AU HING SIK CHARLES v. COMMISSIONER OF POLICE TANG KING SING CHIEF SUPERINTENDENT OF POLICE (CONDITIONS OF SERVICE AND DISCIPLINE) AND OTHERS

HCAL 74/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 74 OF 2010

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J U D G M E N T

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1.  After the decision of the Court of Final Appeal in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575, Regulations 9(11) and (12) of the Police (Discipline) Regulations Cap.232 became null and void. With intent to give effect to the decision of the Court of Final Appeal as regards the possibility of having legal representation for the defence of a police officer [“a defaulter”] in disciplinary proceedings, the Police Force added a Chapter 8 to the Force Discipline Manual implementing a scheme for assessing whether legal representation should be permitted when a defaulter applies for the same [“the Scheme”]. One of the issues in the present proceedings is whether the Scheme complies with the Court of Final Appeal judgment.

2.  In addition, the applicant (who is a defaulter subject to pending disciplinary proceedings) also challenged the actual exercise of discretion against him in respect of his application for legal representation by the 2^nd Respondent as the Appropriate Authority and the 3^rd Respondent as the Reviewing Authority under the Scheme.

3.  For present purposes, I can summarize the background facts as follows.  The Applicant joined the Police Force in 1985.  He was promoted to the rank of sergeant in 1994 and further to the rank of station sergeant in 2003.  He had an unblemished record up to the events which led to him being charged with two disciplinary charges in 2008.  According to the summary of his service record prepared by the prosecuting officer, he had received a number of compliments and awards over the years in connection with his performance in police duties.

4.  On 15 December 2008, disciplinary proceedings were commenced by the Police Force against the Applicant on two charges,

(a)  Contravention of Police Orders, contrary to Regulation 3(2)(e) of Police (Discipline) Regulations Cap.232 on 14 September 2008;

(b)  Making a statement false in a material particular contrary to Regulation 3(2)(j) of Police (Discipline) Regulations on 20 September 2008.

5.  The relevant facts for the two charges are set out in the Brief Facts prepared by the prosecuting officer.  Paragraphs 2 to 4 of the Brief Facts stated,

“2. At 1830 hours on 2008-09-14 during the Mid-Autumn Festival Lantern Carnival operation, PW1, with the assistance of WSIP LEE Mei-po (PW2), conducted a final briefing to officers of NCOs and above in Room N1 of Victoria Park Management Office (Loc 1). Def was one of the officers attending the briefing in uniform, and was sitting on a chair on the right hand side facing PW1. The distance between PW1 and Def was about 10 to 15 feet. PW1 saw Def chewing gum throughout the whole briefing, which had lasted for ten minutes. (Charge A)

3. After the briefing, PW1 and PW2 interviewed Def at Loc 1. PW1 pointed out that Def had chewed gum throughout the briefing. PW1 also recalled that he had previously reminded Def not to chew gum whilst performing duty in uniform on 2008-08-08. Def stated that he was a smoker and used to chew gum when performing plainclothes duty in Task Force NPDIV. Def admitted his guilt to PW1, who told Def that a disciplinary action would be considered against Def.

4.  WIP CHOI Wing-yuk (PW3) was later assigned to interview Def with regard to Def’s chewing gum on 2008-08-08 and 2008-09-14.  At 0120 hours on 2008-09-20, PW3 interviewed and took a statement from Def inside Room 206, North Point Police Station (Loc 2).  During the interview, Def totally denied his misconduct of chewing gum and his admission of guilt during the interview with PW1 on 2008-09-14.  Def also stated that during the said briefing on 2008-09-14, he sat on the last row in the briefing room at Loc 1, which was opposed to the observation of PW1 i.e. Def sat on the third row of the chairs at Loc 1 on 2008-09-14. (Charge B)”

6.  It would appear that the main event which led to the charges was what happened at the briefing on 14 September 2008.  According to the Brief Facts, the main prosecution witness would be Superintendent Chan Chun, ex-DVC NPDIV.

7.  There were two hearings on 15 January 2009 and 4 March 2009 respectively.  At that stage, the Court of Final Appeal had yet to deliver its judgment in Lam Siu Po.  The Applicant was unrepresented at the first hearing and was represented by a police inspector at the second one. At the second hearing, he pleaded not guilty and the hearing was adjourned.

