LUI CHI HANG HENDRICK v. INDEPENDENT POLICE COMPLAINTS COUNCIL

HCAL 2924/2019

[2020] HKCFI 614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2924 OF 2019

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J U D G M E N T

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A. The application

1.  On 20 December 2019, I handed down my decision granting the Applicant leave to apply for judicial review against 2 decisions (the “Decisions”) of the Independent Police Complaints Council (“IPCC”). The is the substantive hearing of his application for judicial review.

B.      The Decisions under challenge

2.  To recapitulate, the Decisions that are under challenge are:

(a)  the decision of the IPCC (“Decision 1”) announced in a press release dated 5 July 2019 (the “5/7 Press Release”) to proactively conduct a fact‑finding study of the public order events that took place between 9 June to 2 July 2019 (the “Study’), and

(b) The related decision by IPCC (“Decision 2”) announced in a press release dated 16 August 2019 (the “16/8 Press Release”) to extend the scope of the Study to cover the public order events after 2 July 2019 and to publish findings in phases.

C.      The ground on which leave has been granted

3.  Whilst a number of grounds have been set out in the Applicant’s Form 86, I only granted him leave to proceed with a facet of one of the grounds which he sought to rely upon — namely the Decisions under challenge are illegal in that it is ultra vires for the IPCC to proactively conduct a fact‑finding study (the “Study”).

D.      The parties’ respective stances in the application

4.  The submissions of Mr Harris, leading counsel for the Applicant, may be summarised as follows:

(a)  The Decisions are illegal in that it is ultra vires for the IPCC to proactively conduct a fact‑finding study[1];

(b) The issue he frames is “whether under the [Independent Police Complaints Council Ordinance Cap 604 (the “IPCCO”)], the IPCC has proactive powers to find facts, in the absence of a prior fact finding by the Complaints against Police Office (“CAPO”)”[2];

(c)  “It is well‑established that the purpose declared in the long title of an Ordinance governs the interpretation of the Ordinance”[3] (emphasis added);

(d) His primary contention[4] is that the wording of the IPCCO, informed by its purpose as set out in the Long Title, makes it clear that the IPCC does not have power to carry out its own fact‑finding investigations;

(e)  He submits further that undertaking the fact‑finding study can lead to the IPCC reaching findings which are inconsistent with those reached by the CAPO, and that it cannot be procedurally fair for the IPCC to consider an investigation report submitted by the CAPO when it has already carried out its own fact‑finding study in relation to the same event[5];

(f)   The IPCC cannot rely on s 8(1)(c)[6] because[7]:

“ 34. ...the intention of Section 8(1)(c) is to enable the IPCC to identify any fault or deficiency in police practice or procedure which comes to its notice as a result of its monitoring and oversight of CAPO complaints. It is not intended to be a free‑standing power to investigate any police practice or procedure. (Mr Harris’ original emphasis)

...

36.    It thus follows from the statutory structure of the IPCCO, that any fault or deficiency in any practice or procedure, as referred to in Section 8(1)(c), must be a fault or deficiency in practices or procedures which came to the attention of the IPCC when conducting their reviews of reportable complaints.”

(g) “There is no power under the IPCCO for the IPCC to request the public to provide information before the CAPO investigation report has been submitted to it”[8].

5.  Mr Wong, leading counsel for the IPCC, at §4 of his written submissions gives a summary of the IPCC’s case:

(a)  The IPCC decided to consider the Study with the view to getting an overall or broad picture of the public order events (“POEs”) in the time span covered by the Decisions;

(b) That overall or broad picture will assist and facilitate the IPCC in, and is reasonably necessary for, or incidental and/or conducive to, the performance of its functions under ss 8(1)(a)[9] and 8(1)(b)[10] of the IPCCO.  The conduct of the Study is therefore a matter which the IPCC can undertake under s 8(2) of the IPCCO;

(c)  The conduct of the Study also falls within ss 8(1)(c) and 8(2);

(d) The conduct of the Study also falls within s 8(1)(e)[11];

(e)  Mr Wong accepts, and indeed as Mr Mui has explained[12], that insofar as the handling and investigation of complaints against the Police is concerned, there is a two‑tier system in Hong Kong.  Reportable complaints (“RCs”) are firstly handled and investigated by the CAPO. The IPCC is involved in the 2^nd tier, and its function in that regard is as per ss 8(1)(a) and 8(1)(b) of the IPCCO.  But the Study is not an investigation of any individual RC, does not involve any investigation conducted by the IPCC into any of the RCs, and would not reach any findings or conclusions in relation to any RC.  The Study is being prepared to assist the IPCC when the time comes for its members to perform and discharge their duties under s 8(1)(a) and s 8(1)(b);

(f)   The IPCC is therefore acting within and pursuant to its functions and powers under s 8 in conducting the Study, as well as s 30, in preparing and submitting a report of the same to the Chief Executive.

E.      The issues

6.  As explained in Fordham, Judicial Review Handbook (6^th ed, 2012), at §46:

“ Deciding whether one measure is compatible with a prior (superior) measure involves interpreting both.”

7.  Hence, when deciding this application, the Court will have to consider:

(a)  factually what the Decisions are, and related to that, what the Study involves (and in particular, as will become clear later, what the fact‑finding step of the Study involves); and

(b) the proper construction of the relevant provisions of the IPCCO as to the statutory functions and powers of the IPCC.  The focus, in the light of the submissions, is whether the undertaking by the IPCC of the fact‑finding step of the Study is within its power under s 8(2) of the IPCCO to “do all such things that are reasonably necessary for, or incidental or conducive to, the performance of its functions under [IPCCO]”.

F.       The evidence

8.  There are before this Court altogether 4 affidavits:

(a)  the 1^st, 2^nd and 3^rd affidavit of the Applicant dated respectively 4 October 2019, 17 December 2019 and 10 March 2020 (“Lui 1^st”, “Lui 2^nd” and “Lui 3^rd” respectively).  Lui 1^st and Lui 2^nd were filed in support of the leave application.  They of course remain relevant for this hearing.  Lui 3^rd were filed in reply to the affidavit filed on behalf of IPCC in opposition (see below);

(b) the affidavit of Mr Mui Tat Ming dated 18 February 2020 (“Mr Mui” and “Mui’s Affidavit”) filed on behalf of IPCC and in opposition of the application.  Mr Mui is the Deputy Secretary‑General (Operations) (“DSG(OPS)”) of the IPCC.

9.  No oral evidence has been called.

10.  I summarise the material evidence as follows. 

F.1.    The announcement of the Decisions, and the reasons for them

11.  On 9 June 2019, and in the following several months, a number of POEs took place.  They arose out of the Government’s proposed amendment to the Fugitive Offenders Ordinance.  As described by Mr Mui[13], they are unprecedented in terms of the scale, the seriousness and the extremely high level of public concerns expressed over the practice and procedure adopted by the Police in handling such events and their immediate aftermath.

12.  On 25 June 2019, IPCC issued a press release[14] (the “25/6 Press Release”).  It referred to those POEs.  It announced the establishment of a Special Task Force.  It stated that:

“ At the end of the POEs, however, conflicts broke out between the Police and some members of the public. The IPCC was very concerned about these incidents and immediately instructed its Serious Complaints Committee (‘SCC’) to take up the monitoring and reviewing of all complaint investigation reports stemming from these incidents. The Complaints Against Police Office (CAPO) is required to submit to the SCC regular updates on the progress of its investigations. When CAPO conducts meetings and collects evidence, the IPCC will arrange for the attendance of Members and Observers to ensure that the case investigations are conducted in a timely and fair manner.

             Meanwhile, the IPCC Secretariat has promptly established a Special Task Force.  Led by the Deputy Secretary‑General (Operations), the Special Task Force comprises an Assistant Secretary‑General and a number of Senior Vetting Officers with extensive experience in handling complaints arising from POEs.  At the working meeting held earlier, the Special Task Force has requested the Police to provide detailed information such as guidelines on the use of force and the use of weapons; requirements related to the uniform of Special Tactical Squad; as well as the collection, safekeeping and submission of the deployment records of concerned police officers.  The IPCC will also exercise its powers conferred by the IPCC Ordinance to request police officers of various ranks, witnesses, experts or Complainants to attend IPCC interviews to provide detailed information and make clarifications with a view to ascertaining relevant facts to facilitate the review of complaint investigation reports submitted by CAPO.  In addition, IPCC Chairman has written to the Police Management urging the Police to investigate into the display of officers’ identification insignia and to review existing related guidelines.”

13.  Mr Mui is the DSG(OPS) mentioned in the 25/6 Press Release He has been leading the Special Task Force.  As further explained by Mr Mui[15], the work of the Special Task Force is under the supervision of a Steering Group.  The Steering Group itself comprises the Chairpersons of 4 Committees of the IPCC.  Those 4 Committees are the Serious Complaints Committee (“SCC”), the Operations Advisory Committee (“OAC”), the Legal Committee, and the Publicity and Survey Committee.

14.  Also according to the 25/6 Press Release, and confirmed by Mr Mui[16], as at 25 June 2019, 49 RCs and 46 Notifiable Complaints (“NCs”) had been received either directly by CAPO or referred to them via IPCC.

15.  Mr Mui states[17] that at that stage, the IPCC:

“ ... anticipated that there would be more and more complaints arising from the POEs that had already taken place, and the POEs which would or might take place in the times to come. To perform its functions under section 8(1)(a) effectively and efficiently, both in monitoring and observing the investigative process and the review and consideration of investigation reports submitted by CAPO, in relation to RCs made and anticipated, the IPCC took the view that it should apprise itself of the overall or broad picture as to what had in fact happened on a particular day in which a POE had taken place, so that the IPCC could, in the light of that picture, review the investigative processes and each and every investigation report due to be submitted by CAPO in the proper context, with knowledge and information of the factual background relevant to an individual RC addressed in the investigation report in question.”

