Hong during an internal disciplinary investigation interview.

…

6. After a hearing, the Presiding Officer convicted the Applicant of Charges 1 and 3, and Charges 2 and 4 were automatically dropped.

7. On 7 February 2003, the Commissioner decided to punish the Applicant with “dismissal” in respect of each of the aforesaid two disciplinary offences.  The Applicant appealed to the Chief Executive against the punishments.

8. On 29 May 2003, the Secretary for the Civil Service (“Secretary”), having considered the appeal in exercise of the powers delegated to him by the Chief Executive, notified the Applicant of the following decisions: in respect of the appeal on Charge 1, “compulsory retirement” was substituted for the punishment of “dismissal”; in respect of the appeal on Charge 3, the punishment of “dismissal” was affirmed and was to take effect as from 31 May 2003.

9. With leave of the court, the Applicant now applies for judicial review of the two convictions and punishments against him.

10. In the present judicial review proceedings, the Applicant is acting in person and not legally represented.  From the documents and affidavits that he has filed with the court, as well as the submissions that he made at the hearing, several main grounds for judicial review can be identified.  They will be dealt with one by one below, but it is appropriate to begin by briefly explaining the relevant legislation and disciplinary rules.

The relevant legislation

11. The CES was established by the Customs and Excise Service Ordinance (Cap. 342, Laws of Hong Kong) (“CESO”).  Apart from establishing the CES, the CESO makes provision as to the duties and powers of the CES and as to the discipline of members thereof, and to make provision for a welfare fund, and for purposes connected with the aforesaid matters: see the Preamble.  Section 3 of the CESO provides for the establishment and function of the CES:

3.         Establishment and function

There shall be established a Customs and Excise Service which shall perform the functions hitherto performed by the revenue officers appointed under the Dutiable Commodities Ordinance 1931 […], and shall take lawful measure for the enforcement of the laws of Hong Kong pertaining to dutiable commodities, importation and exportation and smuggling and do such other things as may be required of it by law. (Amended 46 of 1977 s. 3; 40 of 1985 s. 3)

12. Schedule 2 to the CESO sets out the statutes of Hong Kong which the CES is required to enforce:

Schedule 2

Ordinances referred to in Sections 17 and 17A

Import and Export Ordinance (Cap. 60)

Post Office Ordinance (Cap. 98)

Dutiable Commodities Ordinance (Cap. 109)

Pesticides Ordinance (Cap. 133)  (Added L.N. 143 of 1977.  Amended 79 of 1990 s. 21)

Dangerous Drugs Ordinance (Cap. 134)

Antibiotics Ordinance (Cap. 137)

Pharmacy and Poisons Ordinance (Cap. 138)  (Amended L.N. 62 of 1997)

Control of Chemicals Ordinance (Cap. 143)  (Replaced 14 of 2003 s. 24)

Animals and Plants (Protection of Endangered Species) Ordinance (Cap. 187)  (Replaced 14 of 2003 s. 24)

Plant (Importation and Pest Control) Ordinance (Cap. 207)  (Added L.N. 117 of 1976.  Amended L.N. 39 of 1997)

Weapons Ordinance (Cap. 217)  (Added L.N. 361 of 1981)

Firearms and Ammunition Ordinance (Cap. 238)  (Replaced L.N. 361 of 1981)

Dangerous Goods Ordinance (Cap. 295)  (Added L.N. 1 of 1974)

Reserved Commodities Ordinance (Cap. 296)  (Added L.N. 73 of 1983)

Air Pollution Control Ordinance (Cap. 311)  (Added 13 of 1993 s. 37)

Trade Descriptions Ordinance (Cap. 362)  (Replaced 39 of 1980 s. 37)

Control of Obscene and Indecent Articles Ordinance (Cap. 390)  (Replaced L.N. 132 of 1987)

Ozone Layer Protection Ordinance (Cap. 403)  (Added 24 of 1989 s. 19)

Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405)  (Added 35 of 1989 s. 33)

Rabies Ordinance (Cap. 421)  (Added L.N. 452 of 1995)

Toys and Children’s Products Safety Ordinance (Cap. 424)  (Added 80 of 1992 s. 36)

Organized and Serious Crimes Ordinance (Cap. 455)  (Added 82 of 1994 s. 35)

Consumer Goods Safety Ordinance (Cap. 456)  (Added 84 of 1994 s. 36)

Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525)  (Added 87 of 1997 s. 36)

Copyright Ordinance (Cap. 528)  (Replaced 92 of 1997 s. 280)

Prevention of Copyright Piracy Ordinance (Cap. 544)  (Added 22 of 1998 s. 42)

13. Sections 17A to 17D of the CESO confer wide-ranging powers on Customs officers in the enforcement of the relevant laws, including the power to arrest and search suspects; enter premises to search for suspects; search and examine goods and articles without warrant; inspect travel documents; upon arrest of a suspect, take him to an office of the CES for further inquiries or take him to a police station for investigation; and bring prosecutions.

