CHAN KIN MAN v. COMMISSIONER OF POLICE

CACV 428/2023, [2025] HKCA 542

On Appeal From [2023] HKCFI 3145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 428 OF 2023

(ON APPEAL FROM HCAL NO 2139 OF 2023)

________________________

________________________

________________

J U D G M E N T

________________

Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Court’s determination of the Applicant’s amended ex parte summons filed on 17 April 2024 (“the April Summons”) seeking:

(1)  leave to amend the Form 86 filed on 30 November 2023 (“Form 86”) in the form of a draft amended Form 86 annexed to the April Summons (“the Draft Amended Form 86”);

(2)  leave to adduce new evidence in the form of the 2^nd and 3^rd Affirmations of the Applicant both dated 19 January 2024, and his 4^th Affirmation dated 17 April 2024 (respectively, “Chan 2^nd”, “Chan 3^rd” and “Chan 4^th”), together with the exhibits referred to therein, in support of his application for leave to apply for judicial review as per the Draft Amended Form 86; and

(3)  leave to amend the Notice of Appeal filed on 21 December 2023 in the form of a draft amended Notice of Appeal annexed to the April Summons (“the Draft Amended Notice of Appeal”).

2.  Having considered the papers and submissions before us, we consider that it is appropriate to deal with the present applications on paper without an oral hearing pursuant to Order 59, rule 14A(1) of the Rules of the High Court, Cap 4A.

BACKGROUND

3.  The relevant background facts of this case have been set out in the written judgment of Coleman J (“the Judge”) dated 7 December 2023 (“the Judgment”) and will not be repeated here. The following brief summary should suffice for the present purpose.

4.  The Applicant was formerly a senior police constable of the Hong Kong Police Force. He faced 3 disciplinary charges in disciplinary proceedings commenced in November 2020. One of them (“Charge B”) was “conduct calculated to bring the public service into disrepute”, contrary to Rule 3(2)(m) of the Police (Discipline) Regulations, Cap 232A (“Rule 3(2)(m)”). The particulars of that charge state as follows:

“… you are charged that sometime in 2015 in Hong Kong, whilst you were a serving police officer, you did have sexual relationship, at a charge, with female [Ms Wan], such act being conduct calculated to bring the public service into disrepute.”

5.  The Applicant pleaded not guilty to Charge B. At the disciplinary hearing, the prosecution called two police officers who took statements from Ms Wan in relation to her complaint against the Applicant as prosecution witnesses to give oral evidence. The prosecution also attempted to call Ms Wan to give evidence, but in vain. The Applicant gave evidence on his own behalf, and called a former colleague in the Police Force as a defence witness to give evidence. The Applicant was represented by counsel at the disciplinary hearing.

6.  There was no dispute that the Applicant and Ms Wan met and had sexual intercourse in a hotel room in December 2015, and he paid her some money afterwards. The prosecution’s case was that the money paid was remuneration for sex, while the Applicant’s case was that the payment was for “pre-agreed photo taking”[1] of Ms Wan as a model. There was evidence that the Applicant was an amateur photographer, and had previously taken photographs of Ms Wan in underwear or naked.

7.  The Adjudicating Officer (“AO”) rejected the evidence of the Applicant, finding him not to be an honest or reliable witness, and concluded on the evidence before him that the money that the Applicant paid to Ms Wan was for sex. He found the Applicant guilty of conduct calculated to bring the public service into disrepute under Charge B, contrary to Rule 3(2)(m)[2].

8.  The AO considered his power of award insufficient and referred the guilty finding in respect of, inter alia, Charge B to the Force Discipline Officer (“FDO”) for award.

9.  On 23 May 2022, the FDO gave his deliberation confirming the AO’s guilty finding in respect of Charge B and made an award of “Severe Reprimand” with an additional punishment of “Compulsory Retirement with Full Retirement Benefits”.

