LUK SIU FAI v. SECRETARY FOR JUSTICE on behalf of COMMISSIONER OF POLICE

HCAL37/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.37 OF 2004

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J U D G M E N T

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1. The applicant, who was a serving police officer seeks a judicial review of a decision by a Police Disciplinary Tribunal which decided to severely reprimand him and dismiss him from the Police Force with effect from March 2004.

2. The Adjudicating Officer (“AO”) at the tribunal hearing had found him guilty of three offences, namely, conduct calculated to bring the Police Force into disrepute, making a statement which was false in a material particular and associating with a known criminal or triad personality.  After the hearing, in accordance with the procedure, the AO referred his findings to a Senior Police Officer (“SPO”) for an award.  The SPO made an order of a severe reprimand on the first two charges with an additional order of dismissal on the first charge.  He reversed the decision on the third charge and substituted a finding of not guilty.  The procedure then required the findings to be forwarded to the Force Disciplinary Officer (“FDO”), who, in this case, confirmed the SPO’s order.  Finally an appeal in writing was made to the Deputy Commissioner who dismissed the appeal.

3. No complaint is made by the applicant about any procedural irregularities.  His complaint is that the decision made by the AO to find him guilty on the first two charges, as confirmed by higher authority, was irrational, unreasonable and illogical.  If the decision was valid, he also seeks to judicially review the order of dismissal on the same grounds.  I will deal with each of his grounds in due course.  I will first set out, in outline form only, the background.

Background

4. In the course of an investigation into a suspected case of unlawful detention the applicant, in the course of an interview at which three police officers were present, informed the police that he had gone to Macau to gamble.  He lost all his money and then borrowed $300,000 from a loan shark in Macau.  He lost all that money as well.  He was escorted back to Hong Kong by a debt collector.  They went to his flat, where he lived with his parents.  In two transactions about 80% of the loan was repaid with the help of his parents and there were negotiations as to how and when the balance would be repaid. 

5. A record of the interview was made by all three police officers who witnessed it.  In addition, immigration records showed that the applicant and the debt collector, a Mr Chan, had arrived back in Hong Kong at the same minute and went through the same immigration control counter.  

6. At the hearing, the evidence relied on was the three officers’ records of interview (and their oral testimony) and the immigration records.  A statement from Mr Chan, the debt collector (which was factually consistent with the records of interview) was produced by consent.  Mr Chan did not give oral testimony and in his reasons for his decision, the AO did not refer to Mr Chan’s statement or place any reliance on it.  In respect of both charges which were subsequently upheld, he correctly set out the ingredients which needed to be proved, he listed the evidence upon which he relied and stated that he found the charges “fully proved” and stated that he was “fully convinced” of guilt. 

The grounds for judicial review

7. At the time of the drafting of the Notice of Application for Leave to Apply for Judicial Review, the applicant was legally represented.  The document had been drafted by his solicitors.  On 24 November 2004, however, his legal aid certificate was discharged and he therefore appeared in the Judicial Review hearing in person.  He made no application for an adjournment.  The proceedings and the procedure were fully explained to him. 

8. The Notice contains nine grounds for review.  There is an element of repetition such that there are in fact five issues concerning the findings of guilt and one concerning the award of dismissal.  I will set each issue out in full.

9. Issue 1 :

“1.

The AO made the said findings and awards without taking fully consideration of the following important points : (i) the prosecution had adduced no evidence from the creditor or the debt-collecting agent and produced IOU note to prove the charge; (ii) the alleged debt-collecting agents did not identity the Applicant in an ID-parade and (iii) the prosecution had adduced no evidence in the proceedings that the Applicant did gamble or borrow money from a loan shark during his visit to Macau on 30th September 2002.”

10. Points (i) and (ii) above are factually correct.  Point (iii) is incorrect.  The evidence came from the interview with the applicant and the immigration records.  

