TSUI KIN KWOK JOHNNIE v. COMMISSIONER OF POLICE

HCAL 50/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 50 OF 2009

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BETWEEN

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J U D G M E N T

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Facts

1.  This is an application for leave to apply for judicial review.

2.  The applicant used to be a police officer. In March 1997, he was charged with two counts of “contravention of police orders” and 12 counts of “absence from duty without leave or good cause” in police disciplinary proceedings. At the relevant hearing, he pleaded guilty to all counts and agreed with the brief facts relating to each count. He was found guilty of all counts and he submitted a written plea of mitigation. The adjudicating officer considered that the punishment he could award was not sufficient to meet the severity of the convictions and so referred the case to a senior police officer. The senior police officer made an award of “severe reprimand” for each of the counts on 16 April 1997. In July 1997, a special report on the applicant’s performance was issued. The force discipline officer, having considered the applicant’s written representation, later increased the awards for four of the counts to “compulsory retirement, suspended for 12 months” and forfeiture of pay. The applicant did not appeal. On 25 August 1997, the Commissioner ratified the findings and awards made.

3.  In April 1998, the applicant was again involved in disciplinary proceedings. He was charged with one count of “conduct calculated to bring the public service into disrepute” and one count of “absence from duty without leave or good cause”. He pleaded not guilty to both counts. After hearings on 13 May 1998 and 2 June 1998, he was found guilty of the first count only on 9 June 1998. On 12 June 1998, he was sentenced and the award of “severe reprimand” was made. He did not appeal. On 25 November 1998, the Commissioner ratified the finding and award made.

4.  In the meantime, the award of “compulsory retirement, suspended for 12 months” made in the 1997 proceedings came up for review in May 1998. In a special report on the performance of the applicant prepared in June 1998, it was recommended that in view of the applicant’s poor performance during the period of suspension, the suspended award be executed. After considering the applicant’s written submission, on 8 October 1997, the force discipline officer decided to execute the suspended award on the ground that the applicant had demonstrated a complete lack of trustworthiness during the period of suspension.

5.  On 8 October 1998, the Commissioner of Police informed the applicant that he would be retired compulsorily from the force, with deferred pension, with effect from 15 October 1998, and that he would be interdicted with immediate effect.

6.  According to the applicant, “between 1997 and 1998”, he discussed with a lawyer about the viability of commencing judicial review proceedings to challenge the constitutionality of the disciplinary proceedings concerned. However, according to the applicant, the lawyer did not advise him that he had been deprived of the right to legal representation in the proceedings. According to the applicant, he also applied to the Legal Aid Department for the same purpose. However, the application was rejected for lack of merits. No legal challenge was mounted.

7.  In any event, the applicant reached the age of 55 on 27 June 2008 – the compulsory retirement age for police officers, and he has been receiving pension since then.

Present challenge

8.  Based on the Court of Final Appeal’s decision in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575 (26 March 2009), on 11 May 2009, the applicant sought leave to apply for judicial review against the relevant decisions in the 1997 and 1998 disciplinary proceedings, claiming that his right to a fair hearing in those proceedings had been infringed, in contravention of article 10 of the Hong Kong Bill of Rights.

9.  The applicant seeks, by way of substantive relief, an order of certiorari to quash the relevant convictions and sentences in the disciplinary proceedings. He also seeks, alternatively, an order of mandamus to require the Commissioner of Police to review the relevant disciplinary decisions.

10.  In relation to his proposed challenge against the convictions and sentences made in the disciplinary proceedings, the applicant accepts that prima facie, he is out of time, and he therefore seeks, insofar as may be necessary, an extension of time from the Court to make his challenge.

11.  However, the applicant also seeks, in the alternative, a declaration that the three-month time restriction laid down in Order 53, rule 4 of the Rules of the High Court (Cap 4A) is inconsistent with section 6(1) of the Hong Kong Bill of Rights Ordinance (Cap 383), and therefore shall not be applied in any action for breach of the Ordinance, or in other proceedings (including judicial review proceedings) in which a violation or threatened violation of the Hong Kong Bill of Rights is relevant.

12.  The applicant also seeks damages to be assessed.

13.  Originally, the applicant also sought to challenge the leave requirement laid down in Order 53, rule 3, insofar as proceedings complaining about a breach of the Hong Kong Bill of Rights are concerned. But at the hearing, Mr Anthony Butt, for the applicant, decided to drop the proposed challenge.

