LEE SZE CHUNG v. COMMISSIONER OF POLICE

CACV 86/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 86 OF 2003

(ON APPEAL FROM HCAL NO. 195 OF 2002)

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REASONS FOR JUDGMENT

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Hon Ma CJHC:

1. I agree with the reasons of Rogers VP in dismissing the present appeal.

Hon Rogers VP:

2. This is an appeal from a judgment of Burrell J given on 4 March 2003 on an application for judicial review. Before the judge the applicant sought five orders of certiorari. The judge dismissed the application. In this court the applicant again sought orders that all five decisions be quashed. At the conclusion of the hearing, this court dismissed the appeal with costs, with reasons to be given in writing.

Background

The events leading up to the disciplinary proceedings

3. Prior to the applicant's compulsory retirement from the police force he was a constable. He joined the police force in 1984. In November 1999 he was stopped whilst driving his motor car. There were three others in the car, his brother, a man named Chui and an illegal immigrant. The four occupants of the car were prosecuted on charges of being in possession of offensive weapons and handling stolen goods. All four were initially convicted. In December 2000 the applicant alone successfully appealed his conviction.

4. On 17 March 2001 the applicant was interviewed by a detective sergeant. He was informed that the investigation might be used for internal disciplinary proceedings and he was asked questions. The third question he was asked was whether he knew Chui. He said that he had known him for a long time because his family had opened a porridge shop when he was about 15 years old and sometimes he had come down and seen Chui who had been a customer. The answer he gave to Question 4 has turned out to be of particular importance. That was:

"	Question	Do you know that CHUI Chi-keung has a number of criminal conviction records and is also an undesirable element?
	Answer	I do not know because I have never had any contact with him. It was not until my elder brother LEE Sze-wang who came to look for me with him sometime before my arrest, then I met him again on that day. It was the first time when we met each other after more than ten years. Before that, I did not have any contact with him."

5. Eleven days later on 28 March 2001 the applicant was again interviewed and asked to give a clear explanation about the personal background of the other three persons who were arrested with him. Specifically he was asked as to how they came to know each other and the contacts between them. In the course of giving his answer the applicant said:

"As for CHUI Chi-keung, I have already mentioned him in the previous statement. I have come to know him for more than 10 years but I did not make any contact with him. I remember that I met him on a hydrofoil on the way to Macau from Hong Kong on a certain day in 1999. Yet I have already forgotten the exact date. Coincidentally, while I was returning to Hong Kong, I met him on the hydrofoil again. He was also on the way back to Hong Kong on the same hydrofoil. I must stress that I did not stay with him in Macau. ... As for the personal background of CHUI Chi-keung, I only know that he worked as waiter in a restaurant and decoration worker. As to his activities and hobbies in the ordinary days and whether he has any criminal conviction record or triad background, I do not know."

In a later statement made on 3 April 2001 the applicant had sought to explain his failure when giving his first statement to mention the meeting on the hydrofoil on the basis that he had probably remembered it wrongly.

The disciplinary proceedings

6. The applicant was then charged with making a statement false in a material particular contrary to Regulation 3(2)(j) of the Police (Discipline) Regulations, Cap. 232 ("the Regulations"). Regulation 3(2)(j) reads:

"making a statement which is false in a material particular in the course of his duty or in connection with the discharge by the police force of any of its duties or functions;"

The particulars of the charge were that:

"PC 23895 LEE Sze-chung of the Hong Kong Police Force you are charged that at 1100 hours on 17 March 2001 at the Interview Room 3, Duty Room of Crime/Kwun Tong Division, Kwun Tong Police Station, No. 1 Lei Yu Mun Road, Kwun Tong, Kowloon, you did make a statement in the course of your duty to Detective Sergeant 13706 CHEUNG Koon-wing namely that when you met CHUI Chi-keung on 23 November 1999 it was the first time you had met after more than 10 years, such a statement being false in a material particular."

