RE LO WING TONG

1988 No. MP2496

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-------------------

------------------------

J U D G M E N T

------------------------

1. This is an application for judicial review of Police Disciplinary Proceedings against the Applicant LO Wing-tong. Those Proceedings resulted in his being severely reprimanded and dismissed. The following 6 charges were laid against him:

2. Charges A & B: Absence from duty without leave

Charge C      : Associating with one WONG Po-yee, an undesirable character

Charge D      : Assisting in disposing/handling stolen property i.e. 9 boxes of glue stolen by Wong Po-yee

Charges E & F      : Leaving Kwun Tong Police District without approval on 2 occasions while on duty.

3. Charges A & B were, in the course of the Proceedings, dropped and at the same time charges E & F added.

4. The facts are these. The Applicant was a police constable attached to the Uniform Branch district Intelligence Unit of Kwun Tong from June 1986. In the 2nd half of 1986 the Police mounted an operation against shop theft. As a result WONG Po-yee was charged with inter alia stealing a quantity of glue. In the course of surveillance by the police during that operation, the Applicant was seen meeting WONG PO-yee at Tsimshatsui on 16th August 1986 and again on 18th August 1986, on each occasion actually taking some goods into his possession from WONG PO-yee; only one box on the first occasion but many on the 2nd; then on the 18th taking them home and later that same day meeting another police constable (the 2nd Defaulter) who was subsequently charged with him in the Police Disciplinary Proceedings. He took some boxes to the quarters of the second Defaulter, who was heard to say "Whats f..... wrong with you, putting these things in my place". His reply was "There's no f ..... need to be afraid". When arrested on 9th September 86, there were found in his quarters goods which, according to hearsay evidence accepted by the Adjudicating Officer, had been stolen. At 9.25 a.m. he made a first statement in question and answer form claiming that his friend Wong Tin-yau (in fact Wong Po-yee) who he claimed worked as a sales representative asked him to store the goods as he did not have room. The goods were "itinerant goods" which were to be sent to China. Wong had paged him and he went and collected the goods. He mentioned only taking delivery once. He said he sold 9 boxes to the second Defaulter and gave the proceeds to Wong. Later the same day at 5.30 p.m. he made a second statement. There were discrepancies in his statements, and these together with certain respects in which his statements conflict with the detailed surveillance reports show up lies on his part.

5. On 14th January 1987 WONG Po-yee pleaded guilty to theft. Disciplinary Proceedings against the Applicant and the 2nd Defaulter commenced on 10th March 1987 and proceeded intermittently until the verdict was delivered on 14th august 1987, some 5 months later. The Applicant was found guilty on the 4 latter charges; in respect of charges C & D he was dismissed, and in respect of charges E & F merely reprimanded. He appealed to the Commissioner of Police in October 1987 and his appeal was dismissed on the 13th January 1988. He then obtained legal aid and with the requisite leave now makes the present application: more than a dozen grounds are relied upon, some of them composite. All are advanced upon the 3 well established heads of grounds upon which administrative action is subject to judicial review i.e. illegality, irrationality and procedural impropriety as propounded by Lord Diplock in CCSU v Minister for Civil Service (1985) 1 AC 374,410 But it is fair to say that they nevertheless allege failure to take into account certain evidence, failure to make a ruling of inadmissibility, failure to invite the Applicant to take certain steps open to him, errors of law in relying on prejudicial opinions, opinion evidence from non-experts, hearsay evidence to establish a chain of evidence, failure to permit personal appearance on appeal and so on. It is helpful therefore to begin by examining the natrue of the administrative disciplinary proceedings in question.

6. The Police Ordinance and particularly the Police (Discipline) Regulations make it clear that disciplinary proceedings are to be conducted by senior serving police officers. It follows in my view that such officers are not expected to be lawyers or to apply legal rules of evidence. There is in any case authority for that. In R v Hull Prison Board of Visitors, ex parte St. Germain and others (No. 2) (1979) 3 AER 545, 550, Geoffrey Lane L.J. cited with approval the following passage from the 1911 speech of Lord Loreburn in Board of Education v Rice:

"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."

