CHEUNG HIN KWAN v. COMMISSIONER OF POLICE AND ANOTHER

HCAL92/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.92 OF 2003

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J U D G M E N T

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Background

1. The applicant joined the Hong Kong Police Force in 1985.  His performance has been commended and was promoted to the rank of sergeant in 1993.  He received a police commendation from the Commission of Police in 1995, and in March 2000 he was transferred from crime duties to Uniform Branch duties.

2. In June 2000, the applicant was accused of 2 contraventions of Police Force Orders which included : association with known triad society personalities and three charges of making a false statement.

3. In late June 2000, disciplinary proceedings began against the applicant and he pleaded not guilty.  Five further hearings took place throughout July and August 2000 but they were all adjourned as a result of the applicant being unable to find representation.

4. In August 2000, the applicant sustained back injuries in the fitness room of Yaumatei Police Station and was placed on sick leave.  As a result of this, no further hearings were held pending his recovery.  For the first six months of his sick leave, the applicant obtained full pay but thereafter he received only half pay from the end of February 2001 until August 2001.  From the end of August 2001 to mid-March 2002, he was on vacation leave and therefore received full pay.  Thereafter, he received no pay from the police at all.  Consequently, he became dependant on Comprehensive Social Security Assistance from May 2002.                               

5. After the fall, the applicant attended a medical board in May 2001 at the United Christian Hospital where he was recommended partial recovery in 18 to 24 months.  Six months later, he attended the same board but was recommended no definite recovery and early retirement.  That was November 2001.

6. In May 2002, the applicant was informed that the disciplinary proceedings would be completed before early retirement would be considered.  By a letter dated 13 May 2002, the applicant informed the Commissioner that he would refuse all options to continue disciplinary proceedings and stated that he was not willing to participate. 

7. By a medical report of the United Christian Hospital dated 20 June 2002, it was stated that the MRI showed only mild prolapse of dics and the pathology could not explain the applicant’s symptoms.

8. At a management meeting on 1 August 2002, it was decided to submit the applicant’s case to the Commissioner to consider summary dismissal under section 31 of Cap.232.

9. By a letter dated 24 September 2002, the applicant’s solicitors alleged that the applicant’s medical condition has deteriorated.  The Commissioner replied by a letter dated 2 October 2002 saying that actions were being taken to expedite the disciplinary proceedings.  On 31 January 2003, the Discipline Section forwarded the report recommending summary dismissal of the applicant to the Commissioner.

10. Meanwhile, by the end of 2002 and the beginning of 2003, both the two other co-accused were found guilty and subsequently awarded compulsory retirement with deferred benefits.

The application

11. On 8 September 2003, the applicant applied for judicial review herein and sought the following orders, namely :

(1)	Mandamus against the Secretary for the Civil Service, the 2nd respondent herein, requiring the SCS to determine forthwith —
	(a)	that the applicant is entitled to retire on medical grounds and to receive his pension or, alternatively
	(b)	whether the applicant is so entitled.
(2)	Prohibition against the Commissioner of Police, the 1st respondent herein, “requiring the Commissioner to terminate disciplinary proceedings against the applicant”.
(3)	Alternatively, declarations that —
	(a)	it is unlawful to delay the applicant’s retirement and pension until the conclusion of the disciplinary proceedings against him; and
	(b)	the continuation of the disciplinary proceedings against the applicant had become so unreasonable and oppressive as to require to be terminated.

12. As can be seen from the aforesaid background, consideration was given as to whether the applicant should retire from the Police Force under CSR 365, but in all the circumstances it was decided to postpone that issue until after the conclusion of the disciplinary proceedings.  The applicant was informed of the same on 7 May 2003.

13. Shortly afterwards, the applicant was given various options to continue with the disciplinary proceedings, but he declined all of them and stated that he was unwilling to participate further.  His reasons were contained in the solicitors’ letter dated 14 May 2002 which listed out the applicant’s medical conditions.  However, those various conditions were unsubstantiated. 