Accordingly, disciplinary proceedings were brought against the applicant under Part II of the Regulations. In a written submission from the applicant reference was made to the discrepancies in his first statement. The applicant said amongst other things that the encounter had happened 15 months previously and that he had spoken entirely from memory. His submission was that the minor inconsistencies in his statements were nothing but a genuine mistake.

7. The applicant did not give oral evidence at the hearing of the disciplinary proceedings. There was evidence however that the applicant and Chui had been timed as entering and leaving Macau at precisely the same time on the same dates, namely entering on 12 November 1999 at 7:24 pm and leaving on 13 November at 1:16 am, using entry slips which were consecutively numbered. Furthermore, the detective sergeant who gave evidence about the interviews conducted with the applicant said in relation to the first interview that the applicant had been very careful and it had taken him "a long thought, a bit longer than a normal person would do, to answer each and every question I asked him." The same was not said of the later interviews and the detective sergeant said that he noticed the difference when the applicant answered the questions quickly on the later interviews.

The findings of the Appropriate Tribunal

8. On 25 September 2001 the Appropriate Tribunal (as defined in Regulation 4 of the Regulations), namely the adjudicating officer, found the applicant guilty as charged. In reaching his conclusion the adjudicating officer said that it was hard to believe that the applicant had just come across Chui by coincidence during his Macau trip. He did not draw the inference that the Macau trip had been pre-planned but nevertheless he found it hard to believe that the applicant, being an experienced police officer, could have made a mistake such as had been made in his first interview. Having considered the evidence of the detective sergeant as to the manner in which the applicant had given his answers on the separate occasions, the adjudicating officer came to the conclusion that the applicant's serious attitude had made it even more difficult to believe that he had made a genuine mistake. He said he found that the applicant had deliberately lied in his statement. The adjudicating officer did not attempt to analyse the motive for the applicant to lie but he said:

"From all the evidence adduced in the proceedings, I find the Defaulter to have been dishonest and firmly believe that he has told lies."

Pursuant to Regulation 13, the punishment awarded by the adjudicating officer on the applicant was a reprimand.

Events subsequent to September 2001

9. Under Regulation 14(1), any finding or award made by the Appropriate Tribunal had to be confirmed or could be varied by a senior police officer within 14 days. On 8 October 2001 the applicant was instructed to attend before a Senior Police Officer on the following day. The Senior Police Officer confirmed the finding of guilt but considered that the award made by the Appropriate Tribunal had been inadequate and that the award should have been compulsory retirement with deferred benefits. Regulation 14(3)(a) of the Police (Discipline) Regulations provides that the Senior Police Officer shall not "substitute for any award made by an appropriate tribunal any greater award without first calling on the defaulter to show cause why such award should not be increased."

10. When the matter was put to the applicant, he, apparently, made representations which, in effect, repeated the defence to the charge and his mitigation. Later that morning the Senior Police Officer increased the award from a reprimand to compulsory retirement with deferred benefits. In doing so he said that he had taken into account the applicant's previous good record and his family circumstances and the representations which had been made that day. Nevertheless, the applicant had made a false statement regarding an important issue. The Senior Police Officer regarded it as of paramount importance that police officers should be honest and trustworthy in all aspects of their work.

11. The next step in the disciplinary proceedings as required under Regulation 14(5) was the decision of the Force Discipline Officer made on 4 January 2002 whereby he confirmed the guilty award and the award of compulsory retirement with deferred benefits. Thereafter, pursuant to Regulation 15, the applicant made written representations which were treated as appeals to the Commissioner of Police on 22 February, 10 July and 5 August 2002. Amongst the points made in the third representation, that made on 5 August 2002, was a submission that the applicant had not been given an adequate period of time in which to prepare his submission to the Senior Police Officer on 9 October 2001.

