CHAN YU KWOK v. ATTORNEY GENERAL AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 2210 OF 1985

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JUDGMENT

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1. In the early hours of the morning of 3rd January 1982, the Kowloon District Special Duty Squad of the Police Force carried out an anti-gambling raid in Mongkok. The Applicant, Inspector Chan Yu-kwok was in charge. Excluding a very young female child who somehow was detained, 27 persons were arrested. One person got away and in the event only 26 persons were charged on the following day, the 4th January. They were tried in a Magistrates Court in April 1982 when allegations were made that the police had allowed one of those arrested, Tse Kam-sang, to go free. I will refer to that trial as the gambling trial.

2. In March 1983 the Applicant and one Sergeant Ho who had assisted him on the raid, were charged with obstructing the course of justice by allowing Tse Kam-sang to escape. Tse who was subpoenaed as a witness failed to appear. The Applicant and Sergeant Ho were acquitted. I will refer to that trial as the obstruction of justice trial.

3. On 24th March 1983, Tse Kam-sang was arrested by the I.C.A.C. and made a statement under caution. He was charged with bribing Sergeant Ho to let him escape. He was convicted and sentenced to 14 months imprisonment.

4. In June 1983 Tse Kam-sang and two others were charged with conspiring together and with the Applicant and Sergeant Ho to pervert the course of justice by procuring Tse Kam-sang to absent himself from the obstruction of justice trial. Tse elected not to give evidence and was convicted largely upon the strength of his own cautioned statement, which was admitted after a voir dire. He was sentenced to 2 years imprisonment concurrent with the earlier sentence. Although named, the Applicant and Sergeant Ho were not proceeded against in that case. Indeed the Applicant did not give evidence nor was he subpoenaed. I shall refer to that case as the conspiracy case.

5. Finally the Applicant was charged with 3 disciplinary offences and disciplinary proceedings commenced before a Police Disciplinary Tribunal consisting of Chief Superintendent Finch on 15th February 1985. The disciplinary charges were as follows:

6. At the end of the case presented against the Applicant, the Tribunal found no case to answer on charge A. However, upon the completion of the proceedings it found charge B and charge C proved, and referred the matter to the Commissioner of Police to make an award as it was entitled to do under the Police (Discipline) Regulations.

7. The Applicant now applies by way of Judicial Review for the Police Disciplinary Tribunal's decision to be quashed. Originally he relied upon five grounds. However, Mr. Van Buuren who appeared for him very wisely abandoned the second of those grounds which complained of the admission in evidence of the court record of the gambling case, which had been put in with the prior agreement of the Applicant and his representative.

8. The remaining grounds, nonetheless, span all three of the heads of grounds upon which administrative action is subject to control by judicial review i.e. illegality, irrationality, and procedural impropriety as categorized by Lord Diplock in CCSU v. Minister for Civil Service HL (1985) 1 AC 374 at 419.

9. Mr. Van Buuren began with illegality, taking the point that the Tribunal was wrong in law in admitting in evidence first, the cautioned statement of Tse Yam-sang recorded by the I.C.A.C., and second, the transcript of the conspiracy case. The cautioned statement was produced by the I.C.A.C. officer who had recorded it and who told the Tribunal it had been admitted after a voir dire in the conspiracy case. With reference to that voir dire, the Applicant's representative submitted that if only part of the record of proceedings in the conspiracy case were to be produced, that would be prejudicial and the entire record should be produced. The Applicant's representative furnished to the prosecutor an uncertified copy of the transcript, and the prosecutor thereafter produced a certified copy and tendered it in evidence.

10. Mr. Van Buuren refers to the following provisions of the Police Force Ordinance and the Police (Discipline) Regulations, upon which he relies:

Mr. Van Buuren submits that there is no provision for the production of documentary evidence other than as exhibits produced by witnesses, and that in the absence of enabling provisions of law, the Tribunal has no power to do so. For myself, I can see nothing in these statutory provisions that expressly prohibits the production of the documents. Regulation 21(5) upon which Mr. Van Buuren set particular store, in my view merely requires such exhibits as are produced by witnesses to be made available for inspection by both the Defendant and the prosecutor; if it carries any implication it is not necessarily that suggested by Mr. Van Buuren, but equally that exhibits may be produced in ways other than by being "produced by witnesses". I am unable to find any implication that exhibits may only be produced by witnesses and in no other manner.