Also of assistance is the following passage from the judgment of Megaw L.J. in R v Hull Prison Board of z Visitors, ex parte St. Germain and others (1979) 1 All ER

701, 713 :

"I referred early in this judgment to the submission of counsel that proceedings of boards visitors in respect of offences against discipline are 'subject to judicial review, at any rate where the allegations are of breaches of the procedure laid down in the Prison Rules and/or rules of fairness and natural justice'. I think that is too widely stated. It is certainly not any breach of any procedural rule which would justify or require interference by the courts. Such interference, in my judgment,would only be required, and would only be justified, if there were some failure to act fairly, having regard to all relevant circumstances, and such unfairness could reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice which was capable of remedy."

7. Turning then to the grounds relied upon by the Applicant the first is that the Adjudicating Officer of his own motion introduced the new charges E & F in the course of the hearing. It is contended that that was without jurisdiction, wrong in law, and contrary to natural justice in that:

(a)    there was no power or jurisdiction for the Adjudicating Officer so to do under regulation 10 of the Police (Discipline) Regulations;

(b)    the Adjudicating Officer failed to offer any opportunity for an adjournment to the Appellant; and

(c)    the relevant witnesses having already given evidence, the Adjudicating Officer gave no opportunity for the recalling of the witnesses who had already given evidence.

8. Regulation 10 of The Police (Discipline) Regulations is in the following terms:

10.    A charge may be amended or a further charge added at any time prior to a finding being communicated to a defaulter charged under these regulations and any amended or ew charge shall be read and explained to such defaulter who shall-

(a)    be called upon to plead thereto, and

(b)    be entitled to a reasonable adjournment to prepare his further defence,

    and in such case a defaulter may-

(i)    recall any witnesses, and

(ii)    call such further witnesses as he thinks fit, and any witness giving evidence under this regulation may be cross-examined and re-examined.

Plainly, on any reading of Regulation 10, there was power for the new charges to be added. In the context of an administrative hearing in relation to which that is not expressly prohibited, I cannot see that it was wrong for the Adjudicating Officer to have done so even on his own initiative. It is not suggested e.g. that because the initiative came form the Adjudicating Officer, the Applicant was somehow insufficiently aware of the charges he had to meet or not provided a fair opportunity to controvert those charges. The position would surely not have been any different had the prosecution been responsible for the initiative.

9. To proceed, I am satisfied on the facts that the Applicant had ample opportunity to ask for an adjournment. True 7 of the 14 "prosecution" witnesses had already given evidence, but the new charges were added at 11.15 a.m. on the 25th May 1987, and the hearing continued for the rest of that day. Thereafter subsequent sittings were held on 6th July and 28th July. On 31st July 1987 the Applicant's representative informed the tribunal that the Applicant would not give evidence, but that 2 defence witnesses would give evidence on his behalf. They did so and the proceedings were then adjourned to 3rd August when written submissions were put in by the prosecution and the defence.

10. The complaint is that the Adjudicating Officer did not actually offer an adjournment to the Applicant. The Regulations do not require such an offer to be made: nor, in my view do the requirements of natural justice in the particular circumstances. I do not accept that such an offer was necessary to secure to the Applicant a fair opportunity to controvert the charges, or that its absence somehow denied him that opportunity. I do not find AG of Hong Kong v Ng Yuen Shiu (P.C.) (1983) 2 AC 629,upon which Mr. Eddis for the Applicant sought to rely, of assistance. In the particular circumstances of that case, itself characterised by the Board a very narrow case on its own facts, the applicants reasonable expectation could not be met unless he was asked if he had any relevant reasons. In the present case the equivalent of those reasonable expectations are the rules of natural justice and these were met by the applicant having in fact ample opportunity to respond to and refute the new charges. For basically the same reasons I do not find Annamunthodo v Oilfield Worker's Trade Union (1961) AC 945 also relied upon by Mr. Eddis of assistance. In that case the General Council had not given notice of the amended charges and did not adjourn after amending the charges

   As to the claim that the Adjudicating Officer gave no opportunity for the recalling of witnesses, again the complaint is that no express offer was made. But equally that is not required by regulation 10 or any of the other provisions of the Regulations. Had the Applicant sought the recall of any witness, I have no doubt that would have been done. And certainly I accept that the better or desirable course would have been to ask the Applicant if he wished to have any witnesses recalled. But I do not accept that the absence of such action is fatal to the disciplinary proceedings or that it was wrong or resulted in anything like the denial of a proper opportunity to controvert the charges. There was, on the contrary, ample opportunity and it would be surprisimg in the extreme if the Senior Inspector defending, and upon whose exceptional knowledgability and preparation the Adjudicating Officer favourably commented, was not fully aware of the right to recall witnesses. To introduce into such such proceedings requirements of the sort contended for, where they are not expressly provided, nor, in my view required in the interests of natural justice in the particular circumstances, would be contrary to the non-technical nature of the proceedings that I consider must have been contemplated by the relevant legislation and is recognised in the authorities. I accordingly reject the first ground.

