RE LO WING TONG

1989, No. 62
(Civil)

Headnote

    In Judicial Review of disciplinary proceedings, evidence from the tribunal explanatory of or qualifying the reasons for its decision is not admissible.

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J U D G M E N T

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

1. This is an appeal from the decision of Nazareth J. whereby he declined judicially to review the conviction of PC17503 LO Wing Tong ("D1") by a disciplinary tribunal established in accordance with the Police (Discipline) Regulations made under S. 45 of the Police Force Ordinance, Cap. 232.

2. The incidents upon which the charges levelled against Dl were founded occurred on the 16th and 18th August, 1986. Dl was arrested on the 9th of September. The tribunal first sat on the 10th March, 1987. D1 was represented by a Senior Inspector of the Police who at once requested an adjournment in order to research and prepare his case. Evidence was taken, and we may add, most meticulously recorded, by the Adjudicating Officer ("AO"), as from the 8th of April. It was not completed until many hearings later, i.e. on the 4th of August. A reserved judgment was delivered on the 14th, by which D1 was convicted on all four charges which had been brought against him. Nazareth J. criticised the time that had been taken to dispose of the tribunal proceedings and the number of often lengthy adjournments that had been granted. We would respectfully agree with him and again draw attention, as he did, to the provisions of para. 17(b) of Cap. 4 of the Police Force Discipline Manual:

    "Don't adjourn proceedings unless absolutely necessary."

However we are not persuaded that the delays, some at the instance of the defence itself, were sufficient to render the proceedings unfair.

3. Of the original four charges, the first two, i.e. A and B, were of absence from duty, without leave or good cause, contrary to Regulation 3(2)(a) of the Police (Discipline) Regulations, 1982. They related respectively to the 16th and 18th of August.

4. The C Charge was "Contravention of Police Orders" contrary to sub-para. (e) of the same Regulation, in that between mid August and early September of 1986, Dl, associated with a Chinese male WONG Po Yee, an undesirable character, contrary to PGO 06-02, para. (1A).

5. PGO stands for Police General Orders and the order in question reads:

"A police officer shall not associate with undesirable characters or visit places of poor or doubtful reputation except in the course of duty."

6. The final D Charge was "Conduct calculated to bring the public service into disrepute", contrary to Regulation 3(2)(m) of the Police (Discipline) Regulations, 1982, in that between mid August and early September, 1986, D1 did assist in disposing/handling nine boxes of glue which were stolen by Chinese male WONG Po Yee. Jointly charged with him in this instance was PC12866 MA Shing Cheong ("D2"), whom the AO eventually acquitted.

7. After seven of the 14 prosecution witnesses had given their evidence the AO formed a view that the first two charges would be more appropriately laid as "Contravention of Police Orders". The officer representing Dl objected to amendment at that late stage but nevertheless, after a brief adjournment for consideration, the AO preferred Additional Charges E and F which each, like Charge C, alleged "Contravention of Police Orders". The particulars were that on the 16th and 18th of August respectively D1 left the Kwun Tong Police District while on duty without prior approval from his senior officer, contrary to the verbal orders of Mr. YIP Kai Chi, DSI, OC DIS KT. At the same time the AO dismissed the A and B Charges.

8. Regulation 10 of the Police (Discipline) Regulations provides that:

"A charge may be amended or a further charge added at any time prior to a finding being communicated to a defaulter charged under these regulations and any amended or new charge shall be read and explained to such defaulter who shall -

(a) be called upon to plead thereto, and

(b) be entitled to a reasonable adjournment to prepare his further defence,

and in such case a defaulter may -

(i) recall any witnesses, and

(ii) call such further witnesses as he thinks fit,

and any witness giving evidence under this regulation may be cross-examined and re-examined."

9. The AO complied with the regulation so far as it specifically demands. He read the further charges to Dl. He satisfied himself that D1 understood the further charges and he took further pleas. He then ruled:

    "Evidence given by the prosecution so far will stand for additional charges."

