LAM TAT MING v. THE CHIEF EXECUTIVE OF THE HKSAR AND ANOTHER

HCAL 127/2015

[2021] HKCFI 1911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINSTRATIVE LAW LIST

NO 127 OF 2015

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J U D G M E N T

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1.  The Applicant is applying for judicial review pursuant to leave granted against the decision of the Chief Executive of the HKSAR (“CE”) dated 15 April 2015 in rejecting the Applicant’s Petition dated 23 June 2008 (“CE’s 2^nd Decision”) and the advice of the Pensions Appeal Panel (“Panel”) in the report to the CE dated 26 August 2014 (“Panel’s Advice”) that the Petition be dismissed. The reliefs sought are:

(1)     A declaration that the CE’s 2^nd Decision and the Panel’s Advice erred in law and/or frustrated the legitimate expectation of the Applicant and/or are contrary to Article 10 of the Hong Kong Bill of Rights under section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383) and/or were Wednesbury unreasonable;

(2)     An order of certiorari to bring up and quash the CE’s 2^nd Decision and the Panel’s Advice; and

(3)     An order for costs.

Background

2.  The Applicant was a former police inspector.  In May 1997, he was charged with accepting advantage under s. 4 of the Prevention of Bribery Ordinance (Cap. 201).  He was acquitted as the evidence of the undercover agent was ruled inadmissible.  On appeal, the Court of Final Appeal ordered a retrial.  At the retrial, the evidence was still ruled inadmissible and the Applicant was acquitted again.

3.  In December 2002, disciplinary proceedings were instituted against the Applicant for charges including association with a triad personality other than in the course of duty and accepting advantages without permission, etc.  The disciplinary proceedings were adjourned time and again upon numerous applications, mainly by the Applicant.

4.  On 14 January 2008, the Applicant reached the prescribed retirement age of 55 and the disciplinary proceedings were aborted.

5.  On 2 June 2008, the Secretary for the Civil Service (“SCS”)refused to grant the Applicant a pension under s. 27(2) of the Pension Benefits Ordinance (Cap. 99) (“PBO”) on the ground that had the disciplinary proceedings been completed, it would have led to the dismissal of the Applicant (“SCS’s Decision”).

6.  On 23 June 2008, the Applicant lodged a petition to the Chief Executive of the HKSAR (“CE”) against the SCS’s Decision (“Petition”).  On 4 August 2009, the CE dismissed the Petition (CE’s 1^st Decision).

7.  On 2 November 2009, the Applicant filed an application for leave to apply for judicial review against the SCS’s Decision and the CE’s 1^st Decision.  Reyes J held in favour of the Applicant and both the SCS’ Decision and the CE’s 1^st Decision were quashed.

8.  On appeal, the Court of Appeal held that that the protection of fair hearing under Article 10 of the Hong Kong Bill of Rights (“HKBOR”):

“In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

applies to petition procedures before the CE regarding pension benefits, and the petition procedures could only comply with Article 10 if an oral hearing were held.

9.  The Court of Appeal ruled that:

(1)     An oral hearing with examination and cross-examination of witnesses is required to resolve the serious factual disputes over the allegations of criminal conduct against the Applicant in [53]–[54];

(2)     The CE, who cannot be expected to hold an oral hearing with witnesses, should have referred the Petition to the Panel, who should conduct such an oral hearing at [52] and [55]; and

(3)     The CE’s 1^st Decision was therefore Wednesbury unreasonable for want of an oral hearing at [55].

(see Lam Tat Ming v Chief Executive of the HKSAR [2012] 1 HKLRD 801).

10.  The Court of Appeal upheld that part of Reyes J’s decision to quash the CE’s 1^st Decision and remitted the Petition to the CE for further consideration with the direction that the CE should consider requiring the Panel to advise him on the Petition, and the Panel should hold an oral hearing with oral evidence and cross-examination.

11.  There was no appeal against the Court of Appeal’s judgment.  The CE then required the Panel to consider and report to him on the Petition under s. 29A of the PBO.

12.  On 4 and 7 July 2014, an oral hearing was conducted by the Panel in which 4 witnesses gave evidence against the Applicant. On 26 August 2014, the Panel submitted a report to the CE with the Panel’s Advice that the Petition be dismissed.

