TSO TAK KEUNG, EDDY v. SECRETARY FOR THE CIVIL SERVICE AND ANOTHER

CACV 366/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 366 OF 2006

(ON APPEAL FROM HCAL NO. 28 OF 2005)

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JUDGMENT

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Hon Tang VP (giving the judgment of the Court):

Introduction

1.  The applicant was an assistant immigration officer and his wife, Madam Cheng Siu-kwan owned and operated with others “Special Zone Overseas Employment Centre Limited (“Special Zone”) which was engaged in the business of introducing overseas domestic helpers to Hong Kong.

2.  In 2002, the applicant was charged with 12 offences in the District Court, namely, 10 counts of bribery, 1 count of theft and 1 count of conspiracy to make a false statement.  At trial, the video record of the applicant’s interview with the ICAC on 17 January 2002 (E22) was ruled inadmissible by the District Court Judge after a voir dire because he was not satisfied beyond reasonable doubt that it had been proved that it was voluntary.  The applicant was acquitted of all charges. 

3.  Disciplinary proceedings were then commenced against the applicant pursuant to section 10 of the Public Service (Administration) Order (“the Order”).

4.  By the report dated 25 October 2004 (“the Report”) the applicant was found guilty of 2 charges by the Inquiry Committee appointed under section 10 of the Order namely that he had misconducted himself while he was employed as an immigration officer of the Immigration Department in that:

“(a)    he accessed the computer records of the following persons, contrary to Immigration Service Standing Order 53.2 (xix):

(b)     he, between 20.10.1997 and 19.8.1999, failed to report to his superior officer a private interest that might influence or appear to influence his judgement in the performance of his duties, namely the investments of his spouse Madam CHENG Siu-kwan in the Special Zone Overseas Employment Centre Limited, an employment agency for arranging domestic helpers from overseas countries to seek employment in Hong Kong, contrary to paragraph 6(d) of CSB Circular No. 19/92.”

Paragraph 6(d) of CSB Circular No. 19/92 required the applicant to report any private interest which might influence, or appear to influence, his judgment in the performance of his duties.

5.  By letter dated 16 February 2005, the Secretary for the Civil Service, in exercising the authority delegated to him by the Chief Executive and on the advice of the Public Service Commission, informed the applicant that the Secretary was satisfied that the applicant was guilty of misconduct.  He further directed that the applicant be dismissed under section 10 of the Order with effect from 21 February 2005.

6.  The applicant applied for an order of certiorari to quash the decision of Inquiry Committee contained in the Report as well as the decision of Secretary for Civil Service.  Two grounds were advanced in support of the application.  The 1^st ground has been abandoned on appeal.  Briefly stated, he complained that the disciplinary proceedings had exposed him to double jeopardy in various ways including that the subject matter of charge (a) in the disciplinary proceedings was one of the elements of one of the bribery charges.

7.  The other ground was that the Inquiry Committee was wrong to have admitted and relied on E22 after it had been rejected in the criminal trial.  It was argued that that amounted to a collateral attack on the determination in the criminal trial.  This submission was rejected by the learned judge and the application was dismissed.  We will deal with this submission below.

8.  The 1^st charge was concerned with Manowong and Kuanluang.  In 2001/2002, Manowong and Kuanluang were applicants for dependant extension of stay visas to the Immigration Department.  The Inquiry Committee found that their applications had not been processed according to the proper procedure, but had been processed and handled in a deceptive manner.  Para. 66(f) of the Report.

The appeal

9.  This is the applicant’s appeal.  Mr Paul T Y Tse appeared for the applicant, together with Mr Alan W H Lee, neither of whom appeared below.

10.  In the inquiry, the evidence relied on against the applicant included E22 and the video record of Madam Cheng Siu-kwan’s interview with the ICAC (E23).

11.  The applicant, who was unrepresented, objected to the admissibility of both E22 and E23.  So far as E22 is concerned, principally on the ground that it had been ruled inadmissible in the criminal prosecution.

E22

12.  Mr Tse submitted that the admission and use of E22 contravened “the rule established in Hunter v Chief Constable of West Midlands and Anor”[1981] 3 All ER 727.

