LAM CHI WAI v. COMMISSIONER OF POLICE

HCMP 311/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 311 OF 2010

(ON AN INTENDED APPEAL FROM HCAL NO. 56 OF 2004)

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DECISION

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1.  I have before me an application by a former policeman for extension of time to appeal against an order made by Chu J on 8 March 2006 dismissing his application for judicial review. The summons was issued on 19 February 2010. The application was made after legal aid was sought and granted, following upon the decision of the Court of Final Appeal in Lam Siu Po v. Commissioner of Police [2009] 4 HKLRD 575on 26 March 2009. It was held by the Court of Final Appeal that article 10 of Hong Kong Bill of Rights (“HKBOR”) applied to police disciplinary proceedings and the blanket prohibition of legal representation in such proceedings under regulations 9(11) and (12) of the Police (Discipline) Regulations, Cap. 232A was unlawful.

2.  As far as I know, this is the third application of its kind made before a single judge of Court of Appeal in the past few months.  Leave to appeal out of time was refused by Tang V-P in Ho Ho Chuen v. Commissioner of Police, HCMP 2276/2009 on 18 December 2009.  On 2 February 2010, Rogers VP granted leave to appeal out of time in Chau Cheuk Yiu v. Poon Kit Sang & Ors, HCMP 121/2010.  The Commissioner of Police applied to the full bench to set aside the leave granted, and this is due to be heard on 6 August 2010.  And on 6 May 2010, the Court of Appeal heard an application for leave to appeal to the Court of Final Appeal out of time in Chan Kang Chau Clarence v. Commissioner of Police, HCMP 2824/2004, five years after the decision of the Court of Appeal was given, on the basis there is a change of the understanding of the law since Lam Siu Po.  Leave was refused in that instance.  So much for the situation in the level of the Court of Appeal.

3.  There are similar applications for extension of time in the Court of First Instance, for leave to apply for judicial review years after the police disciplinary hearings were held, to raise the ground that the disciplinary proceedings were in violation of article 10 as the applicants did not have legal or proper representation, relying on Lam Siu Po.  Decisions were given since February this year, they were Tsui Kin Kwok Johnnie v. Commissioner of Police,HCAL 50/2009, 26 February 2010 (A Cheung J); Li Kin Wah & Yung Kam Cheung v. Commissioner of Police, HCAL 126/2009 & HCAL 6/2010, 7 May 2010 (A Cheung J); Chiu Kin Ho v. Commissioner of Police, HCAL 135/2004, 7 May 2010 (Chu J); Wong Chi Keung, Mak Kin Wing & Wong Chi Ming v. Commissioner of Police, HCAL 1/2010, HCAL 20/2010, HCAL 21/2010, 11 May 2010 (Fok J).  All these applications for time were unsuccessful.  The applicant in Tsui Kin Kwok Johnniehad applied to the Court of Appeal for leave to appeal against the refusal to extend time, his application was dismissed on 10 June 2010 and reasons are to be handed down this afternoon.  I understand Li Kin Wahis under appeal.  The judges at the Court of First Instance have applied the same approach as the judges in the Court of Appeal in dealing with an application for extension of time to appeal.

4.  The strain placed on the resources of the police, the Legal Aid Department and the Judiciary by these belated applications is a matter of concern.

5.  Each case for extension of time is fact sensitive, even though the applications were all made as a result of the decision of the Court of Final Appeal in Lam Siu Po.  I would first endeavour to state the legal approach that should be adopted, based on the cases mentioned above and others cited to me:

(1) The starting point must be where time for appeal has expired, the matter is at an end (Lau Luen Hung Thomas v. Insider Dealing Tribunal, HCMP 1751/2007, 28 February 2008, para 7; R v. Unger [1977] 2 NSWLR 990 at 995D). The practical necessity for finality of decision in the legal process is a very important consideration, it applies to civil and criminal proceedings alike (Tsang Yiu Kai & Ors v. Insider Dealing Tribunal, HCMP 1322/2007, 18 December 2007, para 33)

(2) Whether time should be extended for appeal is a matter of discretion for the court. The burden is on the applicant to justify exercise of that discretion in his favour. The exercise of discretion is guided by the principles stated in HKSAR v. Hung Chan Wa (2006) 9 HKCFAR 614, a decision of the Court of Final Appeal, paras 21 to 25. Time should not be extended only on the ground that an authoritative judgment subsequent to the decision in question has held the previous understanding of the law to be incorrect. There could be exceptional circumstances which would justify an extension of time and a departure from the principle of finality, but circumstances must be so exceptional that the occasions when they would be held to exist would be very rare.

