LAM CHI PAN v. COMMISSIONER OF POLICE

 HCAL93/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 93 OF 2005

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J U D G M E N T

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1. In this application, the applicant seeks to judicially review the following decisions in connection with his disciplinary proceedings:  

(1)  The decision of the Adjudicating Officer (“AO”) of 13 December 2004 finding the applicant guilty of the charge of conduct calculated to bring the public service into disrepute.

(2)  The decision of the Senior Police Officer (“SPO”) of 23 December 2004 confirming the guilty finding and awarding punishments of severe reprimand and compulsory retirement with deferred benefits.

(3)  Decisions of the Force Discipline Officer (“FDO”) (a) of 7 February 2005 confirming the guilty finding of the AO; and (b) of 19 February 2005 substituting the award of an order to resign forthwith without salary in lieu of notice for the award of punishment made by the AO.

(4)  Decision of the Deputy Commissioner of Police, Management (“DCP(Man)”) of 4 May 2005 dismissing the applicant’s appeal against the finding of guilt and the FDO’s award of punishment. 

(5)  Decision of the Commissioner of Police (“the Commissioner”) of 9 May 2005 confirming the AO’s finding of guilt and the FDO’s award of punishment.

(6)  The decisions of the Commissioner dated 27 May 2005 dismissing the applicant from the Police Force with immediate effect and forfeiting the applicant’s earned leave.

The facts

2.  The applicant was aged 31 at the time of the disciplinary proceedings. He joined the police force as a police constable in April 1999. In September 2003, the applicant was attached to Waterfront Police Station.

3.   On 24 September 2003, as part of a covert operation against hoax 999 calls targeting at Consulates, the police carried out observations on a number of public telephone booths. One of the observation posts was at the Star Ferry Pier in Central, which was manned by Detective Police Constable (DPC) 48729 and Woman Detective Police Constable (WDPC) 56667.  

4.  At around 1740 hours on that day, the 999-call operator received a hoax call that smoke was found at the Israeli Consulate at Admiralty Centre. By tracing the line, police found that the call was made from a public telephone numbered PP11992 (the Telephone) that was located at the Star Ferry Pier, Central.

5.  Meanwhile and before being alerted to this hoax call, DPC 48729 and WDPC 56667 spotted a man using the Telephone. Before that, they had observed that there was about thirty minutes during which no one had used the Telephone.  As the two officers approached the telephone booth, they saw the man had a piece of issue in his hand and he was placing the handset back onto the Telephone. As this man walked away from the telephone booth, DPC 48729 and WDPC 56667 revealed their police identity and stopped him for an identity card check. Thereupon, the man said he was also a policeman and produced a police identity card from his wallet. DPC 48729 found the photo on the warrant card resembled the man while WDPC 56667 saw the warrant card carry the words “police constable”. When being asked about the tissue paper in his hand, the man said there was SARS. At this point, the two officers were distracted by another man who appeared near the telephone booth. The man they stopped then claimed he was in a hurry and left, and the two police officers did not take down his particulars. The second man did not use the Telephone.

6.  Shortly after this, the two police officers were notified of the hoax call made from the Telephone. They tried to trace the man they had stopped but to no avail.

7.  In the afternoon of 25 September 2003 and WDPC 56667 went to Waterfront Police Station to take part in a group identification procedures.  When she was at the lift lobby, she saw the man she had stopped at Star Ferry Pier the day before.  She immediately related this to the detective sergeant who was with her.  However, the man could not be traced. Out of three groups of police officers, WDPC56667 identified the applicant as the man she had intercepted at the Star Ferry Pier and the man she had seen at the lift lobby inside the police station.

8.  The applicant was arrested for the offence of causing wasteful employment of police. He denied the offence under caution.

9.  In the same evening, DPC 48729 positively identified the applicant in a one-way viewer identification parade at Hong Kong Island Regional Headquarter.

10.  An Octopus card was seized from the applicant. The transaction record of the Octopus card revealed that it had been used to enter the Sheung Wan MTR station at 16:27:07 hours and to exit the Central MTR station at 16:33:56 hours on 24 September 2003. On that day, the applicant was on Report Room duty at the Waterfront Police Station between the hours of 07:30 and 16:15 hours.    

