CHEUK FAN MING v. COMMISSIONER OF CORRECTIONAL SERVICES AND ANOTHER

HCAL 134/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 134 OF 2004

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J U D G M E N T

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Introduction

1. The applicant in this matter is an Assistant Officer I in the Correctional Services Department.  In February 2004, the applicant, having been found guilty of two offences against discipline, the Commissioner ordered that he be compulsorily retired with a deferred pension.  The applicant now seeks, by way of judicial review, to challenge the lawfulness of the proceedings which resulted in his removal from service.

2. Before looking to the individual grounds of challenge, it is necessary to set out the history of the matter.

Background

3. In October 2002, the applicant was charged with the following two offences.  I set them out in full as they are of central importance.

1^st Charge

4. “Without proper authority carries out any pecuniary or business transaction with or on behalf of any prisoner or ex-prisoner, or with a relative or friend of any prisoner or ex-prisoner, contrary to Prison Rule 239(1)(g)(i).

Particulars of Offence:-

‘On 14^th May 1998, you being an Assistant Officer I of the Correctional Services Department attached to Tung Tau Correctional Institute, did without proper authority, carry out pecuniary transaction with or on behalf of prisoner CHOW Siu-hei (Prisoner Registered Number 159040), in that you did receive a sum of Hong Kong dollar fifty thousand from the said prisoner, which was deposited into your Hang Seng Bank account No. 2589012364 by the said prisoner’s father, CHOW Fu-keung, upon the request of the said prisoner.’”

2^nd Charge

5. “Without proper authority communicates with any ex-prisoner or with a relative, or friend of any prisoner, or ex-prisoner, contrary to Prison Rule 239(1)(h)(i).

Particulars of Offence:-

‘Sometime in February 1999, you being an Assistant Officer I of the Correctional Services Department attached to Tung Tau Correctional Institute, did without proper authority meet an ex-prisoner CHOW Siu-hei (Prisoner Registered Number 159040) at an unknown bar in Mongkok and had a drink with him therein.’”

6. It will be seen that both charges concerned the same prisoner, Chow Siu Hei.  The first charge alleged that, while Chow was serving a term of imprisonment in the institution to which the applicant was posted, the applicant received a payment into his account of $50,000 from Chow’s father, thereby carrying out an unauthorised monetary transaction with or on behalf of Chow.  The second charge alleged that, shortly after Chow was released from prison, the applicant, having no authority to do so, met with him in a bar and socialised with him.

7. The disciplinary proceedings against the applicant had in fact been preceded by criminal proceedings, the applicant being charged, I understand, with accepting an advantage from Chow, contrary to s.4 of the Prevention of Bribery Ordinance, Cap.201.  The applicant had been acquitted.

8. I mention this because, when the disciplinary proceedings commenced, the transcript of proceedings in the magistrate’s court was placed into evidence along with other documentary evidence including the record of the applicant’s cautioned interview with the ICAC.  This was done without objection.

9. Before the disciplinary tribunal, the applicant chose not to give evidence.  However, as I have said, the tribunal did have the ICAC interview record which gave some indication of what the applicant’s version of events had been at the time the interview took place.  In that interview, it was never denied that $50,000 was paid into the applicant’s account on 14 May 1998 at a time when the applicant was posted to the institution where Chow was serving his sentence and where the two came regularly into contact.  The applicant denied, however, that the money had come from Chow or was in any way connected to Chow.  He said that, to the best of his memory, the $50,000 was his gambling winnings from cruise ships, either paid into the account by himself or paid in by a friend who worked on the cruise ships as some sort of agent connected to the gambling business.

10. As to the true source of the money, it was the prosecution case at the criminal trial – and remained the case in the disciplinary hearing – that the $50,000 had been paid in by Chow’s father.  The evidence of this was a copy of the pay-in slip which had been obtained direct from Chow’s parents.  The pay-in slip had on it the account number of the applicant’s account, the applicant’s name and a transaction code.  An affidavit from an officer of the bank spoke to the authenticity of the details.

11. At the criminal trial, the defence had not disputed the evidence that the $50,000 had been paid in by Chow’s father.  I have been referred to that portion of the magistracy transcript in which counsel representing the applicant accepted that the money had been paid in by the prisoner’s father and said that the only dispute was whether any portion of it constituted corrupt moneys.

