WONG CHI KEUNG v. THE COMMISSIONER OF POLICE

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CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 21 OF 2010

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J U D G M E N T

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Introduction

1. In each of the three cases before me, the applicant seeks leave to apply for judicial review. 

2. Each of the applicants was formerly a police officer and has been subject to disciplinary proceedings.  As will be seen from the background facts set out below, the disciplinary proceedings in respect of each applicant took place a number of years ago.  The applicants now seek to challenge the decisions taken in the course of the disciplinary proceedings. 

3. Those challenged decisions are, necessarily, discrete in respect of each of the three applicants.  However, the applications for leave raise similar issues in that each of the applicants has sought and obtained legal aid to pursue judicial review proceedings following the decision of the Court of Final Appeal in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575 and each of the applicants requires an extension of time in which to bring the proposed judicial review proceedings. 

4. Leave was not granted on the papers and, hence, an oral hearing was requested by each of the applicants pursuant to RHC Order 53, rule 3(3).  In the circumstances, and since the same counsel and solicitors act for all of the applicants, the three applications were directed to be heard on the same date one immediately after the other. 

Lam Siu Po v Commissioner of Police

5. On 26 March 2009, the Court of Final Appeal handed down judgment in the case of Lam Siu Po v Commissioner of Police.  The issue in that case was the constitutionality of the blanket prohibition on legal representation under Regs 9(11) and 9(12) of the Police (Discipline) Regulations (Cap. 232A).  The Court of Final Appeal held that this prohibition was unconstitutional, being inconsistent with Article 10 of the Hong Kong Bill of Rights. 

6. This decision marked a change in the understanding of the law in the sense that it was the first decision of the Court of Final Appeal on this issue.  Until the decision in Lam Siu Po, all the earlier relevant decisions had been decisions of the Court of First Instance and the Court of Appeal in 2004 and thereafter : see Tsui Kin Kwok Johnnie v Commissioner for Police, HCAL50/2009, unrep., 26.2.10 per A. Cheung J at §§43 to 45. And prior to 17 May 2004, there was no High Court decision on the issue at all, so the law was very much open : see Tsui Kin Kwok Johnnie at §42. 

The background facts

HCAL1/2010

7. The applicant, Mr Wong Chi Keung, joined the Police Force in 1984.  In 2000, he invested in an unsuccessful restaurant business in Shenzhen as a result of which he incurred debts.  In about April 2001, he began a relationship with a Ms Lin Li Ping, with whom he co-habited in Shenzhen and who was arrested by the Shenzhen Public Security Bureau in April 2002 for a drug-related offence.  The applicant was also arrested at this time as he was then staying in the flat he shared with Ms Lin in Shenzhen, and detained.  The applicant was released the day after his arrest and returned to Hong Kong.  The Shenzhen Public Security Bureau informed the Hong Kong Police of the applicant’s arrest and he was investigated by the Narcotics Bureau of the Hong Kong Police Force.  The Applicant was not arrested or charged with any criminal offence but, on 6 February 2004, 31 charges were laid against him in disciplinary proceedings.  He eventually pleaded guilty to 27 of those charges.  

8. At the first hearing of his disciplinary proceedings, on 24 February 2002, the applicant had no defence representative and asked whether he could engage a private lawyer.  He was told this was not allowed under the Police (Discipline) Regulations. 

9. On 22 March 2004, the applicant was found guilty of two of the charges remaining against him and not guilty of the other two.  Those charges on which he was convicted were referred to as Charges A and V.  Under Charge A, the applicant was charged with having failed to be prudent in his financial affairs by amassing unmanageable debts, thereby impairing his operational efficiency contrary to Police General Order 6-01, paragraph 8.  Under Charge V, the applicant was charged with having associated with a person of doubtful or undesirable reputation, otherwise than in the course of duty, contrary to Police General Order 6-01, paragraph 2. 

10. The applicant was placed on interdiction from 16 April 2004.  On 2 June 2004, an additional award of “Compulsory Retirement with Deferred Pension and Benefits” was made by the Force Discipline Officer. 

11. The findings and awards in the disciplinary proceedings were ratified by the Commissioner on 24 August 2004 and the applicant was compulsorily retired from the Police Force on 27 August 2004. 