13.  On 15 April 2015, the CE informed the Applicant in writing that the Petition was rejected:

“Having considered your submissions and all the circumstances of the case, including but not limited to the report from the Pensions Appeal Panel to the Chief Executive dated 26 August 2014 and your comment dated 20 November 2014 on the Panel’s report, the Chief Executive has decided that your petition be rejected.”

Legal Context

14.  Eligible civil servants are entitled to pension benefits as of right except as otherwise provided in the Ordinance: s. 5 of the PBO.

15.  Amongst other things, an exception is provided under s. 27(2) of the PBO:

“Subject to subsection (6) and to section 29A, a designated officer may—

(a) refuse to grant a pension…

if it be shown to the designated officer that—

(i) the officer retired during any disciplinary proceedings brought against him by the Government, or resigned from the service to avoid such disciplinary proceedings; and

(ii)     had such proceedings been completed or taken place they would, in the opinion of the Public Service Commission, have led to the dismissal of the officer from the service or compulsory retirement in the exercise of disciplinary powers of punishment by the Government with a reduction of the pension benefits granted to him.”

16.  The designated officer under the PBO is the SCS.

17.  Any person aggrieved by a decision of the designated officer under s. 27 may petition to the CE: s. 29A(6) of the PBO.

18.  Where the CE receives a petition under s. 29A(6), he may require the Panel to consider and report to him on the petition: s. 29A(7). 

19.  If the CE do so require, he shall have regard to the report of the Panel before making a determination: s. 29A(7)(b).  The CE shall then determine the petition and may confirm, vary or reverse the decision: s. 29A(8).

Oral Hearing

20.  Pursuant to the requirement of the CE, the Panel conducted an oral hearing on 4 and 7 July 2014.  The oral hearing was conducted in Chinese.

21.  The Applicant faced many disciplinary charges. For all intents and purposes, the only charge relevant to the present proceedings (“Charge”) is:

“… between November 1992 and middle of 1994, [the Applicant] did associate with a male Tsui Hak-siu (nickname ‘Ngau Wing’) who is a triad personality with doubtful or undesirable reputation other than in the course of duty, contrary to PGO 6-02(2).”

22.  The Police General Orders (“PGO”) PGO 6-02(2) appeared in the 1992 and 1994 versions.

23.  PGO-6-02(2) (1992 version) provides that:

“Other than in the course of duty, a police officer shall not associate with known criminal or triad personality. Officers are also advised that they should not associate with persons of doubtful or undesirable reputation. Other than in the course of duty, a police officer shall not visit places of poor or doubtful reputation.”

24.  PGO-6-02(2) (1994 version) provides that:

“Other than in the course of duty, a police officer shall not associate with known criminal or triad personality. Officers are also advised that they should not associate with persons of doubtful or undesirable reputation.”

25.  The 1992 and 1994 versions differ only as to visiting places of doubtful or undesirable reputation, which is not relevant to the Charge.  The relevant parts relating to the Charge are identical in both versions.

26.  Four witness were called against the Applicant. By consent, all witness statements stood as evidence in chief.  The witnesses were then cross-examined by the Applicant and his representative.  The Applicant’s records of interview with the ICAC were also admitted before the Panel.

27.  Witness 1 was Ngau Wing as referred to in the Charge.  Witness 1’s evidence was that he had been a triad member of Luen Ying Society since 1963, and he was active in North Point, Shau Kei Wan and Chai Wan, involved in illegal gambling and loan sharking, etc.  He was convicted of the offence of “being a member of a triad society” in the 1970s.  He came to know the Applicant in 1982 when the Applicant was an Inspector in the Shau Kei Wan and Chai Wan District. Witness 1 was then involved in loan sharking and selling obscene articles, and the Applicant had been using his position to offer protection to the Witness 1 for monetary reward.  Witness 1 said he had given $450,000 to the Applicant between 1992 and 1994 in return for assisting Witness 1 in monopolizing the renovation project in a Siu Sai Wan residential development.

28.  Witness 1 said he had dealings with other triad members and   anti-triad police officers between 1980 to 1994.

29.  Witness 2 was an undercover ICAC agent.  The criminal evidence was not relied on in the Oral Hearing before the Panel, except the traffic record of the trip of the Applicant and Witness 1 to Macau.

30.  Witness 3 and Witness 4 gave evidence of the dealings between the Applicant and Witness 1 involving money other than in the course of duty.