Legality of the time limit in Order 53, rule 4

14.  It is trite that leave to apply for judicial review may be granted if the reasonable arguability test is satisfied: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. Equally basic is the specific time requirement laid down in Order 53, rule 4:

“(1)  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

(3)  The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.”

15.  Rule 4 is plainly founded on section 21K(6) and (7) of the High Court Ordinance (Cap 4):

“(6)  Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant –

(a)  leave for the making of the application; or

(b)  any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(7)  Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.”

16.  The applicant’s proposed challenge against the legality of Order 53, rule 4 is based entirely on section 6(1) of the Hong Kong Bill of Rights Ordinance:

“A court or tribunal –

(a)  in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b)  in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.”

17.  Mr Butt, for the applicant, heavily relies on the following observations made by Sir Anthony Mason NPJ in Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170, 208-209, in support of his contention about the width of section 6(1):

“111. … The width of s.6(1) is not in doubt; it authorizes the court to grant such remedy or relief, or make such order, in respect of such breach or violation as it has power to make or grant in the proceedings as it considers appropriate and just.  Section 6(1) is directed not only to the case of reading down a statute in order to avoid a breach or violation of the BOR [ie the Hong Kong Bill of Rights] but also to invalidating a statutory provision when an interpretive remedy is not possible.  There is no relevant limit on this Court’s power under s.6(1) unless such a limit is to be found in the sub-section itself.

…

113.  Nonetheless, it seems to me that s.6(1) should be interpreted in accordance with its wide language as conferring power to strike down a non-infringing provision where to do so best conforms with the legislative intention.  To exercise the power in that way is not to thwart the will of the legislative but rather to respect its will and give effect to its intention by giving the legislation as effective an operation as it can be given consistently with the BOR.  Section 6(1) should be construed, in accordance with its terms, as conferring a power which will enable the courts to resolve the tension which exists between the legislative will and the protection given by the BOR by striking down only that part of the statute that causes the violation or breach, even if it does not itself infringe the BOR, when to do so best gives effect to the legislative intention.”

18.  Mr Butt contends that there is no “relevant limit” on the court’s power under section 6(1), unless such a limit is to be found in the subsection itself – but none can be found. Counsel submits that insofar as Order 53, rule 4 seeks to place such a limit on the power of the court to grant relief under section 6(1) for a breach or threatened breach of the Hong Kong Bill of Rightsby imposing a time limit for seeking relief, it is inconsistent with section 6(1) and has no application.

19.  This contention must be rejected. I agree with Mr Godfrey Lam SC (Mr Mike Lui with him), for the Commissioner, that Mr Butt has taken Sir Anthony Mason NPJ’s observations totally out of context. In the relevant part of his judgment in Koon Wing Yee, the learned Judge was discussing the Court’s power under section 6(1) of the Hong Kong Bill of Rights Ordinance to strike down a statutory provision that does not, by itself, infringe the Hong Kong Bill of Rights, in order to render the Ordinance, in which the provision is found, compatible with the rights guaranteed in the Bill of Rights. It was in that context that his Lordship observed there was “no relevant limit” on the Court’s power under section 6(1) to do so, unless such a limit was to be found in the subsection itself.

20.  If Mr Butt were correct in his submission, the same logic would have required the Court of Final Appeal and the Court of Appeal in Hung Chan Wa, Lau Luen Hung Thomas and Ho Ho Chuen, cases to be discussed in the latter part of this judgment, to strike down or otherwise disapply the relevant time provisions regarding the lodging of appeals in the relevant legislation, as those cases also concerned (alleged) violations of rights guaranteed by the Hong Kong Bill of Rights.

21.  In my view, section 6(1) does not concern itself with whether there can be time restrictions on seeking relief for a breach or threatened breach of the rights guaranteed under the Hong Kong Bill of Rights, and what those restrictions may be. On the other hand, section 21K(6) and (7) of the High Court Ordinance specificallysanction the refusal of leave to apply for judicial review in case of delay, and recognise that there may be rules made to limit the time within which an application for judicial review may be taken out. Order 53, rule 4 has been made by the Rules Committee accordingly.

22.  For the sake of completeness, I should point out that, of course, if the time restrictions so laid down are themselves in breach of any rights guaranteed under the Hong Kong Bill of Rights, that may give rise to a ground for challenging the constitutionality of those time restrictions, given that the rights guaranteed under the Bill of Rights have been constitutionally entrenched under article 39(1) of the Basic Law. However, such a challenge would be a challenge based on the Bill of Rights itself. It would have nothing to do with section 6(1) of the Hong Kong Bill of Rights Ordinance, save that section 6(1) confers jurisdiction on the courts to grant appropriate relief for any violation of the Bill of Rights.

