CHU PING TAK TIM v. COMMISSIONER OF POLICE

HCAL 144/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 144 OF 2009

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J U D G M E N T

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INTRODUCTION

1. In January 2010 I granted Mr Chu leave to apply for judicial review. The Commissioner now applies to set aside that leave.

2. Mr Chu, formerly a junior police officer, seeks judicial review of disciplinary proceedings which took place in 2001 and 2002. The outcome of those proceedings was that Mr Chu had to resign from the police force.

3. Mr Chu asks for judicial review of those proceedings in light of the Court of Final Appeal’s recent decision in Lam Siu Po v. Commissioner of Police [2009] 4 HKLRD 575. Until that decision, Police (Discipline) Regulations (PDR) rr. 9(11) and (12) prohibited police officers from being represented at disciplinary hearings by a barrister or solicitor unless the barrister or solicitor also happened to be a police officer. In Lam the Court of Final Appeal struck down the prohibition as contrary to Article 10 of the Bill of Rights.

4. Normally, a judicial review must be brought within 3 months of the process or decision being challenged. Mr Chu accepts that a subsequent change of law as a result of a Court decision does not by itself justify an extension of time for judicial review. But Mr Chu (who is 35 years old) says that it has always been his desire to be a police officer and, if at all possible, he wishes to be re-instated into the police force to fulfil that dream. He obviously cannot do so unless the adverse result of the disciplinary proceedings is reversed.

5. Mr Chu contends that, had he been legally represented, a different outcome might have been attained in his disciplinary proceedings and he would not have had to resign. Mr Chu complains that, despite their flawed process, the guilty findings reached in the disciplinary proceedings continue to affect his reputation to the present day (including preventing him from rejoining the police force). Accordingly, it is Mr Chu’s case that, notwithstanding the lapse of time, he should be allowed to bring a judicial review to remove the ever-present stigma arising from the disciplinary proceedings.

6. After an ex parte hearing, I granted Mr Chu leave to apply for judicial review on the basis of the argument which I just have summarised. However, according to the Commissioner, there are 4 reasons why leave should not have been granted. Those reasons are that:-

(1) Some of the decisions being complained about are now nullities, having been quashed by this Court following an earlier judicial review brought by Mr Chu.

(2) On analysis, Lam does not assist Mr Chu in relation to most of the remaining disciplinary decisions not already struck down.

(3) In light of his previous judicial review, whatever is left of Mr Chu’s present application is an abuse of process under the doctrine of res judicata.

(4) Mr Chu has no good reason justifying any extension of time.

II. BACKGROUND

7. Mr Chu joined the Hong Kong Police Force in 1998.

8. When he joined, he owed debts of $140,000. Later, his girlfriend (now his wife) Ms Lau engaged in margin trading with a Ms Wong. Ms Wong told Ms Lau that the latter had incurred losses of about $140,000 on their trading and that those losses had to be made good. Ms Lau (who was unemployed) asked Mr Chu to lend her that amount. Mr Chu did so, thereby increasing his personal debt to about $350,000. Ms Lau handed the $140,000 loaned to Ms Wong. Ms Wong disappeared with the money and has not been seen or heard of since.

9. By the end of 1999, Mr Chu’s debt had grown to about $400,000. This was largely as a result of having to support his parents and himself as well as Ms Lau and her family and because of the high interest charged by Mr Chu’s creditors. That level of debt was obviously impossible to service on Mr Chu’s monthly salary of $17,510.

10. Mr Chu filed for bankruptcy in the High Court. He informed his police commander of this. An internal review was conducted by the police. This resulted in 2 disciplinary charges being laid against Mr Chu. The first charge is not relevant to the present proceedings. That first charge resulted in a severe reprimand being given to Mr Chu.

11. The second charge was that Mr Chu had engaged in “conduct calculated to bring the public service into disrepute”. The particulars of the charge read:-

“[B]etween 1998-1999, being imprudent with your finance affair, you put yourself in pecuniary embarrassment through obtaining loans to such amount that your monthly emolument becomes insufficient to service repayment schedule, and that you applied for a bankruptcy petition, such act being conduct calculated to bring the public service into disrepute.”

12. Disciplinary hearings on both charges were heard by Mr Sin Kam Foo (Superintendent of Police) as Adjudicating Officer over 4 days between September and November 2000. Mr Chu pleaded not guilty. He was represented by a Senior Inspector, but not by a barrister or solicitor of his choice. On 28 November 2000 Mr Sin found Mr Chu guilty on both charges.