16.  On 2 July 2019, IPCC issued another press release (the “2/7 Press Release”).  It is an important press release.  It made public and explained IPCC’s intention of carrying out the Study, what the Study was intended to cover, the reason for carrying out the Study, and IPCC’s view of the source of its power to carry out that Study.  It also appealed to the public for information on their side of the story.  I set out its relevant contents[18] as follows:

“ In the course of the last few weeks (between 9 June to 1 July 2019), there had been several large‑scale Public Order Events (POEs), nearly all of which had been peaceful. The exceptions were the events of the early morning of 10 June and the afternoon of 12 June when there were violent clashes with the Police and yesterday going on to the early hours of this morning, when the Legislative Council Complex was violently broken into and subsequently damaged by protesters ... The IPCC therefore proposes to take further steps to strengthen arrangements already in place to deal with the complaints so far received.

First of all, after consultation with the IPCC, the Commissioner of Police (‘the Commissioner’) has informed the IPCC that he has decided that the special team in CAPO dealing with the Reportable Complaints arising from the POEs will now directly report to an Assistant Commissioner, to ensure that these complaints are dealt with effectively and efficiently.

Second, in light of the widespread public concerns the IPCC will proactively make a detailed study of the POEs (‘The Study’). The Study will cover all relevant facts relating to the POEs from 9 June to 2 July 2019, although a special focus of the Study will be the events of 10 June and 12 June when violent clashes occurred, and the event of 1 July when the Legislative Council Complex was broken into, leading [sic] the Police actions after midnight.

The reason for the Study is that the IPCC is unlikely to be able to effectively discharge its statutory functions without a complete picture of the POEs, where all stakeholders, the public and the Police, have had the opportunity to tell their side of the story. The power of the IPCC to undertake this proactive Study is derived from S.8(2) of the IPCC Ordinance [s.8(2) is then cited].

The initial fact‑find work of the Study will be undertaken by a Special Task Force within the Secretariat of the IPCC, led by the Deputy Secretary‑General (Operations). It is expected that Members of the Council will as needed take part in interviews of all stakeholder for the purpose of the Study.

The IPCC has created a dedicated portal (taskforce@ipcc.gov.hk) to accept from the public any information they would like to provide to tell their side of the story. In addition, they may ring the IPCC’s Special Hotline [2862 8200] to provide information or to request for an interview with the IPCC Secretariat, if needed. The IPCC will appeal to the media to provide any photographic or video record of the POEs ...

...

It is the intention of the IPCC that the Study should proceed as quickly as possible and the Secretariat will provide interim reports to the relevant committees of the IPCC and eventually to the Council. The three relevant committees are the Serious Complaints Committee, Operations Advisory Committee and the Publicity and Survey Committee ... It is intended that the Study will aid each of these Committees in their work, as the individual complaints, whether Reportable or Notifiable require the context of an overall picture where all the participants have had their say. The oversight of the work of this Special Task Force will be performed by the three Chairs of these Committees, reporting to the Chairman and the Council.

It is also the intention of the Study to identify areas where police procedures may have been deficient.  As the IPCC proceeds with the Study an effort will be made to engage international experts, including the heads of relevant bodies to advise on how future events might be better handled and how police procedures may be improved, if the Study does show the need for it.  The Council will consider what recommendations are required to be made under Section 8(1) (c) of the Ordinance [s.8(1)(c) is then cited].”

17.  On 5 July 2019, IPCC passed the motion to carry out the Study.  Decision 1 was then made public by the 5/7 Press Release.  Therein an update on what the Special Task Force had done was also given.  The relevant paragraphs of the 5/7 Press Release[19] are as follows:

“ With regard to the Public Order Events in between 9 June to 2 July 2019 (the ‘POEs’), and the subsequent actions taken by the Police, the [IPCC] today held a Special In‑house Meeting, during which all attending Members unanimously passed the motion to proactively conduct a fact‑finding study of the POEs (the ‘Study’) and to submit the report of the Study (the ‘Report’) to the Chief Executive. To perform the Council’s statutory functions, this Report will also be made public.

A Special Task Force has been set up to study the series of events early this month and is now soliciting relevant information from the public through a dedicated e‑mail portal and a special hotline ...

...

The Special Task Force has conducted working meetings earlier with the Police, contacted media organisations for information support, as well as collecting and sorting information submitted by all parties in an effort to restore the full picture of the POEs.  Going forward, meetings with stakeholders, if needed, will be arranged.”

18.  According to the 5/7 Press Release, as at that date, 53 RCs and 68 NCs relating to the POEs had been received.

19.  In the meantime, the number of RCs and NCs continued to climb.  As of 15 August 2019, the number had increased to 166 and 253 respectively[20].

20.  On 16 August 2019, IPCC issued the 16/8 Press Release[21]. It made public Decision 2.  It also gave the public an update of what the Special Task Force had undertaken.  The relevant paragraphs of 16/8 Press Release are as follows:

“ ... [as] the situation is still evolving, the Council unanimously agreed at its meeting today to extend the scope of the fact‑finding Study to cover POEs after 2 July and publish findings in phases ...

   ... Under the oversight of the Steering Group, the Special Task Force has commenced its collection and collation of relevant POEs information as well as holding several working meetings with the Police requesting for information about police actions related to the POEs.  Through press releases, official web site, the media, media interviews and meetings with police staff associations, the Council has proactively appealed to its stakeholders and the public for POEs related information to facilitate the Council to examine and clarify facts for the incidents.  To date, the IPCC has received over 1,200 submissions containing more than 24,000 texts, photos, video clips and hyperlinks.  The Steering Group and the Special Task Force also visited the Police Tactical Unit Headquarters yesterday (15 August) and observed a demonstration of the equipment and weapons used by Anti‑riot Police officers when they are in action.  The IPCC will continue to follow up and request the Police to provide the principles and guidelines for using these weapons, and if necessary to further demonstrate their use, as soon as possible.”

F.2.    What the fact-finding part of the Study entails (and does not entail)

21.  In its press release of 23 August 2019, the IPCC, citing what its Chairman had said, explained that:

“ ...‘The Study will be in three steps: 1) Fact Finding; 2) Assessment; and 3) Recommendations. The IPCC is now inviting overseas experts to form an International Expert Panel (the ‘Panel’) ... To ensure the objectivity of the Study, the Panel will participate in the Assessment and the subsequent Recommendations work for IPCC’s consideration ...’

   As of 22 August, the IPCC has received over 1,300 submissions containing more than 25,000 texts, photos, video clips and hyperlinks.  A total of 183 Reportable Complaints and 273 Notifiable Complaints stemming from the POEs (refer to Annex for latest complaint figures) were received ...”

22.  What that first step of “Fact Finding” involves has been explained by Mr Mui in Mui’s Affidavit.  It involves the collection and collation of relevant POEs information received by the IPCC.  The relevant evidence of Mr Mui is as follows:

“ 37. Insofar as the first step (i.e. the fact finding) is concerned, it refers to the exercise which has been carrying out by the Special Task Force (under the supervision of the Steering Group) ... in collecting and collating relevant POEs information from various sources by various means and through various channels with the view to ascertaining and restoring the overall or broad picture as to what had in fact happened on a particular day in which a POE had taken place and what actions had in fact been taken or not taken by the Police in relation to those POEs, and examining the practice or procedure adopted by the Police in handling such POEs and the immediate aftermath thereof. As of today, the Study has been focusing on the POEs that happened on the following six days (the ‘Incidents Days’) where there were large scale POEs happened and a widespread and serious concerns on the actions or omissions by the Police:-

(a) 9 June 2019;

(b) 12 June 2019;

(c) 1 July 2019;

(d) 21 July 2019;

(e) 11 August 2019;

(f) 31 August 2019.

   38.      The fact‑finding exercise of the Study would enable the Special Task Force to prepare a chronology of events (for the time being, relating to the POEs that happened on the Incident Days), and the IPCC took the view that this would provide a useful context and reference to assist and facilitate the SCC and the OAC when reviewing (with the assistance of the Secretariat) the investigation reports submitted by CAPO in relation to the RCs arising from those POEs covered by the Study, as each individual investigation report may not contain sufficient or adequate details of all the relevant surrounding circumstances and context relevant to the RC specifically addressed in that investigation report.”

23.  Mr Mui then at §§39 and 40 explains why the IPCC has decided to proactively conduct the fact-finding part of the Study at an early stage instead of waiting until after CAPO’s investigation reports of the RCs have been received.  He states a number of reasons.  Those reasons may be summarised as follows:

(a)  it would be easier to collect information closer in time to the events[22];

(b) most of the information and matters so collected are in fact from the police, and the IPCC is merely asking the police to provide them in advance[23];

(c)  IPCC decided to front‑load part of the work due to be done to facilitate expedition[24];

(d) IPCC was asking relevant parties and stakeholders to provide information on a voluntary basis.  No compulsion is involved.  The IPCC considered that an early invitation to the parties and stakeholders for information would facilitate the information holder to identify, locate, preserve and (if they so wish) provide the information to the IPCC at an early stage[25];

(e) Mr Mui then says at §40 that:

“ ... On this occasion, having regard to all relevant circumstances including (among others) the very large scale of the POEs which spanned over a period of time, the large number of people involved, the seriousness of the violent clashes and conflicts between the Police and members of the public that broke out during or at the end of those POEs, the anticipated large number of complaints arising from such POEs, and the IPCC’s perception of the public’s expectation for CAPO’s investigation reports on the RCs arising from such POEs to be reviewed fairly, impartially and expeditiously, the IPCC came to the view that it would be reasonably necessary for, or incidental and/or conducive to, the performance of the IPCC’s functions under the Ordinance to conduct the fact‑finding part of the Study proactively (both in terms of the timing of doing it and the actions that it takes), in a systematic manner and in a way to enable all stakeholders to have the opportunity to be heard, and to produce a report or reports in phases setting out the results of the Study in writing which may be made available not only to the Chief Executive but also to the public at large.”

