LEE SZE CHUNG v. COMMISSIONER OF POLICE

HCAL195/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.195 OF 2002

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J U D G M E N T

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1. In this judicial review the applicant seeks five orders of certiorari. The applicant is a police officer who, on 25 September 2001 was found guilty, by the Police Disciplinary Tribunal, of making a false statement in a material particular contrary to regulation 3(2)(j) of the Police (Discipline) Regulations. On the same day, the same Tribunal made an award of "reprimand" on the charge. On 9 October 2001, a senior police officer increased the award to "compulsory retirement with deferred benefits". On 2 January 2002, the award was confirmed by the Force Discipline Officer and on 20 August 2002, the applicant's appeal was dismissed by the Commissioner of Police. The applicant now seeks orders quashing all the above decisions.

Background

2. The background to these proceedings is important. It stems from an incident on 3 November 1999 when the applicant was driving his own motor vehicle. In his car were his brother, a man named "Chui" and a fourth man who was an illegal immigrant. The vehicle was intercepted by the police and stolen goods were found on the three passengers and in the boot of the vehicle. All four were prosecuted on charges including possession of offensive weapons and handling stolen goods, in the Magistrates Court. They were all convicted. They all appealed. The applicant's appeal was successful but the appeals of the other three were dismissed. The appeal was heard in December 2000. Thus from November 1999 and December 2000 the applicant, who from the date of the incident remained a police officer but under interdiction, was fully aware of the criminal proceedings involving himself and, inter alia, the man named Chui.

3. It was his knowledge of Chui which formed part of the disciplinary proceedings which were commenced in March 2001, about three months after his successful appeal. In the course of the disciplinary proceedings (which I set out in more detail hereafter) the applicant said in his first interview, in effect, that the occasion when Chui was in his car in November 1999 was the first time he had met him for over 10 years and that he did not know that Chui had a number of criminal convictions and was an undesirable element.

4. In his second and third interviews, he said that he had made a mistake in that, in fact, he and Chui had been on the same hydrofoil to Macau 11 days before the incident on 23 November and also had been on the same return hydrofoil to Hong Kong the next day. He explained that this was a coincidence, that he had not stayed with Chui in Macau and that his failure to mention it in his first statement was a "genuine mistake". The Tribunal did not accept his version and found that he had deliberately lied, and convicted him accordingly.

5. Immigration records revealed that the applicant and Chui had left Hong Kong at the same minute and had gone through the same terminal. Their entry into Macau is also recorded at the same minute and they had consecutively numbered immigration "slips". The same was true of their return to Hong Kong the next day i.e. the same departure time, the same arrival time, the same terminals and consecutive "slip" numbers.

The proceedings

6. The applicant, in the course of the disciplinary investigation into the circumstances of his arrest, trial, conviction and appeal, was interviewed three times, on 17 March, 28 March and 3 April 2001. As a result he was charged as follows :

"Charge:	Making a Statement False in a Material Particular
	Contrary to Regulation 3(2)(j) of the Police
	(Discipline) Regulations, Cap.232
Particulars:	PC 23895 LEE Sze-chung of the Hong Kong Police Force you are charged that at 1100 hours on 17 March 2001 at the Interview Room 3, Duty Room of Crime/Kwun Tong Division, Kwun Tong Police Station, No.1 Lei Yu Mun Road, Kwun Tong, Kowloon, you did make a statement in the course of your duty to Detective Sergeant 13706 Cheung Koon-wing namely that when you met Chui Chi-keung on 23 November 1999 it was the first time you had met after more than 10 years, such a statement being false in a material particular."

