何建民 v. 香港警務處處長

FAMV Nos. 58-61 of 2014

FAMV No.58 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 58 OF 2014 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 200 OF 2012)

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FAMV No.59 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 59 OF 2014 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 175 OF 2012)

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FAMV No.60 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 60 OF 2014 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 228 OF 2012)

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BETWEEN

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FAMV No.61 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 61 OF 2014 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 229 OF 2012)

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DETERMINATION

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Chief Justice Ma (giving the Determination of the Appeal Committee):

1. The Applicants in these four applications for leave to appeal were all former police officers who had been either dismissed or compulsorily retired from the police force following disciplinary proceedings against each of them.  The Applicants were not legally represented during those proceedings.[1] The decisions to dismiss or compulsory retire them became the subject matter of judicial review applications in which the Applicants sought to quash the decisions.  In the judicial review proceedings, the propriety of the various disciplinary hearings resulting in these decisions, was challenged.  The judicial review proceedings were all unsuccessful: leave to apply for judicial review was refused for two of the Applicants; for the other two Applicants, whilst leave was given, the substantive application was dismissed.  No appeals were launched.

2. Subsequent to these unsuccessful judicial review applications, the Court of Final Appeal handed down its decision in Lam Siu Po v Commissioner of Police.[2]  The effect of the decision was that the absolute bar on legal representation at disciplinary hearings imposed by the Police (Discipline) Regulations was held to be unconstitutional[3] and it became incumbent on the Commissioner of Police to consider in every case whether fairness required permission to be given for legal representation in the relevant disciplinary proceedings.

3. Following the decision in Lam Siu Po, despite the significant change in  the law that the case represented, the courts have consistently refused to grant extensions of time to enable erstwhile applicants for judicial review to appeal out of time to take advantage of the decision.[4]

4. The present Applicants did not seek extensions of time for leave to appeal out of time.  Instead, they commenced ordinary private law actions by writ on various dates in 2010 and 2011 seeking damages for the wrongful termination of their service contracts.  The basis for the claims was that the Applicants were not given the opportunity to secure legal representation at the various disciplinary proceedings – therefore making those proceedings unfair[5] - which led to the termination of their service contracts.  As a result of this, the termination of their service contracts was wrongful and damages should therefore be payable.  There were three legal bases put forward by the Applicants: breach of an implied term of the contracts that their employer[6] had to comply with Article 10 of the Bill of Rights and Article 39 of the Basic Law,[7] breach of statutory duty (being the breach of Article 10 of the Bill of Rights) and breach of constitutional rights (being Article 39 of the Basic Law in implementing Article 14.1 of the ICCPR).

5. For present purposes, it does not matter on which legal basis the claim is put.  We make no comment on the viability of such legal causes of action.  The important point, however, is that whatever the legal basis, the Applicants must, as the fundamental basis of their claims, rely on the proposition that they had been denied their constitutional rights by the absolute bar on legal representation at their disciplinary hearings.  This was the point decided by Lam Siu Po in concluding that the relevant Police (Discipline) Regulations were unconstitutional.

6. The Respondent applied to strike out the Applicants’ claims in the present actions on a number of grounds, but for present purposes, the relevant ground was that based on the principle in Henderson v Henderson[8] as affirmed in a number of decisions in Hong Kong.[9]  The principle is essentially that it may, depending on the circumstances, be an abuse to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings.  The approach requires a broad merits-based assessment of the relevant circumstances of any given case.  The Respondent focused on the Applicants’ contention in the present proceedings[10] that the disciplinary proceedings leading to the termination of their service contracts were flawed owing to the denial of their constitutional rights under Article 10 of the Bill of Rights.  This constitutional challenge, the Respondent says, could and should have been raised in the earlier judicial review proceedings challenging the decisions to terminate their contracts.  The constitutional challenge was eventually raised in Lam Siu Po but it was open to the Applicants to have challenged the constitutionality of the relevant Police (Discipline) Regulations if they had wished to.

7. In the circumstances, seeking now to raise the constitutional issue was an abuse under the Henderson v Henderson principle.  The Court of First Instance struck out the claims on this basis, holding that the abuse of process was “beyond argument”.[11]  The Court of Appeal[12] dismissed the Applicants’ appeals.  After referring to the various authorities on the principle and the approach of a broad merits-based assessment, the Court of Appeal agreed with the Judge at First Instance that the constitutional challenge to the Regulations could and should have been raised in the judicial review proceedings.  After balancing the various factors, the Court of Appeal concluded that there was an abuse.  The Court of Appeal acknowledged that the Applicants were seeking redress for the irregularity in the disciplinary proceedings, but were of the view that the competing public interests[13] were stronger.[14]  Notwithstanding that the Applicants were seeking damages in their private law claims, this relief – which, incidentally, is a remedy which can be claimed in judicial review proceedings[15] - emanated from precisely the same premise as in the judicial review proceedings, namely, a flawed and unfair disciplinary hearing by reason of the lack of legal representation.  We see nothing arguably wrong in the Court of Appeal’s conclusion and their analysis, involving as it must a balancing of competing interests, should not be interfered with lightly.[16] 

8. The question eventually identified by leading counsel for the Applicants[17] to be one of great general or public importance was put as follows:

“Whether the law on Henderson v Henderson type of abuse of process applies to a civil action for damages, when

1. the same plaintiff instituted a prior judicial review and either failed to argue or lost in his argument of one issue (“the same issue”);

2. the same issue arose in the subsequent civil action;

3. the law on the same issue has in the meantime been held to an effect different from that obtained during the judicial review and the plaintiff pleads his civil action based on the changed state of the law;

4. the plaintiff does not seek to re-litigate the same issue by renewing the judicial review; and

5.  nothing in the civil action could or would retroactively affect the law on the same issue already pronounced in the prior judicial review, which remains final and certain?”

9. Framed in this way, only one issue seems to be raised, namely, that a change in the law will prevent the operation of Henderson v Henderson.  No authority has been provided to support such a stark proposition.  On the contrary, the authorities (including those cases dealing with extensions of time for leave to appeal out of time where there has been a change in law[18] and the finality principle referred to by the Court of Appeal[19]) suggest quite the opposite.  The application of Henderson v Henderson involves a merits-based assessment where a change in the law may, however in certain circumstances, feature as a factor to be considered.  Mr Leong sought to argue that the effect of the judgment of the Court of Appeal would be to impose an “absolute” bar to private law actions following public law proceedings on the same or similar subject matter.  With respect, the judgment of the Court of Appeal has no such effect.  As numerous passages in the judgment demonstrate, the Court of Appeal was merely applying the test in Henderson v Henderson, balancing the various factors that were relevant in the present cases.  The question posed raises no question of great general or public importance, or if it does, it is unarguable.

10. Accordingly, we dismiss the applications for leave to appeal with costs, such costs to be paid by the Applicants to the Respondent, to be taxed if not agreed.  The Applicants’ own costs are to be taxed in accordance with the Legal Aid Regulations.