CHAN CHI WAI v. COMMISSIONER OF POLICE

CACV 129/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 129 OF 2010

(ON APPEAL FROM HCAL NO. 18 OF 2010)

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BETWEEN

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JUDGMENT

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Hon Tang Ag CJHC:

Introduction

1.  Mr Chan Chi Wai, the Applicant, was a police constable. He was adjudicated bankrupt on 27 May 2002 on his own petition dated 4 March 2002.  After disciplinary proceedings, he was compulsorily retired as from 7 August 2004. 

2.  Following the Court of Final Appeal’s decision in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575, Mr Chan applied for an extension of time to apply for, inter alia, an order of certiorari to set aside the order that he be compulsorily retired.  The application was dismissed by Reyes J.  This is Mr Chan’s appeal.

Background

3.  The following is taken from Reyes J’s decision. 

4.  On 23 February 2004 at a disciplinary hearing, the Applicant pleaded guilty to all the charges which were brought against him.  The Applicant was charged with failing to report his bankruptcy petition to his command unit contrary to Police General Order (PGO) 6-01(4) (Charge A); financial imprudence leading to operational impairment contrary to PGO 6‑01(8) (Charge B); and conduct “calculated to bring the public service into disrepute” in that he had furnished false information about his indebtedness on 3 separate occasions between December 2000 and August 2001 (Charges C, D and E respectively). 

5.  He was found guilty by Mr Lee Ying Min as Adjudicating Officer, who then referred the matter to Mr D W F O’Brien (a Senior Police Officer (SPO)) for sentencing.

6.  On 5 March 2004 Mr Chan appeared before the SPO.  He was asked whether he wished to make any further representations either verbally or in writing before sentence was passed.  Mr Chan said “no”.  The SPO then confirmed the findings of guilt and imposed a severe reprimand on Charge A and a sentence of compulsory retirement with deferred benefits on Charges B to E.

7.  The matter then went to Mr Chan Wai Ki (Force Discipline Officer (FDO)) on 7 April 2004 for confirmation.  The FDO agreed with the severe reprimand on Charge A.  But he held that the SPO’s sentences on Charges B to E had been made in excess of the SPO’s powers.  The FDO thought that a severe reprimand plus an additional sentence of compulsory retirement with deferred benefits was appropriate on Charge B.  On Charges C to E, the FDO thought that severe reprimands were warranted.  The FDO invited Mr Chan to make written representations as to why the FDO’s proposed sentences on Charges B to E should not be made.

8.  Mr Chan made written representations to the FDO on 16 April 2004. The FDO confirmed his proposed sentences on 19 April 2004.  Mr Chan was so informed on the following day.

9.  He then appealed to the Commissioner against his sentences in May 2004.  On 2 June 2004 the Commissioner invited him to make written representations in support of his appeal.  For that purpose, the Commissioner provided Mr Chan with a copy of a Staffing Note prepared by the Discipline Division of the police in connection with Mr Chan’s appeal.  Mr Chan submitted written submissions on 24 June 2004.

10.  In July 2004 Mr Foo Tsun Kong (Acting Deputy Police Commissioner (Manpower)) dismissed Mr Chan’s appeal.  On 4 August 2004 the Commissioner informed Mr Chan and directed that Mr Chan be compulsorily retired as from 7 August 2004. 

The Appeal

11.  It appears from the foregoing that the charge which resulted in Mr Chan’s compulsory retirement was charge B, which alleged a breach of PGO 6‑01(8).  At the times, I believe, the relevant PGO 6-01(8) was the 1999 version which provided:

“A police officer shall be prudent in his financial affairs. Serious pecuniary embarrassment stemming from financial imprudence which leads to the impairment of an officer’s operational efficiency will result in disciplinary action.” (1999 version of PGO),

12.  Prior to Lam Siu Po, Police (Discipline) Regulations (PDR) rr. 9(11) and (12) prohibited police officers from being represented in disciplinary hearings by lawyers who were not also police officers.  On 26 March 2009, the Court of Final Appeal in Lam Siu Po struck down that blanket prohibition in PDR rr. 9(11) and (12) as contrary to Article 10 of the Hong Kong Bill of Rights.  Lam Siu Po also decided that on the true construction of the 1999 version of PGO 6‑01(8) the three elements of the offence were causally linked and occurred in a sequence: the serious pecuniary embarrassment “stems from” financial imprudence and in turn leads to “the impairment of operational efficiency”.  The third element did not follow automatically, but required the Commissioner to prove impairment of the officer’s operational efficiency as a separate element of the offence and as a matter of fact, which flowed directly from his serious pecuniary embarrassment.