13. Mr Sin referred the matter to Mr Ian Tyzzer (Chief Superintendent of Police) for sentence. On the second charge, Mr Tyzzer directed that Mr Chu “resign forthwith without salary in lieu of notice”. Mr Chu learned of this decision on 11 December 2000.

14. Mr Tang Kin Shing (Force Discipline Commander) confirmed the guilty findings and sentences on both charges in March 2001. Mr Chu appealed to the Commissioner in April 2001. In July 2001 Mr Lee Ming Kwai (Deputy Commissioner of Police (Management)) dismissed Mr Chu’s appeal. On 26 July 2001 the Commissioner informed Mr Chu of the outcome and ordered him to resign immediately. Mr Chu having refused to resign, the Commissioner dismissed him on the same day.

15. On 11 December 2001 Mr Chu applied in HCAL No. 3672 of 2001 for judicial review of the decisions of Mr Sin, Mr Tyzzer, Mr Tang, Mr Lee, and the decision and acts of the Commissioner consequent upon those decisions. In that judicial review, Mr Chu challenged the findings and sentence on the second charge. He argued the following 3 principal grounds:-

(1) There was insufficient evidence on which Mr Sin could have concluded that Mr Chu’s conduct had been calculated to bring the public service into disrepute.

(2) It had been unreasonable for Mr Chu to be asked to resign.

(3) There had been procedural unfairness as material submitted to Mr Lee had not been disclosed to Mr Chu.

16. On 3 July 2002 Deputy Judge Andrew Cheung found in Mr Chu’s favour on the third principal ground alone. The judge refused to quash the decisions of Mr Sin, Mr Tyzzer and Mr Tang. But the judge held that Mr Chu ought to have had an opportunity to make submissions on materials before Mr Lee which had not been disclosed to Mr Chu. Mr Lee’s decision and the Commissioner’s actions consequent upon Mr Lee’s conclusions were set aside. Mr Chu did not appeal against Judge Cheung’s judgment.

17. Following the judicial review, the police provided Mr Chu with copies of the relevant documents not previously disclosed. Mr Chu re-appealed to the Commissioner in August 2002. At that time Mr Chu stated (and confirmed in writing) that he only wished to appeal against the sentence of immediate resignation imposed on the second charge.

18. Mr Lau Yuk Kuen, Deputy Commissioner of Police (Operations), considered Mr Chu’s appeal on documents alone, without an oral hearing, on 5 September 2002. He affirmed the sentence on the second charge. The Commissioner told Mr Chu of this on 13 September 2002. The Commissioner asked Mr Chu to resign in consequence. Mr Chu submitted his resignation on 16 September 2002 and left the police on 4 October 2002.

19. In this judicial review, Mr Chu seeks to quash the decisions of Mr Sin, Mr Tyzzer, Mr Tang, Mr Lee, the Commissioner’s acts in consequence of Mr Lee’s decision, and the decision of Mr Lau.

III. DISCUSSION

A. Objection 1: Some decisions already nullities

20. I do not think that Mr Chu has an answer to the Commissioner’s first objection. As is evident from the history just recounted, Mr Lee’s decision and the Commissioner’s decisions and actions consequent upon that decision were quashed by Judge Cheung. Having been quashed, those matters became nullities. There is nothing left of them for me to review or re-quash.

B. Objection 2: Lam of no help in relation to most of the remaining decisions

21. Consider the decision of Mr Lau (that is, the most recent of the decisions criticised by Mr Chu). There are three points to bear in mind here.

22. First, that decision was made on the basis of Mr Chu’s written petition of re-appeal. Nothing in the PDR prohibited Mr Chu from seeking legal advice in the drafting of that petition.

23. Second, in his re-appeal, Mr Chu abandoned his challenge against conviction on the second charge. He decided of his own volition only to question the sentence of resignation imposed on the second charge. Nothing in the PDR prevented Mr Chu, if he so wished, from consulting lawyers in deciding whether to restrict his appeal to the sentence on the second charge.

24. Third, there never was any oral hearing before Mr Lau.

25. Given those three premises, it follows that, as far as Mr Lau’s decision is concerned, there has never been an unfair denial of legal representation to Mr Chu. On the contrary, Mr Chu had every opportunity to seek whatever legal or other advice he wished to have in relation to his re-appeal and to draft his petition to Mr Lau accordingly. The judgment in Lam (which concerned the denial of legal representation in oral police disciplinary hearings) plainly has no relevance to Mr Lau’s decision.