11. The next ground is that the Adjudicating Officer failed to take into account the relevant evidence of the second defence witness and/or unreasonably and deliberately ignored that evidencee. This relates to charges E & F. In his judgment the Adjudicating Officer said of the Applicant "Dl has chosen to remain silent though he had called witness to give evidence for his defence. Their evidence were of no use". In fact the first defence witness had given evidence that suggested that no mention had been made of leaving the district while on duty. This was contrary to the evidence of one of the prosecution witnesses, Senior Inspector Yip, who said constables were told they should not leave the district without prior approval. Senior Inspector Yip's evidence on the point was not consistent with that of another prosecution witness. It is argued that in those circumstances the evidence of the 1st Defence witness should have carried the day. It is not necessary to set out all the evidence.

12. In my judgment the Adjudicating Officer was entitled to believe the Senior Inspector and in my view hat is what he did. He was not required to set out the reasons why he did so. I do not accept that the words "Their evidence were of no use" indicate that he failed to take account of the evidence of the 2nd Defence witness. It seems to me more likely that he preferred the evidence of the Senior Inspetor. I do not in the circumstance regard the omission to refer to the 2nd Defence witness evidence as significant or as showing that the Adjudicating Officer ignored that evidence, a fortiori unreasonably or deliberately.

13. Ground 4 is that the Adjudicating officer failed to make any ruling on the admissibility of the cautioned statements, but nevertheless relied upon them. There is no requirement in the Police (Discipline) Regulations requiring a ruling to be made. The Applicant's representative indicated that the statements were objected to as involuntary and inaccurate, but in his following cross examination did not pursue the former point. As to the recording officer's statement that "there were things recorded by me which were not mentioned" by the Applicant, in my view that was simply intended to mean that the statements were not recorded word for word. To return to ground 4, it is difficult to believe that the Adjudicating Officer would not have directed his mind to the cross examination and objection. Furthermore the Applicant and his representative had ample opportunity to challenge the statements (there was quite a bit of cross examination of the recording officer by the Applicat's representative) and also ample opportunity for the Applicant to give his version pertaining to the statements. It seems to me implicit that the Adjudicating Officer decided to admit the statements notwithstanding that he did not record a formal ruling to do so, and I cannot see any reason why they should not have been admitted by him. Nor do I accept that the Applicant was in any wise prejudiced by the absence of a record of the ruling, I therefore do not accept that there was a material irregularity in this context.

14. Grounds 5 & 6 relate to charge C i.e. associating with WONG Po-yee, and embody 6 sub grounds. First that the Adjudicating Officer was wrong in convicting the Applicant on the basis that he had the experience to ascertain WONG Po-yee's background. It is common ground that knowledge of WONG Po-yee's background as a thief was an essential element of the charge. Having referred to WONG Po-yee's conviction in his judgment and the length of the Applicant's association and contacts with WONG, the Adjudicating Officer concluded with the words considering D1's (the Applicant's) 10 year service in the Police Force with 4 years in crime formation..... D1 should be an experience officer to ascertain the background of WONG Po-yee", adding that D1 had shown himself a very cautious person. Notwithstanding counsel's eloquent submission on WONG's alias which might have masked his recoed, I do not accept that the Adjudicating Officer was wrong in .inferring knowledge in that robust way; that, in my view is what he did, albeit without expressly recording a finding to that effect. It may well have been the only rsaeonable conclusion an experienced police officer would draw from the length of the acquaintainceship, the nature of the contacts and the Applicants experience. For me it is sufficient to note that there was matter before him upon which he could make that inference and that it was not uvproper for him to do so. The second sub-ground is that the finding was inadequate to support the charge. I do not accept that either, the context being administrative disciplinary proceedings and not legal proceedings. It is implicit that the Adjudicating Officer made a finding that the Applicant knew (and not merely that he could have ascertained Wong Po-yee's character). It was not necessary to record it generally or in terms of the ingredients of the charge, if that is what was suggested. The third sub-ground is that the facts could not warrant the inference of knowledge required. I do not accept that. The fourth sub-ground is that the Adjudicating officer misapplied the evidence in arriving at his mistaken inference and turns upon the reference to the Applicant having 4 years in crime formation, whereas it is clear he had only 3½ years and that DSIP Scally another witness had had 4 year. I do not regard the error if such it was, which is by no means clear, as material.