The Inspector defending D1 made no application for adjournment or for the recall of any witness. The hearing continued with further prosecution witnesses. What is now suggested by Mr. Eddis for D1 is that the regulation does not go far enough to satisfy the requirements of natural justice and that the AO himself should have gone further and made a positive offer of an adjournment to D1 and of an opportunity to recall witnesses. Our attention is drawn to the words of Lord Reid in Wiseman v. Borneman, [1971], A.C., 297, at 308:

"Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules. For along time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

10. With respect to Mr. Eddis we do not take Lord Reid by that passage to suggest that courts will insert into statutes words which are not there, but which could easily have been. In the present instance these could have been words such as "the defaulter shall be asked whether he wishes to", which are actually to be found in the preceding regulation with regard to the defaulter's giving evidence himself or calling witnesses. Nor do we find that in the circumstances the procedure laid down by the regulation worked any unfairness to D1. He was represented by a Senior Inspector who was obviously aware of the provision in the regulations but did not think it necessary to take advantage thereof.

11. The evidence of the prosecution witnesses to the activities of Dl was neatly summed up by the judge below:

"The Applicant was a police constable attached to the Uniform Branch District Intelligence Unit of Kwun Tong from June 1986. In the 2nd half of 1986 the Police mounted an operation against shop theft. As a result WONG Po-yee was charged with inter alia stealing a quantity of glue. In the course of surveillance by the police during that operation, the Applicant was seen meeting WONG Po-yee at Tsimshatsui on 16th August 1986 and again on 18th August 1986, on each occasion actually taking some goods into his possession from WONG Po-yee; only one box on the first occasion but many on the 2nd; then on the 18th taking them home and later that same day meeting another police constable (the 2nd Defaulter) who was subsequently charged with him in the Police Disciplinary Proceedings. He took some boxes to the quarters of the second Defaulter, who was heard to say "Whats f..... wrong with you, putting these things in my place". His reply was "There's no f..... need to be afraid". When arrested on 9th September 86, there were found in his quarters goods which, according to hearsay evidence accepted by the Adjudicating Officer, had been stolen."

12. In addition to the oral evidence of the witnesses there was put before the AO a cautioned statement made by D2. It is complained that this was, but should not have been, used by AO as evidence against D1.

13. It has long been accepted, as the judge put it bluntly below, that:

"the rules of evidence, including those against hearsay evidence, do not apply in administrative proceedings".

The classic exposition of the position is to be found in R. v. Deputy Industrial Injuries Commissioner, Ex parte Moore, [1965], 1 Q.B., 456, where Diplock L.J. said at 488:

"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: c.f. 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 wore than it must be based upon material which tends logically to show the existence or non-existence 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 entitled it to usurp this responsibility and to substitute its own view for his."

14. It is suggested that the position has been qualified by the later judgment of the English Court of Appeal in R. v. Hull Prison Board of Visitors, ex parte St Germain and others, (No 2), 1979, 3 A.E.R., 545, at 552:

"However, it is clear that the entitlement of the board of visitors to admit hearsay evidence is subject to the overriding obligation to provide the accused with a fair hearing. Depending on the facts of the particular case and the nature of the hearsay evidence provided to the board of visitors, the obligation to give the accused a fair chance to exculpate himself, or a fair opportunity to controvert the charge, to quote the phrases used in the cases cited above, or a proper or full opportunity of presenting his case, to quote the language of s 47 or r 49, may oblige the board of visitors not only to inform the accused of the hearsay evidence but also to give the accused a sufficient opportunity to deal with that evidence. Again, depending on the nature of that evidence and the particular circumstances of the case, a sufficient opportunity to deal with the hearsay evidence may well involve the cross-examination of the witness whose evidence is initially before the board in the form of hearsay.

We again take by way of example the case in which the defence is an alibi. The prisoner contends that he was not the man identified on the roof. He, the prisoner, was at the material time elsewhere. In short the prisoner has been mistakenly identified. The evidence of identification given by way of hearsay may be of the 'fleeting glance' type as exemplified by the well-known case of R v Turnbull. The prisoner may well wish to elicit by way of questions all manner of detail, eg the poorness of the light the state of confusion, the brevity of the observation, the absence of any contemporaneous record, etc. all designed to show the unreliability of the witness. To deprive him of the opportunity of cross-examination would be tantamount to depriving him of a fair hearing,

We appreciate that there may well be occasions when the burden of calling the witness whose hearsay evidence is readily available may impose a near impossible burden on the board. However, it has not been suggested that hearsay evidence should be resorted to in the total absence of any firsthand evidence. In the instant cases hearsay evidence was only resorted to to supplement the firsthand, evidence and this is the usual practice. Accordingly where a prisoner desires to dispute the hearsay evidence and for this purpose to question the witness, and where there are insuperable or very grave difficulties in arranging for his attendance, the board should refuse to admit that evidence, or, if it has already come to their notice, should expressly dismiss it from their consideration."