14. Although the CESO does not expressly state that Customs officers are members of the disciplined forces, Part III of the CESO details disciplinary matters regarding Customs officers.  Sections 10, 12 and 16 provide as follows (Section 12 is applicable to the Applicant, who was a senior Customs officer and subordinate officer of the CES):

10.       Offences against discipline generally

Any member who commits a disciplinary offence shall be liable to be dismissed or otherwise dealt with as provided by or under this Ordinance.

…

12.       Subordinate officers

(1)        Whenever a subordinate officer is charged with a disciplinary offence ―

(a)        the Commissioner [of Customs and Excise] may interdict him from duty;

(b)        the matter shall be investigated and the officer concerned dealt with in the appropriate manner prescribed by rules made under section 16.

(2)        Whenever an investigation is being undertaken into any conduct which may amount to the commission of a disciplinary offence by a subordinate officer and the Commissioner considers that it is contrary to the public interest for the officer to continue to exercise the powers and functions of his office, the Commissioner may interdict him from duty but the officer shall be entitled, until such time as he is charged with a disciplinary offence to the full amount of the emoluments which he would have received if he had not been interdicted.

(3)        An officer interdicted under subsection (1), and an officer interdicted under subsection (2) who is charged with a disciplinary offence, shall receive such proportion of the emoluments of his office, not being less than one-half, as the Commissioner may direct.

(4)        If the proceedings against such officer do not result in the imposition of any punishment, he shall be entitled to the full amount of the emoluments which he would have received if he had not been interdicted.

(5)        If a punishment other than dismissal is imposed the officer may be paid such proportion of the emoluments withheld as a result of his interdiction as the Chief Executive may direct, where the punishment is imposed by the Chief Executive or, as the Commissioner may direct, in every other case.

(6)        An officer interdicted under subsection (1) or (2) may not, without the permission of the Commissioner, leave Hong Kong while under interdiction.

(Amended 76 of 1999 s. 3)

…

16.       Disciplinary rules

(1)        The Chief Executive may make rules for all or any of the following matters ―

(a)        the acts and omissions which shall be disciplinary offences on the part of any member;

(b)        the procedure to be followed where ―

(i)      a disciplinary offence is alleged to have been committed by any subordinate officer;

(ii)     a subordinate officer is found guilty of or pleads guilty to a criminal offence as defined in section 14(2);

(c)        the punishment of a subordinate officer for any disciplinary offence or where he is found guilty of or pleads guilty to a criminal offence as defined in section 14(2);

(d)        the rights of appeal of a subordinate officer ―

(i)      found guilty of a disciplinary offence; or

(ii)     punished,

under rules made under this section and the review by the Commissioner of findings made and punishments awarded.

(2)        Rules made under paragraph (d) of subsection (1) may authorize the Chief Executive to delegate to the Secretary for the Civil Service, or to a public officer not below the rank of Director of Bureau, the determination of an appeal referred to in that paragraph.

(Part III replaced 46 of 1977 s. 7.  Amended 76 of 1999 s. 3)

15. Furthermore, Section 20 of the CESO provides as follows:

20.       Customs and Excise Service Orders

(1)        The Commissioner may make orders called “Customs and Excise Service Standing Orders” not inconsistent with the provisions of ―  (Amended 76 of 1999 s. 3)

(a)        this Ordinance and any regulations made thereunder;

(b)        the Stores Regulations of the Government;

(c)        Public Service (Administration) Order and government regulations, as modified by this Ordinance and by regulations made thereunder. (Amended 76 of 1999 s. 3)

(2)        Such orders may prescribe or provide for ―

(a)        the control, direction and information of the Customs and Excise Service;

(b)        discipline;

(c)        training;

(d)        classification and promotion;

(e)        inspections, drills, exercises and parades;

(f)         welfare;

(g)        departmental finance;

(h)        buildings, grounds, stores, furniture and equipment;

(i)         services to be performed by members;

(j)         the manner and form of reports, correspondence and other records;

(k)        the performance of any act which may be necessary for the proper carrying out of the provisions of this Ordinance or any regulations made thereunder or of any other enactment or for the discharge of any duty imposed by law on the Customs and Excise Service;

(l)         such other matters as may be necessary or expedient for preventing abuse or neglect of duty, for rendering the Customs and Excise Service efficient in the discharge of its duties and for carrying out the objects of this Ordinance.

(Amended 46 of 1977 s. 3)

16. Section 17E of the CESO provides as follows:

17E.     Making of false reports etc., to member

Any person who makes or gives or causes to be made or given to a member in the performance of his duty any report, accusation, statement of information which he knows to be false or misleading commits an offence.

17. Pursuant to Section 16(1) of the CESO, the Chief Executive has enacted the Customs and Excise Service (Discipline) Rules (“Discipline Rules”).