12. The applicant applied for legal aid in October 2004 in order to commence judicial review proceedings to challenge the disciplinary tribunal’s decision, as well as the decisions of the Force Discipline Officer and the Commissioner, but this was rejected in November 2004.  The applicant says that he did not pursue the matter further since he was in debt and could not afford to engage a lawyer privately and since the arguments on points of law he wished to pursue were beyond his personal capabilities. 

13. After he became aware of the Court of Final Appeal’s judgment in Lam Siu Po in late March 2009, the applicant re-applied for legal aid on 1 April 2009 and this was granted on 6 October 2009. 

14. The applicant seeks to challenge three decisions, namely:

“(1)    The decision of the Appropriate Tribunal (‘the Tribunal’) of 22/3/2004 in Disciplinary Proceedings W DR 01/04 (‘the Proceedings’) of the Hong Kong Police Force, finding the Applicant guilty of Charges A and V thereof;

(2) The decision of the Force Discipline Officer of 2/6/2004 in their Proceedings, confirming the decision of the Tribunal and making the additional award of ‘Compulsory Retirement with Deferred Benefits’;

(3) The decision of the Commissioner of Police (‘the Commissioner’) of 24/8/2004 in the Proceedings ratifying the findings and awards.”

15. The applicant challenges the Tribunal’s findings of guilt on the part of the applicant in respect of Charges A and V on the grounds they are Wednesbury unreasonable in various respects and that consequently the subsequent decisions of the Force Discipline Officer and the Commissioner were also Wednesbury unreasonable.  Additionally, the applicant contends that the disciplinary proceedings were procedurally improper as he could not and did not have legal representation, relying on Lam Siu Po. 

HCAL20/2010

16. The applicant, Mr Mak Kin Wing, joined the Police Force in 1981.  In July 1998, as a result of gambling debts, the applicant was classified as an officer with unmanageable debts. 

17. In 2000, disciplinary proceedings were commenced against the applicant in respect of two charges arising out of his financial difficulties to which he pleaded not guilty. 

18. At the first hearing of the disciplinary proceedings, on 27 November 2000, the applicant was not able to find a defence representative.  He asked the Adjudicating Officer of the Tribunal whether he could engage an auxiliary officer who was legally qualified as a solicitor or barrister to represent him but the Adjudicating Officer said he could not.  When the disciplinary proceedings were substantively heard, on 8 January 2001, the applicant was represented by an Inspector Wong Chi Keung, who was not legally qualified. 

19. On 5 March 2001, the applicant was convicted of one charge, Charge A, and acquitted of the other.  Under Charge A, the applicant was charged with having failed, at the end of November 1999, to be prudent in his financial affairs in that he had unmanageable debts, which led to the impairment of his operational efficiency as a police officer contrary to Police General Order 6-01, paragraph 8. 

20. On 14 March 2001, a Senior Police Officer awarded dismissal and, on 19 March 2001, the applicant was interdicted.  On 4 May 2001, the Force Discipline Officer confirmed the finding and award. 

21. On 3 July 2001, the applicant appealed to the Commissioner of Police but his appeal was dismissed on 20 July 2001 and he was dismissed from the Police Force on 31 July 2001. 

22. Although aggrieved by the disciplinary proceedings, the applicant did not pursue the matter in 2001 because he was in debt and could not afford to engage lawyers privately.  He did not apply for legal aid although he says he made enquiries at the Legal Aid Department.  He says that commencing and conducting judicial review proceedings were beyond his personal capabilities. 

23. After becoming aware of the Court of Final Appeal’s judgment in Lam Siu Po in late March 2009, the applicant applied for legal aid on 6 April 2009 and this was granted on 2 October 2009. 

24. The applicant seeks to challenge four decisions, namely:

“(1)    The decision of the Appropriate Tribunal (‘the Tribunal’) of 5/3/2001 in Disciplinary Proceedings MP DR 04/00 (‘the Proceedings’) of the Hong Kong Police Force, finding the Applicant guilty of Charges A thereof;

(2) The decision of the Senior Police Officer of 14/3/2001 making an Award of Dismissal in the Proceedings;

(3) The decision of the Force Discipline Officer of 4/5/2001 in their Proceedings, confirming the decision of the Tribunal and the Award made by the Senior Police Officer;

(4) The decision of the Commissioner of Police (‘the Commissioner’) of 20/7/2001 in the Proceedings ratifying the findings and Award.”