10.  The Applicant appealed the guilty finding and the award for Charge B to the Commissioner of Police (“the Commissioner”). The appeal was considered by the Deputy Commissioner of Police (Management) (“DCP Man”) on behalf of the Commissioner. DCP Man gave his deliberation on 10 August 2023 (“the Decision”), dismissing the Applicant’s appeal against the conviction and award for Charge B and varying the FDO’s terminatory award to one of “Dismissal without Retirement Benefits from the Force” (“the Increased Award”). DCP Man’s reasons for making the Increased Award have been summarised by the Judge at §22(4) of the Judgment:

“(a) the case is very serious, where it can be noted that the Applicant first became acquainted with Ms Wan when she was merely around 15;

(b) regardless of what the Applicant claimed about their relationship, the act of him, being a police officer, becoming acquainted with a girl of such a young age and subsequently taking photographs of her in underwear would not meet the level of conduct expected of him by members of the public;

(c) there is no doubt that the Applicant is an amateur photographer, but the Applicant’s admission of taking underwear photos with a teenager like Ms Wan, and his evasive attitude, identified that the Applicant was neither an honest nor reliable witness and he was not telling the whole truth;

(d) on the balance of probabilities, it appears that the Applicant used his photography skills to get to know the opposite sex, including youths and underage girls, in the name of looking for models, then fish around and exploit the girls’ financial needs for immoral purpose;

(e) the Applicant eventually took advantage of Ms Wan’s vulnerability and immaturity, and engaged in a sexual relationship with her at a charge;

(f) the nature of the case is far more serious and nasty than simply seeking a sexual service by remuneration;

(g) the Applicant’s discipline, professionalism and judgment were in grave doubt, and the DCP MAN had lost confidence in the Applicant’s suitability to continue discharging his constabulary duties;

(h) the fully justifiable and appropriate award on Charge B was ‘Severe Reprimand’ with the additional punishment of ‘Dismissal’.”[3]

11.  On 30 November 2023, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Decision. The Form 86 was prepared by the Applicant’s former solicitors. Two intended grounds of judicial review were raised in the Form 86, namely, (i) procedural unfairness, in that Ms Wan, being a key witness, refused to, and did not, attend the disciplinary hearing, and thus the Applicant had no opportunity to cross-examine her, and (ii) the Increased Award made by DCP Man was irrational and arbitrary, for the reasons set out at §10 of the Form 86.

12.  On 7 December 2023, the Judge dismissed the leave application on paper. His reasons for rejecting the 1^st ground of review are set out at §§26-31 of the Judgment, and those for rejecting the 2^nd ground of review at §§32-34 of the Judgment.

THE APRIL SUMMONS

13.  On 21 December 2023, the Applicant filed and served a Notice of Appeal against the Judgment. The Notice of Appeal contained 4 grounds of appeal.

14.  On 22 January 2024, the Applicant filed an ex parte summons seeking leave to amend the Form 86 and to adduce Chan 3^rd as new evidence in support of his application for leave to apply for judicial review as amended.

15.  On 17 April 2024, the Applicant filed the April Summons as mentioned at the beginning of this judgment.

16.  On 20 May 2024, the Registrar of Civil Appeals granted the Applicant leave to (i) withdraw his summons of 22 January 2024, and (ii) proceed with the April Summons.

THE PROPOSED AMENDMENTS OF THE FORM 86

17.  The proposed amendments to the Form 86 involve a wholesale re-writing of the Form 86. The substantive paragraphs in the original Form 86 (§§4-10) setting out the 2 grounds of review considered by the Judge are proposed to be deleted in their entirety, and replaced by 4 amended grounds (“Amended Ground 1” to “Amended Ground 4”, collectively “the 4 Amended Grounds”). The 4 Amended Grounds have been summarised by Mr Deng at §7 of his Skeleton Submissions of the Applicant/Appellant dated 17 September 2024 (“the Applicant’s Skeleton Submissions”), as follows:

(1)  Amended Ground 1 raises the question whether or not the AO and DCP Man properly directed themselves as a matter of law when drawing an adverse inference against the Applicant and convicting him on his own evidence alone that he had “sexual relations at a charge” with the “victim”, when, at the highest, such inference was merely one of equal degrees of probability that other explanations of equal likelihood existed in light of the evidence that the conduct was consensual, the payment was for photography, there were subsequent sexual relations between the Applicant and Ms Wan, and the Applicant had made gifts to Ms Wan throughout including holidays and other gifts.

