FU KIN CHI WILLY v. ATTORNEY GENERAL

1996 No. MP 1284

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The Applicant Fu Kin Chi Willy, a Senior Inspector of Police of the Royal Hong Kong Police Force was charged with two disciplinary offences under the Police (Discipline) Regulations, namely:

(A) Charge, Contravention of Police Order, contrary to Regulation 3(2)(e) of the Police (Discipline) Regulations, 1982

Particulars: Mr. Fu Kin Chi, Senior Inspector of the Royal Hong Kong Police Force, you are charged that on the afternoon of 4.1.94 at Room 233 Kowloon West Regional Headquarters, 190 Argyle Street, Kowloon in Hong Kong, you refused to obey a lawful order given to you by Mr. S.B. Tarrant, Chief Inspector of the Royal Hong Kong Police Force, namely to answer questions relating to a police investigation.

(B) Charge, Conduct to the prejudice of good order and discipline contrary to Regulation 3(2)(c) of Police (Discipline) Regulations, 1982

Particulars: Mr. Fu Kin Chi, Senior Inspector of Royal Hong Kong Police Force, you are charged that between 2340 hrs. on 4.2.1994 and 0045 hrs. on 5.2.1994, at Room 233 Kowloon West Regional Headquarters, 190 Argyle Street, Kowloon in Hong Kong, you being a serving police officer of Royal Hong Kong Police Force failed to assist in a police investigation being conducted by Mr. S.B. Tarrant, a Chief Inspector of the Royal Hong Kong Police Force, such conduct being to the prejudice of good order and discipline.

2. On the 17th of July 1995, the applicant was convicted by Superintendent F.J. Oliveira, the Appropriate Tribunal of the B charge but acquitted of the A charge. He appealed to the Commissioner of Police against the finding of guilt in respect of the B charge. The appeal was dismissed on 20th November 1995 and the applicant was informed that a report of the case would be forwarded to the Governor in accordance with Regulation 27(1) of the Police (Discipline) Regulations.

3. On 3rd December 1995, the applicant made representations to the Governor pursuant to Regulation 27(2) Police (Discipline) Regulations with a view to set aside the finding of guilt and/or to impose a penalty other than dismissal or compulsory retirement.

4. On 17th January 1996, the applicant was informed by the Secretary for Civil Service that a decision had been made that the applicant be compulsorily retired and be granted a deferred pension.

5. The present application was made by the applicant on 18th of April 1996 for a judicial review for an order of certiorari to quash the decision of Superintendent F.J. De Oliveira that the applicant was guilty of the B Charge, the confirmation of such decision by the Commissioner of Police and the decision of the Secretary for the Civil Service to compulsorily retire the applicant from the police service.

6. At all material times, the applicant was a Senior Police Inspector. He joined the service as a police constable in 1980. He was promoted to Inspector of Police in 1984 and advanced to Senior Inspector of Police in 1989.

7. In late July 1993, a case of Assault Occasioning Actual Bodily Harm and Criminal Intimidation occurred at the Amigogo Karaoke in Tsimshatsui East. The alleged victims of the case were middlemen in connection with the supply of a number of portable phones. The supplier was paid about HK$240,000.00 for the portable phones. He later disappeared with the money and the portable phones were never delivered.

8. On the night of the incident, the middlemen went to the Amigogo Karaoke to explain to the parties who had lost money. The middlemen were assaulted and unlawfully detained. During the assault, a person entered the room and claimed to be "Fu Sir" of DATS YT. He then assaulted one of the middlemen and threatened him to come up with the money. A report was subsequently made to the police.

9. As a result of the investigation by the police, it was suspected that the applicant was involved in the dispute in the Amigogo karaoke. He was interviewed and then put on an identification parade in connection with the case.

10. Further investigation led the police to suspect that the applicant had allowed another person to pay for the fees of a portable telephone that he had used for a long period of time. He was questioned about such portable telephone and there was reason to believe that he made a false statement. He was also suspected to be involved in organising an unauthorised chit fund involving other police officers.