18. Rules 3, 4, 5, 6 and 8 of the Discipline Rules provide as follows:

3.         Disciplinary offences

A member commits a disciplinary offence who ―

(a)        is absent from duty without leave or good cause;

(b)        sleeps on duty without permission from a superior officer;

(c)        fails to report immediately to a superior officer any suspected breach of discipline by another member;

(d)        fails to report immediately to a superior officer or a police officer any offence which he suspects has been committed against an Ordinance specified in Schedule 2 to the Ordinance;

(e)        neglects or refuses to obey any lawful order given by a superior officer whether orally or in writing, including any Standing Order made under section 20 of the Ordinance;

(f)         is unfit for duty by reason of alcoholic drink or of drugs taken otherwise than under medical direction;

(g)        neglects or without good and sufficient cause fails to do promptly and diligently anything which it is his duty to do;

(h)        with intent to deceive, destroys, mutilates, falsifies or conceals a document connected with his duty;

(i)         with intent to deceive, makes a statement in the course of duty which is false in a material particular;

(j)         in purported exercise of authority, does or omits to do any act otherwise than in accordance with law;

(k)        wilfully or negligently damages or destroys or negligently loses any Government or other property with which he has been provided or entrusted;

(l)         by his conduct brings the public service into disrepute;

(m)       by his conduct prejudices the good order and discipline of the Customs and Excise Service.

4.         Preliminary procedure

If the Commissioner believes that a subordinate officer may have committed a disciplinary offence he shall inform the officer of the circumstances giving rise to his belief and invite the officer to submit an explanation in writing within a specified period not exceeding 7 days.

(76 of 1999, s. 3)

…

5.         Charging and plea

(1)        If, after the expiration of the period referred to in rule 4, the Commissioner considers there is a prima facie case of a disciplinary offence against the officer he shall, unless he has admonished the officer under rule 4A ―  (L.N. 118 of 1989)

(a)        prefer against him such charge or charges, relevant to the circumstances referred to in rule 4, as he thinks fit; and

(b)        either state that he will hear and determine the proceedings himself or appoint another senior officer to hear and determine the proceedings.  (76 of 1999 s. 3)

(2)        A charge shall be in writing and shall be served on the officer together with a notice ―

(a)        naming the senior officer who will hear and determine the proceedings;

(b)        stating the place and time at which the charge will be dealt with, being a time not earlier than 7 days from the date of service of such notice;

(c)        requiring the officer, in respect of each charge, to notify the senior officer referred to in paragraph (a), in writing within 5 days of such service whether he pleads guilty or not guilty;

(d)        advising him that if he pleads guilty he may make submissions in writing in mitigation of punishment.

6.         Representation

(1)        The Commissioner shall appoint a member not below the rank of the officer charged as a prosecutor and the officer charged shall have the right to be represented by a subordinate officer of his choice who may conduct his defence on his behalf.  (L.N. 118 of 1989; 76 of 1999 s. 3)

(2)        The officer charged shall not be entitled to be represented by counsel or a solicitor.

…

8.         Procedure

(1)        The officer charged shall attend at the place of hearing at the time of which notice has been given.

(2)        The charge shall be read to the officer charged who may change his plea.

(3)        If the officer charged pleads guilty such plea shall be entered on the record and he shall be asked if he wishes to make a statement, and he may then make a statement, which shall be recorded, or may hand in a statement of matters which he desires to be taken into consideration.

(4)        If the officer charged has pleaded not guilty to any charge, the prosecutor may make an address setting out generally the facts of the case and may call witnesses in support of the charge; and on the conclusion of the evidence of each witness the officer charged, or the officer defending him, may cross-examine the witness and thereafter the witness may be re-examined.

(5)        The evidence of a witness may be taken by reference to a written statement made by him which may be amended or added to by the witness at the hearing.

(6)        When the examination of all witnesses in support of the charge has been completed the officer charged or the officer defending him may address the Commissioner only for the purpose of showing that no prima facie case has been established; and if it appears to the Commissioner that there is a prima facie case the officer charged shall be asked whether he wishes to give evidence, and whether he wishes to call witnesses.  (76 of 1999 s. 3)

(7)        If the officer charged gives evidence, he may be cross-examined and re-examined and such witnesses as he desires to call may be examined, cross-examined and re-examined.

(8)        At the conclusion of all the evidence the prosecutor may address the Commissioner and thereafter the officer charged or the officer defending him may make an address in reply.  (L.N. 42 of 1986; 76 of 1999 s. 3)

(9)        Any exhibit produced by a witness shall be available for inspection by the officer charged, the officer defending him and the prosecutor.

(10)      The Commissioner shall be entitled to ask such questions of any witness as he considers will assist in determining the issues raised and may call such witnesses at any time as he considers may be able to assist in the determination of the issues.

(11)      The hearing of the case may be adjourned from time to time as may appear necessary for the proper determination of the proceedings.

(12)      A record of the proceedings at the hearing of the case shall be taken and, if the officer charged contemplates an appeal under these rules, a transcription of the record shall be made and a copy thereof supplied to him at his request made within the period during which the appeal may be brought.

(13)      Evidence shall not be taken on oath.

19. Furthermore, the Commissioner has enacted the Customs and Excise Service Standing Orders pursuant to Section 20 of the CESO.  Paragraphs 1.1.3, 5.1 and 5.3 of the Standing Orders provide as follows (original in English):

1.1.3    These Orders are to be interpreted reasonably and intelligently, with due regard to the interests of the public.  No attempt has been made to provide for the inevitable exceptions.  The final interpretation of these Orders remains with the Commissioner.

…

5.1       Discipline, comradeship, leadership and self-respect form the basis of morale and efficiency.  Good discipline within the Unit is the foundation of good discipline throughout the Service.  It is essential that every member should be brought to understand not only the importance, but also the purpose of discipline.