The judicial review application

12. The applicant sought judicial review in respect of both the finding of guilt and the award of a reprimand made by the Appropriate Tribunal on 25 September 2001, the decision of the Senior Police Officer on 9 October 2001 when the award was increased to compulsory retirement with deferred benefits, the decision of the Force Discipline Officer made on 4 January 2002 confirming the Senior Police Officer's decisions and the decision of the Commissioner of Police dated 20 August 2002 dismissing the applicant's appeal to the Commissioner. The complaints made in respect of those five decisions have been summarised as follows:

(a)	That the charge as laid, namely as against Regulation 3(2)(j) was bad because the alleged false statement was not made in the course of the applicant's duty.
(b)	That the charge as laid was bad because the statement was not false in a material particular as required by Regulation 3(2)(j).
(c)	That the Appropriate Tribunal applied too low a standard of proof.
(d)	That the Appropriate Tribunal's judgment was flawed because it failed to consider what was meant by the applicant's answer in his first interview.
(e)	That the Senior Police Officer treated the applicant unfairly and in breach of natural justice.

13. The judge below rejected all the complaints save the final one. He held that the hearing before the Senior Police Officer had not been procedurally fair because the applicant had not been given a reasonable time in which to prepare his submissions. The judge declined to quash that decision or any of the other decisions and in so declining he gave three reasons. The first was that on 9 October 2001 the applicant had not requested more time but had made his representations immediately upon being requested to do so. The second was that his response at the time was lengthy, fluent and comprehensive. The third was that subsequent to the decision of the Senior Police Officer he had the opportunity to make representations on three further occasions namely 22 February, 10 July and 5 August 2002, albeit that final letter was addressed to the Force Discipline Officer.

This appeal

14. On this appeal Mr Kwok, on behalf of the applicant, took the same points save for point (b).

(a) The statement was not made in the course of his duty

15. Mr Kwok sought to argue that the charge had been brought under the wrong part of Regulation 3(2)(j), namely it had been brought on the basis that the statement had been made in the course of the applicant's duty although it might have been brought on the footing that it was made in connection with the discharge by the police force of any of its duties or functions. In pursuing his argument Mr Kwok acknowledged that the applicant had been obliged to make his first statement and to answer questions. Mr Kwok's argument amounted to the submission that since at the time the applicant made his first statement he was under interdiction he could not have been on duty at the time.

16. In my view, the first point has no merit at all. Mr Kwok's submission confuses the expression "being on duty" with a question as to whether the applicant had a duty to perform a particular act. I have no doubt whatever that which Mr Kwok submitted was an obligation to answer questions was in reality the applicant's duty. It simply cannot be said that in answering questions in the course of the investigation, the applicant was not in the course of duty. If there were any doubt about the matter I would draw attention to what was said in the case of Fu Kin Chi Willy v Secretary for Justice [1998] 1 HKC 411 by the Chief Justice at page 422G - 423B. It was said in that passage that a police officer has a duty to assist legitimate investigation into possible disciplinary offences which that officer might have committed.

(c) Too low a standard of proof was applied

17. In this respect Mr Kwok submitted that the charge against the applicant amounted to a criminal offence: see section 64(b) of the Police Force Ordinance. On that basis it was said that the Appropriate Tribunal should have applied the criminal standard of proof. In so saying Mr Kwok relied upon what was said in this court in the case of Tse Lo Hong v Attorney General [1995] 3 HKC 428. In my view it is unnecessary to review all the authorities in respect of how a tribunal should approach the seriousness of allegations and the strength of the evidence which it requires for them to be proved. The short references which have been made above to the Appropriate Tribunal's findings are sufficient, in my view, to demonstrate that the tribunal did find that the allegation was proved on what might be regarded as the highest standard. There are also references in the findings to "prosecution" and "conviction", terms which indicate the adjudicating officer's awareness of the necessary degree of proof. The references show the process by which the adjudicating officer reached his final conclusion that he firmly believed that the applicant had told lies. In my view there is no merit in suggesting that the adjudicating officer applied too low a standard of proof.

