CHAN WAI KEUNG v. COMMISSIONER OF POLICE

HCAL 196/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 196 OF 2002

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J U D G M E N T

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Facts

1.  The applicant was born in 1968 and is 41 years old now.

2.  He joined the Police Force as a police constable in 1987.  He served in various patrol subunits and task force subunits, performing different front line duties.  He was last attached to the Traffic/Kowloon East Division.

3.  Prior to the subject disciplinary matter, the applicant had an unblemished record.  He had received a total of 27 compliments from his senior officers.

4.  On 13 November 2000, the applicant disclosed to his supervisor his intention to file a petition for bankruptcy.  He explained that his indebtedness was due to monies he had lent to his mother as well as the funeral expenses of his grandfather which he had shouldered.  He had debts totalling over $800,000. 

5.  On 15 November 2000, a superintendent gave instructions prohibiting the applicant from drawing arms on duty with immediate effect.  He was transferred to perform indoor duties.

6.  On 17 November 2000, the applicant filed a petition for bankruptcy, and a bankruptcy order was made against him on 20 February 2001. In the meantime, on 22 November 2000, the applicant was classified by the Force as an officer with unmanageable debts (OUD).  A chief inspector in his report on the applicant’s OUD status stated that the principal reason leading to the applicant’s indebtedness was the business failure of his mother.

7.  On 8 June 2001, the applicant was charged with the disciplinary offence of “contravention of police orders”, contrary to regulation 3(2)(e) of the Police (Discipline) Regulations (Cap 232A). The relevant police order was Police General Order 6-01(8), published in 1999, which read:

“A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment stemming from financial imprudence which leads to the impairment of an officer’s operational efficiency will result in disciplinary action.”

8.  An adjudicating officer, sitting as the “appropriate tribunal”, heard the charge against the applicant on various dates in 2001.  At the hearings, the applicant was represented by a senior inspector of police.  On 19 November 2001, the Adjudicating Officer found the applicant guilty of the charge.  The Adjudicating Officer found that the applicant had failed to be prudent in his financial affairs and that his pecuniary embarrassment (that is to say, his bankruptcy) had stemmed from his financial imprudence.  The Adjudicating Officer also found that the applicant’s operational efficiency had been impaired thereby.

9.  In relation to the second matter, which was the real issue of contention between the parties, the Adjudicating Officer found that the restrictions on the applicant’s drawing arms on duty and his re-assignment to perform indoor duties had prevented the applicant from performing a full range of constabulary duties, thus impairing his operational efficiency as a police officer.  They were imposed on the applicant, the Adjudicating Officer found, as a direct consequence of his imprudence in managing his financial affairs, something which he should have been able to control.  The Adjudicating Officer found that as a result, his supervising officers had difficulty in finding a suitable deployment for him.

10.  The Adjudicating Officer did not award any punishment against the applicant but referred his finding to a senior police officer for the making of an award pursuant to regulation 13(3) of the Regulations.

11.  On 21 November 2001, the Senior Police Officer seized of the case confirmed the guilty finding made by the Adjudicating Officer and imposed an award of “order to resign forthwith without salary in lieu of notice”.  The case was forwarded to the Force Discipline Officer in accordance with regulation 14(4) of the Regulations.

12.  On 15 February 2002, the Force Discipline Officer informed the applicant that the finding and award made by the Senior Police Officer were confirmed pursuant to regulation 14(5) of the Regulations.  In an internal memo dated 4 February 2002, the Force Discipline Officer stated that he was “satisfied that the proceedings were conducted properly and the ‘guilty’ finding [was] in order and safe”.

13.  The applicant appealed to the Commissioner against the finding and the award pursuant to regulation 15(1) of the Regulations.  The appeal was dealt with on paper by the Deputy Commissioner of Police (Management).

14.  By a memo dated 19 August 2002, the applicant was informed that the Deputy Commissioner had dismissed his appeal and he was ordered to submit his resignation forthwith.  Otherwise, he would be dismissed and his earned leave would be forfeited.