11.  No criminal prosecution was brought against the applicant.

Disciplinary proceedings

12.  On 25 October 2004, disciplinary proceedings were commenced against the applicant. He was charged with a total of six charges of disciplinary charges. They are one charge of conduct calculated to bring the public service into disrepute (Charge A), one charge of contravention of police orders (Charge E) and four charges of making a statement false in a material particular (Charges B to D and F).

13.  The present application is only concerned with the charge of conduct calculated to bring the public service into disrepute. The particulars of the charge reads:

“PC1844, LAM Chi-pan, of the Hong Kong Police Force, you are charged that at about 1740 hours on 24^th September 2003 at public payphone PP 11992, outside Star Ferry Pier, Central in Hong Kong, you did make a hoax call to 999 console operator saying that there was smoke found at Israel Consulate at 7/F, Admiralty Centre, such act being calculated to bring the public service into disrepute.”

14.  The other five charges arose out of the investigations of the applicant and statements he gave to the police in connection with the investigation of hoax calls.

15.  The applicant pleaded not guilty to all the charges.  Throughout the disciplinary proceeding hearing, the applicant was represented by Senior Inspector Lam Kwok Chu Antonio (“SIP Lam”). On 13 December 2004, the AO found the applicant guilty of the charge of conduct calculated to bring the public service into disrepute, but found him not guilty of the other five charges. The AO was of the view that he might not have sufficient power to award the appropriate punishment and referred the award of punishment to a Senior Police Officer. 

16.  On 23 December 2004, the SPO confirmed the finding of guilt and awarded the punishments of severe reprimand and compulsory retirement with deferred benefits.  On 19 February 2005, the FDO substituted the SPO’s award of punishment with punishments of severe reprimand and order to resign forthwith without salary in lieu of notice.

17.  The applicant’s appeal to the Commissioner of Police was dismissed by the DPC(Man) on 4 May 2005.  On 9 May 2005, the Commissioner confirmed the finding of guilt and the FDO’s award of punishments. As the applicant did not submit his resignation forthwith, the Commissioner dismissed him from the Force with immediate effect on 27 May 2005 and also forfeited his earned leave.      

Application for judicial review

18.  On 22 July 2005, the applicant filed his Form 86A to seek leave to apply for judicial review. A variety of grounds were stated in it. After holding an oral hearing, Cheung J refused to grant leave.

19.  The applicant appealed against the refusal to the Court of Appeal under case no. CACV 408/2005. The applicant also applied for leave to adduce fresh evidence at the appeal. The fresh evidence was his 2^nd affirmation and an affirmation of SIP Lam, both made on 21 November 2006.

20.  On 1 December 2006, the Court of Appeal admitted the fresh evidence and gave leave to the applicant to amend the Form 86A to rely on a new ground. The Court of Appeal further granted leave to apply for judicial review on the new ground.

Ground for judicial review

21.  The new ground, which becomes the sole ground for judicial review in this application, reads:

“The Applicant did not have a fair hearing before the Adjudicating Officer from 22 November 2004 to 25 November 2004 in that:

(1) despite the clear instruction given by the Applicant that he was not the person stopped by the two police officers at the Star Ferry Concourse at the material times, his representative had failed to appreciate the critical importance of the police’s identification evidence to the Applicant’s case and failed to challenge the identification evidence in the said hearing; and

(2) such failure had resulted in the fairness of the hearing being compromised.”

Issues

22.  Mr Dykes SC framed the issue for determination in this application as: Whether the incompetence of defence representative in disciplinary proceeding that goes to a critical aspect of the case merits the intervention of the court by way of judicial review. This presupposes that the failure of the applicant’s representative to challenge the identification evidence at the disciplinary hearing was due entirely to his incompetence and that this resulted in unfairness to the applicant.

23.  However, in determining this judicial review, the court not only has to address the legal question as framed, but also has to consider whether, on the facts and circumstances of the case, the failure to challenge the identification evidence at the disciplinary hearing can be said to be due entirely to the incompetence of the applicant’s representative and to have resulted in unfairness to the applicant.  I shall deal with these issues in turn. 

The cases

24.  Counsel are in agreement that in criminal law, a conviction can be quashed on appeal on the ground of incompetence of counsel. In Chong Ching Yuen v. HKSAR (2004) 7 HKCFAR 126, the Court of Final Appeal held that although as a general rule an accused was bound by the way the trial was conducted by counsel, in exceptional instances, if incompetence of defence counsel has resulted in the trial being something less than a fair trial, such incompetence constitutes a ground for quashing the conviction.  The critical question is whether the accused had a fair trial. It was also emphasized that there has to be a high degree of incompetence on the part of the defence representative in order to succeed. The accused has to show much more than a mistake, an error of judgment, or a decision to follow one course when in hindsight another would have been preferable.