13.  Before Reyes J the Applicant, who was represented by Ms Margaret Ng, relied on two grounds for extending time:

(1)   that the disciplinary proceedings were unfair and unlawful because Mr Chan had been deprived of the opportunity to be represented by a lawyer of his choice in those proceedings.  And that if he had been represented, the outcome of the proceedings might well have been different;

(2)   there was “error on the face of the record” because the relevant disciplinary tribunals simply accepted Mr Chan’s guilty plea on the question of liability.  The tribunals should have rejected the plea.

14.  Reyes J has dealt fully with both submissions in his decision. With respect, I agree with Reyes J. 

15.  I would only add that Lam Siu Po is vital for the Applicant’s application. First, because Lam Siu Po decided that the blanket prohibition of legal representation was unlawful.  Miss Ng’s first ground.  Secondly, Lam Siu Po decided that on the true construction of (PGO) 6-01(8), the Commissioner had to prove impairment of the applicant’s efficiency as a separate element of the offence and as a matter of fact, flowing directly from his serious pecuniary embarrassment.  This is relevant to Ms Ng’s second ground.  In both respects, Lam Siu Po has overturned or distinguished previous decisions of the Court of Appeal to the contrary, namely, Chan Kang Chau v. Commissioner of Police, HCMP2824/2004 (unreported, 19 May 2010) and Leung Fuk Wah v. Commissioner of Police [2002] 3 HKLRD 653.

16.  In other words, the Applicant applied for an extension of time because of a favourable change in the law.

17.  In HKSAR vHung Chan Wa & Anor [2006] 9 HKCFAR 614, Li CJ, with the concurrence of the other members of the Court of Final Appeal, said:

“(10) … 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. …”

18.  In Tsang Yiu Kai and Ors v. Insider Dealing Tribunal, HCMP 1322/2007 (unreported, 18 December 2007), this Court (Tang VP and Yuen JA) said:

“33. … The same principle applies to civil cases.”

19.  The fact that on the new view of the law, the appeal has merits is not an exceptional circumstance: Tsang Yiu Kai.

20.  The Applicant did not have the benefit of legal representation before us. For the purpose of the hearing of the appeal, he has made an affirmation dated 15 November 2010. 

21.  In the affirmation, he has exhibited the judgment in Chau Cheuk Yiu v. Poon Kit Sang and Ors, HCMP 121/2010 (unreported, 13 August 2010).

22.  In Chau Cheuk Yiu, Le Pichon and Yuen JJA were concerned with an application by the respondents under O. 59 r. 12 to set aside an order of Rogers VP made on 2 February 2010 granting the applicant an extension of time to appeal from an order made by A Cheung J on 8 February 2007 in HCAL 97/2004.   The applicant was also a police constable.  He was charged with a disciplinary offence of “conduct calculated to bring the public service into disrepute”, namely that, whilst off duty, he had revealed his identity to the complainant and had obtained his address and telephone number by purporting to be investigating a crime.

23.  The applicant had taken out an application for judicial review and, inter alia, relied on Article 10 of the Hong Kong Bill of Rights Ordinance.  Leave was granted in August 2004.  He obtained legal aid in October 2004 but that was withdrawn in January 2007, leaving the applicant unrepresented at the substantive hearing that took place later that month.

24.  At the judicial review hearing, the judge recorded in his judgment that:

“14. ... owing to subsequent development of case law, at this hearing the Applicant agreed that [Article 10] grounds were unarguable and therefore abandoned reliance on those grounds as support for his application for judicial review.”

25.  As Rogers VP observed in his decision:

“6. That of course, was quite correct. The applicant, on his application for judicial review was acting in person. It was the judge’s duty to assist the applicant as to what the law was or what the state of the law was; the state of the law at that stage was that the point was not a good one.”

