LI KIN WAH v. COMMISSIONER OF POLICE

HCAL 126/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 126 OF 2009

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BETWEEN

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(Heard Together)

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J U D G M E N T

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1.  In each of these applications, the applicant applies for leave to apply for judicial review out of time.

HCAL 126/2009 – facts

2.  The applicant in HCAL 126/2009 (“Mr Li”) was formerly a police officer. He joined the police force in 1984. On 24 August 2007, he was compulsorily retired as a result of disciplinary proceedings against him. Mr Li was charged with 29 charges. The major charge from which the others flow and a charge with which the present application is most concerned is charge A: failure to be prudent in his financial affairs, contrary to Police General Order, Chapter 6-01(8) (2003 version).

3.  Mr Li was notified of the proceedings on 15 March 2007. The hearing took place before an adjudicating officer on 26 March 2007. Mr Li was unrepresented. He pleaded guilty to all charges. He agreed to the brief facts and the admission of exhibits. On 23 April 2007, he submitted his mitigation plea in writing, and he was found guilty as charged. The adjudicating officer’s findings were confirmed on each level. Ultimately, the awards were “severe reprimand” with, additionally, “compulsory retirement with benefits deferred” for each of charge A and charge AC, and “severe reprimand” for each of the remaining charges.

4.  After he was compulsorily retired from the force on 24 August 2007, Mr Li did not take steps to challenge the disciplinary proceedings. According to him, he did not have the means to pursue any legal challenge, and he thought that any application for legal aid would not be successful.

5.  On 26 March 2009, the Court of Final Appeal in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575 held, overruling previous authorities, that the prohibition of (outside) legal representation under regulation 9(11) and (12) of the Police (Discipline) Regulations (Cap 232A) was unconstitutional and rendered the relevant police disciplinary proceedings unfair and unlawful. The Court also held that Police General Order, Chapter 6-01(8) (1999 version), had been misinterpreted in previous decisions and on its proper interpretation, proper proof by the prosecution of financial imprudence causing pecuniary embarrassment causing the impairment of operational efficiency was required. Upon learning of the decision, Mr Li immediately applied for legal aid, which was granted on 1 September 2009, to challenge the relevant decisions in the disciplinary proceedings, on the strength of Lam Siu Po. The application for leave to apply for judicial review was filed on 6 November 2009.

HCAL 6/2010 – facts

6.  The applicant in HCAL 6/2010 (Mr Yung) was a former police officer. He joined the police force on 28 July 1980. He had served the force for 23 years when he was compulsorily retired as a result of disciplinary proceedings against him. Mr Yung was charged with 2 charges. Charge A was based on Police General Order, Chapter 6-01(8) (2003 version). Charge B was based on regulation 3(2)(m) of the Police (Discipline) Regulations (conduct calculated to bring the public service into disrepute).

7.  Charge A arose out of Mr Yung’s financial difficulties, for which he petitioned for bankruptcy on 18 July 2001. On 18 October 2001, the bankruptcy order was made. In the disciplinary hearing, he was represented by a woman inspector. He disputed that his financial difficulties had led to any impairment of his operational efficiency.

8.  The adjudicating officer hearing his case found Mr Yung guilty of both charges A and B. The findings were confirmed at the senior levels. He was given the award of “severe reprimand” and, additionally, the award of “compulsory retirement with deferred benefits” in respect of charge A, and was given the award of “severe reprimand” in respect of charge B. The awards were confirmed by the Deputy Commissioner of Police (Management), and he was compulsorily retired from the force as from 9 December 2003.

9.  He had no means to challenge the decisions and awards, nor did he apply for legal aid. He was not aware of any good ground to make the application.

10.  After learning of the Court of Final Appeal’s decision in Lam Siu Po, Mr Yung immediately applied for legal aid, which was granted, to challenge the relevant decisions in the disciplinary proceedings, on grounds based on Lam Siu Po. The application for leave to apply for judicial review was filed on 18 January 2010.

Extension of time required

11.  Both applications for leave to apply for judicial review are seriously out of time. Unless the Court considers that there is “good reason” for extending time, that must be the end of each proposed challenge: Order 53, rule 4(a), Rules of the High Court (Cap 4A).

12.  Furthermore, section 21K(6) of the High Court Ordinance (Cap 4) provides that the court may refuse to grant leave to apply for judicial review out of time if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. The Court has a discretion to exercise, and must take into account all relevant considerations.

Change in understanding of law

13.  It is plain that the present applications were prompted by the Court of Final Appeal’s decision in Lam Siu Po.

14.  However, as has been pointed out in Tsui Kin Kwok Johnnie v Commissioner of Police HCAL 50/2009 (26 February 2010), paras 31 to 34, the authorities have established that a change in the understanding of the law cannot, by itself, justify an extension of time, save in exceptional circumstances.

Finality

15.  This is because of the importance of the public policy of finality, which applies to decisions made in police disciplinary proceedings just as it applies to judgments and orders of conventional courts of law.