11. Mr. Van Buuren went on to submit that the emphasis in the Police (Discipline) Regulations, in particular in the foregoing provisions, is upon oral evidence, and that documentary evidence may only be utilised in support of such oral evidence; that accordingly the Tribunal was wrong in relying upon the record of the conspiracy case to establish what the Applicant told the court. Again that is not what the Regulations say or, in my view, imply, and they cannot provide the basis of Mr. Van Buuren's submission. In any event without substituting my view of the evidence for that the Tribunal took, which is not the role of this court in judicial review, I cannot see how I could intervene in the present context. Accordingly I reject the view that the admission in evidence of the cautioned statement and the transcript of the conspiracy case was contrary to the provisions of the Police Force Ordinance and the Police (Discipline) Regulations.

12. But Mr. Van Buuren submitted in relation to the production of the conspiracy transcript that the Applicant was not a party in that case and had no opportunity to test the evidence it contained; moreover that Tse Kam-sang gave evidence in that trial and therefore his cautioned statement should not have been used to contradict his evidence; and that it is a cardinal rule that confessions are not evidence against co-accused. He cites in support the Privy Council decision in Sivarajah v. General Medical Council (1964) 1 WLR 112 in which the name of the Appellant in that case was erased from the medical register upon the disciplinary committee of the General Medical Council finding him guilty of infamous conduct in committing adultery with a patient, who was also the complainant. In accordance with the General Medical Council Disciplinary Committee (Procedure) Rules 1985, she had furnished a statutory declaration with her complaint. The statutory declaration contained a number of highly prejudicial statements against the Appellant including hearsay statements. The statutory declaration was circulated to and read by the Disciplinary Committee. The Appellant elected neither to attend at the proceedings before the Committee nor to be represented by counsel. The Privy Council made the following observations (at p.118):-

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........ it cannot be too strongly emphasized that the statutory declaration can in no sense be described as evidence in the case unless and insofar as a witness assented to any of its terms. The statutory declaration contained a number of matters which were highly prejudicial to the Appellant, in particular some hearsay evidence as to his character ....... In general, their Lordships considered it undesirable that any use should be made of a statutory declaration except insofar as it is made evidence by being made use of by the petitioner or his counsel. However, their Lordships cannot say in the present case that the production of this statutory declaration was in the whole circumstances sufficient ground for invalidating the Committee's finding. "

13. Mr. Van Buuren also referred to the House of Lords' judgment in General Medical Council v. Spackman (1943) AC 627, a similar case of infamous conduct in which the House of Lords upheld the quashing of the Council's decision to erase the petitioner's name because the Council relied upon the Divorce Court's finding of adultery and refused to hear evidence from the petitioner in rebuttal. In doing so, Viscount Simon LC observed that:-

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Unless Parliament otherwise enacts, the duty of considering the defence of a party accused before pronouncing the accused to be rightly adjudged guilty, rests on any tribunal, whether strictly judicial or not, which is given the duty of investigating his behaviour and taking disciplinary action against him. The form in which this duty is discharged - e.g. whether by hearing evidence viva voce or otherwise - is for the rules of the tribunal to decide. What matters is that the accused should not be condemned without being first given a fair chance of exculpation. This does not mean that the Council has to rehear the whole case by endeavouring to get the previous witnesses to appear before it, though in special circumstances the recalling of a particular witness, in the light of what the accused or his witnesses assert, may, if feasible, be desirable. The council will primarily rely on the sworn evidence already given at the trial. It is not required to conduct itself as a court. " (Pages 635 and 636)

Lord Atkin in his judgment stated that:-

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It is not disputed that where there has been a trial, at least before a High Court Judge, the notes of the evidence at such trial and the judgment of the judge may afford prima facie evidence in support of the charge, for the council are not obliged to hear evidence on oath, but the very conception of prima facie evidence involves the opportunity of contraverting it ...... " (Page 637)

Lord White said with reference to the council deciding a cause of complaint which was a matter upon which a court had already pronounced, that:-

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The decision of the court should, indeed, ease that duty because the proceedings and judgment of the court at least give the council prima facie evidence which may be for practical purposes ' unanswerable by the petitioner, but he must surely be entitled to deny the charge before the council and bring his evidence ...... " (Page 646)

14. Before the foregoing passages are considered, it is helpful to examine the general position on the admissibility of evidence in administrative tribunal proceedings. It was not disputed that the legal position was authoritatively stated by Diplock, L.J. in Reg. v. Deputy Industrial Injuries Commissioner Ex-parte Moore (1965) 1 Q.B.D. 456 at p.488 in the following way:-

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..... evidence is not restricted to evidence which would be admissible in a court of law. For historical reasons, based on the fear that juries who might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges then regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact-finding tribunal to reach a correct conclusion: cf. Myers v. Director of Public Prosecutions.