…

5.3       A member may not associate with undesirable characters or visit places of poor or doubtful reputation except in the course of duty.

20. The several grounds for judicial review put forward by the Applicant will now be dealt with in turn.

Lack of “unofficial witnesses”

21. I first consider the several arguments advanced by the Applicant in respect Charge 1.  Here, the Applicant contends that, throughout the disciplinary proceedings, the prosecution had never called any “unofficial witness” to prove or support the allegation that Lam, with whom the Applicant had dealings, was an “undesirable character”.

22. I do not accept this argument.  Neither the CESO nor the Disciplinary Rules require the prosecution in disciplinary proceedings to rely on “unofficial witnesses” to prove its allegations.  Whether an accusation is established must, in my view, depend on the quality of and the weight to be attached to the relevant evidence.  It is true that, in some circumstances, the identity and occupation of a witness and his connection with the CES may be important factors in determining the veracity and reliability of his evidence.  However, I do not agree that the prosecution in disciplinary proceedings must call upon so-called “unofficial witnesses” to prove its allegations.

23. I do not accept the Applicant’s argument in this respect as a valid ground for judicial review.

“Undesirable character”

24. In respect of Charge 1, the Applicant also argues that Lam was not an “undesirable character” and therefore their dealings had not contravened paragraph 5.3 of the Standing Orders.  The Applicant contends that Lam worked at a place of entertainment and introduced dancing girls to the Applicant, and neither his job nor his conduct was against the law.  The Applicant also submits that Lam did not have any criminal records and that it was an unreasonable discrimination against him or his occupation to describe him as an undesirable character.

25. The Commissioner submits that, even on the Applicant’s case and evidence, Lam was a middleman (commonly called a “horseman”) who introduced dancing girls to the Applicant on various occasions and those girls provided immoral service to him.  From the perspective of Customs officers as disciplined members who discharged professional Customs duties, and taking into account the integrity and probity that the public expects of civil servants (particularly members of the disciplined forces) as well as views within the CES, the Commissioner took the view that Lam was an undesirable character and hence the Applicant’s dealings with him were in breach of paragraph 5.3 of the Standing Orders.  On this basis, the Commissioner preferred charges against the Applicant.  The Presiding Officer apparently concurred with the Commissioner’s views in ruling against the Applicant.

26. I wish to stress that the present proceedings are judicial review proceedings in which the court does not function as an appellate court, still less as the individual or body that made the original decision.  As Lord Hoffman said in Kemper Reinsurance Co v Minister of Finance [2002] 1 AC 1 at 14H:

In principle, however, judicial review is quite different from an appeal.  It is concerned with the legality rather than the merit of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process rather than whether the decision was correct.

27. In my view, the interpretation of the term “undesirable character” in paragraph 5.3 of the Standing Orders allows for a degree of flexibility in light of the circumstances of each case.  The Commissioner and the Presiding Officer interpreted that term from the perspective of Customs officers and concluded that Lam was an undesirable character.  As a matter of public law, there is nothing unreasonable or unacceptable about that interpretation.  Furthermore, paragraph 1.1.3 of the Standing Orders expressly states that the Orders are to be interpreted reasonably and intelligently, with due regard to the interests of the public, and that the final interpretation of the Orders remains with the Commissioner.  It is not necessary in the present case for me to delve into the question whether the final interpretation of the Orders does remain with the Commissioner; however, the Commissioner’s interpretation of the Orders that he enacted should be given due respect.

28. Taking into account all the circumstances including the Commissioner’s interpretation and public interest, and looking at the matter from the perspectives of Customs officers and the public, I see nothing unreasonable, irrational or unacceptable under public law about the conclusion that Lam was an undesirable character.  I do not accept the Applicant’s argument that, for Lam to be an undesirable character, he must have a criminal record or be engaged in an unlawful occupation or unlawful conduct.  In determining whether Lam was an undesirable character, the Commissioner and the Presiding Officer were perfectly entitled to take into account the views of the public on nightlife, places of entertainment, “horsemen” and the introduction of dancing girls who provide immoral service, as well as matters including the general standard of social morality and public expectation of disciplined officers (such as Customs officers).

29. Given the above, the conclusion of the Commissioner and the Presiding Officer that Lam was an undesirable character is, in my view, not amenable to challenge by way of judicial review.  In other words, the Applicant’s argument in this respect falls to be rejected.

Video recording

30. The Applicant argues that, as he had been acquitted of the relevant charges in the criminal proceedings, the prosecution in the subsequent disciplinary proceedings should not have relied on the ICAC video recording (or the transcript thereof) as evidence in support of its allegations against the Applicant.

31. I do not accept this argument.  First, the particulars of the disciplinary charge (Charge 1) were different from those of the criminal charge.

32. Second, the magistrate acquitted the Applicant of the charges on the ground that the evidence of the two prosecution witnesses (Cheng and Lam) was in his view unsatisfactory and unreliable.  However, the ICAC video recording was concerned with the content of the interview of the applicant by ICAC investigation officers, and therefore the acquittal of the Applicant on the criminal charges was irrelevant to the question whether the ICAC video recording was admissible at the CES disciplinary hearing as evidence.  Third, in any event, the evidential weight to be accorded to the video recording was purely an evidential matter at the disciplinary hearing.  It was not improper for the Presiding Officer to make findings of fact on the basis of evidence which had been admitted at the disciplinary hearing and by applying the appropriate burden and standard of proof.