25. The applicant challenges the Tribunal’s finding of guilt on the part of the applicant in respect of Charge A on the grounds it was Wednesbury unreasonable in various respects and that consequently the subsequent decisions of the Force Discipline Officer and the Commissioner were also Wednesbury unreasonable.  Additionally, the applicant contends that the disciplinary proceedings were procedurally improper as he could not and did not have legal representation, relying on Lam Siu Po. 

HCAL21/2010

26. The applicant, Mr Wong Chi Ming, joined the Police Force in 1985.  Between 1994 and 1998, the applicant incurred various debts as a result of investing in an unsuccessful restaurant business in Fuzhou.  On 5 August 1999, as a result of his debts, he petitioned for bankruptcy and, on 19 August 1999, he reported his petition to the management of the Police Force.  On 28 September 1999, a bankruptcy order was made against the applicant and the Official Receiver was appointed as the trustee of his estate.  In December 1999, the applicant was classified as an officer with unmanageable debts. 

27. The applicant faced two sets of disciplinary proceedings.  First, in 1998, he was charged in respect of 27 un-notified visits to China in 1996 to 1998.  He pleaded guilty to those charges in August 1998 and was awarded 27 reprimands, suspended for 12 months. 

28. The second set of disciplinary proceedings related to his petition for bankruptcy.  He was charged with two counts of making statements false in a material particular in relation to the omission of two of his loans and indebtedness.  He pleaded guilty to both charges in March 2000 and was awarded two severe reprimands with a warning for dismissal. 

29. On 1 May 2000, the applicant was on Shift A station guard duty which commenced from 7.30 a.m.  However, due to a sleep disorder for which he had been treated in 1995, he overslept and, as a result, took up his duty 30 minutes late. 

30. Another set of disciplinary proceedings was instigated against the applicant and he was charged with absence from duty without leave or good cause.  On 21 July 2000, the applicant appeared before the tribunal, pleaded guilty and made a plea in mitigation.  The tribunal made the award of a severe reprimand.  On 27 July 2000, the Senior Police Office confirmed the finding and award. 

31. On 18 December 2000, the applicant was asked to show cause why the award of severe reprimand in respect of the latter disciplinary proceedings in 2000 should not be increased.  On 30 December 2000, the Force Discipline Officer increased the award of severe reprimand to one of compulsory retirement with deferred benefits, suspended for 12 months. 

32. In June 2000, the applicant again sought medical treatment for his sleep disorder and was put on medication.  While the award in the latter disciplinary proceedings commenced in 2000 was being finalised, the applicant was again late for duty on two occasions due to the effect of the medicines he was prescribed. 

33. As a result, further disciplinary proceedings were brought against him in which the applicant was charged with two offences of absence from duty without leave or good cause.  The applicant pleaded not guilty but was nevertheless found guilty on 10 April 2001.  The awards were severe reprimands with forfeiture of one hour’s pay for each charge, and compulsory retirement with deferred benefits. 

34. On appeal, on 26 July 2001, the Force Discipline Officer varied the finding to one of not guilty. 

35. In November 2001, the management of the Police Force initiated a review process of the applicant’s suspension of award.  Different views were expressed on this review.  On 30 November 2001, the Divisional Vice Commander (Waterfront) recommended the suspended award be remitted and expunged.  On 4 December 2001, the District Vice Commander (Central) recommended that the suspended award be substituted by a severe reprimand.  On 8 December 2001, the Regional Commander (HK) recommended that the suspended award be executed. 

36. In January 2002, a report on the applicant was prepared by the management of the Police Force.  The applicant does not recollect being shown this report. 

37. On 21 March 2002, the Regional Commander (HK) recommended that the applicant’s suspended award be executed.  On 5 June 2002, the Force Discipline Officer decided to execute the award and the applicant was compulsorily retired from the Police Force on 14 June 2002. 

38. In August 2002, the applicant applied for legal aid to apply for judicial review in respect of his compulsory retirement but this application was refused. 

