LO KWOK KUEN DANWAY v. THE COMMISSIONER OF POLICE

HCAL49/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.49 OF 1999

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J U D G M E N T

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1. This application for judicial review relates to police disciplinary proceedings. The applicant was a sergeant in the Hong Kong Police Force. On 29th June 1998, he was found guilty by an adjudicating officer of having associated with a known triad personality, an active office bearer of the Sun Yee On Triad Society, between mid 1996 and August 1997. There were other charges but they have fallen away and need not concern us. I shall not refer to the triad personality by name because he was, for some years, a police informer or a casual informer of the applicant, and it would be undesirable, for very obvious reasons, that his identity be broadcast or published. I shall simply refer to him as "Mr X".

2. The decision is challenged on the footing that there was no evidence which permitted the central conclusions of fact to which the adjudicating officer arrived. If that is shown, then a number of other decisions must be quashed because they all followed the finding of guilt. Those other decisions were the decision in July 1998 to award dismissal but suspend that punishment for a year; the subsequent decision of a more senior officer that the applicant be dismissed; and a decision of the Commissioner of Police to uphold the finding of guilt, although he reduced the punishment to one of compulsory retirement with deferred benefits.

Background

3. The applicant had been in the police force for over 20 years. He joined in 1976 and in the course of his service he was posted to various stations. In 1981, he was posted to the Regional Anti-triad Unit on Hong Kong Island; and in 1983 to the Regional Crime Unit also on Hong Kong Island; and then in September 1993 he joined the Organised Crime and Triad Bureau, and was promoted whilst there to the rank of sergeant in 1994. In November 1996, he moved to Hong Kong Island again, and then on 1st April 1997, to the Task Force Central Division.

4. In June 1997, the police mounted an undercover operation aimed at gathering evidence on possible extortion activities by the man X against public places of public entertainment in Central. The applicant and another officer, PC 50099, were seen to be patronizing, it was said, certain places thought to be under X's protection and in due course the applicant was interviewed and he gave a number of statements which were produced at the disciplinary hearing.

The Evidence

5. The evidence against the applicant which was said to support the charge can be categorised as follows :-

1. It was common ground that X was a triad who was a target of the Hong Kong Island Regional and Central District Police Division. He was said to offer certain services to places of public entertainment in Central and Wanchai. He had a number of triad followers, one of whom I shall call "Y". Y had a mobile telephone. The appellant also had a mobile telephone, as did X. The investigators knew the numbers of all these telephones, and the relevance is that the police investigation revealed a very significant number of telephone calls from the applicant to the X and Y telephone numbers : 71 to X's telephone number between 23rd December 1996 to 1st May 1997; 51 from Y's telephone number to the applicant between 4th March 1997 and 4th June 1997; and three from the appellant's telephone number to Y's telephone number. It is common ground that at all material times Y's mobile telephone was in the possession of X.

2. An immigration index check showed that on two occasions in November 1996 and three in March 1997 the applicant went to Macau by ferry leaving Hong Kong and also arriving back at Hong Kong at precisely the same time as X on most of these occasions, and almost precisely the same time on some.

3. In a statement made to the investigators in September 1997, the applicant said that he had known X since school days and they had maintained contact. He was asked whether after joining the police force he associated with X and he said : "Yes but not frequently, we seldom met each other. We had contacted by phone. I contacted him most frequently when I was attached to OCTB as he was an informer of mine", though not a registered informer, and he said he also contacted him in the capacity as a friend.

6. Then he was asked this question, which has been labeled as Question No.8 :-

"Q: Did you know [X] has triad society background?

A: Yes I did. I knew he was a member of the Sun Yee On Triad Society. However, it was only after I was transferred to Central District in April 1997 that I came to know that he was an active triad element in Central District and that his name was [X]. I also knew that my work might be affected because of our relationship as friends. Therefore about 10 odd days after I was transferred to Central District. I telephoned [X] and asked him if he was an active triad element in Central District. He frankly admitted to me that he was. Therefore I said to him that because of the nature of my work, we better had fewer contacts in future. But if he had any information about crime, he could still contact me."

