CHAN KUNG SHUN AND OTHERS v. COMMISSIONER OF POLICE

CACV 644/2020 & CACV 645 /2020, [2024] HKCA 75

On appeal from [2020] HKCFI 2882

CACV 644/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 644 OF 2020

(ON APPEAL FROM HCAL NO 2703 OF 2019)

________________________

________________________

AND

CACV 645/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 645 OF 2020

(ON APPEAL FROM HCAL NO 2915 OF 2019)

________________________

________________________

________________________

DECISION

________________________

The Court:

A.  Introduction

1.  This decision arises from the judgment we handed down on 16 September 2022 (“Judgment”).[1]

2.  By the Judgment, we gave leave to the respondents to adduce the Implementation Evidence on appeal in CACVs 644-646/2020[2] concerning the implementation of the police insignia policies in Operation TIDERIDER in 2019 and 2020 (“the Insignia Policies”). We further gave leave to the applicants to file evidence in response to the Implementation Evidence, which they did by way of the affirmation of Chan Kung Shun in CACV 644/2020 and the affirmation of Cheng Kar Yue in CACV 645/2020. The respondents apply to expunge paragraphs 24 and 25 of Chan’s Affirmation and exhibits CKS-2 to CKS-4 (“Chan’s Evidence”); and paragraphs 10, 11, 16 to 18 of Cheng’s Affirmation and Annexes 1 and 3, and exhibits CKY-1(a) to (e), CKY-2(a) to (f) (“Cheng’s Evidence”) (collectively “the Impugned Evidence”) on the principal ground that they are new evidence in disguise of reply evidence. Having read the papers and counsel’s submissions, we consider it appropriate to determine the applications on paper without an oral hearing.

B.  The Implementation Evidence and the Impugned Evidence

3.  To recap, the applicants took issue before the Judge with the proper implementation of the Insignia Policies and raised as examples instances of non-compliance in their reply evidence. The respondents did not adduce any contradictory evidence since they took the view that such instances were irrelevant because the applicants were mounting a systemic challenge against the Insignia Policies but the instances relied on only concerned implementation, which were in any event isolated instances, and thus could not form a proper basis for the systemic challenge. Contrary to the respondents’ contemplation, the judge took into account the instances raised by the applicants. He held that the Insignia Policies failed to meet the standard required under the procedural limb of Article 3 of the Hong Kong Bill of Rights in the absence of evidence to show that measures had been put in place to ensure compliance by police officers, and to take action against non-compliant officers.

4.  The Implementation Evidence seeks to show that there were in fact measures adopted to ensure effective implementation of the Insignia Policies (in respect of both the Call-Sign system for anti-riot officers, and the Alpha ID system for officers in the special tactical contingent). Moreover, the Implementation Evidence addresses the specific instances relied on by the applicants:

(1)  In respect of the Call-Sign system, by (a) accepting one instance of non-compliance but explaining that it occurred at an early stage of implementation and was identified and rectified immediately; (b) accepting another instance was not identified previously but characterizing it as an isolated occasion; (c) refuting other instances raised as not in truth instances of non-compliance.[3]

(2)  In relation to the Alpha ID system, the instances raised are refuted, or characterized as having no bearing on the effectiveness of the Alpha ID system.[4]

5.  In Chan’s Evidence, he disagreed that instances of non-compliance were isolated. At paragraph 24, he set out 3 items of media reports concerning incidents of non-compliance with the Call-Sign system, exhibited as CKS-2 to CKS-4. At paragraph 25, he deposed that exhibits CKS-2 to CKS-4 were only some of the examples reported by the media, and that there were many more examples of non-compliance.

6.  In Cheng’s Evidence, she deposed that non-compliance with the Insignia Policies occurred with regularity. At paragraph 10, having deposed to reviewing media footage of public order events and finding many incidents of non-compliance with the Call-Sign system, she set out 5 video and photograph items showing such incidents, exhibited as CKY-1(a) to CKY-1(e). As stated at paragraph 11, screenshots of these items were shown in Annex 1. At paragraph 16, having deposed to finding many incidents of non-compliance with the Alpha ID system, she set out 6 video items showing such incidents, exhibited as CKY-2(a) to CKY-2(f). As stated at paragraph 17, screenshots of these items were shown in Annex 3. At paragraph 18, she deposed that the exhibited items could be found quickly and easily, illustrating the regularity of non-compliance, of which they represented only the tip of the iceberg.