31.  The Applicant admitted in his record of interview that he knew the Applicant back in about 1982 or 1984 when he was posted to Shau Kei Wan.  He said Witness 1 was not a decent person, and should be one going about town in dubious ways [1].  Witness 1 had been to the mahjong club run by the Applicant’s wife to collect protection money.

Panel’s Advice

32.  The Panel’s Advice was submitted to the CE in a report dated 26 August 2014.  The Panel Advice was written in Chinese, and translated into English. 

33.  The excerpt of relevant parts of the Panel’s Advice are as follows:

“2. On April 2013, the Panel had given the Petitioner and the Respondent (the Secretary for the Civil Service) a copy of the ‘Guide on Procedures for Oral Hearing to be Conducted by the Panel’ [for details please refer to Annex 2] setting out the roles of the Panel in oral hearing and the relevant procedures.

3. The Petitioner and the Respondent have never put forward any questions or disagreement on that Guide…

8. … the Respondent’s legal representative said he would like to use the transcript of the audio-recorded conversation between the Petitioner and Witness 1 surreptitiously recorded by Witness 2 [Annex 4 …] and list it as evidence. The Petitioner objected. The Panel considered this might be procedurally unjust to the Petitioner and refused to accept such audio-recorded conversation as evidence.

…

12. During the cross-examination on Witness 1, the Petitioner queried Witness 1 numerous times that how Witness 1 could prove that he had ever covered up Witness 1’s illegal dealings. However, the Panel does not think that is the main point of this Petition. The Respondent relied on that the Petitioner, from November 1992 to mid-1994 [hereinafter ‘the material time of the disciplinary offences’], associated with a triad personality with doubtful or undesirable reputation (that is Witness 1) other than in the course of duty to conclude that if the disciplinary proceedings against the Petitioner could have completed prior to his retirement, he would have been dismissed. Therefore, the Panel considers that the crux of this Petition is whether the Petitioner had, during the material time of the disciplinary offences, associated with a triad member with sleazy reputation or a sinful triad member other than for official purposes. Of course, the Panel has also considered all the evidence including the allegation against the Petitioner that he had covered up Witness 1’s illegal dealings.

13. Despite the fact that the incident happened years ago and Witness 1 could not recall some details of the present case, the Panel considers it is completely understandable. Having listened to Witness 1’s testimony, considered his testimony was not shaken on cross-examination, and observed his facial expressions and attitudes whilst giving his oral statement, the Panel regards him as an honest and reliable witness. The Panel also believes his statement as to his interaction with the Petitioner (particularly during the period of the disciplinary offences) was true.

14. In fact, during the whole oral hearing, the Petitioner had never denied that he knew Witness 1. In the Panel’s opinion, the petitioner, being a police officer with years of frontline experience, should have known (particularly during the period of the disciplinary offences) that Witness 1 was an active triad member.

15. In addition, during the cross-examination on Witness 1, the Petitioner did not deny that he had met with Witness 1 for numerous times in April 1997. The Panel also accepts the statement of Witness 2 that when he and Witness 1 met the Petitioner in a French restaurant on 6 April 1997, Witness 1 had discussed about the $450,000 with the Petitioner. The Panel also believes that this $450,000 was the total sum of money given to the Petitioner by Witness 1 during 1992 to 1994, as mentioned by Witness 1. During the interrogation on Witness 2, the Petitioner did not challenge this area of evidence. In fact, the various meetings between the Petitioner and Witness 1 were not social meetings, but meetings involving financial benefits. This, again, proves that Petitioner did not contact Witness 1 for the purpose of his official duties.

16. And during the whole oral hearing, the Petitioner had never pointed out that the reason for his meeting with Witness 1 was about official business. Moreover, the evidence of Witness 3 and 4 had proven that the meeting between the Petitioner and Witness 1 in Macau in either 1993 or 1994 was not for the purpose of official business. In fact, during the cross-examination on Witness 3 and 4, the Petitioner did not provide any challenge against such evidence.

17. According to the finding of the above facts, the Panel accepted that the Petitioner did not (sic., during relevant the time of the disciplinary offences, associate with a suspicious or a triad member with sleazy reputation other than for official purposes.

18. Having considered all the documentary and circumstances relevant to the Petition [excluding … the audio conversation between the Petitioner and Witness 1 surreptitiously recorded by Witness 2 …], including the CE’s previous consideration of all the Petitioner’s stated reasons and the Respondent’s responses [for details please refer to Annex 7], the Panel agrees with the CE’s previous decision on affirming and upholding the Respondent’s decision on refusing to grant pension to the Petitioner.