7. The relevant extracts from his three interviews in so far as they relate to these proceedings are as follows :

(1) In the first interview on 17 March 2001

"Question [3]	Do you know a Chinese male called CHUI Chi-keung?
Answer [3]	I have come to know him for a long time. It is because my family opened a porridge shop at Shek Wai Kok Estate in Tsuen Wan when I was about 15 years old. Sometimes, I went downstairs to the shop to offer assistance. Since CHUI Chi-keung was an old customer, I came to know him.
Question [4]	Do you know that CHUI Chi-keung has a number of criminal conviction records and is also an undesirable element?
Answer [4]	I do not know because I have never had any contact with him. It was not until my elder brother LEE Sze-wang who came to look for me with him sometime before my arrest, then I met him again on that day. It was the first time when we met each other after more than ten years. Before that, I did not have any contact with him."

(2) In his second interview on 28 March 2001

"Question [2]	Can you give a clear explanation about the personal background of the arrested males, i.e. KO Fung [NG Man-shing], CHUI Chi-keung and LEE Sze-wang, your elder brother, the course of coming to know each other and the contacts between them in the ordinary days?
Answer [2]	... As for CHUI Chi-keung, I have already mentioned him in the previous statement. I have come to know him for more than 10 years but I did not make any contact with him. I remember that I met him on a hydrofoil on the way to Macau from Hong Kong on a certain day in 1999. Yet I have already forgotten the exact date. Coincidentally, while I was returning to Hong Kong, I met him on the hydrofoil again. He was also on the way back to Hong Kong on the same hydrofoil. I must stress that I did not stay with him in Macau. ...
	... As for the personal background of CHUI Chi-keung, I only know that he worked as a waiter in a restaurant and decoration worker. As to his activities and hobbies in the ordinary days and whether he has any criminal conviction record or triad background, I do not know."

(3) In his third statement on 3 April 2001

"Question [4]	On that day, where and under what circumstances did you meet him on the hydrofoil [heading for Macau]. Who took the initiative to greet the other party?
Answer [4]	Since it was long time ago, I really don't remember. Besides, I don't remember where I met CHUI Chi-keung on the hydrofoil.
Question [5]	In the first statement taken by the police from you on March 17, this year, you mentioned in Answer [4] that you were having midnight snack in Tai Wai and it was the first time you met CHUI Chi-keung again after more than ten years. Actually, which is the first time you met CHUI Chi-keung again, the occasion mentioned in Anwer [1] of this statement or the occasion when you had the midnight snack on that night?
Answer [5]	I remember that it was the first time when I met CHUI Chi-keung on the hydrofoil heading for Macau and the midnight snack in Tai Wai was the second time. I probably remembered it wrongly in the last statement."

8. In answer to the charge, the applicant made written submissions which included the following :

"... As I mentioned on my 1st statement, I repeated that I knew 'CHUI' for more than 10 years, however I have no any contact or association with 'CHUI' except we happened to be traveling on the same hydrofoil to and from Macau on a certain day in 1999 by a coincidence. I also explained to the investigating officer that I did not stay with 'CHUI' in Macau.

... On my 3rd statement dated 2001-04-03, I explained that I probably remembered wrongly in the 1st statement - it was the 1st time when I met 'CHUI' on the hydrofoil and the midnight snack in Tai Wai was the 2nd time. ......

The minor inconsistencies in my statements are nothing but a genuine mistake."

9. At the hearing of the charge on 27 August 2001, the applicant elected not to give evidence and submitted his written submissions (supra) for consideration. The sole witness against him, Detective Sergeant 13706 Cheung gave evidence about the three interviews. He made the following observations. In relation to the first interview :

"... Throughout the statement taking process, PC 23895 was very careful and it took him a long thought, a bit longer than a normal person would do, to answer each and every question I asked him."

In relation to the second interview :

"... This time I noticed that although PC 23895 was still careful in answering questions, he was however very coherent and fluent in giving an account especially in his answer to question No.2 on page 3 which related to how he came across male CHUI Chi-keung again after 10 odd years. I noticed the difference and remembered this because when he gave the first statement, he took a long time to think but for this one he could give a coherent account to such a long story and answered my questions quickly."

