LEE YU KEUNG ALKESS v. ATTORNEY GENERAL

1996, No.48
(Civil)

IN THE COURT OF APPEAL

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J U D G M E N T

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Hon Nazareth, V.-P.:

Introduction

1. On 27th November 1995, Sears, J. refused the appellant leave to apply for judicial review of police disciplinary proceedings which had ended in his being ordered to resign. Within an extension of time granted by Mayo, J.A., sitting as an additional judge of the High Court, he appealed to this Court against Sears J's refusal. Having heard Mr McCoy's submissions on behalf of the appellant, we dismissed the appeal and now give our reasons.

Previous Criminal Proceedings

2. Prior to the disciplinary proceedings the appellant, a police constable, along with two other police officers, Police Sergeant 7404 and Police Constable 1860, was charged by the ICAC with conspiracy to steal and handling stolen goods. Other police officers involved, who had been granted immunity, gave evidence. Police Sergeant 7404 and Constable 1860 were convicted; the appellant was acquitted.

The Disciplinary Charge

3. Thereafter the officers who had been granted immunity, and the appellant were charged with disciplinary offences : the former with conduct calculated to bring the public service into disrepute, which they admitted; and the appellant with neglect of duty, of which, as indicated, he was found guilty. The charge against him was framed in the following way :

Judicial Review - test for leave to apply

4. It is not in dispute that the criterion or test upon which leave to apply for judicial review is to be granted is whether the applicant has shown an arguable case, or presented material that, on further consideration or investigation, might demonstrate an arguable case for the grant of the relief sought. (Ho Ming Sai & Others v. Director of Immigration [1994]1 HKLR 21; Lee Sap Pat v. Commissioner of Inland Revenue [1991]2 HKC 251, 259, 260)

The Facts

5. Turning to the facts, on the night of 11th/12th November 1992, when the appellant was on report room duty at Stanley Police Station, an anti-smuggling operation was carried out. A large number of video cassette recorders (VCRs) were seized. They were taken back to the Stanley Police Station. Police Sergeant 7404 who was supervising their transportation instructed some of the constables to place a number of the recorders into PC47180's van. They did so, and it seems that the recorders may have been moved directly into the van without first being taken into the station store of which the appellant was in control as duty officer. Later, Sergeant 7404 told PC47180 and PC49711 to take the VCRs to PC47180's sister's flat in Wah Kwai Estate. The appellant was given a lift in the van to that estate, where he also lived.

The Evidence

6. Two witnesses gave evidence for the prosecution at the disciplinary inquiry. The first was WPC15766 who took part in the anti-smuggling operation but was not involved in the theft of the VCRs. Significantly, therefore, she was the one material witness whose evidence was not tainted in any way. She said that several days after the operation, in the course of a conversation, the appellant told her he had been given one of the exhibits, meaning a VCR. She also said the defaulter knew that the VCR had been stolen, although she did not suggest that the defaulter himself had moved any of the VCRs. All the stolen property, it appears from her evidence, was unloaded in the Station compound outside the report room, but, she maintained the defaulter came out when the property was being moved and knew what was going on.

7. The second prosecution witness was PC49711 who had been given immunity in the context of the earlier criminal proceedings. He also took part in the anti-smuggling operation, but his evidence was concerned mainly with the transportation of the stolen VCRs to PC47180's sister's flat in Wah Kwai Estate. He stated that he, PC47180 and the appellant went together. The VCRs were visible as some of the boxes were open. The appellant should have been able to see them clearly although some of them were covered up. During the journey he asked the other two if they wanted VCRs as Sergeant 7407 had given instructions that each was to be given one.

8. The first defence witness was PC47180 who had driven the van. He stated that the goods were covered up, and that it was not possible for the appellant to see them. His evidence was to the effect that PC49711 did not ask whether they wanted VCRs. He also said that the defaulter got off first and left.

9. The second defence witness was SPC14376, whose evidence was not of material significance.

10. The appellant gave evidence and denied the prosecution allegations against him.

The Grounds of Appeal

11. The first ground relied upon by Mr McCoy was that the evidence was so tenuous, vague and uncertain that the decision to convict was Wednesbury unreasonable. Further, the evidence was inconsistent, contradictory, and insufficient on any basis to deprive a man of his livelihood and pension. It could not have reached the standard of proof required by law. Alternatively, on all the evidence there had to be at least a reasonable doubt.

12. We do not agree. There was ample evidence given by the two prosecution witnesses, particularly WPC15766.

13. Hers was the only material evidence that was untainted. Her evidence was accepted. And her evidence alone was sufficient to sustain the decision.

14. Mr McCoy pointed to the two references the Adjudicating Officer made to "shortly afterwards". First in his decision, where he stated that he was satisfied that the appellant had knowledge of the theft on the night of the incident or shortly afterwards. And second where he asked DW2 (PC47180) whether he thought the appellant knew about the theft of the exhibits on 12th November 1992 or "shortly afterwards". Mr McCoy submitted that these showed that the Adjudicating Officer was not sure that the appellant had that knowledge on the 12th November 1992. Again we are unable to agree. We think they point rather to Adjudicating Officer being alive to the need for caution in relation to the accomplice evidence before him and to therefore pointing to the alternative basis upon which his decision could equally well be founded - WPC15766's evidence that she spoke to the appellant several days after the operation about the theft of the exhibits and that he told her that he had been given one of them. The significance of the two references is accordingly not that contended for by Mr McCoy, but the implication that the Adjudicating Officer accepted and was prepared to rely solely upon the evidence of WPC15766; for it is solely from that actual evidence which comes only from WPC15766 that it can be seen that the appellant had knowledge of the theft some days after the 12th November. That is sufficient to dispose of Mr McCoy's subsidiary complaints that PW2 (PC49711) was a thief and an accomplice, that there were inconsistencies between the two prosecution witnesses (which we do not necessarily accept) and that the prosecution failed to meet the requisite standard of proof.

15. That said, we would add that this was a straightforward case in which there was a clear simple conflict of factual evidence between the prosecution and defence. The result of the inquiry turned upon which version of the evidence the Adjudicating Officer accepted. He has not been shown to be wrong in accepting that of the prosecution witnesses. On the contrary he appears to have been quite right, in the particular circumstances of the case, most of which were not disputed, in accepting particularly the evidence of PWC15766, the one untainted material witness. There is, therefore, plainly no merit in the first ground and the associated submissions.

16. The remaining ground that has to be addressed is that the Adjudicating Officer failed to give any reasons or any adequate reasons for his decision. Such a complaint has to be considered in the context of the case in which it is made. All the Adjudicating Officer said was :

"On the evidence presented, I am satisfied that the defaulter had knowledge of the theft of the exhibits on the night of the incident or shortly afterwards."

We have already pointed to the straightforward conflict of evidence, and that the result of the disciplinary enquiry turned upon that conflict of evidence and nothing else i.e. whether the prosecution version was accepted. In saying that he was satisfied that the defaulter had knowledge of the theft, the Adjudicating Officer gave all the reasons he had to, as clearly enough as saying that he accepted the prosecution evidence. This ground also fails.

17. We therefore do not have to address Fu Ning Pharmacy v. Pharmacy and Poisons Board [1995]3 HKC 497 and the other authorities upon which Mr McCoy relied in contending that reasons had to be given. The consideration by this Court of those authorities and their application to circumstances of the present sort will therefore have to await some future occasion.

The Result

18. In the result we are satisfied that it has not been shown that there was any procedural error or that the decision was unreasonable in the well known Wednesbury sense.

19. For the foregoing reasons, we had no hesitation in dismissing the appeal.