LAM TAT MING v. THE CHIEF EXECUTIVE OF THE HKSAR AND ANOTHER

HCAL 121/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 121 OF 2009

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J U D G M E N T

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I. INTRODUCTION

1.  The Applicant (Lam) seeks judicial review of 2 decisions. The first is the Secretary’s decision to exercise her power under s.27(2) of the Pension Benefits Ordinance (Cap.99) (PBO) to deny Lam a pension upon his retirement from the Hong Kong Police Force. That decision was communicated to Lam on 2 June 2008. The second is the Chief Executive’s decision under PBO s. 29A upholding the Secretary’s refusal of a pension and rejecting Lam’s Petition to overturn the Secretary.  The latter decision was communicated to Lam on 4 August 2009.

2.  Lam contends that the power to refuse a pension under the PBO is inconsistent with Arts. 10 and 11 of the Hong Kong Bill of Rights (HKBOR).  He argues that s. 27(2) and the Secretary’s exercise of the power under that provision should be struck down as unconstitutional. Plainly, if the Secretary’s decision is struck down, the Chief Executive’s decision on Lam’s Petition would fall aside in consequence.

3.  Alternatively, Lam contends that both decisions were Wednesbury unreasonable.

II.      BACKGROUND

4.  Until retirement, Lam was a police inspector.

5.  In May 1997 the ICAC arrested Lam on suspicion of a breach of s.4 of the Prevention of Bribery Ordinance (Cap.201).  The principal allegation was that Lam had on several occasions (at least one of which had been in Macau in the presence of Sergeant Ng Sai Hing) accepted bribes from a known triad member named Ngau Wing.  Ng was charged with Lam.

6.  At trial Lam and Ng were acquitted, the judge having ruled inadmissible certain evidence obtained during an ICAC undercover operation.  The Government appealed (ultimately to the Court of Final Appeal) against the judge’s ruling of inadmissibility.  The Court of Final Appeal ordered a re-trial.  But Lam and Ng were acquitted upon re-trial, the undercover evidence again being ruled inadmissible.

7.  The Police then initiated joint disciplinary proceedings against Lam and Ng in January 2003.  The two were accused of having committed 58 disciplinary offences including associating with a triad personality (Ngau Wing) and accepting financial advantages without permission. At Lam’s request, the disciplinary proceedings against him were severed from those against Ng in October 2003. 

8.  In November 2005, in his disciplinary proceedings, Ng was found guilty of associating with a triad personality.  Ng was consequently dismissed from the Police Force.

9.  In Lam’s case the disciplinary proceedings were protracted.  For various reasons, hearings were repeatedly adjourned.  Those reasons were primarily due to applications by Lam.  The reasons included sick leave, the need to attend to family affairs, and the failure to find a defence representative.  Further, in the course of the proceedings, Lam took out several applications for judicial review. 

10.  The result was that, on 14 January 2008, the day when Lam reached the prescribed retirement age of 55, the disciplinary proceedings had yet to reach any conclusion.  But, Lam having retired, there was no point to the continuation of the proceedings and they ended.

11.  The Commissioner of Police then invoked the procedure under PBO s.27(2).  The section provides that a “designated officer” (in the case of a police inspector such as Lam, the Secretary) may refuse to grant a pension where an:-

“officer retired during any disciplinary proceedings brought against him by the Government ... and had such proceedings been completed or taken place they would, in the opinion of the Public Service Commission, have led to the dismissal of the officer from the service ... in the exercise of disciplinary powers of punishment by the Government with a reduction of the pension benefits granted to him”.

12.  The Public Service Commission (PSC) considered that the disciplinary proceedings against Lam would, if completed, have led to Lam’s dismissal from the Police.  Dismissal would have meant Lam losing his entitlement to a pension.

13.  Lam was so informed and invited to make representations on whether the Secretary should exercise the power under s.27(2) to refuse Lam his pension.  Lam made written representations, but did not expressly ask for any oral hearing.

14.  Following consideration of Lam’s representations, the Secretary decided not to grant his pension.  No reasons were given for the decision.  However, according to the affidavit evidence before me, in deciding as she did, the Secretary took particular account of the following:-

(1)    Ngau Wing’s non-prejudicial statement made on 22 October 1994 that Lam had solicited and accepted $450,000 from him.