14. By 1 August 2002, because of the applicant’s refusal to participate further in the disciplinary proceedings, it was then decided to prepare a submission to the Commissioner for him to decide whether this was a suitable case for summary dismissal under section 31 of the Police Force Ordinance.  However, this proposed cause of action would have force-wide implications since section 31 had not been invoked since at least 1979.  The circumstances for summary dismissal were carefully considered and legal advice was obtained.  The report was only completed on 31 January 2003.  The senior management took some time to consider it, but by 11 September 2003 the judicial review application has commenced.  It must be stated here that there was certain delay on the consideration of this case by the Police Force.

15. Eventually the police has been advised that the issue whether the applicant is fit to participate further in the disciplinary proceedings should best be determined on medical evidence.  Consequently, the Department of Justice wrote to the applicant inviting him to submit medical reports on his physical and mental condition and to be examined by doctors nominated the respondents.  However, the applicant refused such an invitation.  The respondents then took out a summons inviting the court to make such an order.  The application was heard before me and I have decided that the court has no jurisdiction to make such an order except in personal injury litigation.  However, the failure of the applicant to submit to medical examination by doctors nominated by the respondents would be a matter of comment by the respondents.

16. In this case because of the applicant’s failure to produce sufficient medical evidence to substantiate his complaints of being unfit to attend any further disciplinary proceedings or allow himself to be examined by the respondents’ doctors, the court could not conclude that the applicant is unfit or unable to participate in further disciplinary proceedings. 

17. As no final decision has been taken in the applicant’s case, it would be premature to challenge the decisions in this judicial review on the following grounds, namely :

(a)	Failure and/or refusal of the Secretary for the Civil Service to grant the applicant retirement from the Hong Kong Police Force and a pension, on medical grounds.
(b)	Failure and/or refusal of the Commissioner of Police to bring to a conclusion of the disciplinary proceedings that were initiated against the applicant in June 2000.

18. The Secretary for the Civil Service has not “failed or refused” to grant the applicant retirement.  He has simply decided to postpone consideration of this question until the disciplinary proceedings are concluded. 

19. The right to pension would only become a right after retirement from public service.  The retirement itself, however, is not “a right” but a matter of discretion.  Section 6(1) of Cap.89 provides that :

“…. No pension shall be granted under this Ordinance to any officer …. except on his retirement from the public service in one of the following cases –

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(e)    on medical evidence to the satisfaction of the Chief Executive that he is incapable by reason of any infirmity of mind or body of discharging the duties of his office and that such infirmity is likely to be permanent.”

20. The alleged offence occurred well before the injuries of the applicant.  It is therefore important to have a determination of the disciplinary proceedings first since the award upon conviction is likely to influence the pension granted.

21. Both the co-accused were awarded “compulsory retirement with deferred benefits”, that is, the pension would not become payable until age 55.

22. At present, the applicant is aged 36.  The applicant is hoping to avoid the likely consequences of the disciplinary proceedings and is actually trying to force the respondents to grant him retirement on medical grounds with an early pension.  However, the respondents must be convinced on credible evidence first that there is no fair way in which the disciplinary proceedings can be concluded before such an action is to be taken.

23. Secondly, the Commissioner of Police has not failed or refused to conclude the disciplinary proceedings against the applicant.  As I have said herein before, there is some unfortunate delay but the proceedings are still underway and to some extent the delay is also caused by the applicant’s refusal to participate.

24. I accept the submissions of the respondents that the proper way is to allow the appropriate tribunal to proceed to determine the disciplinary proceedings, and the respondents have demonstrated that the Commissioner is actually ready and willing to resume the disciplinary proceedings forthwith.  At the resume hearing, the applicant or his representative can then apply, if he wishes to do so, to the appropriate tribunal for a stay of the proceedings, if the proceedings have become oppressive or otherwise an abuse of the tribunal’s process.  It is said in Archbold Hong Kong2004, paras. 4-46 and 4-48 that :

“ III.  STAY OF PROCEEDINGS

Jurisdiction and source of the power to stay criminal proceedings

It is the constitutional responsibility of the Secretary for Justice to decide whether or not to bring a prosecution: Article 63 of the Basic Law of Hong Kong Special Administrative Region of PRC; Cheung Sou-yat v R [1979] HKLR 630; R v Tsui Lai-ying [1987] HKLR 857.  In general, if a prosecution is brought it is the court’s constitutional duty to try the case: HKSAR v Lee Ming-tee [2001] 1 HKLRD 598.  The public expects those alleged to have committed a crime to be tried, and if found guilty, appropriately punished.  Lord Moris in Connelly v DPP [1964] AC 1254 stated that (at p 1304):

‘… generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it.’