10. The decision was delivered on 25 September 2001. It is a reasoned judgment. This judicial review proceeding is not an appeal against the Tribunal's findings, I therefore only set out that part of it which is relevant to a point taken on judicial review, namely, the standard of proof. The officer said :

"... I remind myself that the prosecution must have a strong case supported by evidence to prove the defaulter's guilt to secure a conviction. ...

... From all the evidence adduced in the proceedings, I find the Defaulter to have been dishonest and firmly believe that he has told lies."

The applicant was convicted and an award of "reprimand" was made.

11. On 8 October 2001, the applicant was notified that he was to attend before a Senior Police Officer on 9 October at 10:30 a.m. He duly attended. The Senior Police Officer firstly confirmed the Tribunal's findings and secondly went on to say :

"... Consequently I consider that the award made by the Appropriate Tribunal to be inadequate, even considering your service history and mitigation in which you minimize the seriousness of lying. I therefore am considering increasing the award to one of 'Compulsory Retirement with Deferred Benefits'. However before I make this award under Regulation 14(3)(a) of the Police Discipline Regulations I am required to call on you to show cause as to why I should not increase the award.

Defaulter understood the ramifications of my imposing a greater award. Indicated he would like to make representations."

12. The applicant made a statement in which he basically repeated his defence to the charge and his mitigation. The respondent makes the point that it is a comprehensive and fluent statement.

13. At noon, the Senior Police Officer, made the following decision :

" I have carefully considered the representation you have made to me as to the reasons the award should not be increased. The representations consisted mainly of an appeal against the finding. Nevertheless I have taken these into consideration.

However, you have been found guilty of the offence by an Appropriate Tribunal and I have confirmed the finding. You have in a disciplinary enquiry made a false statement regarding an important issue. It is of paramount importance in this modern age that police officers are honest and trustworthy in all aspects of their work. In this case you have broken that trust and a serious view must be taken of this. Whilst I note your previous good record and your family circumstances, as well as the representations you have made to me today, I still take a dim view of this serious matter.

I therefore increase the award to one of 'Compulsory Retirement with Deferred Benefits' under Regulation 14(1)(b)(iv) of the Police (Discipline) Regulations Cap.232."

14. The sole point taken by the applicant in relation to this part of the proceedings is that he was given no, or no adequate time to prepare his case when confronted with a possible decision to increase the award which had been made against him 15 days earlier.

15. This award was later confirmed by the Force Disciplinary Officer and, later again, the applicant's appeal was dismissed by the Deputy Commissioner of Police.

The applicant's grounds for judicial review

16. The disciplinary Tribunal's finding of guilt is challenged on four grounds.

(1) That the charge as laid, namely against Regulation 3(2)(j) is bad because the alleged false statement was not made in the course of his duty.

At the relevant time, namely the time of the interviews, the applicant was under an interdiction. The interdiction had been imposed pursuant to section 17(1) of the Police Force Ordinance ("the Ordinance"), Cap.232 which states :

"If the Commissioner considers that public interest requires that a police officer other than a gazetted police officer should cease to exercise the powers and functions of his office forthwith, he may interdict the police officer from the exercise of such powers and functions ..."

17. The applicant's submission is twofold. Firstly, that when under an interdiction a police officer is incapable of performing any duties and therefore could not commit an offence in the course of them. Or, in other words, once interdicted he has no duty to perform. Secondly, that assisting in the course of a disciplinary investigation is not a "duty" as contemplated by Regulation 3(2)(j). Regulation 3(2)(j), it is submitted, is confined to the day-to-day tasks carried out by a police officer in the execution of his duty.

18. In my judgment, this ground must fail.

19. Section 17 of the Ordinance takes away a police officer's powers. He cannot exercise a police officer's powers and is prohibited from performing a police officer's functions. The word "duty" does not appear in section 17. Whilst under interdiction the applicant is still a member of the police force and remains on the pay-roll. Without question, one of the duties he is still obliged carry out is to assist in internal investigations concerning disciplinary matters.