(2)  Amended Ground 2 focuses on whether the AO and DCP Man, after finding that the Applicant had made payment to Ms Wan for sex, properly directed themselves and/or took into account of immaterial or irrelevant considerations or failed to take into account relevant considerations, to make a further finding that the payment was related to “vice-related” activities and therefore brought the Police Force into public disrepute.

(3)  Amended Ground 3 focuses on the legality of the Increased Award, in that DCP Man did not accord the Applicant with any or any fair opportunity to make representations that directly addressed the issue of taking advantage of or exploiting Ms Wan, before making the Increased Award.

(4)  Amended Ground 4 alleges three errors of law, namely: (i) DCP Man did not have any evidential basis to substitute and uplift the award for Charge B; (ii) DCP Man accorded undue weight to the Applicant’s photography of Ms Wan in underwear (which was the subject of Charge A and dismissed by the AO) when there was a positive finding that it could not be said that the relevant photographs were indecent; and (iii) the severity of the Increased Award was irrational and disproportionate to the seriousness of the offence and the situation of the offender, and plainly wrong.

18.  At §6 of the Applicant’s Skeleton Submissions, Mr Deng accepts that the 4 Amended Grounds were not raised before the Judge in the original Form 86. He submits that when considering whether to permit the proposed amendments to the Form 86, the Court should consider the following aspects:

(1)  whether the new grounds would occasion any unfairness;

(2)  whether the Court has all the necessary materials before it to entertain the same;

(3)  whether the new grounds are particularised and set out in a draft amended Form 86;

(4)  whether such grounds have any merits and whether they are academic; and

(5)  whether the applicant’s understanding or ability to present his case was previously limited.

He refers the Court to a number of authorities in support of the above propositions which it is not necessary for us to set out in this judgment (see §3 of the Applicant’s Skeleton Submissions).

19.  Mr Deng further argues that leave to amend should be granted because the 4 Amended Grounds would not give rise to any unfairness for the following reasons: they raise obvious grounds that have been alluded to in the Applicant’s appeal to DCP Man, they have reasonable prospect of success, and they do not introduce new facts or evidence that were not already before the Court of First Instance, but raise questions of law in respect of evidence and procedural fairness which the Court of Appeal is well placed to consider. He says that the Draft Amended Form 86 fully and properly particularises the new grounds, and submits that although the Applicant was legally represented below, the original grounds were entirely defective, and the Applicant should be given the benefit of the doubt that he did not receive competent legal advice to formulate arguable grounds within time. Lastly, he mentions that the Applicant is the sole breadwinner of his family, and the Increased Award on his personal finances after a career in the Police Force is catastrophic.

20.  In the present case, the amendments proposed by the Applicant are very substantial. They amount to, effectively, a complete rewriting of the original Form 86 and replacement of the original grounds of review by new grounds which were never considered by the Judge. To permit the Applicant to amend the Form 86 in such circumstances would mean that the Court of Appeal will not be dealing with an appeal against a judgment of the Court of First Instance, but will be determining an application for leave to apply for judicial review afresh. This is generally not the proper function of the Court of Appeal. In Wong Ho Tong v Director of Lands [2018] 6 HKC 501, at §78, Lam VP (as he then was) said the following:

“… We must stress again that an appeal against refusal of leave is not an occasion for an applicant to make a fresh attempt in seeking leave. Hence, the Court will not permit grounds to be amended or new grounds to be advanced or fresh evidence to be admitted lightly. This principle applies irrespective of whether the applicant has legal representation at the court below. In an appeal, this Court should normally have the benefit of the analysis of the court below on issues which are of importance in the case. Thus, it has been said that in our system, proceedings in the first instance court should be the main event. The same applies to an application for leave to apply for judicial review. Therefore, if a litigant chose not to raise some important issues or put forward some important evidence at the court below, it would not lie in his mouth to complain if this Court shall decline to entertain such new issues or new evidence.”