8.  Subsequently, because of the judgment in Lam Siu Po, the disciplinary proceedings were suspended for a brief period.  After the implementation of the Scheme, the Applicant was invited to make representation on legal representation in his disciplinary proceedings.  By a memo dated 11 June 2009, the Applicant indicated to the prosecuting officer that he considered he should be allowed to have legal representation.  He gave several reasons in support, amongst which sub-para.(b) are of particular importance,

“(b) The Reporting Officer of the alleged offences, an officer in the rank of SP, is the major Prosecuting Witness of this disciplinary proceedings; however, my Defence Representation at present is merely an officer in the rank of SIP. Under this circumstances, the latter is not an ideal defence representation and the coming disciplinary hearing will fall unfairness if my request for Legal Representation is ignored.”

9.  He also referred to Lam Siu Po and asserted that there would be points of law in respect of charge (a).  Further, he commented that there were insufficient evidence supporting both charges.

10.  Upon invitation, the Applicant submitted further reasons in support of his application for legal representation on 30 November 2009.  To some extent, he set out his defence to these charges at para. 2(I)(a) to (c),

“(a) The disciplinary investigation was resulted from:

(i) a dispute over working affairs between the Reporting Officer of this disciplinary investigation, ex-DVC NPDIV and me; and

(ii) my complaint to DC EDIST against an urgent and unfair internal transfer arrangement, which was made by ex-ADVC OPS NPDIV under ex-DVC NPDIV’s directive;

(b) Following DC EDIST’s enquiry, ex-DVC NPDIV had sent a PEN message to DC EDIST, DDC EDIST and ADC ADM EDIST in which ex-DVC NPDIV defamed me for poor duty performance and fabricated that he had seen me eating chewing gum in uniform on 2008-08-11 and 2008-09-14 respectively. ex-DVC NPDIV misled his seniors resulting in the process of the disciplinary investigation;

(c) Regarding to Charge (B), “Making a Statement False in a Material Particular”, there were only three witnesses including ex-DVC NPDIV and ex-ADVC OPS NPDIV (T). The remainder, a SGT of TFSU NPDIV had been under controlled and given his statement faithlessly, As such, the accounts in their statements were unreliable;”

11.  The Applicant further expressed his concern on the disparity in ranks of the officer who represented him and the principal prosecution witness at sub-para. (f),

“(f) The Reporting Officer of the alleged offences, an officer in the rank of SP, is the major Prosecuting Witness of this disciplinary proceedings; however, a defence representation in accordance with the unlawful Regulation 9(11) and (12) of the Police (Discipline) Regulations, Cap 232A, is merely an officer up to the Inspectorate. Owing to ranking difference, my previous Defence Representation may fall foul of his senior and lose his confident leading to the failure in my defence. This is unfair to both of my previous Defence Representation and me.”

12.  He further questioned the integrity of the principal witness and the sufficiency of the investigation.  Under Section III in that memo, he raised some points of law pertaining to the charges.  He concluded by saying that the proceedings would not be fair if he is denied legal representation.

13.  On 17 March 2010, the Applicant was informed that the 2^nd Respondent had considered his application for legal representation and concluded that fairness does not require legal representation after taking into account of the factors listed in the letter.  The factors stated in the letter were,

(a)  The facts of the case are straightforward as is the evidence to be presented;

(b)  If the offences are proven, a ‘minor’ disciplinary award is likely.

14.  The Applicant sought a review of that decision. Upon review, the 3^rd Respondent upheld the decision of the 2^nd Respondent and the Applicant was so informed on 23 April 2010.  The 3^rd Respondent, at the request of the Applicant, set out his reasons in a letter dated 28 May 2010.  In that letter, it was stated that the 3^rd Respondent concluded that there were no grounds to overturn the 2^nd Respondent’s decision due to the following reasons,

(a)  The charges are not serious;

(b)  The disciplinary awards, if the Applicant were convicted, were likely to be relatively minor; and

(c)  The absence of legal representation would not prejudice the Applicant.

The Scheme

15.  Since Ms Ng (appearing for the Applicant) challenged the Scheme as being constitutionally non-compliant, I need to set out some relevant provisions in Chapter 8 and the Guide annexed to it.