(2)    Ngau Wing’s non-prejudicial statement made on 9 December 1996 that he was a triad member and had paid substantial amounts to Lam.

(3)    The fact that Lam was an experienced police officer who had served in the District Intelligence Section and Divisional Investigation Team of the district in which Ngau Wing carried out illegal operations.

(4)    Lam’s cautioned statement to the ICAC of 1 May 1997 admitting that Lam had known Ngau Wing since the 1970s and that the two had dined together from time to time despite Lam’s knowledge of Ngau Wing’s undesirable character.

(5)    Oral evidence from an ICAC agent (identified in the evidence before me by the code-name “Heung Kai”) in Ng’s disciplinary proceedings as to meetings between Lam and Ngau Wing in February and April 1997.

(6)    Immigration Department movement records relating to Lam and Ngau Wing corroborating Ngau Wing’s evidence that (for example) Lam and Ngau Wing were in Macau at the same time.

15.  Lam petitioned against the Secretary’s decision refusing a pension to the Chief Executive pursuant to PBO s.29A.  The Civil Service Bureau (CSB) commented in writing on Lam’s Petition and Lam responded to those observations in writing.

16.  On consideration of Lam’s submissions and those of CSB, the Chief Executive found no basis to vary the Secretary’s decision. Lam’s Petition was therefore rejected.

III.     DISCUSSION

A.      Whether the PBO process contravenes the HKBOR

17.  By the expression “PBO process”, I mean the entirety of procedures involved in forfeiting a pension as stipulated in ss. 27(2) and 29A.  That process includes the possibility of judicial review.

18.  The HKBOR provides:-

“10. .... In the determination of any criminal charge against him, or his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent and impartial tribunal established by law....

11. (1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:-

....

(d) to be tried in his presence, ....

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same condition as witnesses against him;

....”

19.  Arts. 10 and 11 are in practical terms identical to Arts. 14(1) and (2) of the International Covenant on Civil and Political Rights (ICCPR).

20.  The ICCPR has constitutional force in Hong Kong by Art. 39 of the Basic Law. Therefore, Hong Kong statutes have to be construed in a manner consistent with the ICCPR and Arts. 10 and 11.  If a statutory provision cannot be so construed, then the Court may strike it down as contrary to the Basic Law.

21.  Accordingly, in the present case, as submitted by Mr. Godfrey Lam SC (appearing for the Secretary and Chief Executive), the Court adopts the following approach in determining whether s.27(2) is constitutional:-

(1)    The Court asks whether Arts. 10 or 11 apply on their terms to the pension forfeiture process in s.27(2).

(2)    If so, the Court assesses whether the PBO process complies with Arts. 10 and 11.

(3)    In assessing whether there is compliance, the Court bears in mind Interpretation and General Clauses Ordinance (Cap.1) (IGCO) s.2A(1). That requires that the PBO process be construed with “such modifications, adaptations, limitations and exceptions as may be necessary so as not to contravene the Basic Law”.  It is only if the remedial construction mandated by IGCO s.2A(1) cannot remove a material incompatibility, that the Court will declare a statutory provision to be unconstitutional and invalid.

A.1    Incompatibility with HKBOR Art. 10?

22.  For the purposes of this judicial review, the Government accepts that Art. 10 applies to the PBO process.

23.  One can therefore immediately move on to consider whether the PBO process complies with Art. 10.  In so doing, the Court looks at the whole of the PBO process, including the possibility of recourse to judicial review.  This is because, as Ribeiro PJ noted in Lam Siu Po v. Commissioner of Police (2009) 12 HKCFAR 237 (at para. 109):-

“Article 10 does not require every element of the protections conferred to be present at every stage of the determination of a person’s rights and obligations, but only that such protections should be effective when the determination is viewed as an entire process, including as part of that process such appeals or judicial review as may be available.”

24.  Mr. Gerard McCoy SC (appearing for Lam) makes two principal points as to why the PBO process, viewed as a whole, does not comply with Art. 10.

