YU YAU-TAK v. THE COMMISSIONER OF POLICE

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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JUDGMENT

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1. The applicant challenges by way of judicial review several decisions made following disciplinary proceedings against him under the Police (Discipline) Regulations.

The First Decision

2. The first decision challenged is a finding by Superintendent of Police Tsang Choi-on (Mr Tsang) that the applicant was guilty of contravening a police order forbidding association with "known triad personalities and/or known criminals". In this respect, Mr Tsang found that "known" meant "generally known", and not necessarily known to the applicant.

3. In Cheng Wai Kit, (1996, No. MP3208 - unreported). Sears, J. found that "known" meant known to the officer. For the reasons given by Sears, J., I agree with this conclusion. So does Mr Westbrook. Properly, Mr Westbrook conceded that this finding could not stand.

4. Accordingly, I quash this finding and remit the matter to Mr Tsang for reconsideration of this charge in the light of what was said by Sears, J. Mr Tsang might well think that the applicant should be given a further opportunity to submit evidence on his question. He should then hear argument on whether, considering all the evidence, he should be satisfied beyond a reasonable doubt that the applicant knew that some or all the persons named were triad personalities or criminals.

The Second Decision

5. The applicant also challenges the finding of guilt on Charge F. This charge was that, on 24 March 1994, he made "a statement in the course of your duty in the Formation Occurrence Book namely that you had logged on duty at 0825 hours, such a statement being false in a material particular".

6. In the prosecution's written outline opening, it was said "It was also discovered that he was logged on duty in the formation occurrence book at 0825 hrs on 24.3.94 when in fact he did not return to Hong Kong from China until 0837 hrs.".

7. Mr Dykes argues that the charge against the applicant lacked a statement of the alleged material particular. He says this was described in the prosecution written closing submission thus -

"10. Charge (F) relates to making a statement false in a material particular on 24-Mar-94 in that the defaulter had logged on duty in the OB at 0825 hrs. (Exh 1). However an examination of the defaulter's traffic index record showed that he returned to Hong Kong at Lowu at 0837 hrs on 24-Mar-94. (Exh 10). This was 12 minutes after he had purportedly logged on duty in the OB in the office situated in Tai Po. As such the OB entry must necessarily have been false."

8. The false statement alleged is "you had logged on duty at 0825 hours". It is not possible to divide this statement into particulars; that is, parts. It describes only one act. It follows that there is only one particular in the statement alleged; and, if there is only one particular in the statement, it cannot help but be the material one. It must be the material one for there is no other. It is only where it can be said that a statement alleged to be false contains more than one particular that there must be a designation of which of them is said to be the material particular. Mr Dykes says that the material particular is described in paragraph 10 of written closing submission. But this is not so. It adds nothing to the identity of the particulars of the false statement. What paragraph 10 does is to describe in what way it is alleged that the statement was false. It does not identify which of several particulars in the allegedly false statement is the material one. Indeed, as I have said, in this case this would not have been possible. The purpose of the requirement in a charge of this nature to identify the material particular in a false statement is so that the officer charged and the tribunal know which of several particulars in the statement is alleged to be the material one. If there is only one particular, this does not arise; it is sufficient to recite the statement containing only the one particular, and say that it was false in this material particular. This is what the charge said in this case, and it is not, in my view, deficient.

9. Accordingly, I find that the complaint regarding this decision is not made out.

The Third Decision.

10. The applicant complains that, on 12 and 24 January 1996, Mr Tsang spoke in private to the prosecuting officer, and this gives rise to an apparent bias.

11. On the first occasion, Mr Tsang says he spoke to the prosecuting officer in order to obtain the telephone numbers of the Police Legal Adviser and the Superintendent in charge of disciplinary matters. This was so that he could take advice on whether to allow the presence of the Chairman of the Local Inspectors Association at the hearing. Mr Dykes accepts that Mr Tsang's explanation disclose the actual circumstances of the meeting, and these do not permit the conclusion that there was the appearance of a real danger of bias because the matter of the presence of the Chairman was collateral to the proceedings having no bearing on fairness.