21.  In the circumstances, we consider that strong justification must be shown before the Court should grant leave to the Applicant to make the proposed amendments.

22.  In respect of the matters relied upon by Mr Deng referred to in §19 above, the fact that the proposed amendments (i) do not introduce new facts or evidence that were not already before the Court of First Instance, or (ii) raise questions of law in respect of evidence and procedural fairness which the Court of Appeal is in a position to consider, or (iii) are fully and properly particularised in the Draft Amended Form 86, or that the Applicant will suffer substantial financial hardship due to the Increased Award, are not themselves good grounds which would justify leave to amend being granted. The allegation that the Applicant did not receive competent legal advice from his lawyers to formulate arguable grounds within time is also not a good justification for allowing the proposed amendments. If the Applicant has any genuine complaint against his former lawyers, he may have legal remedies against them. For the avoidance of doubt, we express no view on the merits of the Applicant’s allegations against his former lawyers.

23.  In our view, the most important consideration is the merits of the proposed new grounds of review. We are far from being satisfied that Amended Grounds 1, 2 and 4 are reasonably arguable.

24.  Amended Ground 1 is a challenge against a finding of fact made by the AO and confirmed by the FDO and DCP Man:

(1)  As earlier mentioned, there was no dispute that the Applicant did make a payment to Ms Wan on the same date after he had sex with her. The AO disbelieved the Applicant’s evidence that the payment was remuneration (or advance remuneration) for Ms Wan’s agreeing to pose as a photography model for the Applicant. The AO also did not accept that the Applicant and Ms Wan had a boyfriend and girlfriend, or romantic, relationship at the material time. He took the view that Ms Wan was just a “service provider”, and did not believe that Ms Wan would allow the Applicant to have sexual intercourse with her for free. On the basis of the evidence and materials before him, it was, in our view, open to the AO to conclude that the only reasonable inference was that the money that the Applicant paid to Ms Wan was for sex. This finding cannot be said to be irrational in the public law sense, even taking into account the seriousness of the charge and thus the need for more cogent evidence to prove it. The FDO and DCP Man’s respective decisions to confirm the AO’s finding on this issue cannot be said to be irrational either.

(2)  Mr Deng’s suggestion that the payment could be a gift had no foundation, and did not represent the Applicant’s case either.

(3)  We also do not see that the AO erred in giving no weight to the statements of Ms Wan. Mr Deng says that a “negative inference should be drawn against [Ms Wan’s] statement” in view of (i) her refusal to attend the hearing, and (ii) there was no effort made by the prosecution to compel her attendance through a Court subpoena. As we see it, Ms Wan had made other very serious allegations against the Applicant in her statements to the police, including rape, intimidation and coercion[4]. Apparently, she did not explain why she was not willing to attend the disciplinary hearing to give evidence[5]. On the other hand, the prosecution considered that it had sufficient prima facie evidence to support the various charges against the Applicant without having to rely on the evidence of Ms Wan. As held by the Court of Appeal in Mohammad Rafig v Kin Hong Transportation Company Limited [2023] HKCA 185, at §§21 and 24 –

“[21] … First, the drawing of adverse inference is not an automatic exercise. There is no presumption for an adverse inference to be drawn from the mere absence of a witness or documents: Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22 at §33(1). Whether an adverse inference should be drawn in a particular case is a matter of discretion for the trial judge based on all the relevant circumstances of the case including the quality of the other evidence. The grounds for appellate interference with such a decision are limited.