11. The applicant was interviewed by Chief Inspector Tarrant on a number of occasions in the period between 13th of September 1993 and 5th of February 1994 as follows:

1. On 13th of September 1993 between 1540 hrs. and 1614 hrs., the applicant was interviewed under caution. The applicant said, " I haven't done it and I have nothing to say."

2. On 13th of September 1993 between 1705 hrs. and 1855 hrs., the applicant was interviewed under caution. He said he did not do it and did not want to say anything. He was further questioned. He said he could not remember if he had been to the Amigogo Karaoke on the day in question. He denied knowing any of the people involved. He denied ever said to anyone he was "Fu Sir of DATS TST.". He also denied having assaulted anyone nor intimidated anyone.

3. On 14th of September 1993 between 1640 hrs. and 2240 hrs., the applicant was interviewed under caution. With his consent, he was taken to the Amigogo Karaoke to be confronted by the staffs of the karaoke. He was not recognised. The applicant also said he had never been to the Amigogo Karaoke before.

4. On 30th of December 1993 commencing from 1056 hrs., the applicant was interviewed but not under caution. He was asked questions about his family background and the business activities of his father in law. He was also asked about a portable phone that his wife used. He said the phone in fact belonged to someone else although he himself also used it.

5. On 4th of January 1994 between 1630 hrs. and 1725 hrs., the applicant was interviewed, again not under caution. Before he was even asked any question, he categorically stated that he did not want to answer any question about the portable telephone number 94879494 or any other matter that was put to him. He was nevertheless asked a total of 12 questions, including questions on the discrepancies between his earlier statement and that of his wife on the portable telephone to which the applicant said he did not wish to make any statement.

6. On 4th of January 1994 between 1729 and 1850 hrs., the applicant was again interviewed not under caution. Before he was asked any question, he said he did not wish to answer any question. When he was told that as a police officer he had the duty to answer question put to him in furtherance of an investigation. Even after he was ordered to answer the questions to assist in the investigation of the interviewing officer, the applicant remained silent. He was then told that the answers to the questions would not be used against him in any criminal proceeding but only in disciplinary matter. The applicant said he still would not answer any question. He was again ordered to answer the questions and he against refused.

12. The applicant was then reminded by another senior officer of his duty to answer questions relating to his duty which were asked of him by a superior officer in the course of an investigation and he was reminded that he would be subject to disciplinary proceedings if he failed to answer the questions. The applicant still refused. He also said if the Commissioner of Police would dismiss him for his failure to answer the questions, it was up to him. He also said he himself was considering the matter about his resignation.

13. The applicant was then asked why he refused to answer the questions. He refused to say anything. He was asked about the portable telephone 94879494 and the chit fund and on matters about the assault and criminal intimidation. He indicated that he did not wish to say anything. The only questions he answered were questions about whether he knew some other police officers. When it was pointed out to him that the questions about the chit fund were not in any way connected to the assault or the criminal intimidation, the applicant still refused to answer the questions.

7. The applicant was interviewed again between 2340 hrs. on the 4th of February and 0040 hrs. on the 5th of February 1994. He was expressly told that the statement obtained from him was not to be used in criminal proceeding against him but for internal police investigation including possible disciplinary matters. He was reminded that as a police officer, he was obliged to assist. The interviewing officer was unable to say what was the nature of the disciplinary action which might be taken against him. But a report would be submitted to the Police Legal Division after completion of the enquiries. The applicant refused to answer any of the questions put to him.

14. Even before he was interviewed on the 4th of February 1994, the applicant through his solicitor, wrote a letter to the Commissioner of Police saying that the applicant was not willing to be interviewed by or to give any statement to the Commissioner and/or his officers and he would not assist any investigation or enquiries nor would he answer any question as might at any time be put by the Commissioner or his officers to the applicant.

15. The events on the 4th of January 1994 formed the subject matter of the A charge and the events on the 4th and 5th of February 1994 formed the subject matter of the B charge.