33. Therefore, as stated above, I do not accept the Applicant’s argument in this respect.

Lack of evidence

34. The Applicant also contends that, at the disciplinary hearing, there was no evidence of any dealing between him and Lam apart from the video recording.

35. I do not accept this contention.  Apart from the video recording, there was obviously other evidence, including the audio transcript of the criminal trial, which showed that the Applicant had dealings with Lam.  Furthermore, at the disciplinary hearing, the Applicant was cross-examined by the prosecutor, and the answers that he gave upon cross-examination also formed part of the evidence at the hearing.

36. I fail to see any error in the course of the disciplinary hearing.  The Presiding Officer’s findings of fact were supported by ample evidence and cannot be said to be irrational or wrong in law.  In the context of judicial review, the Applicant’s argument in this respect has to be rejected.

Right of silence

37. In respect of Charge 3, the Applicant submits that, at the interview with the investigation team on 17 August, he did not deliberately refuse to answer questions but rather only wanted to answer questions in the presence of lawyer and after obtaining legal advice.

38. According to the testimony of the investigation officers at the disciplinary hearing and the ruling of the Presiding Officer, when the Applicant refused to answer questions, the investigation officers had warned him that a refusal to answer questions by investigation officers would constitute disobedience of lawful orders given by senior officers and, as such, amount to an offence against discipline.  Despite the warning, the Applicant still refused to give any substantive reply to questions by the senior officers in the absence of a lawyer.

39. The Applicant’s argument in this respect goes directly to the question whether a Customs officer who is subject to disciplinary investigation has the right to remain silent in order to exercise the common law right against self-incrimination.   That argument also involves the question whether a Customs officer who is subject to disciplinary investigation is entitled to ask for the presence of a lawyer before he answers questions by the investigators.

40. As far as the right of silence is concerned, the Court of Final Appeal pointed out in Fu Kin Chi v Secretary for Justice (1997-98) 1 HKCFAR 85 that the right of silence that the common law confers upon an individual not only applies where an individual may have committed a criminal offence, but also applies where an individual may have committed a disciplinary offence.  In the present case, the subject matter of the interview during the course of disciplinary investigation was the suspected acceptance by the Applicant of bribery payments, and in this respect, the magistrate had after trial acquitted the Applicant of the charge of accepting bribes and therefore no prosecution can again be brought against him over the same matter.  However, that interview might involve the Applicant giving answers that were prejudicial to him in relation to the disciplinary offence, and therefore, applying the aforesaid statement by the Court of Final Appeal, there was a very close connection between any right of silence that the Applicant might have and the disciplinary offence of which he was convicted.

41. In other words, if the Applicant enjoyed the right of silence during the interview in question, it would have been reasonable for him to refuse to give any substantive response to the investigators’ questions in the absence of a lawyer, and such refusal would then not have been “neglecting or refusing to obey lawful orders given by superior officers orally …”.

42. The issue in Fu Kin Chi was whether a police officer subject to disciplinary investigation enjoyed the right of silence and could, in exercise of that right, refuse to answer questions which might incriminate him.  In its judgment, the Court of Final Appeal began by acknowledging the right of silence conferred by the common law upon an individual.  The Court held that, unless the right of silence had expressly or impliedly been abrogated by legislation, a disciplined officer (including a police officer) under disciplinary investigation would not lose that right by reason of his being a disciplined officer.  The Court also held that, in interpreting the relevant legislation, there was a strong presumption that the legislation would not take away the right of silence.

43. Nevertheless, having carefully considered the relevant legislation including the Police Force Ordinance (Cap. 232) and the Police (Discipline) Regulations (Cap. 232, Sub. Leg.), the Court of Final Appeal held that the legislation had not expressly abrogated the right of silence but, on a proper construction, it had by necessary implication abrogated that right, so that a police officer under disciplinary investigation could not exercise that right by refusing to answer questions by the investigators.

44. Li CJ gave the following analysis of the relevant legislation and the abrogation of the privilege (at 98G-101C):

The statutory scheme and provisions

I turn to examine the statutory scheme under the Police Force Ordinance (Cap. 232) and the relevant provisions:

(1) The police force is a disciplined force under the supreme direction of the commissioner.  See s. 4.

(2) The Ordinance lays down the duties of the police force.  See s. 10.  As one would expect, the duties specified include preserving the public peace, preventing and detecting crimes and offences and preventing injury to life and property.  In short, the police force is charged with the maintenance of law and order.

(3) Before entering on the duties of a police officer, every officer must take an oath or declaration of office which is now in the following form:

I will well and faithfully serve the Government of the Hong Kong Special Administrative Region according to law as a police officer, that I will obey uphold and maintain the laws of the Hong Kong Special Administrative Region, that I will execute the powers and duties of my office honestly, faithfully and diligently without fear or favour to any person and with malice or ill-will toward none, and that I will obey without question all lawful orders of those set in authority over me.