He said in that statement that he knew X's telephone number, did not know his personal triad society activities, and that X had provided crime information when he, the applicant, worked in the Organised Crime and Triad Bureau and also in Western District, and again in 1997 when he worked on Hong Kong Island. Then he was asked this question which was Question 12 in the interview :-

"Q: Did you contact X after you were transferred to Central District in April 1997?

A: I have mentioned in Answer 8 that I had phoned him asking him if he was an active triad element in Central District. After that I did not look for him deliberately. However, as I am attached to Central District, sometime I would come across him in Central."

He then described three occasions when in May, June and August 1997 he came across him, he said by chance, in Central.

7. At Question 25 he was asked this question :-

"Q: When and how did you know that there would be problem for having contact with [X] in [a certain club which was then named]?

A: After the incident in [that Club], on 14th June 1997, Station Sergeant Cheung of Central Division had a routine interview with me. During the interview I mentioned to him that I have seen [X]. Station Sergeant Cheung told me that [X] was a target of our district. It'd be better to make a record in POL155 for contacts with him to protect myself. Therefore, I made a report on POL155 that day and submitted it to [the Station Sergeant] to file it in my source file."

He was asked, at Question 28 :-

"Q: As you know clearly that [X] is a police target and an active triad member in Central, why didn't you report it to your senior officer as soon as possible after you had contacted him each time?

A: I did not know that [X] was a target of our district ... ."

8. The second statement made by the applicant was on 3rd November 1997. This time he was asked about the trips to Macau. He said that he had never arranged to go to Macau with X and that all that happened on each occasion was that he just chatted to him and greeted him.

9. The telephone calls were the subject of the third and last interview on 28th November 1997. As for the 71 calls in the six-month period to which I have earlier referred, the applicant said that he called X "as a friend" during that period and that it had had nothing to do with his job.

The hearing

10. The disciplinary hearing occupied something like eight separate sessions of evidence. The statements made by the applicant were produced without any objection. There was oral evidence given by a number of witnesses including evidence about the dissemination of information about triad personalities within the police force. The first witness to give evidence was Senior Inspector Tang who had been the investigating officer. In cross-examination, he is noted as having confirmed that other than Question and Answer 8 of the statement made by the applicant, he had no evidence against the detective sergeant to show that the applicant knew that X was a Sun Yee On Triad personality.

11. The applicant did not give evidence, but he called evidence on his behalf including that of Chief Inspector Deakin who said that he knew of the applicant's contacts with X as an informer, and that the meetings were not recorded in the applicant's source files but rather in confidential files within the context of particular investigations. Mr Deakin provided testimony of a particular occasion when the applicant had himself reported an association between a police officer and a triad personality. The applicant had witnessed that association when he, the applicant, was in the company of X, his informer. It is a piece of evidence which looms large in this application and to which I shall return. Evidence was also admitted of the telephone calls and of the visits to Macau, admitted in the sense that the records were produced.

12. The disciplinary proceedings against the applicant were run in conjunction with those against PC 50099.

The judgment

13. At the centre of the applicant's attack in these proceedings is the judgment, as it is entitled, of the adjudicating officer. It is a judgment which deals with the case against both this applicant and PC 50099, and with other charges which the applicant then faced. In relation to the charge against this applicant which is the subject of these proceedings, the evidence arraigned against the applicant is set out correctly and in some detail. It includes the following statement :-

"... the defaulter admitted in his statement that he knew [X] being a Sun Yee On Triad member in April 1997 when defaulter transferred to Central Division."

By 'defaulter' is meant the applicant. The adjudicating officer noted that the defence contention was that there was no evidence that the applicant knew of X's triad background before 14th June 1997. That was the date upon which the applicant said he was warned by Station Sergeant Cheung that X was a target of the police in the district in which the applicant was working.