24.  Mr Mui explains that in addition to the collection and collation of relevant POEs information so as to get an overall or broad picture of the POEs, the fact‑finding part of the Study involves, covers or touches on 4 more aspects, namely (i) to get a better understanding of the equipment and weapons used by anti‑riot police and the related guidelines; (2) to identify areas whether the Police’s practice or procedure might have been deficient; (3) the practice or procedure of Police identification during protests; and (4) the Police practice or procedure in respect of the handling of arrested persons in general, and at in particular at the San Uk Ling Holding Centre.  Mr Mui’s relevant evidence is as follows:

“ 41. Another aspect of the fact‑finding exercise of the Study relates to the acts taken by the IPCC to get a better understanding of how the equipment and weapons used by the anti‑riot police officers work in action and the relevant guidelines of the Police in relation thereto. Such understanding would help the IPCC to review the actions taken and the use of force by the Police as described in the investigation reports to be submitted by CAPO and ask appropriate questions in reviewing and vetting such reports.

42. Apart from the aforesaid, as the IPCC stated in its press releases (which I mentioned earlier above), it was also the intention of the Study to identify areas where the Police’s practice or procedure might have been deficient. The above‑mentioned aspect of the fact‑finding exercise of the Study, touching on the equipment and weapons used by the anti‑riot police officers in action and the relevant guidelines in relation thereto, would also allow the IPCC to identify any possible fault or deficiency in the practice or procedure adopted by the Police in this regard so that the IPCC can make appropriate recommendations in the proper discharge of its function under section 8(1)(c). The Study is therefore a matter which the IPCC can undertake under section 8(2).

43. In addition to the aforesaid, in the events which happened, the Study also touches on the practice or procedure of Police identification during protests. Since about 18 June 2019, the IPCC had raised concern with the Police over the lack of identification of the police officer on duty and, in particular, the identification number of some of the officers of the STC were not visible ...

...

45. As the Study was ongoing and as matters now stand, the IPCC has also decided that the Study would also cover another issue of practice or procedure adopted by the Police in connection with the POEs in question, and it relates to the public concerns over the Police practice or procedure in respect of the handling of arrested persons generally, and that includes the Police handling of arrested persons at San Uk Ling Holding Centre (‘SUL Centre’) ...”

25.  The above deal with what the fact‑finding part of the Study entails.  What Mr Mui says it does not entail are also important.  He says that it is not an investigation of any RC.  No information is being compelled from the public.  Only an overall or broad picture is sought to be restored to assist the IPCC in reviewing the investigation reports.  No fault will be attributed.  No findings or conclusions will be made or reached. Information in effect is being sought from the police in advance.  The IPCC cannot be expected simply to be spoon‑fed.  The IPCC also has the function under section 8(1)(c) to identify any fault or deficiency in the practice or procedure adopted by the Police.  Mr Mui’s relevant evidence is as follows:

“ 40. ... The IPCC does not exercise nor does it have powers to compel the supply of information in relation this Study. It only seeks information voluntarily and scours open source material to inform itself of the situation. What the Study does not involve at all is the actual investigation by the IPCC of any specific RCs, which will remain to be handled by CAPO, with the IPCC’s role in relation thereto being the same as I outlined in Section A above. However, the performance of such a role by the IPCC will be greatly assisted by the Study.

...

52. First, as I explain clearly above, as a matter of fact, the Study is not an investigation of any RCs, and does not involve any investigation conducted by the IPCC into any of the RCs at all. In conducting the Study, the IPCC is only seeking to ascertain the relevant facts of the POEs that took place on the six Incident Days and restore the overall or broad picture of such POEs, with preliminary observations for the sake of scrutinising police practice or procedure including how policing of the POEs could be improved, without attributing faults of any individual police officers or looking into any individual complaints. If a person were to make a complaint to the IPCC (whether through the Special Task Force or otherwise) against the Police or any individual police officers, it would be referred to CAPO to follow up irrespective of whether or not there is already an existing complaint lodged with CAPO.

53. Secondly, the purpose of the fact‑finding part of the Study is to ascertain the relevant facts of the POEs and restore the overall or broad picture of such POEs to assist the IPCC in performing its function to review the investigation reports submitted by CAPO on the RCs, as the IPCC would then be placed in a better position to raise pertinent questions with CAPO relating to such reports for CAPO to carry out such further investigation as the circumstances may warrant and provide clarifications and/or further information. The Study would not come up with any findings and/or conclusions in relation to any specific RCs arising from the POEs that occurred during the relevant period since 9 June 2019 ...

54. Thirdly, as I said earlier above, the majority of the information which the Special Task Force has obtained for the Study was in fact obtained from or through the Police ... Such process of verification involving communication with the Police is in principle similar to what the vetting team of the Secretariat would have done when reviewing the investigation reports ..., save that this time the communication is on the broad picture rather than specific facts of any individual RC ...

55. Fourthly, in order to properly discharge its function under section 8(1)(a), the IPCC must be independent, critical and vigilant when reviewing CAPO’s investigation. The IPCC cannot just be ‘spoon‑fed’ with such information as CAPO might provide and then carry out a desk‑top review based on such information only ...

56. Fifthly, apart from monitoring and reviewing the investigation of RCs by CAPO, the IPCC also has the function under section 8(1)(c) to identify any fault or deficiency in the practice or procedure adopted by the Police that has led to or might lead to RCs and to make recommendations, and the performance of this function is not dependent on there being any RCs already in existence ...”

G.      Consideration of the evidence

26.  I now consider whether Mr Mui’s evidence should be accepted for the purpose of deciding the factual issues before this Court.

27.  The Applicant has no directly personal knowledge of the Decisions or the Study:

(a)  The Applicant’s evidence in Lui 1^st is primarily confined to matters in the public domain, and in particular to a number of public announcements issued by the IPCC;

(b) Mr Mui has himself in Mui’s Affidavit more helpfully produced all the press releases issued by the IPCC in relation to this matter from 25 June 2019 to 20 January 2020.  I have considered all of them;

(c)  In Lui 1^st, the Applicant, with reference to §17 of his Form 86, refers to an article on news.gov.hk dated 20 August 2019.  For the following reasons, I do not find the contents of that article useful, and attach little weight to it:

a.  That article was entitled “IPCC study beyond fact‑finding”;

b.  Therein, the Chief Executive was reported to have said that:

“ ... the [IPCC’s] study on recent large‑scale public order events will go beyond fact‑finding to provide the Government with recommendations on the way forward.

...

Most important of all, it is not just fact‑finding to provide a sequence of facts. It also will provide the Government with recommendations on how to move forward and also to avoid the recurrence of similar incidents.”

c.  In the course of the hearing, I invited Mr Harris to assist this Court on this: to what extent what a third party, albeit the Chief Executive, has reported to have said may be attributed to the IPCC?

d.  Mr Harris’ submission in reply is that if what the Chief Executive has been reported to have said is not correct, the IPCC will be expected to correct it, and that the IPCC has not;

e.  I do not accept that submission, which ignores what Mr Mui has said at §48 of Mui’s Affidavit, that:

“ ... I note that at Form 86 §17, the Applicant relies on what the Chief Executive was supposed to have said on or around 20 August 2019 as to the scope of the Study. I would stress that the scope and contents of the Study were decided solely by the IPCC on its own initiative, and such scope and contents are as I set out in this Affidavit.”

(d)  In Lui 3^rd:

a.  the Applicant makes a number of points (the relevance of certain previous fact‑finding exercises[26], that members of the IPCC involved in any observation may have to abstain from discussing the complaints arising from the events observed[27], that undertaking an investigative role conflicts with IPCC’s statutory role[28], and that it remains possible that the Study may reach findings and results different from those reached by the CAPO[29]). The Applicant also points out that the IPCC’s appeal to the public for information and to tell their side of the story makes the Study different from what the IPCC has done before[30];

b. What the Applicant has said in Lui 3^rd are no more than his comments and observations on Mr Mui’s evidence.  I have nonetheless taken them into account;

c.  Mr Lui however has not put forward his or a different version on the facts in issue. He in fact is not in the position to do so. 

28.  I have considered Mr Mui’s evidence carefully.  At this stage, I do not have the report of the Study (or any draft of the same) with which Mr Mui’s evidence may be compared.  That said, Mr Mui’s as the DSG(OPS) has personal knowledge of what the Study involves (or not involves).  His evidence is consistent with the contemporaneous press releases, is not in any way inherently improbable, and is also internally consistent.  

29.  In the absence of any contrary evidence, and for the reasons set out above, I accept Mr Mui’s evidence in general.  I accept in particular his evidence on the nature of the Decisions, what the fact‑finding step of the Study involves, and what it does not involve, as I have set out above.

H.      Approach when interpreting a statute

30.  Against the facts set out above, I proceed to consider the IPCCO.

31.  I consider first of all the approach to be adopted when interpreting a statute.

32.  In that regard, Mr Harris refers me to Yung Chi Keung v Protection of Wages on Insolvency Board (2016) 19 HKCFAR 469. In that case, Ma CJ explained at §22 that:

“ ... statutory construction requires a purposive approach to be adopted; in other words, the words of a statute must be construed in the light of their purpose. Context of course also plays an important part. However, it must always be borne in mind that context and purpose are not to be seen in isolation. Just as it would be wrong to construe words in a statute without regard to context and purpose, it is equally impermissible to ignore the actual words used in a statute in order to construe its effect. In China Field Ltd v Appeal Tribunal (Buildings) (No 2), Lord Millett NPJ warned of the impermissibility of adopting an approach which would ‘distort or even ignore the plain meaning of the text and construe the statute in whatever manner achieves a result which they [the courts] consider desirable.’ While the plain or natural meaning of the relevant text may not always be clear cut (hence the obvious need to bear in mind as a starting point context and purpose), the actual words used cannot be ignored. The Court is after all an ‘interpreter not a legislator’.”