15.  On 22 August 2002, the applicant acknowledged receipt of the memo and tendered his resignation accordingly. 

Proceedings

16.  On 21 November 2002, that is to say, within the three-month limit laid down by Order 53, rule 4(1) of the Rules of the High Court (Cap 4A) for making an application for leave to apply for judicial review, the applicant sought leave from the court to challenge:

“The guilty conviction and award of ‘Order to Resign forthwith without salary in lieu of Notice’ in connection with the Police Disciplinary Proceedings T KE DR 2/2001, which was confirmed by the Commissioner of Police and was communicated to [the applicant] on 22 August 2002.”

17.  Unfortunately, the relevant court file was apparently misplaced in the Registry and the papers never reached the Judge in charge of the List at the time, or indeed any other judge, for a decision on the application for leave. As it happened, the applicant, who was acting in person, never followed up on his application.

18.  There is no direct explanation from the applicant as to his inaction.

19.  Mr Jin Pao, appearing for the Commissioner, submits that a proper and sensible inference to draw in the absence of evidence from the applicant is that he simply thought that his application had been dismissed by the court and for reasons of his own, he did not take the matter any further.

20.  On the facts, that is a proper inference to draw.  At the hearing, the Court actually offered an opportunity to the applicant to put in evidence to explain his apparent inaction, but that offer was not taken up.

21.  The matter did not come to light until after the Court of Final Appeal’s decision in Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237, which held, overruling previous authorities, that the prohibition of (outside) legal representation under regulation 9(11) and (12) of the Regulations was unconstitutional and rendered police disciplinary proceedings conducted in accordance therewith unfair and unlawful.

22.  Lam Siu Po was decided on 26 March 2009.  Apparently, after learning of the decision which had received wide media attention, the applicant applied for legal aid to pursue the matter again.  Legal aid was granted on 13 November 2009, and the assigned solicitors first wrote to the court to search the court file in the present proceedings on 15 April 2010.  Following the search and further correspondence, it became apparent that the court file had been misplaced throughout the years and no decision on the application for leave had yet been made.  The papers were duly placed before this Court, and on 13 May 2010, after consideration of the papers only, this Court granted leave to apply for judicial review, and informed the parties of what had happened to the court file before.  The Court granted the application for leave, which was made within time, on the basis of the decision in Lam Siu Po.

Substantive grounds for judicial review

23.  Mr Hectar Pun, appearing for the applicant, relies on two grounds. First, he argues that the proceedings before the Adjudicating Officer were unfair because of the systematic ban on (outside) legal representation, in contravention of article 10 of the Hong Kong Bill of Rights.

24.  Secondly, counsel argues that there was simply no or insufficient evidence to prove that the applicant’s operational efficiency had been impaired by his pecuniary embarrassment. 

25.  In my view, the applicant’s challenge must be upheld on the first ground, in the light of the decision in Lam Siu Po.  In that case, it was held by the Court of Final Appeal that the very fact that the relevant regulation imposed an automatic ban on legal representation rendered proceedings conducted in accordance therewith inherently unfair and the relevant conviction and sentence quashable (para 144).  The Court of Final Appeal went on to observe that it was therefore unnecessary nor profitable to enter into the inevitably speculative realm of trying to determine how the evidence or the case might have progressed differently if a lawyer had been acting for the police officer in the disciplinary proceedings (para 146).  The Court would not go into the question of the merits of the underlying disciplinary charge unless it was sought to be suggested by the Commissioner in the judicial review that with or without proper legal representation, the conviction and sentence would have been the same on the facts of the particular case.

26.  In the present case, the Commissioner does not argue that with or without proper legal representation, the conviction and sentence would have been a foregone conclusion on the facts.  Therefore, prima facie, it is neither necessary nor profitable to look at the merits of the underlying disciplinary proceedings.