16.  Under the Scheme, a defaulter’s application for representation may take the form of representation by lawyers or representation by a friend.  Such application would in the first instance be considered by an Appropriate Authority.  The Chief Superintendent, Conditions of Service and Discipline is designated as the Appropriate Authority.  It is further stipulated that the Appropriate Authority should not have been involved in any earlier decision to institute the relevant disciplinary action, nor should he take part in the subsequent staffing of such proceedings.  As mentioned, the decision of the Appropriate Authority can be reviewed if a defaulter is aggrieved by such decision.  The Director of Personnel and Training is designated as the Reviewing Authority.

17.  Paragraphs 6 to 8 of Chapter 8 of the Manual set out how an application should be processed,

“6. When a defaulter has requested legal or other forms of representation [except those previously allowed under Reg. 9(11), 9(12), 19(1) and 19(2) of P(D)R], the designated Prosecuting Officer (PO), on behalf of the Formation Discipline Officer (FDO) (or Senior Police Officer (SPO) for inspectorate defaulter), will prepare all the required information (i.e. copy of charges, brief facts of the case and defaulter’s summary of record of service) for the AA to decide whether the defaulter’s request for legal representation will be allowed. When making his decision, the AA will make reference to the list of factors as below, having regarded to whether fairness requires such representation to be allowed:-

(a) the grounds advanced by the defaulter;

(b) the seriousness of the charges and potential penalty. Legal representation will usually be granted for those cases which may result in a terminatory award, order to resign or reduction in rank;

(c) whether any points of law are likely to arise;

(d) the defaulter's capacity to present his case at the hearing;

(e) any anticipated procedural difficulties;

(f) the need for reasonable speed in making the adjudication; and

(g) the need for fairness to the individual concerned.

7. A Guide for considering applications for legal representation is at Annex Z-1. Specimen letters for granting or rejecting an application are at Annexes Z-2 and Z-3.

8.  If the alleged disciplinary offences, if proved, may result in the officer being removed from public service by dismissal, compulsory retirement or an order to resign, or being reduced in rank, the seriousness of the potential penalty is a factor which substantially favours legal representation being allowed.”

18.  If legal representation is allowed, paragraph 13 provided for arrangement of legal representation for the prosecution and a legal adviser for the Adjudicating Officer.

19.  Paragraphs 14 and 15 of Chapter 8 permitted another application for legal representation to be made before the Adjudicating Officer, who instead of making a decision on the application, would make a recommendation to the Appropriate Authority (or, in cases where legal representation had previously been refused, to the Reviewing Authority).

“14. Where the request for legal representation or representation by a ‘Friend’ is raised by the defaulter before the AO (after rejection by the AA and the DPT, or if it has not been raised before), the AO should record the defaulter’s request in the Record of Proceedings and ask the defaulter to provide his reasons. The AO should then consider whether such representation should be allowed by requesting the PO to provide him with the required information, in order that he can make his recommendation to the AA if the defaulter has not raised such request before (or the DPT if the request was previously rejected), copied to the defaulter. The AA or the DPT should give significant weight to the AO’s recommendation when making a decision, since the AO should be in the best position to judge whether the fairness of the proceedings to be held before him/her requires legal or other forms of representation. On the other hand, if the defaulter has not requested for legal representation but during the hearing there is information or evidence coming to light (including but not limited to the factors outlined in Annex Z-l) that would indicate such a need, the AO should advise the defaulter to consider requesting legal representation. If the defaulter has made such a request, the AO should then make his recommendation to the Appropriate Authority. The AO should also make a record in the Record of Proceedings to that effect.

15.  If the defaulter is aggrieved by the AO’s recommendation, he may submit his representations to the AA if the defaulter has not raised such request before (or the DPT if the request was previously rejected) for consideration, in writing.”

20.  These paragraphs dealt with pre-existing disciplinary proceedings commenced before the introduction of the Scheme.  Similar provisions in other parts of Chapter 8 dealt with new disciplinary proceedings.