However, as we read these words the need for the availability of cross-examination depends essentially upon both the particular facts of the individual case and the nature of the evidence offered. The case before the Court of Appeal was extremely unusual. That before the AO was not. We might further observe that in the present instance when D2, as appears later, did eventually give evidence, D1 did not think it necessary to cross-examine.

15. Having mentioned this matter in deference to the arguments of counsel we should say that, in any event, in our view the AO did not use the statement of D2 against D1. He relied entirely upon D2's oral evidence.

16. However, as we shall see later, the AO did make use of the statements given by D1 himself. When these were profferred Dl objected. The record records:

"Defaulter would object the admission of both E. 7 and E. 8 because they are not an accurate record of the interviews. Part of the contents were irrelevant to the case and it was an involuntary statement."

17. Annex J to the Force Discipline Manual is headed "Guidance on Legal Matters for Adjudicating and Prosecuting Officers" and contains the following two paragraphs:

"13. All police officers are aware that should they state something incriminating it can and may he used against them. An Adjudicating Officer should keep in mind that the fundamental question is whether the statement was fairly taken and whether it can be considered accurately to reflect what the defaulter said at the time.

"14. It is important that the Adjudicating Officer avoids any recourse to a "voir dire". Where a defaulter intimates that he objects to the voluntariness of a statement, the Adjudicating Officer shall note the fact of the objection and seek and record the reasons for it. He should then advise the defaulter that he will rule on the admissibility of the statement at the end of the hearing. In other words the objection should be considered and disposed of in the context of the trial as a whole and not as a separate issue."

It is complained that at no stage did the AO make the necessary ruling.

18. In an affirmation made subsequently by the AO, and accepted by the judge below, we find the following:

"I turn now to the question of admissiblity of the applicant's two statements under caution (Bridge - para. 11). It is correct that I admitted these statements of the applicant. As can be seen from pages 23 and 24 of the notes of proceedings, the evidence of the statement taking officer was not challenged during evidence in chief. At the outset of cross-examination the representative of the applicant said he objected to the admission of the two statements and asserted that they were involuntary. I then anticipated that matters would be put to the witness Kong which would support that assertion. The fact is that although many questions were asked and answered, no evidence or question emerged which raised any issue of force, threat of force or inducement and there was nothing on the facts that could be considered oppression nor did the applicant's representative call or seek to call any other evidence. In the circumstances it was clear to me that the challenge though asserted had not got off the ground, and there was nothing for me to decide on voluntariness."

In our view the matters put forward in that passage are in themselves sufficient to dispose of the objection.

19. We pause here to deal with a question which has caused us considerable anxiety, namely, the extent to which affidavits sworn subsequently to the initial challenge try sway of judicial review are admissible at the hearing of the review itself, in particular those sworn by the tribunal itself. Mr. Marshall informs us that such evidence is commonly admitted in the courts below without question, citing as an example LEE Hing Wing v. The Commissioner of Correctional Services, Mayo J., 17th October, 1985, unreported, M.P. 2077/85. Further Nazareth J. is recorded in the present instance as saying that it was:

"    not unusual or improper for the Court to receive supplementary affidavits".

Mr. Marshall seeks tentatively to support the practice, acknowledging at the same time that it is not an easy question.

20. For our consideration at the moment is an affirmation by the AO which seeks, as it recites, to put before the Court some additional facts and matters relating to the decisions made in view of the assertions and criticisms made in the application for review. It has the unmistakable appearance of being professionally drafted and deals with several matters that do not concern us here. Exception is principally taken to the parts where the AO explains his conclusion as to Dl's knowledge of the character of WONG Po Yee, and where he sets out what he took to be the correct elements in the D Charge.