25.  First, Mr. McCoy notes that the decision-makers (the Secretary and the Chief Executive) were not independent of the Government.

26.  As representatives of the Government, both decision-makers would have had an interest in seeing that Government was liable to pay out as little pension as possible. This would be especially so where Lam has been accused of accepting bribes from a triad member and betraying the trust imposed upon him as a police inspector by the Government and the public.

27.  Given the decision-makers’ connection to Government, a fair-minded observer (Mr. McCoy contends) would reasonably perceive a real danger of their respective decisions being biased.  In short, there would be apparent bias.

28.  Second, judicial review would not be capable of curing that perception of apparent bias. 

29.  This is because (Mr. McCoy observes) the nature of the PBO process under ss. 27(2) and 29A is such that it would normally involve adjudicating between conflicting versions of primary fact.  If that adjudication is vitiated by (say) bias or apparent bias, the Court on a judicial review has no power to reach its own conclusion on primary facts.  Nor would the Court have the power to rehear or weigh evidence, or substitute its own views as to a person’s credibility.

30.  It is a serious matter (Mr. McCoy elaborates) to deprive an employee of his pension in whole or in part.  A pension is a vital component of a person’s sense of social well-being and financial security.  So, in practice the PBO process will typically only be invoked where grave, most likely criminal, allegations have been laid against a public servant.  Such circumstances will conventionally involve disputed facts, the relevant public servant usually denying (as here) that he or she has engaged in any illicit or unauthorised activities. 

31.  Under the PBO process, a decision to refuse a pension requires an assessment by the designated officer and (upon petition) by the Chief Executive of the likely outcome of aborted disciplinary proceedings.

32.  Here, although Lam accepts that he knew Ngau Wing socially and occasionally met him, Lam says that he did not realise that Ngau Wing was triad member.  Nor does Lam accept that he received bribes from Ngau Wing.  Lam vigorously denies Ngau Wing’s version of events.  Had the disciplinary proceedings gone ahead, Lam would have been entitled to confront and cross-examine Ngau Wing in an effort to discredit and disprove the latter’s evidence. 

33.  But, under PBO ss. 27(2) and 29A, all decisions by relevant decision-makers are typically taken on the basis of documents alone (including written submissions).  More specifically, the PBO process does not empower the Secretary or the Chief Executive to compel witnesses to attend an oral hearing for the purposes of cross-examination. 

34.  Consequently, here, Lam had no opportunity to challenge and test Ngau Wing’s evidence through cross-examination.  A corollary to this is that the decision-makers in the present case did not have the opportunity to hear and see how Ngau Wing might have reacted to cross-examination by Lam’s counsel.  The result was that, despite the gravity of the charges in the Lam’s disciplinary proceedings (including association with a triad member and acceptance of unauthorised financial advantages) and despite the severity of the penalty at stake in the PBO process (the deprivation of Lam’s pension), the decision-makers were constrained by the limitations of the PBO process to determine issues of hotly disputed fact solely on the basis of documents. 

35.  This (Mr. McCoy says) was unfair.  Mr. McCoy submits that there was no way on the documents before it that the PBO process could fairly have led to any decision to deprive Lam of his pension.  It would not have been possible to assess the truth or falsity of Ngau Wing’s or Lam’s version of events on documents alone without confrontation and cross-examination of relevant witnesses (such as Ngau Wing) in an oral hearing.  But this sort of oral hearing is not possible under the PBO process.

36.  Insofar as the decision-makers found against Lam’s version of primary fact, the perception of apparent bias (Mr. McCoy concludes) would then incurably vitiate their decision.  The decision-makers may not (indeed could not) truly have evaluated the documentary evidence.  It would have been all too easy for them as Government representatives (even if only sub-consciously) to prefer the version of events advocated by the Government as opposed to that advanced by Lam.  The Court’s powers on a judicial review being limited in relation to fact-finding, the Court could not cure the problem,  

37.  In response, Mr. Godfrey Lam SC first cites R (Alconbury Ltd.) v. Environment Secretary [2003] 2 AC 295 (HL) (at para.110).  There Lord Hoffmann (referring to Mr. Nicholas Bratza’s concurring opinion in Bryan v. Walker (1995) 21 EHRR 3422) noted that even though an administrative tribunal may consist of civil servants, it nonetheless “may be more or less independent, depending upon the question it is being called upon to decide”. 

