LING SIK-HO v. ATTORNEY GENERAL

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

NO. 2582 OF 1989

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JUDGMENT

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1. This is an application for judicial review by Ling Sik-ho (the applicant) who is a Sergeant in the Royal Hong Kong Police Force, leave having been granted by Barnett J. on the 29th September 1989. He seeks a writ of certiorari to quash the finding and award of the Commissioner of Police that confirmed a finding of Mr J. Clements, a Superintendent of police who was the Adjudicating Officer of a disciplinary tribunal appointed under Regulation 4 of the Police (Discipline) Regulations (the Regulations).

2. Following a contested hearing the applicant was found guilty on the 21st April 1989 of Charge B "making a statement false in a material particular", contrary to Regulation 3(2)(j). In respect of another charge Charge A under Regulation 3(2)(m) "conduct calculated to bring the public service into disrepute", the Adjudicating officer had on the 16th March 1989 found there was no case to answer. The particulars of the B charge as originally drafted were as follows :-

"Particulars :

Sergeant 16426, LING Sik-ho, of the Royal Hong Kong Police Force, you are charged that on the 23rd February 1986, in Hong Kong, you did make a statement in the course of your duty in your official notebook number 187216 that the 13 gamblers, whom you arrested at 75, Tung Choi Street, 3rd floor, Mong Kok, Kowloon, were found gambling upon your entry to the premises and MA Tak was released at the rear alley of the said premises, such a statement being false in a material particular."

3. A sentence of reduction in rank suspended for 12 months was imposed by a senior officer after referral by the Adjudicating Officer. However the sentence was reduced to a severe reprimand upon appeal. The findings and the award were confirmed by the Commissioner of Police on the 6th July 1989.

Background

4. The facts reveal that the applicant was a member of a police party on the 23rd February 1986, led by Inspector Sin Kin-sang and included PC 13814 which raided a gambling establishment on the 3rd Floor of 75 Tung Choi Street, Mong Kok. Thirteen people were arrested and charged with offences under the Gambling Ordinance. Subsequently they all pleaded guilty to gambling offences at the North Kowloon Magistracy on the 24th February 1986 and were dealt with by way of fines.

5. Inspector Sin Kin-sang, PC 13814 and two civilians Ma Tak and Lee Kwok-tim were subsequently charged with conspiracy to pervert public justice and an attempt to pervert public justice arising out of incidents that occurred during the course of the raid. A six week trial that took place in the District Court before Judge Chism ended with their acquittal on the 13th November 1987 when they were awarded costs against the Crown. The applicant was a prosecution witness at the trial having been granted immunity from prosecution provided that he gave full and true evidence at the trial. However, during the hearing he was declared a hostile witness and no reliance was placed upon his evidence.

6. On the 5th December 1987, the applicant was notified that disciplinary proceedings would be taken against him as a defaulter under the Regulations and he was served with copies of the two charges.

Hearing before Adjudicating Officer

7. The hearing before the Adjudicating Officer commenced on the 16th December 1988 and after several hearings concluded on the 21st April 1989. The applicant pleaded not guilty to the two offences to which I have referred. Two other police officers who were also members of the same police raiding party, PC 23725 and PC 12045 were also charged with making a statement which is false in a material particular being charges C and D and were tried at the same time as the applicant. They also entered pleas of not guilty, but were found guilty at the conclusion of the proceedings. At the hearing the applicant was defended by Inspector Sin Chi-ming and both police constables were defended by Senior Inspector A. Crowther. The prosecution was conducted by Senior Inspector Kong Siu-wing.

8. In presenting the facts to the Adjudicating Officer Senior Inspector Kong said that all the thirteen arrested persons had been found around a table playing "Pai Kau" when the police entered and seized gambling exhibits and money. The original charge as amended was later further amended on two occasions. On the last occasion the charge was amended by the Adjudicating Officer about which complaint is made by the applicant. The particulars of the charge as amended by the Adjudicating Officer read as follows :-

"Particulars :

        Sergeant 16426, LING Sik-ho of the Royal Hong Kong Police Force, you are charged that on the 23rd February 1986, in Hong Kong you did make a statement in the course of your duty in your official notebook number 187216 to the effect that the 13 gamblers, who were taken into custody at 75 Tung Choi Street, 3rd Floor, Mong Kok, Kowloon were found inside the premises upon your initial entry thereto, such statement being false in that the said gamblers were not inside the premises at the time of your entry thereto."