…

[24] Furthermore, it is well established that there must be a case to answer in order for the court to draw an adverse inference that the evidence of the absent witness would not have assisted in displacing that prima facie case. In the present case, the judge, for reasons that seem to us to be unconnected with Chen’s evidence, came to the view that the applicant’s own evidence was ‘full of contradictions’ and ‘incapable of being believed’. There was in these circumstances little in the applicant’s own evidence that an adverse inference could be drawn from Chen’s absence to bolster…”

In other words, the drawing of an adverse inference arising from the absence of a witness is a matter of assessment of the evidence. The AO gave full and detailed reasons why he considered the Applicant not to be an honest or reliable witness. We do not see that the AO (or FDO or DCP Man) erred in law or approach in not drawing an adverse inference arising from Ms Wan’s refusal to give evidence that would bolster the Applicant’s evidence that the payment which he admittedly made to Ms Wan after they had sex was her remuneration for agreeing to pose as a model for photo-taking by the Applicant.

25.  Amended Ground 2 raises the question of whether the conduct of the Applicant as found by the AO/FDO/DCP Man would bring the Police Force into disrepute. For this purpose, it makes no difference whether the Applicant’s conduct should be categorised as “vice-related” activities. The AO took the view that (i) the Hong Kong Police Force was a disciplinary force which demanded a high standard of discipline on individual officers at all times, (ii) a reasonable member of the public would not expect a male police officer to have sexual intercourse with a female for a charge, (iii) the conduct of the Applicant had obviously fallen short of the standards of behaviour which a reasonable member of the public had a right to expect from officers of the Hong Kong Police Force, and (iv) such conduct would undoubtedly be likely to lower the reputation of the public service in the minds of reasonable citizens[6]. The FDO essentially agreed with the view taken by the AO[7]. DCP Man took an even more serious view of the Applicant’s conduct (see §26(1) below). Whether certain conduct of a police officer is calculated to bring the public service into disrepute is a matter which generally should be left to be determined by the Police Force itself, and the threshold for the Court’s intervention of such a determination by the Police Force is necessarily a high one: see Wong Wai Tak v The Secretary for the Civil Service, HCAL 2335/2000 (22 February 2001), at §42. We see no proper or sufficient basis for the Court to intervene with the AO/FDO/DCP Man’s determination on this issue in the present case.

26.  Amended Ground 4 effectively challenges DCP Man’s assessment of the seriousness of the Applicant’s conduct in deciding to make the Increased Award. Three major points are raised in support of this ground:

(1)  Mr Deng submits that DCP Man did not have any evidential basis to substitute the award made by the FDO by the Increased Award. DCP Man’s reasons for making the Increased Award are set out in detail in his deliberation, as follows -

“[16] As pointed out by the FDO, the instant case is very serious in nature. I note that the Appellant acquainted with WAN when the latter was merely at the age of about 15. Police officers are entrusted to contact and provide care to children, youths and other vulnerable parties in the course of their duties. Regardless of what the Appellant claimed the relationship between the duo to be, the act of him, being a police officer, acquainting with a girl of such a young age and subsequently taking photographs of her in underwear, would not meet the level of conduct expected of him by members of the public. Form the Appellant’s testimonies and the defence exhibits submitted, I have no doubt the Appellant is an amateur photographer. However, with the Appellant’s admission of taking underwear photos with a teenager like WAN and his evasive attitude, I agreed with the AO that the Appellant was neither an honest nor reliable witness and he was not telling the whole truth. I also note that the Appellant, in his video-recorded interview dated 2016-11-08 (Agreed Exhibit 1), stated that he acquainted with WAN through her classmate, whom he also took photos with. On the balance of probability, it appears to me that the Appellant used his photography skills to get to know the opposite sex, including youths and underage girls, in the name of looking for models, to fish around and exploit the girls’ financial needs for immoral purpose. The Appellant’s conduct has no doubt caused concerns of parents or guardians of the minor, not to mention the Appellant eventually took advantage of WAN’s vulnerability and immaturity, engaged in a sexual relationship with her at a charge. The nature of the case is far more serious and nasty than simply seeking a sexual service by remuneration.

