YEUNG KWOK FAI v. THE COMMISSIONER OF POLICE AND SECRETARY FOR THE CIVIL SERVICE

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

1998, No. 71
(Civil)

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J U D G M E N T

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Mortimer, V.-P. :

1. At the material time, the appellant was a Senior Inspector in the Hong Kong Police Force. He appeals against a decision of Yeung J on 22 January 1998 when the judge refused to judicially review a decision of a Police Disciplinary Tribunal of 22 May 1996.

2. The appellant was found guilty by that Tribunal of four disciplinary offences under the Police (Discipline) Regulations. The Tribunal appointed to hear the disciplinary case was Superintendent Howcroft. The hearing was fixed for 20 May 1995. The hearing took place and the appellant was convicted on 23 May 1996. The Tribunal referred the case to the Commissioner of Police under Regulation 23(4) of the Police (Discipline) Regulations to consider punishment. In turn, the Commissioner forwarded a report to the Governor under Regulation 27(2) with the recommendation that the appellant be compulsorily retired with such pension, gratuity or benefits the Governor might determine. In due course the punishment fixed was that the appellant should be compulsorily retired with deferred pension.

3. Before that happened, the appellant made written representations to the Governor on both conviction and sentence.

4. The offences were making false statements concerning a Rolex watch which was a court exhibit. The nature of the defence which the appellant advanced before the Tribunal was that although the allegation that the statements were false was correct, they were mistaken due to faulty memory. So the proceedings turned on credibility. He had made two statements to two different Chief Inspectors on 22 and 28 February 1995.

5. The appellant sought judicial review of the procedure. At the hearing before the Police Disciplinary Tribunal the appellant's case was that he was in the circumstances entitled to an adjournment. The adjournment was refused. He sought judicial review of that decision, and other decisions which followed it. He says that the refusal of the adjournment was procedurally unfair in that it was in breach of the rules of natural justice. He advanced these points in front of the judge who refused to judicially review the decisions. His appeal now comes before us.

The background

6. In the disciplinary proceedings, the procedure in a case against a defaulter is governed by the Police Regulations. Regulation 17(4) provides:

"(4) Where a charge or charges are to be heard before an appropriate tribunal consisting of a single police officer, the defaulter shall be notified in writing of -

(a) the charge or charges;

(b) the name of the officer constituting the appropriate tribunal'

(c) the place of the hearing; and

(d) the time and date of the hearing, which shall not be earlier than 7 clear days after service of the notice.

Regulation 19 provides:

"(1) The Commissioner or a senior police officer shall appoint a prosecutor and the defaulter may be represented by -

(a) an inspector of his choice; or ..."

Regulation 21 provides:

"Hearing

...

(7) The appropriate tribunal may adjourn the case from time to time and where an application is made for an adjournment it shall be shown by the applicant that such a course would serve the ends of justice and any adjournment granted shall be for a reasonable period only."

7. The necessary notice under reg. 17 to inform the appellant, among other things, of the date of the hearing and to provide him with necessary documents, was dated 19 May 1996. It was served upon him on 10 May 1996, specifying the hearing date of 20 May 1996. So he was given 10 days to prepare. There was a further document provided to him on 16 May, that was a copy of the brief facts upon which the prosecution was going to rely. That document is not provided for in the Regulations but was provided in practice.

8. Under his rights in Regulation 19, the appellant wanted Chief Inspector Wong Chun-chin to represent him. That officer was a person who was experienced in that field. He had represented many defaulters before. The appellant approached him on 10 May. But unfortunately, Chief Inspector Wong was otherwise occupied on duty on 20 May so it was known from the outset that Chief Inspector Wong could not appear on the day fixed for the hearing. He gave the appellant certain advice to which I will return. The advice broadly was he should apply for an adjournment of the hearing and should ask for another officer - it turned out to be Woman Senior Inspector Yip Ching-han - to represent him simply to apply for an adjournment. So it was on the 20th, the Woman Senior Inspector appeared with the appellant before the Tribunal and applied for the adjournment.

9. The application was based, as can be seen from the transcript, on the first point. That there had not been sufficient time to prepare the defence. He asked for an adjournment for four weeks, adding that he wanted to be represented by Chief Inspector Wong.

