YIU SUNG CHI v. COMMISSIONER OF POLICE

HCAL 101/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 101 OF 2009

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BETWEEN

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(Heard Together)

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J U D G M E N T

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1.  In each of these applications, the applicant applies for leave to apply for judicial review out of time.

HCAL 101/2009 – facts

2.  The applicant in HCAL 101/2009 (“Mr Yiu”) joined the police force in 1987 as a police officer. He was compulsorily retired on 17 October 2001, following disciplinary proceedings instituted against him. Up to the time of the disciplinary proceedings, he had an unblemished record and was repeatedly commended for bravery and devotion to duty.

3.  In about mid-2000, the applicant was charged with charges of making a statement false in a material particular and charges of contravention of police orders – “other than in the course of duty, a police officer shall not associate with known criminals or triad personalities”.

4.  The disciplinary proceedings lasted 18 days. Eleven witnesses were called. Video tape records were relied on. Various documentary exhibits were produced. Statements made by civilian witnesses were also produced despite objection of the defence, the civilian witnesses having been unwilling to give evidence in the proceedings. The applicant was represented by a senior inspector. At the end of the prosecution’s case, “no case to answer” submissions were made, but they were rejected. The applicant gave evidence to explain the meetings that led to the charges.

5.  On 29 November 2000, the adjudicating officer found the applicant guilty on all charges. On 5 December 2000, a senior police officer confirmed the guilty findings, and awarded for each of the charges “compulsory retirement with deferred benefits”.

6.  However, when the file reached the Force Discipline Officer, he varied one of the guilty findings to “not guilty”, but confirmed the remaining four convictions and the awards imposed on them. The findings and awards were confirmed by the Deputy Commissioner of Police (Management) exercising the power on behalf of the Commissioner.

7.  The awards of “compulsory retirement with deferred benefits” came into effect on 17 October 2001.

8.  Mr Yiu then applied for legal aid to seek judicial review against the proceedings and the decisions flowing from them. However, legal aid was refused on 8 January 2002 on the ground of lack of merit.

9.  Following the refusal of legal aid, Mr Yiu applied for leave to apply for judicial review (HCAL 90/2002) on his private means. However, he had to abandon the application due to financial difficulties.

10.  Upon learning of the decision of the Court of Final Appeal in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575 (26 March 2009), which held, overruling previous authorities, that the prohibition of (outside) legal representation under regulation 9(11) and (12) of the Police (Discipline) Regulations (Cap 232A) was unconstitutional and rendered the police disciplinary proceedings unfair and unlawful, Mr Yiu applied for legal aid again. It was granted on 17 August 2009, and the present application for leave to apply for judicial review out of time was taken out on 29 September 2009.

HCAL 112/2009 – facts

11.  The applicant in HCAL 112/2009 (Mr Lam) joined the police force in May 1977. He received commendation and compliments in 1985 and 1988 and was promoted to the rank of detective sergeant in 1989. His performance record had been consistently good and his record unblemished in his 20 years of service when disciplinary proceedings were commenced against him in 1997.

12.  In 1995, while he was serving in the Regional Crime Unit, Kowloon East, the ICAC in the course of investigations raided the premises of a detective agency and seized various documents in which the police service numbers of several police officers, including that of Mr Lam’s, appeared.

13.  On 27 June 1995, the applicant was arrested by the ICAC. He was charged with 5 counts of accepting an advantage and was prosecuted before the District Court. On the first day of trial (30 September 1996), no evidence was offered against him. He was acquitted accordingly. However, on 22 March 1997, the applicant was charged with 11 charges of contravention of police orders on the same factual basis which gave rise to the previous criminal charges against him.

14.  From 24 June 1997 to 4 October 1997, disciplinary proceedings were held against Mr Lam. Although Mr Lam wished to be legally represented, he was not allowed to do so under the Regulations and was instead represented by a senior inspector. He was convicted of 8 out of the 11 charges. He was awarded with “compulsory retirement with deferred benefits” for each of the guilty charges. However, on 5 December 1997, the applicant was notified that the Force Discipline Officer had set aside the findings of guilt on all 8 charges (on procedural grounds) and that there would be a rehearing. Mr Lam’s appeal against the order of rehearing failed.

15.  Mr Lam then made numerous fruitless efforts to find someone from within the police force to represent him at the rehearing. He also made two requests for permission to be represented by a practising lawyer from outside the police force. They were refused by reason of the Regulations. As a result, Mr Lam was unrepresented at the rehearing.