[17] Over the years, the Force has been committed to maintaining the highest standard of integrity and conduct of all Force members and adopts a zero tolerance approach to misconducts in all forms. Not only is the Force a disciplined service, but its whole mode of operation relies on the personal discipline and integrity of every single member. This is so as to ensure that the Force is able to protect and serve the community to the very high standard that is rightly expected. In the present case, the nature and circumstance of this offence were very serious and the Appellant’s discipline, professionalism and judgment were in grave doubt. I have grave reservation about the Appellant’s ability in subscribing to the Force values and disciplinary code, as well as his professionalism and judgment. As such I have lost confidence in his suitability to continue discharging his constabulary duties.

[18] Worse still, the Appellant pleaded not guilty to the charge in the hearing and made up different excuses in an attempt to downplay his fault. He has shown no sense of remorse at all. Having considered the extremely serious nature and circumstances of the case, the gravely adverse impact on public confidence, the Appellant’s not guilty pleas, service record, disciplinary record and mitigation, I am of the view that not only did this ground of appeal against the award contain no merit at all, the award for Charge (B) given by the FDO is in fact too lenient. I consider and award of ‘Severe Reprimand’ with an additional punishment of ‘Dismissal’ fully justifiable and appropriate for Charge (B).”

The views taken by DCP Man are rational. It cannot be said that he did not have any evidential basis to make the Increased Award.

(2)  Mr Deng next argues that DCP Man accorded undue weight to the Applicant’s taking photographs of Ms Wan in underwear or naked when there was a positive finding by the AO that it could not be said that such photographs were indecent. This argument is based on a misunderstanding or misreading of DCP Man’s reasoning for making the Increased Award. DCP Man did so not because the photographs taken by the Applicant of Ms Wan were indecent, but because of the surrounding circumstances of the misconduct committed by the Applicant, in particular the view taken that “the Appellant used his photography skills to get to know the opposite sex, including youths and underage girls, in the name of looking for models, to fish around and exploit the girls’ financial needs for immoral purpose. The Appellant’s conduct has no doubt caused concerns of parents or guardians of the minor, not to mention the Appellant eventually took advantage of WAN’s vulnerability and immaturity, engaged in a sexual relationship with her at a charge” (“the Additional Findings”). In passing, we should mention that when acquitting the Applicant of Charge A, the AO did not make any positive finding that the photographs taken by the Applicant of Ms Wan in underwear or naked were not indecent. The relevant photos were in fact not placed before the AO, and he took the view (correctly) that “[a] pure description of taking photos of wearing bra, underwear or even naked etc. would not be sufficient for [him] to draw a meaningful inference that the photos taken were of indecent nature” [sic][8].

(3)  Mr Deng argues that the severity of the Increased Award was irrational and disproportionate to the seriousness of the offence and the situation of the offender. This argument is quite hopeless. It is well established that the determination and punishment of disciplinary charges against police officers are entrusted by the legislative to the Commissioner and his officers, and not the courts, and the former are expected to bring to bear their knowledge and experience of the requirements and operations of the Police Force, and likewise to assess awards in the light shed by the nature and circumstances of the misconduct upon the desirability and appropriateness of the offending officer remaining in the Force: see Au Yeung Kwok Hing v The Attorney General for and on behalf of the Commissioner of Police, CACV 205/1994 (7 February 1995), at pp 20-21; Wong Wai Tak v The Secretary for Civil Service, CACV 611/2001 (10 July 2001), at §§22-23. The scope for the exercise of the court’s supervisory jurisdiction in judicial review over disciplinary decisions is limited, and a high threshold is required to be met before the court will consider intervening in those decisions. In our view, it was open to DCP Man to take a serious view of the Applicant’s misconduct for the reasons given by him, and make the Increased Award accordingly. We see no reasonable basis to interfere with DCP Man’s decision in this matter.