39. After becoming aware of the Court of Final Appeal’s judgment in Lam Siu Po in late March 2009, the applicant applied for legal aid on 2 April 2009 and this was granted on 13 July 2009.  He requested a change in the assigned solicitors in October 2009. 

40. The applicant seeks to challenge the following decision, namely:

“The decision of the Force Discipline Officer (‘the FDO’) of 5/6/2002 in Disciplinary Proceedings C-DR 05/00 (‘the Proceedings’) of the Hong Kong Police Force to execute the Award of ‘Compulsory Retirement with Deferred Benefits, suspended for 12 months.”

41. The applicant seeks to challenge this decision on various grounds including : legitimate expectation arising from a statement made to the management of the Police Force by the Police Legal Advisor in 1998; bias on the part of the Regional Commander (HK); irrationality or Wednesbury unreasonableness in the recommendation of the Regional Commander (HK) to execute the suspended award and in the decision of the Force Discpline Officer to do so; breach of the rules of natural justice in failing to show the applicant the January 2002 assessment report and inviting his representations on it; and, procedural impropriety on the basis that the review of the suspended award should have been undertaken independently of the previous process leading to the award with an impartial hearing with legal representation. 

The relevant time limit

42. RHC Order 53, rule 4 provides:

“(1)    An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

(3) The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.”

43. And the High Court Ordinance (Cap. 4) provides, by s. 21K(6) and (7):

“(6)    Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant –

(a)   leave for the making of the application; or

(b)   any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.”

44. A recent challenge to the legality of the relevant time limit for an application for judicial review was rejected by A Cheung J in Tsui Kin Kwok Johnnie : see §§17-24. 

Extension of time necessary

45. As will be apparent, each of the decisions sought to be challenged in the intended judicial review proceedings was made a number of years ago.  In the present cases, time started to run from each of the relevant decisions made in or subsequent to the relevant disciplinary proceedings, namely in 2004 (in HCAL1/2010), 2001 (in HCAL20/2010) and 2002 (in HCAL21/2010) : see Tsui Kin Kwok Johnnie at §26.  It was not suggested by Mr Timothy H.Y. Wong, counsel for each of the applicants, that the relevant time limit started to run otherwise than from these dates. 

46. The Form 86A Notice in HCAL1/2010 was filed on 4 January 2010, that in HCAL20/2010 on 22 February 2010 and that in HCAL21/2010 on 23 February 2010.  Each of the applicants is therefore very much out of time and it was accepted by Mr Wong that each of the applicants requires an extension of time to apply for judicial review. 

Considerations relevant to an extension of time

47. In Reg. v Dairy Tribunal, ex p. Caswell [1990] 2 AC 738, the House of Lords considered the equivalent English provisions governing the time limit for an application for leave to apply for judicial review.  Lord Goff stated the general principle in the following terms at p. 747B-C :

“It follows that, when an application for leave to apply is not made promptly and in any event within three months, the court may refuse leave on the ground of delay unless it considers that there is good reason for extending the period; but, even if it considers there is such good reason, it may still refuse leave (or, where leave has been granted, substantive relief) if in its opinion the granting of the relief sought would be likely to cause hardship or prejudice (as specified in section 31(6)) or would be detrimental to good administration.”  (Emphasis added)

48. There is no definitive list of considerations that may be relevant to an application for an extension of time for leave to apply for judicial review and what may amount to good reason for so extending time.  Each case must be considered on its own particular facts.  As noted in Tsui Kin Kwok Johnnie (at §§29-30), factors that may be relevant will include: the reasons for the delay; the steps the applicant took, or did not take, or could or could not have reasonably taken, and the advice he received, during the relevant process giving rise to the proposed judicial review challenge; the prejudice to the applicant in terms of money, career, reputation, the sense of injustice, feelings and so forth from the decision sought to be challenged; the lack of prejudice to the respondent if an extension is granted. 

49. The courts have held, however, that certain matters will not, in themselves, justify an extension of time, save in exceptional circumstances.  One of these is a change in the understanding of the law, another is the substantive merits of the underlying challenge. 

Change in the understanding of the law

50. In Tsui Kin Kwok Johnnie, A. Cheung J held (at §31) that a change in the understanding of the law cannot, by itself, justify an extension of time, save in exceptional circumstances.  