(3) A change in the understanding of the law, even though fundamental, is not an exceptional circumstance (Tsang Yiu Kai, paras 27 & 30; Lau Luen Hung Thomas, 28 February 2008, para. 8), nor would the fact that the appeal is likely to succeed be a sufficient exceptional circumstance, although lack of merits or substantial merits in an appeal would be a good reason to refuse leave (Lau Luen Hung Thomas v. Insider Dealing Tribunal, HCMP 1017/2008, 9 April 2009, para 25). Merit as a factor, though relevant, is not a sufficient reason for extension of time to be granted, it can only attract limited weight (Chan Kang Chau Clarence, 19 May 2010, para 12; Li Kin Wah, paras 27 to 29).

(4) The longer the delay in bringing the appeal, the more compelling the reason has to be for granting an extension (Li Kin Wah, para 30; R v. Ballinger [2005] 2 Cr App R 433 at 438). Where the delay in bringing the appeal is not the consequence of a known and erroneous state of the law, the practical necessity of finality applies with greater force (Li Siu Hing v. Commissioner of Correctional Services, CACV 277/2009, 19 March 2010, para. 10)

(5) The prejudice to the applicant such as loss of substantial pension benefits on compulsory retirement and the lack of legal aid to bring an appeal are not, by themselves, exceptional circumstances for this purpose (Ho Ho Chuen, para 14; Wong Chi Keung, paras 57 and 69).

(6) The detrimental impact of granting extension of time on good administration and floodgates considerations are relevant to the exercise of discretion against the applicant (Tsui Kin Kwok Johnnie, para 50; Li Kin Wah, paras 31 to 38; Wong Chi Keung, paras 73 to 86).

6.  I turn to the particular circumstances of this case.

7.  The delay in this instance is 3 years 10 months.  It is substantial on any view.  The explanation for the delay was due to the applicant’s failure to obtain legal aid for the intended appeal, and that he was under stress and pressure as he was going through a divorce and his income was unstable after his compulsory retirement from the police force.  He applied for legal aid in March 2009 soon after the Court of Final Appeal’s decision in Lam Siu Po.  Legal aid was granted in November 2009 and this application was taken out in February 2010.

8.  One of the grounds of the intended appeal is that the judge had erred in holding that the denial of legal or proper representation to the applicant in the disciplinary proceedings was not in breach of article 10 of HKBOR.  Miss Ng submitted on behalf of the applicant he had pursued the same line of defence and challenge as in Lam Siu Po from the very beginning.  That does not appear to be the case.  It seems from Form 86A filed in the proceedings for judicial review and the supporting affirmation of the applicant that this point was not relied on as a ground for judicial review.  The applicant only mounted a challenge against the decision of the adjudicating officer not to permit Inspector Lau Kwok Fai, who was interdicted at the material time, to represent him, thereby, as he contended, infringing his rights under regulation 9(11)(a) of the Police (Discipline) Regulations to be represented by “an inspector or other junior police officer of his choice”.  The argument raised before the judge on article 10 was that the adjudicating tribunal was not an independent and impartial tribunal as required under that article.  The unsuccessful application before Chu J to amend Form 86A to add a further ground for judicial review was on the basis of article 35 of the Basic Law, and had nothing to do with the right to legal or proper representation by virtue of article 10.  On a fair reading of the judgment of Chu J, I have reservations if the judge had indeed made the erroneous holding now asserted.  And I do not think the judge could fairly be criticised for making any such erroneous ruling when the issue was not raised properly before her.  Besides, with or without the Court of Final Appeal decision of Lam Siu Po, there was no legal impediment to the applicant to appeal the decision of Chu J on the grounds that the judge had ruled against him. 

