SECRETARY FOR JUSTICE v. LAM TAT MING

HCA 2090/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2090 OF 2012

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REASONS FOR DECISION
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1.  This matter has had a rather tortuous history and even now it is less than straightforward, having I regret to say, been made so. On being seized of the case I asked for an agreed comprehensive chronology of the relevant facts but what emerged was a somewhat deficient document.

2.  It came before me today (31 October 2014) as a trial estimated to last one day.  That estimate may well be a fair one but was the only fair factor emerging today.  I decided to adjourn the trial for reasons which I will set out shortly and from the first perusal of the papers a number of matters caused me concern not the least being that over 17 years have elapsed since the events which initiated this saga.

3.  It started in or about 1993/4 when an ICAC investigation eventually drew in the defendant, a serving Police Inspector, and his co‑defendant in subsequent proceedings, a Police Sergeant.  It centred around their alleged involvement in triad contact and bribes.  They were arrested in 1997 (April or May).

4.  A trial took place in the District Court of both defendants as a result of which both were acquitted following a ruling by the judge that certain evidence was inadmissible.

5.  The prosecution appealed by way of case stated to the Court of Appeal which delivered, in June 1999, its judgment to the effect that the trial judge had used the correct test (though he had misapplied the test to the facts of this case) and had been entitled to exercise his residual discretion to exclude evidence obtained unfairly or which, if admitted, would prevent there being a fair trial.

6.  The Secretary for Justice then appealed by way of case stated to the Court of Final Appeal, which delivered its judgment in June 2000.  It remitted the matter to the District Court for a re‑trial. It made it clear that since it did not have all the facts it could not answer the stated question.  It was therefore for the trial judge to consider all the facts when deciding on the exercise of his residual discretion.

7.  The re‑trial took place before the same judge.  The result was the same.  The judge exercised his residual discretion having considered the approach of the Court of Final Appeal.  The two defendants were accordingly again acquitted. 

8.  Twenty‑two months later in early December 2002 the Police Force charged the defendant with 58 disciplinary offences principally of associating with a triad personality other than in the course of duty.  He denied them and over the next few years the proceedings made no progress, being adjourned I am informed largely as a result of the defendant’s requests.  Why these proceedings were allowed to drag on for so long without finality being imposed is not clear.  It should not have happened.

9.  On 26 November 2007 the Commissioner of Police recommended to the Secretary for the Civil Service that he/she consider refusing the defendant a pension, applying section 27(2) of the Pension Benefits Ordinance, without there having been a decision in respect of the disciplinary proceedings.

10.  Section 27(2)(b) of the Pension Benefits Order provides that a pension may be cancelled or reduced if it be shown that:

(i) the officer retired during any disciplinary proceedings brought against him by the government…… [the next clause is not applicable]; and

(ii) had such proceedings been completed or taken place they would in the opinion of the Public Service Commission have led to the dismissal of the officer from the service or compulsory retirement in the exercise of disciplinary powers of punishment….. with a reduction of the pension benefits granted to him.

11.  As I understand the provisions, retirement does not automatically bring disciplinary proceedings to an end.  Since the question of pension benefits was at large it may have been open to the Commissioner of Police to pursue a hearing and not let it lapse.  However I do not need to decide that. 

12.  The defendant retired having reached the prescribed age of 55 years on the 14 January 2008.  Three months later he was informed that the Secretary for the Civil Service was considering exercising its power to refuse to grant him a pension and he was invited to make representations which he did within the month.  That, I am informed, was a mere paper exercise.

13.  Three weeks later (2 June 2008) he was informed of the refusal to grant a pension.  Three weeks after that he petitioned the Chief Executive against that decision (23 June 2008).

14.  Not until 4 August 2009, well over a year later, was he informed in writing of the Chief Executive’s decision to uphold the Secretary’s decision. Earlier delay by the authorities was now being compounded.

15.  He then applied for judicial review (November 2009) and the High Court (Reyes, J) allowed his application on the 1 November 2010, quashing the decisions of the Secretary for the Civil Service and the Chief Executive as, inter alia, unreasonable on the Wednesbury principle.  In the same month the Secretary for Justice, on behalf of the Secretary and Chief Executive, filed Notice of Appeal.

16.  In the meantime (on 12 April 2011 the Secretary for Justice) applied to Reyes, J for a suspension of the Declaration and stay of execution of the quashing order.  They failed. They did not, I understand apply to the Court of Appeal for a stay or for an expedited hearing.

17.  The next step was that a decision was made to pay the pension gratuity and the monthly pension up to December 2011 pending the hearing before the Court of Appeal.

18.  On the 22 December 2011 the Court of Appeal handed down its judgment setting aside the declaration of Reyes, J in respect of the decision of the Secretary for the Civil Service but upheld his decision and declaration in respect of the Chief Executive as Wednesbury unreasonable.  The wording of the decision on this is as follows:

“….. the Chief Executive ought to have referred the matter to a panel, who should (as one would expect) conduct such an oral hearing. I respectfully agree… that a resolution of the matter without a proper hearing would be Wednesbury unreasonable.