51. A. Cheung J there noted that this proposition was well-supported in relation to an application for an extension of time in which to appeal in various contexts: see HKSAR v Hung Chan Wa (2006) HKCFAR614 (an application for extension of time to appeal in a criminal matter), Lau Luen Hing Thomas v Insider Dealing Tribunal, HCMP1017/2008, unrep., 9.4.09 (CA) and FAMV46/2009, unrep., 4.12.09 (CFA) (an application for extension of time to appeal from a penalty order made by the Insider Dealing Tribunal) and Ho Ho Chuen v Commissioner of Police, HCMP2276/2009, unrep., 18.12.09 (an application for extension of time to appeal on a new ground based on Lam Siu Po in an unsuccessful application for judicial review concerning police disciplinary proceedings). 

52. The Learned Judge also noted that an important public policy consideration in those cases was the consideration of finality and he held (at §34):

“Bearing in mind the nature of police disciplinary proceedings and the elaborate statutory procedure involved, I have no doubt that consideration of finality applies to decisions made in those proceedings as it applies to judgments and orders made in conventional courts of law.”

53. And as regards exceptional circumstances, Li CJ held, in HKSAR v Hung Chan Wa at §25:

“… as the Court does not have before it an appeal raising a question relating to extension of time, it is not feasible for the Court on this occasion to attempt to define what constitutes exceptional circumstances except to say that the circumstances must be so exceptional that the occasions when they would be held to exist would be very rare.”  (Emphasis added)

Substantive merits

54. In Lau Luen Hing Thomas, the Court of Appeal held (at §25), that the fact that an appeal (if allowed to be lodged out of time) is likely to succeed is not a sufficient exceptional circumstance for leave to be granted, although lack of substantial merits in an appeal would be a good reason to refuse leave. 

55. In Tsui Kin Kwok Johnnie, A. Cheung J adopted (at §§38-40) the same approach to an application for an extension of time to apply for judicial review as regards the suggested merits of the applicant’s substantive judicial review challenge. 

56. And in an application by Ng Muk Kam, HCAL14/2010, unrep., 18.3.10, an extension of time for leave to apply for judicial review was refused even though the court accepted the applicant had a reasonable prospect of success on the basis of Lam Siu Po: see §10. 

The applications for extension in the present cases

57. At the hearing before me, Mr Wong advanced only one reason as a good reason for extending the relevant time limit. That reason was the difficulty in obtaining, or unavailability of, legal aid. 

58. Mr Wong submitted that the difficulty in obtaining legal aid, if there is no fault on the part of the applicant, is a good reason for an extension of time.  In support of this contention, Mr Wong relied on R v Stratford-on-Avon District Council and another, ex parte Jackson [1985] 3 All ER 769 per Ackner LJ at p. 773a-b :

“In judicial review proceedings there is no true lis inter partes or suit by one person against another: see R v Secretary of State, ex p Hackney London BC [1983] 3 All ER 358 at 367, [1983] 1 WLR 524 at 538-539 per May LJ.  We agree with Forbes J that it is a perfectly legitimate excuse for delay to be able to say that the delay is entirely due to the fact that it takes a certain time for a certificate to be obtained from the legal aid authorities and that, despite all proper endeavours by an applicant and those advising her to obtain a legal aid certificate with the utmost urgency, there has been some difficulty about obtaining it through no fault at all of the applicant.”

59. It is important, however, when considering the above passage from ex parte Jackson, to note the chronology of events in that case.  The decision sought to be challenged by judicial review was a decision of a local authority to pass a resolution granting planning permission for development of a site as a supermarket taken on 30 August 1984.  The applicant, on advice, then wrote to the Secretary of State for the Environment asking him to call in the planning application.  On 30 November 1984, the Secretary of State refused to call in the planning application.  The applicant’s solicitors then obtained a report on the site from chartered surveyors and, within a week of the Secretary of State’s refusal, sent instructions to counsel for advice.  Counsel’s opinion was received about nine days later and within four days thereafter an application was submitted on behalf of the applicant for legal aid.  The application for legal aid was initially refused, at the end of January 1985, and a formal notification from the Law Society that the appeal was allowed was not received until 18 March 1985.  The legal aid certificate was issued on 10 April 1985 and the notice of motion seeking judicial review was launched on 10 May 1985.  It was in these circumstances that the Court of Appeal concluded “that the application for legal aid was approached by the applicant herself with the necessary sense of urgency” (p. 773e). 