23.  In the present case, Mr Butt has not suggested that any rights under the Bill of Rights have been infringed by the time restrictions laid down in Order 53, rule 4. He relies solely on section 6(1) of the Hong Kong Bill of Rights Ordinance.

24.  For the above reasons, the proposed challenge is not reasonably arguable. Leave must be refused to mount such a challenge.

Applicant is out of time

25.  I turn to the question of an extension of time.

26.  First, I reject Mr Butt’s preliminary argument that time only started to run as from the date of judgment by the Court of Final Appeal in Lam Siu Po. In my view, it is beyond argument to the contrary that in the present case, time started to run from each of the relevant decisions made in the disciplinary proceedings in 1997 and 1998 respectively: Order 53, rule 4(2); cf Lau Luen Hung Thomas v Insider Dealing Tribunal HCMP 1017/2008, 9 April 2009 (CA), para 29.

27.  In other words, the applicant is very much out of time.

Good reason for extending time?

28.  Unless the Court considers that there is “good reason” for extending the period within which the application for judicial review of the decisions made in the disciplinary proceedings shall be made, that must be the end of the applicant’s proposed challenge.

29.  Although various reasons have been put forward by Mr Butt to show why time should be extended, they all boil down to these points:

(1)  There has been a change in law, or more correctly, a change in the understanding of the law in the sense that the previous understanding of the law has subsequently been held to be incorrect.  The context here is whether article 10 of the Hong Kong Bill of Rights, guaranteeing the right to a fair hearing, applies to police disciplinary proceedings, the procedural rules of which used to place restrictions on the right to appear at hearing by lawyers; and if the answer is in the affirmative, whether those restrictions infringed the right guaranteed.

(2)  The merits of the proposed challenge, in terms of what might or would have happened to the results of the disciplinary proceedings if the applicant had been allowed to appear by lawyers of his choice.

(3)  The steps that the applicant took, did not take, or could or could not have reasonably taken, and the advice he received, during the disciplinary proceedings, or after the results thereof were known; and other reasons for the delay.

(4)  The prejudice to the applicant in terms of money, career, reputation, the sense of injustice, feelings and so forth.

(5)  The comparatively lack of real prejudice to the Commissioner if an extension of time is to be granted.

(6)  Miscellaneous considerations.

30.  I find all of them to be relevant considerations. Indeed, the entire circumstances of each individual case must be looked at, and the discretion of the Court must be exercised in accordance with the facts and circumstances in each individual case.

Change in the understanding of the law and consideration of finality

31.  However, a change in the understanding of the law cannot, by itself, justify an extension of time, save in exceptional circumstances: HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 (an unsuccessful application for an extension of time to appeal in a criminal matter); Lau Luen Hung Thomas v Insider Dealing Tribunal HCMP 1017/2008, 9 April 2009 (CA); FAMV 46/2009, 4 December 2009 (CFA) (a failed application for an extension of time to appeal from a penalty order made by the Insider Dealing Tribunal); Ho Ho Chuen v Commissioner of Police HCMP 2276/2009, 18 December 2009, Tang VP (a failed application for an extension of time to appeal on a new ground based on Lam Siu Po in an unsuccessful application for judicial review concerning police disciplinary proceedings).

32.  These decisions are, of course, all binding on this Court. Whilst Hung Chan Wa concerned a criminal matter and Lau Luen Hung Thomas involved an intended appeal from an order made by a statutory tribunal, in Ho Ho Chuen, the learned Vice-President had to deal with an intended appeal from an order and judgment of the Court of First Instance given after a substantive hearing on an application for judicial review, involving police disciplinary proceedings. The new ground sought to be relied on in the intended appeal was based squarely on Lam Siu Po.

33.  It is true that in all these cases, the courts were concerned with an application for time to appeal, rather than an application for time to apply for leave to apply for judicial review. However, in my view, this is an immaterial distinction. What is involved in either situation is the exercise of the court’s discretion to extend time notwithstanding the time restrictions laid down in the relevant provisions. As the courts have emphasised in these cases, finality is an important public policy to bear in mind. Finality, in this regard, is not limited to orders or judgments made by a superior court of record. In Lau Luen Hung Thomas, a penalty order made by the Insider Dealing Tribunal was the subject matter of the proposed appeal. In Ho Ho Chuen, although the judgment of the Court of First Instance was in issue, the underlying dispute arose out of decisions made in police disciplinary proceedings.