16. After a hearing that lasted from 31st March 1995 to 5th of July 1995, the applicant was found guilty of the B charge and acquitted of the A charge. The hearing was presided over by Superintendent F.J. De Oliveira. The prosecutor was Chief Inspector C.R. Hill-Brown and the applicant was defended by Senior Inspector Tse Leung Wah.

17. In his judgment, the Superintendent made the following findings:-

"29. In all, I find that on 4.1.94, immediately before and whilst Exhibit 4 was taken (to which the 'A" Charge specifically relates), events for the defaulter had taken several turns. I accept DCIP Tarrant's version that when he ordered the defaulter to answer questions, he did so in the belief and with a view to pursuing the discipline aspect only. Under the changing circumstances, I also find it reasonable to accept, however, that the defaulter could well have confused the situation and he may have decided not to reply to what he thought were self-incriminating questions in a 'crime' context.

30. As such, I find that the defaulter deserves some benefit of doubt as to the situation that he saw himself in. He may well not have perceived the order to be what it was intended to be, and I find him Not Guilty of 'A' Charge "Contravention of Police Orders". My beliefs in this respect are reinforced by the fact that the defaulter was again treated as a criminal suspect at the ID Parade eventually held on 15-1-94.

31. As regards the second charge, the approach of DCIP Tarrant from the start of the interview session on 4-2.94 was entirely different. I believe that at that point DCIP Tarrant had reached a firm conclusion that a criminal charge against the defaulter, on the facts in question, was impossible, and that disciplinary action was thus called for. At the start of the interview, DCIP Tarrant denied the defaulter's request to be accompanied by his solicitor. It must have been clear to the defaulter, a trained and experienced CID officer himself, that if the interview was for criminal enquiries the value of any information would be defeated if such a request was denied. And he must have known that DCIP Tarrant was well within his rights to exclude the solicitor for a purely internal enquiry.

32. The forms used to record the information were also less formal, being of the 'witness' as opposed to 'suspect' variety. The recording of the interview started with a very clear statement by DCIP Tarrant as to its purpose. I believe that at this point the defaulter chose to knowingly use the 'excuse' (in this circumstance) of the "B.O.R." etc to avoid answering reasonable questions relating to the discipline enquiry, which I believe he could properly be expected to have known that he had to answer. I did not find the defaulter or his solicitor Mr. Ma to be credible or forthright in their evidence concerning this interview, whereas I found DCIP Tarrant to be frank and comprehensive in explaining developments and why he acted in the manner he did. He was entirely plausible.

33. The defaulter must also bear the responsibility for accepting the legal advice given to him by Mr. Ma.

34. I believe that in respect of the 'B' Charge the defaulter deliberately tried to obstruct a legitimate enquiry into apparently well founded allegations as to his possible misconduct. This attacks the very basis of integrity, professionalism and discipline upon which this Police Force relies. Accordingly, I find that the 'B' Charge is appropriate and fully proven, and I find the defaulter 'Guilty' of this charge."

18. Subsequent to his conviction of the B charge, the applicant wrote to Chief Inspector Hill-Brown, the prosecutor asking him to confirm the suggestion that on 2 separate occasions on 12th of June 1995, he was seen together with Superintendent De Oliveira coming out from his office. Chief Inspector Hill-Brown was also asked if he had spent any other time or on any other occasions with Superintendent De Oliveira between 31st March 1995 and 5th of July 1995.

19. In response, Chief Inspector Hill-Brown in a memo to the Commissioner of Police stated :-

"I can confirm as the Prosecuting Officer in accordance with my duties there were a number of occasions I had to see Mr. F.J. De Oliveira in addition to coming across him on social occasions during the period in question. I do not have records of all these meetings. It is worth adding Mr. Che, Mr. Fu's defence had worked previously with adjudicating officer and Mr. Che had conversation not in my presence during the period in question."