25.  Counsel however are in disagreement as to whether the principle can be extended to the public law. A number of cases had been cited and I shall deal with them in turn. The first is Yeung Kwok-Fai v. The Commissioner of Police and Anor (unreported) CACV 71 of 1998. In that case, the appellant, who was a police inspector, was charged with a number of disciplinary offences. The defence representative he preferred could not attend the hearing and he advised the applicant to get another defence representative to represent him to apply for an adjournment. He did not advise the applicant to prepare to defend himself in case the adjournment was refused.   The Tribunal did not allow the adjournment. The hearing proceeded and the appellant was convicted. The appellant complained that he was not properly prepared for the hearing. His application for leave to judicial review was refused. His appeal to the Court of Appeal was allowed. Mortimer VP held that in the very special circumstances of the case, there was a real risk that the failure to give an adjournment has caused injustice.  Although it was considered that the appellant was partially the victim of the advice that was given to him, the Vice President expressly refused to go into the question of whether the appellant was at fault in bringing about the state of affairs (at p.6).  The other member of the Court of Appeal, Liu JA, was of the view that there was a right to appear by a competent representative and the representative who appeared should be given time to prepare and that no reasonable tribunal could have refused the adjournment. He was further not persuaded that the deprivation of proper representation could be said to be due to the appellant’s own fault.

26.  Clearly, the concern of the Court of Appeal was that the refusal of an adjournment had caused injustice to the appellant. The issue of incompetence of representative or whether the appellant was at fault was not at the forefront of the court’s consideration. The decision does not shed light on the issue of law in question.

27.  The next authority is King v. Thomas McKenna [1991] 2 QB 480. This case concerns whether an arbitral award should be remitted to the arbitrator for reconsideration on costs on the ground of procedural mishap. What happened was counsel had mistakably failed to communicate a request for deferred award on costs. The English Court of Appeal held that the power to remit under the 1950 Arbitration Act was a wide one and would extend to cases where, notwithstanding the arbitrators have acted with complete propriety, due to mishap or misunderstanding, some aspects of the dispute had not been adjudicated on in a manner to which the parties were entitled and it would be inequitable for the ward to take effect without further consideration by the arbitrator.  This case turns essentially on the jurisdiction to remit awards. With the amendments under the 1996 Act, it has now been regarded as a doubtful authority: see, for example, Merkin R., Arbitration Act 1996 (2000), p.144. What is of interest to note is the Court of Appeal’s observation that the award would have not been remitted if it had been a deliberate or considered decision by the counsel not to ask for the issue of costs to be stood over (at pp.497 and 498).

28.  Mr Dykes SC also referred to R (Aston) v. Nursing & Midwifery Council [2004] EWHC 2368 (Admin) and R (Rentmore) v. Hampshire County Council [2004] EWHC 3193 (Admin). They are both appeals brought under Part 52 of the Civil Procedure Rules 1998, which provides that the court may allow an appeal where the decision was wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court.  It was accepted in both cases that very serious incompetence of the advocate leading to an unjust decision is a sufficient ground for appeal under Part 52. Both decisions stressed that it was the consequences rather than the advocacy or the incompetence that forms the basis of the court’s intervention. Hence, an applicant must show that the wholly inadequate conduct of the advocate did affect the fairness of the process.

29.  Likewise, the case of Gurusinghe v. Medical Council of New Zealand [1989] 1 NZLR 139 is also a statutory appeal. The appellant complained there was miscarriage of justice in the disciplinary hearing before the Medical Council in that he had been inadequately or negligently represented. The Full Court referred to the principles set out in the criminal case of R v. Pointon [1985] 1 NZLR 109, 114 on complaints against counsel as a ground of appeal. After detailed analysis of the various complaints made against the representative and their effects on the outcome of the hearing, the Court concluded that there was no inadequate or negligent representation that could amount to miscarriage of justice.  