14. The adjudicating officer stated quite correctly in his judgment what elements were required to be proved before the applicant could be found guilty of the charge, namely, that he associated with a triad personality, X; that that association was between mid 1996 and August 1997; that the association was other than in the course of duty; and that during that period, the applicant knew that X was a triad personality. He acknowledged the serious nature of the charge and said that he adopted the criminal standard of proof, namely, proof beyond reasonable doubt.

15. Under the heading "Reason for reaching the Finding", the adjudicating officer said that the evidence of association with X was overwhelming. He referred, in support of that comment, to a boat trip in 1996, to the trips to Macau, and to the numerous telephone calls. As for the three contacts in mid 1997 in Central at the clubs, he was prepared to accept that they may not have been pre-arranged. It was proved, he said, to the requisite degree, that X was at all material times a triad - a fact not in issue now nor has it ever been. He referred to the evidence of the dissemination of information within the police force acknowledging that there was evidence that some who were in the Task Force Central did not know of X or that he was a triad. He accepted that X had been a casual informer of the applicant.

16. What the adjudicating officer then said lies at the heart of the complaints made by Mr Dykes, Senior Counsel, who appears in these proceedings on behalf of the applicant, and it must be set out :-

"Defence's evidence of [X] being a casual informer is accepted. However, in accepting [X]'s role as such, as early as the days when the Defaulter was in OCTB from 1993 to 94, one may ask why the Defaulter can be ignorant of [X]'s Sun Yee On status, when the Defaulter had witnessed another police officer associated with triad, not in the course of duty, when Defaulter met [X] for cultivation of intelligence. (evidence of DW1) I draw the conclusion with such evidence that defaulter knew of [X]'s triad background when he was in OCTB, given that Defaulter had been in HKI Regional Anti-triad Unit in 1981 for nine months and then had six years in RCU, HKI till 1987. In 1993, Defaulter had nine months in HKI before going to OCTB. Defaulter was an RSDS HKI in February-March 1997. He must be very alert to triad involvement of his associates, especially those active in HKI.

The next element to prove is that of "in the course of duties". Whilst the direct contact in Club [A] may be in the course of duty, as according to the Defaulter, he had asked [X] whether there is any criminal intelligence during that occasion. The Club [B] meeting had no mention of collecting intelligence. With the five Macau trips and numerous contacts over the telephone, there is no suggestion of in the course of duty. Had this been in the course of duty, a lot of intelligence must be collected and properly documented. None of these is forthcoming. As such, I rule between mid-1996 to 25-Aug-1997, they were not in the course of duty, with the possible exception of [Club A]."

The adjudicating officer then said that all four elements "are proved beyond reasonable doubt - Finding-Guilty."

The criticism

17. It is accepted by Mr Dykes, who appears for the applicant, that this court does not sit on appeal, as it were, from the decision of the adjudicating officer, to say whether its assessment of the facts would or would not have been the same. The court does not substitute its own judgment for that of the adjudicating officer. But Mr Dykes argues that the decision of the adjudicating officer is irrational in the sense that there is an absence of logical connection between the evidence and the ostensible reason for the decision; that the reasons display no adequate justification for the decision; and that there is, to boot, an absence of evidence in support of that decision . There is, he says, relying on passages in de Smith 5th ed. at para 13-020 and 021, a lack of reasoning such as to raise substantial doubts over the decision-making process.

18. He argues that the reason for the decision can be found, and can only be found, in the part of the judgment which is headed "Reason for reaching the Finding". He points to the fact that in that part the officer never once refers to the statements made by the applicant to the investigating officer, statements which he says are in any event ambivalent and were not made in response to clear questions seeking to ascertain when it was the applicant first came to know that the man X was a triad.