21. A convenient start to the discussion may be found in R. v. Environment Secretary, Ex p. Powis, 1981, 1 W.L.R., 584. The facts of the case need not detain us but on p. 595 the English Court of Appeal considers what are the principles by which fresh evidence should be admitted on judicial review:

"They are (1) that the court can receive evidence to show what material was before tire minister or inferior tribunal: Ashbridge Investments Ltd. v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320, 1327, per Lord Denning M.R.; (2) where the jurisdiction of the minister or inferior tribunal depends on a question of fact or where the question is whether essential procedural requirements were observed, the court may receive and consider additional evidence to determine the jurisdictional fact or procedural error: see de Smith's Judicial Review of Administrative Action, 4th ed. (1980), at pp. 140, 141 and cases there cited; and (3) where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or the parties before it. Examples of such misconduct are bias by the decision making body, or fraud or perjury by a party. In each case fresh evidence is admissible to prove the particular misconduct alleged: see Reg. v. West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd. [1974] Q.B. 24, 39, 43 per Orr and Lawton L.JJ."

This classification enables us to dispose immediately of two authorities that have been drawn to our attention. The first is Breen v. Amalgamated Engineering Union and Others, [1971], 2 Q.B., 175. In that case the district committee of a trade union refused to endorse the election of a particular shop steward. It instructed the secretary, himself not a committee member, to write to the steward accordingly, giving the committee's reasons for the refusal. The secretary did so, including incorrectly an incident some years before when the steward had been accused of misappropriating union funds, but of which the steward had been cleared by the committee after a full enquiry. In an action, inter alia, to declare the committee's refusal null and void the trial judge accepted evidence from members of the committee as to what had transpired at the meeting. Part of his judgment, quoted by Lord Denning, at 192C, was in these words:

"Some members may have had a lurking and quite undefined impression in their minds about some trouble in 1958 about money. At least two of them indeed have given evidence saying that they had such an impression in, their minds. What I acs quite sure about, however, and so hold, is that there was no mention at the committed of the 1958 episode and no discussion about it: it played no part in the committee's decision."

In our view the first part of the last sentence shows that the evidence accepted by the judge falls fairly and squarely within the first principle of Powis. The decision was upheld by the majority of the Court of Appeal as a pure question of fact and we do not see Breen's case as breaking new ground.

22. The second authority is R. Liverpool City Council, Ex parte Liverpool Taxi Fleet Operators' Association, [1975], 1 W.L.R., 701. A committee of the Liverpool City Council met to decide whether more, hackney carriage licences should be issued to the taxi drivers in the area. Many more members of the public wished to attend the meeting than seats were available so that the committee, at the suggestion of the chairman, passed a resolution excluding members of the public except the press. That was contrary to the Public Bodies (Admission to Meetings) Act 1960 unless there were "special reasons". In subsequent proceedings in the Divisional Court an affidavit from the chairman was accepted in evidence to explain

(1) that there was no other practical solution, and

(2) it was thought desirable that competing applicants for licences should not be heard in the presence of each other.

23. While admittedly Lord Widgery C.J. referred to these as "the reasons which prompted the expulsion order", it seems to us that they are closely akin to, if not precisely within, the second Powis principle, i.e. "whether essential procedural requirements were observed".

24. Evidence relating to reasons in the sense that they explain the thought processes of the tribunal ado not fine place in any of the three Powis principles. The classic approach to such evidence is to be found in the words of Baron Cleasby in answer to questions put to the judges in Duke of Buccleuch v. Metropolitan Board of Works, (1871-72), 5 L.R.H.L., 418. The questions arose from proceedings to impeach an arbitration award in which the umpire had been called as a witness. The Baron's short answer to the questions were:

"1. That the umpire was a competent witness, like any other, person, to prove matters material to the issues.

2. That questions might be properly put to him for the purpose of proving the proceedings before him, so as to arrive at what was the subject-matter of adjudication when the proceedings closed, and he was about to make his award:

3. That as regards the effect of the award no questions could properly be put to the umpire for the purpose, of proving hour it was arrived at, or what items it included, or what was the meaning which he intended at the time to be given to it."

he later enlarged upon the third point:

"Thirdly: As soon as the award is made it must speak for itself. It must be applied, as in other cases, by extrinsic evidence to the subject-matter, but cannot be explained or varied or extended by extrinsic evidence of the intention of the person making it. There appear to me to be the strongest objections against allowing the umpire to be examined for the purpose of shewing what he intended to be included in the award.

