KWOK WAI-HUNG v. COMMISSIONER OF POLICE

IN THE COURT OF APPEAL

1996, No. 104
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. Following disciplinary proceedings in which the appellant, formerly a detective police constable, pleaded to several charges, he was dismissed. He then applied to the High Court for judicial review of the award of dismissal and his motion was dismissed by Yeung J on 8th February 1996. He now appeals to this Court against the order of Yeung J.

2. The facts are as follows. He was charged in disciplinary proceedings on 11 counts. Two of the counts, i.e. charges A and B, were of the negligent loss of government property. Charge C was of making a false statement in a material particular. Charges D to K were of contravention of Police Orders.

3. The disciplinary hearing took place on 1st, 2nd, 3rd and 13th March 1995. The appellant was represented by Chief Inspector Yu Chi-hung. On the first day of the hearing, he pleaded not guilty to charges A, B and C, and guilty to charges D to K. Evidence was called from detective police constable, PW1, who produced a briefing note from Superintendent Youil and a video tape and a transcript of that tape. The briefing note made it clear that the appellant was aware that police were investigating the whereabouts of one BB Wai. The video type was produced by PW1 whose evidence in substance was that he had used a hidden video tape recorder and recorded the appellant having a conversation with an arrested suspect Tsang Chung on 1st October 1994 when the appellant had been asked to guard Tsang.

4. Before the hearing, the appellant had already been provided copies of intended documentary exhibits including a copy of the video tape and a transcript. He was provided those on 9th February, about 3 weeks before the hearing commenced.

5. The video was viewed by all the parties at the hearing. Apart from the defence police officer disputing the transcript on the ground that some of the tape was inaudible, no objection was taken to any of the exhibits. What the adjudicating officer said about that matter in a record of the disciplinary proceedings exhibited by the appellant was this:

"A video tape was produced and its contents were viewed by all parties present. The transcript of the conversation between the defaulter and TSANG Chung in Room G05 was also produced (Exhibit PE). However, the defence officer disputed over the accuracy of some of the transcript as he claimed certain part of the conversation was inaudible as evidenced by the video showed. The comments made by the defence officer were so generalised that I advised him to identify & highlight those parts of the transcript which he reckoned to be inaccurate so as to enable the appropriate tribunal to review and decide. I also asked the prosecuting officer to produce the duplicate and the original tapes in evidence."

6. The case was then adjourned from 1st March to 2nd March. On that second day, the prosecuting officer applied to lay an additional charge L. That charge was of neglect of duty contrary to regulation 3(2)(h) of the Police Discipline Regulations. The particulars were these:

"DPC 22787 Kwok Wai-hung, of the Royal Hong Kong Police Force, you are charged that on 1st October 1994 in the Organised Crime and Triad Bureau headquarters in Hong Kong, you did neglect your duty as a police officer in that you failed to report to your superior, information regarding to BB Wai and Pannu, which was conveyed to you by prisoner male TSANG Chung while you were guarding him on 1.10.94. Such information is material in particular to briefing you received in the same morning."

The appellant pleaded guilty to it and charge C was withdrawn. The appellant then changed his plea to charges A and B from not guilty to guilty. The hearing was then adjourned to 3rd March for agreed facts to be submitted and to hear mitigation.

7. On 3rd March a statement of the agreed facts was submitted, also, what is of significance, a statement in mitigation which forms part of the record before us. The hearing was then adjourned to 13th March for the award. On 13th March the adjudicating officer decided that his powers of award were inadequate and he referred the case to a senior police officer as he was entitled to do under the Police Disciplinary Regulations. He advised the appellant of his right of appeal.

8. On 27th March, the senior police officer concerned, Chief Superintendent Braithwaite, awarded dismissal. On 25th march 1995, the Force Discipline Officer, also under the Police Discipline Regulations confirmed the senior police officer's award. On 28th June, the appellant appealed to the Commissioner of Police who rejected the appeal.

9. The appellant was represented by counsel at the hearing of his application for judicial review. His notice of appeal to this Court was prepared by the solicitors who acted for him in the court below. But before us today, he appears in person. However, he submitted yesterday his outline submissions, running to 9 pages of dense typescript. Also, he has submitted to us a reply to the respondent's written submission, running to a further 41/2 pages.

10. Before us today, he has enlarged upon his outline submissions in respect of the central point pursued in those submissions which is concerned with the transcript and the video tape of his conversation with Tsang.

11. The substance of his outline submissions is that his pleas were made in the context of a plea bargain and that, it must be said, seems to accord with the evidence. He contends that his plea was made upon the basis of the agreed facts. Therefore, it was the agreed facts upon which the award should have been made. He complains that the senior police officer, Chief Superintendent Braithwaite, who made the award of dismissal, relied upon the contents of the transcript of the video tape. He submits that the superintendent should not have had regard to it as his defence officer had objected to the accuracy of the transcript and throughout had never accepted its accuracy.