12. When the disciplinary proceedings took place, however, the applicant chose to object to the entry into evidence of the copy pay-in slip on the basis that it was a copy only and not an original and its authenticity was disputed.  The tribunal, having heard submissions, ruled that the copy slip would be admitted into evidence.

13. At this juncture, in so far as it is necessary, I observe that it may be entirely legitimate for a concession to be made in one set of proceedings but not made in another.

14. In the disciplinary proceedings, the prosecution sought to call Chow and his parents.  It appears they did not co-operate.  The applicant then sought to call them himself.  Adjournments were granted but he too was unsuccessful.  Accordingly, the tribunal did not have the benefit of hearing from Chow or his parents.

15. In its determination of the first charge, the tribunal came to the following findings :

1.	That in May 1998, when the $50,000 was paid in, the applicant was posted to Chow’s prison.
2.	That the applicant and Chow knew each other.
3.	That $50,000 was paid into the applicant’s account on 14 May 1998, that being the largest deposit paid in between April 1998 and January 1999.
4.	That on the day the $50,000 was paid into the account there were two withdrawals of $10,000 and the next day a further two withdrawals of $10,000.

16. As to who had paid the money into the account, the tribunal said :

“Having considered the evidence adduced by the prosecution, I firmly believe that the cash deposit of $50,000 into the OC’s [applicant’s] account was made by Mr Chow Fu-keung, the father of prisoner Chow.  This was followed by six cash withdrawals and two transfer withdrawals by the OC within a short period of time.  I find that a pecuniary transaction between the OC and the relative of prisoner Chow is established and that he has no proper authority for this pecuniary transaction.”

17. In regard to the second charge, that of communicating with an ex-prisoner without authority, there was no dispute as to the fact that sometime in February 1999 the applicant had met Chow and that they had (for a period of about a quarter of an hour or so) had a drink in a bar somewhere in Mongkok.  That admission had been made in the ICAC interview.

18. As to how the meeting had come about, in the interview the applicant had been somewhat – but not entirely – vague.  He said that he ran into Chow.  He was then asked who had made the appointment, in other words who had set up this meeting.  It would of course have been quite easy for him to say, “Well, nobody set it up, as I have said we just ran into each other”.  But he did not say that.  He said that he was not quite sure who had set the meeting up, whether it was himself or whether it was Chow.  He then made some mention of the fact that he had been invited out because Chow’s brother had returned from the United States or Canada.

19. In respect of this second charge, the tribunal said :

“I consider that the OC is an experienced correctional officer holding the rank of Assistant Officer I who must know that it is a breach of discipline to communicate with any ex-prisoner without proper authority.  The OC claimed that he and ex-prisoner Chow ran into each other in the incident, but he could not remember whether it was ex-prisoner Chow who made an appointment with him or he himself made an appointment with ex-prisoner Chow.  Should it be the run-in case, he should simply have a very short chit chat with ex-prisoner Chow on the street instead of having a drink with him in a bar lasting some 15 minutes.  In my view, no matter whether the meeting is a coincidental or a prearranged one, the fact remains that he had a drink with ex-prisoner Chow in a bar for 15 minutes without proper authority.” 

20. The tribunal, it will be seen, did not find it necessary to come to a determination of fact as to whether the meeting had been coincidental or had been prearranged.  On whatever basis, sitting with an ex-prisoner in a bar and drinking with him for 15 minutes constituted the disciplinary offence.

21. As to the disciplinary proceedings, as I have said earlier, the applicant chose not to testify.  This was his right.  It is apparent that the applicant, who was represented by a CSD officer, chose to defend by putting the prosecution to proof.  This again was his right.  It meant, however, that the tribunal had no affirmative evidence before it to support the applicant’s assertion made in his ICAC interview that the $50,000 had been the proceeds of gambling on cruise ships, either paid in by himself or a friend.

22. In my judgment, although it is not for me to look to the merits, on the available evidence, I fail to see how the tribunal could be criticised for coming to the factual conclusions that it did in respect of both charges.