11. However, points (i) and (ii) were made to the AO in the course of the hearing by the applicant’s representative.  He considered them and, by implication, found that the weight of the evidence upon which he relied was not diminished or diluted by those matters relied on by the applicant in points (i) and (ii).  It cannot be said that such an approach was irrational or unreasonable (in the judicial review sense).  The AO made proper findings of fact based on cogent evidence which he believed.  Put simply, the applicant had provided all the relevant facts in the course of the interview which the AO was satisfied had been accurately and properly recorded by the three police officers.

12. Issue 2 :

“2.

The AO relied solely on the disputed verbal admission allegedly given by the Applicant to DSIP MA WING KEUNG (PW4) in the presence of SGT 19644 (PW6) and DSGT 21733 (PW7) during their 15-minute interview with the Applicant on 2nd October 2002.  However, there were discrepancies in the testimonies of these 3 PWs as to whether the Applicant had mentioned in the interview of going to Shun Tak Centre with 2 friends to negotiate repayments with the debt collecting agent.  These discrepancies threw doubt on the accuracy of the memories of the interview of these 3 PWs.”

13. The discrepancy relied on in this ground is that the first police officer recorded the fact that the applicant and others returned to the Shun Tak Centre for further negotiations about repayment after the first tranche of money had been paid over.  The second police officer’s record did not include this fact and in cross-examination said he did not recall it.  The third officer did refer to it but did not refer to the fact that more than two people (i.e. the applicant and Mr Chan) went to the Shun Tak Centre.

14. Again, this discrepancy was referred in the defence submissions at the hearing.  The AO was alive to it.  In truth, it is not surprising that the AO regarded it as a minor and insignificant discrepancy.  The point is well made that had there been no discrepancies at all there might have been more cause for concern about possible collaboration.  However, balanced against this discrepancy was the fact that, in their own words, each police officer had recorded a number of more important facts consistently.  For example that the applicant was told that the interview was in connection with the unlawful detention case, that the applicant said he knew nothing about the unlawful detention case, that he had gambled and lost and borrowed and lost in Macau, that he had been escorted back by a debt collector and that he had partially repaid the loan from the loan sharks and had taken part in further repayment negotiations. 

15. In these circumstances there is no substance in the complaint that it was irrational to rely on the evidence placed before the AO.  The applicant elected not to give evidence so the only evidence which fell for consideration was that of the police officers at the interview and the immigration records.  One defence witness was called who confirmed that the applicant was not identified at an identification parade by the debt collector.

16. Issue 3 :

“3.	Furthermore, if (which is not admitted) there was evidence to prove the Applicant did gamble or borrow money from a loan shark during his visit to Macau on 30th September 2002, however as it took place in Macau, thus it is out of jurisdiction of the Tribunal.”

17. There is no merit in this point for two reasons.  Firstly, the events complained of continued after arrival in Hong Kong.  It was a continuing event.  Secondly, there is nothing to be gained, in any event, from the fact that the events commenced in Macau.  The Police (Discipline) Regulation, Cap.232 are not subject to jurisdictional restrictions which might apply in criminal proceedings.  Whether a police officer is on or off duty, in or out of the country, his conduct is still open to investigation.

18. Issue 4 :

“4.

Moreover, on 2nd October 2002, DSIP MA WING KEUNG (PW4) should caution and / or gave a warning to the Applicant before the interview took place in the presence of SGT 19644 (PW6) and DSGT 21733 (PW7) but DSIP MA WING KEUNG (PW4) failed to do so.  However, the disputed verbal admission allegedly given by the Applicant to DSIP MA WING KEUNG (PW4) in the same interview was accepted as evidence by the AO.  Under such circumstances, the said findings ought to be quashed.”

19. It is factually correct that the applicant was not given a formal caution prior to the interview.  There was no requirement to do so.  The interview commenced as part of an investigation into an unlawful detention case in which the applicant was not a suspect.  There was no evidence upon which a reasonable suspicion could have been formed that he had committed the offence in question.  What was said in the course of the interview gave rise to police disciplinary proceedings.  In investigations into police disciplinary proceedings, an officer may not rely on the privilege against self-incrimination (Fu Kin Chi Willy v. S-J [1998] 1 HKC at page 423G).