27.  Mr Pun, in pursuing his second ground, vaguely submits that the present case actually involves the converse situation.  That is to say, on the facts and evidence actually presented against his client in the disciplinary proceedings, there simply was no or insufficient evidence to prove the charge against the applicant, and therefore the finding and award should also be quashed on that basis.  However, Mr Pun eventually accepts that to a significant extent, his submission really turns on whether the instructions prohibiting the applicant from drawing firearms and the decision to switch him to indoor duties could be justified from a management point of view.  This is a matter for the disciplinary tribunal, but not for the Court sitting in its supervisory jurisdiction.

28.  The Court therefore does not proceed on the basis of the second ground.

Technical objection

29.  Mr Pao takes a technical point.  He argues that in his Form 86A, the applicant has only challenged the final decision of the Deputy Commissioner to dismiss his appeal from the conviction and award.  The applicant has not challenged the earlier decisions of the Adjudicating Officer, Senior Police Officer and Force Discipline Officer.  Counsel argues that so far as the decision of the Deputy Commissioner is concerned, Lam Siu Po is wholly irrelevant because there was no oral hearing before the Deputy Commissioner, and therefore there was no ban on the applicant’s seeking and obtaining outside legal advice to help him prepare his written appeal to the Commissioner.

30.  As regards the earlier decisions, particularly the decision made by the Adjudicating Officer after the oral hearings, Mr Pao argues that any challenge against them now will be hopelessly out of time, and no extension of time should be granted to the applicant to challenge these earlier and crucial decisions, particularly the decision of the Adjudicating Officer (to which Lam Siu Po would have a bearing).

31.  I reject Mr Pao’s argument.  First, reading the Form 86A fairly, and bearing in mind that the applicant was then acting in person, it is tolerably clear that what he challenged was the guilty finding and the award, and thus all the relevant and necessary decisions which led to or confirmed the guilty finding and award.  In matters of this sort, the court looks at substance rather than form.

32.  Secondly, even if the only decision under challenge were the decision of the Deputy Commissioner dismissing the appeal from the finding and award made below, it would still not follow that Lam Siu Po had no relevance.  With respect, counsel has missed the significance of Lam Siu Po in relation to the decision of the Deputy Commissioner.  Lam Siu Po is of course not relevant to the appeal proceedings before the Deputy Commissioner in the sense that there was no oral hearing before the Deputy Commissioner and therefore the ban on legal representation had no application.  Lam Siu Po is however relevant to the merits of the decision made by the Deputy Commissioner, that is to say, the decision to dismiss the appeal from the guilty finding and award made below.  The guilty finding was made after hearings that were inherently unfair and were conducted in contravention of article 10 of the Hong Kong Bill of Rights.  For reasons explained in Lam Siu Po, the finding and therefore the award were unlawful and unsupportable.  In the absence of any suggestion that with or without legal representation, the conviction of the applicant would have been inevitable, the only decision open to the Deputy Commissioner when seized of the appeal was therefore to allow the appeal.  He failed to do so and that was an error of law.  For that reason alone, the application for judicial review would have been equally successful (subject to the question of relief) even if the Deputy Commissioner’s decision were the only decision under challenge.  And, in that scenario, quashing the decision to dismiss the appeal and directing the Deputy Commissioner to decide the appeal in accordance with the Court’s view on the matter would have been quite sufficient for the applicant’s purpose.

Relief

33.  The application for leave was made within time.  The grant of leave was not challenged and there was no application to set aside leave.  At this substantive hearing stage, the Court is therefore only concerned with the question of relief.  This is governed by section 21K(6) and (7) of the High Court Ordinance (Cap 4):

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

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

(b) any relief sought on the application,

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

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

34.  According to section 21K(6), where the court considers that there has been undue delay in “making an application for judicial review”, it may either refuse leave or refuse any relief sought on the application, if it also considers that the granting of the relief sought would, on the facts of the case, be “detrimental to good administration”.