23. Having found the applicant guilty of both offences, the tribunal, finding that it did not have sufficient sentencing powers, remitted the matter of sentence to higher authority.  In respect of both offences, the Commissioner of the Correctional Services Department ordered that the applicant be retired from the CSD with deferred pension.  The Commissioner could, of course, have forfeited his pension rights entirely.

24. I turn now to the various challenges made to the lawfulness of the disciplinary proceedings.

First challenge – finding the applicant guilty of a different charge to the one charged

25. I confess to having difficulty understanding the substance of this challenge.

26. Counsel for the applicant appears to have contended that the prosecution proceeded against the applicant on one factual basis; namely, that the applicant, in receiving the $50,000 into his account, had carried out a prohibited transaction on behalf of Chow, while the tribunal found the applicant guilty of a ‘different offence’, one seemingly of carrying out a prohibited transaction with a relative of Chow.  I do not see that at all.  We are here moving into the realm of debating how many angels can dance on a pinhead.  Let me emphasise that the rules of fairness – procedural and substantive – are not technical rules.  Let me also emphasise that the disciplinary proceedings were not conducted by lawyers, they were conducted by members of the Correctional Services Department.

27. Prison Rule 239(1)(g)(i) states that an officer offends if, without proper authority, he —

“carries out any pecuniary or business transaction with or on behalf of any prisoner or ex-prisoner, or with a relative or friend of any prisoner or ex-prisoner;”

28. In this case, the substance of the charge must have been obvious to the applicant.  It was to the effect that he had entered into some form of prohibited financial arrangement either with or to benefit; that is, on behalf of, Chow.  This financial transaction was evidenced by the fact that Chow’s father had paid $50,000 into the applicant’s account and immediately thereafter the applicant had used that money.

29. The tribunal found it proved that there had been a pecuniary transaction, between the applicant and Chow’s father.  But that specific finding must be read in light of the earlier findings of fact, specifically that, at the time when the payment of $50,000 was made, the applicant and Chow were at the same prison and were known to each.  On all the facts found, the only reasonable inference to be drawn was plain : that the payment of $50,000 did not point to some transaction entirely independent of Chow but had to be a transaction with Chow, the father being a factotum, or on behalf of Chow; that is, for his benefit in some way.

30. The applicant’s challenge, in my view, is overly technical.  As I have said, the proceedings were not criminal proceedings but before a disciplinary tribunal.  In this regard, I can do no better than cite the words of Le Pichon JA in To Chun Fung Albert v. Medical Council of Hong Kong [2002] 1 HKC 571, at page 580, when, in paragraph 23, the judge said :

“It is important not to lose sight of the fact that we are here dealing with quasi judicial proceedings of a domestic tribunal where the proceedings can be said to be informal in contra distinction to the formality of judicial proceedings.”

At page 582, Le Pichon JA said, and I would lay emphasis on this :

“The appellant also sought to dissect the so-called findings and subject each element to microscopic scrutiny as if they were elements of the charge which had to be established when they were not.  In my judgment, in considering the sufficiency of the charge, the relevant yardstick is overall fairness to the person against whom misconduct is alleged.”  [my emphasis]

Le Pichon JA went on to say : 

“He should be given a fair opportunity of hearing what is alleged against him and on presenting his own case.  See per Lord Diplock in O’Reilly v Mackman [1982] 3 AER 1124, 1127.  It seems to me that the correct approach is whether, reading the evidence as a whole, there is reason to believe that the appellant was genuinely disadvantaged which could have rendered the hearing unfair to the appellant.”

31. As I have said, the applicant knew full well what the substance of the charge was against him.  He was not the victim of any material unfairness in the manner alleged.

Second challenge – denial of the right to cross-examine Chow and/or his parents

32. There may of course be times when a denial of the right to cross-examine witnesses vitiates the fairness of a hearing.  But each case must be considered on its own facts.  In law, context is everything.

33. In the present case, the core issue must be : what prejudice arose by reason of the failure of both the prosecution and the defence to obtain the evidence of Chow and his parents.

34. For the applicant, the central concern is that, having prepared his defence on the basis that the parents would be called, he was unable to challenge their evidence that each individually had paid in the deposit of $50,000.  Yes, it does appear that there was some discrepancy between Chow’s father and mother as to who paid in the money.  But it is not as if one said the money was never paid in.  Both were agreed a deposit was made.  Counsel for the applicant suggested that, if the credibility of the parents was damaged, that could go to the substance of the charge.  But how?  The real issue was whether the $50,000 was paid in by one or other of Chow’s parents.  Nothing turned on which parent.