60. Thus, ex parte Jackson was a case in which the applicant sought to apply for legal aid in the immediate aftermath of the decision sought to be challenged by way of judicial review. That fact distinguishes ex parte Jackson from the present cases: in HCAL1/2010 and 21/2010, the applicants did apply for legal aid in the immediate aftermath of their disciplinary proceedings but those applications were refused and the matter was not pursued thereafter and the present judicial review proceedings have been commenced as a result of entirely fresh applications for legal aid made in April 2009 in the light of the Court of Final Appeal’s judgment in Lam Siu Po; in HCAL20/2010, the applicant did not apply for legal aid after the disciplinary proceedings and the legal aid application leading to the present judicial review application was only made in April 2009 in the light of the Court of Final Appeal’s judgment in Lam Siu Po. 

61. In my judgment, ex parte Jackson does not stand as authority for a general proposition that the difficulty in obtaining, or unavailability of, legal aid is a good reason for extending time for an application for judicial review.  The case concerns, in my view, delay caused by the administrative process by which legal aid is granted, which is not the reason for the substantial delay in the present cases. 

62. Mr Wong also submitted that the time taken to arrange for legal aid is also accepted as a good reason to extend time.  In support of this proposition, he relied on Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 and in particular the passage in the speech of Lord Brightman at p. 1171B-D where he said :

“A year went by. The respondent tried unsuccessfully to pursue a remedy before an industrial tribunal. He consulted solicitors and applied for legal aid which took some time to arrange. On October 23, 1979, his solicitors wrote to the chief constable. They indicated that he would be seeking judicial review of the decision to dispense with his services. They asked the chief constable to reconsider his decision. They also requested disclosure of various reports about him which the respondent knew, or suspected, were in existence. This request was peremptorily refused in a letter dispatched by the chief constable two days later.”

63. I do not think the case of Evans stands as authority for the submission made by Mr Wong.  There is no indication in the report of that case that an issue was taken as to delay in the application for judicial review or any consideration of an application for extension of time. 

64. In any event, Evans is distinguishable from the facts of the present cases.  In Evans, the applicant was actively pursuing a remedy before an industrial tribunal in the period of delay and the delay itself between the decision sought to be challenged and the application for leave to apply for judicial review appears to have been of the order of 14 months.  In contrast, the decisions sought to be challenged in the present cases were respectively made over five (HCAL1/2010), eight (HCAL20/2010) and seven (HCAL21/2010) years before the applications for leave to apply for judicial review and none of the applicants appear to have taken any active steps to pursue any alternative remedies in the interim. 

65. In relation to the unavailability of legal aid, Mr Wong also relied upon the decision of A. Cheung J in an application by Ng Muk Kam, HCAL14/2010, unrep., 18.3.10 in support of his submission that there was good reason to extend time in the present cases.  At §27 of his judgment in Ng Muk Kam, A. Cheung J referred to a previous decision of his in Chan Ka Man v Commissioner of Correctional Services, HCAL111/2009, unrep., 21.10.09 in which the court granted an extension of time for leave to challenge two prison disciplinary awards.  In Chan Ka Man, the prisoner applicant had faced previous disciplinary proceedings and had actually applied for legal aid at the time to challenge the awards in those earlier proceedings but his applications for legal aid had all been unsuccessful on the ground that he had no merits.  Mr Wong suggested the facts in Chan Ka Man were similar to the three applications before me. 

66. However, I do not think Chan Ka Man assists the applicants in the present cases.  As A. Cheung J was at pains to point out in Ng Muk Kam at §§27 and 28, Chan Ka Man was a case of very peculiar facts and was a quick decision made in order to enable the applicant to be released from prison almost immediately by way of interim relief. 