9. On the 26th February 1986 anonymous information was received by the police that during the raid ten persons found gambling or operating the gambling establishment were unconditionally released. Enquiries indicated that twenty three persons had been taken into custody at either the rear staircases or rooftop of the premises but none had been found inside the premises as they had already escaped when the police entered. The arrested persons were brought back to the premises where Inspector Sin Kin-sang negotiated with the operator known as Ma Tak in the presence of the applicant that resulted in the release of some of the gamblers in return for a gambling case. As part of the agreement Ma Tak provided thirteen gamblers, including one operator of the gambling establishment.

10. It was alleged that Ma Tak had been intercepted by the applicant and PCs 23725 and 23248 at the rear alley of the premises and was then brought back to the premises, but the applicant recorded in his official police notebook that Ma Tak was stopped at the rear lane outside 75 Tung Choi Street and was allowed to leave after initial questioning. An entry was also made by the applicant to the effect that he found thirteen gamblers inside the premises upon entry. Similar entries with regard to the number of gamblers found in the premises were made by the two police constables in their police notebooks which were the subject matter of the charges preferred against them.

11. Two witnesses gave viva voce evidence for the prosecution. The first, Lau Hing-fat, was one of the thirteen gamblers and the second was a woman police constable Miss Yip Mei-ying who was a member of the police raiding party. Lau Hing-fat testified that he was playing "Pai Kau" in the casino on the 23rd February 1986 and that not long after he started gambling the police arrived and knocked on the door. He said that he walked downstairs through the rear staircase to the ground floor, but was intercepted by several policemen in a side lane and was brought back to a goods van where he was detained for a long period before he was taken to the police station where he was charged with gambling. In cross examination Mr Lau said that at the time the police knocked on the door there were two or three other people inside the premises who had also been gambling. He denied that he knew anyone by the name of Ma Tak. He also said that he was arrested as he was running downstairs in contradiction to his evidence in chief when he said he was walking. His evidence before the Adjudicating Officer that he was arrested outside the premises conflicts with the brief facts of the case which he agreed at the North Kowloon Magistracy on the 24th February 1986 when he said that he was arrested inside the premises.

12. The woman police constable Miss Yip Mei-ying said that she was instructed by Inspector Sin Kin-sang to guard the main entrance of the premises in order to see if anyone threw anything out. She saw the applicant with several men coming from a side lane go to the squad van and then take the men back to the premises.  She said that one man who had been talking to Inspector Sin Kin-sang and the applicant when she went up to them disappeared later. In cross examination she stated that she did not know whether anyone had been gambling or even where they had come from, nor if they were present when the raid started. She also said that she was not aware that the people she saw coming down from the premises were gamblers or residents.

13. The remainder of the evidence consisted of statements made to and produced by officers of the Independent Commissioner Against Corruption (ICAC), by some of the gamblers, the applicant and PC 23725 and PC 23248.

14. Paragraph 8 of Annex J-2 of the Force Discipline Manual (the Manual) provides for the admissibility of such statements but states that it is a matter for the Adjudicating Officer to decide whether or not he will admit the statement although the witness is not available for cross examination but that if the statement is admitted, he must decide what weight to place on such evidence. However, the Police Legal Adviser has advised that in the absence of corroboration by direct evidence, such statements should be given little weight.

15. The Adjudicating Officer had this to say about the statements :

"I have decided to accept all these statements as evidence in the absence of witnesses. The prosecution have advised that the witnesses have failed to answer registered mail and that several given addresses appear to be false. In principle I am not inclined to place much weight on this evidence and, in also accepting the Defence Exhibit of 'Reason for Verdict in District Court Case 476 of 1987', I note and agree to fully consider the Defence objections and reservations. I accept the Defence Exhibit as being the best available evidence in the absence of the court record."

16. After an adjournment of the proceedings to enable the parties to study the documentary evidence the Adjudicating Officer made the following observations

"         During the adjournment I have studied the prosecution and defence documents in the strict context of the disciplinary charges before me. Apart from one common thread of evidence in the prosecution statements, which I will refer to later, I cannot place any weight on any of these statements in support of the charges. Specifically, in addition to the advice contained in the discipline Manual, I consider that the motives and honesty of the gambling witneses are suspect particularly when associated with the notorious gambler and liar, Ma Tak. Finally, I also consider that the uncautioned ICAC statements were taken under practices and procedures which are not consistent with my own training and experience and I echo H.H. Judge Chism's more detailed comment on admissibility in principle. (See defence Exh. 3.2)

 

        The only aspect of this prosecution evidence which I consider reliable, again in the strict context of the Disciplinary Charges, is the consistent reference to the scene inside and outside the casino at the time of the Police raid. This is compatible with the evidence of PW1 and PW2 and I accept the quantity of reference to this evidence as corroboration of the witnesses versions. I cannot accept any individual or specific statement of fact in the ICAC statements as true because of contradictions and obvious lies in individual versions.

