HO HO CHUEN v. COMMISSIONER OF POLICE

HCAL 190/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 190 OF 2002

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J U D G M E N T

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1. The Applicant joined the police force as a police constable in 1989. In 2000, because of financial difficulties, the Applicant petitioned for bankruptcy. In March 2001, a bankruptcy order was made against him.

2. On 24 April 2001, disciplinary proceedings were instituted against the Applicant pursuant to reg. 3(2)(e) of the Police (Discipline) Regulations (Cap. 232) ("the Regulations") which concerns the contravention of, amongst other things, police orders. The police order that was said to have been contravened by the Applicant was PGO 6-01(8) which reads:

"A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment from whatever cause is regarded as a circumstance which impairs the efficiency of an officer."

3. Two charges based on PGO 6-01(8) were laid against the Applicant. Eventually, the Applicant was found guilty of one charge by the Adjudicating Tribunal on 19 November 2001. The Tribunal referred the award of punishment to the Senior Police Officer.

4. On 28 November 2001, the Senior Police Officer confirmed the finding of guilt and made an award of dismissal. On 30 January 2002, an internal document known as "M5" relating to the disciplinary proceedings was prepared by the police management. M5 recommended to the Force Discipline Officer ("FDO") to confirm the guilty finding, to vary the award from "dismissal" to "compulsory retirement with deferred benefits, suspended for 12 months" and to issue a "warning for dismissal (general) valid for 3 years" upon rectification of the case.

5. On 5 February 2002, by a document known as "M6", the FDO decided to confirm the guilty finding and to vary the award from "dismissal" to "compulsory retirement with deferred benefits". He gave reasons for his decision in M6. Contrary to the recommendation in M5, he did not order the suspension of the compulsory retirement award.

6. The decision of the FDO was communicated to the Applicant in writing on the following day. M6 was not supplied together with the notification.

7. According to the Regulations (reg. 15), the Applicant had 14 days to appeal in writing to the Commissioner of Police by petition against the decision of the FDO. Thus on 20 February 2002, the Applicant lodged his appeal with the Commissioner. The written appeal contained, as was required by reg. 15, the grounds of appeal, which related both to conviction and sentence. According to the Applicant, the written appeal was drafted by his solicitor.

8. On 10 June 2002, the Discipline Section of the police management prepared a "staffing note" containing a point by point summary and examination of the grounds of appeal of the Applicant.

9. On 12 June 2002, the staffing note was supplied to the Applicant for his comment. It was supplied under the cover of a memo from the Commissioner to the Applicant on the following terms:

"Disciplinary Proceedings MTR DR 1/2001
- Appeal to Commissioner of Police -

I refer to your written appeal against the finding and award of the above disciplinary proceedings which was submitted on 2002-02-20.

2. Before submitting your appeal to the Commissioner of Police for consideration under Reg. 15(2) of the Police (Discipline) Regulations, I enclose for your reference a copy of the views on your representations complied by Discipline Section. These will be submitted to the Commissioner together with your appeal for his consideration, however, before this is done, you may make comments on these views in writing to Commissioner of Police (Attn: SP D) within 14 days from your receipt of this memorandum. Your comments, if any, will be submitted to the Commissioner for consideration together with your written appeal and the views of Discipline Section.

3. By copy of this memorandum, DC MTRDIST please serve the personal copy on the officer, ask him to sign on the attached acknowledgement receipt and fax it to Discipline Section as soon as possible.

	(FUNG DAI Siu-ching)
	for Commissioner of Police"

10. Apart from the memo which was in English, there was a translation of the memo in Chinese (the accuracy of the translation is not in dispute). Moreover there was also an "acknowledgement receipt" in both English and Chinese, which the Applicant was asked to sign and return to the management. The acknowledgement receipt reads (the Chinese is skipped):

"I acknowledge receipt of the memorandum under reference. I am aware that if I wish to make any comments on the attached views by Discipline Section, I have to forward my comments to the Commissioner of Police in writing within 14 days of my receipt of this memorandum."

11. Despite the receipt of the staffing note, the Applicant did not send in any comments regarding the staffing note whether within 14 days or thereafter.