21.  As mentioned, the Scheme also permitted representation by a “Friend” instead of a lawyer.  Paragraph 9 of Chapter 8 set out how an application for representation by a “Friend” should be considered.  Though the present proceedings focused on legal representation, in the light of an argument advanced by Mr Chow SC (for the Respondents) as to the option of representation by a “Friend”, I would also set out this paragraph below,

“9. For requests for representation by a ‘Friend’, the AA will consider the merits of each application on the basis of what fairness requires in the particular case. Additional factors to be considered by the AA may include possible confidential issues relating to the case, the possibility of leakage of sensitive information, and the possibility of a ‘Friend’ being senior in rank to the Adjudicating Officer (AO) etc. Checks may also need to be conducted on the ‘Friend’ in order to exclude those unsuitable persons with doubtful reputations or characters. Persons with doubtful reputations or characters may include, for example, known triad members, known criminals or those persons who are engaged in or connected to dubious activities and business, or those whose attendance at disciplinary proceedings may compromise the confidentiality of information presented therein, as well as undermining the credibility of the proceedings. Specimen letters for granting or rejecting an application are at Annexes Z-4 and Z-5.”

22.  Section 8-02 provided guidance as to the respective roles of different parties, including the legal representatives and the legal adviser at a hearing with legal representation.

23.  As provided under paragraph 7, there is a Guide setting out factors for considering whether legal representation should be allowed annexed to Chapter 8.  In the Guide, the overriding consideration of fairness is emphasized repeatedly.  First, in para.1 the effect of the judgment of the Court of Final Appeal in SEHK v New World Development [2006] 2 HKLRD 518 is summarized as follows,

“In The Stock Exchange of Hong Kong Limited v New World Development Company Limited [2006] 2 HKLRD 518, the Court of Final Appeal (‘CFA’) held that the common law position is that tribunals have a discretion whether to permit legal representation, depending on the needs of fairness. The court cited with approval a statement to the effect that it is established that disciplinary tribunals have, in the exercise of their discretion, and having regard to a broad range of factors including those mentioned by the European Court, to decide whether natural justice requires that a person appearing before the tribunal should be legally represented. Such factors include: the seriousness of the charge and potential penalty; whether any points of law are likely to arise; the capacity of the individual to present his own case; procedural difficulties; the need for reasonable speed in making the adjudication; and the need for fairness among the individuals concerned. This is not intended to be an exhaustive list. The court considered that no list of such factors can be comprehensive and that the common law principles of fairness operate flexibly, requiring the tribunal to respond reasonably to the requirements of fairness arising in each case, balancing any competing interests and considering what, if any, limits may proportionately be imposed on legal representation in consequence.”

24.  Then, after stating that the same principles were reiterated in Lam Siu Po, the Guide continued at paras. 3 and 4,

“3. On the basis of the above judicial decisions, the Appropriate Authority or tribunal before whom a request for legal representation is made must consider the matters in the light of the facts of each case, the factors mentioned above and any other factors which might be relevant to the issue of whether fairness of the hearing would require legal representation for the defaulter. This Guide serves to provide assistance to Appropriate Authority or the disciplinary tribunals concerned in considering such matters, by indicating factors which may be taken into consideration, having regard to the CFA's judgments, the experience by the Civil Service Bureau and our experience in disciplinary proceedings.

Factors for Consideration

(A) Grounds advanced by the defaulter

4.   Any relevant ground advanced by the defaulter for legal representation at the disciplinary hearing must be taken into consideration.  It may be that most grounds to be advanced would have been covered in (B) to (G) below.  However, no list of factors could be exhaustive. Further, matters relevant to the case which are evident should also be taken into account as a matter of fairness, even if not specifically mentioned by the defaulter.”

25.  Some factors are set out in the Guide.  But it is clear that the list of factors is not meant to be exhaustive and all matters relevant to the overriding consideration of fairness must be taken into account. For example, whilst seriousness of the charge and the potential penalty is referred to in paras. 5 and 6, at the end of para. 6, the Guide expressly reminded those involved in deciding whether legal representation should be allowed: “the fact that the disciplinary proceedings will not result in terminatory punishment or very serious non-terminatory punishment does not of itself prevent discretion to be exercised to allow legal representation and all relevant factors must be taken into consideration”.

26.  At the end of the Guide, at para. 11, the requirements of fairness arisen from the individual circumstances of each case is highlighted again.  It is also noteworthy, in the context of the present case, para.11 alluded to “complexity of the factual issues in dispute requiring detailed cross-examination, or involvement of witness who are … high-ranking officials” may point to decision allowing legal representation as a matter of fairness.