 

        At this point I consider that the 'B' charge should be amended and I have prepared a draft charge to reflect my opinion. I will adjourn soon for the prosecution to seek advice on the charge and also advise the prosecution that I have serious misgivings about the appropriateness and general content of the 'A' charge. Specifically, you should consider the Discipline Manual paras 14-17 of annex J.-4."

The hearing was adjourned for a short while to enable the prosecution to seek advice, but it was not possible to do so on that day so that the proceedings were then adjourned. The charge as amended by the Adjudicating Officer was read to the applicant at the adjourned hearing when he pleaded not guilty. After a submission by Senior Inspector Kong the case for the prosecution was closed and a submission of no case to answer was then made on behalf of the applicant and the two police constables.

17. The Adjudicating Officer found no case to answer on the A charge against the applicant of conduct calculated to bring the public service into disrepute, but in respect of the B, C and D charges, said :-

"B.C.D. Charges

 

        Making a statement false in a material particular.

 

        The prosecution has attempted to prove these charges by providing evidence as to what actually occured during the raid, i.e. to negate the raiding parties notebook entries by proving that a totally different set of circumstances were true. In the absence of physical evidence and sufficient witnesses, the prosecution has not been able to prove what actually happened in total that evening. I am however, fully satisfied that the version of events in the defaulters notebooks is not accurate in detail. Specifically, I do not believe that the gamblers were standing around the table as described in the notebook entries but were in fact either escaping or in the process of escaping from the premises in accordance with the evidence given by PW1 and PW2 and supported by the common theme in the prosecution statements prepared by ICAC.

There is therefore a case to answer on charges B. C. & D."

18. The defence called one witness, a police officer who was described as a Force certified gambling expert. However, his evidence is not relevant to the issues that I have to decide. After the conclusion of this evidence on the 10th April 1989, the record shows that at the request of the defence the proceedings were adjourned and that at the next session it was expected that the defence case would be closed.

19. At the adjourned hearing on the 13th April 1989, the criminal record of Lau Hing-fat was produced to show that he is an habitual gambler, together with the criminal record of Ma Tak, which reveals that he has been actively involved in illegal gambling.

20. After the conclusion of the defence submissions on the 13th April, the Adjudicating Officer adjourned the proceedings until the 21st April and wrote into the record of the proceedings the following :-

"I now adjourn this case until 21.4.89 at 10.30 hours in order that I can consider the presentation."

21. There was a factual dispute as to what the Adjudicating Officer said when he adjourned the case on the 13th April upon which there is nothing recorded in the transcript with the result that I made an order that the witnesses concerned should give viva voce evidence. The applicant, in his affirmation of the 20th January, claimed that the Adjudicating Officer said he was not in a position to give his judgment as he needed to seek advice from the Police Legal Adviser. He did not specify the nature of the advice that he wanted, and despite an objection raised by Inspector Sin Chi ming, the hearing was adjourned.

22. Inspector Sin Chi-ming and Senior Inspector Crowther also alleged that the Adjudicating Officer adjourned the case in order to seek advice. The applicant, Inspector Sin Chi-ming and Senior Inspector Crowther state that they had expected the Adjudicating Officer to deliver his judgment on the 13th April 1989 and expressed surprise at the decision to adjourn. Senior Inspector Kong, on the other hand, said that the Adjudicating Officer did not mention anything about adjourning the case for advice.

23. The Adjudicating Officer gave evidence that he adjourned the matter on the 13th April in order to prepare his report. He states that he did not obtain advice from the Police Legal Adviser nor did he consult anyone at Police Headquarters. However he said that it was possible that at the hearing he did say he was going to take legal advice although he did not recollect having done so.