20. Mr Kwok Sui Hay, for the applicant, submitted that the duties of a police officer are confined to those matters found in section 10 of the Police Ordinance. In fact that section lists in sub-sections (a) - (r) the duties of the police force, not a police officer. Even if section 10 was the definitive list of a police officer's duties sub-section (r) states :

"(r) executing such other duties as may by law be imposed on a police officer."

In Fu Kin Chi Willy v. Secretary for Justice [1998] 1 HKC 411, Li CJ stated at p.422 that the duty of a police officer included assisting in disciplinary investigations. It follows that it would be unlawful to fail to do so. He said :

"...Under the scheme, the Force's integrity and efficiency and public confidence therein are of fundamental importance for its effective functioning, and the effective investigation of possible offences against discipline is essential to maintaining its integrity and efficiency. In my judgment, he has a duty to assist. ..."

21. In any event the duties of a police officer and the duties of the police force are not the same thing and the former is wider than the latter. The former plainly includes assisting in a disciplinary investigation in the capacity of a police officer whether under interdiction or not.

(2) That the charge as laid is bad for a second reason, namely that the statement was not false in a material particular as required by Regulation 3(2)(j).

22. This ground is based on the argument that the false statement, namely that the applicant had not met Chui for 10 years prior to 23 November 1999, was not material or relevant to the question he had been asked, namely, "do you know that Chui has a number of criminal convictions and is also an undesirable element?". Thus it is submitted that the answer is immaterial to the question, therefore the offence has not been made out, therefore certiorari should be granted.

23. This ground can be dealt with quite shortly. Put simply, the materiality of the falsehood must relate to the investigation generally and is not restricted to the particular question asked. The investigation concerned, inter alia, the applicant's possible association with known criminals. His answer is plainly material and relevant. As Mr N. Cooney, for the respondent, pointed out an interviewee might be asked his name and in answer state his name and then give a long prepared statement about the incident under investigation. On Mr Kwok's submission all of his answer, save his name, would be immaterial.

(3) That the Tribunal officer applied too low a standard of proof.

24. By reference to the extracts in the Tribunal's decision on 25 September 2001 (cited supra at p.7/8) Mr Kwok submits that (a) the criminal standard of proof should have been applied and (b) it was not applied.

25. The standard of proof in Tribunals generally, is a subject which has attracted much legal argument and judicial statements in many cases dealing with a variety of different types of tribunals.

26. Both counsel in this judicial review have referred me to many authorities on the subject. In some of those authorities the particular court has taken the opportunity to review many previous cases and set out such principles as are relevant to the particular case or Tribunal that they are dealing with. Having gleaned as much assistance as I can from the cases cited, the correct approach in this case is, in my judgment, as follows :

(a) The police disciplinary proceedings are not criminal proceedings. Evidence is not given on oath.

(b) There is no rule of law which states that the criminal standard of proof must be applied in a proceeding of this nature.

(c) The criminal standard of proof may be applicable in some cases, depending on the gravity of the charge being faced.

(d) In police disciplinary proceedings which could lead to a criminal prosecution (as in this case) proof by the mere balance of probabilities would be insufficient.

(e) If the charge is such that the criminal standard is applicable, the failure to use the magic words "beyond reasonable doubt" or "satisfied so that I am sure" does not mean that the Tribunal has failed to adopt such a standard.

(f) In a case such as the present one, the adequacy of the standard adopted is to be gleaned from the words used, bearing in mind they were used by a senior and experienced police officer entrusted with the serious task of adjudicating on the conduct of a fellow officer.

(g) Consideration of the words used by the Tribunal officer must be directed towards the question - do they demonstrate that, given the gravity of the particular of offence, the officer was satisfied of guilt to a sufficiently high degree of probability? Even the expression "beyond reasonable doubt" is a degree of probability, albeit the highest short of absolute certainty (which is frequently an impossible goal).