19. He argues that the adjudicating officer has relied heavily, if not exclusively, on a complete non sequitur, namely that because the applicant knew that the person with whom another officer had been associating, when the applicant was in the company of X, (this is the evidence of Mr Deakin) - knew that that person was a triad, the applicant must have known that X was a triad. On the contrary, said Mr Dykes, it shows that the applicant was acutely aware of the need not to associate with known triads save in the course of duty. He then points to the reasons for decision given by the adjudicating officer when dealing with the case of PC 50099. The adjudicating officer there states that he thinks that the police constable must have obtained background information from the applicant about X and the inference was that he, the police constable, knew of X's background. There is then a curious statement that this inference is not beyond reasonable doubt. That, at first reading, concerned me because I thought, and Mr Dykes suggested, that the adjudicating officer appears to be saying that inferences may be drawn, even though not the only reasonable inferences. The adjudicating officer went on to say that "with this inference in mind, I step back to re-think the appropriateness of insisting on proving beyond reasonable doubt for the last element to prove that of triad knowledge. I have decided to drop the last element". Mr Dykes says that this approach must cause doubt about the appropriateness of the approach in the applicant's own case.

Analysis

20. Whilst I do think that the judgment may have been better expressed and more happily arranged, I do not think that the conclusion reached by the adjudicating officer can be impeached on the ground that there was not the evidence to support the findings he made - especially the finding that the applicant knew during the period covered by the charge that X was a triad - or on the ground that the reasoning is such that there must be substantial doubt over the safety of the process and the conclusion. In saying that the judgment may have been more happily or exactly phrased or otherwise arranged, it must be recognised that the adjudicating officer is not legally qualified or well practised in such matters and was writing a judgment in a language which is not his first. I think that what the court does in such circumstances is to look at what the author is really saying, of course without engaging in the filling in of gaps where it would be clearly for the adjudicating officer to deal with a matter or properly analyse a matter. The court must not engage in that which Mr Dykes called a charitable patch-up job. On the other hand, the court must not examine the judgment or statement of a tribunal as if it is engaged in an exercise of statutory interpretation.

21. The fact is that the evidence against this applicant of knowledge and association was overwhelming. The evidence of knowledge came primarily from the unchallenged statements of the applicant himself. I do not intend to take the relevant sentences in those statements apart piece by piece. But it is clear beyond peradventure that what the applicant was saying in those statements was that before he joined the Task Force Central Division on 1st April 1997, he knew full well that the man X was a triad, but that what he did not know was that he was an active triad within the central area to which he, the applicant, was then posted. And indeed he found that out some ten days only after 1st April. It may be said to be surprising, perhaps, that the adjudicating officer did not mention this very obvious fact under the heading "Reason for reaching the Finding": but that he made that finding that such an admission was made is clear from earlier in the judgment. It is also clear that it was well before him in evidence and also referred to in cross-examination of the first witness as the only evidence there was of knowledge on the part of those presenting the case. I am satisfied that the criticised passage was far from the only evidence upon which the adjudicating officer relied for his finding about the applicant's knowledge of X's triad background, and that he was acutely aware of, and relied upon, the applicant's own admission in his September 1997 statement.

22. The passage which is so criticised by Mr Dykes must be looked at in its true context. The adjudicating officer was not there saying that the OCTB incident, and the applicant's attachment to OCTB and to other triad investigating units was the only evidence upon which he was relying of prior knowledge. One must look to the context of that paragraph and the sentences about which complaint is made. The paragraph starts with a reference to the defendant's own case that the man X was an informer. And what the adjudicating officer is there saying is this : "So be it; but even so - indeed especially so, how could this officer not know from way back in the days when, as an officer in a branch devoted to triad investigations, the man whom he had known for years and was his informer and in whose presence he saw and identified other triads, was not himself a triad?" And that was not all - the applicant, he adds, was an officer in the Regional Anti-triad Unit and in the Regional Crime Unit on Hong Kong Island and given these postings and his connection with the man X and the fact that X was an informer - his informer, it is, he said, beyond belief that he, the applicant, did not know that X was a triad. It should not be overlooked that the adjudicating officer was not some lay inquisitor, unfamiliar with police methods or with the day to day realities of police life. He himself was, and is, a senior officer and it was par excellence a matter for him for say whether such inferences could be drawn as the only reasonable inferences.