See s. 26 and the Schedule and s. 2A and Sched. 8 of the Interpretation and General Clauses Ordinance (Cap. 1) added by s. 5 of the Hong Kong Reunification Ordinance (No. 110 of 1997).

(4) Part III of the Ordinance deals with discipline and duties.  Section 30 in Pt. III provides:

30.       Police officers to obey lawful orders

Every police officer shall obey all lawful orders of his superior officers whether given verbally or in writing and shall obey and conform to police regulations and orders made under this Ordinance.

(5)        Section 31 in Pt. III confers on the commissioner the power of summary dismissal of any police officer whom he is satisfied is guilty of contravening police regulations or any police orders whether given verbally or in writing.

(6)        The Chief Executive in Council (previously the Governor in Council) may make police regulations which may provide for discipline and punishments.  See s. 45(1)(d).

(7)        The Police (Discipline) Regulations have been made.  Regulation 3(2) provides:

The offences against discipline are:

(a)          absence from duty without leave or good cause;

(b)         sleeping on duty;

(c)          conduct to the prejudice of good order and discipline;

(d)         cowardice in the performance of duty;

(e)          contravention of police regulations, or any police orders, whether written or verbal;

(f)           insubordination;

(g)          being unfit for duty through intoxication;

(h)          neglect of duty or orders;

(i)            malingering;

(j)           making a statement which is false in a material particular in the course of his duty or in connection with the discharge by the police force of any of its duties or functions;

(k)         unlawful or unnecessary exercise of authority resulting in loss or injury to any other person or to the Government;

(l)            wilful destruction or negligent loss of or injury to Government property;

(m)        conduct calculated to bring the public service into disrepute.

I observe that a number of these offences, such as those in 3(2)(c)(1) and (m), can be committed by a police officer when he is off duty.

(8)        The Police Force has the statutory duty of maintaining law and order.  Its integrity and efficiency and public confidence in its integrity and efficiency are of fundamental importance if it is to discharge its duty effectively.

(9)        Its integrity and efficiency can only be maintained if the force can ensure that its members are subjected to disciplinary authority.  This could only be done effectively if the force has the fullest powers to investigate cases of possible offences against discipline and, where justified after investigation, to take disciplinary proceedings.

Abrogation?

Where there is a legitimate investigation into possible disciplinary offences which a police officer might have committed and he is required to assist, the exercise by him of the privilege against self-incrimination to refuse assistance, in my judgment, would plainly undermine and be inconsistent with the scheme.  It would, if nothing else, be conduct to the prejudice of good order and discipline.  Under the scheme, the force’s integrity and efficiency and public confidence therein are of fundamental importance for its effective functioning, and the effective investigation of possible offences against discipline is essential to maintaining its integrity and efficiency.  In my judgment, he has a duty to assist and it is clear that the legislature by establishing the scheme governing the force intended that a police officer, when asked to assist in such an investigation, cannot say to the police authorities: ‘This is none of your business’.  On the contrary, the legislature intended that it should very much be the business and indeed the duty of the force to investigate possible disciplinary offences; this being essential to maintaining its integrity and efficiency.  That being so, the legislative intention by necessary implication is that the privilege has been abrogated in relation to a disciplinary investigation.  Where he refuses to assist, a conviction for the disciplinary offence of conduct to the prejudice of good order and discipline would be fully justified.

In the present case, the assistance sought from the appellant in the disciplinary investigation was answers to questions posed to him.  Assistance could be sought from a police officer under disciplinary investigation in some other form, for example, by the production of documents.  The privilege cannot be invoked whatever the type of assistance required.

That the legislature intended by necessary implication to abrogate the privilege in a disciplinary investigation is further made plain by s. 30.  This imposes on every officer the statutory duty to obey all lawful orders of his superior officers.  This duty is also expressly stated in the statutory oath or declaration of office.  This duty is relevant in this case since the appellant was in effect ordered to answer the questions posed at the crucial interview.  Section 30 contains general words which are intended to apply to a wide variety of situations.  They must be construed in the context of the statutory scheme.  When so construed, this provision, in my judgment, by necessary implication abrogates the privilege in relation to a disciplinary investigation.  As Lord Mustill observed (at p. 40), the abrogation of the privilege by necessary implication from general language which contains no qualification in favour of the privilege is a common legislative technique.  This was the approach taken by the High Court of Australia in construing a provision similar to s. 30 in the context of the Australian statute in Police Service Board v Morris (1984-1985) 156 CLR 397.  But in a case where no orders have been given, and s. 30 does not apply, as I have held above, a police officer has a duty to assist in a legitimate disciplinary investigation concerning him and cannot invoke the privilege to relieve him of that obligation.

            By abrogating the privilege against self-incrimination in relation to an investigation into possible disciplinary offences by a police officer, the legislature has considered it appropriate, as it was entitled to do, that the police officer’s common law privilege must yield to the public interest in the maintenance of integrity and efficiency of the police force.