(h) In this case, although there was no requirement on the officer to state in terms that he had to be satisfied to the criminal standard, the words he chose were synonymous with such a standard for all practical purposes. A person who holds a "firm believe" has clearly been convinced of the truth of the allegation by the evidence. This, in effect, is what the Tribunal officer said.

I thus find that the complaint that too low a standard of proof was adopted has not been made out.

(4) That the Tribunal officer's judgment is fundamentally flawed because it failed to consider a fundamental issue arising from what was actually meant by the applicant's answer in the first interview.

27. This ground is not contained in the applicant's Form 86A written grounds for judicial review. Mr Kwok nonetheless relies on it and he has enlarged on it in his written skeleton argument and submissions. I will therefore deal with it.

28. The submission is that the expression, in Chinese, used by the applicant could have meant that the last time he had formally met, or had had an arranged meeting with Chui, was 10 years prior to 23 November 1999. It follows that coincidental or chance meetings with Chui could have occurred since then and had they not been mentioned the applicant would not, because of the ambiguous nature of the Chinese expression, have been lying. The complaint is that this issue was not considered by the Tribunal officer.

29. I find there to be no substance in this complaint. The applicant's defence was consistent throughout. He maintained all along that his failure to mention the Macau trip was a mistake. He did not advance the defence that "I did not mention it because I thought you were talking about pre-organized meetings and the Macau trip was a chance encounter." The issue for the Tribunal was clear, namely, was the failure to mention the Macau trip a genuine mistake because he had forgotten about it at the time of the interview or was it a deliberate lie. The Tribunal officer found it to be the latter. There was no sub-issue about the meaning of his answer then, or at any stage thereafter up to and including the filing of the Form 86A in these proceedings. The Tribunal officer dealt with that single issue in his reasoned judgment as follows :

"... It is hard to believe that the Defaulter just came across male CHUI Chi-keung by coincidence during a Macau trip. ...

... I find it hard to believe that the Defaulter, being an experienced police officer, could have made such a mistake in the first statement on 17-03-2001. Moreover, in the oral evidence given by witness DSGT 13706 who took the statements form the Defaulter, it showed that the Defaulter did carefully think, and indeed had taken unusually longer to consider each an every answer to the questions put to him by the Witness in the first statement. The defaulter's serious attitude has made it even more difficult to believe that it was a genuine mistake. I find the Defaulter to have deliberately lied in this statement. ...

... I have reason to belief that the Defaulter realized that a Traffic Index check on him and male CHUI would have been conducted during the investigation and so he changed his version to repair the damage he had made in the first statement. As he was so prepared he was so coherent in the story. That is why the Witness came to notice the difference in the way the Defaulter answered the questions in the first and second statements. ..."

30. I reject the complaint that the Tribunal officer's understanding of the issue was misconceived.

31. This concludes the grounds on which the applicant challenges the finding of guilt against him. The final ground, to which I now turn, concerns, the increase in the award from "reprimand" to "compulsory retirement with deferred benefits".

(5) That the Senior Police Officer treated the applicant unfairly and in breach of natural justice.

32. A senior police officer has power to increase an award. On 8 October 2001 the applicant was summoned to appear before the Senior Police Officer on the next day, 9 October 2001. There is no clear evidence one way or the other as to whether the applicant knew or realized the purpose of the hearing before he walked into the hearing on 9 October 2001. In a later written submission he states that he was taken by surprise when the Senior Police Officer told him that consideration was being given to increasing the award to "compulsory retirement with deferred benefits" and he was further asked, there and then, to show cause why such an increase should not be made. The respondent's case is that he must have realized this was a possible reason for the hearing but that, in any event, he had a reasonable time in which he was able to "show cause" as requested.