16.  The rehearing took place from 26 October 1998 to 21 January 1998. Various prosecution witnesses were called to give evidence and 15 exhibits were produced.

17.  On 21 January 1999, the adjudicating officer found the applicant guilty of 6 out of the 8 charges. Two of them (charges B and D) were amended after the evidence had concluded and closing submissions had been made.

18.  On 25 January 1999, a senior police officer confirmed the findings and the award of “compulsory retirement with benefits deferred” in respect of each of the guilty charges.

19.  However, the Force Discipline Officer subsequently varied the guilty findings on 3 of those charges to “not guilty”. Furthermore, on 18 February 2000, the Deputy Commissioner of Police (Management) varied the finding of guilt on 1 of the 3 remaining guilty charges to “not guilty”. In other words, Mr Lam was left with convictions in relation to charge B (as amended) and charge G. The awards in relation to the same were ratified by the Deputy Commissioner.

20.  On 26 February 2000, the applicant was compulsorily retired.

21.  Mr Lam claims that after his compulsory retirement, he felt deeply aggrieved by the unfairness of the proceedings against him. He had not sought to take legal proceedings against the decisions of the Commissioner at the time, because he was utterly demoralised and financially ruined, and also because at that time there was no legal basis on which he could challenge the decisions.

22.  Upon learning of the Court of Final Appeal’s decision in Lam Siu Po, Mr Lam applied for legal aid on 21 April 2009. On 17 August 2009, he was notified that legal aid had been granted to him. On 22 October 2009, the present application for leave to apply for judicial review out of time was lodged.

Extension of time

23.  Both applications for leave to apply for judicial review are seriously out of time. Unless the Court considers that there is “good reason” for extending time, that must be the end of each proposed challenge: Order 53, rule 4(a), Rules of the High Court (Cap 4A). Section 21K(6) of the High Court Ordinance (Cap 4) further provides that the Court may refuse to grant leave to apply for judicial review out of time 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.

24.  Indeed the Court has a discretion to exercise, and must take into account all relevant factors and considerations. The three-month time limit for applying for leave to apply for judicial review is generally known. It was in place at all material times. In the case of Mr Yiu, he actually took out proceedings to challenge the disciplinary proceedings and awards in 2002, but for financial difficulties, he abandoned the proceedings subsequently.

25.  As for Mr Lam, despite his grievances about the disciplinary proceedings and the awards he was given, he made a conscious and deliberate choice not to pursue legal proceedings in relation to them.

Change in understanding of the law

26.  What prompted the two applicants to apply for leave belatedly to reopen the matters was the Court of Final Appeal’s decision in March 2009 in Lam Siu Po, which clarified the applicable law in relation to police disciplinary proceedings. As explained in the decision of this Court in Tsui Kin Kwok Johnnie v Commissioner of Police HCAL 50/2009 (26 February 2010), the law in Hong Kong between May 2004 and March 2009 immediately before the Court of Final Appeal’s decision in Lam Siu Po used to be that article 10 of the Hong Kong Bill of Rights guaranteeing the right to a fair hearing did not apply to police disciplinary proceedings. As explained in that case, prior to May 2004, the law in this regard in Hong Kong was not settled, although I accept that there had been English authorities to the effect that legal representation was not required in police disciplinary proceedings: Fraser v Mudge [1975] 1 WLR 1132; Maynard v Osmond [1977] QB 240.

27.  In those circumstances, it is plain that the present applications were prompted by the Court of Final Appeal’s decision in Lam Siu Po.

28.  However, as has been pointed out in Tsui Kin Kwok Johnnie, paras 31 to 34, the authorities have established that a change in the understanding of the law cannot, by itself, justify an extension of time, save in exceptional circumstances. A fortiori, where the previous law was by no means settled.

Finality

29.  This is because of the importance of the public policy of finality, which applies to decisions made in police disciplinary proceedings just as it applies to judgments and orders of conventional courts of law. Indeed, one could say that given the particular importance of discipline in the proper management and operation of the police force, finality of disciplinary proceedings assumes additional significance.

30.  Put another way, not only is a mere change in the perception of the law not a “good reason” for granting an extension of time (save in exceptional circumstances), prima facie, the public policy of finality makes it difficult for any “good reason” to exist for the grant of an extension of time. The longer the delay, the stronger finality works to negate the possible existence of good reason for an extension of time.

31.  In this regard, I see no relevant distinction between an application for an extension of time to apply for leave to apply for judicial review, and an application for an extension of time to lodge an appeal from the judgment of a civil or criminal court. In both cases, the court is asked to exercise its discretion to extend time in spite of the time restrictions laid down in the relevant provisions.

