TSO TAK KEUNG, EDDY v. SECRETARY FOR THE CIVIL SERVICE AND ANOTHER

HCAL 28/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 28 OF 2005

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J U D G M E N T

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Facts

1.  The Applicant was an assistant immigration officer working in the Immigration Department.  In 2002, he was charged with a total of 12 offences in the District Court, including 10 counts of bribery, 1 count of theft and 1 count of conspiracy to make a false instrument (DCCC 234/2002).  After trial, he was acquitted of all charges.

2.  The ICAC, which carried out the relevant criminal investigations, then referred the case to the Immigration Department for appropriate action (if any).  Having considered the case, the Director of Immigration concluded that based on the materials available, the Applicant had committed acts of misconduct notwithstanding the acquittal of all counts in the District Court.  Following correspondence with the Applicant, the Director eventually decided, in exercise of the authority delegated to him by the Chief Executive, to hold an inquiry into the Applicant’s alleged misconduct pursuant to section 10 of the Public Service (Administration) Order.

3.  The relevant statement of alleged misconduct comprised 2 charges.  First, the Applicant was said to have accessed the computer records of two individuals, one of whom was Kuanluang Jamnian, a Thai lady seeking permission to work in Hong Kong, contrary to Immigration Service Standing Order 53.2(xix) (charge (a)).  The relevant paragraph in the Standing Order essentially prohibited access to computer records for any purposes other than for official use.

4.  Secondly, the Applicant was said to have failed to report to his superior officer a private interest that might influence or appear to influence his judgment in the performance of his duties, namely the investment of his spouse in an employment agency for arranging domestic helpers from overseas countries to seek employment in Hong Kong, contrary to paragraph 6(d) of Civil Service Bureau Circular No. 19/92 (charge (b)).

5.  After hearing, the Inquiry Committee appointed to inquire into the alleged misconduct found the Applicant guilty of both charges of misconduct.

6.  After studying the Committee’s report and considering the written representations from the Applicant limited to punishment, by letter dated 16 February 2005, the Secretary for the Civil Service, in exercise of the authority delegated to him by the Chief Executive and on advice of the Public Service Commission, informed the Applicant that the Secretary was satisfied that the Applicant was guilty of misconduct.  He further directed that the Applicant be dismissed under section 10 of the Public Service (Administration) Order with effect from 21 February 2005.

Application for judicial review

7.  In these judicial review proceedings, the Applicant challenges the decision of the Inquiry Committee contained in its report dated 25 October 2004 finding him guilty of misconduct and the consequential decision of the Secretary for the Civil Service contained in his letter dated 16 February 2005 confirming that he was guilty of misconduct and directing that he be dismissed.  The Applicant seeks relief accordingly.

8.  Although a number of grounds were relied on initially, at the substantive hearing of the application, Mr Philip Wong, counsel for the Applicant, only relied on two grounds.  Mr Wong’s first ground only related to charge (a) but not charge (b), whereas the second ground relied on by Mr Wong went to both charges in the disciplinary proceedings.

1^st ground of challenge

9.  First, counsel argued that charge (a) in the disciplinary proceedings was the same or substantially the same as count 1 in the criminal proceedings.  He therefore said that given the Applicant’s acquittal of count 1 in the criminal proceedings, the Committee ought not to have proceeded against him in relation to charge (a) in the disciplinary proceedings.

10.  Counsel argued that the situation was covered by: (1) the common law plea of autrefois acquit, (2) section 15 of the Public Service (Administration) Order, and (3) the general principle against double jeopardy enshrined in article 11(6) of the Hong Kong Bill of Rights set out in the Hong Kong Bill of Rights Ordinance (Cap. 383) as well as article 14(7) of the International Covenant on Civil and Political Rights (which is incorporated by article 39 of the Basic Law).

11.  Count 1 in the criminal trial was based on section 4(2)(a) of the Prevention of Bribery Ordinance (Cap. 201).  The section reads:

“(2) Any public servant who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his –

(a) performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant

...

shall be guilty of an offence.”

12.  Count 1 reads:

“第一項控罪（訴第一被告人）

罪行陳述

公職人員接受利益，違反香港法例第201章《防止賄賂條例》第4(2)(a)條。

罪行詳情

曹德強，身為公職人員，即入境事務處入境事務主任，於2002年1月某日在香港，無合法權限或合理辯解而從徐旦David接受利益，即接受形式為一筆港幣5,000.00元的饋贈、貸款、費用，報酬或佣金，作為他作出或曾經作出憑其公職人員身分而作的作為（即加速處理KUANLUANG Jamnian 的簽證延期申請書）的誘因或報酬，或由於他作出或曾經作出上述作為而接受該利益。”

13.  Mr Wong argued that the subject matter of charge (a) in the disciplinary proceedings, namely unauthorized access to computer records, was itself one of the constituting elements of the offence charged under count 1.  Accessing the relevant computer records was, counsel submitted, one of the things done by the Applicant as a result of the bribe that he allegedly took in his capacity as an immigration officer, to speed up the handling of the Thai lady’s visa application.