35.  This Court has explained in Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215, paras 142-145, that the underlying rationale for refusing leave or relief for undue delay in the described circumstances applies to each and every step in the judicial review procedure, starting from an application for leave to apply for judicial review, up to and including the last step in the prosecution of a substantive application for judicial review.  This applies, on the facts of Anderson Asphalt, to the prosecution of an interlocutory appeal against an initial refusal to grant leave to apply for judicial review.  After all, it has to be remembered, public law relief is essentially discretionary in nature.

36.  Mr Pun does not seriously dispute all this.  He is prepared to proceed on the basis that his client has been guilty of “undue delay” in pursuing his application for leave to apply for judicial review.  As mentioned, no evidence to explain the long inaction has been filed by or on behalf of the applicant, and I have described the proper and appropriate inference to be drawn from the facts.

37.  However, this is not the end of the matter for the applicant.  Undue delay per se does not entitle the Court to deny relief.  What turns crucial in the present case is whether the grant of relief would be detrimental to good administration of the Police Force.  Mr Pao accepts that in this regard, the burden really lies with the Commissioner to persuade the Court that granting the applicant relief would be detrimental to good administration of the Police Force.  Counsel therefore raises a number of points.

38.  First, counsel argues that allowing the matter to be reopened after the lapse of such a substantial period of time is in itself detrimental to good administration. 

39.  I accept this is a relevant matter to be taken into account.  The policy of finality, coupled with the long delay in the present case, do impact on the question of good administration in a general sense.  However, unlike a typical time-extension type of situation, where the ex-police officer simply seeks an extension of time to apply for leave to apply for judicial review after a fairly substantial delay, what is involved here is a very unique situation. The application was actually made within time.  The applicant was only partly responsible for the long delay.  The risk of opening a floodgate, as Mr Pao accepts, is not a real concern in the present case, as the facts are most peculiar.  Good administration is therefore only to be affected in a very general sense.

40.  Secondly, Mr Pao argues that granting the applicant relief is not fair to all others who have been denied an extension of time to apply for leave to apply for judicial review following Lam Siu Po.  Counsel argues that in substance, the applicant is no different from these other ex-police officers because, on the facts, he must be taken to have abandoned his application some time after it was made back in 2002.

41.  I can see the point counsel is seeking to make.  But an obvious distinction between the present case and all the other cases remains the fact that the applicant did make his application within time, and legally speaking, he never abandoned his application for leave.  Unlike the situation faced by Chu J in Chiu Kin Ho v Commissioner of Police, HCAL 135/2004, 7 May 2010, the applicant in the present case did not need any extension of time from the Court to take any requisite step to pursue his application for judicial review.  Subject to the Court’s discretion to withhold relief under section 21K(6)(b) of the High Court Ordinance or its discretionary jurisdiction, the applicant does not need to seek the indulgence of the Court.  All this is very different from Chiu Kin Ho, where the applicant, after an unsuccessful appeal to the Court of Appeal from an order by the Court of First Instance to grant him leave to apply for judicial review on a limited basis only, failed to file and serve the requisite originating notice of motion within time, and thus had to seek the Court’s indulgence to extend time for him to do so.

42.  In my view, there is a sufficient distinction between the present case and the other cases where the applicants failed to get an extension of time. In any event, one must focus on whether the good administration of the Police Force would be affected.  The supposed unfairness, if any, would have nothing to do with the Police Force.  Any reinstatement of the applicant by the Police Force in the present case would be as a result of a court order.  There is therefore no question of the Police Force treating different ex-police officers in similar positions differently or discriminatively.

43.  Thirdly, Mr Pao argues that two of the four police witnesses who gave evidence at the original hearing have since retired.  There is no power on the part of the Force to compel the retired officers to give evidence at any re-hearing.

44.  I am not persuaded by the argument.  There is no evidence that the Police has lost contact with the two former police officers or that they are not prepared to give evidence at a re-hearing.  Nor is there any evidence that their memory of the events has been affected – although, to be fair, it must be so in a very general sense, given the long lapse of time.  As I said, the burden of establishing “detrimental to good administration” lies with the Commissioner.