30.  Mr Dykes SC also referred to two Canadian cases, Sheikh v. Canada (Minister of Employment & Immigration) [1990] 3 FC 238 and Shirwa v. Canada (Minister of Employment & Immigration) [1994] 2 FC 51. They were appeals from judicial reviews stemming from hearings before the Convention Refugee Determination Division to determine whether the applicants were Convention refugees. In Sheikh case, the counsel assigned to the applicant had on several occasions during the hearing fell asleep. In Shirwa case, the representative failed to put before the tribunal evidence in support of the applicant’s refugee claim and further did not provide a written submission on important issues in the case despite his undertaking to the tribunal to do so.  The Federal Court of Canada considered that incompetence of counsel in the context of a refugee hearing is a ground for judicial review based on breach of natural justice. It held that a decision may be reviewed in extraordinary circumstances, where there is sufficient evidence to establish the exact dimensions of the problem and where the review is based on a precise factual foundation, notwithstanding there is no bad faith or failure to act on the part of the tribunal. In Sheikh case, the court refused to judicially review the decision because there was no evidence to show the exact dimension of the problem, hence the prejudice caused by the sleeping counsel.  In Shirwa case, the court allowed the judicial review on the basis that the incompetence and negligence of the representative was inherently prejudicial to the applicant and the prejudice amounted to a denial of natural justice in that the applicant was denied a full and fair hearing.                  

31.  In all these cases, there was no discussion or analysis on whether incompetence or negligence of the representative should as a matter of public law afford the applicant a ground to review the decision of the tribunal, or the rationale for extending the principle to public law. In Shirwa case, the Canadian court had however limited the review to extraordinary circumstances based on precise factual foundation and further required the presence of sufficient evidence to establish the exact dimensions of the problem caused by the incompetent or negligent representation.   

32.  The relevant discussions are to be found in the House of Lords’ judgment in R v. Home Secretary ex p Al-Mehdawi [1990] 1 AC 876, a case heavily relied on by Mr Man. The applicant in this case is a student who was served with a deportation order. His solicitor had failed to inform him of the date of the hearing before the Immigration Adjudicator in respect of his appeal against the deportation order. The hearing proceeded in his absence and his appeal was dismissed. On judicial review, the Court quashed the determination. The appeal by the Home Secretary was dismissed by the Court of Appeal. On appeal to the House of Lords, the appeal was allowed. The issue, as identified by Lord Bridge (at 893C-D) is whether in the judicial review context, a mistake made by a party’s legal representative and not by the tribunal hearing the case, vitiates a decision made by the tribunal. Lord Bridge, with whom the other members of the House agreed, rejected the argument that where a party has been deprived of a hearing through his own solicitor’s negligence, there has been a breach of natural justice and a flaw in the decision making process and gave the reasoning as follows (at 898B-G):

“But there are many familiar situations where one party to litigation will effectively lose the opportunity to have his case heard through the failure of his own legal advisers, but will be left with no remedy at all except against those legal advisers. I need only instance judgments signed in default, actions dismissed for want of prosecution and claims which are not made within a fixed time limit which the tribunal has no power to extend. In each of these situations a litigant who wishes his case to be heard and who has fully instructed his solicitor to take the necessary steps may never in fact be heard because of his solicitor’s neglect and through no fault of his own. But in any of these cases it would surely be fanciful to say that there had been a breach of the audi alteram partem rule. …

These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he ahs entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of the public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument.”

33.  The rationale underlying the decision of the Al-Mehdawi case is the principle of finality in decision making. Hence it was said (at 901B-E): 

“… if once unfairness suffered by one party to a dispute in consequence of some failure by his own advisers in relation to the conduct of the relevant proceedings was admitted as  ground on which the High Court ion the exercise of its supervisory jurisdiction over inferior tribunals could quash the relevant decision, I can discern no principle which could be invoked to distinguish between a “fundamental unfairness”, which would justify the exercise of the jurisdiction, and a less then fundamental unfairness, which would not.  Indeed, Sir Charles Fletcher-Cooke was constrained to rest on the proposition that, in the last analysis, it was all a matter of discretion and the court could be trusted only to exercise its discretion in extreme cases where justice demanded a remedy. I am of the opinion that the decision of the Court of Appeal can only be supported at the costs of opening such a wide door which would indeed seriously undermine the principle of finality in decision making.”