.....

The award taken by itself is something certain and fixed, and settles the rights of the parties; but if evidence be admitted of the intention and state of mind of the umpire when he made it its certainty is destroyed and its effect depends upon his memory, clearness of intellect, and perhaps upon his views and wishes taken up afterwards. Surely it would be a most dangerous thing, after an award has been made which becomes of itself the foundation of a right, to allow any one to retain the power of explaining it away, or even of defeating it. We can properly investigate the acts of a Judge or arbitrator in prosecuting a particular inquiry, and his judgment founded upon it; but how can we investigate his secret thoughts or intentions? He is the only master of them, and what he says must be conclusive, as there is nothing which can contradict or explain it."

At p. 462 Lord Cairns was of a similar mind:

"The award is a document which must speak for itself, and the evidence of the umpire is riot admissible to explain or to aid, much less to attempt to contradict (if any such attempt should be made) what is to be found upon the face of that written instrument."

25. In Rex v. The Licensing Authority for Goods Vehicles for the Metropolitan Traffic Area Ex parte B.E. Barrett Ld., [1949], 2 K.B., 17, more than 100 years later Lord Goddard, dealing with the question whether a licensing authority had declined to exercise jurisdiction, commented @ p. 22 to similar effect:

"The second observation is that, where a tribunal, of whatever nature, has given a decision and expressed it in language from which the court can ascertain what the decision was, the court will not accept affidavit evidence to say that the tribunal meant something different from that which it said in its judgment. If there is an ambiguity, as sometimes happens, in a decision which is given, the court can send it back, as not infrequently it does in a case stated by magistrates, in order to clear up the ambiguity and to ascertain exactly what the magistrates meant; but, where the language of the tribunal, in which it expressed its judgment, is clear and there is no ambiguity, it would be quite wrong for this court to entertain affidavit evidence or other matter to try to explain that the tribunal, whether it is justices or any other tribunal, meant something different from what it said. In our opinion to do so would open up a very undesirable line of argument, because it might necessitate conflicting affidavits on such a matter. The litigants, who hear the decision given, have to decide from what the tribunal says, whether they have a right to come to this court or not. When they do come to this court, this court can only look at what the tribunal says, and cannot entertain affidavits (I am not saying that they went the whole way in this case) which would suggest that the tribunal meant something different from what it has said."

26. It is, with respect, not exactly clear how far extended the ambit of ambiguity which he thought could be sent back to magistrates for clarification, but possibly, in the light of his final remarks, he did not take it to go very far.

27. More recently the English Court of Appeal in Eckersley v. Secretary of State for the Environment and Another, 1977, 34 P. & C.R., 124, has said:

"It would of course, be entirely wrong on an application to the high Court to quash a compulsory purchase order (or in any similar proceeding) for the judge to ask the inspector to make fresh or additional findings of fact. Further, where such an application depended on the construction of the inspector's report, any evidence from the inspector about what he meant by his report would of course be inadmissible, and it would be wrong to ask him to explain his meaning."

28. Mr. Marshall has referred us to academic suggestion in 33 M.L.R. at 163 that would relax the strict approach so far set out:

"It is submitted that a tribunal or authority should always be able to amplify its original statement of reasons. If there is a duty to state reasons, the tribunal or authority can be compelled by mandamus to make a statement of reasons, or to complete an existing inadequate statement; no one objects that the statement is made or completed after the actual decision, and it has never been suggested that the case must be reconsidered ab initio. Why should the tribunal or authority not be able to make or complete its statement of reasons after its original decision, of its own motion, without being compelled to do so by mandamus? Nor would there seem to be, any objection to the same course being pursued by a tribunal or authority which is not under a duty to state reasons; at all events, the superior courts would not object, since the fuller the statement of reasons, the greater the possibility of judicial review."