38.  Thus, for example, on a question involving planning permission, a planning inspector sitting as a tribunal on an application by a property owner, “would be no more independent than a Secretary of State himself”.  But “in deciding questions of primary fact or fact and degree which arose in enforcement appeals [as opposed to questions of planning policy or expediency], the inspector was no mere bureaucrat”.  The inspector might instead be regarded as “an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact”.

39.  Mr. Godfrey Lam suggests that, analogously, the Secretary and the Chief Executive being at the apex or near-apex of the civil service would have “ample expertise in disciplinary matters concerning civil servants”.  By reason of that expertise the Secretary and the Chief Executive may be regarded as not only competent adjudicators, but “more or less independent” in the determination of relevant facts for the purposes of the PBO process.

40.  I am not persuaded by this argument.

41.  In Alconbury, Lord Hoffmann was referring to the technical expertise of an inspector in planning matters.  The inspector’s application of that expertise in assessing technical disputes of primary fact in planning hearings may in appropriate circumstances imbue the inspector’s findings with a sufficient degree of impartiality to satisfy the requirements of Art. 10.

42.  But in this case one is not concerned with a matter of technical expertise.  The problem arises from the need to assess truth or falsity from contradictory written material. One party’s submissions say “white”; while the other’s statements say “black”. There is a stark question of credibility, not of expertise. In the absence of confrontation and cross-examination, whom does one believe and on what rational basis?  I doubt that any amount of experience in the handling of disciplinary or civil service matters, however distinguished, can provide an individual with the expertise to sift truth or falsehood from documents alone where there are two competing versions of primary fact.

43.  Second, Mr. Godfrey Lam submits that in any event, as far as the PBO process is concerned, any perceived impartiality on the part of the Secretary or Chief Executive is cured by the possibility of recourse to judicial review. 

44.  In support of this proposition, Mr. Godfrey Lam cites the dictum of Ribeiro PJ in Lam Siu Po already quoted above.  He also draws my attention to a recent statement to the same effect by Andrew Cheung J in Wong Tak Wai v. Commissioner of Correctional Services [2010] 4 HKLRD 409 (CA) (at para. 118): “However, as Kwan JA has held, and I fully agree, the lack of structural independence [by the decision-makers] is fully cured by ... access to the court, which is fully independent, through judicial review.”

45.  I would accept that in some situations the availability of judicial review may be a complete answer to any perception of apparent bias.  But is the present case such a situation?

46.  In R (on the application of McLellan) v. Bracknell Forest Borough Council [2002] 1 All ER 899 (CA), Waller LJ (at para. 89) summarised the Court’s approach to determining whether an administrative process is Art. 10 compliant.  In McLellan Waller LJ was specifically referring to Art. 6(1) of the European Convention for the Protection of Human Rights and Fundamental Reasons (as set out in Schedule 1 to the Human Rights Act 1998).  Art. 6(1) is in near identical terms to Art. 10 such that for present purposes there is no real difference between them.

47.  Waller LJ stated:-

“What those passages [from Lord Hoffmann’s speech in Alconbury] support are the following propositions in considering whether judicial review, plus the [relevant administrative] procedures, are art. 6 compliant: (1) it is relevant whether findings of fact are material to the decision; (2) if findings of fact are material to the decision, that will not finally determine whether judicial review provides a remedy in compliance with art. 6; (3) if the facts have themselves been found by ‘an expert tribunal’ sufficiently independent to make it unnecessary for the court to have a broad jurisdiction to review those decisions of fact[,] that is likely to lead to the conclusion that judicial review is sufficient.”

48.  Similar dicta appear in other cases.  One such instance which I have found especially helpful is a passage from the judgment of Moses J in R (on the application of Bewry) v. Norwich City Council. The passage runs:-

“63. The weight and impression given by that evidence will be a matter for the judgment of those [in the Review Board] before whom it is presented. The extent to which they have been influenced will not be manifest from the decision and it may indeed be something of which they themselves are unaware. That is, after all, the origin of the principle which determines the question of bias in terms of risk and not of actual bias. Real possibility and real danger are necessarily tests for the very reason that actual bias cannot readily be demonstrated.