67. As noted above, the only reason advanced on behalf of the applicants in the present cases as constituting a good reason for an extension time to apply for judicial review is the unavailability of legal aid.  Ultimately, Mr Wong’s submission on behalf of the applicants was that they were all police officers classified as having unmanageable debts and who therefore did not have the financial resources to engage lawyers privately to apply for judicial review to challenge their respective disciplinary proceedings.  Their only prospect was to obtain legal aid and if this was not available then that was, as Mr Wong put it, the “end of the line”.

68. Strictly, this argument only applies to the applicants in HCAL1/2010 and HCAL21/2010, since the applicant in HCAL20/2010 did not actually make an application for legal aid in the immediate aftermath of his disciplinary proceedings. 

69. I agree with the submission of Mr Jin Pao, counsel for the Commissioner of Police, the intended respondent, that this contention based on the unavailability of legal aid is in substance a reference to the change in the understanding of the law brought about by Lam Siu Po.  It is reasonable to infer, in the present cases, that the reason the applications for legal aid made in April 2009 were successful, and the earlier applications by the applicants in HCAL1/2010 and 21/2010 were not, is solely because of the Court of Final Appeal’s decision in Lam Siu Po. 

70. But as I have already noted above, a change in the understanding of the law is not in itself a good reason for an extension of time, save in exceptional circumstances.  I do not consider that there are any exceptional circumstances in the present cases that would justify an extension of time on the basis of a change in the understanding of the law. 

71. So far as the substantive merits of the intended to judicial review proceedings are concerned, the Commissioner of Police was prepared to accept, for the purposes of the argument before me, that the applicants could each show a reasonably arguable case which enjoyed realistic prospects of success and thereby satisfy the leave threshold established by the Court of Final Appeal in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319. 

72. But, again as noted above, the fact that an application is likely to succeed is not a sufficient exceptional circumstance for leave to be granted. 

Detriment to good administration

73. As I have pointed out, even if the court considers there is good reason to extend time for the making of an application for judicial review, it may still refuse leave (or, where leave has been granted, substantive relief) if in its opinion the granting of the relief sought would be likely to cause hardship or prejudice or would be detrimental to good administration. 

74. In the present cases, the Commissioner of Police has, through the Assistant Commissioner of Police (Personnel) filed evidence to demonstrate that the grant of the substantive relief claimed in the present cases would be detrimental to good administration.  That evidence is both general and specific to the three applications before me. 

75. As to general evidence, the Assistant Commissioner has provided statistics of the number of cases, since the coming into effect of the Hong Kong Bill of Rights Ordinance (Cap. 383) on 8 June 1991, in which police officers have been dismissed or compulsorily retired upon being convicted in disciplinary proceedings under the Police (Discipline) Regulations.  Records prior to 2000 are incomplete and the available records show that, as at 31 March 2010, there have been 1,360 sets of disciplinary proceedings since 1 January 2000 and terminatory awards have been made and ratified by the Commissioner in 178 of those sets of proceedings.  Up to 31 March 2010, the Police Force has received a total of 177 inquiries from former officers convicted in disciplinary proceedings as to the stance of the Police Force in the light of Lam Siu Po.  As at the same date, a total of 31 applications for leave to apply for judicial review, including applications for leave to appeal against judgments in judicial reviews out of time, seeking to rely on Lam Siu Po had been served on either the Police Force or the Department of Justice. 

76. The evidence of the Assistant Commissioner was that in cases where rulings in disciplinary proceedings are quashed, it is the general practice of the Police Force to reinstate the police officer concerned and, in the meantime, to restart the impugned disciplinary proceedings.  Also, depending on the circumstances of each case, the police officer in question may be interdicted pending the outcome of the fresh disciplinary proceedings. 

77. The evidence is that the records of many past disciplinary cases are either incomplete or may even have been wholly destroyed.  The records of most disciplinary cases prior to 1999 have either been destroyed or transformed into index cards containing very brief information so that the Police Force has no full record of the nature of the police officer’s misconduct and the circumstances in which the relevant events occurred.  The Assistant Commissioner has deposed to the fact that it is extremely unlikely that the Police Force will be able to overcome the problem of incomplete records by gathering evidence after a significant time lapse.  Although police witnesses still in the Police Force can be summoned to testify, former police officers and civilian witnesses cannot be compelled to give evidence in disciplinary proceedings, even assuming they can be located, and the passage of time is likely to have diminished their recollection of relevant events.  Furthermore, the evidence is that the hearing of a large number of past disciplinary cases would seriously strain the resources of the Police Force. 