The challenge to the Scheme

27.  In respect of her challenge to the Scheme, the emphasis of Ms Ng in her submissions (both written and oral) is slightly different from those set out in the Amended Form 86.  Whilst Grounds 1 to 3 in the Amended Form 86 focused on what are alleged to be discriminatory or unequal treatment stemming from the Scheme and reliance was placed upon Articles 25 of the Basic Law and Articles 1(1) and 22 of the BORO, in her main submissions Ms Ng focused on two specific features in the Scheme which, according to counsel, do not comply with the requirements of a fair hearing as explained by Lam Siu Po.  The two features are,

(a)  Lack of oral hearing before determination by the Appropriate Authority and the Reviewing Authority;

(b)  Decision made by an authority other than the Adjudicating Officer.

At the same time, Ms Ng also referred to the arguments on discrimination in her written Reply Submissions.

28.  Ms Ng also made other submissions as to the actual implementation of the Scheme.  In my judgment, those criticisms were in substance criticisms on the actual exercise of discretion instead of the Scheme itself.  One example is counsel’s submission that the list of factors became so dominant that in practice they steered the decision maker away from the overriding consideration of fairness.  In the light of the repeated emphasis on the requirements of fairness as the ultimate acid test (as explained above), I do not regard Ms Ng’s criticism as well-founded insofar as it is intended to be part of her systemic challenge.  I will however come back to deal with this criticism when I consider how the discretion was actually exercised in the present case.

29.  Before I come to Ms Ng’s challenge based on the two specific features, I shall dispose of the other constitutional grounds raised in the Amended Form 86.  The starting point is that, as accepted by Ms Ng, there is no absolute right to legal representation in disciplinary proceedings.  This is clear from Lam Siu Po, see in particular para.139. Further, the Court of Final Appeal also pinpointed legal representation as a potential facet in the requirement of fairness stemming from the right to a fair trial under Article 10 of the BORO.  Thus, fairness is the keystone for compliance with Article 10.  If fairness requires legal representation be given for a particular set of proceedings, the refusal of such representation would be a breach of Article 10.  If fairness does not requires legal representation be given, there is no breach.  As discussed above, the Scheme also provided that the requirements of fairness would be the ultimate test.

30.  Thus, there would be cases where fairness does not require a defaulter to be legally represented.  As I understand Ms Ng’s submission, she did not argue that per se is discrimination.  So long as the same criteria of fairness is applied to all applicants, different results reached upon the application of such criteria cannot be characterized as discriminatory or unequal treatment before the law for the purpose of Article 25 of the Basic Law and Articles 1(1) and 22 of the BORO.  Otherwise, the right to legal representation would, in substance, be an absolute right and this would not be consistent with the holding of the Court of Final Appeal. 

31.  Ms Ng’s arguments of discrimination and unequal treatment seem to proceed on the basis that because legal representation is not allowed for less serious charges or charges with less serious penalty there is a breach of the Article 25 of the Basic Law and Articles 1(1) and 22 of the BORO.  With respect, that is not a correct interpretation of the Scheme.  From the provisions in Chapter 8 and the Guide (as highlighted above), it is clear that the Scheme referred to the requirements of fairness as the ultimate test and even for less serious charges legal representation should be allowed if fairness so requires.  I therefore do not see any room for systemic challenge based on these constitutional provisions.

32.  Turning to the challenge based on the lack of oral hearing, the Scheme is silent as to whether there would be any oral hearing before the Appropriate Authority or the Reviewing Authority makes a decision on legal representation.  There has not been any request for oral hearing by the Applicant in the present case.  According to the evidence filed on behalf of the Respondents, if there is a request for oral hearing by a defaulter, it would be considered by such authorities and if fairness requires oral representation would be entertained.

33.  Further, there would be an oral hearing before the Adjudicating Officer and on that occasion a defaulter can renew his or her application for legal representation pursuant to Paragraph 14 of Chapter 8.