26. By the same token, the decisions by Mr Tyzzer and Mr Tang were taken on the basis of documents alone. At the time of those decisions, nothing in the PDR prevented Mr Chu from consulting lawyers in relation to the stance which he should take and in relation to what submissions (if any) he should make in connection with the deliberations of Mr Tyzzer and Mr Tang. The judgment in Lam is equally irrelevant in relation to those two decisions.

27. The net result is that the only decision on which Lam may have a bearing is that of Mr Sin which was made after oral hearings lasting some 4 days.

C. Objection 3: Res judicata

28. Where a point has previously been argued before a Court, the doctrine of res judicata bars a litigant from re-arguing that same point before a Court of equivalent jurisdiction. But the doctrine goes further. The doctrine also requires that:-

“A claimant who challenges an administrative decision must put his whole case before the court. If he fails he will be barred by a cause of action estoppel from bringing a second challenge on other grounds. The principle extends to judicial review proceedings following an unsuccessful appeal from an administrative decision if the grounds for review could have been raised in an appeal....” (Spencer Bower and Handley on Res Judicata (4^th ed.) para.7.11).

29. The doctrine promotes finality to judgments. It would not be conducive to the proper administration of justice if Court decisions can be repeatedly re-opened because an unsuccessful litigant comes up with a new point not previously argued before the Court which has already delivered judgment against him. It is incumbent upon a litigant to present all his legal arguments in one go before a Court. Once judgment has been delivered, the losing litigant will not normally be given a second chance to present new arguments which have since occurred to the litigant.

30. The discussion in Sections III. A and III. B of this Judgment leave one with Mr Sin’s decision. But the difficulty with Mr Chu’s current application to review that decision is that the decision has already once been the subject of review by Judge Cheung. Mr Chu was there unsuccessful. Judge Cheung held against Mr Chu in relation to Mr Sin’s decision and Mr Chu never appealed against Judge Cheung’s refusal to quash Mr Sin’s decision.

31. Before Judge Cheung, Mr Chu appeared by solicitors and counsel. Mr Chu thus had every opportunity to present whatever arguments which he (with the benefit of advice from his lawyers) deemed suitable. At that first judicial review, Mr Chu could have complained about being denied proper legal representation in the hearing before Mr Sin. For whatever reason, Mr Chu and his lawyers raised no such argument before Judge Cheung. Neither did Mr Chu seek to raise such argument on any appeal from Judge Cheung. There simply was no appeal within the time limited for bringing an appeal.

32. As far as Mr Sin’s decision is concerned then, Mr Chu runs up squarely against the doctrine of res judicata.

33. Mr Richard Leung (appearing for Mr Chu) questions whether the doctrine of res judicata applies in judicial review. Mr Leung cites Chiang Lily v. Secretary for Justice Civil Appeal Nos. 55 & 151 of 2009 (21 September 2009) in support of his contention. There Ma CJHC referred (at para. 56) to “the complexities ... when one enters into an examination of the extent to which res judicata applies in public law litigation in the first place”.

34. But in Chiang Lily Ma CJHC held that the Applicant had abused process by arguing in a later judicial review, a point which she could and ought to have raised in an earlier judicial review. There can be no doubt then that res judicata applies to judicial review. A contrary conclusion would not make sense. Why should an Applicant be entitled to raise later an argument which the Applicant could and should have raised previously in earlier judicial review proceedings? If Mr Leung is right, judicial review judgments would lack the finality and certainty which the proper administration of justice requires.

35. The complexities to which Ma CJHC was referring were specifically those that arise when the parties to a first judicial review are closely related, but not identical, to the parties in a second judicial review. Such complexities do not arise here. We are merely concerned in this case with an argument which (as far as the Court can see) could and should have been raised earlier.

36. Mr Chu’s Application for Judicial Review nowhere explains why in the first judicial review Mr Chu failed to challenge the denial of legal representation at the hearing before Mr Sin. Mr Chu was legally represented in that judicial review so that counsel’s views on the propriety of the hearings before Mr Sin could have been comprehensively canvassed. There is simply no material on which this Court can hold that, by way of some exception to general principle, res judicata should not apply.

37. There is a suggestion that, prior to Lam, it had been accepted as settled law in 2002 that PDR rr. 9(11) and (12) were consistent with Art.10. This is untenable. As Andrew Cheung J observed in Tsui Kin Kwok Johnnie v. Commissioner of Police HCAL No. 50 of 2009 (26 February 2010) at paras. 42-47, until a decision of Chu J in May 2004 “the law about a police officer’s right to a fair hearing in disciplinary proceedings was still very much arguable”. Contrary to what Mr Leung submits, there is nothing “unreal and unfair” in a conclusion that Mr Chu could have challenged the denial of legal representation in his first judicial review.