35. The issue then seemed to be raised in argument – what if the tribunal could not be satisfied after cross-examination that either parent paid in the $50,000?  But that neglects the existence of the copy pay-in slip which the tribunal accepted into evidence.  The argument was then made that the authenticity of the pay-in slip had not been accepted.  So where does that lead?  If it was to lead anywhere, it had to be the defence case that it was a forgery of some kind.  For the father or mother to have concocted a forgery, however, they would have needed the help of a bank official.  I say that because the pay-in slip had on it a transaction code which an officer of the bank, in a banking affidavit, had said was genuine.

36. Of course, a defence that the applicant was the victim of a conspiracy involving forged documents could legitimately have been raised.  But was it?  Nowhere in the proceedings was a defence mounted that the applicant had been made the victim of some sort of conspiracy or even that there was good motive for it.  It was never suggested, for example, that the applicant was at odds with Chow.  It was never suggested that he had, for example, taken some official action against Chow or recommended action against him which would have given rise to a grudge.  To the contrary, it was shown that the applicant and Chow had met shortly after Chow’s release and socialised with each other.  Nothing was suggested to the effect that Chow’s parents had any reason – entirely independently of their son – to wish to act against the applicant.

37. What then is left?  What is left, said counsel, is the right to challenge credibility.  Yes, that is correct but only if the challenge has relevance.  An attack on credibility for its own sake, one in a vacuum, advances nothing.

Third challenge – the decision of the Commissioner on appeal to uphold the tribunal’s findings was irrational

38. Counsel for the applicant has accepted that this challenge stands or falls on the success or failure of the first two.  As the first two challenges have failed, this challenge, it is conceded, must fall away too.

Fourth challenge – in awarding his punishment in respect of the second charge the Commissioner had regard to matters of which he should not have had regard

39. This challenge goes only to the lawfulness of the penalty imposed in respect of the second charge; that is, the offence, contrary to Prison Rule 239(1)(2)(i), of communicating with Chow, without authority, by socialising with him in a bar.

40. The Commissioner awarded a penalty of compulsory retirement with deferred pension, the same penalty as that awarded in respect of the first charge.

41. In determining an appropriate penalty in respect of the second charge, it appears that the Commissioner came to the conclusion that the meeting in the bar was an arranged meeting not an accidental one.  In this regard, in a letter dated 15 March 2004 addressed to the applicant, the Civil Service Bureau quoted the Commissioner in the following terms :

“[The tribunal] in fact recognised that your meeting with the ex-prisoner, whether it was coincidental or pre-arranged, amounted to a communication with an ex-prisoner without authority and hence there was no need to pursue that issue.  However, as can be seen in the ICAC video-tape transcript … you told the ICAC officers that you did not remember whether ex-prisoner CHOW made an appointment with you or you made an appointment with him.  Ex-prisoner CHOW seemed to say that his younger brother had returned from either the USA or Canada and you were asked out for a drink.  You then said, ‘As you like.’  When asked about the name of the bar, you said to the ICAC officers, ‘(I) don’t remember.  Because what I liked about it was that there were parking spaces.  After the car was parked, (I) just went over there and intended to sit down and have a chat, to see how (he) was getting along.’  When questioned by the ICAC officers whether you contacted ex-prisoner CHOW apart from that occasion, you said, ‘Did not see him any more.  There was no contact even by phone.’  On the available facts stated above, [I am] satisfied that the meeting was a pre-arranged one.”

42. As the Commissioner recognised, the tribunal had not found it necessary to determine whether the meeting had been accidental or arranged.  However, in looking to moral culpability, the Commissioner clearly felt that he had to come to a finding.  It is the applicant’s case that he was not entitled to do so.  In assessing sentence, he was bound by the finding of facts made at first instance by the tribunal and could not go outside those facts.