27.  What has caused us some concern is Amended Ground 3. While we consider that DCP Man was entitled to make the Additional Findings and took them into account in making the Increased Award, it is reasonably arguable that the Applicant should have been given a reasonable opportunity to comment on them and make representations to DCP Man as to why those findings should not be made. It does not appear that the Applicant was ever alerted to the possibility that DCP Man might look at the matter from a more serious angle and make the Additional Findings, which did not form any part of the reasoning in the AO’s judgment or FDO’s deliberation. In our view, an issue of procedural fairness is involved here, and it ought to be further explored in the Applicant’s appeal. Having reached this view, we do not consider it appropriate for us to further consider the merits of Amended Ground 3 in this judgment.

28.  For the above reasons, we would grant leave to the Applicant to amend the Form 86 to raise Amended Ground 3, but not Amended Grounds 1, 2 and 4.

THE NEW EVIDENCE APPLICATION

29.  The application for admission of fresh evidence is a non-starter. At §1 of the April Summons, it is stated that the Applicant seeks leave to adduce Chan 2^nd, 3^rd and 4^th “in support of the Notice of Application for leave to apply for judicial review in HCAL 2139/2023 as amended” (ie the Draft Amended Form 86). Apparently, the purpose of the proposed amendments is to raise the 4 Amended Grounds of judicial review. However, it is Mr Deng’s submission that the 4 Amended Grounds “do not introduce new facts or evidence that were not already before the CFI” and therefore would not occasion any unfairness on the Commissioner. If so, it is difficult to see why the Court should grant leave to the Applicant to adduce Chan 2^nd, 3^rd and 4^th as new evidence.

30.  In any event, Mr Deng has completely failed to address the issue of admission of new evidence in his submissions, or demonstrate that the Ladd v Marshall conditions are satisfied for the purpose of admission of the new evidence in the Court of Appeal.

31.  Accordingly, the application for admission of new evidence is dismissed.

THE PROPOSED AMENDMENTS OF THE NOTICE OF APPEAL

32.  Mr Deng has also not addressed the question of amendments of the Notice of Appeal. In view of the conclusion reached above that leave to amend the Form 86 should not be granted in respect of Amended Grounds 1, 2 and 4, we would not be minded to grant the Applicant leave to amend the Notice of Appeal in respect of (i) §4A, sub-paragraphs b and c, (ii) §4B, (iii) the reference to Amended Ground 1 of review in §5, and (iv) §6.

DISPOSITION

33.  Leave is granted to the Applicant to amend: (i) the Form 86, in the form of the Draft Amended Form 86 with the exception of §§25(1) and 26 to 47 (inclusive) and §§55 to 66 (inclusive), and (ii) the Notice of Appeal in the form of the Draft Amended Notice of Appeal with the exception of those parts mentioned in §32 above. The Amended Form 86 and Amended Notice of Appeal shall be filed and served within 14 days from the date of this judgment.

34.  Save as aforesaid, the April Summons is dismissed.

35.  There shall be an oral hearing of the Applicant’s substantive appeal on a date to be fixed in consultation with counsel’s diary, with half a day reserved.

36.  For the avoidance of doubt, the granting of leave to amend the Notice of Appeal is without prejudice to any argument that the Commissioner may advance to contend that the grounds of appeal (as amended) or some of them are no longer open to the Applicant in view of his decision to delete the original grounds of review in the Form 86. The Applicant should review with his legal advisers on what grounds of appeal he could properly pursue in the light of this judgment.

37.  On the issue of costs, the Applicant has been successful in the amendment applications to a limited extent only. Also, the Applicant is seeking an indulgence of the court in relation to the amendment applications. On an overall basis, we order the Applicant to pay 85% of the Commissioner’s costs. We summarily assess the Commissioner’s costs in the sum of HK$95,000. Accordingly, the amount of the costs to be paid by the Applicant shall be HK$80,750 (HK$95,000 x 85%).

38.  The above costs order, including the assessment of costs, is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment. In the event that an application is made to vary the order nisi, the application shall be dealt with on paper. The Court will give directions (including the filing of submissions) for the further conduct of the application. No affidavit or submissions may be filed in support of the application without the Court’s leave.

39.  The Applicant’s own costs shall be taxed in accordance with the Legal Aid Regulations.