15. The fifth sub-ground is that the Adjudicating Officer misread the cautioned statements by regarding the Applicant as concerned more with the source of the goods given to him by WONG Po-yee, than with what the goods were (which it is said, not without some justification, was the actual position). The point is of little significance; either way an inference of the Applicant being a cautious person could be drawn. More to the point, as I have already indicated, the Adjudicating Officer's conclusion that the Applicant should have known the background of WONG Po-yee was not unreasonable in the circumtances. It was properly drawn from matter upon which it could be drawn

16. The sixth and final sub-ground is that the Adjudicating Officer erred in relying on highly prejudicial opinions voiced by a senior police officer i.e. DSIP Scally. It should be noted that the "prejudicial" opinions were drawn from DSIP Scally by the Applicant's own representative in cross examination. In the context of an administrative disciplinary enquiry, I do not think the Adjudicating Officer can be criticised for recording the evidence, elicited as it was by the Applicant's own representative. I do not accept that material use was made of the "prejudicial" evidence or that it had any significant prejudicial effect. That the Applicant had lied and that his statements had discrepancies should have been quite apparent to the Adjudicating Officer anyway.

17. I proceed to ground 6 which relates to charge D i.e. that the Adjudicating Officer invited only the 2nd Defaulter but not the Applicant to reconsider his decision not to give evidence after both defaulters had elected not to give evidence and the parties had put in their final submissions. Regulation 9 of the Police (Discipline) Regulations provides the usual sort of criminal trial sequence in the procedure prescribed for inquiries into disciplinary offences. It provides that when the examination of all witnesses in support of the charges has been completed, the defaulter shall be asked whether he wishes to give evidence and call witnesses; that when he gives his evidence he may be cross examined and then re-examined; that at the close of the defence case, witnesses may be called in rebuttal and with the consent of the tribunal examined, cross examined and re-examined that after "and at the conclusion of all evidence, the prosecutor may address the tribunal and thereafter the defaulter may address the tribunal"; and that notwithstanding the regulations the tribunal may call any witness and ask such questions as it considers will assist in determining the case.

18. It is not suggested that the latter provision empowered the Adjudicating Officer to invite and permit the 2nd defaulter to give evidence. Technically therefore what he did could be regarded as unusual and not expressly authorised by the Regulations. On the other hand it can hardly be critcised in terms of doing justice to the 2nd defaulter. But the burden of the Applicant's complaint is that the 2nd defaultr's evidence was used to his prejudice. It was also suggested that the Adjudicating Officer deliberately adopted that course so as to be able to convict the Applicant. I am unable to accept that serious allegation; there is no evidence to support it. And in the light of the somewhat desultory way in which the Adjudicating Officer proceeded with the enquiry, I cannot believe that was so. There was no need to do so and to acquit the 2nd Defaulter in the process. To return to the point, after the 2nd defaulter gave evidence, the Applicant's representative was asked and elected not to cross examine the 2nd defaulter. Had he so desired and asked, I have no doubt he would have been permitted to cross examine the 2nd defaulter, to call the Applicant and to make further submissions. There was ample time to consider making such requests and for giving effect to them. I do not think in the context of such an administrative enquiry, the Adjudicating Officer was required to ask the Applicant whether he wished to give evidence etc. or that by not doing so the Applicant was denied a fair opportunity of controverting the ericence concerned. Finally, I cannot see that the Adjudicating Officer could draw any significant adverse conclusions from the 2nd defaulter's evidence that he could not have done from his cautioned statement and the other evidence.