34.  I have considered the need for oral hearing as a facet of fair trial in Liu Pik Han v Hong Kong Federation of Insurers Appeals Tribunal HCAL 50 of 2005, 11 July 2005.  Though it was a decision before Lam Siu Po, I believe what I said at para.33 in that judgment remains good law (and counsel do not suggest otherwise),

“From the authorities, it is clear that there is no absolute rule that a tribunal must give a party an oral hearing in order to satisfy the requirement of Article 10. Where the submissions of the parties do not raise any issue of fact or of law which were of such a nature as to require an oral hearing for their disposition, oral hearing could be dispensed with (see Allan Jacobsson v Sweden (No 2) ECHR Case 8/1997/792/993). However, as observed by Ribeiro PJ, when there are dispute of facts, especially when the resolution of such dispute may hinge on one’s impression as to the credibility of a witness or a party, a fair hearing within the meaning of Article 10 involves an oral hearing being held (see Fredin v Sweden (No 2) ECHR Case 20/1993/415/494).”

35.  Again the ultimate criterion is the requirements of fairness.

36.  At para. 37 in that judgment, I explained why in that case I did not regard the lack of request for oral hearing by the applicant as significant.  The more important consideration, as I said at para. 38, is whether the issues could be fairly and properly disposed of without any oral hearing.

37.  At this stage I confine my consideration on lack of oral hearing to the challenge to the Scheme as a whole as opposed to the application of the Scheme in the present case.  Bearing in mind the availability of oral hearing before the Adjudicating Officer at which a defaulter can renew his or her application for legal representation[1], and bearing in mind that the issues that need to be resolved in terms of permission for legal representation would usually fall within a narrow compass (mostly a matter of value judgment as to what fairness requires on the facts of the case), together with the availability of opportunity for a defaulter to make representations on paper on the grounds supporting the request for legal representation, it would only be in rare cases where fairness requires separate oral hearing to be held before a decision is made by the Appropriate Authority or the Reviewing Authority.  In any event, the Scheme does not exclude the possibility of having an oral hearing if the Appropriate Authority or the Reviewing Authority deems it necessary for the sake of fairness.  In those circumstances, I do not think the lack of reference in the Manual for holding an oral hearing before the Appropriate Authority or the Reviewing Authority renders the Scheme unfair and as such non-compliant with Article 10 of the BORO.

38.  I now turn to the second specific complaint of Ms Ng: the determination of legal representation by an authority other than the Adjudicating Officer.  Under the Scheme, the actual decision on legal representation would in the first instance be made by the Appropriate Authority and on review by the Reviewing Authority.  Neither of them would act as the Adjudicating Officer in the disciplinary proceedings.  Even in the context of paragraph 14 when a defaulter renews a request for legal representation at the hearing before the Adjudicating Officer, the latter would make his own recommendation to either the Appropriate Authority or the Reviewing Authority for final decision.

39.  In the evidence of the Respondents, it was explained that the Scheme was designed in this way so as to avoid the Adjudicating Officer seeing the service record of a defaulter which might be prejudicial to him.  However, when an application for legal representation is renewed before the Adjudicating Officer under paragraph 14, Mr Chow informed the court that the required information to be placed before him would include such service record though in such event a defaulter may apply for change of Adjudicating Officer if he feels being prejudiced.  Another justification for this design is to foster consistency in decisions as to legal representation.

40.  But the important question is not the justifications for this feature.  Rather, we must consider whether the requirements of fair trial dictate that decision pertaining to legal representation must be made by the Adjudicating Officer.  As observed by Lord Mustill in Ex p Doody [1994] 1 AC 531 at p. 560H to 561A,

“… it is not enough for [an applicant] to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair.”

41.  Ms Ng submitted that the deprivation of the Adjudicating Officer the discretion for granting legal representation is unfair. Counsel read the following dicta in Lam Siu Po as laying down that the discretion must be exercised by the Adjudicating Officer.

42.  At para. 138 Ribeiro PJ said,

“At common law and in the absence of inconsistent legislative intervention, administrative and domestic tribunals are generally regarded as masters of their own procedure possessing flexible discretion to take whatever procedural course may be dictated by the requirements of fairness.”

There was another reference to the tribunal’s discretion at para.139.  Counsel also referred to para.28 where Bokhary PJ said,

“It is always to be remembered that whether fairness requires that legal representation be permitted at a disciplinary hearing is primarily for the disciplinary tribunal to assess, and that no court would disturb such an assessment except for plainly compelling reason.”

43.  With respect, I cannot agree with Ms Ng.  First, their Lordships were not concerned with the question whether the discretion as to permission for legal representation must be exercised by the same officer responsible for the substantive adjudication of the case.  The references to the tribunal in these dicta should not be read narrowly.  It is perfectly open for an administrative or disciplinary tribunal to entrust the task of determining legal representation to an authority other than the adjudicating officer provided that the task is performed with the requirements of fairness in mind.