64. Thus it is no answer to a charge of bias to look at the terms of a decision and to say that no actual bias is demonstrated or that the reasoning is clear, cogent and supported by the evidence. This court [that is, the Administrative Court exercising its jurisdiction of judicial review] cannot cure the often imperceptible effects of the influence of the connection between the fact-finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence.

65. Accordingly, I conclude that there has been no determination of the claimant’s entitlement to housing benefit by an independent and impartial tribunal. The level of review which this court can exercise does not replenish the want of independence in the Review Board, caused by its connection to a party to the dispute.

66. I have reached this decision with great reluctance. I repeat my admiration at the clarity and care demonstrated by the decision. It bears all the hallmarks of a cogent and independent judgment. Moreover, it is difficult to ascertain the precise nature of that which the claimant seeks to advance. He has been asked on numerous occasions for an explanation of the discrepancies which the documents reveal. He has not been forthcoming with any explanation. He has not even advanced any explanation for those discrepancies. I have the gravest suspicion that he has no answer to the telling points made in the decision. Nevertheless, he persists in asserting that he is to be believed when he says that he was liable and did pay rent. This court can make no finding as to his credibility.

67. In the absence of any previous determination of primary fact by a review body, unconnected with a party to the dispute, I find myself unable to say that there is no dispute as to primary fact, or that the evidence to be derived from undisputed documentation is so clear that the lack of independence of the review body could make no difference. There is, as it seems to me, a real danger in concluding that the result is so obvious that it matters not whether the tribunal finding the facts was independent or not. Even those with hopeless cases are entitled to a determination by an independent tribunal.

68.       I conclude that the claimant was deprived of his common law right to a determination of his entitlement to a housing benefit by an independent tribunal.  The case should be remitted to an appeal tribunal pursuant to regulation 4(3) of the Transitional Regulations 2001.”

49.  The foregoing dicta support Mr. McCoy’s contentions.

50.  Contrary to what Mr. Godfrey Lam suggests, in my view there are undoubtedly disputes of primary fact in the present case.  The decisions by the Secretary and Chief Executive did not merely concern the determination of pure points of law.

51.  For example, in his self-drafted submission letters to the Secretary and Chief Executive, Lam in effect was asserting that his acquaintance with Ngau Wing amounted to no more than short social meetings on occasion.  Lam also impliedly complained about the application of findings in Ng’s disciplinary proceedings to Lam’s situation.

52.  In his Petition to the Chief Executive (drafted by counsel), Lam was more explicit.  He stated that he could not comment on what Heung Kai had said in Ng’s proceedings as that evidence had not been made available to him.  Lam was “in no position to critically appraise what each of them [that is, Heung Kai and Ng] is supposed to have said about their relations with Ngau Wing”.

53.  Lam recalled in the Petition that he had previously denied meeting Ngau Wing in Macau in December 1992 and February 1993, although he accepted that they might coincidentally have been in Macau at the same time. 

54.  Lam went on to complain about his not being able to cross-examine witnesses in Ng’s proceedings. He stated that it “cannot be assumed that the adjudicating officer would necessarily have formed the same impression of Ngau Wing’s reliability and truthfulness had the latter been exposed to such cross-examination”.  He therefore warned against the use of Ngau Wing’s non-prejudicial statements as evidence against him.

55.  Lam’s Petition again denied knowledge of Ngau Wing’s conviction record and his reputation as an alleged triad.  Lam observed that he had never been attached to the Divisional Ant-Triad Section and “never had access to its records”.  He claimed not even to know Ngau Wing’s full name.

56.  Mr. Godfrey Lam then suggests that the PBO process was not flawed in its fact-finding aspect, because it was always open to Lam to request an “oral hearing”.  No such request (Mr. Godfrey Lam stresses) was ever made here.  

57.  But by the expression “oral hearing”, Mr. Godfrey Lam means no more than that Lam could have asked the Secretary and the Chief Executive for a hearing at which witnesses could give evidence on Lam’s behalf and Lam or his counsel could make oral submissions.  Such a limited “oral hearing” would not cure the defect highlighted by Mr. McCoy. 