38. Consequently, the doctrine of res judicata bars a second judicial review before me as first instance judge against Mr Sin’s decision based on Lam.

D. Objection 4: No good reason for extending time

39. Mr Chu’s application is in effect then an application to extend the time for appealing to the Court of Appeal against Judge Cheung’s refusal to quash Mr Sin’s findings and decision.

40. I shall assume that, even at this late stage, the Court has the power and discretion to extend the time for appeal. But in light of the passage of so much time since the first judicial review, a Court can only do so if there are “exceptional circumstances” justifying an extension. It is also clear from the authorities that “time should not be extended for appeal only on the ground that an authoritative judgment subsequent to the conviction has held the previous understanding of the law to be incorrect”. The mere fact of the decision in Lam is no basis for extending time. See HKSAR v. Hung Chan Wa (2006) 9 HKCFAR 614 (Li CJ at paras. 24 and 25).

41. I have already pointed out that Lam is not relevant in relation to the decisions of Mr Tyzzer, Mr Tang, Mr Lee, Mr Lau and the conduct and actions of the Commissioner consequent upon the decisions of Mr Tyzzer, Mr Tang and Mr Lee.

42. I note that, even as to the merits of Mr Sin’s decision, it is far from obvious that Lam would lead to a different result from that reached in the first judicial review. One asks: If Mr Chu had been represented by lawyers before Mr Sin, in what way might Mr Chu’s disciplinary hearing have taken a different turn? The question is difficult to answer given that, already in Mr Chu’s first judicial review, Judge Cheung carefully considered whether the second charge was logically supportable on the facts (most of which were not in dispute). Despite having heard counsel on the matter, Judge Cheung found no justification for disturbing Mr Sin’s conclusions as irrational or Wednesbury unreasonable. Judge Cheung further considered whether the sentence of immediate resignation was somehow disproportionate or unreasonable. Although he personally felt that the sentence was arguably “severe and even on the high scale,” he did not think that it could be characterised as so unduly oppressive as to be perverse.

43. I also bear in mind that in the end Mr Chu decided to abandon his appeal against conviction on the second charge and to focus solely on mitigating sentence on that charge. Regardless of the consequences of Lam, a Court cannot ignore such decision on Mr Chu’s part and simply allow him now to re-open everything in a belated Court application as if he had never voluntarily abandoned his appeal against conviction on the second charge.

44. Mr Chu refers to his long-held dream to be a police officer and, if possible, now to re-join the police force. Although that is a factor which I do take into account, I am unable to attach much weight to it in the present circumstances. This is because, as far as I can see, Mr Chu had every opportunity to complain about lack of proper legal representation in the first judicial review. He did not do so. If he has been denied his dream or if he lives under a continuing stigma, that is only because he and his lawyers previously failed to raise in Court that which it was perfectly feasible for them to have raised.

45. Mr Leung accepts that there has been substantial delay. But he says that I should take into account all “relevant considerations”. He stresses that Mr Chu took immediate steps to bring this second judicial review following the handing down of the decision in Lam.

46. I am prepared to accept that Mr Chu acted promptly after Lam was decided. Any delay in bringing his application following Lam may be attributed to Mr Chu’s having had to secure Legal Aid. But, in light of the first judicial review and the res judicata doctrine and in light of the highly marginal (if any) relevance of Lam on the facts of the present case, I do not think that Mr Chu’s alacrity following Lam could constitute an “exceptional circumstance”. Such promptness is a bare minimum requirement that a Court is entitled to expect in any given judicial review case. Although relevant, it is not here a sufficient consideration.

47. Unfortunately, Mr Leung is unable to particularise any other “relevant consideration” apart from that promptness and Mr Chu’s sense of a dream unfulfilled. For the reasons I have just discussed, those matters alone cannot be characterised as “exceptional circumstances”.

48. In summary, although I sympathise with Mr Chu’s situation, I regret that I can see no good reason for extending time in which to appeal against Judge Cheung’s decision of nearly 8 years ago.

IV. CONCLUSION

49. The leave for judicial review which I granted is set aside. Having now had the benefit of an inter partes hearing on the question of leave, I do not believe that Mr Chu’s proposed review has any reasonable prospect of success. I shall now hear the parties on consequential matters.