32.  Ms Margaret Ng for Mr Yiu argues that in an appeal type of situation, one starts from a “regular” judgment by a court of law, whereas in a judicial review situation, one begins with a decision made by a disciplinary tribunal the procedure of which was, by definition, unfair. That may be true as a distinction so far as it goes. However, I fail to see how, in the context of finality, the distinction would make any difference to the court’s approach. The whole essence of the policy of finality is that regardless of whether the decision sought to be challenged out of time is right or wrong substantively or procedurally, it should not be reopened or disturbed after all appellate/judicial avenues have been exhausted, or after the lapse of a stipulated period of time, particularly when it has been acted upon by the parties and others. Indeed, the policy of finality assumes its greatest significance precisely when the decision sought to be challenged out of time was, with the benefit of hindsight, substantively or procedurally wrong.

33.  Insofar as it is sought to be suggested that generally speaking, the “quality” of the decisions made in police disciplinary proceedings is inferior to that made in conventional courts of law, so that the policy of finality does not apply with equal force to the two types of decisions alike, I do not find the argument attractive. Just as finality does not apply with different vigour depending on the level of courts one is concerned with, once it is accepted that finality applies to police disciplinary decisions, it is unhelpful to differentiate between court decisions and disciplinary decisions. In any event, in the context of finality, when one speaks of the general “quality” of police disciplinary decisions, one must also bear in mind that they are subject to the court’s supervisory jurisdiction. When one applies the policy of finality, one therefore looks at the decisions not only in their police disciplinary context but also in the wider context as decisions subject to the supervisory control of the court. Furthermore, as mentioned, given the particular importance of discipline to the police force, finality of disciplinary decisions actually assumes additional significance in the present context.

34.  Ms Gladys Li SC, appearing for Mr Lam, argues that unlike an appeal type of situation, in the context of judicial review, granting an extension of time to apply for leave to apply for judicial review is not the end of the matter. Even if leave is granted out of time, it does not follow necessarily that the applicant will get relief at the substantive hearing. The court would still have a discretion under section 21K(6)(b) to refuse relief on a discretionary basis, if the initial delay has occasioned hardship, prejudice or detriment to good administration.

35.  I do not accept this argument. Once an extension is given and leave is granted on that basis, the ground rules are changed, and at the substantive hearing different considerations will apply in terms of whether to refuse relief: see the explanation of this subtle process by Simon Brown LJ in R v Criminal Injuries Board, ex p A [1998] QB 659, 675G/H to 676D (decision of the Court of Appeal reversed in part on appeal: [1999] 2 AC 330).

36.  However, the more important reason for rejecting Ms Li’s argument is that the fact that the court also has power at a substantive hearing to refuse relief on the ground of undue delay does not mean that finality assumes lesser significance when considering whether there is good reason for extending time to apply for leave to apply for judicial review in the first place. In fact, one of the vices which the policy of finality seeks to eliminate is the vexing of the successful party to a previous decision with a subsequent set of proceedings commenced out of time.

37.  In any event, in the very recent decision by the Court of Appeal in Li Siu Hing v Commissioner of Correctional Services CACV 277/2009, 19 March 2010, the Court of Appeal has applied, without any modification, the principle of finality in civil and criminal matters (see the leading case of HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614) to an application for an extension of time to apply for leave to apply for judicial review (against decisions made in prison disciplinary proceedings): see paragraphs 9 and 10 of the judgment. The decision is, of course, binding on this Court.

Merits

38.  Both Ms Ng and Ms Li argue strongly for the “substantive merits” of their clients’ respective cases. In each of the two cases, counsel argues that the relevant applicant has suffered a grave injustice in the disciplinary proceedings concerned, by reason of the restrictions on legal representation. In particular, Ms Ng argues that what is involved here is not a case of a mere or technical breach of the article 10 right to a fair hearing. The infringement of her client’s right to a fair hearing by the denial of legal representation has had the actual effect of rendering the proceedings most unfair and unjust (despite the good intention of the adjudicating officer to be fair and impartial). She submits that the resulting convictions and awards were the products of unfair proceedings against her client. Counsel argues that this distinguishes her client’s case from cases like R v Ballinger [2005] 2 Cr App R 433 where nothing but a technical breach could be shown.