12. He complains, in addition, although it is a minor part of his submissions, that covert video facilities were used and, moreover, that the original tape was never produced and in fact it has been destroyed. The latter regrettably is the case for it is clear that when the Commissioner of Police dismissed his appeal, apparently in accordance with police practice, the original video tape was destroyed. If that is the ordinary practice, it should be reviewed. However, returning to the appellant's submission, he submits that the transcript therefore was not admissible and it should in any case have been certified as it was not in Chinese.

13. Before I proceed to address those submissions, it is helpful to have regard to the nature of what the video recording disclosed. This can be done best by the passages the judge included in his judgment being part of the exchange between the appellant and the suspect, Tsang Chung

"Kwok: They haven't told you anything ?

Tsang: (His hand gesture showed that he didn't know.)

Kwok: motioned to Tsang Chung to bolt the door.

..........

Tsang: Do I need to engage any lawyer ?

Kwok: Does anybody know that you are arrested ?

Tsang: (Shook his head to indicate that nobody knew about this.)

............ .

Kwok: Not yet.....(if) I let you make a phone call now, people would know that you make phone calls in the room, you fucking fool. Did anybody of the group of people (who were here) just now know that you make (phone calls) ?

Tsang: (Shook his head) and said no.

Kwok: So I said. If yes,.... put it to his account, right ?...The phone conversations are tapped. I tried several times but could not put the calls through just now. The apparatus.......it has been tapped.

............

Kwok: You moved there to live on your own, right ? Well, your place is very near to the old home.

Tsang: Perhaps that Inspector showed discontent....that Inspector.

Kwok: .........it's fucking coincidental that I have returned just now. I didn't receive any tip off this morning. I didn't go to do it either. Who the fuck knew that it really happened.

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Tsang: That day, Peter......asked my wife to page you, Peter.

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Tsang: A little while ago, my wife paged you.

..............

Kwok: Hey, don't engage any lawyer, don't engage any lawyer. Ask me ? It's a fucking waste of breath. Outrage him, make him give you a fuck.....Refuse to answer every question you're asked. (")If you have the evidence, charge me.(") Right ? Don't say anything..........as simple as that. Just say you don't know. (")If you have the evidence, charge me. Do anything you like..........don't know.(") He will nail you down at any rate...... ("If you) have something in your hand......charge me as you please(")......right.........that is the way to say, right ?

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Tsang : Ah Cheong and I have tried to ask you to have meal with us.

............

Tsang: Ah Cheong said that he couldn't find you. He said that he didn't know your pager number.

Kwok: He didn't have my pager number ? Uh, he has his way to find me....

..............

Tsang: Ah B B hasn't returned from Zhuhai yet........

Tsang: B B Wai hasn't returned............

Kwok: What has it got to do with B B Wai ?

Tsang:...............B B hasn't returned; he is still in Zhuhai.

The mentioning of B B Wai by Tsang was made at about 11 O'clock. About 5 minutes later, when Inspector Yuen entered the room, he asked the Applicant if Tsang had said anything. The Applicant replied, 'He said nothing. I didn't ask him anything....I don't know.........I don't know. He was again asked, 'What did he say ?, He said, 'I don't know.' "

14. It has to be stated next that a carefully prepared statement in mitigation put in on the appellant's behalf, which appears at p.48 of the bundle, runs to some 51/2 pages of typescript. In it are passages that clearly adopt the version given in the typescript including these passages:

"No matter what the defaulter had done/said while he was guarding the prisoner TSANG Chung, he had not done anything which might impede the investigation of the case in material. It was clear in the video

i) that TSANG Chung had directly and indirectly asked the defaulter to allow him making phone call inside the room to arrange lawyer to come; and

ii) that the defaulter had tried to find an excuse to refuse him, i.e. telling him that the telephone in question was bugged."

15. The appellant has also exhibited the record of disciplinary proceedings and award by the senior police officer. It can be seen from this that the senior police officer, Chief Superintendent Braithwaite, referred to those matters mentioned in the statement of mitigation. It was upon that basis that he said:

"My interpretation of the transcript of the conversation in response to these points is that TSANG Chung and the defaulter were acquainted with each other previously and that the defaulter was indeed attempting to assist TSANG in a most conspiratorial and sinister fashion. In fact at one point he appears to be coaching TSANG on refusing to answer questions! The whole tenor of the conversation leads me to reject the explanations given, to conclude that the integrity of the defaulter is in severe doubt and that his actions bordered on the criminal. Such a person in my view cannot under any circumstances be allowed to remain the RHKP."

16. Having referred to those matters, I return to the appellant's submissions. It is apparent that underlying his submissions is a fundamental misconception that police disciplinary proceedings are to be equated with criminal trials; and that the former are subject to procedural requirements and rules of evidence that apply to criminal trials. That that is not so as is well established. See Re Lo Wing-tong [1990] 1 HKLR 325 in particular as to the non-applicability of rules of evidence.