20. Superintendent De Oliveira in his affidavit dated 10th of August 1996 also stated :

"On 11 May 1995, I did deal directly with the Prosecuting Officer in accordance with Regulation 22 of the Police (Discipline) Regulations, Cap. 232 in directing that Charge A be amended I have no recollection of having met Fu Kin Chi Willy in the course of duty or otherwise prior to conducting the proceedings. I did, however know his defending officer Tse Leung Wah, Senior Inspector, who served with me at Government House from 1991-1992. I had occasions to speak to him before, during and after the proceedings on private matters completely unrelated to the proceedings. I also know the Prosecuting Officer, C.R. Hill-Brown, Chief Inspector, whom I came to know through my work around 1988. I also had similar occasions to meet him on matters completely unrelated to the proceedings. As the proceedings were quite lengthy and had to be held concurrent to all my and the other officers' duty commitments, there was a need for administrative and logistical arrangements to be made for the convenience of all parties. When required, I spoke with the parties on these arrangements and when necessary, details were published by memorandum."

21. The applicant's subsequent appeal to the Commissioner of Police and petition to the Governor were unsuccessful and he was compulsorily retired. A letter to such effect was sent to him by the Secretary for the Civil Service on 17th of January 1996.

22. The present application was only taken out on 18th of April 1996, more than 6 months after the decision of Superintendent De Oliveira and almost 5 months after the dismissal of the appeal by the Commissioner of Police. However, the Attorney General, represented by Mr. Bradley did not take any issue on the question of delay and I shall pay no regard to it.

23. In support of the application, Mr. Dykes on behalf of the applicant relied on two matters, namely:-

1. Issue of self-incrimination. It was suggested that the applicant had been suspected to be involved in criminal offences and had been so investigated when he was questioned in the interviews. It was suggested that when he was interviewed again on 4th of February 1994, he was still treated as a suspect and he was so interviewed. When Chief Inspector Tarrant questioned the applicant purportedly on the basis that he was only investigating into disciplinary matters and that answers given by the applicant would not be used against him in criminal proceedings, he was not acting bona fide. As the applicant was being interviewed as a suspect, he was entitled not to answer any questions put to him.

24. In any event, when it was not made clear to the applicant what disciplinary matters that Chief Inspector Tarrant was investigating, he was not acting fairly and it was not unreasonable for the applicant to refuse to answer those questions and such refusal could not amount to conduct to the prejudice of good order and discipline.

2. By reason of the private meeting between Chief Inspector Tarrant, the prosecutor and Superintendent De Oliveira on various occasions in the course of the disciplinary hearing, there was a risk or possibility of bias which had not be dispelled.

25. The charge for which the applicant had been convicted was "Conduct to the prejudice of good order and discipline" contrary to Regulation 3(2)(C) of Police (Discipline) Regulations. The particulars of the charge defined the time frame of the offence as between 2340 hrs on 4.2.94 and 0045 hrs on 5.2.94. But to properly understand the nature and impact of the applicant's conduct during such time frame, it was permissible to take into consideration his behaviours throughout the enquiries of him by Chief Inspector Tarrant.

26. After he was made aware that the police was interested in the portable telephone suspected to be used by him but paid for by another, the applicant had clearly decided not to answer any question put to him nor to co-operate with the police in the enquiries.

27. Hence in the first interview on 4.1.94, before he was asked any question, he stated that he did not wish to answer any question concerning the portable telephone in question. He then refused to answer any of the questions put to him. In the second interview on the same day, he adopted the same attitude. He refused to answer any of the questions put to him after he was told that the answers he gave would not be used against him in any criminal proceedings.

28. He was adamant even after he was warned of his duty and that his refusal to answer the question would lead to disciplinary action against him. Not only did he refuse to answer the question relating to the events in the Amigogo Karaoke, he also refused to answer questions pertaining to the said portable telephone and the allegation that he was involved in the organisation of a chit fund.

29. Before he was interviewed on the 4th of February 1994, through his solicitor, the applicant again indicated that "he was not prepared to be interviewed and to give any statement" and "he would not assist any investigation or enquiries nor would answer any question as might at any time be put to him."

30. The applicant's conduct and behaviour during the actual interview on the 4th and 5th of February 1994 was a clear manifestation of such an attitude and it was against such background that his conduct must be considered.