16.  Not only is a mere change in the perception of the law not a “good reason” for granting an extension of time (save in exceptional circumstances), prima facie, the public policy of finality makes it difficult for any “good reason” to exist for the grant of an extension of time. The longer the delay, the stronger finality works to negate the possible existence of good reason for an extension of time.

17.  Ms Margaret Ng, for the applicants, argues that, generally speaking, the “quality” of the decisions made in police disciplinary proceedings is inferior to that made in conventional courts of law. Counsel submits that the policy of finality does not apply with equal force to the two types of decisions alike. I do not find the argument helpful in the present context. Just as finality does not apply with different vigour depending on the level of courts one is concerned with, once it is accepted that finality applies to police disciplinary decisions, it is unhelpful to differentiate between court decisions and disciplinary decisions. In any event, in the context of finality, when one speaks of the general “quality” of police disciplinary decisions, one must also bear in mind that they are subject to the court’s supervisory jurisdiction. When one applies the policy of finality, one therefore looks at the decisions not only in their police disciplinary context, but also in the wider context as decisions subject to the supervisory control of the court. Furthermore, given the particular importance of discipline in the proper management and operation of the police force, finality of disciplinary decisions actually assumes additional significance in the present context.

18.  In any event, in the very recent decision by the Court of Appeal in Li Siu Hing v Commissioner of Correctional Services CACV 277/2009, 19 March 2010, the Court of Appeal has applied, without any modification, the principle of finality in civil and criminal matters to an application for an extension of time to apply for leave to apply for judicial review (against decisions made in prison disciplinary proceedings): see paragraphs 9 and 10 of the judgment. The decision is, of course, binding on this Court.

Merits

19.  Ms Ng argues strongly for the “substantive merits” of her clients’ cases respectively. In each of the two cases, counsel argues that the relevant applicant has suffered a grave injustice in the disciplinary proceedings concerned, not only by reason of the restrictions on legal representation, but also by reason of the misinterpretation by the prosecution of the requisite elements of a disciplinary charge based on Police General Order, Chapter 6-01(8) (2003 version) which it had to prove. Specifically, counsel argues that there was a failure to prove causal impairment of operational efficiency.

20.  Ms Ng therefore argues that what is involved here is not a case of a mere or technical breach of the article 10 right to a fair hearing. She argues that this distinguishes her clients’ cases from cases like R v Ballinger [2005] 2 Cr App R 433 where nothing but a technical breach could be shown.

21.  I accept that merit is a relevant consideration. However, the word has been used rather loosely to refer to different things. In the present context, merit may refer to the merit of the proposed challenge. In this regard, I accept that the each of the applicants has a prima facie case for challenging the guilty findings and the award of compulsory retirement. This is because, according to Lam Siu Po (at para 144), the very fact that the relevant regulation imposed an automatic ban on legal representation rendered the proceedings inherently unfair and the relevant conviction and award quashable, unless it is to be suggested by the Commissioner that irrespective of legal representation, both the conviction and the award in question would have been inevitable on the facts of the case. No such suggestion has been made by Mr Jin Pao for the Commissioner in the present cases.

22.  In those circumstances, it is not necessary for the Court to go into the underlying merits of each of the applicants’ cases, ie whether he was in fact guilty of the disciplinary charge of financial imprudence, or put slightly differently, whether he would have been found guilty and been given the same awards if he had had proper legal representation in the disciplinary proceedings.

23.  However, it does not mean that in an application for an extension of time, the applicant cannot of his own volition invite the Court to look at the underlying merits of his defence to the disciplinary charge as a relevant consideration to take into account in considering whether an extension of time should be given. In principle, I can see no objection to such a cause.

24.  However, several observations should be made. First, while very often, it is not particularly difficult to see whether an applicant has a reasonably arguable case on the substantive merits in relation to the relevant disciplinary charge, the situation is relatively rare where the Court can go one step further and conclude, for instance, that he has an overwhelming case.

25.  Secondly, the Court must guard against abandoning its supervisory role and assuming the role of the decision-maker.

26.  In each of the present applications, I am indeed prepared to assume and proceed on the basis that the applicant has a reasonably arguable defence to the financial imprudence charge on the ground of want of proof of causal impairment of operational efficiency. However, one must bear in mind that just as the applicant was unaware at the material time of how, as a matter of law, a disciplinary charge based on Police General Order, Chapter 6-01(8) (2003 version) should be proved, the prosecution suffered from the same ignorance. (Here, I am prepared to proceed on the basis that it is reasonably arguable that like the 1999 version, the 2003 version also requires proof of causal impairment of operational efficiency.) Therefore it is not right to seek to assess the real strength of the applicant’s defence to the disciplinary charge only by reference to what was or was not adduced by way of evidence in proof or disproof of the necessary elements of the charge. As I said, all I am prepared to say is that each of the applicants appears to have a reasonably arguable defence to the financial imprudence charge.