19.  Therefore, the Panel advises the. CE to dismiss the Petition.”

34.  Mr Shum, for the Applicant, submitted that [17] of the Panel’s advice was incomprehensible.  The original signed Chinese version reads:

“17. … the Panel accepted that the Petitioner did, during the period of the relevant disciplinary offences, associate with a triad member with suspicious or sleazy reputation other than for official purposes.”[2]

35.  Hence, the English translation of [17] meant the opposite of the Chinese original.  In any case, the Chinese version is in context.

Grounds of Judicial Review  

36.  The grounds for judicial review are:

(1)     Lack of factual findings and error in law:

 (a)   Error in law

 (i)    The Panel did not make any direction to guide itself as to the legal principles required to assess the evidence;

 (ii)   In the absence of a proper direction to it itself; the Panel proceeded or could have proceeded on the basis that the Applicant bore the burden of proving the allegations were wrong;

 (b)   The Panel did not find that the Applicant knew Witness 1 had triad background, instead, only held that the Applicant “should have known” that Witness 1 was a triad member;

 (c)   Therefore, the Panel’s Advice and the CE’s Decision erred in law and/or frustrated the legitimate expectation of the Applicant and/or were contrary to Article 10 of the Hong Kong Bill of Rights and/or were Wednesbury unreasonable.

(2)     Reliance on extraneous materials:

 (a)   The Panel was required to make its own finding of facts based on the evidence adduced;

 (b)   However, the Panel relied on extraneous materials to arrive at its decision, in that the Panel stated that it had considered the CE’s previous consideration of all the Petitioner’s stated reasons and the Secretary for Civil Service’s responses [for details please refer to Annex 7], and agreed with the CE’s previous decision ([18] of the Panel’s Report).

(3)     Absence of reasons given by the CE.

37.  Ground (3) was abandoned by Mr Shum at the hearing.  Initially, Mr Shum said Ground (3) was preserved as a matter of law.  When asked whether Ground (3) would still be alive if the Court were not with him on Grounds (1) and (2), Mr Shum said Ground (3) was abandoned and there was no need to deal with it in this case.

38.  In any case, it was stated in the Amended Form 86 that if the CE adopted the Panel’s Advice without giving any or adequate reasons, his decision would likewise be faulted if the Panel’s Advice were faulted.

39.  The following points have been made clear by Mr Shum at the hearing:

(1)     there is no dispute that the Applicant knew Witness 1;

(2)     Witness 1 said that he was an active triad member; and

(3)     The association between the Applicant and Witness 1 was challenged.

Discussions

40.  It is trite that a judicial review does not operate by way of an appeal or rehearing, but to see whether the tribunal had made findings supported or unsupported by probative evidence.

41.  In Mahon v Air New Zealand [1984] AC 808, Lord Diplock said at 820G to 821B that:

“The first rule is that the person making a finding … must base his decision upon evidence that has some probative value in the sense described below…

The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice.  What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.”

42.  Mr Shum submitted that the Grounds of judicial review are irrespective of the evidence received by the Panel at the oral hearing.  The Grounds only relate to the findings and decision of the Panel as stated in the Panel’s Advice, which is the only document which the Court should be looking at to discern the decision process of the Panel and to decide if that process was proper or not.  By including the transcripts of the hearing in the judicial review, the Respondents are asking the Court to go through detailed evidence presented and invite the Court to make findings which the Panel did not make, or to infer that the Panel must have taken certain matters into account, and that is the wrong approach.  The Court is only to review the process of the decision of the Panel and should not replace the Panel’s role and usurp its functions.

43.  I agree that it is not the task of the Court on judicial review to substitute its finding or decision for the decision maker, but to examine whether decision to make the finding is based upon some material that tends logically to show the existence of facts consistent with the findings and that the reasoning supportive of the findings.  However, in order to examine the findings and reasoning of the decision maker, the Court must look at the factual context of the case.

44.  I shall now consider the Grounds of judicial review by the Applicant.

Ground 1

45.  Before I turn to the finding of the Panel, I shall first refer to the sub-ground on the burden and standard of proof wrapped up in Ground 1.