12. On 12 July 2002, further documents, collectively known as "the defaulter report", comprising, amongst other documents, M5 and M6, were disclosed by the Commissioner to the Applicant under the cover of another memo. The covering memo reads:

"Disciplinary Proceedings MTR DR 1/2001
- Appeal to Commissioner of Police -

Further to our memorandum (14) in the same series dated 2002-06-12 [i.e. the previous memo], please note that in view of the recent judicial review verdict, I am now forwarding to you copies of the Record of Proceedings, SPO's Decision and the staffing minutes relating to the Defaulter Report in question for your information and any comments you may have. Any comments you submit will be passed to the Commissioner to assist him in determining your appeal.

2. You are to submit your comments, if any, to the Commissioner of Police (Attn: SIP D2) within 14 days from your receipt of this memorandum.

3. By copy of this memorandum DC MTRDIST please arrange for the personal copy to be served on the officer and to explain the content of this memorandum to him. Please also ask the officer to sign the attached acknowledgement receipt and fax it to the Discipline Section as soon as possible.

	(WONG Kei-wai)
	for Commissioner of Police"

13. Again, the Applicant did not communicate any comments on the defaulter report to the Commissioner within 14 days or thereafter.

14. On 9 August 2002, after considering the papers and material available to him, including the staffing note and the defaulter report, the Deputy Commissioner of Police dismissed the Applicant's appeal.

15. By these proceedings, the Applicant seeks to judicial review the Deputy Commissioner's decision to dismiss his appeal. He does not seek to disturb the earlier decisions of the Adjudicating Tribunal, the Senior Police Officer, and the FDO.

16. In the application for leave to apply for judicial review, the only ground put forward to challenge the Deputy Commissioner's decision was one of procedural impropriety, in that the Applicant was not provided with M5 and M6 "at the material time prior to the lodging of his appeal with the Commissioner of Police against both the findings and the varied award of FDO on 20 February 2002": paragraph 42 of the Notice of application for leave to apply for judicial review. The Applicant was granted leave to apply for judicial review on that basis.

17. However, after leave was granted, and after evidence was filed by the Deputy Commissioner in response to the application for judicial review, the Applicant applied for leave to file a second affirmation, seeking to explain why he did not communicate any comments to the Commissioner of Police after he was respectively supplied with the staffing note and the defaulter report. At the hearing of the application for judicial review, it became clear that counsel for the Applicant sought to rely on one further ground in support of his client's application, i.e. that the disclosure of the staffing note, M5 and M6 in June and July 2002 respectively, after the lodging of the appeal in February 2002, did not constitute sufficient disclosure in satisfaction of the procedural fairness requirement, and therefore their disclosure was not sufficient to rescue the Commissioner's decision. The Respondent objected to the Applicant's application for leave to adduce such evidence or his running the case in that manner. For reasons that will become apparent in due course, I propose to deal with the application for judicial review in the following manner.

18. First, in relation to the original ground, i.e. that the Commissioner failed to disclose relevant material prior to the lodging of the appeal on 20 February 2002, the relevant material here can only be M5 and M6 which came into being prior to 20 February 2002. It cannot include the staffing note which was only prepared in June 2002 after the lodging of the appeal.

19. As I said, M5 actually came into being prior to the FDO's decision on 5 January 2002. Indeed it was supplied to the FDO and considered by him, before he made his decision on 5 January 2002. It was not disclosed to the Applicant until July 2002. But, as I also noted above, there is no application to judicial review the FDO's decision. The non-disclosure of M5 to the Applicant prior to the FDO's decision on 5 January 2002 is therefore quite irrelevant for the purpose of the present application.

20. M6, as described above, contained the reasoned decision of the FDO. The decision itself was communicated to the Applicant on 6 January 2002. The reasons, contained in M6, were not, until July 2002. Mr Lo, appearing for the Applicant, argued that both M5 and M6 ought to have been disclosed to his client between 6 and 20 February 2002, i.e. between the time when the Applicant was notified of the FDO's decision and the time when he lodged his appeal with the Commissioner against the FDO's decision. He argued that without M5 and M6, the preparation of his client's grounds of appeal, which he had to supply at the time he lodged his appeal as was required by reg. 15, was adversely affected.

21. At first blush, this argument seems to lack attraction, particularly if one focuses (as counsel on both sides indeed did at the hearing) only on the procedural fairness requirement that there should be no unilateral communication with a tribunal behind the back of the opposite party. For until 20 February 2002 (the last date for lodging the appeal), the police management simply did not know and had no idea that the Applicant would lodge an appeal. There was therefore no question of the Applicant being supplied with documents that might, if there was eventually an appeal lodged, be supplied to the Commissioner by the management in response to the appeal, so that nothing that was said in relation to the Applicant's appeal would be said behind the back of the Applicant.

