HO HO CHUEN v. COMMISSIONER OF POLICE

HCMP 2276/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2276 OF 2009

(ON AN INTENDED APPEAL FROM HCAL NO. 190 OF 2002)

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BETWEEN

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DECISION

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1.  The applicant was dismissed from the police force following disciplinary proceedings which were commenced on 24 April 2001 and ended on 9 August 2002 when his appeal was dismissed.

2.  He applied for judicial review on 13 November 2002. He was granted leave by Deputy High Court Judge A Cheung (as he then was) on 19 November 2002. The hearing of the application for judicial review took place on 11 April 2003 and by a judgment dated 2 May 2003, his application was dismissed.

3.  He had been granted legal aid for the judicial review proceedings and at the hearing before the learned judge, he was represented by Mr P Y Lo of counsel.

4.  By a summons dated 4 November 2009, the applicant applied for an extension of time to appeal against the judgment. He has been granted legal aid in this application.

5.  The proposed appeal raised two grounds.

6.  By the 2^nd ground, he applied for leave to add a new ground of review as follows:

“… Namely: the defaulter proceedings against him was unfair in that he was unlawfully deprived of legal representation by operation of Regulation 9(11) and (12) of the Police (Discipline) Regulations, Cap 232 which contravened Article 10 of the Hong Kong Bill of Rights:”

7.  As the applicant has explained in his 1^st affirmation made in support of this application, he was not satisfied with the judgment. He applied for legal aid to appeal but his application for legal aid was rejected by letter dated 22 May 2003. Then he applied to the Hong Kong Bar Association - Bar Free Legal Service Scheme for assistance. He was rejected by letter dated 6 August 2003. At that time he was an undischarged bankrupt and he had no means of appealing against the judgment. He said he was aware that he could have appealed in person but he did not have the knowledge and skills to do so.

8.  He was discharged from bankruptcy on 28 March 2005.

9.  Then in April 2009 he learnt of the decision of the Court of Final Appeal in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575. As a result, he applied for legal aid again by letter dated 28 April 2009.

10.  Presumably because of Lam Siu Po, the application for legal aid was granted on 5 October 2009 and he has lost no time in making the present application.

11.  So far as the application for leave to appeal out of time in order to raise the Article 10 argument is concerned, Ms Margaret Ng, who appeared on behalf of the applicant, accepted that her biggest hurdle is finality.

12.  In HKSAR v Hung Chan-wa and Anor [2006] 9 HKCFAR 614 the Court of Final Appeal was concerned with the constitutionality of section 47(1) and (2) of the Dangerous Drugs Ordinance, Cap. 134, which placed upon a defendant certain persuasive burdens. It was submitted on behalf of the Government that the Court could make a prospective overruling and that such power should be exercised to avoid a flux of applications for extensions of time of appeal against conviction that would otherwise result. The Chief Justice said:

“(10)  It was not necessary to determine whether the courts had the power to engage in a 'prospective overruling; even if there was such power, its exercise was plainly not justified here. This was because, apart from in exceptional circumstances, time would not be extended for appeal against conviction on the ground only that a subsequent judgment had held the previous understanding of the law to be incorrect. The circumstances must be so exceptional that the occasions when they would be held to exist would be very rare. So the magnitude of the problem of a flood of applications appeared much less than that apprehended by the prosecution.”

13.  It is clear the fact that a person had been convicted on the basis of an erroneous view of the law is not by itself an exceptional circumstance warranting leave to appeal out of time.

14.  Ms Ng submitted that as a result of his dismissal, the applicant is now earning $15,500 per month as a registered safety officer whereas had he continued as a police constable, he would be earning $23,125 per month with medical benefit. Furthermore, he estimated his loss of pension benefit at $500,000 to $700,000 in respect of the lump sum entitlement plus a further loss of about $3,500 per month from the age of 55. Such losses are of course serious, but they are not by themselves sufficient to constitute exceptional circumstances. Nor is the lack of legal aid an exceptional circumstance for an extension of time to appeal.

15.  Ms Ng referred to the case of Johnson v Gore Wood & Co. (a firm) [2001] 2 WLR 72, a decision of the House of Lords and submitted that I have a wide discretion. There the House of Lords was concerned with what was described as a Henderson v Henderson (1843) 3 Hare 100 abuse of process which was described by Bingham MR (as he then was) in Barrow v Bankside Agency Ltd [1996] 1 WLR 257 at 260 as requiring:

“… the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise.”