46.  It is well established that the standard of proof in disciplinary proceedings is a civil standard but to be commensurate with the seriousness of the charge, i.e. “a preponderance of probability” (see Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117, [111]–[116]):

“113. … the evidence must be sufficiently compelling to overcome the improbability of the serious allegation being true and thus prove it on a preponderance of probability.

116.     … the more serious the act or omission alleged, the more inherently improbable must it be regarded. And the more inherently improbable it is regarded, the more compelling will be the evidence needed to prove it on a preponderance of probability.”

47.  Mr Shum submitted that the Panel had never guided itself as to the burden and standard of proof in the Panel’s Advice.  Further, Mr Shum referred to the following remarks in the Panel’s Advice:

“14. In fact, during the whole oral hearing, the Petitioner had never denied that he knew Witness 1.”

“15. In addition, during the cross-examination on Witness 1, the Petitioner did not deny that he had met with Witness 1 for numerous times in April 1997.”

“16. And during the whole oral hearing, the Petitioner had never pointed out that the reason for his meeting with Witness 1 was about official business… In fact, during the cross-examination on Witness 3 and 4, the Petitioner did not provide any challenge against such evidence.”

and submitted that the Panel had proceeded or could objectively be seen to have proceeded on the basis that the Applicant bore the burden of disproving the serious allegations.

48.  In response, Ms Lam, for the 1^st Respondent submitted that the Panel Advice had specifically referred to the Guide on Procedures for Oral Hearing to be Conducted by the Panel (“Guide”) as setting out the roles of the Panel in oral hearing and the relevant procedures in [2].  The applicable standard of proof and principles for the assessment of evidence were set out in [23] and [24] of the Guide:

“23. The standard of proof is the civil standard, i.e. the balance of probability. The Guiding principle is that the more serious the allegation, the more cogent is the evidence required to overcome the likelihood of what is alleged and thus to prove it. On this basis, in assessing the probability, the more serious the allegation, the more inherently improbable must it be regarded. The more inherently improbable it is regarded, the more compelling is the evidence needed to prove it on the balance of probability.

24.  The Panel will consider what crucial issues are involved in the case, and what evidence exists on such crucial issues.  The Panel will carefully evaluate and weigh the evidence presented and must be satisfied that, on the whole, there is sufficient evidence to support the decision being challenged in the petition (including the facts in support of the decision) before upholding the decision.  In particular, even if there is no conflict in the evidence, it does not necessarily follow that there is sufficient evidence. The Panel will assess whether the evidence is cogent enough for supporting the decision being challenged.”

49.  Ms Tsang, for the 2^nd Respondent made a similar point.

50.  Mr Shum submitted that [2] of the Panel’s Advice only stated that the Guide had been served.  There was no reference to any substantive legal principles on the burden and standard of proof, nor indication that the Panel had taken those principles into account.

51.  In Rowse v Secretary for Civil Service [2008] 5 HKLRD 217, Hartmann J (as he then was) had this to say at [72]:

“A disciplinary tribunal … is not under any obligation to expressly state what standard of proof it has applied in assessing the case against a person who has appeared before it. But, while there is no obligation to cite ‘chapter and verse’, it does not exonerate a tribunal from understanding the correct standard of proof to be applied and actually applying that standard. As I have indicated, in our system of justice the standard of proof is a critical tool of measurement. It is not something to which mere lip service is paid. It plays a determining role in all cases, civil and commercial.”

52.  Mr Shum accepted that the lack of any reference to the burden and standard of proof by itself might not be enough for the judicial review.  It was not a standalone case, but as a backdrop to the reversal of burden of proof point as shown in [14], [15] and [16] of the Panel’s Advice.

53.  I shall first consider whether there was a reversal of burden of proof by the tribunal.

54.  The Panel has been specifically tasked to resolve questions of facts by conducting oral hearing and cross-examination. As part of the fact finding process, the tribunal of facts must frame the issues in question and separate the agreed and disputed facts.

55.  Ms Tsang pointed out that towards the end of the cross- examination, when the representative for the Applicant indicated that he had no other questions, the Legal Adviser to the Panel reminded the Applicant of the allegations against him, and invited his representative to decide if he needed to conduct further cross-examination.  The Applicant’s representative confirmed that he had no further questions.

56.  As I see it, what the Panel has referred to as undenied facts and/or unchallenged evidence by the Applicant in [14], [15] and [16] is simply a reminder of the undisputed facts and it went on to make positive findings.  I do not see any reversal of burden of proof.