22. However, on further reflection, this may not be a complete answer to the Applicant's real complaint here. As noted above, reg. 15 obliges the junior police officer to lodge his appeal within 14 days of the notification of the FDO's finding, decision or punishment, and the "appeal in writing ... shall contain such representations as may be relevant to the appeal".

23. I would only focus on M6. M6 contained the FDO's reasons for his decision. It was not disclosed to the Applicant. The reasons must have been important to the Applicant when he sought to set out representations that might be relevant to his appeal in his written notice of appeal to the Commissioner of Police.

24. In those circumstances, it is arguable, for the sake of fairness, that at least M6 ought to have been disclosed to the Applicant at the same time as or immediately after the notification of the FDO's decision. It was relevant to first, whether the Applicant should appeal, and secondly, on what grounds he should formulate his appeal.

25. As it turns out, the first consideration is irrelevant because at the end of the day, the Applicant did decide to appeal. But the second consideration remains.

26. If the matter had stopped there, I would have thought that the Applicant would have a reasonably arguable case for applying for judicial review of the ultimate decision made in the appeal (as opposed to the FDO's decision). This would have been so even if M5 and M6 were never supplied to the Commissioner for his consideration after the lodging of the appeal. For the problem would not be so much the unilateral communication with the decision-maker behind the back of the opposite party (which is the normal situation in this type of judicial review applications), but rather a failure to give reasons for the FDO's decision that was necessary to an aggrieved junior officer to make an informed decision on whether to appeal against the FDO's decision and how to formulate the grounds of his appeal.

27. In this regard I note that reg. 7 reads as follows:

" A defaulter charged under these regulations shall be given copies of or reasonable access to such police records and other documents as he requires and which are necessary to enable him to prepare his defence but not including those records for which the Government claims privilege."

28. On one reading of reg. 7, it does not apply to the appellate process, or the intended appellate process, as it only refers to the preparation of the defaulter's "defence". But in my judgment, the same or similar consideration should arguably apply to a convicted defaulter who is considering whether to appeal and how to go about it.

29. But I need not express a definite view on these interesting if not important matters for two reasons: First, the present application was not argued by the parties on the footing of a failure to give reasons for the FDO's decision. The law on the duty to give reasons is substantial and developing: see de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed.) pp. 457-473 and the First Cumulative Supplement to the Fifth Edition pp. 74-82 for a general discussion on the circumstances where a duty exists and the consequences of breaching the duty; see also the Court of Final Appeal's decision in Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279 and the very recent judgment of Chu J (28 April 2003) in Chan Tit Shau v. Secretary for Justice HCAL 206/2002 paras 30 to 36. I am reluctant to make any pronouncement on this important aspect of the law in the absence of thorough arguments. Secondly, the non-disclosure of M6 (and for that matter, M5) between 6 and 20 February 2002 was overtaken by subsequent events. As I have described above, M5 and M6 were eventually disclosed in July. The question therefore becomes: did the disclosure in July have the effect of remedying the prejudice done to the Applicant by the non-disclosure in February or the non-disclosure from February until July 2002, assuming that there was a duty to give reasons/make disclosure in February in the first place?

30. This conveniently brings me to the so-called new ground relied on by Mr Lo at the hearing. Given the obvious connection between this ground and the original ground, insofar as may be necessary, I give leave to the Applicant to amend the grounds of application for judicial review, and I give leave to the Applicant to file and rely on his second affirmation in these proceedings. (At the hearing, arguments on this "new" ground were heard and the 2nd affirmation was considered on a de bene esse basis.)

31. Mr Lo's argument here is this. The disclosure in July of M5 and M6, or for that matter the disclosure of the staffing note in July 2002, was insufficient disclosure. Mr Lo based his argument on the wording of the two covering memos. In respect of the June memo regarding disclosure of the staffing note, Mr Lo argued that the staffing note was enclosed "for your reference" only. It did not tell the Applicant what he should or could do, and insofar as the memo invited comments, it did not tell the Applicant what he could comment on. Mr Lo said, for instance, the covering memo did not tell the Applicant that he could amend his original grounds of appeal, make use of any favourable material contained in the new material disclosed to him, or rebut whatever points that he would want to rebut in relation to what was said against him in the new material. In the second affirmation of the Applicant, he also deposed that his command of the English language was only ordinary, that he only hired a solicitor to prepare the grounds of appeal on his behalf in February 2002 and by the time he was supplied with the new material in mid-2002, he had no legal representation and he had no means to obtain legal representation, that somehow he felt bound by his original grounds of appeal, and that he felt inhibited in saying anything that might jeopardize his main focus of appeal (i.e. his appeal against conviction).