34.  The Al-Mehdawi case was followed in other immigration cases such as Hassan v. Secretary of State for the Home Department [1994] Imm AR 482 and R v. Immigration Appeal Tribunal ex parte Yasin [1995] Immm AR 118. In Yasin case, the applicant complained that due to the fault of the legal adviser, a potentially relevant point of information was not brought to the attention of the tribunal. The Court of Appeal held that no distinction could be drawn between procedural impropriety and procedural unfairness and a case where the representative did not refer to potentially relevant evidence. Relief was refused.

35.  In R  v. Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, the applicant made a claim to the Criminal Injuries Compensation Board for sexual assaults committed on her. The report of the police doctor was not included in the evidence before the Board. The Board rejected her claim, concluding that the medical evidence gave no assistance in determining her claim. The applicant’s judicial review was refused because of inexplicable delay. The Court of Appeal dismissed her appeal on the merits of the case. The appeal to the House of Lords was allowed. It was held that on the special facts of the case and in the light of the important role of the police co-operating with the Board on the obtaining of evidence, there was unfairness in the failure to put the doctor’s evidence before the Board (at 347A-B). Of particular interest is the passage in which Lord Slynn said (at 345C-D):

“… what happened in these proceedings was a breach of the rules of natural justice and constituted unfairness.

It does not seem to me to be necessary to find that anyone  was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness.”

36.  Clearly, the House was concerned that the omission of the doctor’s report had caused grave injustice to the applicant. In Lord Slynn’s words (at 347B), it was not possible to say that justice had been done or seen to be done. The case highlights the direct correlation between the fairness of the hearing and the viability of the decision of the tribunal. The House of Lords was prepared to quash the determination in light of the serious unfairness suffered by the applicant, notwithstanding that it was not due to the fault of the Board. In  Haile v. Immigration Appeal Tribunal [2001] EWCA Civ 663, Simon Brown LJ observed that the Al-Mehdawi case did not preclude the court having regard to the wider interests of justice and that the decision in Al-Mehdawi might have to be reconsidered in view of the speeches in R v. Criminal Injuries Compensation Board, ex p A.  I am in agreement with this view.

37.  The last case to mention is the Court of Appeal’s decision in FP & MB v. Secretary of State for the Home Department [2007] EWCA Civ 13, which concerns the appeals of two asylum seekers against the dismissal of their claims. Following their successful challenge against the dismissal of their appeals, the Asylum Immigration Tribunal ordered a rehearing of the appeal. Due to the oversight of the solicitor in not informing the Tribunal of the change of address, notice of the rehearing did not reach the appellants. The rehearing proceeded in their absence and without their knowledge and the appeals were dismissed.  The Court of Appeal allowed the appeals. Following Haile, it distinguished the Al-Mehdawi case on the basis that it did not govern asylum cases, which require different considerations. Sedley LJ concluded that there was no principle of law that fixes a party with the procedural errors of his representative (at para.46). 

38.  The principle that stands out from the cases referred to by counsel is that, whether in criminal law or in public law cases, the court’s first and foremost concern is whether there was unfairness, and whether the accused or the applicant received less than a fair hearing. In the context of judicial review, I do not consider the Al-Mehdawi case as deciding that incompetence of the representative at the hearing before the tribunal can never be a ground for granting certiorari even where it has resulted in grave injustice to the applicant. In rare and exceptional cases where an applicant suffers grave injustice as a result of gross incompetence of his representative that has compromised a fair hearing before the tribunal, the court in its supervisory jurisdiction would intervene to quash the decision of the tribunal. However, as the authorities have emphasised, in order to succeed on this ground, not only must there be a high degree of incompetence, there has also to be clear and credible factual foundation and precise evidence of the prejudice and unfairness suffered. 

The applicant’s case in the disciplinary proceedings

39.  I turn next to consider whether this is a case of incompetence of the applicant’s representative resulting in unfairness that merits the court’s intervention. The starting point is to consider how Charge A was defended and argued throughout the disciplinary proceedings.  

40.  The disciplinary hearing was conducted in Cantonese. The applicant did not give evidence at the disciplinary hearing. The cross-examinations and submissions of the defence representative mainly challenged the credibility and reliability of DPC 48729 and WDPC 56667, with particular reference to their observation of the Telephone and the telephone booths at the Star Ferry Pier at the material time. The main points of the final submission were that there was no direct evidence of the applicant making a call on the Telephone and that there were chances and time for other people to have made a call on the Telephone without the two police officers’ noticing.