26.  The applicant proceeded with the ground based on the denial of an adjournment to obtain representation.  The judge dismissed the judicial review application in February 2007.  The applicant while dissatisfied with the judgment did not appeal as, realistically, there was no chance of his obtaining legal aid given that it had been withdrawn for the substantive hearing on the then prevailing view that Article 10 had no application to police disciplinary proceedings.  That remained the state of the law until it was reversed by the Court of Final Appeal in Lam Siu Po some 22 months later.  The applicant was granted legal aid in September 2009 and the application for an extension was filed in January 2010.

27.  The argument advanced before this court in Chau Cheuk Yiu on behalf of the respondent was that Rogers VP had failed to properly apply the principle in Hung Chan Wa and that there were no exceptional circumstances warranting the extension of time. 

28.  The application was dismissed. 

29.  Le Pichon JA said:

“20. It is clear that looking at the matter overall, the applicant’s grievance is that he has not had a fair hearing. He was left unrepresented at the defaulter proceedings and at the judicial review when, throughout, he had wanted representation and had also relied on Article 10. The overall justice of the case is clear: he should be given the opportunity to appeal to the Court of Appeal. As no error of principle has been shown, the application to set aside falls to be dismissed.”

30.  In her judgment Yuen JA said:

“21. At the inter partes hearing for an extension of time to file the appeal, the Vice-President was referred to the relevant authorities including the test formulated in Hung Chan Wah and came to the conclusion that in the exercise of his discretion he would grant an extension.  Although the Vice-President did not articulate the specific exceptional circumstances he found in this case, it cannot be inferred from that that he had failed to apply the Hung test as he did say in his judgment that “in the circumstances of this case” it was right to grant an extension.  In this respect, it is pertinent to note that the judge who had dismissed the application for judicial review (Hon A. Cheung J) had in another case subsequent to the Vice-President’s decision (Tsui Kin Kwok Johnnie v Commissioner of Police HCAL 50/2009, unrep. 26 February 2010) noted that the Vice-President’s decision was fully understandable by reason of the fact that the Applicant here had actually advanced the Article 10 point in his Form 86A and had only abandoned it at the hearing of the application after having had the law (as then understood) explained to him by the judge.  In these circumstances I do not think Mr Mak has reached the high threshold required for this court to set aside the Vice-President’s order and I agree that the Respondents’ application should be dismissed with costs.”  Chau Cheuk Yiu

31.  It may be that Chau Cheuk Yiu could be explained on the basis that the fact that the applicant:

“21. … had actually advanced the Article 10 point in his Form 86A and had only abandoned it at the hearing of the application after having had the law (as then understood) explained to him by the judge.”

was regarded as an exceptional circumstance.

32.  With respect, whether that is correct does not require decision in this appeal.  I find it difficult to accept that an applicant who had abandoned the Article 10 point after he has had the law explained to him by a judge is in a better position than, say, an applicant who had refused to abandon the point and had the matter decided against him by a judge.

33.  In any event, I do not believe Chau Cheuk Yiu helps the Applicant.  It is not authority (and cannot be) that exceptional circumstances are not required.  That would be contrary to Hung Chan Wa, and this Court is not at liberty to depart from Hung Chan Wa.

34.  For the present purpose, it is sufficient Chau Cheuk Yiu is distinguishable. 

35.  In his affirmation, the Applicant also sought to raise further arguments regarding the disciplinary proceedings.  For example, he claimed that he had asked to be represented by lawyers but was refused.  He also said he had been cajoled into pleading guilty not only by the officer who heard the disciplinary proceedings, but also by the officer who was representing him at the time.  These are not issues which had been raised in the original O. 86A application.  Nor was any evidence produced at first instance.  These serious allegations are raised for the first time in the Court of Appeal. 

36.  Under O. 59 r. 10(2), we have power to receive further evidence on questions of facts,

“… but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”

37.  The special grounds can be found in Ladd v Marshall (1954) 1 WLR 1489.  They are

“first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

38.  It is unnecessary for me to deal with the second and third conditions.  It is clear that the first condition cannot be satisfied. 

39.  So for the above reasons, I would dismiss the appeal.

Hon Cheung JA:

40.  I agree.