33.  The above purposive and contextual approach to be adopted when interpreting a statute is not controversial.  It has further been explained by Ma CJ in Town Planning Board v Town Planning Appeal Board (2017) 20 HKCFAR 196 at §29, that:

“ (1) In construing statutory provisions, the court does not merely look at the relevant words. It construes the relevant words having regard to their context and purpose.

(2) The context of the relevant statutory provision should be taken in its widest sense and will of course include the other provisions of the statute. It may also be relevant in any given case to look at the history of the relevant provisions.

(3) Ascertaining the purpose of the statutory provision is obviously relevant, not only to help provide the relevant context, but to give meaning to the words used. In this latter respect, it is to be observed that often the meaning of words by themselves will not be clear unless regard is paid to context and purpose. Words have to be construed but they must not be construed in a vacuum.

(4) In ascertaining the purpose of a statutory provision, the court adopts a flexible and open‑minded approach.  The purpose may be clear from the provision itself or it may be necessary to look at the Explanatory Memorandum to the bill introducing the provision or a ministerial or official statement may be utilised for this purpose.”

34.  Mr Harris has made a number of submissions to me on the role of the long title of an Ordinance as an interpretation aid:

(a)  Mr Harris refers to Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 in support of his submission at §13 that “It is well‑established that the purpose declared in the long title of an Ordinance governs the interpretation of the Ordinance” (emphasis added); 

(b)  I do not accept that proposition;

(c)  In Chow Siu Shek, the Court of Final Appeal was concerned with the interpretation of ss 21(1) and 25(3) of the Medical Registration Ordinance.  Bokhary PJ, having cited with approval a statement in Bennion on Statutory Interpretation (3^rd ed, 1997) at p 424, observed at p 154 B‑C that:

“ When the true position under a statute is to be ascertained by interpretation, it is necessary to read all of the relevant provisions together and in the context of the whole statute as a purposive unity in its appropriate legal and social setting. Furthermore it is necessary to identify the interpretative considerations involved and then, if they conflict, to weigh and balance them.”

(d)  Bokhary PJ then examined various provisions in Cap 161.  He referred to the “overall purpose” of the Ordinance as indicated by its long title.  He then identified 5 considerations (striking a balance, interpretation in the context of other statutes in pari materia, avoiding circularity, according meaning and substance to each provision, and reluctance to find a radical change by a side‑wind) which he held determined the result of that case;

(e)  Whilst the long title of an Ordinance is one of the relevant matters to be taken into account when interpreting a statute and when considering in that context the what the “overall purpose” of the Ordinance is, nowhere did the learned PJ in Chow Siu Shek observe that the long title of Cap 161 “governs” the interpretation of that Ordinance.  The purpose of a statute or a statutory provision may indeed be gathered from a number of different sources, or may even be evident from the provision itself [31];

(f)  With respect, my view is that it is an overstatement for Mr Harris to submit that the long title “governs” the interpretation of the Ordinance.  Indeed, in the course of his oral submissions, Mr Harris informed this Court that he would no longer seek to rely on that part of his submissions;

(g)  In his 2^nd Supplemental List of Authorities filed the date before the hearing, Mr Harris refers to Black‑Clawson International LTd v Papierwerke Waldhof‑Aschaffenburg AG [1975] AC 591.  He relies on the following observations of Lord Simon at 647F in support of his submission that the long title is an important aid to statutory interpretation:

“ The statutory objective is primarily to be collected from the provisions of the statute itself. In these days, when the long title can be amended in both Houses, I can see no reason for having recourse to it only in case of an ambiguity — it is the plainest of all the guides to the general objectives of a statute. But it will not always help as to particular provisions.”

(h)  While the long title may be helpful in in the way explained in Black‑Clawson, those observations of Lord Simon in my view also highlight the limitations on the use of the long title as an interpretation aid — that it can only be a guide to the general objectives of a statute, and will not always help as to particular provisions.  In Craies on Legislation (11^th ed, 2017), at §§26.1.6 and 26.1.6.1, it is explained that:

“ ... It is generally thought helpful to readers both within Parliament and without for a long title to do no more than give a concise flavour of the principal purpose of the Bill, and that is unlikely to be of much assistance in cases of detailed construction.

Despite this, long titles will be considered by the courts and will sometimes be helpful ... Even when doing this, however, the courts will bear in mind a number of limitations on the permissible or safe use of the long title [Footnote 23].”

In Footnote 23, it is said that:

“ See, for example, the following dictum of Longmore LJ in R. (L) v Metropolitan Police Commissioner [2007] EWCA Civ. 168 at [33] — ‘It has been said by Lord Simon of Glaisdale that the long title of a statute is the plainest of all the guides to the general objectives of a statute, see Black‑Clawson ... The principle cannot, however, be taken too far since, if the statutory provision is clear, it would be wrong to adopt a restrictive interpretation merely as a result of the long title...’.”

(i)  To similar effect is the following passage from Bennion on Statutory Interpretation (7^th ed, 2017) at §16.3, that:

“ The long title may be used as an aid to construction but cannot of itself override the clear provisions of the statute ... An inconsistency between the long title and operative provisions may arouse doubt, in which case it should be resolved in the usual way applying all relevant interpretative criteria.”

35.  Also relevant when construing a statutory provision, and in the context of the present case are ss 19 and 40(1) of the Interpretation and General Clauses Ordinance, Cap 1 (“Cap 1”), which Mr Wong has drawn to this Court’s attention.  Those 2 sections provide that:

“ 19. An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.

...

   40(1).  Where any Ordinance confers upon any person power to do or enforce the doing of any act or thing, all such powers shall be deemed to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.”

I.       The establishment of IPCC

36.  The establishment of the IPCC can be traced back to 1974 when the Commissioner of Police (the “Commissioner”) set up CAPO to investigate public’s complaints against the Police.  In 1977, the unofficial members of the then Executive and Legislative Councils who were responsible for handing police and security matters were invited to monitor CAPO complaint investigation.  Due to the subsequent increase in work load, the government set up an independent police complaints monitoring committee which was renamed the Police Complaints Committee.  Eventually, on 1 June 2009, the IPCC as we know it now was established as an independent statutory body under the IPCCO.

J.       The IPCCO

J.1.    The legislative history

37.  On 11 July 2007, The Independent Police Complaints Council Bill (the “Bill”) was introduced into the Legislative Council.  The Bill sought to incorporate the then IPCC as a body corporate and to provide for its functions, powers and operation.  On 5 October 2007, a Bills Committee (the “Bills Committee”) was formed to study the Bill.

38.  The Applicant has placed before me two documents, namely (1) LC Paper No CB(2)243/07-08(03) entitled “Bills Committee on Independent Police Complaints Council Bill” prepared by the Security Bureau in November 2007 (the “SB Paper”), and (2) LC Papers No CB(2)2499/07-08, being the Report of the Bills Committee on the Bill dated 3 July 2008 (the “Bills Committee Report”).

39.  The admissibility of the SB Paper and Bills Committee Report under the Pepper v Hart rules are in dispute.  I will return to that issue below.  What is however not in dispute is that, as set out at §§2‑5 and 12 of the SB Paper, the two‑tier police complaints system had been in place even before the incorporation of the IPCC, and that the IPCC Bill sought to codify that system.  As I have mentioned above, it is also Mr Mui’s evidence that insofar as the handing and investigation of complaints against the Police is concerned, there is a two‑tier system.  I will come back to this two-tier police complaints system.

J.2.    An overview of the IPCCO

40.  An overview of IPCCO will facilitate its understanding.

41.  The Long Title of IPCCO (the “Long Title”) reads as follows:

“ An Ordinance to incorporate the existing Independent Police Complaints Council; to provide for the Council’s functions in monitoring the handling and investigation of reportable complaints by the Commissioner of Police; to provide for the Council’s powers relating to its affairs and operation; to provide for the appointment of observers in relation to reportable complaints; and to provide for connected matters.”

42.  Omitting Part 7, which has been spent, IPCCO comprises 6 Parts:

(a)  Part 1 contains the Short title and the interpretation section (s 3);

(b)  Part 2 (ss 4‑7) governs the incorporation of IPCC;

(c)  Part 3 (ss 8‑32) governs the functions of the IPCC.  It comprises s 8 and in addition 24 sections divided into 4 Divisions:

a.  S 8 sets out the functions of IPCC

b.  Division 1 (ss 9‑16) sets out functions relating to the Commissioner of Police’s categorization of complaints;

c.  Division 2 (ss 17‑21) sets out functions relating to investigation reports or interim investigation reports on RCs;

d.  Division 3 (ss 22‑30) sets out other functions and powers which the IPCC has;

e.  Division 4 (ss 31‑32) sets out the IPCC’s powers relating to its affairs;

(d)  Part 4 (ss 33‑38) governs the observers scheme;

(e)  Part 5 (ss 39‑41) provide for confidentiality and protection of the IPCC and its members;

(f)  Part 6 comprises transactional and savings provisions.

43.  Part 3, and in particular Section 8, Divisions 1, 2 and 3 thereof, contain the most important provisions for our present purpose.