 

These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or nonexistence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his. "

15. Clearly the cautioned statement in question and the transcript of the conspiracy case tend logically to show the existence of the ingredients of the charge before the tribunal. Upon this basis both were properly admitted by the tribunal. So, too, in terms of Spackman, their admission was entirely proper. Proceeding to Sivarajah, it is clear that the statutory declaration in that case was highly prejudicial and that this was compounded by the action the legal assessor took in introducing it and asking a series of questions arising out of its contents. It is not clear from the report what intrinsic legal objection, if any, the judicial committee took to its admission. However, in the end their Lordships did not hold that the production of the statutory declaration was sufficient ground for invalidating the finding. For these reasons and because that case related to a statutory declaration and not to a cautioned statement or court record as in the present case, I do not think it can be accepted as authority for excluding the statement and transcript, particularly in the face of the clear authority in Spackman and Ex-parte Moore.

16. Mr. Van Buuren also sought to rely upon Reg. v. Board of Visitors of Hull Prison, Ex p. St. Germain (D.C.) [1979] 1 W.L.R. 1401, in which the Court of Appeal held that while hearsay evidence was admissible in proceedings before the board of visitors, such admission was subject to the overriding obligation to provide the prisoner with a fair hearing and a fair opportunity to controvert the charge. In that case not only was the liberty of the prisoners involved but the evidence concerned related to the crucial issue of identity. Geoffrey Lane L.J. considered it so essential in the particular circumstances that the prisoners have an opportunity to question the witness concerned that if such opportunity could not be provided, the hearsay evidence in his view ought to have been excluded. However in the present case I am satisfied that the Applicant was afforded a sufficient opportunity to controvert the hearsay evidence and the charges.

17. I accordingly reject Mr. Van Buuren's submission on the admissibility of the cautioned statement and the transcript. I would emphasize in that context that both the Applicant and his representative had sufficient notice of and the opportunity to contest both.

18. Mr. Van Buuren's next submission was under the heading of irrationality i.e. in terms of the Wednesbury principle as stated by Diplock, L.J. in CCSU v. Minister for Civil Service (1985) 1 A.C.410 that the decision is one:-

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........ which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. "

Mr. Van Buuren submits that having found no case to answer upon Charge A (i.e. influencing his subordinates to conceal the escape) it logically follows that the Applicant could not have had knowledge of the escape and that accordingly without such knowledge he could not have given false evidence in the gambling case as to the number of persons who had been arrested. I must confess to finding that difficult to follow, a fortiori in the face of the tribunal's finding that the impetus for concealment of the escape emanated from NCO level and that the Applicant adopted a somewhat passive role.

19. Mr. Van Buuren also sought to rely upon the general confusion during the raid and the Applicant's statement to a superior that one person may have escaped. However, even if the Applicant were uncertain as to whether one person had escaped, that would not be inconsistent with the finding that he gave false evidence in the gambling case, as he gave evidence in categoric terms that "he found the number to be 26 persons and a young girl", and again that "altogether 27 persons including 1 young girl" were arrested. Having regard to all the circumstances of the case and in particular to the evidence that the Applicant became angry when he learned of the alleged escape and himself instituted a search, I think that clearly there was evidence upon which the tribunal could reasonably have come to its decision. I accordingly do not accept that the tribunal's decision was so unreasonable that no tribunal could reasonably or properly have come to it.

20. Pursuing the irrationality point, Mr. Van Buuren also attacked the tribunal's decision on Charge C. He submitted that there was so complete a lack of evidence of identity, that no tribunal could reasonably have concluded that the Applicant was involved in the conspiracy charged. The material portion of the tribunal's judgment in that respect is as follows:-

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In giving evidence on the circumstances relating to Charge C the important witness Tse Kam-sang, did not make an identification of the defaulter; although when asked to make an identification he turned his head and looked directly at Inspector Chan but declined to make an identification. I do not regard this lack of formal identification as fatal to the prosecution case, although naturally enough it did not advance the case. These witnesses in the prosecution case were counter-balanced by the considerable weight I am bound to attach to the transcript and court record of South Kowloon Court Case No. 8821 and the cautioned statement made by Tse Kam-sang to the I.C.A.C. The statement was tendered as evidence in that case, was subjected to a voir dire argued by two counsel before a Magistrate and accepted in evidence. "

The tribunal then went on to consider some unsatisfactory aspects of the evidence of prosecution witnesses and to examine and reject the possibility of a frame up, following which without further explanation it recorded its decision that Charges B and C were proved.

