LAM SIU PO v. COMMISSIONER OF POLICE

CACV 340/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 340 OF 2005

(ON APPEAL FROM HCAL NO. 7 OF 2003)

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J U D G M E N T

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Hon Tang VP (giving the Judgment of the Court):

1.  The applicant joined the Police Force as a constable in 1988.  In July 2000, he petitioned for bankruptcy after incurring substantial debts from trading in the stock market.  He was adjudicated bankrupt in September 2000.

2.  In March 2002, he was convicted of a disciplinary charge brought under Police General Orders (“PGO”) 6-01(8) as a result of which he was compulsorily retired with deferred benefit.

3.  The applicant brought judicial review proceedings which were dismissed by Chung J in August 2005.  His principal complaint was that for all intent and purposes, legal presentation was not permitted at all under Police Discipline Regulations 9(11) and 9(12).  At trial, it was contended on his behalf that the regulations were unconstitutional because they were inconsistent with Article 35 of the Basic Law.

4.  Ms Ng, who appeared for the appellant, here as well as below, no longer relied on Article 35 as a result of the decision of The Stock Exchange of Hong Kong Ltd v. New World Development Co. Ltd and Others [2006] 9 HKCFAR 234.

5.  Instead, it is now contended that the regulations are inconsistent with Article 10 of Hong Kong Bill of Rights as well as being ultra vires section 45 of the Police Force Ordinance, Cap. 232 (“PFO”).  The relevant provisions in Article 10 relied on provide:

“… All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. …”

6.  If Article 10 applied to the police disciplinary proceedings, and if a fair hearing required at least the possibility of legal representation, then insofar as the regulations did not permit legal representations, the regulations could not stand.

7.  However, we are bound by our decision in陳庚秋 訴 香港警務處處長HCMP 2824 of 2004, unreported, dated 29 December 2004, where we said at para. 51 of the judgment that Article 10 was inapplicable to a police officer who faced a similar charge under PGO 6-01(8).

8.  We do not agree with Ms Ng that the decision of the Court of Final Appeal in The Stock Exchange of Hong Kong Ltd permitted us to re-examine our decision.

9.  Ms Ng relied in particular on paras. 94 and 105 of that decision.

10.  In para. 94 of the judgment of Ribeiro PJ, he merely left open the question whether Article 10 applied to disciplinary proceedings.  That is certainly an open question for the Court of Final Appeal, but we are bound by our previous decision.

11.  At para. 105, Ribeiro PJ said:

“105. … It may well be that (a blanket exclusion of legal representation) is likely in most cases to offend against the principles of fairness. …”

12.  We do not believe that dictum enables us to regard ourselves as being no longer bound by our previous decision.

13.  As for Ms Ng’s submission that the regulations are ultra vires section 45.

14.  Section 45 conferred power on the Chief Executive:

“(2)   … to make regulations providing for discipline and punishments shall include and be deemed always to have included power to make regulations providing for appropriate tribunals to inquire into disciplinary offences by police officers other than gazetted police officers … and generally for the procedure to be followed in cases where a police officer other than a gazetted police officer is alleged to have committed any of the disciplinary offences specified in the regulations.”

15.  We agree with Mr Chow’s submission that Regulations 9(11) and (12) fall within the wide and general law-making authority regarding matters of discipline conferred upon the Chief Executive.

16.  Ms Ng, however, submitted that section 45 should be regarded as ultra vires because the legislature could not be presumed to have conferred upon the Chief Executive the power to make regulations which are unjust or unfair, and that the regulations could be regarded as unjust or unfair if right-thinking citizens would objectively so conclude.  That was the approach adopted by McEachern CJSC in British Columbia in Joplin v Chief Constable of the City of Vancouver and Others [1983] 2 CCC (3d) 396, which was affirmed on appeal by the British Columbia Court of Appeal 20 DLR (4^th) 314.