12. On the second occasion, the situation was, Mr Dykes argues, different. Then, an issue had arisen that had a direct bearing on the charges. The prosecutor wanted some evidence admitted. The defence objected. The record of the proceedings shows that Mr Tsang said that he would adjourn to consider the objection. He did so at 2.50pm. He resumed the hearing at 3.15pm. He overruled the objection. There is no mention on the record that the prosecutor was with Mr Tsang at this time. The applicant says that the prosecutor was alone with Mr Tsang during this time for ten minutes. Mr Tsang's response to this was conveyed to the applicant through the Secretary for the Civil Service. Mr Tsang said that, during the proceedings, there were numerous occasions when the prosecutor was with him "alone in my office immediately before, during the adjournment of or immediately after the formal proceeding in order to iron out administration and technical issues. I cannot recall specifically the exact content of these conversations as my notes only recorded down things said and done pertinent to the trial. Nevertheless, I can say categorically that nothing regarding the proceeding proper was discussed in any of these occasions." In his affirmation filed in these proceedings, Mr Tsang says much the same thing. He says "Frankly, I do not now recall the substance of any conversation I had with the PO on this occasion but I can confirm again that I did not and would never have spoken to him alone about the merits of this application or the case in general. I note in passing, that no complaint about my conduct or that of the PO was made during the defaulter proceedings, when events were fresher in everyone's memory." He says that contact between operational police officers during defaulter proceedings is unavoidable. "However I am and was well aware of the dangers of speaking to any party about substantive matters concerning the case during the proceedings and took great care throughout to avoid doing so."

13. Mr Dykes relies on Reg. v Gough [1993] AC 646. In that case, the test was stated by Lord Goff at 670 thus -

"Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of the party to the issue under consideration by him ..."

14. I read this as requiring me to ascertain what actually happened in the incident; not to look at the matter only from the point of view of the observer seeing the prosecutor being alone with Mr Tsang during the adjournment. This is made clear, I think, by an earlier statement by Lord Goff. He said -

"... I think it unnecessary ... to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time."

15. Lord Woolf, at page 673, says -

"When considering whether there is a real danger of injustice, the court gives effect to the maxim [justice must not only be done but seen to be done], but does so by examining all the material available and giving its conclusion on that material. If the court having done so is satisfied there is no danger of the alleged bias having created injustice, then the application to quash the decision should be dismissed."

16. The material available in this case reveals that, as a matter of probability, nothing was said by the prosecuting officer to Mr Tsang, or by Mr Tsang to the prosecuting officer, that would give rise to any real danger that Mr Tsang would have been biased against the applicant. I say this is so as a matter of probability because there is no evidence that the prosecuting officer went to visit Mr Tsang alone in any kind of surreptitious way; the fact that the applicant knew about the visit says to the contrary. It is hardly likely that, if the intention had been other than innocent, that Mr Tsang and the prosecuting officer would have met so openly.

17. Having examined the material available to me, I am satisfied that there was no real danger of bias on the part of Mr Tsang.

18. This is not to say that what happened in this case should be condoned. It gave rise to the suspicion that the relationship between Mr Tsang and the prosecuting officer during the hearing was too cosy. Of course I understand that operational police officers often have a close relationship. An officer judging a case may well be the friend of the prosecuting officer. There is nothing wrong with this. It is a situation that frequently arises in the practice of the courts. But that is why, when a judge and counsel are on friendly terms, they will seek to avoid social contacts during the hearing of a case in which they are both involved. This is not because counsel will influence the judge, or seek to do so, but it is to avoid any casual observer, seeing the judge and counsel chatting together, getting the impression that this may be happening. It is to avoid just what has happened in this case; the need to have an investigation into the incident to determine whether or not there was any real danger of bias arising.

19. I find that this complaint is not made out.

The Costs

20. I have heard no argument on costs, but I will record my preliminary views and made an order nisi in the hope this will avoid a further hearing.

21. On the first complaint, the applicant has made out his case. There seems no reason why costs should not follow the event. I make an order nisi that the applicant have his costs on this complaint.

22. The applicant has failed on his second complaint. Again, there seems no obvious reason why the respondent should not have his costs in this respect. I make an order nisi that the respondent have his costs in respect of the second complaint.

23. Regarding the third complaint, the applicant has failed to establish his case, but it seems to me that the incidents concerned gave rise to a reasonable suspicion in the mind of the applicant; a suspicion that needed investigation. The respondent must carry the responsibility for this suspicion arising. In this situation, I am inclined to think that the just order would be that there be no order as to costs, and I make an order nisi accordingly.