19. Ground 8 is that the Adjudicating Officer erred in law in relying on the 2nd defendant's cautioned statement against the Applicant, because it is argued, it was made in the Applicant's absence. The rules of evidence, including thoes against hearsay evidence, do not apply in administrative proceedings such as the present in the absence of express or implied application, which is not suggested; evidence that is logically relevant, and the cautioned statement is logically relevant, is admissible (see e.g. Reg v. Board of Visitors of Hull prison, Ex parte St. Germain (No. 2) (.1979) 1 WLR 1401).

20. Ground 9 is that the Adjudicating Officer was wrong in law in relying on the evidence of PW14 on the price of glues as PW14 was not an expert. On my reading of his evidence PW14 was giving, factual evidence of price of which he personally knew, being in the trade. I reject this ground.

21. Ground 11 is that the Adjudicating Officer was wrong in law to rely on hearsay evidence to establish the chain of evidence to prove that the 9 boxes of glue sold by the Applicant were stolen goods. I have already noted that the rules of evidence do not apply to the disciplinary inquiry. In my view the Adjudicating Officer was entitled to and was by no means unreasonable in drawing the relevant inference from the facts before him.

22. Ground 12 is that the Adjudicating Officer was wrong in making strong recommendations for dismissal of the Applicant on mere suspicion that he was implicated in syndicated theft. Having regard to the facts before the Adjudicating Officer including his not unreasonable inference that the Applicant knew of Wong Po-yee's background, the fact that the Applicant sold the glue he got from Wong Po-yee to the 2nd Defaulter falsely telling him that it was his share of a partnership or joint venture, and his remark that was overheard, the Adjudicating Officer would not have been unreasonable in inferring that the Applicant was involved in syndicated theft and making a recommendation for dismissal. There was evidence upon which such an inference could be made. It follows that the complaint made on the Applicant's behalf in consequence, that the Senior Officer was wrong in awarding dismissal, must also fail

23. The 13th ground (contained in paragraph 15 of the Amended Notice of Application) is the Commissioner of Police failed to permit the Applicatn to appear before him in person to support his appeal. There is no such requirement in the Ordinance or Regulations. Bearing in mind the nature of the Commissioner's duties and responsibilities, and the amount of his time that would be taken if he had to hear appellants in person, I have no doubt that no such intention can be inferred from the legislation and in any case, that if intended, it would have been expressly provided. Be that as it may, it does not seem to me that the Applicant did not have a fair opportunity of presenting his appeal or that the rules of justice were breached in any other way.

24. Finally I come to ground 10, consideration of which I have deferred as it is not unrelated to several of the other grounds. This is framed in the following way. The Adjudicating Officer misread and misapplied the evidence and made findings and reached a decision which no reasonable tribunal, properly advised, could have reached.

25. For myself, having regard to all the evidence and considerations before the Adjudicating officer, the boot seems to me to be very much on the other foot i.e. that properly advised it would have been unreasonable for him not to have reached the decisions that he did, a fortiori when he would perforce be dealing with the matter as an experienced senior police officer. However, I need say no more than that there was evidence upon which he could properly come to his decision, and as I have already indicated in my judgment there was no material misreading or misapplication of evidence, or other reason to regard the decision as improperly reached.

26. For all the foregoing reasons the application fails and is dismissed. But before I leave it there are two matters I wish to mention. First, this is a legally aided application and it is sometimes thought that such proceedings do not receive the care and attention that lavishly funded private actions do. But the thoroughness with which the disciplinary proceedings have been examined and every point taken in the strongest way possible is such that it must be acknowledged.

27. Second, disciplinary inquiries are serious matters particularly where there are serious charges, that might result in dismissal and affect livelihood as in this case. It is therefore to be deplored when such an enquiry seems to have been accorded so little importance that it was adjourned 9 times between 10th March 1987 when it commenced and 14th August 1987 when judgment was delivered; the adjournments varied in duration from a few days to 3 months. Notwithstanding the other pressing duties and operational requirements of the Police Force and the Adjudicating Officer, that cannot be acceptable, even if it has not materially prejudiced the Applicant. I note that the Force Discipline Manual in paragraph 4-17(a) says "Don't adjourn proceedings unless absolutely necessary." Nonetheless, for all the foregoing reasons the Application is disimissed.