44.  Second, I do not think it is inherently unfair simply because the task is entrusted to an authority other than the adjudicating officer.  In many cases the adjudicating officer would be more familiar with the conduct of the hearing and the intricacies stemming from the forensic approach adopted by the parties at the trial and therefore to that extent he is in a more advantageous position to assess the need for legal representation in terms of fairness.  However, Paragraph 14 of Chapter 8 ensures that the Adjudicating Officer can share that advantage with the Appropriate Authority or the Reviewing Authority in the form of his recommendation.  In fact, paragraph 14 sets a positive duty on the Adjudicating Officer to advise a defaulter to consider requesting legal representation in the light of developments in the course of trial.  Thus, the Adjudicating Officer also plays an important role in the whole process of determination on legal representation. With such measure in place, I would not characterize the design of the Scheme as unfair.

45.  At the hearing, I raised this query: would it be unfair if the recommendation of the Adjudicating Officer is overridden by the determination of the Appropriate Authority or Reviewing Authority?  Mr Chow informed the court that in most cases the Adjudicating Officer is likely to be less senior than the Authority.  Even so, Paragraph 14 provides that these authorities must give significant weight to the recommendation of the Adjudicating Officer.  Mr Chow said the occasion where a recommendation for legal representation is overridden would be rare.  And on such rare occasions, one would expect cogent reasons being given by the Authority.  Further, as submitted by Mr Chow, the decision of the Authority can be challenged by judicial review.  Against such background, I conclude one cannot simply infer that whenever there were disagreement between the Adjudicating Officer and the Authority the decision on legal representation is unfair.

46.  As held in Lam Siu Po[2], whether a system is Article 10 compliant must be examined against the process in its entirety.  On the whole, I am of the view that the Scheme does provide a proper system for considering a request for legal representation in accordance with the requirements of fairness.  Therefore the systemic challenge fails.

The challenge to the actual exercise of discretion

47.  Though I find the Scheme to be Article 10 compliant, the exercise of discretion in individual cases can still be challenged on traditional public law grounds in a judicial review.  In the present case, the Applicant contended that the decisions of the 2^nd and 3^rd Respondents are unfair (in that no oral hearing was given to him before the making of the decisions) and that they failed to apply the overriding criterion of fairness properly (in their assessment, fairness were overshadowed by consideration as to the seriousness of the charges and the likely penalties) or otherwise being Wednesbury unreasonable.

48.  Ms Ng also submitted that they were wrong in forming the view that the penalties were likely to be relatively minor.  She also complaint that the Reviewing Officer failed to give reasons for his decision.

49.  Before I discuss these challenges, I would address a point raised in the course of the hearing.  Because of the present proceedings, the trial of the disciplinary proceedings has not yet taken place. Thus, by virtue of Paragraph 14 of Chapter 8, the Applicant still has the opportunity to apply before the Adjudicating Officer for legal representation. Though Mr Chow did not argue that judicial review is premature in the present instance (and he is probably right in view of the constitutional challenge to the Scheme as a whole), it does not mean that in the future this court would entertain these challenges before a defaulter exhausts all avenues for seeking legal representation under Chapter 8.  Surely the recommendation of the Adjudicating Officer would be of some importance and in general the court would like to take such recommendation into account.

50.  That brings me to the challenge as to the lack of oral hearing.  I have already observed that oral hearing would only be required for a determination on legal representation in exceptional cases.  Having regard to the circumstances of the present case, including the grounds advanced by the Applicant in support of his application (which were clearly and fully canvassed in his memos and do not involves complicated arguments that required oral elaboration), I do not regard oral hearing to be necessary in order to fulfill the requirements of fairness.  In any event, the Applicant would have an oral hearing when he renewed his application before the Adjudicating Officer under paragraph 14.

51.  Though the Reviewing Authority did not give his reasons in the letter of 23 April 2010, I do not think the court would intervene on this ground since it was a review exercise in a summary process where reasons had already been given by the Appropriate Authority and reasons were subsequently given in the letter of 28 May 2010.  Further, as there could still be further application under paragraph 14, the decision of the Reviewing Authority at this stage should only be regarded as an interim decision.