31. The applicant was told that the statement would not be used against him in criminal proceeding. He was reminded that it was his duty as a police officer to assist in the investigation. He knew precisely what the police was investigating into. Yet the applicant clearly adopted an uncooperative attitude by insisting to know what were the precise disciplinary offence that he was alleged to have committed and then refused to answer any of the questions put to him.

32. It must not be ignored that as a member of the Police Force, the law imposed upon him heavy obligation. He was deemed to be always on duty. He must obey all lawful orders of his superior officers. He had the duties to prevent and detect crimes and offences and to protect life and property etc.

33. What the applicant did or failed to do during the interview on the 4th of February 1994 must be a wilful neglect of his duties. Although he had not been specifically ordered to answer the questions put to him, in the light of the circumstances of the case, the implication was clear, particularly after he had been reminded of his duties. The applicant's conduct was a wilful disobedience of a lawful order from his superior officer.

34. Such conduct on the part of the applicant, in the absence of any lawful excuse or reasonable explanation, must be conduct to the prejudice of good order and discipline of the Police Force.

35. The applicant seek to justify such conduct on the basis that he was not obliged to answer any question which might criminally incriminate him. For the purpose of the present application, I am prepared to accept that the duties and obligation of a police officer under the Police Force Ordinance and its subsidiary legislation are subject to the overriding principle and a person is not obliged to answer any question which may incriminate him in any criminal proceeding, a point which Mr. Bradley eventually conceded.

36. But at the commencement of the interview, the applicant was specifically told that the statement taken from him would not be used against him in any criminal proceedings and that it was to be used for internal police investigation, including possible disciplinary matters or actions against him.

37. Instead of taking the statement on a Pol. 857 which is record of interview form for taking statement from a suspect, the applicant's statement was taken on a Pol. 154 which is a statement/report form for a witness and the applicant signed on the form to signify his understanding and agreement.

38. It must not be overlooked that the applicant had been a police officer for over 10 years and at the material time he held the position of a senior inspector, he must be aware of the nature of the interview and the purposes for which his statement could be used.

39. There was no basis to suggest that Chief Inspector Tarrant was not acting bona fide. Superintendent found that Chief Inspector Tarrant had reached a firm conclusion that a criminal charge against the applicant was not possible and that disciplinary action was called for. He also found that the applicant chose knowingly use the excuse to avoid answering reasonable questions relating to the disciplinary enquiry. He was clearly justified in coming to the conclusion as he did on the evidence before him.

40. I do not wish to speculate as to why the applicant refused to answer the questions put to him. Perhaps he thought that he would be exposed to less risk by refusing to answer the questions than answering them. He clearly had made a calculated decision and he must accept the consequences of such decision.

41. The applicant also complained that it was unfair for the interviewing officer not to tell him the disciplinary offences that he was suspected to be involved. In my view, there was no need for the interviewing officer to identify the actual disciplinary offences to the applicant at all and such failure could not constitute any unfairness.

42. There could be no doubt that the applicant was fully aware of what he was being suspected of. There could be no doubt that he knew what questions that the interviewing officer intended to ask him. It was precisely due to his knowledge on such matters that he, through his solicitor, indicated to the Commissioner of Police that he did not wish to be interview and that he would not give any statement before he was interviewed on 4th of February 1994.

43. He had been asked questions in the previous interviews about his possible involvement in the incident at the Amigogo Karaoke. He had been asked questions about the portable telephone. He had been asked questions about his organising a chit fund. At the interview in question, it was plainly put to him that triad members were involved in the incident at the Amigogo Karaoke and he was asked if he knew them. He was again asked about the portable telephone in question. He simply said he wished to exercise the right to remain silent as advised by his solicitor.

44. There was nothing unfair or unreasonable in the way he was treated by Chief Inspector Tarrant at the time of the interview and the Superintendent was justified in coming to the conclusion that the applicant deliberately tried to obstruct a legitimate enquiry into apparently well founded allegations as to his possible misconduct.

