RE LAU CHUNG HING

------------------

-----------------------

J U D G M E N T

------------------------

Cons, V:-P. delivered the judgment of the Court :

1. This is an appeal from Mayo, J. who on the 28th November 1988 refused leave to apply for judicial review.

2. The Appellant, who his been a Sergeant in the Police Force since 1984, and has now something like 25 years' service, was in 1987 involved in an incident which gave rise to disciplinary proceedings against others and himself. We are not directly concerned with those proceedings. It is sufficient to say that on one charge of which he was convicted, a rehearing was ordered.

3. The rehearing came on before a Superintendent of Police which is the appropriate rank for such an inquiry within the Police (Discipline) Regulations. That was on the 11th April last year. At that hearing a further charge was added, also quite Properly within the Regulations, to the one for which the rehearing had been ordered.

4. The Superintendent gave his decision on the 19th May. He convicted the Appellant on both charges. Under the Regulations the Superintendent would have been empowered to award punishment himself, or if he thought fit, to refer his findings to a senior police officer. In any event, the findings and awards have both to be confirmed by a senior police officer.

5. It seems that in the present case the Superintendent did refer his findings and the awards were made by a Chief Superintendent. That was on the 31st May. He confirmed the findings and he made an award on the first charge that the Appellant should be reduced in rank and on the second, that he should receive a severe reprimand.

6. There are still further stages in the police disciplinary procedure. The senior police officer in those circumstances is required to make a report to the Force Discipline Officer, and he in his turn may confirm or vary the findings, or if he thinks fit, order a rehearing. If he is minded to increase the punishment he must give the defaulting officer a chance to show cause why he should not. That happened in this case. The Force Discipline Officer gave the appropriate notice on the 30th June. On the 4th July the Appellant put in his written submissions. Presumably they failed to impress the Force Discipline Officer.

7. There is then a final stage open to the defaulter. He is entitled to appeal to the Commissioner of Police by way of a petition. The Appellant did so, but on the 16th August the Commissioner rejected his petition. Furthermore the Commissioner added on his own account a "warning for dismissal". It was only sometime after that, on the 25th November, that the Appellant turned to the courts in the hope, by way of judicial review, of setting aside the decisions that had been made against him on the four separate stages in the disciplinary process.

8. No application for judicial review under Order 53 of the Rules of the Supreme Court can come before the court without leave to bring it being first obtained. The object of that is quite clear. It is to preempt frivolous, vexatious or hopeless applications. Mayo, J. apparently did not think that the Appellant's application fell within that category for he made no mention of matters of that kind in his decison. What he was concerned with was the time that had elapsed between the decision of which the Appellant complained and his application to the Court.

9. Time is a very important factor in proceedings of this kind, because not only is the Appellant involved, but so also are, depending on the circumstances, local authorities, disciplinary services and so on and all those who depend thereon. We need only to refer to the comments of Lord Diplock in O'Reilly v. Mackman [1983] 2 A.C. 238 when be said -

"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision."

10. We would respectfully adopt that with the variation "the public interest requires that the Commissioner of Police and all other officers of the Force should not he kept in suspense as to the correct rank of that number". Rhind, J. took a similar view in R. v. Wan Kam Wing [1986] H.K.L.R. 123, with regard to the Customs and Excise Service another disciplinary force.

11. Having regard to the important factor of time, Rule 4(1) of the Order provides that "An application for judicial review shall be made promptly and in any event within 3 months from the date when the grounds for the application first arose ….". Sub-Rule (2) provides that "Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding". Thus the very latest by which the Appellant ought to have brought his application was the 19th August.

12. Although the rules as to time are strict, nevertheless it is appreciated that there may on occasion be particular circumstances which merit their relaxation. The judge is therefore empowered to extend the period within which the application may be made. He can only do where there is "good reason", but subject to that his discretion is unfettered.

13. The grounds put before the judge below are mostly of the kind that counsel has called compassionate". During the initial proceedings before the Superintendent the Appellant's wife suffered an accident at her palce of employment, when a small boiler exploded and her arm was severely scalded. This kept her off work for sometime and eventually forced her to Rive up completely.

14. Then, at the beginning of June, the Appellant himself had to undergo a minor operation for the removal of a lump from his neck. That was just after the Chief Superintendent had made his award and the Appellant must have been waiting for the decision of the Force Discipline Officer_.

15. Finally, while the Appellant's petition was pending before the Commissioner of Police, his wife had to enter hospital for some 5 days for the removal of a tumor form her thyroid.

16. I should add that in addition to the anxiety that these matters must have caused the Appellant, he met the expenses of both operations out of his own pocket.

17. In addition it was urged upon the judge that the Appellant's counsel fell sick, and further that the notes of the proceedings before the Superintendent were not received from the Attorney General's office until the 18th November.

18. The judge was not persuaded by these matters. He gave his decision briefly -

"I regret insufficient reasons hve been given to justify waiving the delay which has occurred."

19. Now it is trite law that where it is a question of a judge's discretion, this Court will only interfere, firstly, if it is shown that the judge acted upon a wrong principle, or secondly, if he is plainly wrong. The latter is sometimes put in the form that no reasonable judge, properly directing himself on the law and the evidence, could have come to such a conclusion. In a case like the present, where the judge has only given general reasons for his decision, it is the second approach that must be adopted.

20. It is impossible not to have sympathy with the Sergeant over the medical misfortunes, although at the same time it has to he noted that they were intermittent throughout the period in question on that they were all finally over by the middle of August. The sickness of his counsel lasted only one week, as against an overall delay which could fairly be put in the region of some 5 months. We have to observe that the period of 3 months mentioned in the rule is not automatic. The rule first provides that the application must be brought promptly. Perhaps more importantly in this respect, it was not until October that the appellant even sought the advice of counsel.

21. The late delivery of the records can be of little significance, for it is apparent from the petition to the Commissioner of Police that either the appellant himself, or the Senior Inspector who had assisted him throughout the whole of the disciplinary proceedings, was already aware of many, and the major, complaints later raised in the application for review.

22. A further ground has been added by counsel today, a suggestion that the Appellant may not have even known of the possibility of judicial review until it long after the time when the application should have been brought. There is however no evidence to support that suggestion.

23. We find it impossible to say that in the circumstances we have just outlined, it was inevitable that any judge properly directed must have come to the conclusion that there was good reason for extending the time. We are therefore not entitled to interfere with the decision that was made.

24. For these reasons we dismiss the appeal.