13.  Hunter was one of the Birmingham bombers.  At his criminal trial, Hunter’s confession was held to be voluntary by Bridge J (as he then was) after a trial within a trial.  The challenge to the voluntariness of the confession was repeated before the jury as relevant to the weight which they should attach to the confession, and the whole ground was gone over again in evidence given before them.  The learned judge gave the jury:

“… a firm direction that if they inclined to the view that the account by any defendant of the circumstances in which his confession was obtained might be true they should reject the confession as worthless and acquit the defendant …”

Hunter was duly convicted.  Hunter then issued proceedings in the High Court for damages for assault by police officers while he was in their custody.  The question before the court was whether Hunter’s action against the police ought to be struck out as an abuse of the process of the court.  The claim was struck out.  Lord Diplock said with the concurrence of the other law lords:

Internet

“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack on a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”  Page 733.

14.  Lord Diplock went on to explain at page 734:

“My Lords, this is the first case to be reported in which the final decision against which it is sought to initiate a collateral attack by means of a civil action has been a final decision reached by a court of criminal jurisdiction. This raises a possible complication that the onus of proof of facts that lies on the prosecution in criminal proceedings is higher than that required of parties to civil proceedings who seek in those proceedings to prove facts on which they rely. Thus a decision in a criminal case on a particular question in favour of a defendant, whether by way of acquittal or a ruling on a voire dire, is not inconsistent with the fact that the decision would have been against him if all that were required were the civil standard of proof on the balance of probabilities. This is why acquittals were not made admissible in evidence in civil actions by the Civil Evidence Act 1968. In contrast to this a decision on a particular question against a defendant in a criminal case, such as Bridge J's ruling on the voire dire in the murder trial, is reached on the higher criminal standard of proof beyond all reasonable doubt and is wholly inconsistent with any possibility that the decision would not have been against him if the same question had fallen to be decided in civil proceedings instead of criminal. That is why convictions were made admissible in evidence in civil proceedings by the Civil Evidence Act 1968.”

15.  Suppose, after a motor accident involving a pedestrian, the driver had given a cautioned statement to the police.  At the driver’s trial for careless driving, the cautioned statement was ruled inadmissible because it was not proved to have been made voluntarily.  It would not follow that the cautioned statement may not be used in the civil claim brought by the pedestrian against the driver.  In the civil claim, whether the statement was made voluntarily would primarily go to the weight of the evidence.

16.  The rejection of E22 at the criminal trial, because the judge was not satisfied beyond reasonable doubt that it was made voluntarily, would not by itself preclude any use of E22 in other proceedings.  The committee was entitled to decide whether in all the circumstances, they could place reliance on E22.

Unfair

17.  Mr. Paul T. Y. Tse submitted that the applicant had not been treated fairly by the committee.  These submissions appeared in the amended Notice of Appeal as follows:

“6.(3)  The Inquiry Committee acted unfairly towards the applicant by failing to inform the applicant:-

(a)     What procedure(s) it will adopted to deal with the objections raised by the applicant as to E22 and E23;

(b)     Failing to inform the applicant the provisions in S.8 of the Public Service (Disciplinary) Regulation;

(c)    Failing to inform the applicant that it found a prima facie case for admitting E22 and E23;

(d)     Failing to ascertain from the applicant whether he will adduce evidence in the 'voir dire'; and

(e)     Failing to inform the applicant that it had admitted E22 and E23 into evidence.

(4)     The admission of E22 and E23 is against the weight of evidence.

7.      Count (a) is bad for duplicity.”

18.  Some background on the disciplinary proceedings may be helpful.

The Section 10 Inquiry

19.  The applicant was a category A officer within the meaning of the Order.  Under section 10 of the Order, if the Chief Executive is of the opinion that the alleged misconduct may be serious enough to warrant the dismissal or compulsory retirement of the officer, he may cause an inquiry to be made into the officer’s conduct in such manner as may be prescribed by the Public Service (Disciplinary) Regulation (“the Regulation”), and that he may inflict such punishment upon the officer as may seem to him to be just.  Under the Regulation, an inquiry under section 10 of the Order “shall be conducted” by an Inquiry Committee appointed by the Chief Executive, consisting of 2 or more public servants who are senior to the officer who is the subject of the inquiry (the officer).  The Inquiry Committee would be assisted by an assisting officer who would present the case against the officer.