16.  For such abuse of process Lord Bingham said in Johnson at page 90:

“… It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.  That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.  As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. …”

17.  Barrow was not concerned with an application for leave to appeal out of time and has no application here.

18.  In Tsang Yiu Kai and Anor v Insider Dealing Tribunal, unreported, HCMP 1322/2007, dated 12 December 2007, this Court said:

“32.  We are concerned with an exercise of discretion.  But it is not an unfettered discretion.  The exercise of discretion must be guided by the decision in Hung Chan-wa.”

33.  The practical necessity for finality in criminal process underlines the importance of the principle stated in Hung Chan-wa.  The same principle applies to civil cases.

34.  Finality is particularly important because a judgment determining a legal question operates retrospectively as well as prospectively.”

19.  Ms Ng also relied on the decision of the Court of Final Appeal in Chiu Hoi Po v Commissioner of Police, FACV 9/2009, unreported, dated 24 July 2009. In that case, the appellant, a police officer, had also been found guilty of a similar disciplinary offence tribunal. Again, under regulation 9(11) and (12), he was not represented at the proceedings. He was given a severe reprimand and compulsorily retired. He sought judicial review of the decision. At first instance, he relied on Article 35 of the Basic Law and that regulation 9(11) and (12) of the Police (Discipline) Regulations breach his right to legal representation in “the courts”. The judge dismissed his application on the basis of the decision of the Court of Final Appeal in Stock Exchange of Hong Kong Ltd v New World Development Co. Ltd & Ors (2006) 9 HKCFAR 234 which held that “the courts” meant “courts of law” and not “tribunals”.

20.  On appeal to the Court of Appeal, the appellant sought to argue a new point, namely, that regulation 9(11) and (12) in restricting his right to legal representation, contravened Article 10 of the Hong Kong Bill of Rights which guarantee a fair hearing. He was not permitted to raise the new point in the Court of Appeal. The appellant was given leave to appeal by the Appeal Committee on 18 May 2009. In the Court of Final Appeal, both parties asked the Court of Final Appeal to allow the appeal without an oral hearing. This is what Bokhary PJ said in giving the judgment of the court:

“7.  It is contended on the appellant’s behalf that the outcome of the defaulter proceedings might have been different if he had been legally represented.  The respondent has refrained from – and there is no reason to question his wisdom in refraining from – contending otherwise.  Both parties ask us to allow the appeal so that :

(i)  the finding of guilt made against the appellant and the punishment awarded, confirmed and ratified against him be quashed;

(ii)  the costs of the appeal, including those of the leave application, be awarded to him, such costs to be taxed if not agreed;

(iii)  there be no order as to the costs in the courts below; and

(iv)  the appellant’s own costs here and in the courts below be taxed under the Legal Aid Regulations.

They have taken out a consent summons returnable before a single permanent judge, asking by that summons that the appeal be allowed in those terms.”

21.  Ms Ng submitted that Chiu Hoi Po shows a clear recognition by the Commissioner that an injustice had been done to a person in a similar position to the appellant. But with respect, Chiu Hoi Po was not about extension of time to appeal.

22.  The other ground of appeal related to the late disclosure of what has been described as M.5 and M.6. The applicant said in his 1^st affirmation:

“14  I am aware that the issue of unfairness resulting from the failure to provide timely disclosure of ‘M5’ and ‘M6’ was discussed extensively in the judgment in HCAL 190/2002.  If I am granted an extension of time to appeal, I would like that issue of unfairness to be revisited in light of Lam Siu Po’s case.”

23.  Regarding the late disclosure of M.5 and M.6, the case which was argued before the learned judge is different from the argument which the applicant now seeks to introduce by ground 1. Ms Ng submitted that the new submission does not depend on Lam Siu Po. But it is clear that but for Lam Siu Po no application would have been made for leave to appeal out of time.

24.  This application for an extension of time to appeal must be decided according to Hung Chan-wa. I can see no exceptional circumstances which would make this one of the very rare cases for leave to be granted to appeal out of time.

25.  For the above reasons, the application for leave to appeal out of time is dismissed. I make an order nisi that the respondent is to have the costs of the application. The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.