CHEUNG WING FAI v. COMMISSIONER OF POLICE

CACV129/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 129 OF 2005

(ON APPEAL FROM HCAL NO. 68 OF 2004)

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REASONS FOR JUDGMENT

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Hon Ma CJHC :

1. The main question that arose in this appeal was whether the Applicant had been fairly dealt with in the course of the police disciplinary proceedings that were launched against him under the Police (Discipline) Regulations, Cap.232A (“the Regulations”).  After hearing submissions from counsel (Mr Philip Dykes SC for the Applicant, Mr Nicholas Cooney for the Respondent), we allowed the Applicant’s appeal and granted orders of certiorari quashing three decisions that were made in the disciplinary proceedings.  As to costs, we made no order for the costs of or in relation to the actual hearing below before Tang J (now Tang JA) but awarded all other costs of the judicial review proceedings and the costs of the appeal to the Applicant, such costs to be taxed if not agreed.  We also indicated that the Reasons for Judgment would be handed down in due course.

The facts

2. At all material times, the Applicant was a police constable (PC51346) who had, until he faced the relevant charge in the present instance, an unblemished disciplinary record in the Force and who had in fact been complimented for his good performance on 22 occasions.  He joined the Police Force in 1991.

3. On 5 March 2002, the Applicant filed a petition for bankruptcy, having amassed debts to the order of HK$814,167.19 and US$1,503.94.  This obviously caused some alarm to the Respondent and on 13 March 2002, his commanding officer prohibited him from drawing arms.

4. He was then charged with a contravention of police orders contrary to regulation 3(2)(e) of the Regulations.  The particulars of the charge read as follows : -

“PC51346 CHEUNG Wing-fai, of Hong Kong Police Force, you are charged that from 14 March 2002 onwards, in Hong Kong you fail to be prudent in your financial affairs by amassing unmanageable debts of about HK$814,167.19 and US$1503.94, which serious pecuniary embarrassment arising from your financial imprudence has impaired your operational efficiency, contrary to PGO 6-01(8).”

5. Police General Order 6-01(8) deals with, among other aspects, financial matters.  Paragraph 4 of that Order states that a police officer should not place himself or herself under financial obligation to any person or organization other than as permitted by the Acceptance of Advantages (Chief Executive’s Permission) Notice 2004 or under the Order.  Paragraph 8 states that a police officer should be prudent in his financial affairs and that serious pecuniary embarrassment stemming from financial imprudence would be regarded as a circumstance which impaired the efficiency of an officer and may result in disciplinary action.

6. The laying of the charge against the Applicant brought into existence the police disciplinary procedure under the Regulations.  Essentially, there are four possible hearings in such proceedings under Part II of the Regulations (this Part relates to junior police officers like the Applicant) : -

(1) The first hearing is before a superintendent, known under the Regulations as the appropriate tribunal.  This hearing is an oral one where evidence is adduced by both the prosecution and the person charged (known as a defaulter).  Witnesses may be called, examined and cross-examined.  The defaulter may be represented by a fellow police officer but not by a barrister or solicitor (unless he or she is also a police officer).  A review is possible before the appropriate tribunal.  See here regulations 8 to 13 of the Regulations.

(2) Where a defaulter has been found guilty or has pleaded guilty, and has been sentenced by the appropriate tribunal (called an award under the Regulations), the finding of guilt and the award must then be dealt with by a senior police officer (being a Chief Superintendent, Assistant Commissioner or Senior Assistant Commissioner) where the appropriate tribunal is of the view that his powers of punishment are insufficient, he may ask the senior police officer to impose the award.  This was what happened in the present case.  This is the second hearing in the disciplinary process which (I assume) may or may not involve an oral hearing.  See regulations 11(6) and 14(1)-(5).

(3) After the hearing before the senior police officer, unless where presumably the charge against the defaulter has been dismissed, the matter then proceeds to the Force Discipline Officer.  Like the senior police officer, the Force Discipline Officer is in a position to confirm or vary the finding of the senior police officer, or order a rehearing by another appropriate tribunal, or confirm or vary the award imposed on the defaulter.  This is the third hearing and again I assume this may or may not be an oral one, although like the hearing before the senior police officer, I suspect it is often not.  See regulations 14(5)-(7).

(4) The final hearing under the Regulations is an appeal by petition by the defaulter to the Commissioner of Police.  The Commissioner may permit the defaulter to appear in person.  See regulation 15.