78. The reinstatement of an officer against whom a terminative award was previously made would also cause administrative difficulties, according to the Assistant Commissioner.  These would arise in respect of training which reinstated officers would be required to undergo, the reintegration of reinstated officers into the Police Force, and the impact on morale of reinstated offices and on their colleagues. 

79. Specifically in relation to the three cases now under consideration, the Assistant Commissioner has given evidence as to the number of witnesses called in the relevant original disciplinary proceedings and the availability of the documentary evidence from those proceedings.  In HCAL1/2010 there were 8 witnesses, one of whom was a civilian witness whose availability cannot be confirmed at this stage.  Originals of the documentary exhibits can no longer be located although copies of the documentary exhibits are still available.  In HCAL20/2010 there were 11 witnesses, 3 of whom are retired police officers who cannot be compelled to give evidence and one of whom is an ex-ICAC officer whose availability cannot be confirmed at this stage.  Neither the originals nor the copies of documentary exhibits including witnesses’ statements can be located.  In HCAL21/2010 there were 4 witnesses, one of whom is a retired police officer who cannot be compelled to give evidence.  Both the originals and copies of the witness statements can no longer be located, although copies of the other documentary exhibits are still available. 

80. Mr Wong submitted that if detriment to good administration is to be relied upon, the court has to be satisfied that there is evidence of detriment.  He relied on R v Diary Tribunal, ex parte Caswell [1990] 2 AC 738 at 741D in support of the propositions that detriment cannot be inferred from the mere passage of time and that the test for detriment to good administration was higher than the threshold of likelihood. 

81. However, the passages on which Mr Wong relied are not part of the speeches of the Law Lords in ex parte Caswell but are instead part of counsel’s arguments summarised in the law report.  In any event, the Commissioner of Police has filed evidence to support the contention that the grant of substantive relief in the present cases would be detrimental to good administration. 

82. Next, Mr Wong submitted that good administration in this context meant administration in the sense of government, rather than administration in the sense of daily operations.  This was apparently his basis for submitting that it is usually only in decisions involving public policies or development planning cases that detriment is found. 

83. I do not think this submission of Mr Wong is correct.  It is quite clear from Johnnie Tsui (at §50), that the court in that case took into account the possible prejudice to the Commissioner of Police in re-opening disciplinary decisions made, in that case, more than 10 years before.  The court took into account the possible opening of a floodgate, practical difficulties of rehearing disciplinary matters and the impossibility of reinstatement in that case. 

84. Finally, Mr Wong pointed to the Assistant Commissioner’s evidence of the statistics of terminatory awards between 2000 and 2009 and noted that, between 2000 and 2005, the average number of terminatory cases per year was 26 whereas, between 2006 and 2009, it was 5.  Mr Wong submitted that this marked difference in the average annual number of terminative awards might suggest excessive executive power which should be investigated by way of judicial review. 

85. The answer to this latter point is that the difference in the average annual number of terminative awards may be due to other factors such as the state of the economy and there is no good reason to assume, without more, that the difference is due to any abuse of power on which an application for judicial review might be founded.  In any event, Mr Wong’s submission goes to the substantive merits of the judicial review applications and not to the extension of time. 

86. I am satisfied, on the basis of the evidence of the Assistant Commissioner referred to above, that the grant of an extension of time in the present cases would be detrimental to good administration and therefore, even if I had considered that the applicants had shown good reason for an extension of time, I would have exercised my discretion against the grant of an extension on the basis that if time were to be extended the grant of substantive relief in the present cases would be detrimental to good administration. 

Disposition and costs

87. For the reasons set out above, and having considered the individual circumstances of each of the three applications summarised above, I decline to exercise my discretion to grant an extension of time in each of the cases before me and the applications for leave to apply for judicial review are accordingly dismissed. 

88. The parties agreed that costs should follow the event and I therefore order that the costs of the proceedings be respectively paid by each of the applicants to the Commissioner of Police, to be taxed if not agreed.  I direct that the applicants’ own costs be taxed in accordance with the Legal Aid Regulations.