57.  As to the standard of proof, whether the evidence was cogent enough as to be probative of the serious allegations in the Charge must again be seen in the context of the evidence given against the Applicant. 

58.  Witness 1 has come out and given blatant evidence of his own triad and illegal activities and association with the Applicant (see below).

59.  Witness 1 was cross-examined and his credibility was vehemently challenged before the Panel, particularly the evidence that he sought the Applicant to harbour his dealings for reward.  His evidence was direct and compelling, and the only issue was whether he was credible.

60.  Notwithstanding Witness 1 could not remember some of the facts, the Panel found him unshaken in cross-examination and was truthful and believable.  Cross-examination is a powerful tool in our legal system and findings by the tribunal of facts should not easily be disturbed by a Court exercising supervisory jurisdiction unless it is illogical or absurd. Bearing this in mind, I turn to consider the Panel’s finding on the Charge. 

61.  The same charge has been considered by the Court of Appeal in question Yu Yau Tak v Commissioner of Police & another [2001] 2 HKC 627.  Woo JA (as his Lordship then was) held at 637I–638D:

“… I hold that a defaulter who has knowledge that the subject person is reputed to be a criminal (whether he has been convicted of having committed any crime or not) or a triad personality (regardless of whether he is in fact a triad member) suffices. I adopt this construction for this further reason. As I said before, it is important to maintain the public’s trust in and reliance on police officers. If the subject person is generally reputed to members of the public to be a criminal or triad personality, and they see or know that a police officer has associated with him, that will doubtless adversely affect that trust and reliance. The intent and spirit of the order must be fore proscribing the conduct of police officers in this regard.

As to the gradation of knowledge, whether it needs to be ‘actual knowledge’, ‘belief’ or ‘mere suspicion’, as said before I agree with the judge that ‘actual knowledge’ is not required. I do not think in view of the penalty for breaching the order, mere suspicion is sufficient, and it would not be right to require police officers, subject to penalty, to conduct themselves by acting merely on suspicions alone, such as wild rumours, or else it would put too onerous a burden on them.

I now turn to ‘belief’, whether it is necessary to be ‘belief based on reasonable grounds’ or ‘genuine belief’ alone will do.”

62.  And at 639A–E:

“Apart from the requirement of applying a subjective test, ie, whether the defaulter genuinely held such a belief, to which I shall return later, an inquiry has to be embarked upon as to the reasonableness or otherwise of whether a genuine belief was held. This will amount, in effect, to an inquiry as to whether such a belief is supported by reasonable grounds. Any police officer is presumably a reasonable person, and if the circumstances of the case have given rise to his reasonable belief that the subject person is reputed to be a criminal or triad personality, I do not see why, as a matter of interpretation or policy, he should be acquitted from holding a belief, based on reasonable grounds, but which he barely denies holding. Of course, the tribunal or the court may disbelieve his denial, but that in most cases, apart from observing his demeanour, is by having resort to the examination of the nature and status of the source of the information received by him to see whether he subjectively is reasonably entitled to deny his holding the belief, and objective test being applied. I am of the view that since both ‘genuine belief’ and ‘having reasonable grounds to believe’ require the same mental process in examining all the surrounding circumstances, it would not be ingenuous to adopt the construction of ‘genuine belief’ requiring a subjective test.”

63.  Mr Shum submitted that the elements of the Charge are: (1) the police officer is associated the alleged person; (2) the alleged person is generally reputed to be a criminal or triad personality; and (3) the police officer believes such reputation of the alleged person (see Cheng Wai Kit v Commissioner of Police (unrep, HCMP 3208/1996, 24 April 1997) per Sears J at pp. 4–5; and Yu Yau Tak v Commissioner of Police op cit 637I–639I & 643F–645B.)

64.  The Panel’s finding as per the Panel’s Advice was that:

“17. According to the finding of the above facts, the Panel accepted that the Petitioner did, during relevant the time of the disciplinary offences, associate with a suspicious or a triad member with sleazy reputation other than for official purposes.”

65.  Mr Shum submitted that the Panel did not find that the Applicant knew Witness 1 had triad background, or that Witness 1 was a generally reputed triad member, instead, it only held that the Applicant “should have known” that Witness 1 was a triad member.