24. In respect of the viva voce evidence, I am quite satisfied that the Adjudicating Officer adjourned the proceedings on the 10th April until the 13th April so that the defence could present its final submissions and that the anticipation of the witnesses who appeared before me that judgment would be given on that day was unfounded. Further, I am quite satisfied, and this is not in dispute, that the Adjudicating Officer did not obtain advice, legal or otherwise, after he adjourned the case on the 13th April to prepare his judgment. Nevertheless, as I have said, he conceded in cross examination, that it was possible that he said that he was going to take legal advice. Having considered the evidence and having seen the witnesses, I accept on a balance of probabilities that reference was made by the Adjudicating Officer that it was his intention to obtain advice pending the delivery of his judgment. However, I have not come to the conclusion that any of the witnesses were lying or trying to mislead the court about this matter, but that after such a long period of time, memories of events on that occasion may have become blurred. In any event I do not criticise the Adjudicating Officer for what may have been an unintentional lapse.

25. The Adjudicating Officer delivered his judgment on the 21st April 1989 which reads as follows :-

                "Judgement by A.O.

26. Mr McCoy, counsel for the applicant, made the following submissions:-

27. Mr Marshall, on behalf of the Crown, on the issue of bias referred me to The King (De Vesci) v. The Justices of Queen's County [1908]2 KB 285 where at 294 Lord O'Brien said :

"By 'bias' I understand a real likelihood of an operative prejudice, whether conscious or unconscious."

Mr Marshall went on to submit that the proceedings before the Adjudicating Officer are informal in nature for evidence is not given on oath or affirmation and that the strict technical rules of evidence do not apply. In the Manual, reference is made to evidence in disciplinary proceedings at Annex J-2 in which it is stated in clause 6 "that the rules of evidence must be relaxed if disciplinary proceedings are to be carried out smoothly, and just and realistic decisions reached. It cannot be stressed often enough that disciplinary proceedings are enquiries of a 'domestic' and not criminal nature". He argued that the proceedings are in part inquisitorial which therefore enabled the Adjudicating Officer to amend and substitute a new charge. He emphasised that lawyers are not permitted to represent a defaulter unless the police officer who is appointed to represent the defaulter is legally qualified. Mr Marshall urged me to have regard to the statutory framework that relates to disciplinary proceedings and took me through those regulations that are relevant to the present application.

28. Provision for taking legal advice is set out in Annex J-1 of the Manual under the heading "Guidance on Legal Matters for Adjudicating and Prosecuting Officers". Insofar as an Adjudicating Officer is concerned, paragraphs 2, 4 and 5 of provide :-

While the Adjudicating Officer is entitled to seek advice on evidence before and during the hearing he should not do so after the proceedings have been concluded. Although, as I have said, the Adjudicating Officer did not obtain any advice, nevertheless it is unfortunate that he may have indicated to the parties that he was going to do so. Accordingly, the appearance of bias did operate in this case.

29. With regard to the amendment of the charge by the Adjudicating Officer Mr Marshall drew my attention to the dictum of Nazareth J. in Re Lo Wing-tong (unreported) MP2496 of 1988, 10th March 1989, where he had this to say at 9 and 10 :-

"Plainly, on any reading of Regulation 10, there was power for the new charges to be added. In the context of an administrative hearing in relation to which that is not expressly prohibited, I cannot see that it was wrong for the Adjudicating Officer to have done so even on his own initiative. It is not suggested e.g. that because the initiative came from the Adjudicating Officer, the Applicant was somehow insufficiently aware of the charges he had to meet or not provided a fair opportunity to controvert those charges. The position would surely not have been any different had the prosecution been responsible for the initiative."

No reference however was made to this part of the judgment when the case was heard by the Court of Appeal. Although I respect the views expressed by Nazareth J., in my judgment, I consider that it is undesirable for an Adjudicating Officer to amend a charge which should be left to the prosecuting authority. I agree with Mr McCoy that such action blurs the distinction between the judicial authority and the prosecutor. However, I do not consider that the Adjudicating Officer should be precluded from making suggestions for this purpose.

30. On the matter of no case to answer, Mr Marshall submitted that there is no reference to the procedure to be adopted in the Regulations where a submission of no case to answer is made. However, in a specimen of a case at Annex D-5 of the Manual the Adjudicating Officer merely said at this stage "I hold that there is a case to answer on the charge of 'conduct to the prejudice of good order and discipline'". In an endeavour to show that he had not made up his mind the Adjudicating Officer made an affidavit on the 31st January 1990 in which he said he had only reached a provisional view. He said that in making his decision he had to assess and evaluate the evidence so far available to him and that was the assessment at that stage, but it did not mean that he had already reached the conclusion whether the defaulters were guilty and that he would close his mind to their evidence. My attention was drawn to the decision of the Court of Appeal in Re Lo Wing-tong (unreported) Civil Appeal No. 62 of 1989, 20th October 1989 that in judicial review of disciplinary proceedings evidence from the tribunal explanatory of or qualifying the reasons for its decision is not admissible following the principle enunciated in R. Environment Secretary Ex parte Powis [1981]1 WLR 584. During the hearing I admitted the evidence of the Adjudicating Officer de bene esse, but I am quite satisfied that the evidence is not admissible for it sets out his thought processes in reaching his decision and does not merely explain the procedure as argued by Mr Marshall.