58.  The crucial point is that, if testimony of Ngau Wing and Heung Kai was to be used against Lam, Lam ought to have had an opportunity to confront and cross-examine them.  Lam would never be able to do so in the limited “oral hearing” envisaged by Mr. Godfrey Lam.  Obviously, neither Ngau Wing nor Heung Kai would have voluntarily given evidence in Lam’s favour.  It would thus be fanciful to expect Lam to have himself adduced evidence from Ngau Wing or Heung Kai.  Consequently, a request by Lam for the “oral hearing” posited by Mr. Godfrey Lam would have been of little use.  

59.  More pertinently, Mr. Godfrey Lam accepts that, under the PBO process, neither the Secretary nor the Chief Executive has the power to summon Ngau Wing and Heung Kai to give live evidence and be cross-examined by Lam or his counsel on the same.  The dangers identified by Moses J in Bewry (especially in para. 67 of the passage cited above) would equally be present here. One is left with an apparently biased tribunal evaluating evidence which it is unable to have tested through cross-examination of key witnesses.

60.  That deficiency within the fact-finding mechanisms of the PBO process is something which the Court cannot cure through judicial review.  In Bewry, Moses J could remit the matter for re-consideration.  But here, on the assumption that I quash the decision, remittance back to the decision-makers would be to no avail.  The same officers would be constrained to consider the documents before them and assess primary facts without the ability to summon Ngau Wing or Heung Kai and see and hear their evidence being tested in cross-examination.

61.  Contrast the PBO process with that involved in (say) Wong Tak Wai.  There the Court of Appeal held that the availability of judicial review was by itself insufficient to render prison disciplinary proceedings Art. 10 compliant. Something more was needed.  The Court found that something more (at para. 85) in “the wide power of the Commissioner of Correctional Services [on appeal from a decision by the Superintendent of Prison] to enquire into the merits fully and to hold a rehearing where the justice of the matter requires”.   That power coupled with the possibility of judicial review meant that in Wong Tak Wai there were sufficient safeguards for a fair adjudication within the terms of Art. 10. 

62.  Here the powers of the Secretary and Chief Executive are seriously circumscribed.  They could not consider summoning witnesses (such as Ngau Wing and Heung Kai) to have their evidence tested in cross-examination.  If they wished to call witnesses to test the credibility of adverse statements, they simply have no power to do so.  In my judgment, therefore, the fact-finding procedure under PBO process does not comply with the requirements of Art. 10.  It does not comply because it does not give relevant decision- makers, where (as is often likely to be the case) there are hotly disputed allegations of primary fact, the option of summoning witnesses for the purposes of live cross-examination.

63.  It might be suggested that there is nothing structurally wrong with the absence of an option to summon witnesses for cross-examination.  It could, for example, be contended that, where there is a glaring dispute on primary fact, it would always be open to a decision-maker to reject written statements as little more than hearsay evidence of little weight.  The flaw (it might be said) lies not in the PBO pension forfeiture system, but only in the way that the decision-makers dealt with the instant case.  Not having tested Ngau Wing’s or Heung Kai’s serious allegations in cross-examination, the decision-makers ought simply to have attached little weight to the same and concluded, however reluctantly, that there was insufficient cogent evidence upon which to deprive Lam of his pension.

64.  This argument that I have just sketched (Argument X) in effect approximates Mr. McCoy’s alternative case. Mr. McCoy says that, if I am against him on the existence in the PBO process of systemic non-compliance with Art. 10, then I should at least quash the relevant decisions as having unreasonably attached significant weight to hearsay evidence from Ngau Wing and Heung Kai.

65.  However, I think that there is a systemic problem, not just a difficulty with the way in which decision-makers have dealt with a particular case.  The reason is that which Mr. McCoy has stressed. Given the seriousness of their consequences, the PBO process is, in reality, only likely to be invoked when grave allegations have been made against a public servant in aborted disciplinary proceedings. 

