RE IP KAM WING

HEADNOTE

    Judicial review of decision by disciplinary tribunal constituted under Part II Police (Discipline) Regulations - whether tribunal required to state reasons for findings of guilt - whether principle stated in Lam Tin-chum [1970] HKLR 105 at 106-7 that the public interest required a tribunal to be seen to have evaluated the evidence is applicable to proceedings under Part II of the Police (Discipline) Regulations - whether the Turnbull [1976]63 CAR 132 guide-lines are relevant to the issue of identification in such proceedings - application for judicial review dismissed.

IN THE HIGH COURT

Miscellaneous Proceedings
No. 768 of 1991

IN THE HIGH COURT

Miscellaneous Proceedings
No. 768 of 1991

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

J U D G M E N T

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

1. The applicant for judicial review, IP Kam-wing, is a Sergeant in the Royal Hong Kong Police Force. These proceedings go back to March 1991 when the application for leave to apply for judicial review was first made. At that time the applicant was 38 years old, married, residing with his wife and two daughters aged 10 and 5 in Police Married Quarters at Cheung Sha Wan, Kowloon. The applicant joined the police force in 1974 at the age of 21 as a Constable. He was promoted to his present rank of Sergeant in 1983. The applicant's father was also a police officer arid retired from the police force in 1982 after over 30 years of service. On 22 March 1989 he was interdicted from duty, but was not informed of disciplinary charges against him until September 1990. It is in relation to the decision of the adjudicating officer made in the disciplinary proceedings on 13 December 1990 that this application for judicial review is brought.

Police (Discipline) Regulations

2. Part II of the Police (Discipline) Regulations makes provisions for investigations into disciplinary   offences alleged against junior police officers. A Sergeant comes within this category.

3. Regulation 5(1) says that when it appears to any police officer of or above the rank of Sergeant that a disciplinary charge should be laid against a junior police officer subordinate to him in rank, the appropriate charge may be entered in a document entitled Defaulter Report which shall be the record of the case against him and he shall be informed of the charge as soon as practicable.

4. Under Part II of the Police (Discipline) Regulations the tribunal to hear the charge brought against the junior officer is a superintendent. Under Regulation 8 the "defaulter" is required to appear before the tribunal and when the charge has been read over to him he is required to plead guilty or not guilty to each charge. Regulation 9 then makes provisions for the hearing where the defaulter has pleaded not guilty to the charge. The procedure is similar to that in a criminal court : the "prosecution" calls witnesses in support of the charge, and provisions are made for cross-examination and re-examination of prosecution witnesses. When the examination of all the prosecution witnesses has been completed, Regulation 9(3) requires the adjudicating officer to ask the "defaulter" whether he wishes to (a) give evidence and (b) call witnesses. Regulation 9(9) requires the adjudicating officer to keep a record of the evidence heard. In terms of procedure, apart from the obvious fact that disciplinary proceedings under Part II are conducted behind closed doors, the only significant difference between such proceedings and criminal trials in a court of law are :

(i)    Regulation 9(10) which says that "evidence shall not to be taken on oath or affirmation"

5. But, a point of distinction should be emphasized the tribunal under Part II is a domestic tribunal consisting of a police officer, who would be expected to bring to his task his own experience and knowledge as a police officer; and the offences against discipline which he is to "try" are very wide and general, including under Reg.3(2)(c) "conduct to the prejudice of good order and discipline" and (as in this case) "contravention of police regulations" Reg.3(2)(e). A layman, or a professional judge, may not find it easy to form a view as to whether there has indeed been contravention in any particular case. Hence, it would, generally speaking, be an extreme case where the bona fide exercise of judgment by a tribunal can be attacked on judicial review.

Disciplinary Proceedings

6. On 14th September 1990 the applicant first appeared before the tribunal, when he was required to plead to three charges. Only two charges are now of relevance, charges J and K, to which the applicant pleaded not guilty.

7. Charge J (as amended during the hearing) is as follows:

    "Contravention of Police Orders

8. Contrary to Regulation 3(2)(e) of the Police (Discipline) Regulations Cap. 232.

9. Particulars

Sergeant 16478 IP Kam-wing of the Royal Hong Kong Police Force, you are charged that on several occasions in October 1987 you visited Hoi To Guest House situated at 33-35 Carnarvon Road, 5/F, Flat 6, Tsimshatsui, Hong Kong. A place of poor or doubtful reputation other than in the course of duty, contrary to PGO 6-02 para. 2."