43. But, of course, the tribunal had not come to a finding on the issue.  It was simply not necessary.  However, for the Commissioner, in looking to moral culpability, the issue could not be avoided.  The Commissioner did not, however, make a finding that was based on totally extraneous material.  The only evidence concerning the meeting was contained in the ICAC record of interview, a record that had been placed into evidence in the disciplinary proceedings without objection.  It seems to me that the Commissioner must have been entitled to have regard to evidence that was before the tribunal itself.  The Commissioner, of course, was in no position himself, for example, to assess the credibility of witnesses who testified or to go against findings of fact made by the tribunal.  But the ICAC interview spoke for itself and the Commissioner did no more than draw an obvious inference from plain language.  I do not see how that can be criticised as unlawful.

44. What if the ICAC interview had contained compelling mitigatory material?  On the applicant’s case, the Commissioner would have been obliged to ignore that too.  That does not seem to me to accord with the principle of procedural fairness.

Fifth challenge – failure of the Secretary for the Civil Service to give reasons for dismissing the applicant’s appeal

45. On behalf of the applicant it has been accepted that the Secretary does not, as a matter of course, have to give reasons.  It is argued, however, that in the present case, because of matters raised by the applicant, the Secretary was obliged to do so and the failure to do so constituted a material procedural unfairness.

46. Why was this case different from the normal?  Counsel has pointed to the fact that the applicant had raised the issue of bias.  On what is before me, however, there is nothing to suggest any credible accusation in that regard.  Indeed, counsel has accepted that clearly it had no basis.  Why then should the Secretary be obliged in law not only to consider the issue – which it must be presumed he did – but to give reasons too in respect of it?  That would place a burden on him that does not rest on judicial bodies.  Issues raised that have no substance at all do not demand the dignity of reasons.

47. I accept, of course, that there may be circumstances in which the Secretary is obliged to give reasons : see, for example, the dicta of Cheung J (as he then was) in Wong Wai Fan v. Commissioner of Correctional Services (unreported) HCAL 152/1999.  But in the present case nothing approaching such circumstances has been demonstrated to me.

Sixth challenge – failure to give the applicant the final say

48. This challenge arises from the undisputed fact that, after the applicant had made what he believed to be the final submissions to the Secretary for the Civil Service in respect of his appeal against the sentences imposed on him, a minute – M3 – was put before the Secretary.  This minute recommended that the applicant’s appeal be rejected and that the penalties of compulsory retirement for each of the two offences be confirmed.  The minute is a fairly lengthy one.

49. Undoubtedly, in my judgment, placing the minute before the Secretary without giving the applicant a chance to comment on it could constitute a material unfairness.  But I repeat that fairness is not a technical issue.  In this regard, I refer to the judgment of Deputy Judge Cheung (as he then was) in Chu Ping Tak v. Commissioner of Police [2002] 3 HKLRD 679, at 698, in which he said the first matter to be considered in cases of this kind is whether, as a matter of fairness, the material ought to have been disclosed to the applicant so as to afford the applicant an opportunity to respond to it.  I think that the minute should have been disclosed to the applicant.  The second matter to be considered, however, is whether the court should exercise its discretion to quash the decision or grant some other appropriate relief, if any.  At this second stage, the absence of prejudice, if such is the case, is a relevant factor to be taken into account.  As the judge said, if it is demonstrated that the non-disclosure did not result in material prejudice to the applicant, it would seem that the discretion of the court would most likely, if not inevitably, be exercised against the grant of any relief.

50. Was the applicant in any real sense prejudiced?  I do not believe so.  I say this because the applicant had been given an opportunity – and took advantage of that opportunity – to make substantial representations on appeal.  Thereafter, he received from the Civil Service Bureau, in a letter dated 15 March 2004, the full wording of the basis upon which the Commissioner had decided to award the punishments.  He was specifically invited to make comments in regard to those reasons and did so. 

51. It has been submitted that nevertheless there were matters in that final minute which, if the applicant had been given an opportunity to answer, he could have done.  But I can see nothing in that final minute which would have taken the applicant by surprise, certainly not in respect of material issues.  The minute does no more really than sum up the background to the case and then give recommendations.  The recommendations almost mirror what had been said in the letter of 15 March 2004 sent to the applicant as to why it was that the Commissioner felt that he could no longer place any trust in the applicant.  In this regard, the letter of 15 March said the following :

“You had patently abused the trust reposed in you to supervise the prisoner under your charge.  Your subsequent unauthorised contact with the same prisoner (after his release from prison) had adversely reflected on your integrity and general conduct.  Having regard to the circumstances of the case and your supervisory position and long service, we consider that your transgressions warranted removal from the service as you could no longer be trusted upon to discharge the duties of a custodial officer in the CSD.”