33. Procedural fairness does not require a particular period of time to elapse between notification of a hearing and the hearing itself to allow for preparation, regardless in every instance. For example, if a person indicates that he is ready to deal with a matter there and then, he could not later complain that he was not given more time to prepare. What is required is reasonable notice and a reasonable opportunity to present his case adequately.

34. In the absence of any cogent evidence to the contrary I must consider this issue on the premise that the applicant did not know the purpose of the hearing on 9 October 2001 when he attended it. Based therefore on the fact that the applicant was requested to show cause why the award should not be increased at the same time as being told that the purpose of the hearing was to consider a possible increase and given the seriousness of the consequences of an increase to the applicant, I am persuaded that procedural fairness was not applied by the respondent in this regard. Had there been evidence that the purpose of the hearing had been communicated to him at the time of the notification, namely 8 October, the situation would be different. However, on the basis that it was not, the words of Lord Fraser in In re Hamilton : In re Forest [1981] AC at page 1045 apply :

"One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he , or someone acting on his behalf, may make such representations, if any, as he sees fit."

The same sentiment had be voiced by Lord Widgery in the earlier discussion of R.v. Thames Magistrates' Court Ex parte Polemis [1974] 1 WLR at page 1375 :

"... and of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense. ..."

35. I do not accept the respondent's argument that the reasonableness or adequacy of the opportunity afforded to the applicant to prepare his case may be tested by what he said in response on that occasion and on later occasions. The argument being that if he said all he could have said on that occasion and on future occasions, then there must have been no prejudice to him and the time afforded to him must have been reasonable. In my judgment such factors are not a test of the reasonableness of the time given to the applicant. However, they are most relevant to the court's consideration as to whether it should exercise its discretion not to quash the decision following a breach of the rules of natural justice.

36. For the reasons which follow this is a clear case in which the discretion should be exercised because an analysis of events following the breach show it to be a breach of no consequence or disadvantage to the applicant. In short, there was no prejudice to the applicant and had more time been given to him the outcome would have been the same.

37. The matters which lead to this conclusion are briefly these. Firstly, the applicant did not ask for more time when asked to show cause. This, however, is not a major factor in the respondent's favour because the atmosphere of such a hearing (at which the applicant is described as "marching" in and out) would be very different from a court hearing and perhaps not conducive to an applicant making an application for an adjournment. The fact remains however that he chose to make his representations immediately upon being requested to do so.

38. Secondly, his response at the time was lengthy, fluent and comprehensive. It reads as if it were a prepared statement. He, in effect, repeats his defence and mitigation. He is allowed to say everything he wishes to say. He is not interrupted.

39. Thirdly, following the decision he has three further opportunities to make representations. On each of these occasions he could have produced new material, new arguments or elaborated on what had been said before. Also, he could have complained that his original submission had been rushed as he had not been given an opportunity to prepare. Those three occasions were as follows :

(i) His notice of appeal to the Commission of Police and his written submission for that appeal, dated 22 February 2002. Therein, he raises no new matters and makes no complaint about lack of time.

(ii) On 10 July 2002 he made a further written submission by way of appeal. The same point is made.

(iii) Finally, on 5 August 2002 he wrote a letter to the Force Disciplinary Officer. In this letter, for the first and only time, he complains that he did not know the purpose of the hearing before the Senior Police Officer and did not have sufficient time to prepare his case. He does not say however in what way his case would have been different or improved if he had been given more time.

40. In all these circumstances I am satisfied that this is a proper case to exercise my discretion not to quash the decision.

41. Finally, at paragraph 35(b) of Form 86A it is contended that the decision to increase the award was Wednesbury unreasonable. I do not agree. In my judgment it falls far short of Wednesbury unreasonableness to make a decision to compulsorily retire a police officer who has deliberately lied about associating with the man named Chui, bearing in mind the background to the investigation and the proceedings under review which, as I said at the outset of this decision, were important.

42. For all the above reasons the application must be dismissed. I make an order nisi that the costs of the respondent be paid by the applicant.

Remarks: