LEUNG FUK WAH OIL v. THE COMMISSIONER OF POLICE

HCAL371/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 371 OF 2001

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J U D G M E N T

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Introduction

1. The applicant in this matter was at all material times a sergeant in the Hong Kong Police Force. In 1999, disciplinary proceedings were commenced against the applicant. They were instituted because he had, so it was alleged, allowed himself to fall into a position of deep financial embarrassment, the consequence being that he was unable to operate efficiently. The proceedings, which included an appeal, endured until early 2000 and resulted in the applicant's dismissal from the force. He now seeks by way of judicial review to quash the various decisions made in the course of those proceedings.

2. It appears that in the mid to late 1990s the applicant (and his then wife) made a number of disastrous private investments. As a result, the applicant fell deeply into debt. There was no way that he could hope to repay his debts other than on a long-term, structured basis. In May 1997, the applicant consulted a staff relations officer concerning his financial difficulties. At that time the applicant was earning some $21,000 per month. His total indebtedness exceeded $350,000. It is apparent that, in terms of internal administrative directives, he was classified as an 'active debtor'.

3. As his debts at that time exceeded $100,000, he was interviewed by his formation commander who gave instructions that the applicant was to report regularly to the staff relations officer who would monitor his progress in reducing his debts.

4. Over the course of the following year, the applicant's debts increased substantially. During this time (so it appears from evidence given in the disciplinary proceedings) he was warned by the staff relations officer that unmanageable debts would be viewed most seriously by the force and that he was in danger of facing disciplinary proceedings. However, by March 1998, the applicant had become indebted to various banks, credit card companies and other financial institutions in a sum of exceeding $700,000.

5. Internal police directives state that if an officer has 'unmanageable debts' disciplinary action should normally follow. The rationale is expressed in an internal directive entitled 'Force Policy on the Management of Indebtedness' in the following terms :

" When an officer has an unmanageable debt or has obtained loans from illegitimate or unauthorised sources, the potential for his duty performance to suffer and/or for his integrity to be compromised is high. The pressure involved may place stress on him to the extent that he can no longer concentrate fully on his duties and/or the need to obtain money reaches such a level as to convince him to turn to corruption or other illegal means to meet that need. Every effort must be made to avoid such circumstances arising."

6. With debts exceeding $700,000, the applicant was classified as having 'unmanageable debts'. His formation commander directed that he should no longer be allowed to carry a firearm and that his future duties should not allow him to handle cash. This action on the part of the formation commander was carried out in terms of the internal directive to which I have just referred; more particularly, paragraph 21 which, in part, reads :

" Officers with unmanageable debts or debts originating from an unauthorised source may be in a position where they can be compromised and accordingly they should be subject to close supervision. In each case Formation Commanders should examine whether the officers are suitable to fill or to remain in sensitive posts ...."

7. In addition to internal directives, Police General Orders ('PGOs') direct that police officers shall be prudent in their financial affairs. In this regard, Police General Order 6-01(8) reads :

" A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment from whatever cause is regarded as a circumstance which impairs the efficiency of an officer."

8. Police officers who disobey PGOs are liable, in terms of section 3(2)(e) of the Police (Discipline) Regulations, Cap.232 ('the Discipline Regulations'), to be charged with a disciplinary offence. In December 1998, the applicant was so charged. The charge that was finally settled against him read as follows :

"SGT 7114, LEUNG Fuk-wah, of the Hong Kong Police Force, you are charged that on 21 March 1998, in Hong Kong, you did fail to be prudent in your financial affairs by incurring unmanageable size of debts whereby your efficiency as a police officer was impaired, contrary to PGO 6-01(8)."

9. A disciplinary hearing, commonly called defaulter proceedings, took place in early 1999. The officer appointed as the appropriate tribunal in terms of Part II of the Discipline Regulations was Superintendent Rocha ('the adjudicating officer'). The applicant faced two charges but the second (one of less gravity) is of no relevance to this judgment. The applicant pleaded not guilty but on 28 March 1999 the adjudicating officer found him guilty and on 13 April 1999, deciding that he did not have the power to impose an appropriate penalty, he informed the applicant that, in terms of regulation 14(1)(c) of the Discipline Regulations, he was referring the matter to a senior officer.

10. The senior officer appointed to consider and impose an appropriate penalty was Chief Superintendent Hung who imposed a penalty of reduction to the rank of police constable and dismissal from the force. However, the imposition of that penalty was not, in terms of regulation 14(1)(c) of the Discipline Regulations, made within 14 days. In this regard, the relevant minute reads :

" My confirmation of the findings and awards were conveyed by me personally to the defaulter SGT 7114 LEUNG Fuk-wah at 14:30 hours on 28.4.99 at my office. ...."

11. In November 1999, in terms of regulation 15 of the Discipline Regulations, the applicant appealed to the Commissioner. He did so in writing and by way of petition. The appeal was considered by the Commissioner's authorized deputy, Deputy Commissioner Tsang. The various papers placed before the Deputy Commissioner included not only the applicant's petition but various minutes written by senior officers with responsibility for disciplinary matters and/or for advising the Deputy Commissioner. The applicant was not given sight of these various minutes.

12. On 8 March 2000, the Deputy Commissioner dismissed the applicant's appeal. His minute to this effect reads (in part) :

" I have read all the relevant papers and considered the appeal carefully. I have taken particular note of M. 15 & M. 16 of this file and the staffing note at encl. (19). I concur fully with the comments and observations made in these minutes and the note. I have found no merit in the appeal. But the guilty findings and the award of Dismissal were well based and appropriate and should be upheld. ...."

The grounds of challenge

13. The applicant seeks orders of certiorari to quash the three decisions which have resulted in his dismissal from the force; namely :

(1) The adjudicating officer's finding of guilt;

(2) Chief Superintendent Hung's imposition of a penalty of dismissal; and

(3) Deputy Commissioner Tsang's dismissal of the appeal.

14. The orders of certiorari are sought on three separate grounds which may be summarized in the following terms :

(a) The decision of the adjudicating officer was wrong in law. Before the applicant could be convicted of the offence charged, it was necessary to prove not only that he had incurred debts of such size that they were unmanageable but that as a consequence his efficiency as a police officer was impaired. There was, however, no evidence to support the second essential element of the offence. Alternatively, the adjudicating officer made a finding which was wrong in law or Wednesbury unreasonable in that he found that the order by the applicant's formation commander to refrain the applicant from carrying a firearm or dealing with cash had the consequence of impairing the applicant's efficiency and that this was sufficient to prove the second essential element of the offence.

(b) Regulation 14(1)(c) of the Discipline Regulations directs that any penalty imposed under that regulation must be imposed within 14 days. That is a strict requirement and the failure to impose a penalty within that time acts as an absolute bar to the imposition of a penalty thereafter. Accordingly, once out of time, Chief Superintendent Hung had no power to impose a penalty upon the applicant.

(c) When the applicant appealed by way of petition to the Commissioner of Police, his inability to see the various minutes written by senior officers commenting on his appeal (and, if he deemed it appropriate, to answer those comments) constituted procedural unfairness of sufficient materiality to vitiate the appeal procedure.

The first ground (unlawfulness and/or unreasonableness) : the finding that the applicant's efficiency had been impaired

15. I confess that, along with previous courts tasked with interpreting the provision, I have found the meaning and intent of PGO 6-01(8) to be lacking in clarity. To repeat my earlier citation, that order reads :

"A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment from whatever cause is regarded as a circumstance which impairs the efficiency of an officer."

16. My task, however, has been made considerably easier by a judgment of this court - Ng Kam Chuen v. Secretary for Justice [1999] 2 HKC 291 - given on 1 April 1999, just two days after The adjudicating officer convicted the applicant. In that judgment, the same charge as the one faced by the applicant fell for interpretation. It had been argued that the link between serious pecuniary embarrassment and impairment of an officer's efficiency is sufficiently obvious to justify the conclusive presumption that the former results in the latter. This argument was rejected by my brother, Stone J, who ruled (at 296) as follows :

".... In my judgment, a reasonable and purposive construction of the present charge based on PGO 6-01(8) is that the Force bears the ultimate legal burden of establishing both serious pecuniary embarrassment stemming from financial imprudence and consequent impairment of efficiency of the officer concerned, but that upon the demonstration of serious pecuniary embarrassment (in most instances, I should have thought, something which will be as plain as a pikestaff) the evidential burden then shifts to the accused officer to establish that his efficiency as an officer has not been impaired. Whether this be put in terms of responding to a rebuttable presumption or in terms of the shifting of the evidential burden does not seem to me to much matter; in disciplinary proceedings based on this order (at least wherein the charge is framed in like terms to that of the present), the Force is empowered to start from the premise that one state of affairs (serious pecuniary embarrassment) does in fact lead to the other (impairment of efficiency as an officer) without the necessity of leading evidence on the point, and the ball is then in the accused officer's court to displace the view expressed within this particular Police General Order. What in my judgment it does not do is to sanction an approach whereby the issue of impairment of efficiency is, in effect, simply discarded from consideration by reason of the perception that such is conclusively presumed within the terms of the order."

17. I am in agreement with that finding. As Stone J said, such a construction does not do violence either to the wording of the PGO or the policy underpinning it. Equally, it promotes an essentially fair trial of the issues in the widely varying circumstances which must arise in determining whether a charge of this kind has been proved.

18. As a result of Stone J's judgment, an administrative directive was issued by the Commissioner of Police. In that directive he said :

".... recent legal advice again highlights the fact that automatic restrictions placed on an officer, which flow from establishment of the latter's indebtedness but fail to take into consideration his specific circumstances, may not be capable of supporting a finding of impaired efficiency."

19. But that, complains Mr Leong on behalf of the applicant, is exactly the error into which the adjudicating officer fell. The applicant's formation commander had, in reality, imposed an automatic set of restrictions on the applicant when his indebtedness was deemed to be unmanageable. If those restrictions resulted in the applicant being impaired in the efficient conduct of his general duties, that had come about not as a result of his unmanageable finances but because a set of standard restrictions had been imposed upon him, restrictions which were themselves triggered simply by the level of the applicant's indebtedness. That, argued Mr Leong, was either wrong in law or logically irrational and therefore unreasonable in the Wednesbury sense.

20. The adjudicating officer's decision was made prior to Stone J's judgment and, of course, prior to the administrate directive issued in the light of that judgment. Despite this, it is apparent that he was satisfied on the evidence before him that, as a consequence of his profound indebtedness, the applicant's efficiency as a police officer was impaired. The single issue, therefore, is whether he fell into error in the manner propounded by Mr Leong.

21. On behalf of the Commissioner, Mr Westbrook has emphasized that the applicant's formation commander was not obliged as a matter of course to impose the restrictions that he did. Paragraph 21 of the 'Force Policy on the Management of Indebtedness' (supra) vested a discretion in the formation commander, obliging him only to examine whether the indebted officer remained suitable to carry a weapon, deal with cash or occupy a sensitive post with access to arms or cash. It is apparent, said Mr Westbrook, that the formation commander in this instance did examine the particular circumstances of the applicant and came to his finding based on his observations.

22. In this regard, Mr Westbrook pointed to the transcript of the disciplinary proceedings in which the formation commander said :

".... I decided to place SGT 7114 under the list of officers with Unmanageable Debts and I informed SGT 7114 accordingly. SGT 7114's emotion at that time was not calm and was very desperate. I also decided that SGT 7114 was to remain in indoor duties and be refrained from performing duties which may require the handling of cash. I also refrained SGT 7114 from carrying firearms in order that he may not use firearms to harm himself or anyone else." [my emphasis]

This indicates, said Mr Westbrook, that the formation commander, having monitored the applicant's slide into increasing debt over the past year, and being concerned as to the applicant's emotional state, made his decision not as a matter of course but because he believed it to be necessary in the circumstances.

23. Elsewhere is his testimony, however, as Mr Leong indicated, the formation commander appeared to indicate that he did impose the restrictions as a matter of course. In particular, the following exchange is recorded in the transcript of the proceedings, the answer being given by the formation commander :

"Q: .... you mentioned that you have directed DVC MSDIV to conduct a disciplinary review on SGT 7114 as he was unlikely to perform operational duties as stipulated in the Police Force Ordinance in a short period of time. Do you consider that this has already impaired SGT 7114's duty?

A: Because of SGT 7114's debt, I decided that he should not be involved in duties which requires the handling of money and/or firearms therefore under normal circumstances he cannot carry out normal constabulary duties." [my emphasis]

24. Of course, it is not for this court to conduct an examination of the minutiae of the evidence given in the disciplinary hearing in order effectively to usurp the responsibility of the adjudicating officer, even less to act as a court of appeal. As Lord Brightman said in Chief Constable of the North Wales Police v. Evans [1982] 1 WLR 1155 (at 1173) :

"Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power .... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made."

25. I must also bear in mind that the proceedings under review are those of a disciplined force in which the professional judgment of officers within that force must be respected. In this regard, in Tong Pon Wah v. Hong Kong Society of Accountants [1998] 2 HKLRD 927, Godfrey JA said :

" Every professional body is entitled to apply its own professional judgment to a case in which one of its members is called on to justify his conduct in (allegedly) failing to observe a standard or guideline laid down by that professional body for the protection of those dealing with members of that professional body. It is not, in my judgment, for this court to second-guess the professional judgment of a disciplinary committee such as this except where it can be seen that it has plainly misread the evidence and come to a conclusion which is contrary to the evidence or is otherwise plainly wrong." [my emphasis]

In the same case, Liu JA observed :

" It must be recognised that over-legalising informal disciplinary proceedings is undesirable. Most disciplinary tribunals are presided over by men or women with no legal qualifications. Even solicitors chairing the Law Society disciplinary committee hearings are no professional judges. I do not doubt that they are able to and can return correct verdicts, but these proceedings are often distressfully flawed in the courts by a fault-finding expedition in which non-professional judges are clearly more vulnerable."

26. In his reasons for convicting the applicant, the adjudicating officer was satisfied that the formation commander - although no psychologist - nevertheless had over 20 years experience in the 'management field' in the police. As he said of the formation commander :

".... His experience would tell him whether an officer's emotion is suitable to carry out such jobs. [The formation commander] testified that the Defaulter's emotion was unstable and not suitable for carrying arms. ...."

27. It emerges from the adjudicating officer's findings that he was further satisfied that the formation commander had examined the personal circumstances of the applicant and had decided to place the restrictions on him as a result of that examination (even though the imposition of such restrictions was almost invariably what he considered appropriate).

28. It is to be noted, I believe, that the adjudicating officer did not rely solely on the observations of the formation commander but found support for them in the observations of other witnesses as to the state of the applicant's emotions. He also recorded that the applicant himself had admitted to being under considerable psychological pressure brought about by his indebtedness and the disciplinary proceedings. To this toll was added the emotional burden of the breakdown of the applicant's marriage.

29. The adjudicating officer also referred to a recent report on the applicant's performance written by a supervising officer. In that report, the following had been said :

" This officer's day-to-day duty performance cannot be faulted. However, he appears dispirited and somewhat fatalistic and is evasive when addressed. He has, on more than one occasion, telephoned from the mainland to request additional days VL at short notice (he has taken some 801/2 days of VL during the past six months). While his duty performance is beyond reproach he does not convey the sense of trustworthiness that is expected of an NCO and, as a result, he requires almost constant supervision." [my emphasis]

It is, I think, self-evident that an NCO who requires constant supervision when in the past he has not required it cannot be said to be working to his accustomed level of efficiency.

30. The adjudicating officer considered the applicant's submission that he had been in debt for a 'long period of time' and that his performance had not been affected by them. However, in that regard, having considered the history of the applicant's borrowings, he commented :

".... He lived by incurring debts until they became unmanageable. His performance started to be affected after he obtained further loans from different sources."

31. The adjudicating officer went on to say :

"Between 30 November 1997 and 21 January 1998 the Defaulter applied for interrupted long vacation leaves. The Defaulter obtained many loans over this same period. This tends to indicate that the Defaulter had no little or no interest to work for the Force and to serve the community."

In my judgment, a lack of interest in a job can legitimately be a factor pointing towards an impairment of efficiency in that job.

32. In all the circumstances, having studied the adjudicating officer's extensive findings, I am satisfied that he did not fall into error in the manner so persuasively argued by Mr Leong. If the formation commander had imposed his restrictions upon the applicant as a matter of course, that imposition quite manifestly could not be used as evidence of the applicant's impairment of efficiency. But the adjudicating officer did not find that to be the case; he found that the applicant's personal circumstances had been taken into account before the restrictions were imposed upon him. In short, as Mr Westbrook expressed it, he found that he applicant had brought the restrictions 'down upon his own head' and that they had not been imposed upon him automatically. That being the case, I find no error of law or logic on the part of the adjudicating officer in taking into account the formation commander's restrictions.

33. Nor, in my view, should it be forgotten that the adjudicating officer considered a range of other mattes too before making his finding that, as a direct consequence of his unmanageable debts, the applicant's efficiency as a police officer had been impaired. There was, I am satisfied, evidence upon which the adjudicating officer could rationally come to his decision. This first challenge must therefore fail.

The second ground (unlawfulness) : the imposition of the penalty of dismissal out of time

34. Having convicted the applicant on 29 March 1999, because of the perceived gravity of the offence, the adjudicating officer determined that the question of punishment should be referred to a senior officer. This was announced to the applicant on 13 April 1999, the order being made in terms of regulation 11(6) of the Discipline Regulations which reads :

" (6) Where a defaulter pleads guilty or is found guilty and the appropriate tribunal considers that the punishment which it can award is insufficient, it shall not make an award but shall-

(a) endorse the Defaulter Report to that effect;

(b) send the Defaulter Report to a senior officer;

(c) inform the defaulter of that action,

and, subject to these regulations, the senior police officer may make an award which he shall communicate to the defaulter personally."

35. It appears, however, that a delay occurred in appointing a senior officer to consider the matter. This arose because the first officer appointed was concerned that he may be criticized as being biased. As a result, Chief Superintendent Hung was appointed.

36. In terms of regulation 14(1) of the Discipline Regulations, Chief Superintendent Hung was obliged to determine and inform the applicant of his decision within 14 days from the date of the adjudicating officer's referral. As it was, Chief Superintendent Hung informed the applicant of his determination on 28 April, at least one day out of time. Regulation 14(1) reads :

" Within 14 days from the date of any finding or award made by an appropriate tribunal, a senior police officer shall-

(a) ....

(b) ....

(c) where the appropriate tribunal has sent the Defaulter Report to him because it considers the punishment which it can award is insufficient, make an award which he shall announce personally or communicate in writing to the defaulter." [my emphasis]

37. On behalf of the applicant, Mr Leong has submitted that regulation 14(1) imposes a requirement to comply strictly with its time limits. In short, the time limits imposed by the regulation are not capable of being waived and non-compliance with those time limits renders the imposition of any punishment invalid. Mr Westbrook, on the other hand, has contended that there has been substantial compliance with the time limits and that is sufficient. To employ traditional terminology, Mr Westbrook has argued that the time limits are directory only and not mandatory.

38. Many statutory and regulatory instruments do not identify what the consequences of a failure to comply with a procedural requirement should be. Conventionally, as Keith JA said in In Re Au Kwok Hung [2000] 4 HKC 659 (at 663), the consequences of such failure have depended upon whether the requirement has been found to be imperative (or mandatory) or merely directory. However, as Keith JA noted, the criticism of the conventional approach is that it concentrates too much on labels. As he expressed it : "What is the point in labelling the procedural requirement as imperative or directory if there is at the same time no method for determining which is the correct label to apply?" In the result, the Court of Appeal in Au Kwok Hung adopted the 'far more principled' approach which had earlier been defined by the English Court of Appeal in R. v. Secretary of State for the Home Department, ex parte Jeyeantham [2000] 1 WLR 354. In so doing, Keith JA noted that, in the opinion of the English Court of Appeal, the conventional approach had distracted attention from the important question of what the legislature should be judged to have intended should be the consequence of the non-compliance. Keith JA continued by saying :

"If the critical question is what the legislature should be regarded as having intended to be the consequence of the non-compliance, how is that intention to be ascertained? At p 362D-E, Lord Woolf said that three questions are likely to be of assistance:

1. Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)

2. Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension time for compliance as a waiver.

3. If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)

He added that which of these questions will arise will depend upon the facts of the case and the nature of the particular requirement, and that the second and third questions can often be decided together."

39. As to the first question, namely, whether it is to be judged that the legislature intended that substantial compliance would be sufficient and, if so, has there, in fact, been substantial compliance, Keith JA said :

".... Whether a requirement has to be strictly complied with, or whether substantial compliance with it is sufficient, will depend on the nature of the requirement. Take an appeal which is required to be lodged on a particular form, which requires a number of particulars to be completed, including, for example, the appellant's telephone number (not because his telephone number is relevant to the merits of his appeal but so that the appeal panel can communicate with him easily). In such a case, it is likely that a failure to comply with the requirement to give one's telephone number will not be regarded as fatal, and that the lodging of the form without the telephone number will be regarded as substantial compliance with the requirement to complete the particulars and a sufficient compliance to render the statutory requirement fulfilled."

He continued by saying :

" But the position is different when the requirement consists of doing a particular act by a particular date. We really cannot see how such a requirement can be regarded as anything other than a requirement which has to be compiled with strictly. Why should a requirement, which consists simply of doing something by date X, be regarded as having been compiled with (albeit substantially) if it is only done by date Y? ...."

40. In light of that dicta, and upon a consideration of the wording of regulation 14(1), I can discern no intention to the effect that, provided a punishment is determined and communicated to an officer within about 14 days, that will suffice. Delay prejudices the efficiency of the force and places an unacceptable strain on individual officers facing punishment. In my judgment, the plain intent of the regulation was that there should be strict compliance.

41. But that, of course, does not end the matter. In my judgment, the more critical questions are questions two and three. Question two asks whether a failure of strict compliance is capable of being waived and, if so, can it and should it be waived in this particular case? This question, I believe, is to be asked together with question three : If it is not capable of being waived, or is not waived, what is the consequence?

42. The consequence, in my view, would lead to a hiatus in the disciplinary proceedings which would benefit neither the police force nor the officer facing punishment. Indeed, I would go so far as to say that it would lead to an absurdity never contemplated by the law-makers. Non-compliance with regulation 14(1) does not, in my judgment, in any way undermine or vitiate the earlier defaulter proceedings which resulted in a conviction. Accordingly, if non-compliance could not be waived, it would mean that no punishment could be visited upon an officer who quite lawfully (and in the best interest of both the force and the public) had been convicted of a disciplinary offence. What would be the consequence of that? Would it mean that a convicted officer, for the sake of a day's delay, would, in practical terms, escape any form of punishment? That would lead to a justifiable sense of grievance on the part of all right-thinking police officers. Would it mean, therefore, that the particular process of determining and awarding a punishment would be quashed so that it would have to start again? That surely would only increase delay rather than reducing it and, in my view, would do so for no good cause; in particular, I do not see how it could assist a convicted officer who is entitled to be promptly advised of his punishment. After all, if aggrieved by the punishment, that officer still has the appeal procedure open to him.

43. In the circumstances, I am satisfied that it must have been the intention of the law-makers that non-compliance with regulation 14(1) would not vitiate the disciplinary proceedings; that it was capable of being waived and that it should be waived where there had, in fact, been no delay resulting in material prejudice to a convicted officer.

44. In the present case there was a delay of just one or two days. Whatever the reason for that delay, there has been no suggestion that it prejudiced the applicant in the manner in which he was able to make representations by way of mitigation. I can discern no other injustice to him. That being the case, I am satisfied that non-compliance should be waived. The applicant's second ground of challenge must therefore fail.

The third ground (breach of natural justice) : failure to disclose to the applicant the contents of various minutes placed before the Commissioner to assist him in deciding the appeal

45. The applicant's appeal to the Commissioner was made in terms of regulation 15 of the Discipline Regulations. That regulation reads :

" (1) A junior police may within 14 days of the announcement to him by, or, as the case may be, the receipt of a communication from, the Force Discipline Officer of any finding, decision or punishment, appeal in writing to the Commissioner by petition which shall contain such representations as may be relevant to the appeal.

(2) Upon an appeal under this regulation the Commissioner may-

(a) vary any finding and substitute any finding which he could have made on the evidence adduced; or

(b) order a rehearing of the case on the same or other charges by another appropriate tribunal; or

(c) substitute any other punishment that he is empowered to award.

(3) Upon an appeal under this regulation the Commissioner-

(a) may permit the defaulter to appear before him in person to support his appeal;

(b) subject to these regulations, may hear such additional evidence as he considers relevant; and

(c) subject to these regulations, shall announce personally or communicate in writing to the defaulter the outcome of the appeal or the action taken under this regulation."

46. In terms of regulation 15, the Commissioner possesses broad procedural powers. He may, in his discretion, permit an appellant to appear before him to make oral representations and generally he has the power to call for such other evidence as he considers relevant. But absent the use of these powers, the appeal process is essentially a 'paper process'. By that I mean that the appellant submits a written petition which, together with a record of the defaulter proceedings, is placed before the Commissioner and it is on the papers presented to him that the Commissioner makes his decision. The Commissioner is here exercising an administrative power mandated in the Discipline Regulations. As such, while the technical rules of evidence applicable to civil or criminal litigation (in so far as they relate to appeals) play no part, the Commissioner is nevertheless obliged to adhere to what used to be called the rules of natural justice but today is more commonly referred to as the rules of fairness.

47. But what does fairness dictate in administrative proceedings of the kind constituted by regulation 15? The broad principles were, I believe, clearly stated in the seminal Privy Council decision of Mahon v. Air New Zealand Ltd [1984] 1 AC 808 (PC) in which Lord Diplock (at 820) said :

" The rules of natural justice that are germane to this appeal can, in their Lordships' view, be reduced to those two that were referred to by the Court of Appeal of England in Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456, 488, 490 .... The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made." [my emphasis]

In respect of the second rule, Lord Diplock continued :

" The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result." [my emphasis]

48. As I said in a recent judgment (Yu Chee Yin v. The Commissioner of the Independent Commission Against Corruption, HCAL No.97 of 2000), in broad terms, what is required is 'no more than that a person under risk should be sufficiently informed of the allegations made against him so that he is not in any relevant way 'left in the dark' and thereby deprived of the opportunity to produce his own material for consideration ....'.

49. It is, however, the applicant's case that in making his appeal to the Deputy Commissioner he was very much 'left in the dark' as to the material that would be placed before the Deputy Commissioner, material which in the result clearly influenced the decision to dismiss the appeal. The material, said Mr Leong, consisted of a body of internal memoranda or minutes penned by senior officers, all of which was intended to influence the Deputy Commissioner and all of which was placed before the Deputy Commissioner without the applicant's knowledge. Mr Leong contended that if the applicant had been made aware of the contents of these advisory memoranda he would have wished to comment on them. He was, however, denied the ability to do so. In substance, said Mr Leong, this amounted to a denial of the right to be heard.

50. I have earlier quoted from the Deputy Commissioner's minute in which he dismissed the applicant's appeal. In that minute he made specific reference to two advisory minutes (M.15 and M.16) and to what he called a 'staffing note', saying that he agreed with the 'comments and observations' made in them. None of these memoranda were shown to the applicant before the Deputy Commissioner considered the appeal.

51. As to the purpose of these internal memoranda and the use to which they are put, the Deputy Commissioner, in an affirmation dated 27 April of this year, has commented :

"I wish to point out that, in order to assist me to consider such appeals quickly and efficiently, it is normal practice within the Hong Kong Police Force to assign more junior police officers to review the Appeal petition and to provide me with a staffing note and minutes which summarise and analyse the various points made and offer comments and recommendations for my consideration. However, I emphasize that the final decision is mine and mine alone. ...."

The Deputy Commissioner has explained why these advisory memoranda are not shown to appellants :

".... It is not the normal practice to disclose this material to appeal petitioners, since no new material or evidence is being introduced. It is merely an internal analytical review and commentary upon the existing material, produced for the purpose of aiding my deliberations."

52. In the present matter it is not suggested that new evidence was put before the Deputy Commissioner. But they are advisory memoranda. As such they make recommendations and to that extent advocate a particular outcome. For example, a lengthy advice attached to the minute labelled M.15 concludes with the following words :

" In essence, the appeal submission does not hold water. Although not represented, the appellant was given a fair hearing and all opportunity to cross examine witness as well as present his own case. The AO, before arriving at the verdicts, did carefully consider all evidence proferred [sic] by both sides. The verdicts so reached are therefore safe and in order.

As regards the level of award, there are no mitigation grounds that help militate against the appellant's misconduct, which on the contrary, was accentuated by his previous conviction of a similar infraction, namely unauthorised borrowing from a friend in 1995. The appellant's persistent breaches of the disciplinary code and as aggravated by his deteriorating performance do warrant his removal from the Force. Whilst 'Compulsory Retirement with deferred benefits' might be appropriate in his case which involves no gambling or criminal elements, his suspended award of 'Dismissal' in respect of the previous case renders such an award in conflict. The award of 'Dismissal' meted out by the SPO in the instant case is therefore to be upheld."

53. On behalf of the Commissioner, Mr Westbrook said that it was a long-standing practice, entirely unexceptional, for the Commissioner to be provided with the kind of assistance to which he referred in his affirmation. As Mr Westbrook expressed it, the alternative would be for the Commissioner to have to read, digest and consider all the material by himself, an unduly time-consuming exercise for an officer of his rank whose time is a commodity of considerable value. But, of course, it is not in any way argued that the Commissioner should be deprived of this assistance. In my view, quite clearly it relieves him of the burdensome task of collating all relevant materials and enables him, with the benefit of representations from both the appellant and those responsible for discipline in the police, to focus on the issues. What is, however, argued on behalf of the applicant is that, just as an appellant's petition is available for comment by those responsible for advising the Commissioner, so should their comments be made available to an appellant. This failure, argued Mr Leong, means that an appellant does not know what statements have been made affecting him and cannot therefore attempt to correct or contradict them.

54. Mr Leong argued that in the present case, for example, it appears that comments of a critical nature concerning the number of days of voluntary leave taken by the applicant may have gone before the Deputy Commissioner. If the applicant had known of these comments, said Mr Leong, he would have been able to correct what, in his opinion, were unduly 'weighted' comments acting to his prejudice.

55. The right to be heard is a fundamental element of fairness in the conduct of administrative enquiries which include disciplinary proceedings of the kind to which the applicant has been subjected. In Kanda v. Government of Malaya [1962] AC 323, a police inspector was charged with certain disciplinary offences. Those offences arose out of the manner in which he was alleged to have carried out a criminal investigation. The investigation had caused some disquiet and had been made the subject of an inquiry. The board of inquiry had brought out a report critical of the inspector and this report had been made available to the disciplinary tribunal but not to the inspector who had no knowledge of its existence. In finding that, as a result, the inspector had not been given a reasonable opportunity of being heard, Lord Denning (at 337) said :

" If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn L.C. in Board of Education v. Rice down to the decision of their Lordships' Board in Ceylon University v. Fernando. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing."

56. In Chan Tak Shing v. Chief Executive of the HKSAR [1999] 2 HKLRD 389, the Court of Appeal followed the principle emphasized in Kanda. In proceedings for the compulsory retirement of a police officer, the officer was given the grounds upon which his retirement was being sought and was able to make representations to the Chief Executive who was to decide the matter. After the officer had submitted his representations, unknown to him, a minute was shown to the Chief Executive which constituted a rebuttal of the officer's representations. Giving the principal judgment of the court, Godfrey JA said :

"....The CE had before him, in the form of the submission in reply, a document calculated to work to the prejudice of the officer's case, a document (whatever its provenance) which the officer had not been shown and with the content of which he was given no opportunity to deal. The fact that the document contained no new ground of complaint against the officer and no new facts makes no difference. Nor does the fact that the officer knew perfectly well what was the case made against him. No person with any power of adjudication may hear evidence or (as here) 'receive representations from one side behind the back of the other'...."