52.  As regards the nature of the potential penalties, Mr Chow reminded this court that the comparables relied upon by Ms Ng were not put before the Appropriate Authority or the Reviewing Authority.  I have considered the cases highlighted in the table, in particular those set out in the list handed by Ms Ng to the court during the hearing.  Whilst there are indeed cases where a charge of making a false statement did result in heavier penalties than reprimand, the facts of those cases are obviously more serious than the present allegations against the Applicant.  Given the wide spectrum of cases falling within the scope of such a charge, I doubt whether it is useful to make comparisons without full regard to the facts of each case.  Even taking those cases into account, I do not think this court should intervene with the decisions of the 2^nd and 3^rd Respondents on the basis that they erred in saying that the penalties would be relatively minor.

53.  Coming to the question of the application of the criteria of fairness, generally it is for the relevant authority to assess the requirements of fairness on the facts of the case and the court would not usurp the function of the authority in respect of the merits of a decision.  However, in the present case, the following matters indicated that the 2^nd and 3^rd Respondents had not applied that criteria properly,

(a)  In their reasons for their respective decisions, they focused on the minor nature of the potential penalties and the lack of serious nature of the charge and it appear that no consideration has been given to the difficulty arising from rank differential pinpointed in the Applicant’s submission in the presentation of his case (and cross-examination of witnesses) by a police officer when the principal prosecution witness is a much more senior officer, particularly when the case against the Applicant on the first charge depended wholly on the oral testimony of this witness.  As such, their decisions are vitiated by the failure to take material matter into account;

(b)  Though the 2^nd Respondent referred to the evidence being straightforward and the 3^rd Respondent referred to the lack of prejudice in the absence of legal representation, they apparently said so in terms of the evidence supporting the prosecution case.  However, as elaborated by the Applicant in his memo of 30 November 2009, his case is that there were pre-existing personal grudge between him and the principal prosecution witness.  He had complaint about a transfer made by the witness and he said the present charges were fabricated against him.  If the nature of the defence case is taken into account, it is not as straightforward as it would otherwise appear and the absence of legal representation (resulting in the Applicant having to be represented by either a police officer or a friend with no legal training who would need to cross-examine a superintendent on his integrity) cannot be said to be non-prejudicial.  The absence of any reference to this aspect of the case in the reasons for decision again suggests that the Respondents failed to take this relevant factor into account;

(c)  Even though, as suggested by Mr Chow, the Applicant can apply to be represented by a friend, there is no guarantee that the application would be allowed.  Further, a friend without legal training is likely to be less effective than a lawyer in challenging the integrity of a senior police officer before a tribunal made up of police officer;

(d)  Though the charges themselves appear to be not serious, given the significance the Police Force attached to discipline and obedience, a conviction could have substantial impact on the hitherto unblemished record and thus, the future career of the Applicant.  This is particularly so in the light of the nature of his defence as mentioned.  Whilst focusing on the potential penalty, the Respondents did not appear to give consideration to the impact of such conviction from this angle;

(e)  In view of the challenge to the integrity of a senior police officer, it would be in the interest of justice as well as the integrity of the Police Force that not only the defence shall have legal representation but also to have the prosecution conducted by a lawyer.  Again this does not appear to have been considered;   

(f)  If these relevant matters are taken into account, in my view it is Wednesbury unreasonable to conclude that it would not be unfair to deny legal representation to the Applicant.

Results

54.  For these reasons, I would dismiss the application for declaration as to the unconstitutionality of the Scheme but grant a certiorari quashing the decisions of the 2^nd and 3^rd Respondents.  Ms Ng did not pray for any mandamus in the Form 86 and in her submissions.  But it is necessary to have a decision on legal representation by the Reviewing Authority in order to trigger the mechanism under paragraph 13 of Chapter 8.  The 3^rd Respondent has retired since the making of the decision.  In the light of that, subject to comments from the parties (if any, such comments should be lodged within 14 days from the delivery of this judgment), I shall grant a mandamus directing the current Reviewing Authority to make a decision on legal representation for the Applicant in accordance with this judgment.

55.  On the question of costs, the Respondents are successful in resisting the challenge to the Scheme whilst the Applicant is successful in getting legal representation in the present instance.  I would make an order nisi that each party shall pay his own costs.