LAM SZE MING AND OTHERS v. THE COMMISSIONER OF POLICE

HCAL1150/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.1150 OF 2000

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J U D G M E N T

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1. The three applicants are applying for a judicial review of a decision by the Commissioner of Police which resulted in their dismissal from the Police Force.

BACKGROUND

2. The applicants were three of 15 defendants charged with gambling in a gambling establishment on 30 September 1995. At their trial at the San Po Kong Magistracy in April 1996, two of the 15 defendants (not these applicants) had no evidence offered against them with a view to their being prosecution witnesses in a District Court trial against four defendants who were charged with more serious gambling related offences concerning the same premises. The 13 remaining defendants in the magistrates court, including the applicants, were acquitted.

3. In June 1996, the four defendants in the District Court were convicted and sentenced. They later appealed unsuccessfully. The case against them depended, in part, on the evidence of the two defendants in the magistrates court proceedings against whom no evidence had been offered. They were granted an immunity against prosecution. They are referred to as "Lai" (PW3) and "Au" (PW4).

4. In January 1998, the three applicants (plus four other police officers) were served with Notice of Defaulter Proceedings charging them with "conduct calculated to Bring the Public Service into Dispute", contrary to Regulation 3(2) of the Police (Discipline) Regulations, Cap.232 ("the PDR"). The conduct complained of was that they frequented the same premises for the purpose of unlawful gambling between June 1995 and 29 September 1995 (i.e. the day before the incident on which they had been acquitted).

5. These disciplinary proceedings lasted a total of 22 days. Of the seven defaulters, two pleaded guilty, one was absent throughout and four (including the applicants) were found guilty. The sentences passed by the adjudicating officer were considered too lenient. A review of sentence and internal appeal followed as a result of which the Deputy Commissioner of Police determined that they be dismissed from the Police Force with effect from 16 March 2000.

6. The complaints which are the subject matter of these proceedings concern the manner in which the disciplinary hearing itself was conducted. No complaint is made in relation to the review and appeal proceedings.

7. As a result of the written and oral submissions made to this court, the applicants rely on four main complaints which I now deal with in turn. They submit that each issue, if resolved in their favour, would result in an order for the relief they seek, because they are breaches of natural justice and unfairness. The four issues are :-

(1) Non-disclosure of documents and information to the Defence.

(2) Procedural irregularities in the disciplinary proceedings.

(3) Failure to apply the correct burden and standard of proof.

(4) Bias.

1. Non-disclosure

8. For the purpose of the internal disciplinary proceedings, it is agreed that the applicants were provided with the following :-

(a) The Notice which reminded the defaulter of his right to object to the appropriate tribunal on the grounds of partiality, bias, the right to be given copies of or reasonable access to records and documents and the right to be represented by another police officer under Regulations 6, 7 and 9 of the PDR respectively. The defaulter was also informed of the right to have the disciplinary proceedings tape-recorded.

(b) The charge sheet.

(c) A list of witnesses.

(d) A list of exhibits.

(e) Three statements made by PW3 (Lai) on 19 October 1995 (to the ICAC) and on 11 and 27 June 1996 (to the Police).

(f) Three statements made by PW4 (Au) on 6 December 1995 (to the ICAC) and on 11 and 27 June 1996 (to the Police).

(g) Statements from two other police officers (PW1 and PW2).

(h) A bundle of photographs.

9. In the judicial review, they complained that the police prosecutor in the internal proceedings was under a duty to disclose but failed to disclose the following :-

(i) PW3 and PW4's statements made under caution at the time of their arrest;

(ii) another witness statement made by PW4 also on 11 June 1996 (in addition to (f) above);

(iii) another album of photos;

(iv) a transcript of the District Court proceedings; and

(v) the immunity document and all information relating to negotiations which proceeded them.

10. The Prosecutor, a Chief Inspector Ho, regarded it as her duty to provide the applicants with all the statements in her possession which were considered to be relevant to the disciplinary proceedings. There are no specific provisions in the PDR for discovery or disclosure. The rules of natural justice should therefore be applied. Chief Inspector Ho's duty was to prosecute the defaulters and in so doing ensure they were not prevented from having a fair hearing. The material which was gathered for the purpose of the hearing was disclosed. In the affirmation, she stated that she had disclosed all the material in her possession which was considered relevant. There is no suggestion that she deliberately withheld documents which may have been relevant to the defence.

11. The test to be applied in determining whether disclosure should be made in criminal proceedings is as referred to by Power V-P in HKSAR v. Kwan Chak-sing, CACC457/1997 (quoting from R. v. Keane (1994) 1 WLR 746) :-

"I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution :

(1) to be relevant or possibly relevant to an issue in a case;

(2) to raise or possibly raise a new issue, whose existence is not apparent from the evidence the prosecution proposes to use;

(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

This is the "materiality test". The primary duty is to disclose the material which has been gathered by the prosecution in the course of its investigation. It does not follow that only such material need be disclosed. There may be other material.