10. The Tribunal heard all those submissions, and ruled that the case should proceed with the qualification that if at the end of the prosecution case, a further adjournment was needed, it could be applied for and considered. But no such application was made. The hearing proceeded to conviction.

11. Mr Dykes, who appears for the appellant, submits that the judge was wrong to refuse judicial review of that decision because, he submits, the result was that the appellant had an unfair hearing and unfair trial because he was not prepared.

12. It appears from all the evidence before the judge, and now before this Court, that indeed the appellant was not prepared for the trial. There is no point, therefore, as I see it, in any investigation into whether there was sufficient time to prepare the defence between the date of the notice and the date of the hearing which was some 10 days. Indeed, there can be little doubt that, absent a requirement to search for witnesses or obtain other documents, there was ample time for the defence to be prepared. The defence was quite simple. It was conceded that the statements were false and the only question was - were they made wilfully?

13. So this issue was a simple one. The case could easily have been prepared in the time available but it appears that it was not prepared. I now turn to the reasons why.

14. We have before us, as did the judge, an affirmation of Chief Inspector Wong whom the appellant wanted to represent him. He sets out in his affidavit the fact that he was approached and that he could not appear at the date of the hearing. He indicates that although he was very busy, he felt that it was his duty to represent the appellant. As he could not appear, he says in paragraph 6:

"6. In the circumstances, I advised the Applicant to apply for an adjournment for four weeks on the following grounds:

(a) that the defence representative was not available on the day of hearing, i.e. 20th May 1996;

(b) that the defence representative would need sufficient time to prepare the case for such serious charges on the basis of not guilty plea.

7. I have the advice for the following 2 reasons:

(a) I acted as defence representative in more than 20 cases of the Disciplinary Proceedings some of which involved an application for adjournment on the first day of hearing on similar ground which was never turned down;

(b) The serious nature of the charges the Applicant was facing and the relatively short notice both for him and myself would be justifiable for an adjournment.

8. Just to safeguard his interest further. I advised him to request another officer to seek the adjournment on his behalf. To my understanding, he appointed Miss Yip Ching Han, Senior Woman Inspector of Hong Kong Police Force to represent him on the first day of hearing. I subsequently had the opportunity of discussing with Miss Yip about the grounds of the adjournment."

That was the advice that the appellant received.

15. It is to be noted that he did not receive advice from the experienced Chief Inspector that he should prepare to defend himself in some other way, either by asking another inspector to present his defence or to prepare to represent himself. The appellant relied upon that advice and instructed the Senior Woman Inspector to appear simply to apply for the adjournment which his main adviser, Inspector Wong, was confident that he would obtain. As Mr Whitehead for the Commissioner of Police points out, he does not say in his affirmation that he told the appellant but he does say that his experience was that in many previous cases an adjournment on similar grounds had not been refused. That was no doubt the basis of his confidence. There the matter remained. The application was made by the appellant's adviser and the appellant. It was refused. That left him in the position of not having a representative of his choice to defend him and not having prepared to defend himself.

16. In those circumstances the question arises: should the court intervene? The principle is not in dispute. A judge will not intervene in a decision which is taken by a tribunal to grant or refuse an adjournment save on the clearest grounds. It is vital that a tribunal is left to make its decisions on procedural matters without interference save where it is plain and obvious that intervention is necessary. The matter has been put in many ways but perhaps the most useful exposition is in R v Panel on Take-overs and Mergers. ex parte Guinness plc [1990] 1 QB 146 at 178 where Lord Donaldson M.R. said:

"As I have already indicated, I think that, at least in the circumstances of this appeal, it is more appropriate to consider whether something has gone wrong of a nature and degree which require the intervention of the court, rather than to approach the matter on the basis of separate heads of Wednesbury unreasonableness and unfairness or breach of the rules of natural justice."

With that in mind, I turn the facts of this case.