7. At the hearing before the appropriate tribunal (which took place at various times from May to September 2003), the Applicant (who was represented by a senior inspector) pleaded not guilty and did not himself give evidence (although he provided a written statement).  He also relied on a written statement from his brother, Mr Cheung Yuen Fu.  The status of this statement assumes great importance in the present appeal.  In it, the Applicant’s brother states that the cause of the Applicant’s bankruptcy and financial difficulties stemmed from the latter’s efforts to assist him in his failed business.  He said this in his statement (as translated) : -

“I think I got [the Applicant] into trouble.  But for my business failure, I would not have been chased for repayment.  The large amount of debts [the Applicant] owed, credit cards and personal loans, were all used to repay debts for me.  So, the only reason of [the Applicant’s] bankruptcy was to help me.”

8. At the September hearing before the appropriate tribunal, the brother’s statement was the subject matter of an agreement between the prosecution and the Applicant.  In a memorandum headed “AGREED DOCUMENTARY EVIDENCE OF THE DISCIPLINARY PROCEEDING”, signed by the prosecutor, the Applicant and the Applicant’s representative, it was stated : -

“A disciplinary proceeding is being held at FDAU Hearing Room 2, adjudicated by SP LEE Ying-min on 2003-09-04.  The following evidence is agreed by the Prosecutor, SIP YIU Chong-leung, SDVC PKSDIV, the defaulter PC51346 and the Defence Representative, SIP David HUNG, UB WF/DIV.

A statement of Mr. CHEUNG Yuen-fu dated 2002-04-08

(Defence witness)”

9. In my judgment, this memorandum clearly and unambiguously contained an agreement by the parties that the evidence of the Applicant’s brother was agreed.  The language of the document compels this construction.  By contrast, in a document headed “LIST OF ADMISSION OF DOCUMENTARY EVIDENCE”, another statement  (this time of the Applicant himself) was stated only to be agreed by the prosecution, the Applicant and the Applicant’s representative (who all signed this document as well) “to be admitted as evidence without further proof”.  I understand this agreement to mean that the relevant statement could be admitted into evidence without the maker being called but without any admission as to the contents of it.  Mr Cooney submitted that the agreement regarding Cheung Yuen Fu’s statement must similarly be construed to mean only an agreement that it could be admitted without further proof and not, as contended by Mr Dykes, that it was an agreement as to contents.  I disagree with Mr Cooney : the language of the earlier document was one of agreement as to contents.  I derive some comfort for this conclusion (though strictly speaking not admissible as an aid to construction) from the fact that this was exactly how the prosecutor treated the brother’s statement.  In his written final submissions, the prosecutor (Senior Inspector Yiu) assumed the truth of the statement but submitted nevertheless that the charge had been made out.

10. Yet the appropriate tribunal, despite the existence of the agreement regarding the contents of the brother’s statement, found the charge was proved against the Applicant on the basis that there was no or no sufficient evidence to support the Applicant’s contention that he borrowed money to help out his brother.  He did not deal with the prosecution’s argument that even if true, the charge was still made out.  Whether this was through inadvertence or constituted an implicit rejection of the point, I know not.  This decision of the appropriate tribunal (made on 6 October 2003) is one of the three decisions impugned by the Applicant in his application for judicial review.

11. The appropriate tribunal referred the matter to a senior police officer under regulation 11(6) of the Regulations for the award of an appropriate punishment for the Applicant.  On 15 October 2003, the senior police officer confirmed the finding that the charge was proved.  The basis for this conclusion was once again the rejection of the contention contained in Cheung Yuen Fu’s statement that the Applicant incurred financial liabilities in order to assist his brother.  In a memorandum dated 15 October 2003 to the Applicant, the senior police officer said this in paragraph 7 : -

“The absence of documentary evidence and the failure of your brother to support your claims in person, particularly as you state that it was to assist him that you incurred your debts, raise serious doubts in my mind as to the veracity of your claim.”

He made an award of a severe reprimand together with the punishment of compulsory retirement with deferred benefits.  This decision was the second impugned decision.

12. The matter then proceeded to the Force Discipline Officer who certified the finding and award.  In the proceedings below, the Court was not provided with details of the Force Discipline Officer’s reasons.  By an application made to us, the Respondent sought to introduce evidence regarding this.  I shall deal with this application later.