66.  As mentioned before, the finding of the Panel must be seen in the context of the evidence.  The Panel’s Advice set out the evidence of alleged covering up of Witness 1’s illegal activities in the context of the association with a triad member with sleazy reputation other than for official purposes [12]; and that Witness 1 had given the total sum of $450,000 to the Applicant from 1992 to 1994 [15].  The various meetings between the Applicant and Witness 1 were not social meetings [16], but meeting involving financial benefits not for the purpose of the Applicant’s official duties [15].  When the Panel found that the Petitioner did associate with a triad member with sleazy reputation [17], it goes without saying that it was a finding that Witness 1 had such sleazy reputation and thus a reputed Triad member, which was well supported by the evidence that Witness 1 was an active triad member.  And when the Panel found that the Applicant, being an officer with years of frontline experience, should have known that Witness 1 was an active triad member in [14], the finding of knowledge and belief on the part of the Applicant must be understood in the context of the nature of association and dealings between him and Witness 1 as found by the Panel.

67.  The Panel repeatedly referred to that the association between the Applicant and Witness was not merely social, which was the case of Yu Yau Tak.  The instant case was in the context of an active Triad member seeking auspices from a serving police officer in the same district of their respective operations.  As said above, Witness 1 was found by the Panel to be credible and believable, which I do not see any cause to interfere with, and as such his evidence was compelling and commensurate with the requisite proof of the Charge in accordance with the consideration laid down in Yu Yau Tak.

Ground 2

68.  Towards the end of the Panel’s Advice, it was stated:

“18. Having considered all the documentary and circumstances relevant to the Petition [excluding the relevant documentary about the audio conversation between the Petitioner and Witness 1 surreptitiously recorded by Witness 2…], including the CE’s previous consideration of all the Petitioner’s stated reasons and the Respondent’s responses [for details please refer to Annex 7], the Panel agrees with the CE’s previous decision on affirming and upholding the Respondent’s decision on refusing to grant pension to the Petitioner.”

69.  Mr Shum submitted that the Panel was required to make its own finding of facts based on the evidence adduced.  However, the Panel relied on extraneous materials to arrive at this decision.  At [18] of the Panel’s Advice, the Panel stated that it had considered the “CE’s previous consideration of all the Petitioner’s stated reasons and the Respondent’s response [for details please refer to Annex 7]”.

70.  Annex 7 contained the representations made by the Civil Service Bureau (“CSB”) which included the following comments:

“24.1 It has been pointed out in CSB’s letter to [the Applicant] dated 15.4.08 and further in our comments forwarded to the CE’s Office in connection with [the Applicant’s] petition dated 23.6.08 that [the Applicant’s] dealing or encounter with Ngau Wing did amount to ‘association’… our view remains that on the basis of the evidence unearthed the encounter or dealing between [the Applicant] and Ngau Wing did amount to ‘association’.”

“24.2 The adjudicating officer presiding the disciplinary proceedings… considered Ngau Wing, being one of the witnesses, to be reliable in giving a truthful account of events according to his recollection, and thus accepted his testimony.”

“24.3 The testimony given by Ngau Wing regarding his meeting with [the Applicant] in Macau on two occasions is corroborated by the Immigration Department’s traffic movement records… This piece of circumstantial evidence, as supported by Ngau Wing’s testimony, strongly suggests [the Applicant’s] association with Ngau Wing other than in the course of duty.”

“24.4 Ngau Wing, in giving his testimony in the former hearing, was subject to cross-examination of, amongst others, the adjudicating officer who concluded from his own observation that Ngau Wing was a reliable witness.”

71.  Mr Shum submitted that the above comments from the CSB in Annex 7 were hearsay evidence and not subjected to cross-examination.  The Applicant was deprived of his right to a fair hearing as the Panel relied upon these extraneous materials to reach its decision in the Panel’s Advice.

72.  Mr Shum submitted that the Panel also wrongly took into account the CE’s 1^st Decision which in turn relied upon the SCS’s response (worse still set aside by the CA).  The Panel’s Advice relied upon these extraneous materials and the CE’s 1^st Decision in reaching its decision in and the Panel’s Advice was therefore tainted.

73.  Further, having relied upon the CE’s 1^st Decision and comments of the SCS, the Panel failed to make its own finding of facts based on the evidence properly adduced and tested by cross-examination.  The Panel’s Advice had in effect rendered the oral hearing meaningless as it adopted exactly the same materials in the previous process which had already been held by the Court of Appeal to be Wednesbury unreasonable.