20.  The procedure to be followed at the inquiry are set out in Part B of the Regulation.  It is obvious that the procedure was designed to ensure that the proceedings should be conducted fairly, e.g. the accused officer should know the charges which he faced, the evidence which will be adduced against him, he should also have the opportunity to question any witness, at the conclusion of the evidence in support of the charge, the officer would have an opportunity to make an oral or written statement in his defence, and call witnesses and address the Inquiry Committee orally or in writing at the conclusion of the evidence.  Thereafter the Inquiry Committee would make a report to the Chief Executive.

21.  The following provisions of the Regulation are particularly relevant:

“8(3) The officer may be assisted in his defence by --

(a)     another public servant, other than a legally qualified officer, … or

(b)     such other person as the Chief Executive may authorize.”

(4)     The inquiry officer or inquiry committee may enquire into any matter and admit and take into account any evidence or information which the inquiry officer or inquiry committee considers relevant, and shall not be bound by any rules of evidence.

(5)     The enquiries should not be conducted with undue formality and while there is no standard practice which would be applicable to every case, it is emphasised that the inquiry officer or inquiry committee is not exercising a legal function, but rather ascertaining the facts.”

22.  It should also be noted that evidence of witnesses would not be taken on oath nor did the Inquiry Committee have the power to summons witnesses.

23.  I turn to the submission that the Inquiry Committee had failed to inform the applicant of the provision in section 8(4) of the Regulation.

24.  The evidence showed that the Director of Immigration, in a letter dated 6 October 2003, supplied the applicant with a copy of the Order and the Regulation.  So the applicant had had in his possession the Regulation including regulation 8(4).  I do not believe that the Inquiry Committee was under any specific duty to refer the applicant to regulation 8(4). 

25.  I note, moreover, that by letter dated 23 February 2004 from the Secretariat on Civil Service Discipline, the applicant was invited to a briefing on 3 March 2004:

“To enable you to understand the inquiry and the procedures prior to the hearing …”.

26.  So if the applicant had required any assistance, he could have raised them on that occasion.  Also, section 8(3) of the Regulation was specifically quoted in that letter.  It was of course up to the applicant to decide whether or not he wanted such assistance.  The applicant chose to act in person.  The applicant was, of course, at liberty to seek legal advice in relation to his defence.  So I am satisfied that there is nothing in this point.

27.  Mr Tse also submitted that since the applicant challenged the admissibility of E22, the Inquiry Committee ought to have held a voir dire or some similar procedure during the inquiry in order to determine the admissibility of E22. 

28.  In a criminal trial when the admissibility of a incriminating statement has to be determined a voir dire would be held.  In a trial heard before a judge or magistrate sitting alone, the usual procedure adopted is the so-called “alternative procedure”.  According to Archbold Hong Kong 2009 at 15-121:

“… In the alternative procedure the prosecution will proceed to call all the evidence on both the special and general issues. The defendant has the opportunity to cross-examine the prosecution witnesses in respect of both issues. Before the prosecution closes its case, the defendant must be given the opportunity to give evidence and call witnesses on the special issue, should he wish to do so. The trial judge or magistrate is required to give his ruling on the admissibility of the confession before the prosecution closes its case: R v Kwan Wai-hung [1973-1975] 1 HKC 449. Should the court find that the confession is admissible the trial will proceed into the case for the defence. It should be noted, however, that the evidence of the defendant on the special issue is not admissible on the general issue: HKSAR v Tse Fei Tsz [2002] HKEC 1397, CA; HKSAR v Ma Yee-keung [2000] HKEC 1136; R v Lam Ka-fai [1995] 1 HKCLR 155. …”

29.  The simple answer to this submission is that an inquiry is not a criminal trial, and that criminal procedure has no application.  Moreover, at the criminal trial of the applicant, the issue in the voir dire was whether the video statement had been made voluntarily.  In the voir dire, the criminal court would not be concerned with, for example, the truth of its content.  Here, as the Inquiry Committee has correctly pointed out:

“Consideration re Annex E22

5.      With reference to the evidence at Annex E22, the Committee took a serious view on the Court's judgement in ruling the relevant interview records inadmissible. The Committee noted that Section 8 of the Public Service (Disciplinary) Regulation provides that an Inquiry Committee may inquire into any matter and admit and take into account any evidence or information which it considers relevant, and shall not be bound by any rules of evidence. The relevant interview records being ruled inadmissible in the criminal proceedings alone does not preclude an Inquiry Committee from considering them. It would be open to the Inquiry Committee to admit a piece of evidence if, having considered the reasons for which such evidence was ruled inadmissible in the criminal proceedings, it considers that such evidence is relevant to an issue in the proceedings of the inquiry and that there is no unfairness caused to the Accused Officer.”