"PGO" stands for Police General Orders. PGO 6-02 para. 2 says:

"2. Other than in the course of duty, a police officer shall not associate with known criminals or triad personalities. Officers are also advised that they should not associate with persons of doubtful or undesirable reputation. Other than in the course of duty, a police officer shall not visit places of poor or doubtful reputation.

Charge K is as follows:

    "Contravention of Police Orders

10. Contrary to Regulation 3(2)(e) of the Police (Discipline) Regulations Cap. 232.

11. Particulars

Sergeant 16478 IP Kam-wing of the Royal Hong Kong Police Force, you are charged that in October 1987, at Tsimshatsui in Hong Kong, you did carry out an investigation at the request of LAI Wai-kwong, a private individual, without the prior sanction of a Gazetted Officer, contrary to PGO 6-02 para. 17."

PGO 6-02 para. 17 says:

"17. A Police officer shall not carry out investigations at the request of another department or a private individual without the prior sanction of a GO."

12. The applicant was charged together with two other police officers in relation to charges "J" and "K". The applicant was "D2" in the proceedings.

13. The evidence adduced by the prosecution in support of charges J and K consisted of the following:

(i)     A "DIS Index card" relating to the guest house at No. 33-35 Carnarvon Road, 5/F Flat 6 covering the period 16th April 1985 to 22nd November 1987;

(ii)     the testimony of two prosecution witnesses Leung Lai-ka (PWl) and Lau Kin-chung (PW2) who, during the month of October 1987, had each invested $5000 in the business of the Hoi To Guest House.

At the conclusion of the prosecution case, the applicant's representative made a submission of "no case to answer" on the two charges.

14. As to charge J, the submission was to this effect:

(i)     The DIS Index card disclosed that from about February 1986 onwards, all "vice activities" had ceased on the premises.

(ii)     The applicant was only transferred to the Tsimshatsui Division in September 1986; since the DIS index card was not generally published, only the DIS staff and no one else would have known that the premises had a "poor or doubtful reputation"; in any case the DIS index card did not show that the premises had such a reputation at the relevant time.

(iii)     There was no evidence before the tribunal capable of establishing that the applicant knew that "vice activities" went on in the apartment house at the relevant time.

15. It was also submitted that, even accepting the testimony of PW1 and PW2, there was not sufficient evidence to establish that the applicant had visited the guest-house on "several" occasions as alleged in charge J, since the two prosecution witnesses were extremely vague as to the number of visits.

16. As to charge K, the submission of "no case to answer" was to this effect:

(i)     upon the evidence of PW1 and PW2, what the applicant had done was not capable of being categorized as an "investigation";

(ii)     in any case, the applicant had not been sufficiently identified as the person called "Fei Chai" who turned up at the guest-house at the request of Lai Wai-kwong

17. In rejecting the submission of "no case", the adjudicating officer said :

"..... it is clearly illustrated in the PWs' account that D2 did turn up and he did go out with PW1 and others. I find that D2 has the responsibility to explain his appearances at the guest house and furthermore his action on the night in question in October 1987 at the guest house and subsequently afterwards. I rule that for 'J' and 'K' charges, D2 has a case to answer."

18. The applicant then elected to give evidence and, in effect, totally denied the allegations: he had never been to the guest house, knew no one by the name of Lai Wai-kwong and had been misidentified as the person known as "Fei Chai".

19. The hearing concluded on 12th December 1990 and the adjudicating officer gave his decision the next day. He said that the prosecution had proved the Hoi To Guest House was a place of poor or doubtful reputation, that the two prosecution witnesses gave evidence in a straight-forward and truthful manner and found the applicant guilty of both charges.

Application for Judicial Review

20. Mr. Whitehouse, counsel for the applicant, puts forward the following grounds for saying that an order of certiorai should be issued to remove the decision of the adjudicating officer into the High Court for the purpose of it being quashed:

21. In respect of charges J and K

(i)     The manner in which the two prosecution witnesses identified the applicant, in the course of the hearing, was grossly unfair to the applicant.

(ii)     The purported identification was so flawed that if the adjudicating officer had properly directed himself as to the law, he would not have accepted the identification as having been established beyond reasonable doubt.

(iii)    The adjudicating officer misdirected himself on the onus of proof, and failed to appreciate that the burden was upon the prosecution to prove the guilt of the applicant beyond reasonable doubt; there was no onus upon the applicant to prove anything. Mr. Whitehouse relied upon the passage in the adjudicating officer's ruling in rejecting the submission of no case to answer when he said:

"I find that D2 has the responsibility to explain his appearance at the guest house and furthermore his action on the night in question in October 1987 at the guest house and subsequently afterwards."