Some authority in support of the suggestion is to be found in Squibb United Kingdom Staff Association v. Certification Officer, 1979, I.C.R., 235. The court was there concerned with a new trade union jurisdiction under which a Certification Officer was required to determine, and to give reasons for his decision, whether an applicant staff association qualified as an "independent trade union". There was provision for appeal from his decision to the Employment Appeal Tribunal. At the appeal in question the Certification Officer had appeared and given evidence, and been cross-examined as though he were a party. The court disapproved of that course, and in so doing Lord Denning likened the Certification Officer to a "justice of the peace or a planning inspector or an arbitrator or any of the many people who have to make decision from which there is an appeal". He then added:

"Such a person can be asked to supplement his reasons and to give further reasons: or the matter can be remitted to him for re-consideration"

29. The most recent authority brought to our notice is R. v. Lancashire County Council, ex parte Huddleston, [1986], 2 All E.R., 941, which concerned the refusal of the Lancashire County Council to give a discretionary education grant to the applicant's daughter. It is to be noted that an affidavit of reasons was filed subsequent to the launching of the court proceedings, although they were, as Sir John Donaldson MR remarked, "not wholly satisfactory". It is this aspect perhaps which principally prompted his general remarks, to which Mr. Marshall has specifically drawn our attention:

"Counsel for the council also contended that it may be an undesirable practice to give full, or perhaps any, reasons to every applicant who is refused a discretionary grant, if only because this would be likely to lead to endless further arguments without giving the applicant either satisfaction or a grant. So be it. But in my judgment the position is quite different if and when the applicant can satisfy a judge of the public law court that the facts disclosed by her. are sufficient to entitle her to apply for judicial review of the decision. . Then it becomes the duty of the respondent to make full and fair disclosure.

Notwithstanding that the courts have for centuries exercised a limited supervisory jurisdiction by means of the prerogative writs, the wider remedy of judicial review and the evolution of what is, in effect, a specialist administrative or public law court is a post-war development. This development has created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration.

With very few exceptions, all public authorities conscientiously seek to discharge their duties strictly in accordance with public law and in general they succeed. But it must be recognised that complete success by all authorities at all times is a quite unattainable goal. Errors will occur despite the best of endeavours. The courts, for their part, must and do respect the fact that it is not for then to intervene in the administrative field, unless there is a reason to inquire whether a particular authority has been successful in its endeavours. The courts must and do recognise that, where errors have, or are alleged to have, occurred, it by no means follows that the authority is to be criticised. In proceedings for judicial review, the applicant no doubt has an axe to grind. This should not be true of the authority.

The analogy is not exact, but just as the judges of the inferior courts when challenged on the exercise of their jurisdiction traditionally explain fully what they have done and why they have done it, but are not partisan in their own defence, so should be the public authorities. It is not discreditable to get it wrong. What is discreditable is a reluctance to explain fully what has occurred and why."

30. We would respectfully agree with Sir John Donaldson's comments. But we note that they were made with regard to what he referred to as the "wider remedy of judicial review" by means of which, in partnership with local authorities, the courts aimed at "the maintenance of the highest standard of public administration". In that context, where, as was suggested in the judgment reasons are often only rudimentary or not given at all, we would not, as at present advised, necessarily close the door to explanatory affidavits. But we are not concerned with that context. We are concerned with the more old fashioned context of private disciplinary proceedings where reasons have been given. In our view the interests of justice require that they should not be amended in the light of subsequent criticism. The person found guilty has a right to know where he stands at the conclusion of the proceedings. If what are then apparent flaws in the decision are remedied subsequently, then however great the actual integrity of the tribunal, its appearance will be sullied. The person found guilty will certainly, and the reasonable bystander will quite likely, think that justice has not been done. We do not think that their feelings would be assuaged, as Mr. Marshall has suggested, by the thought that the judge would only give to such amendments the weight that he thought fit. In cases such as these we would most firmly adhere to the traditional principles and exclude on judicial review any further evidence which did not satisfy the requirements laid down in Powis. In the instant appeal we have ignored such parts of the AO's affirmation as could be regarded as explanatory of or qualifying the terms of his judgment.

31. We return to the hearing itself. At the close of the prosecution case prosecuting and defence officers submitted written submissions which the AO adjourned to consider. On resumption he intimated that he was satisfied that both D1 and D2 had cases to answer on all charges. Both declined to give evidence, but D1 called two witnesses. Further written submissions were then put forward, upon which the AO observed:

"Based on the written submission from D2 it appears that he had a lot to explain about his innocence in the charge though he had decided not to give evidence. In view of this D2 is asked if he would like to give evidence instead so that he would have the chance to fully explain himself. Defaulter is reminded that he is not obliged to do so but if he thinks it will be of his benefits and advantage to do it he may do so. His evidence will of course be subjected to cross-examination."

