TSUI CHUN FAI DANNY v. COMMISSIONER OF POLICE

HCAL 131/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 131 OF 2009

____________

BETWEEN

____________

_______________

J U D G M E N T

_______________

Facts

1.  This is an application for leave to apply for judicial review out of time.

2.  The applicant joined the police force in 1982 as a police constable. He was promoted to the rank of senior police constable in August 2000. Up to the time of the disciplinary proceedings in question, his performance reports had been consistently good.

3.  In September 2001, because of financial difficulties, the applicant filed for bankruptcy. On 17 December 2001, a bankruptcy order was made against him. On 1 September 2003, the applicant was charged with four counts of contravention of police orders. Three of them related to his causing to be made a reproduction of his police warrant card for the purposes of applying for loans and overdrafts. The fourth count charged that he failed to be prudent in his financial affairs by amassing unmanageable debts and that his serious pecuniary embarrassment stemming from his financial imprudence had impaired his operational efficiency, contrary to Police General Order, Chapter 6-01(8) (1999 version).

4.  The applicant pleaded guilty to the three lesser charges, but fought the financial imprudence charge. He was represented by a senior inspector in the disciplinary proceedings after being told that regulation 9(11) and (12) of the Police (Discipline) Regulations (Cap 232A) prohibited (outside) legal representation.

5.  The adjudicating officer found him guilty of all four charges. He was given a “severe reprimand” for each of the four charges, and also an additional award of “compulsory retirement with deferred benefits” in respect of the financial imprudence charge.

6.  The Force Discipline Officer confirmed the findings and awards. His appeal in relation to the financial impudence charge was dismissed by the Deputy Commissioner of Police on 12 May 2004. On 18 May 2004, the Commissioner of Police confirmed the guilty findings and awards.

7.  On 21 May 2004, the award of compulsory retirement took effect and the applicant was compulsorily retired from the police force.

8.  In June the same year, the applicant applied for legal aid to challenge the findings and awards but his application was rejected on the merits. In September that year, the applicant appealed against the refusal of legal aid but his appeal was also unsuccessful. Because of lack of means (as an undischarged bankrupt), he did not take any proceedings to challenge the findings and awards made in the disciplinary proceedings.

9.  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 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, the applicant applied for legal aid again on 7 April 2009. Legal aid was granted on 6 October 2009, and the present application for leave to apply for judicial review out of time was lodged on 1 December 2009.

Extension of time

10.  The application for leave to apply for judicial review is seriously out of time. Unless the Court considers that there is “good reason” for extending time, that must be the end of the proposed challenge: Order 53, rule 4(1), Rules of the High Court (Cap 4A). 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 the law and finality

11.  It is plain that the present application for leave to apply for judicial review out of time was prompted by the Court of Final Appeal’s decision in Lam Siu Po. Mr Peter K C Wong, appearing for the applicant, readily accepts that a change in the understanding of the law cannot, by itself, justify an extension of time, save in exceptional circumstances: Tsui Kin Kwok Johnnie v Commissioner of Police HCAL 50/2009 (26 February 2010) and the authorities discussed in paragraphs 31 to 34 of that judgment. The policy of finality is a very weighty consideration against an extension of time.

Merits

12.  Mr Wong argues that his client’s case is meritorious. 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 applicant 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 case.

13.  In those circumstances, it is not necessary for the Court to go into the underlying merits of the applicant’s case, 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.

14.  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.

15.  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.

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

17.  In the present case, 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) (1999 version) should be proved, the prosecution suffered from the same ignorance. 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 the applicant appears to have a reasonably arguable defence to the financial imprudence charge.

18.  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.

19.  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”.

20.  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

21.  Broadly speaking, the longer the delay, the more compelling the reason has to be for granting an extension of time: R v Ballinger [2005] 2 Cr App R 433, 438. The delay in the present case is very lengthy indeed.

Detriment to good administration

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

23.  Thus far, less than 20 applications for leave out of time have been made with the Court. However, the Court has learnt from the Legal Aid Department in similar proceedings that there were 131 applications for legal aid from ex-police officers 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.

24.  According to the Commissioner’s own figures, as at 31 March 2010, a total of 31 applications based on Lam Siu Po were served on either the police or the Department of Justice. The figures included applications made at the appellate level.

25.  In addition, general administrative difficulties in rehearing past disciplinary cases cannot be underestimated. Records of past disciplinary cases may either be 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.

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

27.  Furthermore, as I mentioned in Tsui Kin Kwok Johnnie (para 50), the very idea that police disciplinary decisions made many years 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. Indeed, one could say that given the particular importance of discipline in the proper management and operation of the police force, finality of disciplinary proceedings assumes additional significance in the present context.

28.  On the facts of the present case, one of the four police witnesses has retired from the force. As regards the five civilian witnesses, it is not clear whether they are still available or not.

29.  The force cannot compel former police officers or civilian witnesses to give evidence in disciplinary proceedings. In any event, given the lapse of time, the memory of witnesses must have been adversely affected. Furthermore, the witness statements of the five civilian witnesses cannot be located.

30.  Mr Wong argues that none of the missing witnesses or witness statements is crucial to the prosecution’s case against his client. I hesitate to accept such a submission. It is not for the applicant to tell the police how to prosecute the disciplinary offences.

Miscellaneous considerations

31.  I have taken into account the steps taken by the applicant immediately after the disciplinary proceedings to challenge the findings and awards. I have borne in mind his financial difficulties and his lack of means to commence proceedings in time. I have borne in mind the prejudice, injustice and sense of grievance suffered by him, the implications of the compulsory retirement award on his subsequent career and income, and all other miscellaneous matters urged upon the Court by counsel.

Outcome

32.  Having considered the case as a whole, I have come to the conclusion that the application for an extension of time must be refused. The application for leave is dismissed accordingly.

33.  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.