20. Thus, on the facts of this case, the lack of a caution cannot be criticized whether the interview was part of an investigation into an offence committed by others or whether it was in connection with possible disciplinary offences.

21. Issue 5 :

“5.

The AO did not adopt the criminal standard of proof (i.e. beyond reasonable doubt) when in arriving verdict of the Charges.  Paragraph 3 of Annex B of Discipline Manual states that : ‘in cases which may result in the termination of the defaulter’s service, the standard of proof required is heightened and approximates to the criminal standard of proof (i.e. beyond reasonable doubt).”

22. The law on this issue is straightforward.  In disciplinary tribunals there is no specific requirement for the criminal standard of proof.  However, the more serious the allegation and the more grave the consequence of a conviction the higher the standard of proof should be.  If the allegations are akin to a criminal offence and if a conviction could result in a dismissal then the standard should approximate with the criminal standard.  If these are the circumstances in a particular hearing, there is no requirement that a magical formula of words such as “beyond reasonable doubt” or “satisfied so that I was sure” should be used.

23. In the present case, the AO said that he found all the ingredients of the offences (which he had formulated correctly) had been “fully proved”.  He also said that he was “fully convinced” by the evidence.  This clearly is an expression of a high standard being adopted which equates to the criminal standard.  The applicant realistically conceded that there was no reference in any of the documents to any other words being used which suggested that any lower standard had been adopted. 

24. In short, there is no merit in the argument that the expressions “fully proved” and “fully convinced” suggest that the wrong standard of proof was adopted.

Charge B

25. The second charge concerned the fact that on 7 March 2003, about six months after the incident, the applicant made a written statement in connection with the proceedings which was entirely exculpatory.  He admitted going to Macau but denied he gambled, denied he lost money, denied he borrowed money and denied the sequence of events upon returning to Hong Kong.  The statement said he had gone to Macau for fun.

26. The reality was that the two charges would stand or fall together.  Any tribunal which found the first charge proved would inevitably find the second charge proved as well.  If charge A was true, the statement in charge B must be false.  In any event, no separate ground for judicial review is advanced in respect of the second charge on it own.

Sentence

27. In the eighth ground of the Notice (paragraph 12), the applicant states :

“Alternatively, if (which is not admitted) there was a legal basis for the Commissioner of Police Force to make the decision, the said decision was irrational in that it was a punishment that was harsh and / or disproportionate to the gravity of the offence.”

28. The reasons given for dismissal, in outline, were as follows :

(a)	By the SPO :
	“ In considering appropriate punishments for Charge A and Charge B, I have taken into account of :
		(a)	the case background and severity of Charge A;
		(b)	the lack of remorsefulness and doubt on the integrity of the defaulter;
		(c)	the above average records throughout defaulter’s nine years of police service; and
		(d)	the clear disciplinary record of the defaulter.
	Taking all above factors into my deliberation and by virtue of Reg 14(1)(c ) and Reg 30, I awarded punishments against the defaulter as follows :
	Charge A—Severe Reprimand AND an additional award of Dismissal.
	Charge B—Severe Reprimand”
(b)	By the FDO :
	“… The incident has tarnished the image of the Force as a professional and well-disciplined law enforcement agency.  It reflected badly on his sense of responsibility, self-control and judgement as well as his respect of good order and discipline.  I have totally lost confidence in his suitability to remain as a police officer.  Having considered the facts of the case and his service record, I cannot find any justification for a lenient award. …”

29. In my judgment, to submit that it was unreasonable or irrational to dismiss a police officer who had got involved with loan sharks and borrowed a substantial sum of money in Macau after an unsuccessful gambling spree and was later the subject of unseemly pressure from debt collectors to repay on his return to Hong Kong and who later lied about it, is a forlorn and hopeless task.

30. This application is dismissed with costs to the Respondent.