32. D2 accepted the invitation, the objection of the prosecuting officer being dismissed by the AO in these word:

"AO consider it would be fair to the tribunal and D2 if he is allowed the chance to give his evidence. It would also help the tribunal to have a better information to reach its finding."

33. It is suggested that the course adopted by the AO was incompatible with a fair trial for D1, giving at least the impression of bias on the part of the AO. We are referred to the words of Ackner L.J. in R. v. Liverpool City Justices, Ex p. Topping, 1983, 1 W.L.R., 119, at 123:

"In our view, therefore, the correct test to apply is whether there is the appearance of bias, rather than whether there is actual bias.

.....

Would a reasonable and fair-minded person sitting in court and' knowing all the relevant facts have a 'reasonable suspicion that a fair trial for' the applicant 'was not possible'?"

and to other well-known passages which were respectfully adopted, by this Court in Lorrain Esme Osman v. The A.G. and another, unreported, 4th May, 1989.

34. In our view a reasonable and fair-minded person sitting in on the hearing would not have thought that Dl did not have a fair trial. He may have thought that the AO was overly considerate to D2, but, like tire judge below, he would have had no doubt that had Dl then made application to give evidence as well, the AO would have shown him the same consideration. It is also suggested that the failure of the AO specifically to invite further submissions consequent upon D2's evidence actively prejudiced Dl. We are unable to comprehend how that may have been and are satisfied, as we were when a similar point was made with regard to the additional charges, that no unfairness resulted to D1.

35. So far we have dealt with criticisms of the procedure adopted at the hearing. We turn now to matters of substance.

36. It is well established that the courts will intervene where tire evidence before a tribunal is not fairly and reasonably capable of supporting the finning made. As long ago at least as 1894 that was accepted in Allinson v. the General Council of Medical Education and Registration, [1894], 1 Q.B., 750, at, 760. With this in mind we look at four aspects of the charges laid.

37. The first relates to the E and F Charges of disobedience to orders. The order in question was alleged to be a verbal order from Mr. YIP Kai Chi that D1 should not leave the Kwun Tong Police District whilst on duty without the prior approval of his senior officer. There was ample evidence that D1 was outside the district on the two occasions already mentioned and that these visits occurred during his working hours. The question is whether any such order was in fact given.

38. Evidence in support of the order came from Mr. YIP Kai Chi himself, and from Sergeant LI Wan Piu, his second in command of the four man unit of which D1 formed part. The fourth member was PC14218 CHIANG Tang Tat, who gave evidence for Dl that:

"DSI YIP Kai Chi ... had not mentioned if we could leave the District whilst on duty. There was not any instruction regarding leaving the District whilst on duty."

The AO dismissed the Constable's evidence as being "of no use", by which we understand him to mean that Ire did not believe it. There was indeed some discrepancy between the evidence of DSI and the Sergeant, in that the former suggested that approval could be given by either himself or the Sergeant, while the latter said that he had no such authority in the OC's absence. As at no time was there any suggestion that permission had in fact been obtained that is a matter of no importance. We are satisfied that there was sufficient evidence to justify a finding that the order in question had been given.

39. The second question is whether there was sufficient evidence that the goods in question had been stolen. This can be swiftly disposed of, because it turns in effect upon the question we have already dealt with, namely, whether hearsay evidence was admissible. Once it is accepted that a tribunal may act upon such evidence it cannot be disputed that there was, in this respect, sufficient evidence before the AO in the present instance.

40. The two remaining questions relate to the knowledge of D1, i.e. whether he knew that WONG Po Yee was an undesirable character and whether he knew that the goods were stolen. Their consideration is inevitably closely interwoven, for if D1 knew that the goods were stolen lie was bound to realise that WONG Po Yee was an undesirable character, - (and the association continued after their receipt) - while if he already knew that WONG Po Yee was an undesirable character when the goods were given to him, he could be expected to be at least suspicious of their provenance.