30.  The next complaint is that the Inquiry Committee had failed to inform the applicant that it had found a prima facie case for admitting E22, or informed the applicant that it had admitted E22 into evidence.  This is also connected to the point that the applicant should have been able to make a submission of no case to answer at the conclusion of the evidence in support of the charge.  I do not agree.

31.  Mr Tse reminded us that as the charges against the applicant are serious so the proof must be clear.  This is so but it does not mean that procedures required for criminal trials should be imported into the disciplinary inquiry.

E23

32.  I turn to consider E23 which is the video statement made by the wife of the applicant to the ICAC.  It is said that this should not have been admitted.  The ICAC officers involved in the taking of E23 were called and cross-examined by the applicant.  The complaint before us is that E23 was hearsay and that the applicant was unable to cross-examine his wife, who was not called as a witness.  The Inquiry Committee said:

“8.     … However, since (the applicant) would not have the opportunity to question Ms Cheng on the truthfulness of her statements made during the interview, the Committee considers it appropriate to treat the information therein with due caution and will accept it only when it is corroborated and well justified.”

33.  We can find no fault with the Inquiry Committee’s approach.  As noted strict rules of evidence do not apply to the Inquiry.  Regulation 8(4).

34.  Mr Tse referred us to the Guide for Inquiry Officers, Inquiry Committees, Assisting Officers And Accused Officers Involved in Disciplinary Inquiries under PS(A)(O) Section 9 or 10 (“the Guide”).  Para. 10(a)(v) of the Guide provides:

“(v)    The accused officer should be asked whether he would like to cross-examine the maker of any statement which will be used as evidence at the hearing against him. If his indication is in the affirmative and the person has not yet been included in the list of witnesses, attempts should be made to invite the witness to the hearing;”

35.  Mr Tse submitted that the applicant should have been asked whether he would like to cross-examine the maker of E23, namely, his wife.  I believe that para. 10(a)(v) was principally concerned with a statement made by a witness to be used for the purpose of the inquiry.  In such a case, naturally, the accused officers should be asked whether he wished to cross-examine the maker of the statement.  It should be read with:

“10(b)(vi)   If the accused officer indicates that he does not wish to cross-examine the maker of a statement who has not been included as a witness, the statement can be tendered as evidence. It will be for the Inquiry Officer/Committee to determine whether the statement should be admitted as evidence and what weight should be attached to it;”

36.  E23 was not made for the purpose of the inquiry.  It is clear from the applicant’s cross-examination of the officers who were involved in the making of E23 that it was the applicant’s case that E23 was not a voluntary statement.  I do not believe the Inquiry Committee was obliged to make available the applicant’s wife for cross-examination.  In any event, the Inquiry Committee had no power to summons witnesses.

Weight of evidence

37.  I turn to consider the submission that the admission of E22 and E23 is against the weight of evidence.  This is not a viable ground of attack on judicial review.  The weighing of the evidence was for the Inquiry Committee.  Moreover, it is clear from the Report that Inquiry Committee had carefully considered the evidence produced regarding the circumstances under which E22 and E23 were made.  In relation to E22 they concluded:

“44.   From the video record of TSO's interview with ICAC (Annex E22), the Committee has not found TSO under the influence of ICAC interviewers. Whilst obviously under stress and pressure, TSO remained composed in answering questions and appeared well considered in answering them. He was denying ICAC's allegation of giving favourable treatment to his wife's company. There is no indication that he was making up stories, or fabricating facts regarding the business interest of Special Zone, his wife's involvement in it and his knowledge of it. His answers at the interviews in this regard appeared voluntary. There is also no reason that he should have told anything which was not true to unnecessarily implicate himself or Cheng. Also, at the Inquiry, TSO had not advanced any explanations to suggest otherwise. The Committee therefore accepts the interview record as evidence.”