52. The applicant, in being given an opportunity to comment on those determinations by the Commissioner, would effectively have been commenting on much of the substance of the minute, M3.

53. In placing matters in context, what must be reiterated is that the proceedings in respect of which the applicant said he was denied a final say were concerned only with the penalties imposed on him by the Commissioner.

54. However, in assessing penalties, the courts will not lightly interfere with the findings of a professional tribunal.  As I said in Cheung Koon Kit v. Commissioner of Correctional Services (unreported) HCAL108/2003 :

“It is not for me to sit in the chair of the Commissioner.  The Commissioner has a broad discretion in these matters.  It is a discretion educated by his knowledge of the service which he commands and the real need to ensure that those in the service maintain high standards of discipline.  I fail utterly to see, in the light of all the factual circumstances, how it can be said that the Commissioner acted irrationally in this present case; that is, in a way which was not open to a reasonable Commissioner.”

55. In that same judgment, I observed that the Correctional Services Department has one function; that is, to ensure the integrity of the system of correctional detention in Hong Kong.  Once that integrity is undermined, it works not only to the detriment of society, not only to the detriment of officers themselves, but critically to the detriment of the prisoners.

56. In the present case, without wishing to be thought to be debating the merits, I am entitled, I believe, to take into account that, on any objective assessment, the offences of which the applicant was found guilty, were serious.  We are not therefore considering a case which may be said to have been ‘finely balanced’ as to the appropriate penalty.

57. The applicant held a position of responsibility over the prisoner Chow, a responsibility that prohibited him from having private financial dealings with him.  Despite this, one of Chow’s parents paid $50,000 into the applicant’s account.  That sum was almost double the applicant’s monthly salary.  The applicant did not report it.  To the contrary, in some manner which he failed to explain to the tribunal or to the Commissioner, he used the money.  For what purpose?  To pay off Chow’s gambling debts, to smuggle illicit material to Chow in prison?  It does not require a vivid imagination to understand how activity of this kind could undermine the integrity of the system.  And then, on top of it, within weeks of Chow’s release the applicant met him in a bar and socialised with him.  Viewed as a whole, it is difficult to see how it could be hoped with any realism that, if the matter of penalty was remitted by this court to the Secretary for the Civil Service or the Commissioner, a lesser set of penalties than those imposed would be possible.

58. Judicial review is a discretionary remedy.  Of course, unlawful or unfair conduct, either in the way proceedings are conducted or in a substantive determination, will not lightly be overlooked.  But when a case on the merits is a strong one, and the wrongful conduct complained of is not substantial, our courts will not readily remit a matter for re-determination when manifestly, because the merits are so strong, it would be an entirely purposeless exercise.

59. As a footnote on the question of penalties, counsel for the respondents has pointed out that if the penalty for the second charge was perhaps reduced – that being a feasible option – it could visit an extra harm on the applicant.  If, for example, in respect of the second charge, the applicant was reduced in rank, it would mean that when he came to receive his deferred pension it would be at a lower rate than he is entitled to now.

60. For the reasons given, therefore, this application for judicial review is dismissed.  In respect of costs, I see no reason why they should not follow the event.  I am told that the applicant is legally aided.  There will therefore be an order for legal aid taxation.

61. Before finishing this judgment, I feel I must cite from the judgment of the House of Lords in R v. Independent Television Commissioner, ex parte TSW Broadcasting Limited [1996] JR 185 (HL) in which Lord Templeman said the following at page 195 :

“Of course, in judicial review proceedings, as in any other proceedings, everything depends on the facts.  But judicial review should not be allowed to run riot.  The practice of delving through documents in conversations and extracting a few sentences which enable a skilled advocate to produce doubt and confusion when none exists should not be repeated. 

I regret to say that, in my view, these observations have direct relevance in respect of the manner in which this application has been prepared and argued.