31. In this case the Adjudicating Officer made specific findings before hearing the case for the defence to the effect that he was fully satisfied that the version of the events in the defaulter's notebook was not accurate in detail and that he did not believe that the gamblers were standing around the table as described in the notebook entries, but were in fact either escaping or in the process of escaping from the premises in accordance with the evidence given by the two witnesses and supported by the common theme in the prosecution statements prepared by ICAC. Yet neither Mr Lau nor the W.P.C. made any reference to any escapees from the premises.

32. Further, with regard to the District Court proceedings, Judge Chism in his reasons for verdict described Mr Lau as a very unconvincing witness and that he might have a reason to give evidence against those he felt responsible for his arrest. He described PC12045, a member of the police team, as an accomplice whose evidence was wholly unreliable. Judge Chism described the police prosecution witnesses' evidence as contradictory or conflicting in so many instances that it was far beyond the "healthy" differences suggested by the Crown. In his judgment, the Adjudicating Officer commented that he had placed relatively greater weight on the corroborative factors in appropriate statements in support of PW1 and PW2, but did not mention upon which statements he relied. He also made reference to the fact that a number of gamblers had escaped from the premises, but there was no evidence to support this finding. The Adjudicating Officer also made reference to statements which obviously contained lies, inconsistencies and contradictions, but how he came to this conclusion is not set out and no reason is given as to why he came to that conclusion.

33. With regard to the issue of corroboration, the Adjudicating Officer had specifically referred to the prosecution evidence that he considered reliable was the consistent reference to the scene inside and outside the casino at the time of the raid, which he said was compatible with the evidence of the two prosecution witnesses and accepted the quantity of reference to this evidence as corroboration of their versions. He said that he could not accept any individual or specific statement of fact in the ICAC statements as true because of contradictions and obvious lies in individual versions. In his judgment, he made reference to the fact that he had given little weight to the ICAC statements except where there was corroborative support for the evidence of PW1 and PW2. Whilst corroboration can be used in a technical legal sense to be used to confirm evidence given by another person, nevertheless, when the evidence sought to be corroborative in this case emanates from accomplices and witnesses who have been held to be unreliable, their evidence cannot in any event be used by way of corroboration.

34. My attention was drawn by Mr McCoy to Mahon v. Air New Zealand Ltd. [1984] 1 AC 808 where Lord Diplock made the following observations at 820, 821 on the rules of natural justice in the exercise of an investigative jurisdiction: -

Conclusion

35. It is sufficient to decide this application on the basis that the Adjudicating Officer had already made up his mind at the time when he found that there was a case to answer. Further, when he referred to corroborative evidence, he either had not warned himself that the corroboration came from accomplices or had not considered that they were accomplices. Further, at one point in time, he decided to give no weight to the ICAC statements, but later changed his mind to give some weight. Finally, he quite fairly conceded that he might have said at the conclusion of the proceedings that he was going to seek advice which therefore gave the impression that he was not making the decision. Again, as I have said, he drew up the amended charge. Although the Adjudicating Officer is not a lawyer and the technical rules of evidence do not apply to proceedings that are domestic in nature, nevertheless when legal concepts have been introduced and have been misapplied, the court is entitled to exercise its supervisory jurisdiction by way of judicial review.

36. The charge against the applicant was a serious one that required the Adjudicating Officer to apply his common sense and professional judgment to be satisfied on the evidence that the charge had been proved. While the circumstances in this case may have aroused suspicion, the Adjudicating Officer was only entitled to act upon probative evidence. The evidence in this case fell far short of establishing the necessary proof required. At the end of the day, I agree with Mr McCoy that the Adjudicating Officer made his decision on speculation.

37. Accordingly, the applicant is entitled to an order of certiorari to quash the findings of the Adjudicating Officer as confirmed by the Commissioner of Police and the award.