J.3.    Section 8 of the IPCCO

44.  Section 8(1) sets out the 6 functions of the IPCC.

45.  Section 3 of the IPCCO defines “function” as including “a power and a duty”.

46.  S 8 reads:

“ (1) The functions of the Council are—

(a) to observe, monitor and review the handling and investigation of reportable complaints by the Commissioner, and to make recommendations (as the Council considers appropriate) to the Commissioner or the Chief Executive or both of them in respect of the handling or investigation of reportable complaints;

(b) to monitor actions taken or to be taken in respect of any member of the police force by the Commissioner in connection with reportable complaints, and to advise (as the Council considers appropriate) the Commissioner or the Chief Executive or both of them of its opinion on such actions;

(c) to identify any fault or deficiency in any practice or procedure adopted by the police force that has led to or might lead to reportable complaints, and to make recommendations (as the Council considers appropriate) to the Commissioner or the Chief Executive or both of them in respect of such practice or procedure;

(d) to review anything submitted to it by the Commissioner pursuant to this Ordinance;

(e) to promote public awareness of the role of the Council; and

(f) (without limiting the generality of the foregoing) any function conferred on it by or under this or any other Ordinance.

(2) The Council may do all such things that are reasonably necessary for, or incidental or conducive to, the performance of its functions under this Ordinance.”

J.4.    SS 8(1)(a) and 8(1)(b), and the concept of “reportable complaints”

47.  Out of those 6 functions set out in s 8(1), 2 (ie s 8(1)(a) and s 8(1)(b)) relates expressly to RCs.  The other 4 do not.

48.  On top of the functions (and powers and duties) set out in s 8, the IPCC has further certain express powers under Divisions 2 and 3 of Part 3, and Part 4 (Part 4 relates to the observers scheme, which we are less concerned with).

49.  Relevantly, RC is defined in s 3 as meaning “a complaint categorized as a reportable complaint in accordance with section 11”. Under s 11, certain complaints must be categorized as RCs.  They are, in gist, complaints by members of the public which are not vexatious or frivolous and are made in good faith, and which relate to the conduct of a member of the police force while on duty (or of a member who identified himself as such while off duty), or which relate to any practice or procedure adopted by the police force.

50.  A RC is to be contrast with a NC.  A NC is defined in s 3 as meaning a complaint categorized as such in accordance with section 14.  In gist, a complaint received by the Commissioner must be categorized as a NC if it is neither a RC nor a complaint referred to in s 10.  S 10 relates to certain specific types of complaints which we are not concerned with.

51.  Under s 9(1), the Commissioner must regularly submit to the IPCC a list of RCs and NCs.  The contents of those lists are governed by ss 9(2) and 9(3).  If the IPCC is of the view that any NC should be categorized as a RC, it may advise the Commissioner of its opinion, who must have regard to such opinion and reconsider the categorization.

52.  Concentrating upon RCs:

(a)  the Commissioner must, as soon as practicable after completing the investigation of a RC, submit to the IPCC an investigation report (s 17(1));

(b)  if the investigation of a RC is not completed within 6 months, an interim investigation report has to be submitted (s 18(1)(a));

(c)  the contents of an investigation report and interim investigation report are governed by the IPCCO;

(d)  in the case of an investigation report, it must contain, inter alia:

a.  a summary of the investigation (s 17(2)(a))

b.  a finding of facts (“對事實的裁斷”) in relation to the complaint and the evidence in support of the finding (s 17(2)(b));

c.  the classification of the complaint, and the reasons for the classification (s 17(2)(c));

d.  an account of the action taken or to be taken by the Commissioner in connection with the complaint;

(e)  under s 3, the classification (分類) of a complaint means “the classification after investigation by the Commissioner of a reportable complaint as one that is (a) substantiated; (b) substantiated other than reported; (c) not fully substantiated; (d) unsubstantiated; (e) false; (f) no fault; (g) withdrawn; (h) not pursuable; (i) curtailed; (j) informally resolved; or (k) of such other description as agreed between the Council and the Commissioner.

53.  S 19 in Division 2 of Part 3 is an important section.  S 19(1) stipulates that:

“ (1) The Council may, in relation to an investigation report submitted under section 17, advise the Commissioner of—

(a) its recommendation on the classification of the complaint;

(b) its recommendation on the Commissioner’s handling or investigation of the complaint;

(c) its recommendation on any fault or deficiency identified in any practice or procedure adopted by the police force;

(d) its opinion on the action taken or to be taken in respect of a member of the police force by the Commissioner in connection with the complaint; or

(e) its recommendation on the report other than those mentioned in paragraphs (a), (b) and (c).”

54.  S 20 governs the IPCC’s power to conduct interview for the purpose of a RC.  The extent of that power is dependent upon whether an investigation report (or just an interim investigation report) has been delivered.  Ss 20(1) and (2) read:

“ (1) At any time after an investigation report has been submitted to the Council under section 17, the Council may, for the purpose of considering the report, interview any person who is or may be able to provide information or other assistance to the Council in relation to the report.

(2) At any time after an interim investigation report has been submitted to the Council under section 18, the Council may, with the consent of the Commissioner and for the purpose of considering the report, interview any person who is or may be able to provide information or other assistance to the Council in relation to the report.”

       Such interviews must be conducted in private (s 20(4)), and record must be kept (s 21(1)).

55.  Division 3 of Part 3 set out a number of other functions and express powers of the IPCC:

(a)  The IPCC may require the Commissioner to provide any information or material relating to a RC (s 22(1)(a)) and to clarify any fact, discrepancy or findings relating to a RC (s 22(1)(b));

(b)  The IPCC “may require the Commissioner to investigate (whether or not there has been any previous investigation) a reportable complaint” (s 23(1));

(c)  A member of the IPCC may at any time and without prior appointment attend an interview conducted by the Commissioner in respect of a RC, and observe the collection of evidence by the Commissioner in the investigation of a RC (s 25(1));

(d)  Submission of statistics and reports may also be requested under s 27, that:

“ The Council may require the Commissioner—

(a) to compile and submit to the Council statistics of the types of conduct of members of the police force that have led to reportable complaints; and

(b) to submit to the Council a report on any action taken or to be taken by the Commissioner in respect of a recommendation of the Council made under section 8(1)(a) or (c).”

56.  S 30 empowers the IPCC to “make such reports to the Chief Executives as it thinks necessary”.

J.5.    S 8(2)

57.  I deal with s 8(2) first before I come back to the other subsections under s 8(1).

58.  I have reproduced s 8(2) above.

59.  One core dispute between the parties relates to the width of s 8(2).

60.  Mr Harris’ main submission in that regard[32] is that s 8(2):

“ is a general provision providing the power for the IPCC to discharge its statutory functions. It must therefore be read together with the functions referred to in section 8(1).”

61.  I do not find such a general and sweeping statement helpful.  Mr Harris has also cited no authority explaining or illustrating how in his submission the so‑called “general provision” should be “read together” with s 8(1).

62.  Mr Wong has referred me to a number of authorities relevant to the interpretation of that subsection.  I consider them below.

63.  I have set out s 40(1) of Cap 1 above.  The conferment of a power shall be deemed to confer also “all such powers ... reasonably necessary to enable the person to do ... the act or thing”.

64.  One immediately notes that s 8(2) of the IPCCO goes beyond the parameter of “reasonably necessary”, and extends to “...all such things that are reasonably necessary for, or incidental or conductive to, the performance of ” the IPCC’s functions under the IPCCO.

65.  In City of Sydney v Streetscape Projects (Australia) Pty Ltd (2011) 94 IPR 35, Einstein J was interpreting s 23 of the Local Government Act 1993 (NSW), which permitted the city to “do all such things” that are “supplemental”, “incidental” or “consequential” to the performance of its functions.  The learned judge observed that “these words are of the widest import”[33].

66.  In Metro Transport Sydney Pty Ltd v Council of the City of Sydney (2009) 210 LGERA 64:

(a)  Biscoe J of the Land and Environment Court of New South Wales was interpreting s 104P(4) of the Transport Administration Act 1988 (NSW), which provided that:

“ Development for the purposes of a light rail system includes anything that is incidental to the carrying out of any such development.”

The learned judge observed at §23 that:

“ In my opinion, something is incidental to the carrying out of the development of the Monorail if it is reasonably necessary to effectuate that purpose. This notion of ‘incidental’ has been adopted in the constitutional, corporations and administrative law contexts and I adopt it by analogy. However, the rather strong adjective ‘necessary’ here does not mean strictly necessary. Rather, it means that something can reasonably be characterised as tied to achieving that purpose. It is a question of degree ....”

(b)  Having then referred to Grannall v Marrickville Margarine Pty Ltd (1995) 93 CLR 55 and Cunliffe v Commonwealth (1994) 182 CLR 272, the learned judge observed at §27 that:

“ 27. Two propositions emerge from these statements. First, the notion of an incidental power is purposive. Such things are incidental as are necessary to effectuate the main purpose of the power. Secondly, whilst the word ‘necessary’ does not mean strictly necessary, an issue of degree arises such that the matter claimed to be incidental can reasonably or sufficiently be characterised as tied to achieving the purpose.

...

29. The notion of incidental powers had earlier developed with respect to the ultra vires doctrine in relation to corporations. In the frequently cited cases of Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 (HL) Lord Selborne LC said at 478:

‘ ... whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.’

Similarly, Lord Blackburn said at 481:

‘ ... that those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited.’

30. Thus, the same two principles emerge.  The notion is purposive, and it involves a characterisation assessment as to whether what is said to be incidental may reasonably be regarded as being such.”

67.  In his written reply, Mr Harris does not seek to argue against Metro Transport.  He merely seeks to highlight §§31 to 32 thereof[34], which in my view do not materially add anything to the paragraphs already cited.

68.  In Re Bairnsdale Food Products Ltd (in liquidation) [1948] VLR 264, Fullagar J was concerned about the powers of a liquidator in a members’ voluntary winding‑up to do all such other things as were necessary for winding up the affairs of the company and distributing its assets.  The learned judge observed at p 267 that:

“ It is well established that the word ‘necessary’ in such a context is not to be narrowly construed: everything that a reasonable man might consider necessary is covered.”