45. Bokhary PJ also pointed out in his judgment that, in considering whether the legislature had abrogated the right of silence of a police officer, regard must be had to both the primary legislation and the subsidiary legislation (at 105C):

Where the statutory regime consists of subordinate legislation as well as primary legislation, the subordinate legislation may, as in the United Kingdom, demonstrate that such privilege remains.  Or it may combine with the primary legislation to demonstrate that such privilege has been abrogated.  And that is what I think the Regulations do in Hong Kong.

46. That the right of silence of police officers has been abrogated does not, of course, mean that the right of silence of Customs officers is also abrogated.  The issue involved in the present case can be determined only after considering the relevant legislation and rules as well as the whole legislative scheme.

47. As stated above, there is no doubt that the CES is a disciplined force.

48. Section 3 of the CESO clearly stipulates that the CES is under a duty to take lawful measure for the enforcement of the laws of Hong Kong, and the laws to be enforced are set out in Schedule 2, which lists no fewer than 26 ordinances.  Many of these ordinances concerns matters of utmost significance in Hong Kong, such as the importation and exportation of dutiable commodities, smuggling, dangerous drugs, dangerous goods and copyright.  This gives us a good idea of the importance of the work of the CES.

49. Furthermore, to enable the CES to smoothly carry out its statutory function of enforcing the laws of Hong Kong, the CESO confers very wide-ranging powers on the CES, including the power to arrest and search suspects, enter premises to search for suspects, search and examine goods and articles without warrant, inspect travel documents, detain a suspect for 48 hours, and bring prosecutions.

50. The discipline of Customs officers is obviously one of the prime concerns of the CESO.  This is apparent from the Preamble, which states that one of the objectives of the CESO is to “make provision as to the discipline of members of the CES”.  Apart from making provisions as to discipline, the CESO empowers the Chief Executive to make rules for disciplinary matters and empowers the Commissioner to make provisions as to discipline in the form of Standing Orders.

51. And the Chief Executive and the Commissioner have exercised the powers conferred on them by the CESO and enacted the Disciplinary Rules and Standing Orders respectively.

52. Here, Section 12(1)(b) of the CESO is particularly noteworthy.  It provides that, whenever a subordinate officer is charged with a disciplinary offence, “the matter shall be investigated and the officer concerned dealt with in the appropriate manner prescribed by rules made under section 16” (emphasis added).  The discipline of Customs officers is no doubt a matter of great concern to the legislature.  This can be seen from the Commissioner’s power under the CESO to dismiss a Customs officer who is guilty of a disciplinary offence.

53. As members of the disciplined force, Customs officers have the power and duty to enforce a number of important ordinances of Hong Kong.  Their integrity, efficiency and public confidence in them are absolutely essential to the faithful and effective discharge of their statutory duties.  To maintain their integrity and efficiency, all Customs officers must strictly observe discipline, and this can hardly be achieved unless the CES is able to carry out thorough and efficient investigations on suspected offences against discipline.

54. It is not difficult to envisage the hindrance that will be caused to the investigation process if a Customs officer suspected of a disciplinary offence has the right to refuse to answer questions put to him by investigation officers.  In the interests of the CES and of our society as a whole, when a Customs officer suspected of a disciplinary offence is being investigated and questioned by investigators acting under authority of the Commissioner, that officer, being a member of the CES, should fulfil his obligation to provide all relevant information and use his best endeavours to assist the Commissioner (and the investigators instructed by him) in carrying out a detailed and thorough investigation of the matter and finding out the truth, so that the strict discipline of the CES can be maintained and the CES can continue to be an orderly, virtuous and efficient law-enforcement body and to enjoy public trust and recognition.

55. From this perspective, if Customs officers being questioned were to have the right of silence, this would run contrary to the above considerations.

56. Having examined the relevant circumstances and the factors laid down by the Court of Appeal in Fu Kin Chi, I have no doubt that the relevant legislation and rules must, by necessary implication, have abrogated the right of silence of Customs officers.

57. The right of silence being considered here is of course the same as that in Fu Kin Chi, namely in the context of a Customs officer under disciplinary investigation giving answers to questions that may implicate him in a disciplinary offence (as opposed to a criminal offence).  Different considerations may apply where an answer may implicate the respondent in a criminal offence (see Fu Kin Chi, at 98 B-C, 106 F-H).

58. On the facts of the present case, I do not think that any answer that the Applicant gave to the investigators’ questions at the interview would result in the Applicant being prosecuted for a criminal offence.  As stated above, in respect of the suspected acceptance of bribes and advance provision of information on arrests, the Applicant had gone through a prosecution process and been acquitted by the magistrate of the relevant charges.  Under the common law, the Applicant cannot be prosecuted again for the same or similar offences.

59. The fact that the investigators had reminded the Applicant of criminal liability under Section 17E (making false reports etc to Customs officers) is, in my view, not relevant to the right of silence.  The rationale behind this right is to prevent a respondent from disclosing that he has committed a criminal offence.  The right of silence has nothing whatsoever to do with the question whether the act of responding to a question per se constitutes a criminal offence.  If the Applicant could refuse to answer the investigators’ questions for the reason that he might incur criminal liability under Section 17E by answering those questions, then by analogy, any witness who gave evidence on oath in the court could refuse to answer any question put to him on the ground that he might commit the offence of perjury by answering questions.  I cannot accept such an unfounded and illogical argument.