34.  Bearing in mind the nature of police disciplinary proceedings and the elaborate statutory procedure involved, I have no doubt that consideration of finality applies to decisions made in those proceedings as it applies to judgments and orders made in conventional courts of law.

35.  It is true that in Chau Cheuk Yiu v Poon Kit Sang, HCMP 121/2010, 2 February 2010, Rogers VP granted leave to the applicant to appeal out of time from a judgment given in 2007 dismissing his application for judicial review against decisions made in police disciplinary proceedings on the basis of Lam Siu Po. However, despite the superficial similarities, the decision is clearly distinguishable from Ho Ho Chuen because in Chau Cheuk Yiu, one of the original grounds of challenge in the court below was that the relevant regulations were in contravention of article 10 of the Hong Kong Bill of Rights. However, at the substantive hearing, the point was abandoned by the applicant (who was acting in person) given the then state of the law (see below): paras 5 and 6 of Rogers VP’s judgment. It is thus fully understandable, if I may say so with respect, why the Vice-President thought it appropriate to grant leave to allow the applicant to revive and pursue the article 10 point by way of an appeal out of time. Nothing of that sort happened in Ho Ho Chuen or in the present case.

36.  Likewise, Chiu Hoi Po v Commissioner of Police, FACV 9/2009, 24 July 2009, is an entirely different case. There, the Court of Final Appeal gave leave to the applicant to take the article 10 point for the first time before that Court. However, it should be noted that the applicant had taken a similar point about legal representation in police disciplinary proceedings based on article 35 of the Basic Law at the first instance hearing (which was rejected): HCAL 105/2003, 26 April 2006, Chung J. More importantly, his appeals to the Court of Appeal ([2008] 4 HKLRD 67) and to the Court of Final of Appeal were all lodged in time and there was no question of his requiring any extension of time for him to do so. What was in issue was whether he should be allowed to argue on appeal a new point based on article 10 of the Hong Kong Bill of Rights. It was a point he introduced for the first time in his notice of appeal served on 6 June 2006 shortly after the first instance judgment.

37.  Similarly, Lam Chi Pan v Commissioner of Police [2010] 1 HKC 120 concerned only the raising of a new point (based on Lam Siu Po) in an appeal, which had been lodged within time. No extension of time was in issue.

Substantive merits

38.  As regards the suggested merits of the applicant’s substantive challenge,as was pointed out by the Court of Appeal in Lau Luen Hung Thomas (para 25), the fact that the appeal (if allowed to be lodged out of time) is likely to succeed is not a sufficient exceptional circumstance for leave to be granted, although lack of substantial merits in an appeal would be a good reason to refuse leave. In Lau Luen Hung Thomas, a proposed appeal against a penalty imposed by the Insider Dealing Tribunal pursuant to provisions that had since been struck down by the Court of Final Appeal was not allowed to be lodged out of time.

39.  In the present case, I do not find the merits of the applicant’s proposed challenge particularly impressive. The applicant, it has to be remembered, pleaded guilty to all charges in the 1997 proceedings. Furthermore, the relevant provisions about legal representation in police disciplinary proceedings at the time only placed a restriction on appearance by lawyers; they did not prohibit the obtaining of advice or assistance from lawyers.

40.  In any event, I place very little weight on this factor.

Relevant steps and inaction

41.  As regards what the applicant did or did not do at the material times, or what he could or could not reasonably have done, and the advice he received, again I find nothing exceptional in the present case.

42.  As mentioned, a change in the understanding of the law in the sense that the previous understanding of the law has subsequently been held to be incorrect is not by itself a reason for allowing an extension of time. A fortiori, where the law was very much “open” at the material times. In the context of the present case, as a matter of fact, back in 1997 and 1998, the law about a police officer’s right to a fair hearing in disciplinary proceedings was still very much arguable. There was simply no High Court (or Court of Final Appeal) decision on the point.

43.  As has been traced by Mr Lam in his written submissions, the first relevant decision at the level of the Court of First Instance appears to be the decision of Chu J in 陳國雄訴香港警務處處長曾蔭培，HCAL 86/2003, 17 May 2004, paras 30 to 37. Her Ladyship held that the relevant provisions restricting legal appearance did not contravene article 10 of the Hong Kong Bill of Rights.

44.  Later in the same year, the Judge followed her own decision in陳庚秋訴香港警務處處長，HCAL 98/2004, 25 October 2004, paras 13 and 14; and again in 區 志豪對香港警務處處長，HCAL 50/2004, 4 November 2004，paras 21 to 23.