39.  I have no difficulty in accepting that in relation to Mr Yiu’s and Mr Lam’s respective cases, they would have benefitted substantially from having legal representation in the relevant proceedings, and on the materials presently before the Court, they do have a substantive, as opposed to a technical, complaint that they have not received a fair hearing in the disciplinary proceedings.

40.  However, it should be noted that in the particular context of an article 10 infringement, it has been held by the Court of Final Appeal in Lam Siu Po that the very fact that the relevant regulation imposed an automatic ban on legal representation rendered the proceedings inherently unfair and the relevant conviction and sentence quashable (para 144 of the judgment). It is therefore unnecessary nor profitable to enter into the inevitably speculative realm of trying to determine how the evidence or the case might have progressed differently if a lawyer had been acting for the police officer in the disciplinary proceedings (para 146). The court would not go into the question of the merits of the underlying disciplinary charge unless it is sought to be suggested by the Commissioner in the judicial review that with or without proper legal representation, the conviction and sentence would have been an inevitable outcome on the facts of the particular case.

41.  I have no difficulty in accepting that in an application for an extension of time in the present context, merit is a relevant factor. I am further prepared to assume in the favour of the applicants that they are not merely complaining about a technical breach (which by itself would be quite sufficient to enable them to have the convictions and sentences quashed by reason of the systematic ban on legal representation if an extension is granted), but they have suffered real injustice in the unfair proceedings.

42.  However, it is well established that the fact that the proposed challenge is likely to succeed is not a sufficient exceptional circumstance for leave to be granted, although a lack of substantial merits would be a good reason to refuse an extension: Lau Luen Hung Thomas v Insider Dealing Tribunal HCMP 1017/2008, 9 April 2009 (CA), para 25. Indeed in Lau Luen Hung Thomas, the proposed appeal against a penalty imposed by the Insider Dealing Tribunal, if allowed to be lodged out of time, was bound to succeed because the penalty was imposed pursuant to provisions that had since been struck down by the Court of Final Appeal. Yet the Court refused the application for an extension of time. The intending appellant’s application to the Court of Final Appeal for leave to appeal out of time was equally unsuccessful: FAMV 46/2009, 4 December 2009.

43.  All this is not surprising. As Le Pichon J (as she then was) said in Birkenhead Properties & Investments Ltd v Leung Yiu [1998] 1 HKLRD 527, 539A (CA) in a passage cited with approval by the Court of Appeal in Tsang Yiu Kai v Insider Dealing Tribunal, HCMP 1322/2007, 18 December 2007, para 21, “the merits point is nothing more than the mirror image of the change in the law point”.

44.  Given this very strict approach, which is, of course, binding on this Court, it is difficult to see how significant weight can be placed on merits (or substantive merits) as a consideration in the exercise of the Court’s discretion.

Length of delay

45.  Broadly speaking, the longer the delay, the more compelling the reason has to be for granting an extension of time: R v Ballinger, supra, at p 438. The delays in the present cases are extremely long.

Prejudice to good administration and detriment

46.  As regards prejudice and detriment to good administration, the concern of opening a floodgate is a real one. Thus far, less than 20 applications for leave out of time have been made with the Court. However, according to a letter from the Legal Aid Department, 131 applications for legal aid from ex-police officers were received between 26 March 2009 (the date Lam Siu Po was decided) and 26 June 2009, and 57 applications were granted. Between 27 June 2009 and 28 February 2010, 30 similar applications were received and 1 application was granted. It is quite possible that some of these unsuccessful legal aid applicants may apply for leave to apply for judicial review out of time on their own means or in person. Indeed the Court has dealt with an application made in person (HCAL 125/2009). The strain placed on the limited resources of the police, the Legal Aid Department and the Judiciary by the belated applications is self-evident.

47.  According to the Commissioner’s figures, as at 28 February 2010, a total of 31 applications relying on Lam Siu Po were served on either the police force or the Department of Justice. The figures included applications made at the appellate level.

48.  General administrative difficulties in rehearing past disciplinary cases cannot be under-estimated. Records of past disciplinary cases are either incomplete or may even have been wholly destroyed. Availability of witnesses is another problem. Very often, the prosecution witnesses were serving police officers at the time and some of them may well have retired. Even if they are available, the memory of witnesses must have been affected by the lapse of time. Exhibits may have been destroyed or may no longer be available.

49.  Reinstatement of former police officers is also not straightforward.

50.  In the case of Mr Yiu, of the 11 police officers who were named as prosecution witnesses in the disciplinary proceedings, two were under identity protection arrangement and had to give evidence in mask and behind a shield. There were two other police officers whose evidence was agreed and therefore they were not required to give evidence in the disciplinary hearings in 2000. Their identities cannot be traced at the moment.