I …therefore quash the decision of the Chief Executive and remit the petition to him for further consideration.  [He] should consider requiring the Panel to advise him on the petition.  In which event the Panel should hold an oral hearing where oral evidence with cross‑examination could take place.”

19.  During the course of that judgment the court in certain ‘obiter dicta’ expressed its view about how a fair‑minded observer would not view the context in which certain hearings and decisions took place, as potentially less than independent or objective.  Without in any way challenging the authority of that court or the validity of its judgment, broad experience and the natural reservations of observers might well take issue with the views expressed concerning independence of government extra‑judicial procedures.

20.  The Secretary for Justice has not appealed against that court’s decision.  More particularly it did not ask that court to order the return of the payments that it had made to the defendant on the strength of the first part of the judgment of Reyes, J which the Court of Appeal had overturned.  As far as I am aware the court was not acquainted with the fact of the payments just as it had not been asked to stay the consequences of the declarations of Reyes, J. There is no mention of the fact of payments in the judgment.

21.  The reaction of the Secretary of Justice was to send a series of demand letters requesting repayment of the sums which the government had, of its own volition, paid following the decision of Reyes, J.  It then issued a Writ against the defendant despite the fact that no steps had been taken by the government to give effect to the Court of Appeal’s decision.

22.  Not until 6 December 2012, one year after the Court of Appeal’s decision, was a panel directed to conduct an oral hearing with cross‑examination of witnesses and report to the Chief Executive on the defendant’s petition.

23.  Six months after that (31 May 2013) the Secretary for the Civil Service sent in its pre‑hearing submissions.  In November 2013 the defendant indicated that he had no pre‑hearing submissions.  Eventually the oral hearing was fixed for early July 2014.  I am told that it has now submitted to the Chief Executive its report on or about 26 August 2014.  On 22 October 2014, one week before the date of the Secretary of Justice’s action to recover the payments made was due to be tried before me, the defendant was invited to submit, before 6 November 2014, his written comments on the Panel’s report.

24.  Against this background the Secretary for Justice had proceeded with its action, which may well be a complete waste of time and money, when the action on the part of the institutions of the government to comply with the Court of Appeal’s decision was taking a leisurely course.

25.  The possible outcomes, and I stress possible, are several.  Even if the Chief Executive were to find against the defendant that may not be the end of the matter.  His decision and/or the Panel’s report may be subject to future scrutiny and challenge in the courts.  This case was set down for trial in June 2014 and given a fixed date when the Secretary for Justice well knew that when it took that action, the Panel hearing had not taken place.  In my judgment that was entirely premature and a misuse of the court’s process.

26.  Mr Abraham Chan has, with consummate skill, sought to persuade me to hear the action and give judgment.  But how can a court proceed to take such a course on the basis of a pending consideration and decision which may well render my decision nugatory?  I decline to allow this court to be used to that dubious effect.

27.  Mr Chan may be optimistic as to the Chief Executive’s decision but, as he has had to concede, that is no proper basis for his contention.  Again, in fairness to Mr Chan, he has conceded as a matter of proper approach that the ultimate result may well be against the Secretary for Justice.  Even a decision in favour of the Secretary for Justice may have to be reversed by future events.  It would be pointless and irresponsible to allow the litigation process to be used to achieve such an outcome.

28.  He initially based his argument on the fact that the Court of Appeal had reversed the decision of Reyes, J. against the Secretary for the Civil Service, and had thus allowed its decision to stand, and that therefore the payments should be returned.  But that is to ignore the other finding, that the Chief Executive’s decision should be subject to proper inquiry and decision, as to entitlement to the payments already made.  This fell away and the ultimate stance proved to be a fear on the part of the Secretary for Justice that there was a risk that the funds paid to the defendant would be dissipated in his hands, and that if and when they obtained a judgment against him, it would be an empty one.  That is of course no justification for pursuing to judgment (a contingency judgment) proceedings designed to pre‑empt a decision which this Court of Appeal has ordered must be effected properly.

29.  It may be, though at present I make no specific finding in this regard, that the Secretary for Justice considers that it was an error on its part, or on the part of the Secretary for the Civil Service acting on its advice, in making the payments when it did, and in failing to seek a stay from the Court of Appeal in advance of its deliberations, or in failing to acquaint the Court of Appeal with the position and arguing that the court should impose some form of protective order.  That might, in any event have proved unsuccessful.  The Secretary for Justice has been effectively the cause of its own difficulties.

30.  In all those circumstances this action has to be adjourned until the Chief Executive’s final position is known and any consequent developments have been dealt with.  One is always reluctant to adjourn a case which on the face of it is ready for trial, but for all the reasons and background I have set out, this was the only realistic course.

31.  As far as costs of today’s hearing ¾ those thrown away ‑ the defendant’s counsel, Mr Collins has generously conceded costs in the cause.  Because of that concession, I will not interfere with it.  In passing, I note that the plaintiff’s written submissions stated that if it obtained judgment it would seek costs against the defendant on an indemnity basis.  That of course has not materialised but in the meantime it would do well to think again on that score.

32.  The case will be provisionally listed for mention before me at 10 am on 5 December 2014.