12. However, applying both the "materiality test" and the primary duty principle to the documents not disclosed in this case, I am satisfied, firstly, in relation to (ii) to (v) above, that Chief Inspector Ho's failure to disclose does not amount to a breach of natural justice resulting in an unfair trial. PW4's second statement on 11 June 1996 was not in the Prosecutor's possession, it was not taken for these proceedings and concerned a matter relating to another person's pager number, the relevance of which has not been established. The photo album, similarly, related to other proceedings and was not in the Prosecutor's possession and has not been shown to be relevant. The District Court transcript was made available in the sense that the applicants were fully aware of its existence and were advised as to how they could acquire a copy. The immunity documents concerned only the District Court proceedings. The terms of the witnesses' immunity in giving evidence against four other defendants in different proceedings could not, in my judgment, be of such relevance to the disciplinary proceedings to the extent that a failure to disclose them would or might result in justice not being done.

13. In relation to (i) above, PW3 and PW4's original "cautioned statements" to the Police, the position is a little more difficult but I am nonetheless satisfied that non-disclosure does not amount to a breach of natural justice for the purpose of these proceedings. Firstly, one must not lose sight of the fact that it is the adjudicator's decision which is the subject of this judicial review. The Prosecutor is a third party. It is nonetheless open to the court to quash a decision based on the conduct of a third party, even where the conduct complained of was not dishonest, which may nonetheless have distorted or vitiated the process which culminated in findings against the applicants. I have come to the conclusion that the fairness of these proceedings were not adversely affected by the Prosecutor's failure to provide the two cautioned statements. Their statements to the ICAC were disclosed. The primary issue for determination was whether these applicants had frequented the premises for the purpose of unlawful gambling. Credibility of witnesses was obviously an issue, as in almost every piece of litigation. The investigation was thorough, the hearing lengthy and the judgment detailed and comprehensive.

14. These were internal disciplinary proceedings in which, as acknowledged by the applicants, the normal rules of evidence and procedure in criminal proceedings do not apply and which are not heard by a trained professional lawyer or judge. I am satisfied that the adjudicator was in a position to make a proper decision and did make a proper decision after a full and fair investigation and hearing. The commentary at page 431 of de Smith's Judicial Review of Administrative Action is apposite when describing procedural fairness :-

"Tucker L.J. in Russell v. Duke of Norfolk said that 'there are, in my view, no words which are of universal application in every kind of domestic tribunal ... whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case'.

The content of fair procedures is therefore infinitely flexible. It ranges from mere consultation at the lower end, upwards through an entitlement to make written representations, to make oral representations, to a fully fledged hearing at the other extreme with most of the characteristics of a judicial trial. What is required in any particular case is incapable of definition in abstract terms. ... In the recent case of Doody, Lord Mustill in summarising the effect of the authorities said: 'The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects."

15. In practical terms, the applicants' complaint amounts to a failure by the Prosecutor to seek out and collect material which did not form part of her case. This was not her duty. It cannot be said, in this case, that her failure to do something which she was under no duty to do, amounts to unfair conduct or a breach of natural justice.

2. Procedural irregularities

16. Mr Ma in his written submission relied on seven matters under this heading. At the hearing he, very properly, only pursued two :-

(a) Unfavourable remarks about PW3

17. In the disciplinary hearing, PW3 in fact gave evidence substantially in favour of the applicants. Early in his evidence, the adjudicator spoke to PW3. The passage in the transcript is 22 lines long. Complaint is made of the following two lines only :-

"have you been interfered by anybody, it would appear you seem to have been spoken to by somebody."

18. It is suggested that by this remark the Tribunal had pre-judged PW3's credibility. I do not find there to be any merit in this point. The adjudicator's interruption was no more than one might expect in a situation where a witness was being difficult. It is clear from the transcript that the adjudicator's patience was being tested. PW3 was being evasive. It was not premature of the adjudicator to form an adverse view of the witness based on his performance in the witness box up to that point. In any event, it could not be said, from this passage, that he had, in fact, formed any adverse view at this stage.

19. Similarly I found there to be no justifiable criticism of the adjudicator's comments about PW3 in his written judgment. He observed that PW3 was a long time friend and colleague of the applicants, particularly the 3rd applicant. In effect he was observing, which he was entitled to do, that a reason for the different nature of his evidence before the Tribunal was due to their relationship. I am satisfied that this was neither irregular nor evidence of bias.

(b) Final Submissions

20. The adjudicator directed that final submissions be in writing. Both sides were given about two months to prepare them. At the submissions hearing, they were read out. Then another month was allowed to prepare written replies which were again read to the adjudicator. I find there to be no substance in the complaint that they were not given the opportunity to make oral responses. The Tribunal is at liberty to make its own rules of procedure. The requirement for written submissions could not be said to be unreasonable. Moreover, the applicants did have the opportunity to make oral submissions. They could have done so at either of the adjourned hearings. There is no suggestion that they were told they had to keep to the script of their written submissions and could not enlarge on them or supplement them.