17. Something clearly went wrong because without doubt the appellant arrived on the date of the hearing unprepared. The question is: was it of a nature and degree which requires the intervention of the court? That is not an easy question for a number of reasons. The appellant knew of the date of the hearing, quite apart from any advice he had received from the Chief Inspector. The effect of a failure to prepare for a hearing to determine guilt or innocence must have been obvious to him. In choosing to be represented by Chief Inspector Wong, he knew Chief Inspector Wong would not be present. He knew that his representative who applied for an adjournment was not in a position to fight the case. She had not prepared herself. Had he asked himself what was going to be the situation if his application for adjournment was refused? It seems that he had not addressed his mind to that question but the reason he had not done so seems to be the advice that he had received. He throws a little further light upon the matter in a letter written to the Secretary for Civil Services when making his submissions in the proceedings following the original hearing of 3 March 1997. It is clear that he had been in touch with the prosecutor. He said this:

"... I appointed Mr WONG chun chin, Chief Inspector as my defence representative in the hearing and Mr WONG advised me to obtain a brief facts of the case prepared by the prosecutor so that I, being a defaulter, would be in a better position to know the actual allegations against me, the evidence adduced by them in support of the allegations and the potential witnesses to be called in the hearing. I tried to contact the prosecutor since 11th May but in vain and on the 13th May (Monday) Mr Pullinger promises me that once the brief fact was ready he would give me a copy. At 1600 hrs on 16th May 1996(Thursday) I received a copy of the brief facts through Fax, despite my repeated request to obtain such a copy. Indeed, the complete set of documents of the proceedings (including this brief facts) were served to me only 4 days before the proceedings held on 20th May, 1996. Therefore I was not given sufficient time to prepare for my defence.

ii) I was so advised by my defence representative that as a matter of common practices and procedure a hearing date would be fixed by the AO upon a defaulter pleading not guilty to the allegations on the first hearing. May I therefore ask CP to provide statistics, if any, to support his assertion that a proceeding would immediately proceed on the first hearing day if a defaulter denies the allegation. The memo from Mr. Pullinger dated 9th May 1996 does not specify this course of event to be taken on 20th May, 1996.( see copy of attached memo).

iii) Mr WONG, my defence representative could not able to attend the 20th May proceedings as he was engaged in other duty commitment. Hence, Miss YIP ching-han, Peggy (WSIP) was briefed to attend the 20th May hearing and to ask for a hearing date to be fixed. She was not briefed to defend me in the actual discipline hearing. She related her limited capacity to the AO. Not only did the AO fail to record this fact in his record of proceedings, but he had not considered whether it was in the interest of justice to refuse my application for adjournment."

So it would appear that the appellant was, at least partially, the victim of circumstance and advice that was being tendered to him.

18. Much can be said on the other side. Why, for example, did he not take other steps to ensure that some other inspector prepared to defend him was present at the date of the hearing? Why did he not approach the Tribunal before the day of the hearing informing them or his difficulty and ask for an adjournment? Why in the time available did he not prepare for the hearing? Those points can be made. But, for my part, I ask whether this was simply a technical procedural irregularity. Judicial review will not be granted on a technical irregularity or a technical breach of natural justice. It must be demonstrated that someone has actually suffered injustice or at very least that there is a real risk that someone has suffered injustice.

19. I turn briefly to consider that.

20. It is easy to recognise that although this was on the face of it a simple case before the Disciplinary Tribunal, even the simplest case has to be prepared for and even in the simplest case does an experienced representative have a potential effect on the result. It has been said many times before that there is no such thing as an open and shut case. For my part, I would not be prepared to say that this case is an open and shut case although the evidence looks overwhelming. It is a case which has to be proved like any other case.

21. For my part, as a result of these unusual circumstances, I think there was a real risk that the failure to give an adjournment has caused injustice. In the circumstances I would hold it necessary for this appeal to be allowed with an appropriate order to judicially review that decision.

22. Before leaving the matter, however, I would point out that this is not only a difficult case, it is a very unusual one. The circumstances are unlikely to be repeated. Those who receive a notice that a hearing is to take place must in normal circumstances be prepared for a hearing and should not ever rely on the hope that an application for adjournment will be granted. The person involved must not put himself in a position of injustice, it will usually be his fault and no relief will be granted. As it is, it is my view that this is a case of such nature and degree that the intervention of the court is required.