C.  Parties’ submissions

7.  The respondents take issue with the incidents of alleged non-compliance set out above in the Impugned Evidence, emphasising that they are additional incidents not placed before the court below.[5] Mr Benjamin Yu SC[6] for the respondents argues that:

(1)  Leave was given for the respondents to file the Implementation Evidence on the basis that it was to deal with implementation measures and to address instances raised by the applicants before the Judge. Therefore, evidence in response should also be confined to these matters. In adducing additional incidents, the Impugned Evidence makes new allegations without leave, impermissibly expanding on the applicants’ original case (Sze Ching Lok v China Resources Power Holdings Co Ltd, HCMP 1655/2013, 31 December 2013 at [29]).

(2)  Although the proper implementation of the Insignia Policies was in issue before the judge, this does not constitute a license to ambush the respondents with new allegations, or to require them to undertake a roving inquiry. If the applicants were to rely on the additional incidents, they should have adduced the Impugned Evidence at first instance.

(3)  The Impugned Evidence alleges for the first time that non-compliance occurred with regularity, but only giving some examples. This is vague and unfair. It is particularly unfair and prejudicial to give additional examples after the respondents have refuted or explained earlier ones. Reference was made to Litton PJ’s remarks in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 340F-G in relation to pleading amendments which have the effect of making administrators to leap through more and more hoops of fire. By analogy, administrators also should not be made to do so in terms of evidence.

(4)  Instances of non-compliance have to be seen against the scale of deployment, for which the new evidence indicates a range between 45,243 to 94,350 man-times in the months between November 2019 to March 2020 for anti-riot officers, and 227 to 3,781 man-times for the special tactical contingent officers in the same period.

(5)  It is not in the interest of justice to allow the Impugned Evidence, as it would revive the very unfairness and prejudice which prompted the new evidence in the first place, namely the respondents would not have the opportunity to address it by evidence. This unfairness cannot be cured by a further opportunity to respond, as it would not preclude the applicants from arguing that there were yet other incidents. It is likely that such drip-feeding process would perpetuate endlessly, since the applicants have not undertaken to refrain from seeking to rely on yet further incidents. On the contrary, they have stated that even the additional incidents in the Impugned Evidence were only samples reflecting the tip of the iceberg.

(6)  Except for CKS-4 and CKY-1(e), all the additional incidents pre-dated the first instance hearing, the conditions in Ladd v Marshall [1954] 1 WLR 1489 are not satisfied, and there is no public interest reason justifying their admission.

8.  Opposing the applications,[7] Mr Hectar Pun SC[8] and Mr Philip Dykes SC[9], respectively for the applicants in CACV 644 and 645/2020, advance similar arguments which can be summarised as follows:

(1)  The Impugned Evidence is properly adduced in response to the respondents’ assertion, by the new evidence for the first time, that instances of non-compliance were isolated. The respondents cannot fairly complain when their assertion is answered by evidence showing that such incidents were in fact widespread. It is fair to let the applicants demonstrate, for the first time, that non-compliance was not isolated nor a series of mere aberrations by showing that there were numerous incidents of non-compliance.

(2)  The Impugned Evidence does not go beyond the scope of the applicants’ original case, as the allegation that police officers had systematically failed to comply with the Insignia Policies was raised at first instance.

(3)  The respondents elected not to adduce the Implementation Evidence until the appeal, they cannot be heard to complain when the response to it is also produced on appeal. The respondents should not be able to gain a tactical advantage and benefit from their own wrong. If the respondents had adduced the Implementation Evidence at first instance, the applicants would have been entitled to adduce the Impugned Evidence.

(4)  In the light of the strong public interest in properly resolving the dispute, this Court needs to have a complete picture, and relevant evidence should not be shut out. To allow the assertion that non-compliance was isolated, without permitting the applicants to challenge the factual basis of the assertions, is unfair and would lead to the case proceeding on a demonstrably false factual basis.

(5)  The contention that the individual instances should be seen in the context of the scale of deployment only goes to weight and is not a sufficient basis to expunge. As for the contention that a systemic challenge cannot be based on individual instances, it is an issue to be ultimately decided in the appeal proper.