22. As for charge J

23. The ground for the application was that:

    (i)      There was no evidence before the adjudicating officer upon which he could find that the premises were of poor or doubtful reputation at the material time; and

    (ii)      there was no evidence before the adjudicating officer upon which he could find that the applicant knew that the guest house was of poor or doubtful reputation.

24. As for charge K

25. The complaint, in essence, is that the evidence before the adjudicating officer did not point to the conclusion that the applicant had carried out any "investigation" at the request of Lai Wai-kwong, in the ordinary and natural meaning of that word, the adjudicating officer accordingly erred in finding the applicant guilty of charge K.

The Tribunal's Findings

26. The adjudicating officer, in his "judgment", did not set out his evaluation of the testimony given by the two prosecution witnesses. In this-regard Mr. Whitehouse relies upon a passage in the judgment of Mills-Owens J. in Lam Tin-chung (1970) HKLR 105 at 106-7 where he said:

"Obviously, a tribunal must evaluate the evidence before it and in the case of oral testimony must weigh it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such an evaluation has in fact been made; the public interest, not only the interest of the parties, requires no less....."

27. There, however, the Full Court was dealing with an appeal from a conviction by a District Court where, under section 80 of the District Court Ordinance, the judge is required to "place on record a short statement of the reasons for verdict".

28. It must be remembered that we are not here dealing with the administration of the criminal law, applicable to every citizen, in a public court of law. We are concerned with proceedings before a domestic tribunal dealing with breaches of internal police discipline. All that is required of the tribunal under Part II of the Police (Discipline) Regulations, at the conclusion of the hearing, is to "announce its findings on the charges" or "reserve its finding" : see Regulation 11(1). Nothing in the Regulations requires the adjudicating officer to give "judgment" in the sense of that word used in a court of law : that is, a statement of his evaluation of the evidence, findings of fact made after such evaluation and, perhaps, a statement of the principles of law to be applied. Nor is the tribunal required to give "Reasons for Verdict".

29. The statutory scheme under Part II does not provide for any right of appeal to the court, though there is procedure for review by the tribunal - Regulation 12; variation of the findings bv a senior officer - Regulation 14(1); further variation by the Force Discipline Officer - Regulation 14(5); and, finally, appeal by way of petition to the Commissioner - Regulation 15. If the statutory procedure were otherwise, and Part II provided for appeals to a court of law, then it might be said that by implication a duty to give reasons has been imported into the statutory scheme : see, generally, De Smith's Judicial Review of Administrative Action, 4th Ed., P. 148: "There is no general rule of English law that reasons must be given for administrative (or indeed judicial) decisions....".

30. It is worth bearing in mind the words of Lord Reid in Wiseman v. Borneman [1971] AC 297 at 308, cited in LO Wing-tong [1990]1 HKLR 325 at 328:

"Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances...... For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation." In my judgment fairness does not require the court to "supplement" the provisions of Regulation 11(1) and construe the statutory requirement as if, interstitially, the duty of stating reasons for its findings were imposed upon the tribunal. The principle stated by Mills-Owens J in Lam Tin-chung (above) has no application to defaulter proceedings under Part II of the Police (Discipline) Regulations.

Identification by Prosecution Witnesses

31. The evidence given by PW1 Leung Lai Ka was to this effect:

(i)     During the month of October 1987 he (PW1) had a $5,000 investment in the Hoi To Guest House. The principal partner was Lai Wai-kwong. Another partner with an investment of $5,000 was Lau Kin-chung (PW2). There were two other partners.

(ii)     He (PW1) used to go up to the guest house to tidy the rooms and perform other tasks, including telephoning for girls to go to the guest house to render sexual services.

(iii)     Customers who went to the guest house for sexual services paid the staff there, the charges depending upon the nationality of the girls provided. These were divided into three categories.: (a) Thai, (b) Singaporean, (c) Philippinas.

(iv)     Besides customers going to the guest house for sexual services, Lai Wai-kwong also brought along persons whom he (Lai) referred to as policemen. These policemen were to be charged less for sexual services.

(v)     Among the "policemen" who frequented the guest house, there were three who went there to play mahjong or to listen to horse racing. PW1 knew them by the names of (i) Fei Chai, (ii) Ko Lo Lun and (iii) Jimmy. Of those three, PWl was only able to recognise Fei Chai. When the prosecutor asked him the question :"Where is Fei Chai in this room?" he identified the applicant.

(vi)     He had seen the applicant going up to the guest house two or three times, listening to horse racing and playing mahjong, prior to an incident in mid-October 1987, when a group of men went up to the guest house to cause trouble. Lai Wai-kwong had an argument with them and was hit in the face.