13. Following the Force Discipline Officer’s confirmation of both the finding and award, the Applicant appealed under regulation 15 to the Commissioner of Police.  The appeal was heard by the Deputy Commissioner of Police, Management (“DCP Man”).  In a Staffing Note dated 22 December 2003 prepared by the Disciplinary Section, doubts were again cast on the Applicant’s assertion that he was just helping his brother but it was also submitted that even if the Applicant’s version were true, the charge was still made out.  The Staffing Note contained the following passage : -

“Even if all the [Applicant’s] versions were true, it is still his responsibility to ensure that he lives within his means and does not incur or make financial commitment which he is unable to afford.  Financing relatives’ business beyond one’s means can also be a reprehensible cause of debt.”

Notwithstanding the twin approach that was suggested in the Staffing Note, DCP Man rejected the Applicant’s appeal solely on the basis of the rejection of his version.  He said this in his written deliberation : -

“I have serious doubts as to the veracity of the [Applicant’s] explanation about the true reason in amassing the huge debts.”

Later in his deliberation, DCP Man also said : -

“It is the responsibility of the [Applicant] to live within his means, and to take out loans within his ability to repay.”

Mr Cooney relied on this latter passage to support an argument that DCP Man must therefore have also found favour with the alternative argument contained in the Staffing Note (namely, that even if the Applicant’s version about helping his brother were true, this would still make no difference to a conviction of the charge).  For my part, I find it difficult to accept this submission.  Quite simply, this was not what DCP Man said.

14. It was following this decision of DCP Man (made on 26 January 2004) that the Applicant launched the present judicial review proceedings in respect of the decisions of the appropriate tribunal, the senior police officer and DCP Man (though curiously not the decision of the Force Discipline Officer).

The decision of the Court below

15. Leave having been granted, the substantive application for judicial review was heard by Tang J on 2 December 2004.  In a judgment handed down on 15 December 2004, the learned Judge dismissed the application.  It is important to understand the reasons why the Judge felt compelled to do so.  As recorded in his judgment at paragraph 15, counsel for the Applicant (not Mr Dykes) told the Judge it was not his contention that the appropriate tribunal (or any subsequent body) was bound to accept the contents of the statement of Cheung Yuen Fu as being true.  Counsel conceded that the appropriate tribunal could reject the Applicant’s explanation of why he incurred financial liabilities if good or sufficient reasons existed.  In other words, no reliance was placed on the fact that an agreement existed regarding the contents of Cheung Yuen Fu’s statement.

16. Given this stance, the Judge therefore identified the issue before him as follows (at paragraph 17 of the judgment) : -

“So the central issue in this application is whether or not the Appropriate Tribunal was entitled to reject the explanation given in the two statements [this is a reference to the statement of Cheung Yuen Fu as well as the statement of the Applicant].”

The Judge held against the Applicant on this issue, arriving at the conclusion (which is not really disputed by Mr Dykes) that the appropriate tribunal (and the other tribunals) did have good or sufficient reasons to reject the Applicant’s version.

The contentions on appeal

17. Before us, Mr Dykes sought to withdraw the position taken by his predecessor.  His submission was really quite simple :  the Court below erred, albeit through no fault of the Judge below, by failing to have regard to the agreement between the parties accepting the contents of the statement of the Applicant’s brother.  The true issue was whether the various tribunals in the disciplinary proceedings were bound as a matter of fairness to consider as agreed the contents of Cheung Yuen Fu’s statement, not the issue identified by the Judge.

18. Mr Cooney submitted that the various tribunals were not obliged to accept the Applicant’s version at all, untested as the brother’s statement was by cross-examination.  There was no agreement, he submitted, that the brother’s statement would be accepted as being true.  Besides, the Applicant had specifically been told by the appropriate tribunal that he could give evidence if he so wished.  This therefore would somehow have alerted the Applicant to the possibility that the contents of his brother’s statement may not be accepted.

19. Alternatively, Mr Cooney submitted that even if an error had existed as far as the appropriate tribunal (and perhaps the senior police officer) were concerned, any error or defect was cured by the subsequent proceedings before the Force Discipline Officer and DCP Man.  For this purpose, the Respondent sought leave to introduce into evidence minutes prepared by the Force Discipline Officer on 7 November 2003 in which it was clear that he regarded the charge as proved even on the assumption that the Applicant’s version as to how and why he incurred his liabilities was accepted.  Mr Cooney referred us to Calvin v Carr and Others [1980] AC 574 and Lee Sze Chung v Commissioner of Police, unreported, CACV 86 of 2003, 12 November 2003.  In this regard, Re The Listing Committee [1998] 1 HKLRD 475 is also relevant.