(d) What was meant by the applicant's answer in the first interview?

18. In oral submissions Mr Kwok did not elaborate on his written submission. That amounted to an argument based upon use of an expression in the first statement which was said conveyed that the applicant had only met Mr Chui in a pre-arranged, or intentional, meeting on the night of the arrest. When subsequently the applicant had referred in his later statements to meeting Chui he had used an expression which meant the encounter on the Macau trip had been by coincidence. In my view the context in which the applicant made his statement on 17 March 2001 clearly shows that the applicant was endeavouring to distance himself from any suggestion that he had had contact with Chui before the night he was arrested. His answers given on that day were clearly intended to convey the meaning that he had not seen Chui from the time when Chui had patronised his parents' shop 10 years or so previously until the date of his arrest and to justify his answer that he was not aware of the fact that Chui had a number of criminal convictions and was an undesirable character.

(e) The procedural irregularity

19. As already indicated the judge below came to the conclusion that the proceedings before the Senior Police Officer had been unfair. Whilst I do not find it necessary to review that decision, I would observe that in approaching the matter on that basis, the judge, in my view, gave the applicant the benefit of any doubt. Indeed, I would draw attention to the second reason given by the judge for exercising his discretion not to quash the decision which was, in effect, that the applicant had said everything that he would have wanted to say.

20. In making his submission Mr Kwok relied heavily on passages in the speeches of Lords Reid and Morris in the case of Ridge v Baldwin and Others [1964] AC 40. Those passages go to the proposition that if there had been procedural unfairness, it matters not that the court considers that the decision which had been arrived at was nonetheless the correct decision.

21. In my view the important factor in this case is that the applicant made the three submissions which have been referred to above. Notwithstanding that the submission made in August was addressed to the Force Discipline Officer, it was treated as a submission to the Commissioner. In that submission the applicant drew attention to what he said was the procedural irregularity. In the result he had made full submissions and these had been considered.

22. In the case of Calvin v Carr and Others [1980] AC 574, the Privy Council considered an application for judicial review which had been made by a part-owner of a horse who had been held by stewards not to have allowed a horse to run on its merits. At page 592, consideration was given as to whether defects in natural justice at an original hearing, whether they be administrative or quasi-judicial, could be cured through appeal proceedings. The Board came to the view that no clear and absolute rule could be laid down on that question given the diverse situation in which that issue could arise, referring to a number of previous decisions. At page 593D-F it is said:

"In their Lordships' judgment such intermediate cases exist. In them it is for the court, in the light of the agreements made, and in addition having regard to the course of proceedings, to decide whether, at the end of the day, there has been a fair result, reached by fair methods, such as the parties should fairly be taken to have accepted when they joined the association. Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect of appeals or re-hearings will not be sufficient to produce a just result. ... There may also be cases when the appeal process is itself less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a fair and full inquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision. These are all matters (and no doubt there are others) which the court must consider."

This decision was expressly followed by this court in Sea Dragon Billiard and Snooker Association v Urban Council [1991] 2 HKLR 114.

23. In the case of Stock Exchange of Hong Kong Ltd v Onshine Securities Ltd [1994] 1 HKC 319, this court considered the question of the effect of an appellate process in relation to tribunal proceedings and at page 330C, Power VP, in giving the judgment of the court said:

"If the appellate tribunal affirms the decision of the lower tribunal, the aggrieved party can then apply for a judicial review; but he will succeed only if, taking the procedure (original and appellate) as a whole, it can be seen that the aggrieved party has still not been fairly treated."

24. In my view the judge below applied the correct test in coming to the conclusion that the appeal procedure which was open to the applicant, and which the applicant clearly availed himself of, cured any defect which may have been occasioned in the proceedings before the Senior Police Officer. Looked at as a whole, the applicant was fairly treated.

Hon Le Pichon JA:

25. I agree.