69.  In Small v Smith (1884) 10 App Cas 119, the House of Lords was concerned about whether a certain bond of corroboration granted by the directors of a company was ultra vires.  Lord Selborne LC observed at p 129 that:

“ Now I entirely adhere to what was said in this House in the case of Attorney-General v. Great Eastern Railway Company, that when you have got a main purpose expressed, and ample authority given to effectuate that main purpose, things which are incidental to it, and which may reasonably and properly be done and against which no express prohibition is found, may and ought, primâ facie, to follow from the authority for effectuating the main purpose by proper and general means.”

70.  I find the case of Hazell v Hammersmith and Fulham London Borough Council (Divisional Court and Court of Appeal [1990] 2 QB 697, and House of Lords [1992] 2 A.C. 1), and the approach adopted by the courts, enlightening:

(a)  In that case, the issue before the courts was whether, in the absence of any express power authorising the Council to do so, the Council was within its power under s 111(1) of the Local Government Act 1972 to enter into certain swap transactions;

(b) S 111(1) of the Local Government Act 1972 stipulated that:

“ Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act ... a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.”

(c)  The Queen’s Bench Divisional Court (Woolf LJ and French J) observed at p 722F to p 723A that:

“ The fact that subsection (1) is expressly made subject to ‘the provisions of this Act’ make it clear that it is important to construe section 111(1) in its context. The reference to expenditure, borrowing or lending, etc., within the brackets in the subsection do not themselves confer any power to expend, borrow or lend money, etc., but only make it clear that the fact that those activities are involved does not prevent the activities being within the power of the authority which are authorised by this subsection.

The critical part of the subsection are the words ‘calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.’ Before the subsection can authorise an activity which is not otherwise authorised there must be some other underlying function which is authorised, to the discharge of which, the activity will facilitate or be conducive or incidental.

What is a function for the purposes of the subsection is not expressly defined but in our view there can be little doubt that in this context ‘functions’ refers to the multiplicity of specific statutory activities the council is expressly or impliedly under a duty to perform or has power to perform under the other provisions of the Act of 1972 or other relevant legislation.  The subsection does not of itself, independently of any other provision, authorise the performance of any activity.  It only confers, as the sidenote to the section indicates, a subsidiary power.  A subsidiary power which authorises an activity where some other statutory provision has vested a specific function or functions in the council and the performance of the activity will assist in some way in the discharge of that function or those functions.”

(d)  When the case reached the House of Lords, Lord Templeman said at p 29B‑G that:

“ In Attorney-General v. Great Eastern Railway Co. (1880) 5 App.Cas. 473, Lord Blackburn said, at p. 481:

‘ where there is an Act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorise is to be taken to be prohibited; . . .’

In the same case Lord Selborne L.C. said, at p. 478, that the doctrine of ultra vires:

‘ ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.’

In the same vein Lord Blackburn said, at p. 481:

‘ those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited.’

Section 111 embodies these principles.

I agree with the Court of Appeal [1990] 2 Q.B. 697, 785C that in section 111 the word ‘functions’ embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it.  Those activities are its functions.  Accordingly a local authority can do anything which is calculated to facilitate or is conducive or incidental to the local authority’s function of borrowing.”

71.  In Attorney General ex relatione Lewis v Lower Hutt City [1964] NZLR 438, the decision under challenge was the right of the respondent to add a small quantity of sodium silico fluoride to the water supply of the city.  At p 462, McCarthy J of the Court of Appeal observed that:

“ As the issue is one of the extent of the powers of a local authority incorporated under the Municipal Corporations Act 1954, it is desirable to state at the outset how such powers arise and how they should be interpreted. A municipal corporation is a creation of statute. It has no powers at all except those conferred by the Act which creates it or by some other statute which brings specific additional powers. But in determining what powers actually are conferred by legislation, the Courts will consider the corporation as having, not only the powers expressly stated, but also ‘whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorized’: Lord Selborne in Attorney-General v Great Eastern Railway Co. (1880) 5 App. Cas. 473, 478; Dundee Harbour Trustees v D. & J. Nicol [1915] A.C. 550, 570. Further, in deciding what can fairly be regarded as incidental to express powers, the Courts do not think narrowly. They bear in mind the public nature of the obligations of a local body and the requirements of its community, and they take a liberal view of the power under consideration ...”

72.  I have considered the above authorities cited to me by Mr Wong.  I find them helpful in assisting this Court in construing the scope of s 8(2).  The Applicant has not cited to me any contrary authorities. 

73.  I have considered in the present context the Long Title.  I have considered it as a guide to the general purpose of the IPCCO.  I find its use limited when it comes to the interpretation of s 8(2).

74.  What I gather from the authorities discussed above are as follows:

(a)  I contrast s 40(1) of Cap 1 (“reasonably necessary”) with s 8(2) of the IPCCO (“reasonably necessary for, or incidental or conducive to”). The latter includes words of the widest import.  This to me is an indication that the Legislature has intended by s 8(2) to confer upon the IPCC wide general powers in carrying out its statutory functions under the IPCCO;

(b)  One may call those powers “ancillary” powers, as Mr Harris seeks to do at §24 of his written reply.  But labelling is not useful.  Calling those powers “ancillary” begs the question as to what the scope of such “ancillary” powers is;

(c)  The powers under s 8(2), though conferred by words of the widest import, are not without limits.  They are firstly confined to “the performance of [IPCC’s] functions under [the IPCCO]”.  In that sense, the construction of s 8(2) is purposive and contextual.  The word “functions” there embraces all the functions, duties and powers of IPCC, the sum total of the activities the Legislature has entrusted to it;

(d)  Whether the exercise of a particular function, power or duty is within the performance of IPCC’s functions under the IPCCO is a question of degree.  This goes to the second limit — the exercise of those powers cannot be too far removed from the discharge of the function(s) concerned.  Various formulation has been put forward in this regard: “whether reasonably or sufficiently be characterised as tied to achieving the purpose”, “reasonably connected to making the relevant grant effective”, “everything that a reasonable man might consider necessary”, “whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised ... (unless expressly prohibited)”, and “those things which ... may reasonably and properly be done under the main purpose, though they may not be literally within in”.  All those formulations however points to this.  The courts when deciding what can fairly be regarded as being incidental or conducive to express functions or powers do not think narrowly.  In the Hong Kong context, one bears in mind s 19 of Cap 1, that the provision concerned “shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit”;

(e)  I will apply the above when deciding this application.

J.6.    S 8(1)(c)

75.  I come back to s 8(1)(c).

76.  I have reproduced s 8(1)(c) above. 

77.  One important issue is whether, as Mr Harris contends, “the intention of Section 8(1)(c) is to enable the IPCC to identify any fault or deficiency in police practice or procedure which comes to its notice as a result of its monitoring and oversight of CAPO complaints”, and that “any fault or deficiency in any practice or procedure, as referred to in Section 8(1)(c), must be a fault or deficiency in practices or procedures which came to the attention of the IPCC when conducting their reviews of reportable complaints” (emphasis added).

78.  The corollary of Mr Harris’ submission, if correct, is that unless the IPCC has somehow, “when conducting their reviews of reportable complaints”, become aware of certain faults or deficiencies in any practice or procedure adopted by the police, and even though the IPCC has otherwise become aware of the existence of those faults or deficiencies, the IPCC cannot perform its function under s 8(1)(c) to identify those faults and deficiencies and make commendations thereon.  This is in my view quite an absurdity.

79.  I have considered the Long Title again in the context of this submission of Mr Harris.  I have considered the general purpose of the IPCCO indicated thereby.  I do not find that general purpose helpful when it comes to the specific interpretation of s 8(1)(c).  In any event, the Long Title contains also the words “to provide for connected matter”.

80.  I have discussed ss 8(1)(a) and 8(1)(b) above.  Those two sections are to be contrast with s 8(1)(c).  Ss 8(1)(a) and 8(1)(b) relate expressly to RCs.  S 8(1)(c) does not.  This distinction is clear.  The Long Title cannot of itself override that.  I see no reason why words which are not there should be to read into s 8(1)(c) so as to confine its operation to the manners as contended for by Mr Harris. This Court is an interpreter, not a legislator.

81.  S 8(1)(c) relates to “any” fault or deficiency.  It does not just cover fault or deficiency “that has led to” RCs, but also fault or deficiency that “might lead to” RCs.  

82.  If Mr Harris’ interpretation were correct, all the other 4 functions (under ss 8(1)(c) to 8(1)(f)) which do not expressly relate to RCs would also have to be impliedly qualified in the same way.  I see no basis for that.  In this regard, I have considered the following specific matters:

(a)  In respect of s 8(1)(d) specifically:

a.  the function is to review anything submitted to the IPCC by the Commissioner pursuant to the IPCCO;

b.  I have set out s 27 above.  The statistics requested under s 27(a), once provided, would according to the natural meaning of s 8(1)(d) be within its scope for IPCC to review;

c.  the request for statistics under s 27(a) is a general one.  It is not restricted to statistics of any “fault or deficiency in practices or procedure which came to the attention of the IPCC when conducting their reviews of reportable complaints”.  Yet, as Mr Harris has accepted in the course of the hearing, such statistics can be used by the IPCC for the purpose of performing its function under s 8(1)(c);

d.  the combined effects of s 8(1)(c), s 8(1)(d) and s 27 are quite inconsistent with the interpretation which Mr Harris is contending for;

(b)  In respect of s 8(1)(e), I do not see how the promotion of the public awareness of the role of the IPCC could be linked to the existence of any RCs, or to the monitoring of the handling and investigation of RCs by the Commissioner.