However, it is unquestionable that the court has a residual discretion from its inherent jurisdiction in Common Law to protect itself from abuse: HKSAR v Lee Ming-tee [2001] 1 HKLRD 598; Connelly v DPP [1964] AC 1254; R v Humphrey HL [1977] AC 1; or used oppressively: R v Nicholson [1998] 102 A Crim L 469; and vexatiously: Emily Lau v Jiang En-zhu (unrep, HCAL 27a/1998); by staying permanently the criminal proceedings before it wholly or partly: R v Munro [1993] 97 Cr App R 183.”

….

Abuse of process making a fair trial impossible

(a)  Delay

The law in relation to the court’s exercise of its power to stay for reason of delay has been reviewed and authoritatively stated in Att-Gen’s Reference (No 1 of 1990) [1992] 1 QB 643, as approved in Tan v Cameron [1992] 2 HKLR 254, PC and Att-Gen v Charles Cheung Wai-bun [1993] 1 HKCLR 189, PC.  The test is whether ‘in all the circumstances, the situation created by the delay in bringing the accused to trial is such as to make it an unfair employment of the powers of the court any longer to hold the defendant to account: Tan v Cameron [1992] 2 HKLR 254, PC, at p.225E.  The court will not concern itself with penalising the prosecution for fault in causing or permitting the delay.  The question the court will focus on is: would there still be a fair trial if the accused has been so seriously prejudiced by reason of the lapse of time in bringing him to trial.

Where an application for stay the proceeding is made on the ground of undue delay, the accused has the burden of proof on balance of probabilities: HKSAR v Lee Ming-tee [2001] 1 HKLRD 598, that he has been or will be seriously prejudiced in the preparation or conduct of his defence by unjustifiable delay of the prosecution in bringing the proceedings: Att-Gen v Cheung Wai-bun [1993] 1 HKCLR 249.  The burden never shifts to the prosecution: Tan Soon-gin v Judge Cameron [1992] 1 HKLR 149, and it is important that evidence is adduced to support such an application: HKSAR v Lau Kwok-ching & Others (unrep, CACC 411/1997).  Delay is considered from the date of the commission of the offence: Tan Soon-gin v Judge Cameron [1992] 1 HKLR 149.”

25. The appropriate tribunal can then determine this issue properly on the evidence presented to it, rather than for this court to determine this issue simply on the bare assertions contained in affidavits and letters without any proper medical evidence in support.

26. In this respect, just four days before the hearing, the applicant submitted two further affirmations, one from his girlfriend and the other one from himself, exhibiting a psychiatric report by Dr Chen.  

27. However, the psychiatric report of Dr Chen does not, in any event, establish the incapacity of the applicant for the following reasons, namely :

(a)	The applicant was able to be interviewed by Dr Chen for 2½ hours on 13 February 2004 and responded relevantly to questions asked.
(b)	He was normal on remote memory.
(c)	He does not suffer from a Major Depressive Episode or Anxiety Disorder.
(d)	He may be suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
(e)	Dr Chen does not know what is involved in police disciplinary proceedings and expresses no opinion on whether the applicant could participate in such a process.

28. Consequently, even if this further piece of evidence is admitted, there is no proper bases to support the application for the order sought from this court.  This court is supposed to be reviewing the decision-making tribunal and should not proceed to make the decision itself.  The decision should be left to be made by the appropriate tribunal.

Conclusion

29. For the aforesaid reason, the application for judicial review is dismissed with an order nisi for costs to the respondents.  The applicant’s own costs be taxed according to the Legal Aid Regulations.