(6)  As the respondents’ stance is that implementation of the policies was pro-actively monitored, it is the respondents who have been adopting a drip-feeding approach in only explaining instances of non-compliance when they were raised, instead of being forthcoming with such instances.

(7)  Ladd v Marshall is not applicable as the Impugned Evidence is adduced in response to the new evidence which was admitted on appeal in an exceptional exercise of the discretion in the public interest.

(8)  Sze Ching Lok is of no application, as it was a case involving a dispute between a publicly listed company and its shareholders, whereas in the present appeals the new evidence was admitted in the public interest. As for Litton PJ’s remarks in Lau Kong Yung v Director of Immigration that administrators should not be made to leap through more and more hoops of fire, the gravamen of the applicants’ complaints has always been consistent.

(9)  No prejudice is caused to the respondents. Since it is their case that there were proper measures to implement the policies, they are obliged to be forthcoming in identifying instances of non-compliance and to explain them; but as they have already had the opportunity to do so with the new evidence, they should not be given a further bite of the cherry. Unless it could be shown that the media reports in the Impugned Evidence are fabricated, the respondents are unlikely to be able to negate the additional incidents of non-compliance.

9.  Mr Dykes also pointed out that the applications to expunge were not made in March 2023 until about 5 months after the Impugned Evidence was filed. This was after a previous delay of 7 months by the respondents in applying to adduce the Implementation Evidence after the filing of the notices of appeal. However, as we understand his submissions, Mr Dykes is not arguing that the applications should be refused on delay alone. We would therefore proceed to deal with the applications on their merits.

D.  Our views

10.  When we dealt with the respondents’ applications to file the Implementation Evidence, we had in mind the state of evidence then before the Judge. As said, the applicants in their reply evidence alluded to many incidents of non-compliance of the Insignia Policies by front-line police officers and detailed those set out therein as examples in support of their case that the non-compliance was widespread. It was however not their case that the non-compliance was regular, which connotes large scale non-compliance of a constant or definite pattern, in terms of timing, occurrence, occasion and manner of non-compliance, as now alleged in Cheng’s Evidence. Thus viewed, this is a new allegation which goes beyond the scope of the applicants’ original case below.

11.  Chan’s Evidence seeks to refute the respondents’ case that incidents of non-compliance were isolated which, they say, is only raised by way of the Implementation Evidence. We have read the affirmations filed below again. It would appear that in the affirmations filed by the respondents, there was no specific or express characterization of the incidents of non-compliance as “isolated” as such. Without characterising any divergence from the Insignia Policies as isolated, they only refer to situations where insignia may sometimes be displaced or partially covered as a result of vigorous movements: see para.16 of the first affirmation of Chief Inspector Lee Yuet Lun Kenneth filed in HCAL 2703/2019 and para.22 of his affirmation filed in HCAL 2915/2019. The term "isolated" was used to describe normal policing situations where chaotic events are isolated and small in scale, where it would be easy to identify individual officers: para.64 of Chief Inspector Lee’s first affirmation filed in HCAL 2703/2019 and para.71 of his third affirmation filed in HCAL 2915/2019. It has not been used to refer to non-compliance. It would also appear that the characterization of non-compliance as isolated first occurred in the respondents’ combined submissions before the Judge, as cited in the Judgment at [32]. This was made in the context of an argument that the applicants cannot make out a systemic complaint by relying on identifiable or isolated instances. Moreover, at [99] of his judgment, the Judge referred to the alleged non-compliance rather neutrally as individual instances without characterizing them as “isolated”.

12.  In the circumstances, there is some merit in the applicants’ complaint that incidents of non-compliance were isolated is only raised for the first time by way of evidence in the Implementation Evidence. The applicants are entitled to refute that by way of Chan’s Evidence. In fairness to the respondents, they should have the last word on the matter by filing evidence in reply to Chan’s Evidence. Further, to give finality to the evidence, and to avoid the problems identified by Mr Yu in this regard, the applicants should not be allowed to file evidence in response to the respondents’ reply evidence.

E.  Dispositions

13.  In conclusion, we allow the respondents’ applications to the extent that Cheng’s Evidence be ordered to be expunged. We further give leave to the respondents to file evidence in reply to Chan’s Evidence within 28 days from the date of handing down of this Decision.

14.  On costs, bearing in mind the outcome of the applications and what was stated at [72] and [73] of the Judgment, we make an order nisi that costs be reserved.