(vii)     Lai then made a telephone call and, later, the applicant went up to the guest house. The applicant spoke to Lai and then asked the persons present (including PW1) whether they could identify the men. PW1 and two others who were there said they could do so. Accordingly they went with the applicant in his car and drove around the Tsimshatsui area looking for those men. Eventually they were found and the applicant got out of the car, took one of them into a side lane and had a conversation. The applicant then got back into the car and drove back to the guest house.

(viii)     After the incident PW1 met the applicant at the guest-house further on one or two occasions.

32. Lau Kin-chung, PW2, had also invested $5,000 in the guest house and went up there occasionally to help out. His testimony was similar to that of PW1. He was present in the guest house when the group of men went up to cause trouble and Lai Wai-kwong was hit. He heard Lai speaking over the phone to Fei Chai. After about half an hour, Fei Chai appeared at the guest house, had a conversation with Lai and then left with PW1 and two others to try to look for the group. PW2 testified to the effect that prior to the incident he had seen Fei Chai at the guest house once or twice, talking to Lai Wai-kwong. When asked to identify Fei Chai at the hearing, he pointed to the applicant as Fei Chai. In the course of cross-examination he asserted that although the incident had happened three years before, he did not misidentify Fei Chai, since he recognised his built and appearance. When pressed further, he said that his recognition of Fei Chai was not 100 per cent but about 90 per cent.

33. At the hearing Lai was not called as a witness. I have, in my recital of the evidence above, omitted allegations by PW2 to the effect that Lai had told him that Fei Chai was a "bouncer" and that the guest house was "looked after" by Fei Chai i.e. the applicant. Having regard to the nature of the proceedings and the high degree of proof required of the "prosecution", prejudicial statements of that kind were of very little evidential weight. The question is : Putting aside these prejudicial statements, was there enough material before the tribunal to support a finding of guilt?

34. In his "judgment" the adjudicating officer found that the prosecution witnesses "gave evidence in a straight forward and truthful manner".

35. The first question for determination by the tribunal, obviously, was whether, in the absence of any identification in an identity parade, the "court-room" identification of the applicant by the two witnesses as Fei Chai was sufficient for the purposes of those proceedings. Mr. Whitehouse submitted that, on this issue, the adjudicating officer was duty bound to remind himself of the dangers of misidentification, in a manner similar to that referred to in the well-known case of R. v. Turnbull (1976) 63 CAR 132. In my judgment, this argument is misconceived. Whilst, no doubt, the standard of proof in disciplinary proceedings conducted under the Police (Discipline) Regulations is high; having regard to the consequences that might befall the defaulter if he is found guilty, the proceedings are not proceedings in a criminal court of law see Attorney General v. Tsui Kwok-leung (1991)1 HKLR 40. The adjudicating officer is not bound to direct himself as if he were the jury in a criminal trial - though he must obviously approach his task of evaluating the evidence with a critical mind, alert to the real possibitlity of mistaken identification, or deliberate misidentification.

36. The question I ask myself is this : Upon the evidence before the tribunal, as summarised above, was there sufficient evidence to satisfy the adjudicating officer that the applicant was indeed the person referred to as Fei Chai in the testimony of the two prosecution witnesses? The answer to my mind is undoubtedly Yes. The "court room" identification was criticised by counsel. However, it must be borne in mind that this was not a case where there was a lone defendant, or three defendants, sitting within a dock surrounded by uniformed correctional services officers. Here, the three defaulters were sitting with their representatives in a conference room they were all Chinese men except for one of the representatives. The adjudicating officer was able to see how the identification was in fact made, and if he had felt that there was any real doubt about the applicant's identification, he would surely have ruled that there was no case to answer in respect of the applicant, as he did in relation to the other two defaulters.

37. Moreover, this was not a case of a "fleeting impression". PWl had seen Fei Chai a number of times, and had been in Fei Chai's car when they went looking for the trouble-makers.

38. As to the criticism that the adjudicating officer had failed to appreciate the full implications of the onus of proof being on the prosecution, the passage relied upon by Mr. Whitehouse appears in the adjudicating officer's ruling that the applicant had a case to answer: that is, that the applicant had "the responsibility" to explain his appearance at the guest house etc.