66.  In the majority of such cases, there are unlikely to be admissions of key allegations.  There are instead likely to be serious disputes of primary fact.  The resolution of those disputes would then be essential pre-requisites to any decision to deny a pension.  The lack of an option to have evidence relating to those disputes tested by cross-examination would mean, if Argument X is right, that in many cases decision-makers will just have to reject disputed evidence as to a public servant’s engagement in improper activities and reluctantly conclude that a pension must nevertheless be paid. 

67.  Such outcome is unlikely to have been that contemplated by the Legislature.  More likely, the Legislature intended that where grave allegations have been made against a retiring public servant, the latter person should be held accountable by the deprivation of all or part of a pension.  In other words, the PBO envisages that decision-makers grapple with the evidence.  They must assess the evidence critically, rather than repeatedly dismiss the same in a majority of cases (on purely technical grounds) as hearsay of little weight. If right, Argument X would have the consequence of emasculating the deterrent effect of the PBO process in most situations.

68.  I would therefore declare PBO s. 27(2) as insufficiently compliant with Art. 10 and so unconstitutional and invalid.

A.2    Incompatibility with HKBOR Art. 11?

69.  The foregoing is sufficient to dispose of Lam’s application.  But in deference to counsel’s argument, I shall briefly set out my views on the other matters argued.

70.  Mr. McCoy submits that the PBO is also structurally flawed because it is not compliant with Art. 11.  He accepts that Art. 11 only bites where a criminal charge is laid against someone.  He also accepts that the ultimate focus of the PBO process, the deprivation of a pension, does not on its face involve a criminal charge.  But he argues that, in some instances, the decision to deprive a pension may (as here) require a prior determination as to whether a person is guilty of a criminal or quasi-criminal offence.  For this reason, Art. 11 is relevant (Mr. McCoy says) to an assessment of the constitutionality of the PBO process.

71.  I am not persuaded by the argument.

72.  Assume that the present case involves allegations of a criminal or quasi-criminal nature.  Those allegations would be in relation to Lam having associated with a triad member and having accepted bribes from a triad.

73.  Such allegations relate to Lam’s particular case.  It may then be that in Lam’s case the failure to observe the protections mandated by Art. 11 would render the decision to deprive Lam of a pension invalid.  But that would simply be because Lam has been denied Art. 11 rights in his specific situation.  The default would not be due to a systemic difficulty inherent in the PBO process regarded in the abstract.  The real systemic difficulty is the lack of the option identified in the previous section (namely, the option to confront and cross-examine adverse witnesses) in connection with Art. 10.

74.  Consequently, I do not agree that the PBO process is unconstitutional by reason of Art. 11.

B.      Whether decisions Wednesbury unreasonable

75.  It is evident from the discussion above on Art. 10 that, in my view, the decision-makers acted irrationally in attaching any weight to the statements of Ngau Wing or Heung Kai.

76.  These statements were not tested in cross-examination. In the face of Lam’s strenuous denial and given the gravity of the allegations levied against Lam and the serious penalty to be imposed, I do not believe that a properly advised tribunal could reasonably attach significant weight to the statements.

77.  It is true that the testimony of Ngau Wing and Heung Kai led to Ng’s dismissal in separate disciplinary proceedings.  But Lam was not a party to those proceedings.  He consequently did not have an opportunity to cross-examine Ngau Wing and Heung Kai in those proceedings.  One cannot speculate how a tribunal would have regarded the credibility of Ngau Wing and Heung Kai as witnesses if Lam or his counsel had cross-examined them. It is therefore not possible, without more, to treat the evidence of Ngau Wing and Heung Kai in Ng’s proceedings as deserving of some or any weight as far as Lam is concerned.

78.  I would accordingly also have quashed both decisions here as Wednesbury unreasonable in themselves.

IV.     CONCLUSION

79.  Lam’s judicial review application succeeds.

80.  There will be a Declaration that PBO s. 27(2) is incompatible with Art. 10 and is unconstitutional and invalid in consequence. The decisions of the Secretary and the Chief Executive to deny Lam a pension are quashed. 

81.  There will be an Order Nisi that:-

(1)    Lam shall have his costs of the judicial review, such costs to be taxed if not agreed; and,

(2)    there shall be certificate for two counsel.