38.  The Inquiry Committee, after noting that the applicant did not make any significant examination about the contents of E23, concluded:

“Regarding TSO's knowledge of Cheng's Business Interest in Special Zone 

48.    From the video record of the interview, the Committee agreed to W4's observation that despite some nervousness Cheng was in her clear mind and was answering questions voluntarily. She was not too forthcoming, and answered her questions after due consideration. Throughout the interview, the Committee has found no sign of inducement on the part of ICAC interviewers. The Committee established from the record of this interview that, as provided respectively in CR and IRD returns (paragraph 17 and Annexes E26 to E29) and TSO's interview with ICAC (paragraph 41(b) and Annex E22) the following:-

(a)     Cheng had business involvement in Special Zone, which was an agency dealing with overseas Indonesia domestic helpers, during the company's operation from 20 October 1997 to 19 August 1999, her partners being Fong and Tatik.

(b)     TSO was aware of Cheng's business interest in Special Zone at the time. He knew the potential conflict of interest and he was cautious of what others might think. He could have the opportunity to deal with some of their applications. He had advised the company to lodge their applications to IMD the normal way. Cheng was similarly conscious about the possible conflict of interest.

(c)     Both TSO and Cheng denied that TSO had any involvement in the operation of the company.”

Duplicity

39.  The next complaint is that charge (a) is duplicitous.  In criminal prosecution, a charge will be bad if it is duplicitous.  The rule is of particular importance in a trial by jury because otherwise one will not know the basis on which a person was convicted.  Moreover, duplicity can be unfair because it can make the defence of the charge more difficult.  This is not such a case.  I can see no difficulty in the applicant defending charge (a).  No objection had been taken to it before the Inquiry Committee, and I cannot see how the defendant might be benefited if charge (a) had been split into two charges, each with one particular. 

40.  Mr Tse suggested that in convicting the applicant of charge (a) in respect of both the particulars, it was possible that the committee might have been influenced by the evidence relating to one into convicting the applicant of the other.  There is no basis for that submission. 

41.  Mr Tse referred to in particular para. 68 of the Report:

“68.       Further to the above, the Committee noted that:-

(a)   With specific reference to Alleged Misconduct (a)(1): TSO on his arrest by ICAC officers on 17 January 2002 had in his possession a piece of paper on which the name of Manowong was written in his handwriting. He could not give any satisfactory explanation for this. The Committee does not accept his claim that he did not remember why he had written down the name and did not know who the person was.

(b)   With specific reference to Alleged Misconduct (a)(2): The Judge, in rejecting TSO's claim of legal fee in relation to the criminal proceedings, commented that he did not consider TSO's conduct proper as an IO in maintaining too close a relationship with the Thais (i.e. the four prosecution witnesses), Kuanluang being one of them.

69.       These are not direct evidence against TSO for his alleged misconduct. However, they do show TSO to have an unexplained relationship with Manowong and Kuanluang. The Committee too considers this an improper conduct of an IO whose official capacity was so close to dealings of dependent visas related applications. This is too much of a coincidence that ‘ETKTSO’ would have without authorization accessed the PAS records of Manowong and Kuanluang.”

42.  Mr Tse submitted that the Inquiry Committee should not have taken the judge’s comment into account.

43.  I will proceed on the basis that the committee ought not to have regard to the comment of the District Court Judge which was no more than an expression of opinion.  However, I do not believe that this has in any way affected the conclusion of the Inquiry Committee.  It is clear from the evidence that although the applicant was not officially concerned with the application for visa by either Manowong or Kuanluang, on 12 November 2001 and on 8 January 2002, the computer records of those persons were accessed using the applicant’s user name and password.  The Inquiry Committee rejected the suggestion that someone might have used the applicant’s password to access the computer.  Moreover, when the applicant was arrested there was found on him a piece of paper with the name Manowong written on it in his own handwriting. 

Charge (b)

44.  Mr Tse took the point in relation to charge (b) that even if the applicant had been told by his wife of her involvement with Special Zone, there was no evidence that the applicant knew or believed that to be true.  But when asked by the ICAC about Special Zone, the applicant answered:

“14 C    呢間公司係我太太同我另外一個朋友開嘅。”

(This company was established by my wife and a friend of mine.)

and that

“16 C    係做介紹啲印尼女傭嚟香港，做呢個domestic helper。”.

(That its business was to introduce Indonesian maid to Hong Kong as domestic helper.)

On such evidence Mr Tse's submission cannot possibly succeed.

Conclusion

45.  I would dismiss the appeal with costs.

Hon Yeung JA:

46.  I agree with the judgment of Tang VP and have nothing to add.

Hon Yuen JA:

47.  I agree.