CHIU HOI PO v. COMMISSIONER OF POLICE

CACV200/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 200 OF 2006

(On Appeal from HCAL No.105 of 2003)

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J U D G M E N T

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Hon. Yuen JA:

1.  This is an application by the Applicant (Appellant) Chiu Hoi Po for leave to appeal to the Court of Final Appeal from our judgment given on 26 February 2008 dismissing his appeal from Chung J’s judgment dismissing his application for judicial review.

2.  According to the Amended Notice of Application for leave to appeal, the grounds of the application made under s.22(1)(b) Hong Kong Court of Final Appeal Ordinance Cap. 484 are that:

(1) this court erred in holding that the Applicant had not argued Art.10 of the Hong Kong Bill of Rights (“BOR”) before Chung J and in not permitting him to run it on appeal by reason of the ‘state of the evidence’ bar;

(2) the question whether Art.10 BOR was engaged and violated in police disciplinary proceedings (where Reg. 9(11) and 9(12) of the Police (Discipline) Regulations Cap. 232 prohibit non-police officer lawyers from representing ‘defaulters’ at the hearing) is a question of great general and public importance;

(3) as there is a forthcoming appeal to the CFA in the case of Lam Siu Po v Commissioner of Police CACV 340/2005 raising the same issue as (2) above, the Applicant should begiven leave on the “or otherwise” ground.

Lam Siu Po

3.  As the Applicant is attempting to “ride on the back” of the Lam Siu Po case, it may be helpful to see what that case was about and to see the distinction between that case and this.

4.  In Lam Siu Po a police officer (“Lam”) had petitioned for his own bankruptcy.  The Commissioner of Police then commenced disciplinary proceedings against him for contravening police order PGO 6-01(8) on the ground that his operational efficiency as a police officer was impaired by his pecuniary embarrassment.  Mr Lam was convicted and compulsorily retired from the force with deferred benefits.

5.  Mr Lam commenced judicial review proceedings against the Commissioner.  One of the grounds was that Regs. 9(11) and 9(12) were unconstitutional in that they contravened Art.10 BOR as well as Art.35 Basic Law.  Evidence was adduced by Mr Lam and by the Commissioner on that basis.

6.  Chung J dismissed the application.  On 8 November 2007 this court (Tang VP, Yeung JA and Yam J) dismissed Mr Lam’s appeal.  On 8 May 2008, the court gave leave to appeal to the Court of Final Appeal on the question whether Reg.9(11) and 9(12) contravened Art.10 BOR. 

7.  As far as Art.35 Basic Law was concerned,  the Court of Final Appeal had held in a judgment given on 6 April 2006 in New World Development Co Ltd v Stock Exchange of Hong Kong Ltd [2006] 9 HKCFAR 234 that that article only applied to proceedings in courts of law.

This case

8.  The difference between this case and Lam Siu Po lies not only in the facts leading to the disciplinary proceedings (in this case, dishonoured cheques) and the relevant charge laid (in this case, conduct calculated to bring the civil service into disrepute: Reg.3(2)(m) Police (Discipline) Regulations).  More importantly the Applicant in this case had not mounted an Art.10 BOR argument before the first instance judge, and the case was accordingly not fought on that basis.  What the Applicant did was to argue a case only based on Art.35 Basic Law. 

9.  Before dealing with the Applicant’s arguments, it may be helpful to set out in the following table the timing of relevant events.

17.10.2003	- Applicant filed Form 86A for leave to apply for judicial review.
	- No reference to Art.35 Basic Law or Art.10 BOR.
11.11.2004	Hearing before Chung J in Lam Siu Po.
27.5.2005	- Court of Appeal’s judgment in New World:
	- Art.35 Basic Law and Art.10 BOR apply to Stock Exchange Disciplinary Committee tribunal.
23.8.2005	- Chung J’s judgment in Lam Siu Po:
	- Art.35 Basic Law and Art.10 BOR do not apply to police disciplinary tribunal.
7.10.2005	- Applicant (represented by counsel) filed summons for leave to amend his Form 86A
	- Includes an argument based on Art.35 Basic Law (but not Art.10 BOR).
15.12.2005	- Hearing before Chung J in this case.  Applicant is represented by counsel.
	- Applicant applies to amend Form 86A to argue Art.35 Basic Law (but not Art. 10 BOR).
	- Commissioner objects, but does not seek to adduce
	- new evidence if amendment granted.
	- Hearing proceeds.
	- Chung  J reserves judgment.
6.4.2006	- Court of Final Appeal’s judgment in New World:
	- Art.35 Basic Law applies only to courts of law.
	- Art. 10 BOR (even if it applies) does not add to common law rules of procedural fairness (which parties agree apply).
26.4.2006	- Chung J hands down judgment in this case.
	- Grants leave to amend Form 86A to include Art.35 Basic Law.
	- Dismisses application for judicial review.
6.6.2006	- Applicant filed Notice of Appeal.
	- Includes ground based on Art.10 BOR.
11.12.2006	- Applicant filed Supplementary Notice of Appeal.
18.1.2008	- Applicant filed summons for leave to amend Supp.Notice of Appeal
	- to include ground that he had put forward a “procedural unfairness” argument before Chung J. (para. 36 of Skeleton relied upon).
25, 28.1.1008	- Appeal in this case.

No Art.10 BOR  argument before Chung J.

10.  In the skeleton submissions for this application provided by the Applicant’s counsel (who did not appear before either Chung J or this court on appeal), it was submitted that the Applicant had mounted an Art.10 BOR argument before Chung J.  However at the hearing of the application, counsel accepted that the argument had not in fact been raised.  I shall discuss the point in any event to avoid further argument.