74.  Ms Lam submitted that it is wrong for the Applicants to contend that the Panel had relied on “extraneous materials” which were based on hearsay evidence and not subjected to cross-examination.

75.  Ms Lam submitted that Annex 7 was the tabulated summary of the Applicant’s representations in the Petition and the SCS’s comments thereon.  Annex 7 represented nothing more than a summary of the issues and submissions that had been advanced previously by the Applicant and SCS.  It is not hearsay evidence at all.  The Panel’s decision was made after the hearing of oral evidence with fresh evaluation.

76.  Ms Lam referred to [21] of the Guide which provided that the Panel “may enquire into any matter and admit and take into account any evidence or information which it considers relevant, and is not bound by the rules of evidence”.

77.  Ms Lam pointed out that Annex 7 had been included in SCS’s submissions to the Panel and the same was provided to the Applicant by the Panel, and the Applicant had been informed that he was entitled to respond to SCS’s submissions in writing and to provide documentary and other evidence to the Panel. 

78.  The Applicant never challenged the inclusion of Annex 7 in the hearing or sought to have Annex 7 excluded on the basis that it was irrelevant.  By a letter dated 8 November 2013, the Applicant’s legal representative confirmed that they had no further submissions to make in response to SCS’s submissions (including Annex 7). 

79.  I agree that the rules of evidence in civil or criminal litigation form no part of the rules of natural justice: see Mahon v Air New Zealand ob. cit. at [41] above.  It remains that the first principle in evidence of relevance will prevail.

80.  Absent a code of compulsory considerations, what is and is not a relevant consideration, and the weight to be attached, is for the decision maker, not the Court, to decide: Sabir Mohammed and Another    v Permanent Secretary for Security (unrep, HCAL 114/2015, 27 January 2017) per Au J at [41].

81.  Ms Lam pointed out that Annex 7 contained the submissions of the Applicant and the response of the SCS, and could not be said on the facts of this case that no reasonable Panel would have taken into account.

82.  Both Ms Lam and Ms Tsang submitted that the reference to the CE’s 1^st Decision came only after the Panel’s conclusion with an independent fact finding process, and it was illogical and unreasonable to say the fact finding process was tainted by CE’s 1^st Decision and Annex 7.

83.  As I see it, the CE’s 1^st Decision was a step taken in the same Petition and not something foreign to the Panel. The CE’s 1^st Decision, not dissimilar to the CE’s 2^nd Decision, dismissed the Petition without giving substantive reasons.  Hence, by referring to the consideration by the CE in the CE’s 1^st Decision, the Panel was in fact referring to the issues raised by the Applicant and the responses by the SCS in Annex 7, which are the very issues framed by the same parties before the Panel.

84.  Moreover, as apparent in the Panel’s Advice, the reference to the CE’s 1^st Decision at [18] came after the finding on the Charge in [17], The finding in [17] had been found to be reasonable and in accordance with the law as analysed above.  Hence, it cannot be said that the Panel had not independently considered the matter.

85.  Having made its decision, the reference by the Panel to the CE’s 1^st Decision was not more than in passing and did not detract from the otherwise legality of the Panel’s Advice.

86.  Even if the reference to the CE’s 1^st Decision were irrelevant, where the decision maker would have reached the same decision independent of any irrelevant consideration, the Court would not regard it as being unlawful (see Capital Rich Development Ltd and Another v Town Planning Board [2007] 2 HKLRD 155 per Cheung JA at [70]–[77].

87.  In the premises, the Panel did not err in law, nor frustrate the Applicant’s procedural legitimate expectation or violate the Applicant’s Article 10 of the HKBOR rights, nor Wednesbury unreasonable.

Conclusion

88.  For the reasons stated above, the application for judicial review by the Applicant is dismissed.

89.  The parties may make submissions on costs, if any.

90.  Lastly, I wish to thank Mr Shum, Ms Lam and Ms Tsang for their helpful submissions.

[1] 原文：「唔係一個正經人」…「應該係出來係蠱蠱惑惑啊，出來蒲嗰隻」

[2] 原文：「基於以上的事實裁斷，上訴委員會信納呈請人確實於違紀控罪所涉及的期間，並非為執行職務而與一名可疑或有不良聲譽的三合會份子來往。」