83.  I have discussed the express powers which the IPCC has in respect of RCs.  I have in particular reproduced s 19 above:

(a)  S 19(1)(c) specifically empowers the IPCC to, in relation to an investigation report submitted on a RC, advise the Commissioner of its recommendation on any fault or deficiency identified in any practice or procedure adopted by the police force;

(b)  S 19(1)(e) is even wider, and empowers the IPCC to, in relation to an investigation report submitted on a RC, advise the Commissioner of its recommendation on the report other than those matters specifically mentioned in ss 19(1)(a), (b) and (c);

(c)  The limited power under s 8(1)(c) as contended for by Mr Harris has been comprehensively covered by s 19(1)(c) and s 19(1)(e).  Mr Harris’ contention, if correct, would have rendered s 8(1)(c) superfluous.  Indeed, in the course of the hearing, Mr Harris accepted that the effect of his contention is such that the deletion of s 8(1)(c) would have no effect upon the scope of IPCC’s functions under the IPCCO. He sought to justify that by submitting that as a matter of the structure of the IPCCO, s 8(1)(c) provides for the function concerned in general, whereas s.19 goes to the specifics, and that they are in effect the same.  I do not accept that submission.

84.  In my view, Mr Harris’ interpretation of s 8(1)(c) is not warranted by the Long Title, inconsistent with the plain meaning of s 8(1) in general and s 8(1)(c) in particular, inconsistent with structure of the IPCCO, would lead to absurdity, and would lead to s 8(1)(c) being entirely superfluous. 

85.  I reject Mr Harris’ contention in this regard.  I accept Mr Wong’s submission[35] that the function of the IPCC under s 8(1)(c) is separate and independent from s 8(1)(a) (and s 8(1)(b)) or the existence or investigation of a RC.

K.      Discussion of the main issue

86.  Having considered the evidence and the legal framework, I now turn to the main issue as to whether the Decisions and the Study (and in particular the fact‑finding step thereof) are ultra vires.

87.  Mr Harris has placed a lot of emphasis on the fact that the IPCC has called the Study an “proactive” and “fact‑finding” one.  He also refers to 2/7 Press Release wherein it was said that the Study“will cover all relevant facts relating to the POEs”.  He submits that the Study would not just be collecting and collating of information, but would involve the assessment of the same.  He submits further that conclusions would also be reached, which might potentially be inconsistent with those reached by the CAPO.

88.  Again, labelling is not helpful.  What is important is (1) for this Court to consider the evidence before it so as to decide what the Decisions are and what the Study involves (and does not involve), and then (2) in the light of that decide whether what has been decided and undertaken by the IPCC are ultra vires.

K.1.   No investigation of any RC

89.  Mr Mui has stated on oath that as a matter of fact, the Study is not an investigation of any RCs, does not involve any investigation into any of the RCs at all, and will not come up with any finding or conclusion in relation to any individual RC.  No fault of any individual officer would be attributed.  Investigation of the RCs remains to be handled by the CAPO.  

90.  I accept Mr Mui’s evidence in this regard. There is nothing amongst the press releases which is inconsistent with that.

91.  The issue as to whether the IPCC has any power (express or implied) to conduct any fact‑finding investigation into a RC is therefore not engaged.

92.  In my view, the contention made by the Applicant at §37 of his Form 86 (ie “The Decisions to proactively conduct a fact‑finding study on public order events (i.e. the Study) is essentially an investigation conducted by IPCC, independent from the review/monitor of CAPO’s investigation of reportable complaints”) is factually not made out.

K.2    No compulsion of information

93.  Mr Mui has also stated that the IPCC “does not exercise nor does it have powers to compel the supply of information” in relation to the Study.  All information from the public has been voluntarily sought.

94.  Hence, the issue as to whether the IPCC has the power (express or implied) to compel information is also not engaged.

K.3.   No evidence of any interview conducted

95.  I have set out above the limited powers the IPCC has to conduct and attend interviews.

96.  In the 2/7 Press Release, it was said that “It is expected that Members of the Council will as needed take part in the interviews of all stakeholder for the purpose of the Study”.

97.  The words “as needed” in the 2/7 Press Release are noted.  In Mui’s Affidavit, no interview has been referred to.

98.  On the basis of the evidence before me, the issue as to the limit of the IPCC’s power to conduct interview is also not engaged.

K.4.   What the Decisions and the Study are

99.  I can now concentrate upon what the Decisions and the Study are.

100.  The Decisions are to conduct the Study.  Whether the Decisions are ultra vires is dependent upon what the Study is.

101.  The Study involves 3 steps: (1) Fact‑finding; (2) Assessment, and (3) Recommendation.

102.  The focus of the challenge is the fact‑finding step.

103.  I have summarised above Mr Mui’s relevant evidence.  The important points relevant to that fact‑finding step may be understood and highlighted from 2 perspectives:

(a)  Regarding RCs and IPCC’s functions under ss 8(1)(a) and (b) (the “RC Prospective”):

a.  that the IPCC, in anticipation of the increasing number of complaints arising from the POEs, decided to carry out the Study[36];

b.  the Study was to be front-loaded for specific reasons, primarily to facilitate collection of information and expedition[37];

c.  the purpose of the Study is to get an overall or broad picture of the POEs concerned, which picture will assist and facilitate the IPCC (and is reasonably necessary for / incidental to / conducive to) in the performance of its duties under ss 8(1)(a) and (b) in due course[38];

d.  through press releases, official web site, the media, media interviews and meetings with police staff associations, the Council has proactively appealed to its stakeholders and the public for POEs related information[39];

e.  as at 16 August 2019, the IPCC has received over 1,200 submissions containing more than 24,000 texts, photos, video clips and hyperlinks;

f.  another aspect of the fact‑finding step is to get a better understanding of the equipment and weapons used by the Police and the related guidelines, which understanding would help the IPCC to review the investigation reports to be submitted by CAPO;

(b)  Regarding police practice or procedure and IPCC’s function under s 8(1)(c) (the “Practice and Procedure Perspective”):

a.  the Study covers a consideration of the handling by the Police of the POEs concerned;

b.  the matters covered were the equipment and weapons used by the Police and the related guidelines, the Police practice and procedure of Police identification, and of the handling of arrested persons in general, and at in particular at the San Uk Ling Holding Centre;

c.  the Study would allow the IPCC to identify any possible fault or deficiency in the practice or procedure adopted by the police so that the IPCC can make appropriate recommendations.

K.4.(a)        The RC Perspective 

K.4.(a)(i)     Two features

104.  Two features stand out.  The first is that appeals are proactively make to all stakeholders and members of the public for submission of information.  The second is timing.  The step is front‑loaded. It is undertaken before investigation reports have come in (or whilst investigations reports are still coming in). 

105.  Despite what the fact-finding step of the Study is not (see in particular Section K.1. above), the remaining question is whether these two features of the Study nonetheless render the Decisions and the undertaking of the Study ultra vires.

106.  In my view, they do not.

107.  At §41 of his submissions, Mr Harris submits that:

“ ... there is no power under the IPCCO for the IPCC to request the public to provide information before the CAPO investigation report has been submitted to it.”

To the extent that Mr Harris is there stating that there is no express power on the face of the IPCCO for the IPCC to do that, that may be a correct statement. 

108.  But the IPCC has powers under s 8(2) to “do all such things that are reasonably necessary for, or incidental or conducive to, the performance of its functions” under the IPCCO.  The IPCC relies on them.

109.  I have considered the law relevant to the interpretation of s 8(2).  I have concluded that the Legislature has intended by s 8(2) to confer upon the IPCC wide general powers in carrying out its statutory functions under the IPCCO.

110.  The IPCC invokes the powers under s 8(2) in anticipation of the large number of ICs expected to be received from the CAPO.  An overall or broad picture is sought to be reconstructed, which is intended to be used to assist the facilitate the consideration of investigation reports when received, so that they could be reviewed effectively and in the proper context, so that appropriate questions could be asked.

111.  So use of the powers by the IPCC under s 8(2) (as explained by Mr Mui in Mui’s Affidavit) is in my view purposively and contextually related to its functions under s 8(1)(a) and s 8(1)(b).

112.  Is the use of those powers as a matter of degree too far removed from the functions under s 8(1)(a) and s 8(1)(b)?  In my view, it is not.  The context is again important.  The POEs are unprecedented.  The number of RCs and NCs have been climbing.  More are anticipated to come.  Expeditious, fair and effective handling of all the RCs are expected, and are perceived by the IPCC to be expected, of the IPCC.  Time to do so is tight, and will only become tighter with the escalating number of RCs to be received. Collecting and collating of information from the public in anticipation of the tasks ahead so as to put thing in context is something which may reasonably and sufficiently be characterised as tied to achieving in the circumstances the functions under s 8(1)(a) and s 8(1)(b).

113.  Another point to note is that what the IPCC has done in respect of the Study, though not literally within s 8(1)(a), s 8(1)(b) and 8(2), are something which are not prohibited by the provisions of the IPCCO, and may be reasonably and properly undertaken.  In this regard, I come back to 2 matters: (1) the SB Paper and Bills Committee Report, and (2) the two‑tier police complaints system.

K.4.(a)(ii)    The SB Paper and Bills Committee Report

114.  Mr Wong objects to the Applicant’s references to those documents.  He submits[40] that they do not fall within any of the permitted uses of such materials, and that the conditions laid down in Pepper v Hart are not fulfilled (though he submits that in any event, the contents of those documents do not support the Applicant’s contention).

115.  In HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, Li CJ at §§15‑17 observed that:

“ 15. Whilst as noted above, statements made by officials of the Government in relation to the bill in the Legislative Council may be used to identify the purpose of the statutory provision, employing it in order to ascertain the meaning of the statutory words stands in a fundamentally different position ... In England, in Pepper v Hart [1993] AC 593, the House of Lords decided that such statements may be referred to as an aid to interpretation for the purpose of ascertaining the meaning of the statutory language, where the following three conditions are met: (a) The legislation is ambiguous or obscure or leads to an absurdity; (b) The material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) The statements relied upon are clear.