41. It is conceded that WONG two Yee was in fact a bad character. The factors which the AO took into account with regard to the Defendant's knowledge of that were:

(1) that D1 admitted in his cautioned statement -

(a) that he first met Wong in 1982;

(b) that lie had associated with Wong on at least three occasions in August and September, 1986; and

(c) that he was willing to help Wong by looking after some glass glues and strips of cloth.

(2) that Dl lead been in the Police for ten years, with four of those in "crime formation", (which we understand to mean criminal investigation), so that he was easily able to ascertain the backgrounds of Wong.

42. In truth D1's experience in criminal investigation was nearer three than four years, but we do not regard the difference as material. It has been strongly urged upon us that in his cautioned statements Dl referred to Wong Po Yee as WONG Tin Yau, whereas his criminal record is filed under what we assume to be his real name. No point was taken as to this below by the Inspector who defended D1 and we have to observe that the ways in which a Police Officer, particularly one working in an intelligence unit, could check upon the integrity of those whom he may choose to make his companions, would be very much matters more within the experience of the defending Inspectors and of the AO than our own.

43. The factors which the AO took into account with regard to Dl's knowledge that the goods were stolen were:

(1)     contradictions between Dl's two statements. In his judgment the AO recorded:

"Under enquiries D1 gave two cautioned statements and his versions about the glues were contradicting to each other. Quite obviously he had lieu to the investigating officer and was try to hide something from the Police."

Despite Mr. Eddis' metaphysical analysis of what untruths should genuinely be called lies, we see no reason to disagree with the AO's conclusion;

(2)    D1 deceived D2 as to where the goods came from;

(3)     the price charged by Dl was much cheaper than the market price; and

(4)     D1 was in possession of other stolen goods.

44. The AO could have added that the goods in question were recently stolen, indeed on the very same pay that they were shown to D1.

45. In cur judgment there was sufficient evidence upon which the AO could have found that Dl did know both that the goods were stolen and that WONG Po Yee was an undesirable character.

46. Having satisfied ourselves on that score we turn to consider whether the AO did in fact make such findings, or to put it another way, did he apply the correct tests with regard to the mental element required by the charges. It is necessary to consider this question carefully, for the officer prosecuting, both in reply to the submissions of no case and at the conclusion of the hearing, emphasized his view that neither knowledge of Wong's character nor that the goods were stolen was a necessary ingredient; physical association or handling, as the case may be, were in themselves sufficient.

47. Mr. Marshall does not seek to support that view, but we have to be satisfied that the AO did not mistakenly apply it. In considering the question we shall, of course, as we said earlier, ignore what is contained in the AO's subsequent affirmation.

48. In his reasons, in August 1987, for convicting D1 on the D Charge, the AO makes no mention of Dl's knowledge, although his comment that the price charged by Dl "was obviously unusually cheap to anyone with a little bit of common sense" indicates some concern with what D1 may have been thinking. However his reason for acquitting D2 on the same charge - "his claim on his belief that D1 was the rightful owner of the glue was not and cannot be easily disputed" - clearly indicates that he did accept the need to prove knowledge. In that circumstance we find it impossible to accept that he had not adopted the same standard with regard to D1.

49. It is clear that the AO considered that some element of knowledge was also necessary with regard to the C Charge, for he said:

"Considering Dl's 10-year service in the Police Force with 4 years in crime formation (attachment to DIS), D1 should be an experienced officer to ascertain the background of WONG Po Yee. D1 had shown himself to be a very cautious person in his 2nd cautioned statement that he had repeatedly asked gong on the source of the goods.

The length of acquaintance gives no excuse for Dl not knowing about Wong's background."

50. Having regard in particular to the last sentence, this passage is susceptible of two interpretations, either that D1 must have known of Wong's character, or that in the circumstances he ought to gave known. However a possible "negligent" commission of the offence was suggested by no one at the hearing end finds no reelection in any other part of the reasons given by the AO. We bear in mind that he was giving his reasons in a language other than his own and we are satisfied, after consideration, that he did apply the correct criteria to the evidence he had heard.

51. The Notice of Appeal to this Court from the decision of Nazareth J. contains 27 separate grounds of appeal, with a further ground having been added during the course of the hearing. Their substance has been dealt with in our consideration of the initial hearing before the AO. We do not propose to deal with them further. For the reasons we have there given, the appeal must be dismissed.