41.  The defence representative did not challenge the identification evidence, including the group identification procedures and the identification parade. Further, towards the end of the defence final submission on Charge A, the AO asked SIP Lam; “So, you do not dispute that the person whom (PW1) and (PW2) stopped at that time was [the defaulter].”  The reply from SIP Lam was: “Yes. We do not question their evidence in relation to identification.”

42.  The applicant adopted a similar position in his representation to the FDO to show cause why the SPO’s award of punishment should not be substituted with the punishments of severe reprimand and order to resign forthwith.  In his Memo dated 16 February 2005 (at para.2), he summarised his case to be that: “… the prosecution failed to prove at the tribunal [sic] that it was I who made the hoax call because the witnesses were not sure whether anybody used the payphone immediately before or immediately after I used the payphone.” The applicant made no challenge or criticism of the identification evidence in his nine pages of representation. Neither did he make any representation to the effect that he was not present at the Star Ferry Pier at the material time.

43.  When the applicant came to make his submissions to the Commissioner in connection with his appeal, however, he raised two objections to the group identification procedures. The first is that the police serial number appearing on his uniform should have been removed. The second is that at the time he had not been told that WDPC56667 had seen him in the lift lobby before the parade was held.

44.  More importantly, in this submission, the applicant denied he was the person intercepted by the two police officers and said he was not present at the Star Ferry Pier. He sought to explain the stance taken at the disciplinary hearing as follows (at paras.99 to 102):

“99.   The Defence Representative in his final submission, when asked by AO whether the Defence denied that I was the person being identified by PW1 on that date. The reply of DR to AO’s query must be understood on the overall basis that it was basically denied that I was the person identified as the suspect.

100.  The Defence merely chose not to challenge the evidence of the prosecution that I was the person being identified during the final submission.

101.  This is not to be treated as an admission by me personally that I was the person identified, because all along it was the Defence’s case that I deny that the person intercepted by PW1 on 23/9/03 was not me and that I was not present in the Star Ferry concourse at the material times.

102.  The reason for my Defence Representative making that remark is merely due to the fact that I decided not to give evidence in person at the hearing, and that the Defence is therefore merely taking the position of not calling evidence to rebut the evidence of PW1 and PW2 on the identification.”

45.  Several points of importance emerge. First, at the disciplinary hearing, a conscious decision was taken not to challenge the identification evidence. This was to the knowledge of the applicant.

46.  Second, although no direct challenge was made to the two police officers’ evidence that was the applicant was the man stopped by them at Star Ferry Pier, the defence representative had disputed the accuracy and reliability of their observation and the quality of their evidence.

47.  Third, the applicant was present throughout the disciplinary hearing, which was conducted in Cantonese. The applicant would have no difficulty understanding the proceedings, including the submissions of his representative and the exchanges between him and the AO. The applicant should have appreciated that no challenge was made to the identification evidence. In particular, when WDPC56667 was recalled to testify on the group identification procedures and the fact that she had seen the applicant at the lift lobby before the identification was carried out, the defence representative had no question for her. The applicant should also have known that the defence was not conducted on the basis that, not only was he not the maker of the hoax call, but also he was not the man seen and stopped by the two police officers at the Star Ferry Pier.

48.  Fourth, the fact that he was aware how the defence was run at the disciplinary hearing is clearly borne out by the representations he himself made to the FDO and the Commissioner. Indeed, the applicant had associated himself with and adopted the line of defence in his representation to the FDO. He only made criticism of the group identification evidence and made the point that he was not at the Star Ferry Pier when he made his appeal to the Commissioner. This was a departure from the stance taken at the disciplinary hearing. The applicant therefore sought to explain the conduct of the defence at the hearing.

The evidence in the judicial review application

49.  The evidence in support of the ground for judicial review is contained in the 2^nd affirmation of the applicant and an affirmation made by SIP Lam. In the applicant’s 2^nd affirmation, several criticisms were made of the group identification procedures and the formal identification parade. It further sought to demonstrate that the identification evidence of the two police officers was not reliable. At paragraph 8, the applicant concluded by saying:

“I am advised that these matters should have been explored in the Disciplinary Proceedings by my representative and the identification evidence of the police should have been challenged. Regrettably, this was not done by my representative.”