In a brief supporting judgment, Mortimer VP said :

" In fact, the document raised no new points but it is a comprehensive rebuttal point by point of all the officer had advanced in his defence. It unquestionably supported the case against him. He was given no opportunity to see it and make further representations if he saw fit. It was put before the decision-maker behind his back. It cannot be ignored as irrelevant or devoid of effect. Its whole purpose was to urge a decision against the officer. In these circumstances, although there was no intention to be unfair, the failure to provide the officer with a copy and to give him a chance to reply was unfair and a breach of the rules of natural justice."

57. Mr Westbrook has attempted to distinguish Chan Tak Shing on the basis that here the Chief Executive was exercising a very different jurisdiction; one at first instance. In my judgment, however, the fundamental principle of the right to be heard in administrative enquiries is not in any way displaced or lessened by the fact that the proceedings in issue are those of appeal or review rather than at first instance. In this present case, a right of appeal is enshrined in the Discipline Regulations. That being so, there is a presumption that the process of appeal will be exercised in a manner which is fair in all the circumstances. In this regard, see the dicta of Lord Mustill in R. v. Secretary of State for the Home Department, ex part Doody [1994] 1 AC 531 (at 560D-G).

58. My finding that the fundamental principle of the right to be heard is not displaced or lessened by the fact that the proceedings have reached the appeal or review stage is supported by a recent judgment of this court, see Harjit Kaur and Another v. Director of Immigration and Secretary for Security, HCAL No.47 of 1999. This was a further judgment of my brother, Stone J, in which he said :

".... If the true ambit of judicial review begins and ends with the concept of administrative fairness, it seems to me that there is here justifiable cause for concern. The point, I think, is not satisfactorily confronted by categorising this document merely as an internal review document, or by pointing (as indeed is the case) to the absence of evidence now put in by the applicants on the matters in issue in this Memo. The point here (....) is that the appellate authority, in the person of the Secretary for Security, acted on the basis of a document containing material adverse to the applicants' interests of which the applicants had not had sight and with regard to which no opportunity was afforded to the applicants to put forward any remedial response. At the end of the day this is simply procedurally unfair, however unintended it may have been on the part of those responsible for the situation, and as a consequence in my judgment the decision made by the Secretary for Security upon the applicants' appeal from that of the Director of Immigration should not be permitted to stand." [my emphasis]

59. I accept that in the present case there was no intention to be unfair to the applicant. No doubt an appeal procedure of long standing was being followed. The various internal minutes, notes and memoranda, while direct, are objective and considered. As Mr Westbrook pointed out, two were even in favour of quashing the applicant's conviction. But good faith and objectivity are not the issues here. The fact remains that the various internal minutes were, in the main, adverse to the applicant and, when viewed as a full body of recommendations, they do constitute a persuasive lobby of opinion. The applicant, however, remained ignorant of what was said by that lobby; he was given no opportunity, as Stone J expressed it in Harjit Kaur (supra), to put forward 'any remedial response'. In the result the applicant was denied the benefit of a fair procedure. That being so, the decision of the Deputy Commissioner on the appeal cannot stand.

60. Nothing I have said is intended to impose upon those responsible for dealing with disciplinary appeals in the Hong Kong Police Force an over-formalised judicial process. As I have said earlier, I see no procedural unfairness in allowing the Commissioner to receive advice or recommendations from his staff. But if he does so, he must be fair to an appellant and allow him sight of the documents generated by that assistance so that, if an appellant wishes, he may make representations in respect of them. That, I believe, while not imposing technical rules, accords with the dictates of natural justice.

Conclusion

61. For the reasons given in the body of this judgment, the application for orders of certiorari to quash the decision of the adjudicating officer finding the applicant guilty and the decision of the senior officer imposing punishment must be dismissed.

62. I am satisfied, however, that an order of certiorari should be issued quashing the decision of Deputy Commissioner Tsang to dismiss the applicant's appeal. In the circumstances, should he wish, the applicant may submit a fresh appeal.

63. As for costs, I am inclined to the view that an appropriate order would be that both parties bear their own costs. However, I have not had the benefit of counsel's submissions on this point and will make an order nisi that there shall be no order as to costs. That order will be made final 30 days after the date of handing down of this judgment unless either party seeks, before that time, to make submissions on the matter.