45. I now turn to the question of the allegation of bias. There is no dispute that the correct approach for an appellate court or a court exercising supervisory function on the question of apparent bias has been correctly set out in the judgment of Lord Goff in Reg. v. Gough [1993] A.C. 646 when he stated at Page 670,

"In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied to a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, 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 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. Finally for the avoidance of doubt, I prefer to state the test in terms of real danger rather than likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was 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 a party to the issue under consideration by him; though, in a case concerned with bias on the part of a justices' clerk, the court should go on to consider whether the clerk has been invited to give the justices advice and, if so, whether it should infer that there was a real danger of the clerk's bias having infected the views of the justices adversely to the applicant."

46. The applicant complained that the prosecutor Chief Inspector Hill-Brown and the Adjudicating Officer, Superintendent De Oliveira had been together in private on at least three and possible more occasions in the course of the proceeding.

47. It was not disputed that Superintendent De Oliveira met Chief Inspector Hill-Brown on 11.5.1995 to discuss the form of an amendment in relation to the A charge. The applicant was of course subsequently acquitted of the A charge.

48. The applicant's solicitor, Mr. Ma suggested that he saw Superintendent De Oliveira and Chief Inspector Hill-Brown twice coming out from the same office on 12.6.1995. The Superintendent himself suggested that there could be other occasions when he was together with Chief Inspector Hill-Brown. The applicant complained that the Superintendent had not deposed to each and every of those occasions and that they did not discuss the case on those occasions.

49. One must not ignore that both Superintendent De Oliveira and Chief Inspector Hill-Brown are senior police officers probably working in the same police station and they were known to one another. There must be many occasions when they met on official duties unrelated to the proceeding in question or socially. It was unrealistic to expect them to be able to remember and account for each of those occasions they met.

50. The Police (Discipline) Regulations make clear provision that in a disciplinary enquiry into alleged misconduct against an inspector, the "appropriate tribunal" shall be police officers unless a civilian board is otherwise appointed. Both the prosecutor and the defence representative have to be police officers.

51. It must be within the contemplation of the legislation that there would be circumstances in which those officers will meet one another on matters unrelated to the disciplinary enquiry. Such meetings cannot per se give rise to any apparent bias.

52. It is, in my view wrong to suggest that just because they were seen together, there was a real danger of bias. Superintendent De Oliveira stated in his affidavit that:-

"I also know the Prosecuting Officer, C.R. Hill-Brown, Chief Inspector, whom I came to know through my work around 1988. I also had similar occasions to meet him on matters completely related to the proceedings. As the proceedings were quite lengthy and had to be held concurrent to all my and the other officers' duty commitments, there was a need for administrative and logistical arrangements to be made for the convenience of all parties. When required, I spoke with the parties on these arrangements and when necessary, details were published by memorandum."

53. Superintendent De Oliveira's assertion had not been challenged by the Defence Representative.

54. I have considered the entire circumstances of the case. In my view there is no risk of any bias against the applicant by Superintendent De Oliveira. Indeed looking at the evidence and the findings of Superintendent De Oliveira both at the stage of the submission of "No case to answer" and at the final stage, the applicant had been dealt with as fairly as one could reasonably expect.

55. I have considered the evidence as well as counsel's submission carefully. I am satisfied that there was no procedural irregularity which justified any intervention by this court. Superintendent De Oliveira was perfectly entitled to come to the conclusion as he did that the applicant was guilty of the B charge against him. The applicant had not been able to show that there was any aspect of the decision making process which could said to be Wednesbury unreasonable.

56. The Commissioner of Police was clearly entitled to confirm the decision of Superintendent De Oliveira and the decision of the Secretary of Civil Seville could not be faulted.

57. There is no merit in the application by the applicant and the same must be dismissed.

58. I also make an order nisi that the applicant is to pay the costs of the respondent to be taxed if not agreed. The order nisi on costs is to be made absolute 14 days after the handing down of the judgment.

(W. Yeung)

Judge of the High Court