50.  SIP Lam in his affirmation said he had been instructed by the applicant that he was wrongly identified and that he did not go to the Star Ferry Pier on the day in question. He explained the conduct of the defence at the disciplinary hearing as follows:

“5.     However, in conducting the Defence’s case in the Disciplinary Hearing, I considered that the main issue was whether Mr Lam was the person who made the hoax call at payphone no. PP11992 at the Star Ferry Concourse at the alleged time on 24^th September 2003.

6.      I therefore did not think that there was much about the issue as to whether Mr Lam was wrongly identified by the Police and that he did not go to the Star Ferry Concourse at all on 24^th September 2003 (“the Identification Issue”) and considered it immaterial.

7.      Secondly, if I were to challenge the Police’s evidence on the Identification Issue, I had to call all the people involved in the 2 identification parades to give evidence (including three Chief Inspectors of Police, namely Ms Kwok Lai-han, Mr Li Chuen-wai, and Mr Tang Cheuk Wing), which appeared to me to be extremely daunting and time consuming. I therefore did not seek to challenge the Police’s evidence in relation to identification.”                          

51.   Both the applicant’s 2^nd affirmation and SIP Lam’s affirmation were affirmed on 21 November 2006. It is common ground that three days later on 24 November 2006, SIP Lam wrote to the applicant’s solicitors, in which he said:

“After careful consideration, I am of the opinion that some material points should be added to my affirmation to clarify what exactly happened during the disciplinary hearing held between 2004-11-22 and 2004-11-25.

I therefore formally inform you that I wish to give an additional affirmation to clarify. I have contacted Mr LAM Chi-pan over the phone on 2006-11-22 and informed him my intention to do so.”

52.  The applicant’s solicitor, Mr Tam, stated in his affirmation that he informed the applicant about the letter and left it to the applicant to telephone SIP Lam. It is not disputed that the applicant and SIP Lam did have a telephone conversation. It is also not in dispute that the applicant’s solicitors did not reply to SIP Lam’s letter or follow up on his request to make a further affirmation.

53.  There is no direct evidence before the court as to the content of the telephone conversation between the applicant and SIP Lam.  Mr Tam’s affirmation did not say whether the applicant had related to him the content of this conversation. In a memo dated 1 December 2006 to the Commissioner, however, SIP Lam said the applicant informed him that it was decided not to use his affirmation in court and an additional affirmation from him was therefore not necessary. SIP Lam further explained in the memo, his request to make a additional affirmation as follows:

“4.     After careful consideration, I was of the opinion that some material points were not included in my affirmation. The reason is that when I talked to Ex-PC 1844’s solicitor in his office, I was told that my affirmation would form part of the bundle to be submitted to the Court of Appeal for the civil appeal case between Ex-PC 1844 and the Commissioner of Police. I then gave the affirmation assuming that other facts will be included in the bundle. When I carefully read my own affirmation, it in itself appeals that all the decisions during the disciplinary hearing were made by me. In fact, the defence tactics and the decision not to challenge the identification parade were made by Ex-PC 1844 during the disciplinary hearing. I just represented him during the hearing where I gave him advice and tried my best to protect his interest. He decided not to challenge the identification parade because it was extremely daunting and time consuming. His decision was made based on other considerations of which I cannot disclose. I could not stop him from doing so. These are the reasons why I decided to give an additional affirmation.”   

54.  SIP Lam’s memo was exhibited to the affirmation of Senior Government Counsel Wong Wai Hung filed on 5 February 2007. The applicant has not made any affirmation in connection with his telephone conversation with SIP Lam or in response to what was said in SIP Lam’s memo.

55.  Mr Dykes SC in his submission argued that Mr Wong’s affirmation exhibiting SIP Lam’s memo is hearsay evidence and cannot be admitted, relying on Order 41 rule 5 of Rules of the High Court. I do not agree that any objection can be taken to the admissibility of Mr Wong’s affirmation. As submitted by Mr Man, what the affirmation did was to exhibit a document that was in the possession of the Commissioner and of which Mr Wong had knowledge of. It is true that the content of the memo is hearsay, but then the only question is one of weight: sections 47 and 49 of Evidence Ordinance, cap.8.