45.  The first decision on the point at the Court of Appeal level appears to be the decision of Woo VP in陳庚秋訴香港警務處處長，HCMP 2824/2004, 19 November 2004, in which Woo VP refused to extend time for appeal against Chu J’s decision. The Vice-President’s decision was affirmed by a two-man Court of Appeal on 29 December 2004, which held at paragraph 51 of its judgment that article 10 could not be invoked in the context of police disciplinary proceedings. That decision was followed by the Court of First Instance and the Court of Appeal in a number of subsequent cases until it was overruled by the Court of Final Appeal in Lam Siu Po (at para 106).

46.  In those circumstances, from any perspective, it was entirely open to the applicant to challenge the constitutionality of the relevant regulation restricting appearance by lawyers in police disciplinary proceedings back in 1997 and 1998/1999. The fact that the applicant, according to him, did not receive legal advice on that possible challenge and the fact that his legal aid application was, according to him, rejected for want of merits, could not, by themselves, constitute “good reason” for extending time, or be given much weight in the overall consideration of the case.

47.  That said, I should not be taken as suggesting that if the law back then had been well settled, it would have made much difference. As explained, a change in the understanding of the law in the sense that the previous understanding of the law has subsequently been held to be incorrect cannot, by itself, justify an extension of time, save in exceptional circumstances. All I have tried to point out is that the present case is an a fortiori one.

Prejudices etc from the applicant’s perspective

48.  I have borne in mind the suggested prejudices, injustice and sense of grievance. They are inevitable matters when a court refuses an application for an extension of time, particularly if the case has (substantive) merits.

49.  Whilst they are relevant considerations, I do not think much weight can be given to them.

Detrimental to good administration

50.  I do not agree that if time were to be extended, the Commissioner would suffer no or little real prejudice. What is in issue is whether the delay in question would be detrimental to good administration. Besides the question of the possible opening of a floodgate, which is a highly relevant consideration in the present context, the very idea that disciplinary decisions made more than 10 years ago could, due to a subsequent change in the understanding of the law, be re-opened, must be, in my view, detrimental to the good administration of the Police Force. Moreover, practical difficulties of rehearing the disciplinary matters after the lapse of so many years cannot be under-estimated. Reinstatement in the present case is an impossibility.

Miscellaneous considerations

51.  As I said, there were other miscellaneous points made by counsel on behalf of the applicant. Suffice it to say that they have all been borne in mind by the Court.

52.  Leung v Secretary for Justice [2006] 4 HKLRD 211, which Mr Butt relies on, is a wholly different case. There, the Court was concerned with the constitutionality of a piece of legislation. The Court considered that where a statute is indeed unconstitutional, it should take the first available opportunity to grant the appropriate relief. It was a wholly different situation from the one here, where what the applicant seeks is relief relating to his disciplinary proceedings in 1997 and 1998, as opposed to the constitutionality of any legislation.

Extension of time refused

53.  Having considered all relevant matters and the case as a whole, I have come to the firm conclusion that time should not be extended.

Failure to review earlier decisions?

54.  That leaves the proposed challenge against the recent decision of the Commissioner not to review the decisions made in the 1997 and 1998 proceedings following a request to that effect by the applicant’s solicitors. That explains the mandamus sought in the amended Form 86.

55.  This is a non-starter. The applicant cannot circumvent the time restriction placed by Order 53, rule 4 by writing to the Commissioner asking him to review his or his officers’ decisions made years ago which have never been challenged before. The refusal of the Commissioner to so review his earlier decisions does not constitute a decision that may be challenged in an application for judicial review. To hold otherwise would make a mockery of the time restriction laid down in Order 53, rule 4. The situation might have been different if the decision-making body had been under a (continuing) duty or had had power to review its earlier decisions. But this is not such a case. The Commissioner is, in fact, functus officio, in the matter.

Outcome

56.  For all these reasons, the application for an extension of time is refused, and the application for leave to apply for judicial review is dismissed. The parties are agreed that costs should follow the event, and Mr Butt accepts that there should be a certificate for two counsel in the event that the Commissioner is successful in resisting his applications. I therefore further order that the costs of these proceedings, including all applications by summons made by the applicant and returnable before the Court on 2 February 2010, be paid by the applicant to the Commissioner, to be taxed if not agreed, together with a certificate for two counsel. The same applies to all costs previously reserved.

57.  I thank counsel for their assistance.