14.  A variation of the same theme was that charge (a) in the disciplinary proceedings was the same or substantially the same as the offence created by section 161 of the Crimes Ordinance (Cap. 200), an offence which, Mr Wong submitted, the Applicant could have been charged with (by way of an additional or alternative charge or by way of an amendment during trial) and dealt with in the District Court trial.  Counsel therefore contended by way of a subsidiary argument under the first ground that the Committee ought not to have inquired into charge (a) again in the disciplinary proceedings.  Section 161 reads:

“(1)    Any person who obtains access to a computer –

(a)    with intent to commit an offence;

(b)    with a dishonest intent to deceive;

(c)    with a view to dishonest gain for himself or another; or

(d)    with a dishonest intent to cause loss to another,

whether on the same occasion as he obtains such access or on any future occasion, commits an offence and is liable on conviction upon indictment to imprisonment for 5 years.”

Discussion on 1^st ground of challenge

15.  I do not think article 11(6) of the Hong Kong Bill of Rights has any application.  The article does not, in my view, apply to disciplinary proceedings like the inquiry proceedings conducted by the Committee in the present case.  Mr Wong was unable to refer the Court to any authority to the contrary.

16.  Likewise, I do not think article 14(7) of the International Covenant on Civil and Political Rights is relevant here.

17.  As to autrefois acquit, the plea should be generally familiar to those practising criminal law.  I do not wish to venture a definition on the plea in this judgment.  There are two reasons.  First, the definition or the scope of operation of the plea is, so far as I can see, in a state of flux.  The Court of Appeal has in the case of Yeung Chun Pong v. Secretary for Justice CACV 368/2005 (30 March 2006), an interlocutory appeal, suggested that what used to be thought to be the proper ambit of the plea as per English cases such as Connelly v. DPP [1964] AC 1254, R v. Beedie [1998] QB 356 and R v. Phipps [2005] EWCA Crim 33, might well be too wide, particularly in light of the Australian High Court decision in Pearce v. The Queen (1998) 194 CLR 610.  At the substantive hearing of the judicial review application in Yeung Chun Pong HCAL 123/2005, Reyes J decided that he should follow the Australian approach, defining the plea in a narrow way, in preference to the English approach typified by Phipps: see Reyes J’s judgment given on 11 August 2006.  It seems to me that sooner or later, the Court of Appeal will have an opportunity to pronounce on the definition and scope of operation of the plea of autrefois acquit.

18.  Secondly, it is unnecessary to deal with the question in this case.  This is because in my judgment, the plea is simply not applicable to disciplinary proceedings like the inquiry in the present case.  This point has been decided by the New Zealand Court of Appeal in Re a medical practitioner [1959] NZLR 784.  That case related to a registered medical practitioner who had been acquitted of a criminal charge of indecent assault and was subsequently faced with a professional complaint charging him on the same facts with infamous conduct in a professional respect.  The Court of Appeal rejected the plea of autrefois acquit.  One of the reasons given was that it was not available in disciplinary proceedings.  The Court pointed to the analogous position of solicitors facing disciplinary proceedings after having been charged with and convicted or acquitted of related criminal offences, observing that in those cases the existence of previous criminal proceedings was never regarded as a bar to subsequent disciplinary proceedings (see p.802 et seq.).

19.  I have no doubt that the New Zealand case has correctly stated the legal position.  In other words, the plea has no application to the disciplinary proceedings faced by the Applicant in the inquiry.  That being the case, it is quite unnecessary for me to attempt a definition of the plea of autrefois acquit.

20.  That leaves section 15 of the Public Service (Administration) Order.  Section 15 reads:

“An officer acquitted of a criminal charge shall not be punished in respect of any charges upon which he has been acquitted, but he may nevertheless be punished on any other charges arising out of his conduct in the matter which do not raise substantially the same issues as those on which he has been acquitted and the appropriate proceedings may be taken for the purpose.”

21.  I agree with Mr Wong that section 15 is modelled on the plea of autrefois acquit, at least as it used to be understood in England.

22.  That brings me to a consideration of Mr Wong’s substantive argument.  As mentioned, Mr Wong argued that the unauthorised access to computer records (i.e. the subject of charge (a) in the disciplinary proceedings) was in fact a necessary element of the offence charged under count 1 in the criminal proceedings.  As this element of the offence, together with other elements of the offence, had already been tried in the criminal trial as count 1 and as the Applicant was acquitted of count 1, according to section 15, the Applicant could not be punished in respect of the same element again in the disciplinary proceedings.

23.  I do not agree.  Under count 1, the Applicant’s act in his capacity as a public servant was the speeding up of the handling of the Thai lady’s visa application.  The alleged bribe was received on account of that act.  Part of that act comprised the Applicant’s accessing the computer records of the Thai lady.