Liu, J.A.:

This is an exceptional case on appeal from the judgment of Yeung, J. The somewhat unusual circumstances are given in the affirmation of Senior Inspector Yip dated 7 January 1998:

"3. When I understood from him [the applicant] the Chief Inspector Wong Chun Chui had agreed to act as a defence representative, but Chief Inspector Wong was not available on 20 May 1995, the date of hearing. I was requested by the applicant to represent him on that day to apply for an adjournment so the Chief Inspector Wong could take up conduct of the case, at a later stage, when he would be available.

4. Although I had no previous experience whatsoever in disciplinary proceedings, I was willing to assist by agreeing with the applicant to take up the case, to the extent, of applying for the adjournment. After I learned from Chief Inspector Wong that would normally be granted especially if the charges were of a serious nature, I was advised by him to submit two grounds in support, his unavailability and insufficient time for preparing the case.

5. On 20 May 1995, I attended the said proceedings and made an application for the adjournment on those grounds. It is now my understanding that the transcripts of the said proceedings did not record my submission about Chief Inspector Wong's unavailability and he would require more time to prepare the defence case. However, the adjudicating officer refused my application and insisted on the case to proceed forthwith. I then telephoned Chief Inspector Wong and told him what happened. He then briefed me on the procedure and asked me to proceed with the case as there was no other option open to me. The case was concluded on the next day and the applicant was found guilty on all four charges."

There was no evidence to the contrary.

23. The point for our consideration is within a very narrow compass, viz. whether or not the failure of the appellant who faced four serious charges to obtain an adjournment at the hearing before the Appropriate Tribunal on 20 May 1995 has, in the circumstances, caused injustice. Senior Inspector Wong was the representative selected. But for his advice that the grant of an adjournment in a serious case, like the one to go before the Appropriate Tribunal, was a matter of course, the appellant would have probably appointed some other seasoned representative of his choice or otherwise made suitable arrangements for properly conducting his defence. If, for various reasons, Senior Inspector Yip had had to conduct the proceedings, she should have been given time to prepare. Her application for an adjournment, we are told, was not resisted albeit the matter was one essentially for the Appropriate Tribunal.

24. Anyone facing charges has a right to appear by what he would regard as a competent or more competent authorised representative and his representative in attendance should at least be given time to prepare as a last resort. That is basic in an adversarial system which focuses on what are known as the principle of orality and the principle of immediacy for the trial. These principles call for the exercise of skill by the representative in seeking out the truth and protecting the party under his charge. For all the inherent failings of an adversarial system, people in common law jurisdiction countries still prefer that their civil disputes should be under the control of the lawyers of their own choice rather than managed by the professional judges of an inquisitorial system. In the circumstances of this case, I am not persuaded that the appellant was deprived of these representation advantages by his own default.

25. A fair trial in the common law jurisdiction requires that the parties should have the fullest opportunity to prepare their respective cases for trial and that the parties should enjoy the fullest protection pending the trial. That is fundamental. Once, Lord Denning said this:

"In litigation as in war, if one side makes a mistake, the other can take advantage of it. No holds are barred." Burma Oil Company v. The Governor and Company of the Bank of England, [1979] 1WLR 473, at p.484F.

That is a colourful reminder but the message is clear. The refusal to allow an adjournment in case management is largely a matter of discretion. The exceptional circumstances in which the appellant finally landed himself for the advice given by Senior Inspector Wong, were such that no reasonable tribunal could have refused the adjournment. Often, when the point is short and the charge serious, there would be all the more reason for making a thorough preparation, preferably by a better-qualified representative. This appeal could, perhaps, be more aptly considered in the light of the broad concept of Lord Donaldson, MR in the R v. Panel on Takeovers and Mergers Ex Parte Guinness PLC, [1919], 1QB 147, 178G. I do not propose to repeat once more what was said by the Master of the Rolls. In my view, the circumstances here warrant our intervention. I, too, would allow the appeal and subject to what Mr Whitehead has to say, make the orders prayed for in the Notice of Motion.

Waung, J.:

I agree with everything said by my Lord, Mortimer V-P, and in particular that this is a very exceptional case.

26. I would also allow the appeal.