27.  Thirdly and most importantly, in my view, in the context of an application for an extension of time, merit as a factor, though relevant, can only attract limited weight. In Lau Luen Hung Thomas v Insider Dealing Tribunal HCMP 1017/2008, 9 April 2009 (CA), the proposed appeal against a penalty imposed by the Insider Dealing Tribunal, if allowed to be lodged out of time, was bound to succeed because the penalty was imposed pursuant to provisions that had since been struck down by the Court of Final Appeal. One can hardly think of a more meritorious appeal (if only it had been lodged within time). Yet the Court refused the application for an extension of time. The intending appellant’s application to the Court of Final Appeal for leave to appeal out of time was equally unsuccessful: FAMV 46/2009, 4 December 2009.

28.  All this is not surprising. As Le Pichon J (as she then was) said in Birkenhead Properties & Investments Ltd v Leung Yiu [1998] 1 HKLRD 527, 539A (CA) in a passage cited with approval by the Court of Appeal in Tsang Yiu Kai v Insider Dealing Tribunal, HCMP 1322/2007, 18 December 2007, para 21, “the merits point is nothing more than the mirror image of the change in the law point”.

29.  Given this strict approach, which is, of course, binding on this Court, it is difficult to see how significant weight can be placed on the merits of the proposed challenge, or the merits of the defence to the underlying disciplinary charge, as a consideration in the exercise of the Court’s discretion for granting time.

Length of delay

30.  Broadly speaking, the longer the delay, the more compelling the reason has to be for granting an extension of time: R v Ballinger, supra, at p 438. The delays involved in the present cases, particularly in the case of Mr Yung, are very long.

Prejudice to good administration and detriment

31.  As regards prejudice and detriment to good administration, the concern of opening a floodgate is a real one.

32.  Thus far, less than 20 applications for leave out of time have been made with the Court. However, according to a letter from the Legal Aid Department which has been made available to the Court in similar proceedings (in which Ms Ng was also involved), 131 applications for legal aid from ex-police officers were received between 26 March 2009 (the date Lam Siu Po was decided) and 26 June 2009, and 57 applications were granted. Between 27 June 2009 and 28 February 2010, 30 similar applications were received and 1 application was granted. It is quite possible that some of these unsuccessful legal aid applicants may apply for leave to apply for judicial review out of time on their own means or in person. Indeed the Court has dealt with an application made in person (HCAL 125/2009). The strain placed on the limited resources of the police, the Legal Aid Department and the Judiciary by the belated applications is self-evident.

33.  According to the Commissioner’s figures, as at 28 February 2010, a total of 31 applications relying on Lam Siu Po were served on either the police force or the Department of Justice. The figures included applications made at the appellate level.

34.  General administrative difficulties in rehearing past disciplinary cases cannot be under-estimated. Records of past disciplinary cases are either incomplete or may even have been wholly destroyed. Availability of witnesses is another problem. Very often, the prosecution witnesses were serving police officers at the time and some of them may well have retired. Even if they are available, the memory of witnesses must have been affected by the lapse of time. Exhibits may have been destroyed or may no longer be available.

35.  Reinstatement of former police officers is also not straightforward.

36.  In the case of Mr Li, the prosecution witnesses are still serving in the police force, and are therefore available for a rehearing if there should be one. It is not clear whether evidence about Mr Li’s operational efficiency impairment, if any, would still be available for use at the rehearing.

37.  Likewise, in the case of Mr Yung, the witnesses would appear to be still available if there should be a rehearing at the end of the day. Again, it is not sure whether evidence of operational efficiency impairment, if any, would still be available in that event.

38.  Nonetheless, as I mentioned in Tsui Kin Kwok Johnnie (para 50), the very idea that police disciplinary decisions made a long time ago could, due to a subsequent change in the understanding of law, be reopened, must be, in my view, detrimental to the good administration of the police force.

Public interest in interpreting the 2003 version?

39.  Ms Ng also argues that public interest would be served by allowing the proposed challenges to go ahead, which would bring into issue the proper interpretation of the 2003 version of the relevant part of the Police General Order.

40.  I do not agree. The 2003 version has since been replaced by the 2009 version. For disciplinary proceedings based on the 2009 version, the 2003 version and its proper interpretation are quite irrelevant. For decisions based on the earlier 2003 version, if they are challenged within the three-month time limit, the court will no doubt, where required, decide on the proper interpretation of the version. On the other hand, if no challenge is made within time, that must, prima facie, be the end of the matter and the proper interpretation of the 2003 version is simply an academic question. In either case, it is difficult to see why the Court should grant an extension of time in the present cases in order to deal with the proper interpretation of the relevant provisions.

Miscellaneous considerations

41.  In each of the applications, I have considered all relevant matters, including the inaction of each of the applicants after the disciplinary proceedings and the reasons behind, the prejudices, injustice and sense of grievance suffered by them, the implications of the convictions and awards on their subsequent careers and incomes, and all other miscellaneous matters urged upon the Court by counsel.

Outcome

42.  Having looked at the matter in the round in each case, I am afraid the applications must be refused. I so order.

43.  As regards costs, for the reasons explained in this Court’s judgment in HCAL 101/2009 and HCAL 112/2009 which is handed down at the same time as this judgment, I make no order as to costs.