24.  To that extent, I agree with Mr Wong that that constituted a common issue to both the criminal charge as well as the disciplinary charge.  However, a highly material element of the disciplinary charge was the unauthorized nature of the access.  In terms of Immigration Service Standing Order 53.2(xix), the access was for “purposes other than for official use”.  That additional matter or issue, raised in the disciplinary charge, was not an element of offence or issue raised in count 1 in the criminal trial.  It was not a required element of the criminal offence in count 1.

25.  In those circumstances, I do not think section 15 applies at all to bar the bringing of charge (a) in the disciplinary proceedings.  In other words, charge (a) simply did not raise the same or substantially the same issues as those on which the Applicant had been acquitted.

26.  As to Mr Wong’s further argument, which I have called a variation of the same theme, that as the Applicant could have been charged with the offence regarding accessing computer records under section 161 of the Crimes Ordinance in the criminal proceedings, charge (a) could not be laid against him in the disciplinary proceedings, I reject the argument.  First, this so-called wider doctrine of autrefois acquit (as Mr Wong has put it) or wider doctrine of issue estoppel cannot stand together with the clear wording of section 15.  Section 15 expressly and specifically allows an officer to be punished in respect of any charges, other than the criminal charge or charges upon which he has been acquitted, “arising out of his conduct in the matter”, which do not raise substantially the same issues as those on which he has been acquitted.  Leaving aside the main argument of Mr Wong that I have just rejected, as the Applicant was never charged with an offence under section 161 of the Crimes Ordinance or acquitted of any such charge, there is no question of not allowing the disciplinary charge based on Immigration Service Standing Order 53.2 (xix) to be made against him.

27.  In any event, any such wider doctrine of autrefois acquit or issue estoppel could only operate between the same parties.  As the Director of Immigration or the Government in its capacity as employer of the Applicant was never involved in the criminal proceedings as a party, I fail to see how the so-called wider doctrine of autrefois acquit or issue estoppel could apply to the present case.

28.  For these reasons, I reject Mr Wong’s subsidiary argument under his first ground.

2^nd ground of challenge

29.  Turning to Mr Wong’s second ground relied on in support of the Applicant’s application for judicial review, counsel complained that the Committee ought not to have admitted as evidence three video-taped interviews in the disciplinary proceedings, which interviews were ruled inadmissible during the criminal trial as the Court was not satisfied in relation to their voluntariness.

30.  Mr Wong submitted that admission of the interviews as evidence in the disciplinary proceedings amounted to a collateral attack on the determination by the District Court on the voluntariness of the interviews and thus an abuse of process: Hunter v. Chief Constable of West Midlands [1982] AC 529.  Alternatively, Mr Wong said that admitting such interviews as evidence in the disciplinary proceedings, thus raising the issue of voluntariness of those interviews in the proceedings, amounted to double jeopardy, in that it forced the Applicant to contest yet again the question of voluntariness in the disciplinary proceedings, he having fought the issue once in the criminal proceedings.  Mr Wong relied on Rogers v. The Queen (1994) 181 CLR 251, 277 – 278.

Discussion on 2^nd ground of challenge

31.  I reject both arguments.  In Hunter, the questions of whether the accused was beaten up by the police and therefore whether his confessions were voluntarily made were determined in the criminal trial in favour of the prosecution.  It was thus a collateral attack on that final determination by the criminal court for the accused to sue as plaintiff in a subsequent civil action against the police for assault, relying on the same allegations of being beaten up by the police.  The civil action was therefore an abuse of process.

32.  However, in the present case, the situation is entirely different.  The issue of voluntariness of the interviews was a material issue in the criminal trial.  For the rules of evidence in the criminal trial were that unless the interviews were voluntarily made, they were not admissible.  However, in the disciplinary proceedings, the Committee need not follow the strict rules of evidence.  This is because section 8 of the Public Service (Disciplinary) Regulation provides that an Inquiry Committee may inquire into any matter and admit and take into account any evidence or information which it considers relevant, and shall not be bound by any rules of evidence.

33.  In those circumstances, voluntariness of the interviews was not a criterion for admitting the interviews as evidence in the disciplinary proceedings.  The question of voluntariness, like all other relevant facts and circumstances, only went to weight.  Mr Wong did not, in his submission, go so far as to say that an involuntary statement must be wholly untrue in contents and therefore wholly irrelevant to any matters forming part of its contents.

34.  In those circumstances, in my view, there was no collateral attack on the determination by the District Court on the voluntariness of the interviews at all.

35.  As regards double jeopardy, insofar as it is based on autrefois acquit (or res judicata which underlies the conclusive aspect of the plea),it has no place in the disciplinary proceedings as already explained.  Insofar as it is based on issue estoppel, it is inapplicable because the parties involved were different.

36.  For the above reasons, I reject the second ground relied on by Mr Wong.

Outcome

37.  In the circumstances, the present application for judicial review must fail.  I make an order dismissing the proceedings.  Counsel agreed that costs should follow the event.  I agree.  I order that the costs of these proceedings be paid by the Applicant to the Respondents, to be taxed if not agreed.