9.  Another proposed ground of appeal is that the judge had erred in holding that the element of “impairment of operational efficiency” in Police General Orders (“PGO”) 6-01(8) was satisfied, and that the decision of the Court of Appeal in Leung Fuk Wah Oil v. Commissioner of Police [2002] 3 HKLRD 653 applied so that no separate proof was required to establish the actual impairment of the defaulter’s efficiency as a result of serious financial difficulties.  The judge reached that conclusion on the basis there was evidence before the adjudicating officer to support a finding there was impairment of the applicant’s efficiency as a result of his financial imprudence.  Besides, if LeungFuk Wah Oil was distinguishable as the court there was construing an earlier version of PGO 6-01(8) which was differently worded, there was again no legal impediment to the applicant to bring an appeal within time and arguing this case was not applicable.

10.  The other proposed ground of appeal, that the judge erred in holding the non-disclosure to the applicant of the memorandum of Inspector Fong provided to the Force Discipline Officer was not unfair and did not constitute material prejudice to the applicant does not depend on the decision of the Court of Final Appeal in Lam Siu Po, so the practical necessity of finality would apply with greater force here.

11.  Miss Ng contended that the applicant had suffered substantial injustice and injury in the sense of Ballinger at 439 in that the deprivation of legal or proper representation was material to the outcome of the disciplinary proceedings, that the conduct of the defence would have been different if the applicant had such representation, and that legal or proper representation could have made a real difference to the conviction.

12.  As I see it, the injustice argument is but a variant of the merits argument.  The matters submitted by Miss Ng go to the merit of the proposed challenge.  It would appear from A Cheung J’s decision in Li Kin Wah paras. 19 to 29 that Miss Ng had made similar arguments in that case.  I agree with A Cheung J’s approach and reasoning.  Although merits are relevant, as is the sense of injustice to the applicant, they are only of limited weight, according to the cases I have mentioned earlier. 

13.  As for the personal circumstances of the applicant and the prejudice he has suffered, they are not substantially different from those of any of the other applicants whose applications for extension of time were refused.

14.  Given the strict approach to be adopted in the exercise of discretion here, I do not think the applicant has made out a case of truly exceptional circumstances to warrant the exercise of discretion in his favour to depart from the principle of finality.

15.  The Commissioner has not filed evidence in this application on the prejudice and detrimental effect on good administration if extension of time should be granted.  He had done so in Tsui Kin Kwok Johnnie, Li Kin Wah and Wong Chi Keung.  I am entitled to take into consideration evidence of a general nature as mentioned in those decisions.  Up to 31 March 2010, the police has received 177 inquiries from former officers convicted in disciplinary proceedings as to the stance of the police force in view of Lam Siu Po.  As at that date, 31 applications have been lodged for leave to apply for judicial review, including applications for leave to appeal against judgments in judicial review out of time, relying on Lam Siu Po.  131 applications for legal aid from former police officers were received between 26 March 2009 (date of decision of the Court of Final Appeal in Lam Siu Po) and 26 June 2009 and 57 applications were granted.  Between 27 June 2009 and 28 February 2010, 30 similar applications for legal aid were made and 1 was granted.  The strain on the resources of the police force, the Legal Aid Department and the court is apparent.

16.  In cases where rulings in disciplinary proceedings are quashed, it is the general practice of the police to reinstate the officer concerned, and, in the meantime, to restart the impugned disciplinary proceedings.  And depending on the circumstances of each case, the police officer may be interdicted pending the outcome of the fresh disciplinary proceedings.  There would be administrative difficulties to re-integrate police officers who had been retired for several years into the police force if there is to be reinstatement, not to mention the impact on morale of the police force.

17.  There is no information before me if the records of the past disciplinary proceedings concerning the applicant are still retained and that they are complete.  Given the significant lapse of time, it is likely that the police would encounter practical difficulties in presenting evidence afresh and calling witnesses in the rehearing of disciplinary proceedings.

18.  Even if the applicant had shown good reason for extension of time, I am satisfied this would be detrimental to good administration and I would have exercised my discretion against him.

19.  For the above reasons, I dismiss the application with costs to the Commissioner.  The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.