21. Now plainly the totality of evidence on identity including that in the cautioned statement and what emerges from the transcript of the conspiracy case, is not all one would wish for. At no point did Tse Kam-sang identify the Applicant. True he mentioned the Applicant by name but he also said that that name was given to him by the I.C.A.C. The tribunal did not explain in what respect it attached considerable weight to the transcript of the gambling case. On the other hand Tse did refer to the rank of Inspector and only the Applicant was of that rank among the persons involved. From the sequence of events it would seem that only the applicant and Sergeant Ho could have benefited by the conspiracy and, indeed, upon the face of the matter that the Applicant did benefit from Tse's absence.

22. In my judgment these matters were logically relevant. I accept the submission of Mr. McClleland for the 1st Respondent, the Attorney General, that having regard to all the circumstances, it cannot be said that no tribunal could reasonably have come to the decision that Charge C was proved. The complaint upon this ground must also fail.

23. Finally Mr. Van Buuren came to the third head, i.e. procedural impropriety. This head, as explained by Diplock L.J. at p.411 of his judgment in CCSU V. Minister for Civil Service, is concerned not only with failure to observe the rules of natural justice or to act with procedural fairness, but also with failure to observe procedural rules that are expressly laid down in the legislative instrument by which the jurisdiction of the tribunal is created.

24. I have in substance already dealt with the first of the two foregoing aspects in finding that the Applicant was given sufficient notice and opportunity to contest the evidence against him. It is, in any event, the other aspect that concerned Mr. Van Buuren. In regard to that, he listed a whole series of points. Of those not already rejected it is only necessary to deal with the following.

25. First, that the tribunal took into account inadmissible matters i.e. the caution statement and the gambling case transcript. I have already found that these were not admitted improperly, which disposes of the point.

26. Second, that the tribunal placed undue weight upon those exhibits. However, once those exhibits are admissible, and, as I have already indicated, they are, their weight is a matter for the tribunal and not this court (see the dictum of Diplock L.J. quoted at page 15 above). Nor, in my view, do the Police (Discipline) Regulations require some lesser degree of weight to be attached to documentary evidence as opposed to oral evidence.

27. Third, that the tribunal did not in the judgment explain its conclusions. It was sought to rest this complaint upon regulation 23(1) of the Police (Discipline) Regulations which provides that

I cannot see that this provision, or any other in the Regulations for that matter, requires the tribunal to record its reasons fully. In the absence of such provision the well established general position must apply i.e. that an administrative tribunal need not record its reasons. (see p.148 de Smith's Judicial Review of Administrative Action 4th Ed. ).

28. Fourth that the tribunal's reasons were substantially inadequate. For this Mr. Van Buuren relied upon the following passage at page 136 of the 4th Edition of de Smith's Judicial Review of Administrative Action:-

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The concept of error of law includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, unintelligible or, it would seem, substantially inadequate."

I do not accept that the tribunal's reasons were substantially inadequate. Nor did Mr. Van Buuren pursue the legal aspect of his complaint by seeking to establish that substantially inadequate reasons were, in the present circumstances, a good ground for review, notwithstanding that there is, in my judgment, no duty to give reasons.

29. Fifth, that the tribunal was inconsistent (again relying upon the foregoing passage from de Smith) in acquitting upon Charge A and convicting on Charge B. I have already held that there was no inconsistency.

30. Sixth, that the judgment was unintelligible in that it is not discernible how the tribunal concluded that the Applicant had knowledge of the escape by Tse Kam-sang. Against the evidence recorded and the contents of the judgment, I do not accept that the conclusion attacked is unintelligible.

31. As I have indicated, some of Mr. Van Buuren's other grounds have already been rejected by me in the context of the matters already considered, and I do not propose to reconsider them in the present context. Suffice it to say that no procedural impropriety has been shown in any of its three contexts i.e. the rules of natural justice, failure to act with procedural fairness or failure to observe the statutory procedural rules applicable. The complaint of procedural impropriety or error on the face of the record must also fail.

32. I would add in conclusion that the foundation of most of Mr. Van Buuren's complaints in essence concerns the conclusions of fact arrived at by the tribunal. But, as Lord Brightman observed in Chief Constable of North Wales Police v. Evans [1982] 1 W.L.R. 1155 at p.1173, the role of the court upon an application for judicial review is concerned not so much with the decisions questioned as with the propriety of the decision-making process; unless that restriction is observed the court will, under the guise of preventing the abuse of power, itself be guilty of usurping power. I accordingly, content myself in substance with seeing that the tribunal has had regard to matters that were relevant, that it disregarded matters that were not relevant, that it afforded the Applicant a sufficient opportunity to deal with the evidence against him and finally that it has not come to a decision so unreasonable that no tribunal could properly or reasonably have reached it. As I have already indicated I do not think the tribunal can be faulted in these respects and I accordingly dismiss the application.