17. The applicant seems also to believe that this appeal is to be dealt with in the same way as an ordinary criminal appeal. However, it arises in the context of an application for judicial review in which the role of the courts is limited to intervention upon the three grounds of illegality, irrationality and procedural impropriety (see for example, Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374).

18. In the light of that legal position, I return again to the appellant's complaints. The transcript of the video tape did not require to be certified. As I have already said, a copy of it together with the transcript was provided to the appellant some three weeks before the hearing. True the defence officer did object to the transcript on the ground that parts of the video tape were inaudible. But he did not respond to the adjudicating officer's request that he highlight the parts of the transcript that he reckoned were inaccurate, so that they could be dealt with.

19. Looking at the transcript of the conversation, particular the portion quoted from the judgment below, it is difficult to see how the effect of those, as in my judgment was properly assessed by the senior police officer, could have been displaced by the inaudible passages. The exchanges between the appellant and the suspect Tsang, only two pages of which the judge quoted, conveyed their effect over several passages. It is not a question of particular words being misheard. There is no suggestion before us of any particular words having been said that would cause the passages relied upon appear in a materially different light. All that the appellant complains of is that there were inaudible passages. The adjudicating officer and Chief Superintendent Braithwaite knew that and must have taken it into account.

20. Having regard to the material before us and to all that has been urged in the submissions, it does not seem to me that the conclusions drawn from the transcript and the video tape by the adjudicating officer and Chief Superintendent Braithwaite can be said to be irrational or wrong.

21. The ancillary submissions have nothing in them. The suggestion of entrapment and that the suspect may have been used as an agent provocateur are wholly unsupported by the fact and the circumstances. It follows that the appellant's main complaint that the sentence should not have been assessed on the basis of the transcript and the contents of the video but only upon the wording of charge L is without merit. The proceedings cannot be faulted on the grounds of illegality, irrationality or procedural impropriety. The judge was quite right in rejecting that main ground that was also advanced before him.

22. There remain only the other grounds in the appellant's notice of appeal. These rightly were not pursued in the appellant's main written submission and were only mentioned in his written submissions in reply because the respondent dealt with them in his written submissions. There is plainly nothing in these additional grounds and I do not propose to adumbrate them.

23. For the reasons I have endeavoured to give, I would dismiss this appeal.

Ching, J.A. :

24. This appeal mainly centred around whether or not a video tape and a transcript of the oral parts of it should have been taken into account in sentencing. The Appellant says that neither was included in the agreed facts. However, at a time during the disciplinary proceedings when he was maintaining pleas of not guilty to some of the charges, the video tape and the transcript were produced and the video tape was viewed. The only objection raised by his defending officer was that some of the oral parts were inaudible and therefore had not found their way into the transcript. That defending officer asked for and was promised the original of the video tape and was asked to specify the parts of the video tape and the transcript to which there was objection. He never did so and he was never given the tape probably because on the next day of the hearing the Appellant pleaded guilty to all the charges.

25. The fact is, however, that the video tape and the transcript were already in evidence when those pleas were made and it is not possible to understand how they should have been ignored unless there had been a ruling that they were inadmissible or an agreement to that effect. Indeed, the Appellant's defending officer referred to both in his plea in mitigation wherein he stressed the Appellant's comparative lack of culpability. It cannot be right in these circumstances that the video tape and the transcript should not have been taken into account.

26. There was no illegality, irrationality or procedural impropriety shown in the disciplinary proceedings and no error on the part of the Judge below has been identified. I agree that this appeal must therefore be dismissed.

Seagroatt, J.:

27. I agree entirely, with respect, with what my Lord the Vice President and my Lord Mr. Justice of Appeal Charles Ching have said. I would simply add this in relation to the statement of mitigation, which was a careful and well prepared document reflecting clearly the instructions the Appellant had given to his Defending Officer. Indeed the document is signed both by the Defending Officer and by the Appellant himself. In it at pages 51 to 52 are set out the acceptance by the Defending Officer and the Appellant of the material parts of the transcript of the video and of the photographic evidence of the video, and indeed, at one particular passage at page 52, it is clear that the Appellant himself had seen the video. It says, "However after seeing the video, he, the Appellant, agreed that such material was included in their conversation and that it would be his negligence for failing to mention it to his Senior Officer."

28. That careful document set out the Appellant's explanations for what was clearly accepted to be an accurate record, and that was duly considered by the Chief Superintendent of Police when the award was made. It is reflected at page 56 of the record prepared for this Court. The Officer said that he read the transcript of the conversation and carefully read the statement in mitigation, and in effect repeated those material parts of the statement in mitigation which were concerned with the contents of the transcript and the visual evidence and the Appellant's explanation for those contents. The Officer's conclusion was in my view not only a rational conclusion on that undisputed evidence but the only conclusion which could have been reached. I would also dismiss this appeal.