3. Burden and Standard of Proof

21. Mr Ma submits that the adjudicator got both the burden and standard of proof wrong. The burden is on the prosecution and the standard is akin to the criminal standard. Where in disciplinary proceedings a defaulter is liable to lose his employment and pension rights upon proof of conduct which amounts to criminal activity, the standard of proof, if not actually the criminal standard, only falls short of the criminal standard by a degree which is of no practical significance.

22. In support of the contention that the adjudicator made fundamental errors about these basic principles, Mr Ma has extracted a number of passages from the judgment. I do not propose to list each one and recite Mr Cooney's answer to each one. It is sufficient to state that Mr Cooney's analysis of what was being said in the overall context of the judgment is plainly correct and does not amount to a failure by the adjudicator to apply the correct burden or standard of proof. The passages relied on have been selected from the final 10 pages of a lengthy and comprehensive judgment. They have to be read in context.

23. At the end of the judgment, he said this :-

"After carefully and critically examining the evidence presented by both parties and their written submission, the tribunal believe what PW4 testified before the proceedings is the truthful event and is convinced with no doubt that the defaulters did frequent the premises for the purpose of unlawful gambling. As all the ingredients in the charge have been established, the tribunal is therefore, obliged to find the defaulters D3, D4, D5 and D7 guilty of the charge."

Earlier, he had correctly identified the key issue and the correct burden :-

"The crucial issues for the tribunal to assess are, did the defaulters ever frequent the said location which was a gambling establishment between the period concerned prior to the police raid, and if so, did they ever go there for the purpose of unlawful gambling, or just for social gathering as the defaulters claim?

In order to prove the ingredients of the charge, the prosecution attempts to prove the case by relying mainly on two witnesses, PW3 and PW4. The former was one of the partners organizing the gambling establishment whilst the latter an employee of the establishment. Both of them were one of the 15 persons arrested during the police raid as listed in P Exh 13."

24. The adjudicator was a very senior police officer who had sat as an adjudicator in disciplinary proceedings on over 30 previous occasions. It has to be recognized that he has no professional legal training but he had considerable experience both as a police officer and an adjudicator. In all the circumstances, I consider the complaint that he made fundamental errors concerning the burden and standard of proof not to be made out. In this context, it is worth noting the comments of Liu JA in Tong Pon Wah v. Hong Kong Society of Accountants [1998] 2 HKLRD 427 :-

"... The over-legalising of informal disciplinary proceedings was undesirable. Most disciplinary tribunals were presided over by people with no legal qualifications. Such proceedings were able to and could return correct verdicts but were nevertheless flawed in the courts by a fault finding expedition, to which non-professional judges were more vulnerable. Society would be better served if those involved with public law were more self disciplined and less overzealous, so that professional bodies were not drowned by tedious litigation."

This court does not suggest, by quoting this passage, that these proceedings should not have been brought. It merely serves to make the point that a purely legalistic microscopic analysis of disciplinary proceedings conducted by internal non-legal officers can be counter-productive. By over analysis of detail, sight can be lost of some key questions : did the prosecution have a good case, was it properly presented and heard, did the defaulters get a fair hearing and were they afforded an opportunity to prevent their case? These questions can confidently be answered in the affirmative.

25. From the same case, the remark of Godfrey JA should also be noted :-

"It was not for the Court to second-guess the professional judgment of a disciplinary committee except where it could be seen that it plainly misread the evidence and came to a conclusion which was contrary to the evidence or was otherwise plainly wrong. That could not be said of the committee's decision here."

It is not a ground for allowing the application simply because this court might have reached a different conclusion from that of the adjudicator.

4. Bias

26. The test to be applied to establish bias is as laid down in R. v. Gough [1993] AC 646 and as applied in Cheung & anor v. Insider Dealing Tribunal [2000] 1 HKLRD 807, namely :-

"... having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, ..."

Mr Ma did not abandon his submission on bias. However, towards the end of the hearing, he abandoned five of the six matters he originally relied on. All that remained was the complaint of the adjudicator's unfavourable comment on PW3, together with an allegation that the adjudicator interrupted cross-examination by one of the defaulters.

27. I have already dealt with the unfavourable comment point. As for the interruptions, only one example in 22 days of hearing is relied on. On this one occasion, the adjudicator told one of the defaulters (not one of these applicants) not to labour a point when the witness had said three times that he did not remember a particular date. It is remarkable that serious reliance should be placed on such an intervention as evidence of unfairness or breach of the rules of natural justice. There is clearly nothing in the complaint of bias.

28. In all the circumstances, the application for judicial review is dismissed with costs.