23. The suggestion that the adjudicating officer approached the question of inferences inaccurately is not one which, upon proper examination, holds water. The adjudicating officer was saying in the criticised passage that because he could not irresistibly draw certain inferences against PC 50099, he would not in fact draw them. The reservation he has there about relying on inferences because of past experience is not a reservation he expresses in the case of the applicant.

24. Mr Dykes says - well, the most that can be concluded then is that as from 1st April 1997 the applicant knew that the man X was a triad, and that in so far as a wider finding is without foundation, then the decisions should be quashed because the punishment would be different if the only guilty association was association for a few times and a few calls after 1st April 1997. I agree that if the findings could be impugned to that extent, then it would not be satisfactory to leave the matter as it is because the punishment might indeed be different. But the point does not succeed because, in my judgment, there was evidence, and sufficient evidence, upon which the tribunal was entitled to come to the conclusion that this applicant had known for years that X was a triad. He was entitled to draw those inferences from the length and nature of this applicant's association with the man X, and from the posts which this applicant held. And that is what the adjudicating officer did.

25. There is an attack on findings of association other than and in the course of duty. It is argued that the trips to Macau cannot be shown as trips which were taken together - in each others deliberate company, that is, by these two men; and that telephone calls are not shown to be other than in the course of duty; and in any event it is argued that telephone calls in themselves do not constitute an association. What the Police General Order in this regard is all about, says Mr Dykes, is to prevent police officers being seen in the company of known triads.

26. Again I say the evidence should be looked at with a healthy degree of realism : if one examines the timing of the trips to Macau, the fact that on most of them the applicant not only leaves Hong Kong at precisely the same time as does X but also returns on the same day at precisely the same moment, it is in the context of the evidence as a whole, including their long standing and acknowledged friendship, evidence which the adjudicating officer was entitled to treat as evidence of deliberate association.

27. I do not agree that in this context regular and frequent and none too short telephone conversations cannot constitute association. The Police General Order in question is not designed merely to preserve public confidence in the police by keeping from their sight inappropriate contact. It is to preserve the integrity of the police force generally, and that integrity is undermined when police officers build a social bridge with known triads - a bridge in which information or across which information might be conveyed even haphazardly; a bridge which can compromise the officer concerned, can lead to pressures by the triad or his associates, or to accusations, just or unjust from the public, or from others who come to know about it, and which can lead to compromising the officer in the execution of his duties. The reasons no doubt go beyond these few, but they should be too obvious to state. This applicant had over one hundred telephone conversations with X in a relatively short period, and it was not only not his case that they were for duty-related reasons - on the contrary, in his statement of 28th November 1997 he said he called him as a friend. As to some of the calls, those from X to the applicant himself, he said he could not explain. I think that these calls are quite rightly categorised as constituting association.

28. Complaint has been made about the fact that there is an affirmation from the adjudicating officer in these proceedings. That affirmation merely tells the court that when the adjudicating officer examined the applicant's statements he read them in their original Chinese character form; that, in order to explain his understand. Mr Dykes asserts - and as a matter of law he is quite correct - that it is not permissible to file affidavit evidence to supplement reasoning. I am not sure that that is what was intended by this affirmation, but it suffices for me to say that I have, for the purpose of reaching this decision, ignored its content.

29. There is, in my judgment, ample evidence upon which the adjudicating officer could arrive at the decision he did, and there is demonstrated no such flaw in his process of reasoning which would warrant upsetting his decision.

Conclusion

30. Accordingly, the application to quash his decision that the applicant was guilty of charge E is dismissed, as are the applications to quash the decisions dated 9th July and 9th December 1998 and the decision of 3rd February 1999.

31. There will be an order that the applicant shall pay to the respondent the costs of and occasioned by this motion, such costs to be taxed if not agreed.