16. The House of Lords has emphasised that the three conditions should be strictly insisted on ... Under the approach laid down in Pepper v Hart, where the three conditions are fulfilled, the Minister’s statements may be used to resolve the ambiguity, obscurity or absurdity.  In R v Environment Secretary, Ex parte Spath Holme Ltd, Lord Nicholls (at p.399C‑E) emphasised that even where the conditions are met, Government statements, however they are made and however explicit they may be, cannot control the meaning of legislation and it is for the court when determining what was the intention of Parliament in using the words in question, to decide how much importance, or weight, if any, should be attached to a Government statement.”

116.  I have considered Pepper v Hart and Cheung Kwun Yin.  I am satisfied that the 3 conditions laid down in Pepper v Hart are satisfied, and the 2 documents “may be referred to as an aid to interpretation for the purpose of ascertaining the meaning of the statutory language” used in s 8 of the IPCCO.  I however, agree with Mr Wong that they nonetheless do not assist the Applicant’s contention:

(a)  At §22 of his written submissions, Mr Harris submits that:

“ Before the enactment of the IPCCO, there was suggestions to grant the IPCC itself the power to investigate complaints lodged by the public against the HKPF. However, those suggestions were expressly rejected by the administration and by the Legislative Council”;

(b)  That in my view and with respect is an over‑generalization of the debate involved;

(c)  Both in the SB Paper and the Bills Committee Report, it was not just any general “power to investigate complaints lodged by the public against the HKPF ” which the SB and the Bills Committee were concerned with.  They were concerned with the specific suggestion that: “IPCC should be empowered to conduct independent investigations if it is not satisfied with CAPO’s investigation findings, and to determine the acceptability of the of the findings and results of the investigation of all complaints.” — see §6 of the SB Paper and §71 of the Bills Committee Report;

(d)  The contents of those 2 documents otherwise do not support Mr Harris’ contention that the action to invite, collect and collate relevant information from stakeholders and the public is outwith s 8(2), or is otherwise prohibited by the IPCCO.

K.4.(a)(iii)   The two-tier police complaints system

117.  I have explained above the two‑tier police complaints system.  It existed before the creation of the IPCC, and was codified into the IPCCO.

118.  However, as I have dealt with in Section K.1. above, the fact‑finding step of the Study is not meant to be any investigation into any RCs.  That remains to be undertaken by the CAPO. 

119.  Then, it is submitted by Mr Harris that undertaking the fact‑finding study can lead to the IPCC reaching findings which are inconsistent with those reached by the CAPO, and that it cannot be procedurally fair for the IPCC to consider an investigation report submitted by the CAPO when it has already carried out its own fact‑finding study in relation to the same event.

120.  That objection however assumes (not justified by the evidence) that IPCC will reach findings, which may then lead to inconsistent finding or procedural unfairness.  As Mr Mui has stated on oath[41]:

“ ... the Study is not an investigation of any individual RCs, it does not involve any investigation conducted by the IPCC into any of the RCs at all, and it would not come up with any findings and/or conclusions in relation to any individual RC. The RCs that arise from the POEs occurred in the time span covered by the Decisions would be handled and investigated by CAPO in the usual manner ...”

121.  One needs again to bear in mind the evidence as to why the IPCC decides to undertake the Study.  It is to reconstruct a broad and overall picture in anticipation of the increasing number of RCs to be received so that they, when received, could be reviewed effectively and in the proper context.  The broad and overall picture so reconstructed might indeed, as things turn out, cause the IPCC to see the need to invoke its powers under Division 3 of Part 3 of the IPCCO to eg request further investigation or provision of further materials by the CAPO.  That may not be a bad thing to happen, and can assist in the expeditious and effective review of the investigation reports.  Viewed from this angle, that eventuality is actually conducive to the IPCC’s performance of its functions under s 8(1)(a) and s 8(1)(b).  I see no procedural unfairness involved.  I otherwise see no legal objection arising.

K.4.(a)(iv)   Conclusion on this point

122.  When considering s 8(2), this Court does not think narrowly.  I respectfully repeat what Lord Selborne LC has said in Great Eastern Railway.  The doctrine of ultra vires ought to be reasonably understood and applied.  Unless expressly prohibited, whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised, ought not to be held, by judicial construction, to be ultra vires.  I agree with the sentiments expressed by Mr Wong[42], that there is no basis, as the Applicant seeks to, to confine the role of the IPCC to a narrow and passive one in the discharge of its statutory role and functions.  I do not seek to cover in this judgment comprehensively what the IPCC can do under the IPCCO.  What I conclude is that on the evidence before me, and in so far as the RC Prospective of the fact‑finding step of the Study is concerned, it is not ultra vires of the IPCC’s powers under the IPCCO.

K.4.(b)        The Practice and Procedure Perspective

123.  I have considered the scope of s 8(1)(c) of the IPCCO.  I have explained why I reject Mr Harris’ submissions on the interpretation of that section.

124.  With those discussions in mind, this point becomes a short one. The undertaking of the fact‑finding step of the Study, from the Practice and Procedure Perspective, is in my view covered by s 8(1)(c) read in conjunction of s 8(2), and is not ultra vires.

L.      Two further points

125.  For the sake of completeness, I deal with two further points.

L.1.   What Mr Mui says the IPCC has previously done

126.  At various parts of Mui’s Affidavit, Mr Mui makes references to various activities which the IPCC has in the past undertaken.  He says that the Study is “not much different in principle”[43] from them.

127.  I do not find such references and comparison helpful.  It begs the question as to whether those previous activities are ultra vires.  I do not say that they are.  But that if they were, the mere fact that the Study is “not much different in principle” from them (assuming that it is indeed not) would not have made the Study intra vires. To make the comparisons useful, the nature of those previous activities would need to be considered first.  That would unnecessarily complicate the consideration of the application further.  I am not prepared to do that.

L.2.   The Independent Expert’s Panel (the “IEP”)

128.  At §6 of his written submissions, Mr Harris submits that:

“ On 23 August 2019, the IPCC decided to set up an International Experts Panel to facilitate the Study ... On 4 September 2019, the IPCC announced the five members of the International Experts Panel... On 11 December 2019, it was reported that the International Experts Panel had decided to ‘formally stand aside from its role’ because of the crucial shortfall in the powers, capacity and independent investigative capability of the IPCC.”

129.  In this regard, Mr Mui says at §49 of Mui’s Affidavit that:

“ ... The IEP expressed, inter alia, their comments on the limitations in the scope and powers of the IPCC, which inhibit the IPCC’s ability to establish a coherent and representative body of evidence to conduct the Study. As far as I understand, the IEP was not concerned with the ability or power of the IPCC to undertake the Study, including the fact‑finding in the first of the three parts of the Study. They did not suggest that the IPCC could not undertake the fact‑finding exercise. Rather, they are concerned that the IPCC lacks legal power to compel any person to give testimony or provide real or documentary evidence. According to my understanding, four of the five IEP members held or are holding office in the police oversight body in their respective jurisdictions and those bodies have wider powers than the IPCC and they can conduct investigations into complaints and/or have access to the premises and documents of the police. In fact, IPCC’s Chairman acknowledged in IPCC’s press release on 10 November 2019 ... that IPCC is fully aware of the limitations of its legal powers and resources in its fact‑finding exercise. The IPCC never claims to have such wider power and this is not in issue in this application for judicial review. However, it does not mean that the conduct of the Study is ultra vires and without power ...”

130.  I have considered the evidence.  I have also considered the statement released on 8 November 2019 by a member of the IEP[44]. I agree with Mr Wong’s submissions that ultimately, the issue in this case is whether the IPCC has the power under the IPCCO to conduct the Study. That being primarily a question of law, the views of the IEP are not useful.  I also agree with Mr Wong’s submissions[45] that in any event, the concern expressed by the member of the IEP was whether, given the lack of independent investigative capacity on the part of the IPCC, the inquiry by the IPCC can be rigorous and effective, as opposed to whether the IPCC can undertake the Study as a matter of law.

M.     The Applicant’s standing

131.  Mr Wong on behalf of the IPCC maintains that, having regard to the legal and factual context of the present case, the Applicant does not have sufficient interest in the matter to challenge the legality of the Decisions. 

132.  I have expressed my view on the Applicant’s standing when I granted him leave.  I repeat that holistic approach which I have adopted.  I repeat what I have said at §48 of my Decision of 20 December 2019.  I am not prepared to revisit the issue of standing.

N.      Overall conclusion and disposition

133.  For the reasons set out above, despite having granted the Applicant leave to challenge the Decisions, having considered in detail the law and the contents of Mui’s Affidavit, which I did not have at the leave stage, I dismiss the Applicant’s application.

O.      Costs

134.  I make a costs order nisi that the costs of the application (including those of the application for leave) be to the IPCC, with certificate for 2 counsel, to be taxed if not agreed, and that the Applicant’s own costs are to be taxed in accordance with legal aid regulations.

Postscript

135.  The substantive hearing of this application was originally set down to be heard on 24 March 2020.  Due to the outbreak of COVID-19, that hearing was adjourned and re-fixed to 7 April 2020.  Upon the Court’s invitation, so that the application can be proceeded with expeditiously but at the same time to minimise public health risk, the parties on 27 March 2020 agreed to conduct the hearing through video-conferencing facilities[46].  Further directions for that purpose were given by the Court. The remote hearing took place on 7 April 2020. To ensure open justice, screens were set up (inside court room where I sat and ready at two lift lobbies) broadcasting live counsel’s submissions so that the hearing remained accessible to the public.  I said so at the end of the hearing.  I express again here, by way of a postscript but with no disrespect, the Court’s gratitude to the parties and their legal teams for their co-operation in the preparation of the remote hearing.  I also thank again both the clerical and technical staff of the Judiciary who have spent a substantial amount of time on the technical sides of the hearing to ensure smooth running of the same.