32. In relation to the second covering memo relating to the disclosure of the defaulter report (comprising, amongst other things, M5 and M6), Mr Lo made the further point that that the memo referred to "the recent judicial review verdict", an apparent reference to the Court of Appeal's decision in Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 (handed down on 28 March 2002) and/or my own decision in Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679 (handed down on 3 July 2002) both concerning PGO 6-01(8) and the non-disclosure of material unilaterally supplied to the Commissioner. Mr Lo argued that the reference had the effect of confusing the Applicant regarding what he could do with the material disclosed. In short, the two memos did not contain "sufficient guidance" to the Applicant, a junior police officer, as to what he could do in response to the newly disclosed material.

33. Mr Lo argued that all this had the effect of prejudicing the Applicant in making "a meaningful presentation in the appeal petition": Leung Fuk Wah at paragraph 30 (p. 661E).

34. A useful statement on the duty of adequate disclosure in the present context may be found in de Smith, Woolf and Jowell, at paras. 9-018 to 9-019:

"If prejudicial allegations are to be made against a person, he must normally, as we have seen, be given particulars of them before the hearing so that he can prepare his answers. In order to protect his interests he must also be enabled to controvert, correct or comment on other evidence or information that may be relevant to the decision; indeed, at least in some circumstances there will be a duty on the decision maker to disclose information favourable to the applicant, as well as information prejudicial to his case. If material is available before the hearing, the right course will usually be to give him advance notification; but it cannot be said that there is a hard and fast rule on this matter, and sometimes natural justice will be held to be satisfied if the material is divulged at the hearing, which may have to be adjourned if he cannot fairly be expected to make his reply without time for consideration. In deciding whether fairness does or does not require an adjournment in order to allow further time to consider such material and to prepare representations, a court of other decision-maker should take into account the importance of the proceedings and the likely adverse consequences on the party seeking the adjournment; the risk that the applicant would be prejudiced; the risk of prejudice to any opponent if the adjournment were granted; the convenience of the Court and the interests of justice in ensuring the efficient despatch of business; and the extent to which the applicant has been responsible for the circumstances leading to the request for an adjournment.

If relevant evidential material is not disclosed at all to a party who is potentially prejudiced by it, there is prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing."

See also the First Cumulative Supplement to the Fifth Edition at p. 71.

35. Having considered carefully the wordings used in the two covering memos, against the background of the present case, including the circumstance that one is concerned with a junior police officer here, and also the legal framework relating to this type of disciplinary proceedings (including the appellate process) in the Regulations, I do not agree with Mr Lo's argument.

36. In my judgment, the two memos were more than clear in their meaning and intent. The captions of the two memos referred clearly to the appeal that had been lodged by the Applicant. The communications were obviously in direct relation to the appeal. The purpose of the two memos was to inform the Applicant that material regarding the appeal had been or would be supplied by the Discipline Section of the police management to the Commissioner who had to decide the Applicant's appeal. A reading of the disclosed material would immediately inform any ordinary reader, not to mention the defaulter himself who was privy to the whole disciplinary proceedings and the facts and issues pertinent to the proceedings, what the makers of the disclosed documents were saying.

37. The suggestion that the memos should tell the Applicant that the disclosed documents contained some matters that were adverse to the Applicant's appeal, some other matters that he might find useful or favourable to his appeal, and so forth, was not only unnecessary but would indeed be unwise. It was for the Applicant, as the appellant, to make out what was said about or against him or his appeal in the disclosed documents and work out its potential or actual implications on his appeal.

38. The memos then invited the Applicant to submit comments, if any, to the Commissioner within a period of 14 days. The first memo actually asked the Applicant for his comments on the views expressed in the disclosed document. The acknowledgement of receipt reinforced the invitation for comment from the Applicant. The second memo started off by referring to the first memo and then made further disclosure. The Applicant's comments, if any, were then sought.