17.  However in The Stock Exchange of Hong Kong Ltd, at para. 125 Ribeiro PJ when commenting on Joplin said:

“105. … the development of English and Hong Kong authority has not proceeded along the lines of giving an absolute entitlement to full legal representation whenever someone may be faced with serious disciplinary consequences.”

18.  Ms Ng submitted, however, that she was not contending for an absolute entitlement to full legal representation, her complaint was Regulations 9(11) and (12) did not permit legal representation at all.

19.  It is noted that the current version of the regulations dated from at least September 1977.

20.  In 1976, Denning MR in Maynard v Osmond [1977] 1 QB 240, dealing with a similar argument said at page 254:

“Ultra vires

Mr. Ross-Munro suggested that, if the regulations forbade legal representation, they were ultra vires, either as being outside the powers of the Act of 1919, or as being unreasonable, especially as they discriminated unfairly as between high-ranking officers and those below them. I cannot accept either of these suggestions. It is well within the powers of the Secretary of State to make regulations for the discipline of the police force. And I see nothing unreasonable in these regulations. In a disciplined force it is important that those responsible for maintaining discipline should have the conduct of disciplinary proceedings. So long as they are conducted fairly and in accordance with natural justice, the trial of disciplinary offences can safely be left to them.”

21.  Ms Ng submitted forcefully that attitudes have changed.  She submitted that right thinking citizens would now regard the regulations as unjust and unfair.  Indeed in the United Kingdom police regulations permit legal representations in similar circumstances.  As I have said, when a suitable case arises, the applicability of Article 10 can be reviewed by the Court of Final Appeal.  It may be that some of the reasons relied on to exclude legal representation in police disciplinary proceedings will require further examination.  But we do not believe we are entitled to conclude that the regulations which were not ultra vires when made could now be regarded as ultra vires.  It may be that better understanding of the implications of Article 10, and development in European human rights jurisdiction will one day impact on the lawfulness of the regulations, but we do not believe that the concept of ultra vires at common law is likely to provide the answer.

22.  Moreover, I am persuaded by Mr Chow that there is a simple answer to this appeal.  It is quite clear that the judge would have refused relief even if he was of the view that the defendant should have been permitted legal representation.  That is because on the facts his conviction was inevitable.

23.  The applicant was charged under PGO 6-01(8) which at the time provided:

“A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment stemming from financial imprudence which leads to the impairment of an officer’s operational efficiency will result in disciplinary action.”

24.  The charge read:

“… you are charged that on 26 September 2000, in Hong Kong, you did fail to be prudent in your financial affairs by incurring unmanageable debts of about HK$620,000 that resulted in serious pecuniary embarrassment as evidenced by the making of a bankruptcy order against you whereby your operational efficiency as a police officer was impaired … ”

25.  As Mr Chow correctly submitted, the fact that the applicant was in serious pecuniary embarrassment stemming from financial imprudence is obvious and has never been in dispute.  Indeed in para. 24 of the Re-amended Notice of Application for Leave to Apply for Judicial Review, it was said:

(a)   (the applicant’s) indebtedness was incurred as the result of imprudent investment and financial management and he readily admitted that from the outset;”

26.  Further, it is clear from the agreed particulars of the applicant’s stock trading activities that he was engaged in substantial, and having regard to his means, reckless speculation in the stock market resulting in an indebtedness of HK$620,000.

27.  This court has consistently held that serious pecuniary embarrassment would necessarily lead to impairment of operational efficiency of a police officer within the meaning of PGO 6-01(8).  See, for example, 陳庚秋and Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653.

28.  This appeal was pursued on the sole ground of unfair restriction of representation.  We do not believe legal representation could have resulted in a different outcome.  His conviction under PGO 6-01(8) was inevitable.  So we would in any event have refused relief.

29.  For the above reasons, the appeal is dismissed.  We make an order nisi that the respondent is to have the costs of the appeal.