The right to be accompanied by a lawyer and to obtain legal advice

60. As to whether the Applicant had to right to insist on the presence of a lawyer (or on obtaining legal advice) before he gave any substantive reply to the investigators’ questions at the interview, this is related to, but not exactly the same as, the issue regarding the right of silence.  Before I address the relevant legal principles (if there is such a need at all), it is necessary to set the facts straight.

61. The ruling of the Presiding Officer at the hearing reveals that, during a telephone conversation with his superior on 3 August, the Applicant came to know that his superior did not consider it necessary to have a lawyer attend the interview with the Applicant, and that the Applicant had to make an application if he wished to be accompanied by a lawyer.  According to the ruling, no such application was made by the Applicant between 3 August and 17 August.  He went alone to the interview on 17 August.  In these circumstances, I harbour no doubt that, assuming he did have such a right, the Applicant had waived the right to request the presence of a lawyer before he answered any question.  I also consider that the Applicant had plenty of time prior to the interview to seek legal advice.  It follows that, in respect of his refusal to give substantive answers to questions at the interview, the sole issue is whether he had the right of silence, and I have dealt with and determined this issue above.

62. At the hearing of the application for judicial review, the Applicant reiterated his testimony at the disciplinary hearing, namely that what his superior told him during the telephone conversation on 3 August was not what the Presiding Officer had determined, and that his superior had in fact firmly declined his request to be accompanied by a lawyer.

63. In his written ruling, however, the Presiding Officer had clearly rejected the Applicant’s evidence in that respect and accepted his superior’s evidence (see paragraph 15 of the ruling).  In these judicial review proceedings, the above ruling of the Presiding Officer is binding on the Applicant and cannot be overturned.

64. There is no doubt that, on or before 17 August (the date of the interview), the Applicant did not apply to be accompanied by a lawyer; even if he considered he was entitled to have a lawyer accompany him without having to apply for the same, he had sufficient time to instruct a lawyer (I am leaving aside the question whether his superior would in that case allow that lawyer to attend the interview with the Applicant), but he did not do that.  It follows that, assuming he did have such a right, the Applicant had waived the right to be accompanied by a lawyer before he was interviewed.

65. Neither party has made any or any detailed submission on the right to be accompanied by a lawyer at the interview, and I do not wish to address this issue.  I would only note that Rule 6(2) of the Disciplinary Rules expressly provides that the officer charged is not entitled to be represented by counsel or a solicitor at the disciplinary hearing.  In light of this, I would cast considerable doubt about whether an officer under disciplinary investigation is entitled to be represented by counsel or a solicitor at the interview.  However, as stated above, for the aforesaid reasons, I do not have to and do not intend to express any definite view on this question.

Other considerations

66. As stated above, both the testimony and the ruling show that, at the interview, the investigators had warned the Applicant that failure to answer their questions would constitute the disciplinary offence of neglecting or refusing to obey lawful orders given by senior officers (the investigators ranked as senior officers vis-à-vis the Applicant).  Despite such warning, the Applicant still refused to give substantive answers to the investigators’ questions.  That being the case, the Applicant was clearly neglecting or refusing to obey lawful orders given orally by senior officers that required him to answer relevant questions.  Accordingly, the Applicant was properly convicted of a disciplinary offence under Rule 3(e).

67. As to the Applicant’s allegation that he had never received a written notice requiring him to attend the interview, I completely agree with the Presiding Officer’s analysis (see paragraph 16 of his written ruling).  Whether the Applicant had received the written notice of interview had nothing to do whatsoever with the disciplinary offence with which he was charged.

Punishments

68. Finally, the Applicant submits that the punishments imposed by the Commissioner were excessive.  In the context of judicial review and as a matter of public law, unless the punishments imposed by the Commissioner were perverse, oppressive or unreasonable or were wholly disproportionate to the offences in question, this court cannot and should not interfere with those punishments.  See Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679, 694J-696F.

69. The Applicant stresses matters such as his courageous performance when he was working as a Customs officer.  The documents show that these matters had already been taken into account by the Commissioner and (on appeal) the Secretary.  I see nothing which suggests that the punishments imposed by the Commissioner and the Secretary were perverse, oppressive or unreasonable or were wholly disproportionate to the offences in question.

70. As far as disciplinary sanctions are concerned, the court must give due respect to the decisions of the relevant decision-makers and must not too readily interfere with or overturn those decisions.  As explained above, the court in judicial review proceedings does not function as an appellate court, still less as the individual or body that made the original decision.

71. Having considered the case as a whole, I do not see any or any sufficient reason for interfering with decisions of the Commissioner and the Secretary on the Applicant’s punishments.

72. As to the Applicant’s contention that the punishment of dismissal was imposed on him because the government was in financial difficulty and therefore dismissed him in order to deprive him of pension and benefits, such contention is simply unsubstantiated and not worthy of discussion.

Orders

73. For the aforesaid reasons, I order that the application for judicial review be dismissed.

74. I have heard submissions from both parties on costs.  I consider that costs should follow the event, and as judgment is entered against the Applicant, he has to pay the Respondents’ costs.  I therefore order that the Applicant is to pay the Respondents’ costs of these proceedings, to be taxed if not agreed.