39. This was, in my view, a clumsy way of saying that upon the evidence before him at that stage there was at least a prima facie case against the applicant. This cannot be read as an indication that the adjudicating officer had shut his mind to the possibility that the applicant had been misidentified, or that upon the totality of the evidence the prosecution witnesses might turn out to be lying at the end of the day. In his "judgment" the adjudicating officer did in fact set out an evaluation of the issue of identification. He referred to the applicant's testimony to the effect that he (the applicant) had seen PWl and PW2 once, on the first day of the hearing, whilst at Ho Man Tin Police Station compound, and that explained how he came to be subsequently identified by the two witnesses. The credibility of the respective witnesses was the crucial issue. I cannot see how, from the imperfect way the adjudicating officer expressed his ruling on the submission of no case, it could be concluded that he had failed fundamentally to discharge his duty of weighing the evidence properly.

Charqe J

40. The aspect of this case which I find the most troubling is this: the adjudicating officer, in his "judgment", referred to the DIS Index Card and, in effect, inferred from what was stated on the card that the Hoi To Guest House was a vice establishment ever since 1985. For my part, I cannot see how such a conclusion can possibly be drawn. What the card shows, for the year 1986, is premises were repeatedly raided by the police with "nil result". There is also an entry for 17th February 1986 to the effect that the premises "had been stopped the vice activities" (sic). There were apparently no raids for the year 1987 until 22nd November 1987 when one female was arrested at the premises for "breach of Immigration Ordinance" : but this was after the month of October 1987, the only relevant month for charge J.

41. The question therefore arises : was there evidence before the tribunal which could lead to the conclusion that the guest house was "a place of poor or doubtful reputation" and that the applicant knew it was so? As to this, the adjudicating officer was entitled to look at the whole of the evidence and to exercise common-sense. The building in which the guest house was located occupied only two numbers on Carnarvon Road : No. 33-35. The guest house occupied one flat, flat 6 on the 5/F of the building. Although no evidence was led as to the size of the flat, it was open to the adjudicating officer in the exercise of his common-sense to infer that the premises were not very large. There was evidence from PW1 that there was no "special room for playing mahjong" but there was a mahjong table "in the room" suggesting that there was only one principal "teng". From the testimony of the two prosecution witnesses, the premises were operated as a brothel. Whilst there was no suggestion that the applicant had availed himself of the sexual services offered on the premises, it was more than likely that someone who went there on a number of occasions to play mahjong and to listen to horse racing would have known that sexual services were provided.

42. In this regard I would emphasize again that the proceedings before the tribunal were not in the nature of a trial of criminal charges in a court of law. The charges were breaches of Police General Orders, couched in rather nebulous terms. Opinion might well differ as to what constitutes a place of "poor or doubtful reputation". It is not the function of a judge, in judicial review proceedings, to substitute his own opinion for that of the adjudicating officer. Whilst it would be an error of law for a tribunal, constituted under the Police (Discipline) Regulations, to conclude without more that every apartment house in Hong Kong is a place of "poor or doubtful reputation", there is nothing fundamentally wrong in his so concluding in relation to an apartment house frequented by prostitutes, where sexual services were offered to customers. Having reached this point, it would then be open to him to conclude that some-one in the position of the applicant, who frequented the place on several occasions within one month, was aware of what was going on. In my judgment there was just sufficient evidence for the adjudicating officer' to have found the applicant guilty on charge J.

Charge K

43. As to charge K, the evidence before the tribunal was certainly capable of leading to the following conclusions:

(i)     That the applicant went up to the guest house in the middle of the night at the request of Lai, after the encroachment of the group of troublemakers and after Lai was hit by one of them;

(ii)     The applicant investigated the incident by asking questions of Lai and the other persons in attendance;

(iii)     The applicant then went in search of the troublemakers and, having found one of them, talked to him.

44. Whether the applicant was, in fact, doing more than carrying out an investigation at the request of Lai is besides the point. The suspicion is that the applicant was in fact one of a number of police officers who were affording "protection" to the guest house. If this suspicion be well-founded then, arguably, the applicant was not making an investigation as such, but seeking to intimidate the troublemakers by the use (and abuse) of his position as a police sergeant, after having found out their identities. However, this remained no more than a suspicion. The applicant was not charged with the much more serious matter of affording "protection" to the operators of an illegal establishment, without the sanction of his superior officers. The finding of guilt on the K charge was confined to the much lower scale of culpability : namely, carrying out an investigation at the request of Lai, a private individual, without the prior sanction of a gazetted officer. As to this, in my judgment, there was sufficient evidence before the tribunal to warrant the "conviction" on charge K.

Conclusion

45. For the reasons above, I conclude that there was no error on the face of the record, that the tribunal had not exceeded its jurisdiction nor acted unfairly in the conduct of the disciplinary hearing. I accordingly dismiss this application for judicial review and make an order nisi that the costs of the proceedings be paid by the applicant.