Decision

20. In my view, as stated above, it is clear that there was an agreement that the evidence of Cheung Yuen Fu contained in his statement would be accepted by both the prosecution and the Applicant.  In the absence of any warning given to the Applicant by the appropriate tribunal (or any other tribunals) that this agreement would not be accepted and an opportunity given to the Applicant to make submissions regarding any such non-acceptance of the agreement (and in the present case no such warning or opportunity was given), the evidence of Cheung Yuen Fu ought likewise to have been accepted by the various tribunals.  I see no justification at all why the appropriate tribunal and the other tribunals (including DCP Man) should not have accepted the evidence in the present case.  In not doing so, they acted unfairly towards the Applicant.  It is besides the point that there may exist good or sufficient grounds to reject the Applicant’s version or explanation.  The police disciplinary proceedings under the Regulations require the careful consideration of evidence at all levels.  Though perhaps not as formal or strict as the courts, the relevant tribunals in these proceedings must nonetheless still adopt proper procedures and above all act fairly.  The rejection of agreed evidence was neither proper nor fair.

21. As to Mr Cooney’s fallback point that any error had been corrected by the time the matter proceeded before the Force Discipline Officer and DCP Man, while it would certainly appear that the Force Discipline Officer did deal with the matter on the assumption that the Applicant’s explanation was accepted, this was not the case as far as DCP Man was concerned.  He, like the appropriate tribunal and the senior police officer, perpetuated the error of simply disregarding the agreement regarding the brother’s statement, instead making findings against the veracity of the Applicant.  There was no fallback position as far as he was concerned.

22. Accordingly, for the above reasons, the appeal was allowed.  As for the Respondent’s application to have new evidence admitted on appeal, although we looked at this evidence de bene esse, it was in the end not relevant (given the position adopted by DCP Man) and for that reason, the application should be dismissed.

23. Regarding the question of costs, given the stance of the Applicant in the Court below, it was appropriate that no order for costs should be made for the costs of and in relation to the actual hearing before Tang J.

Hon Stone J :

24. I agree with the judgment of Ma CJHC.  If I may say so, this case exemplifies the rigour with which judicial review invests the doctrine of procedural fairness.

25. The fact that ample grounds otherwise may have existed to justify the treatment in fact meted out to this officer is nothing to the point, and to his credit Mr Cooney did not seek to advance such an argument.

26. The point at issue – which was not taken in the court below – is that the procedure adopted within this particular disciplinary process must be regarded as unfair in light of the rejection of the ‘agreed statement’ of the applicant’s brother; once this error had occurred, whether by oversight or inadvertence, it matters not, the proceedings in this case necessarily fell to be quashed.

27. It strikes me that this case provides an object lesson in terms of the need for care in specifying precisely what is, or what is not, the subject of ‘agreement’ in the conduct of a disciplinary tribunal.

28. In this regard it is perhaps an obvious proposition that there should be no room for ambiguity.  To take the example of the present case, it was open to the prosecuting officer either to have agreed the statement as to both authenticity and content, or alternatively to have specified that whilst as a matter of procedure he was prepared to admit this evidence without the necessity for formal proof, in the sense of not requiring the particular witness to be called, nevertheless he was not prepared to accept the truth of the statement, and to make it clear to the applicant that if the statement was to be introduced in this manner the prosecution would decline to be bound by its content.

29. Absent such specificity, the possibility inevitably arises, as the facts of this case amply demonstrate, for the introduction of confusion and procedural error and for subsequent challenge to the decision as reached notwithstanding, as Mr Dykes SC was entirely ready to accept, that there existed ample evidence for the disciplinary sanction handed down to be otherwise sustained.

30. The issue in this case should not be dismissed as a mere ‘lawyers’ point’.  Procedural fairness is the cornerstone of the conduct of tribunals and courts alike, and, as a matter of fundamental principle, is not to be sacrificed for reasons of forensic convenience.

Hon Sakhrani J :

31. I agree with the reasons given by Ma CJHC.  There is nothing that I can usefully add.