39. The use of the phrases "for your reference" and "for your information" cannot have created any confusion in the mind of the Applicant; clearly he was being invited to submit comments on the views and matters set out in the disclosed documents. The memos further made it clear that the comments, if any, from the Applicant would be "submitted to the Commissioner for consideration together with [the Applicant's] written appeal and the views of the Discipline Section". In those circumstances, there could be no question of the Applicant or indeed any person of ordinary intelligence, failing to appreciate the importance of the comments that he was being invited to make in relation to the appeal. The express and specific invitations to make comment were, in my opinion, sufficient to dispel any possible doubt arising from reg. 15 which does not provide expressly for the amendment of the grounds of appeal or the putting in anything by the appellant after the lodging of his written appeal.

40. In my judgment, what went through the mind of the Applicant subjectively, as was deposed to in the Applicant's second affirmation, which was not accepted by the Commissioner (indeed there was an application for leave to cross-examine the Applicant on his second affirmation if leave was granted to file the second affirmation), is really neither here nor there. Unless the memos can be said to have been misleading in a material way, or unless it can be said that the time limit imposed for the making of comment was not reasonable, neither of which is the case here, I cannot see how the Applicant's case on procedural impropriety can be taken further after the disclosure in June and July, when the decision of the Commissioner was only made in August after the expiry of the two 14-day periods respectively.

41. As to Mr Lo's complaint that the reference to "the recent judicial review verdict" is unclear, in my judgment, read fairly in its context, this reference was made in the second memo to supply the reason for the disclosure of the defaulter report. In both Leung Fuk Wah and Chu Ping Tak, the Court of Appeal and this Court emphasized the importance of disclosure of defaulter reports in compliance with the principle of fairness in this type of disciplinary proceedings, prior to the determination of the appeal. However, in the context of disclosure in the present case, what was important was not the reason why the police management had to disclose the defaulter report; what was important was that the report was indeed disclosed and the Applicant given a reasonable chance to respond to it, before the Commissioner made his decision on the appeal. The fact that the memo did not cite chapter and verse to explain why the disclosure was made and the comment sought is really neither here nor there.

42. As to the Applicant's language ability, this is a non-starter. His appeal was written in English. There was nothing in evidence to alert the police management that the Applicant (or those advising him) might have difficulty in understanding the plain English used in the two memos. Moreover, the first memo contained an accurate Chinese translation, whereas the second memo referred to making arrangement for the explanation of the contents of the memo to the Applicant at the same time that he was given the memo. Certainly, if the Applicant had any genuine difficulty in understanding the contents of the memos, or what he could or could not do in response to the memos or the disclosed documents, he could ask. This is not a case in which the police management refused to answer queries relating to the newly disclosed documents that were reasonably raised by an appealing defaulter. The Applicant admitted that for reasons of his own, he put in no comment.

43. In conclusion, first, the non-disclosure of M6 (a fortiori, M5) between 6 and 20 February 2002, insofar as it may have involved procedural impropriety (a matter which I need not express a definite view on), was sufficiently remedied by their disclosure in July 2002, so as to enable the Applicant to make a meaningful presentation of his appeal; secondly, the disclosure of the staffing note in June 2002, as well as M5 and M6 in July 2002, to the Applicant sufficiently complied with the requirement of fairness in the appellate process in question, and the Applicant has had an adequate opportunity to respond to what was said in the disclosed documents. There was therefore no question of the police management saying anything to the Commissioner behind the back of the appealing Applicant in the appellate process.

44. This being my conclusion, the Applicant failed in the first hurdle of persuading this Court that the decision under challenge was tainted with procedural impropriety or unfairness. In these circumstances, I need not go on to the second stage of the process, namely, a consideration of whether to exercise the Court's discretion to quash the decision of the decision-making body below or grant some other form of appropriate relief, and in particular, a consideration of whether the Applicant suffered any prejudice as a result of the procedural impropriety or unfairness: see Leung Fuk Wah at paragraphs 40-42 (at pp. 663H-664E); Chu Ping Tak at paragraphs 59 and 60 (at p. 698C-J).

45. In the circumstances, I dismiss the application for judicial review. Given my decision, I need make no order on the Commissioner's application to cross-examine the Applicant on his second affirmation.

46. As regards costs, both sides agree that costs should follow the event. I therefore make an order that the costs of these proceedings be paid by the Applicant to the Respondent, such costs to be taxed if not agreed. I also order that the Applicant's own costs be taxed in accordance with the Legal Aid Regulations (Cap. 91).

47. It remains for me to thank counsel for their helpful assistance.