11.  It is clear that Art.10 BOR had not been raised before the judge at first instance.  In para. 4 of Chung J’s judgment, the judge had set out the case the Applicant advanced before him.  This paragraph tracked exactly the grounds set out in the Applicant’s summons to amend his Form 86A, as well as para. 11 of the Applicant’s counsel’s skeleton submissions which were detailed and methodically presented.   As noted previously there was no reference anywhere to Art.10 BOR or “procedural unfairness” along those lines.  In fact in para. 33 of Chung J’s judgment, the judge had specifically noted that “the applicant has not put forth additionally any argument regarding procedural unfairness arising from the lack of legal representation (or indeed, arising from whatever other reason(s))”.

12.  Nevertheless the Applicant included Art. 10 BOR as a ground in his Notice of Appeal, and in a summons for leave to amend the Supplementary Notice of Appeal filed shortly before the hearing of the appeal, he suggested that he had in fact argued “procedural unfairness” before the judge - referring to para. 36 of his counsel’s skeleton submissions.  However it is clear from those skeleton submissions that para. 36 was part of the section on “Unreasonableness of the conviction”, and only set out matters that the Applicant argued the adjudicating officer wrongly took into account or failed to take into account.  It is obvious that this is very different from an argument based on Art.10 BOR.

13.  In the present application, the Applicant’s counsel in his skeleton submissions had attempted to rely on yet another part of the skeleton submissions before Chung J, viz. paras. 39-43.  However it is clear from those skeleton submissions that those paragraphs were part and parcel of the argument based on Art.35 Basic Law.  There was no reference to Art. 10 BOR.  There was also no assertion of any common law rights, presumably because the disciplinary proceedings were founded on subsidiary legislation.  Although there was a reference to the case of Jones v National Coal Board [1957] 2 All ER 155 this was expressly advanced as authority in support of the Applicant’s allegation that the adjudicating officer had intervened excessively in the course of the hearing.

14.  In short, a fair reading of the Applicant’s skeleton submissions at first instance shows clearly - as his counsel now accepts - that no Art.10 BOR argument was ever advanced at the hearing before the judge.

Art. 10 BOR argument not ‘subsumed’ in Art. 35 Basic Law argument

15.  The Applicant submitted that even though Art.10 BOR had not been argued before the judge, this court should still have allowed it to be argued on appeal as it was subsumed or substantially the same as the Art. 35 Basic Law argument and the evidence would have been the same. 

16.  For reasons set out in our judgment given on 26 February 2008 we did not agree.  The evidence in this case was adduced by both sides at a time when the Applicant had advanced neither the Art. 35 Basic Law nor Art. 10 BOR arguments.  When the Applicant sought to amend his case to include Art. 35 Basic Law only, the Commissioner had a choice - he could adduce evidence to meet the 2^nd stage of the Art. 35 Basic Law argument (which would have involved an adjournment during which the Applicant could have had further thoughts), or he could take a stand on the argument that Art. 35 Basic Law did not apply to ‘non-court’ proceedings (which eventually succeeded in the Court of Final Appeal in New World).  The Commissioner did not take the former option and argued that Art. 35 Basic Law did not apply to a police disciplinary tribunal which is in a unique category (see para. 34 Chung J’s judgment).  By comparison, in any case founded on Art. 10 BOR, considerations of equality and fairness are fact-sensitive.  Accordingly we took the view that the ‘state of the evidence’ bar prohibited the Applicant from taking the Art.10 BOR point on appeal.  There is no question of great general or public importance involved in that decision.

17.  Since Art. 10 BOR was never argued in the present case and the evidence adduced by the Commissioner at first instance was predicated on that basis, I do not see how the fact that leave has been given in Lam Siu Po to argue Art. 10 entitles the Applicant in this case to leave even on the “or otherwise” ground.  It is a fundamental principle of our system of civil justice that each case must be decided according to the arguments raised and evidence adduced before the court, and that there must be finality in litigation.  In my view to give leave to the Applicant in the present case would be a classic case of giving the Applicant a ‘second bite of the cherry’ which would be contrary to that principle.  As for the Applicant’s argument that if the Court of Final Appeal were to hold in Lam Siu Po that Art.10 BOR was engaged, fresh evidence could then be led in the present case in the Court of Final Appeal on the issue whether that article was violated, in my view that suggested course actually underscores the difficulties and undesirability of permitting a litigant to ‘jump on the bandwagon’ an re-argue a case he had never run.

Order

18.  I would dismiss the application with an order nisi that the Applicant is to pay the Respondent’s costs.  The Applicant’s own costs are to be taxed in accordance with Legal Aid Regulations.

Hon Lam J:

19. I agree with the judgment of Yuen JA. Because of the difference in the factual matrix between the present case and Lam Siu Po, it is wrong to assume that the evidence necessary for the determination of an Article 10 BOR challenge is the same for both cases. Thus, I do not accept Mr Chan SC’s submission that the absence of evidence specifically addressing this challenge in our case can be cured by the evidence already before the court in Lam Siu Po. Further, for reasons already canvassed in our main judgment, the evidence that the Respondent may wish to adduce to resist an Article 10 BOR challenge could be different from that already adduced in the present case for opposing an Article 35 Basic Law challenge.  Due to the failure on the part of the Applicant to raise an Article 10 BOR challenge in our case, he is caught by the principle in Flywin Co Ltd v Strong & Associates Ltd [2002] 2 HKLRD 485. That principle is well settled. The Applicant may contend this court applied that principle wrongly in our main judgment but that is not a point of great general or public importance. Bearing in mind the unfairness in pre-empting the Respondent on his evidential position if the Article 10 BOR challenge can be advanced by the Applicant at this stage, I share the view of Yuen JA that leave should not be given under the “otherwise” limb either. The application should therefore be dismissed. 

Hon. A Cheung J:

19. I also agree.