45.  In any event, Mr Pun has on behalf of the applicant given the undertaking that at the re-hearing, the applicant would agree to the admissibility of the relevant parts of the transcript of the previous proceedings containing the retired officers’ evidence before the Adjudicating Officer as evidence before the new tribunal, without requiring the prosecution to call the retired officers at the re-hearing, subject to the reservation of the applicant’s right to call, if he sees fit, one of those retired officers, namely, retired Chief Inspector Leung Tat Yung, to give evidence at the re-hearing.  In my view, the undertaking goes a long way to neutralizing Mr Pao’s point.

46.  Fourthly, Mr Pao argues that the applicant’s mother was not called to give evidence at the original hearing.  The police does not know whether the mother will give evidence at the re-hearing and does not know what she may say.  Given the lapse of time, the police would not be in a position to investigate into and verify or contradict the mother’s assertions. 

47.  I do not accept the argument.  As Mr Pun has submitted, the applicant has, in his statement given to the police during the investigation, explained the activities of the mother and their relevance to his financial difficulties.  The police could and should have investigated into the applicant’s assertions at the time.  In any event, Mr Pao’s point is based on something which is very general and speculative in nature. 

48.  Incidentally, the Court notes, as a general point, that the Commissioner has not suggested that if there had been a re-hearing earlier (but for the long delay), the prosecution would have called additional or some other evidence to prove its case against the applicant, which additional or other evidence is no longer available now. 

49.  Mr Pao then argues that the applicant might not be able to pass the training requirements for reinstatement purposes, in which event the Police Force would be, as it were, stuck with the applicant.  In the evidence filed, other administrative difficulties have been alluded to.

50.  I do not accept the argument.  If the applicant should repeatedly fail to pass the training requirements, his case could and would, one would expect, be dealt with by the management just like any other case where a serving police officer is unable to pass the requirements of the continuous training programme.  It is difficult to see any distinction between a reinstated officer like the applicant and a serving officer in this sort of situation.  As regards the other administrative difficulties, such as promotion and career prospect, they would have a bearing if one were concerned with a large number of reinstated officers.  The courts have indeed taken similar considerations into account in those time-extension cases that I have already referred to.  But on the unique facts of the present case, one is merely concerned with one single reinstated officer.  I do not think these other administrative difficulties outlined in the evidence are sufficient to establish a case of “detrimental to good administration”.

51.  Finally, Mr Pao refers to the applicant’s possible resentment against the Police Force and the possible resentment of some police officers against the applicant if he were to be reinstated.

52.  I reject the argument.  The question of resentment, or mutual resentment, is, according to the evidence, a possibility not to be ignored in the event of a large scale reinstatement of former officers.  As the evidence put it (para 29 of the affirmation of Chau Kwok Leung Alfred), “the reinstatement of a large number of terminated officers would create serious difficulties in terms of staff morale, cohesion and cooperation”.  However, one is only talking about one single reinstated officer in the present case.  There is no concern of opening a floodgate, as Mr Pao has readily accepted.

53.  Apart from these specific points, I have also considered the various points made in the evidence filed, as well as the entire circumstances of the present case.  I have come to the conclusion that a case of “detrimental to good administration” has not been made out. 

Outcome

54.  In those circumstances, there is no justification for withholding relief.  The Court therefore orders that a writ of certiorari be issued to bring up and quash the respective decisions of the Adjudicating Officer, the Senior Police Officer, the Force Discipline Officer and the Deputy Commissioner (Management) relating to the subject disciplinary proceedings.

55.  The Court makes an order nisi that the costs of the proceedings, including all costs previously reserved, be paid by the Commissioner to the applicant, to be taxed if not agreed.  The Court further orders legal aid taxation of the applicant’s own costs. 

56.  I thank counsel for their assistance.