56.  Having regard to the considerations set out in section 49 of Evidence Ordinance, I am of the view that due weight should be given to the memo. First, the Commissioner cannot be criticised for not obtaining an affirmation from SIP Lam. Apart from the fact that SIP Lam was the applicant’s representative at the disciplinary hearing and is a witness for the applicant in this judicial review application, he had indicated in the memo that there are confidential materials that he did not feel able to divulge. This together with the fact he is a serving member of the Force, render it inappropriate for the Department of Justice to interview him and to obtain an affirmation from him for the purpose of this judicial review application. Second, the memo was written by SIP Lam himself; it does not involve multiple hearsay. Third, shortly before making the memo, SIP Lam had already written to the applicant’s solicitor expressing reservations about the content of his affirmation and requesting to make a further affirmation to clarify. The letter itself was written just three days after he made his affirmation. The content of the memo was consistent with the letter.

57.  I pause here to point out that SIP Lam’s letter to the applicant’s solicitors was received well before the hearing in the Court of Appeal. In light of the indications in the letter, including the clear request to make an additional affirmation, and given that the appeal hearing was ex parte, it was incumbent upon the applicant’s solicitors to include the letter in the hearing bundle and to draw the court’s attention to it so that the Court of Appeal could take it into account when deliberating on whether to grant leave to admit SIP Lam’s affirmation as fresh evidence. It would not have escaped the attention of the applicant and his solicitors that the affirmation of SIP Lam is pivotal to the new ground of judicial review to be advanced in the Court of Appeal.  In the circumstances, the failure to bring the letter to the attention of the Court of Appeal is to be regretted.

Incompetence of the defence representative?

58.  The very basis of the applicant’s judicial review is that due to incompetence of SIP Lam, he did not have a fair trial and this has caused him injustice.  The burden is therefore on the applicant to demonstrate by clear evidence that the decision not to challenge the identification evidence was an erroneous one, that the error was entirely that of SIP Lam and that he himself was not at fault. 

59.  In his 2^nd affirmation, the applicant sought to demonstrate the weaknesses in the identification evidence. For the present purpose, I am prepared to proceed on the basis that the decision not to challenge the identification evidence is an erroneous one.

60.  As to whether the error was due to no fault on the part of the applicant, the applicant’s case rests entirely on SIP Lam’s affirmation. The affirmation, if viewed in isolation, may give the impression that it was SIP Lam’s decision and his decision alone not to challenge the identification evidence and that it was due to the considerations averted to in the affirmation. However, the letter dated 24 November 2006, as well as the memo dated 1 December 2006, calls into serious question the reliability of the affirmation. By the letter, SIP Lam gave formal notice that he wished to clarify his affirmation by adding material points to explain what in fact happened at the disciplinary hearing. The letter is a clear indication that SIP Lam did not consider his affirmation to be a full or accurate account of what happened during the disciplinary hearing. As to the memo, it is not necessary for me to come to a concluded view as to whether the circumstances leading to the decision not to challenge the identification evidence were as set out in the memo. It suffices to say that the account in the memo is at variance with the impression that SIP Lam gave in his affirmation.  That being the case and in light of SIP Lam’s clear reservations, the court cannot attach much weight to his affirmation. 

61.  At the same time, it is significant that the applicant has not in his affirmation dealt with how and why the decision not to challenge the identification evidence was taken. As observed above, the applicant, being present at the disciplinary hearing and having no difficulty understanding the language in which the hearing was conducted, should be aware that his representative had not challenged the identification evidence. He would have heard the AO’s enquiring with SIP Lam whether it was disputed that the applicant was the man stopped by the two police officers and the reply that the officers’ identification evidence was not in issue. On the contrary, the representations he himself made to the FDO and the Commissioner show that he was fully aware that a conscious decision was made not to challenge the identification evidence at the hearing. It is also of significance to note that it is not the applicant’s evidence that he did not realize the importance of the identification evidence.     

62.  Having regard to the above analysis and considering the facts and circumstances of the case, I am of the view that the applicant has failed to discharge the burden of proving that it was due to the incompetence or failings of his representative that no challenge was made to the identification evidence during the disciplinary hearing. The necessary factual basis on which the present application is based is not made out.

Unfairness to the applicant?

63.  That aside, the applicant also has failed to show that he has suffered unfairness. As the above analysis shows, the applicant was aware that the identification evidence had not been challenged. He was further aware that this was as a result of a conscious decision. There is no suggestion that he did not appreciate the importance of the identification evidence. In the absence of any explanation from him as to why he went along with the decision, he can begin to complain of unfairness.         

Conclusion

64.  For the reasons indicated above, the application for judicial review is dismissed. There is also an order nisi that the applicant pays the respondent the costs of the application, to be taxed if not agreed.