51.  It is not for Mr Yiu to say that the evidence of some or all of these witnesses would have been irrelevant in any event. It is not for him to tell the police how to prosecute the disciplinary charges if there should be a rehearing. Moreover, the memory of available witnesses, as I have mentioned, must have faded after all these years.

52.  It is suggested that in fact it would be quite unfair to order a rehearing if the proposed challenge is allowed to be run and is successful at the end of the day. However, in my view, this is a double-edged sword and it cuts both ways. The fact that a rehearing cannot be practically held is in itself a consideration against granting an extension of time.

53.  In the case of Mr Lam, some of the police prosecution witnesses are no longer with the force and it is not clear whether they are still traceable and are willing to give evidence at a rehearing. Moreover, it would appear that some of the documentary exhibits have since been destroyed. Again due to the passage of time and destruction of the relevant records, none of the statements of the prosecution witnesses, save for two statements and some other records, can be located.

54.  Again, I do not accept counsel’s point that the missing documents and witnesses are unimportant to the charges against Mr Lam. It is not for Mr Lam to tell the police how to conduct its prosecution against him in the event of a rehearing. In any event, on the materials before the Court, the Court is unable to say for certain that the missing witnesses and documents would be of no significance at a rehearing if there should be one.

55.  As I mentioned in Tsui Kin Kwok Johnnie (para 50), the very idea that police disciplinary decisions made more than 10 years ago could, due to a subsequent change in the understanding of law, be reopened, must be, in my view, detrimental to the good administration of the police force. In the case of Mr Yiu, he has indeed commenced judicial review proceedings to challenge the findings and awards. For reasons of his own, he made a deliberate (and no doubt painful) choice to abandon the proceedings. In my view that must be a weighty consideration against allowing him to reopen the whole matter after all these years.

Miscellaneous considerations

56.  In each of the applications, I have considered all relevant matters, including the steps taken by the applicants after the disciplinary proceedings, the reasons for their not taking earlier actions, the prejudices, injustice and sense of grievance suffered by them, the implications of the convictions and awards on their subsequent careers and incomes, and all other miscellaneous matters urged upon the Court by counsel.

Outcome

57.  Having looked at the matter in the round in each case, I am afraid the applications must be refused. I so order.

Costs

58.  As regards costs, I have borne in my mind the relevant principles discussed by the Court of Appeal in Sky Wide Development Ltd v Building Authority CACV 321/2008 (2 March 2009). I take it as a starting point that it takes unusual circumstances for an award of costs to be made against an unsuccessful applicant for leave and that the court should be sparing in the exercise of its discretion to make such an order of costs (para 28).

59.  In the present cases, one is not, however, concerned with an ordinary application for leave to apply for judicial review. One is dealing with two applications for an extension of time to apply for leave to apply for judicial review. The two applicants have come to Court to ask for an indulgence of the Court. Their applications have been successfully opposed by the putative respondent. That is an exceptional circumstance pointing towards awarding costs against the two unsuccessful applicants.

60.  However, the Court bears in mind that, prima facie, by reason of the systematic ban on legal representation, the disciplinary proceedings in question would have been liable to be quashed, had an application to challenge the findings and sentences been made within time. In a sense, the present applications had their genesis in the unfair proceedings with which the applicants had been made to go through. To that extent, the putative respondent may be said to be responsible for the present applications.

61.  The putative respondent has appeared at this stage at the invitation of the Court. However, the applicants are not to blame. They did not have all the records, nor did they know what prejudice or detriment their applications or this type of application would cause to the putative respondent in terms of good administration of the police force. In a sense, the putative respondent is here more to assist the Court than to oppose the applications for extension.

62.  Having looked at the matter in the round, I have come to the conclusion that the fairer course to take is to make no order as to costs.

63.  However, the Court must sound a warning here in relation to costs: it is apparent from the approach of the courts, both at this level and at the level of the Court of Appeal (in similar cases) that this type of application, if allowed to proceed, would likely lead to the opening of a floodgate and be detrimental to good administration. Whilst each case must be decided on its own facts, it is apparent that it is not easy to obtain an extension of time from the courts. All this could have a bearing on the question of costs in future cases. Whilst each case would be dealt with on its own facts, it would be prudent for all those concerned to seriously reassess the merits of their cases before proceeding to an oral hearing for an extension of time. For those cases that are legally aided, the Court’s observations apply to the Director of Legal Aid as well.