RE CHEUNG WING KWAN AND OTHERS

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J U D G M E N T

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Sir Derek Cons, V.P.:

1. The appellants in these five appeals are police officers who, in September 1986, were members of the 13-strong Kowloon Regional Special Duties Squad No. 2. On the 4th of that month the squad arrested a drug trafficker, one Choi. With Choi's assistance his supplier, one Lo, was also arrested. With information obtained from Lo further action was planned for the following day. However Lo did not then take part as had been expected, for in the meantime he had lodged a complaint of ill-treatment and had been detained in the Queen Elizabeth Hospital. As a result the officers were interdicted from duties on the 12th of the same month.

2. Investigations by Complaints Against Police Office (CAPO) took some time, possibly because, when first approached, all the officers in the squad gave false information about the incident. Eventually, on the 2nd April the following year, charges were laid against all of them. As regards the present appellants the indictment exhibited below alleged (1) false imprisonment of Lo; (2) causing him grievous bodily harm with intent; (3) conspiracy to pervert the course of public justice by falsely representing the time and place of his arrest. The indictment included a further count against the appellants in Civil Appeal Nos. 140 and 142, i.e. respectively Sergeant 13055 Cheung Wing Kwan and Station Sergeant 69278 Lee Tze Ming of (4) doing an act tending and intended to pervert the course of public justice, by inciting Choi to make a false statement to the police; and a final count against Sergeant Cheung alone, of (5) attempting to pervert the course of public justice, by offering advantages to Choi and Lo to be absent from Hong Kong when the trial came on for hearing.

3. The officers were arraigned before Barnes, J., and a jury. The trial, starting on the 12th October 1987, lasted just over three months. The allegations on the first three counts were that some of the squad, including all the appellants, had taken Lo on his arrest to a hillside nearby and there assaulted him with a sledge hammer and burned his private parts and other parts of his body with a cigarette lighter in order to extract information. The evidence of Lo was supported by medical evidence and by confession statements subsequently made by all the appellants save Sergeant Cheung. The voluntary nature of the confessions was vigorously attacked upon a voir dire, some of the officers giving evidence of gross impropriety on the part of the CAPO officers. The judge having admitted the confessions, the attack was repeated before the jury, although only the appellants in Civil Appeal Nos. 143 and 145 then gave evidence, i.e. respectively PC Lee Wood Sing and PC Wong Yu She.

4. On the 21st January 1988 the appellants were acquitted by the jury of all the charges against them. The next day they were reinstated in the Force and continued to carry out their duties until the 1st May the following year, i.e. 1989. Sergeant Cheung was posted to MTR District and in May attended a three-day continuation course at the Police Training School. Station Sergeant Lee attended a similar course after being posted to Yaumatei Police Station, was twice commended by his senior officers and on one occasion assisted Crown Counsel as coroner's officer at a public inquest. PCs Ho (Civil Appeal No. 141) and Wong were each involved during the period in question in a number of arrests leading to convictions or similar action; each also received commendations from senior officers and in one instance from a magistrate.

5. On or about the 1st May 1989 each of the appellants received a letter from the Secretary for the Civil Service advising him that consideration was being given to retiring him in the public interest under Colonial Regulation 59. Paragraphs (1) and (2) of that regulation provide:

"59. (1) The Governor may at any time if it is represented to him that the retirement of an officer is desirable in the public interest, call for a report from the head of any department in which the officer has served. The officer shall be informed of the grounds on which his retirement is contemplated under this regulation and be given an opportunity to make representations.

(2) The Governor may, upon a consideration of the report and of any representations submitted under paragraph (1) of this regulation, require the officer to retire from the service, if he is of the opinion that, having regard to conditions of the public service, the usefulness of the officer thereto and all other circumstances of the case, the termination of the officer's service is desirable in the public interest and his service shall accordingly terminate on such date as the Governor may specify."

6. The letters, which were in general in identical terms, set out the allegations and the evidence upon which the criminal charges had been based and added further complaints as to the falsification or omission of appropriate entries in the officers' police notebooks and as to making unfounded allegations against the officers of CAPO, both to the Regional Commander Kowloon and at the trial in court. The essence of the letters is summarised in a paragraph near the end:

" Notwithstanding your acquittal of the criminal charges, it is obvious from the above that you, as an active participant throughout the chain of events relating to the arrests of the drug traffickers, have committed serious breaches of discipline which have caused the Commissioner of Police to lose all confidence in your integrity as a Police Officer. Your making unfounded and false allegations in court has cast grave doubts on your credibility and reliability as an officer whose duty is to uphold law and order and the Commissioner of Police now finds it impossible to rely on you as witness of truth in any future legal proceedings. It is therefore recommended that your retirement would be in the public interest."

7. The letter to Sergeant Cheung was subsequently reissued with the words "your making unfounded and false allegations in court" removed when he pointed out that he had given no evidence at the trial.

8. The appellants were again interdicted from duty and by letters dated the 24th October 1990, received on or about the 5th November, were advised that the Governor had directed that they be retired in the public interest. The Governor did not exercise the discretion granted to him by s. 6(2) of the Pensions Ordinance, Cap. 89. The appellants will therefore receive no pension for the service they have already completed until each has attained retiring age.

9. Being dissatisfied with the decision the appellants turned to the High Court. In March 1991 Barnett, J., gave them leave to proceed by way of judicial review. The originating motion sought to quash the Governor's decision to retire them in the public interest or a declaration that he acted unreasonably in not exercising his discretion to allow them to receive immediate pension benefits, although the motion is not worded in precisely those terms. Other reliefs were abandoned at the hearing before Woo, J., who, on the 13th August, refused those just set out. By these appeals the appellants renew their applications.

10. Mr. P.K. Lee, who appears here for the appellants as he did below, has to some extent re-argued the points he then made. With every respect to him only one merits further comment, namely the suggestion, in reliance upon Attorney General of Hong Kong v. Ng Yuen Shiu [1983] WLR 735 and Council of Civil service unions & Others v. Minister for the Civil Service [1985] AC 374 that by reinstating the appellants, without adverse comment, upon their acquittal of the criminal charges and allowing them to continue as police officers for some 15 months thereafter, the Crown had raised within them a legitimate expectation that they "would be able to remain in the Police Force without immediate or premature retirement".

11. The judge disposed of that submission in these words:

"Anyhow, these arguments do not, and cannot, amount to establishing a promise or a regular administrative practice giving rise to a legitimate . expectation to the six applicants that they would be allowed to continue with their jobs until normal retiring age. The period of sixteen months between the applicants' acquittals and the notification that they might be retired in the public interest might be long, but I do not consider that it was so lengthy as can be said to amount to a promise or holding out to them thereby creating the asserted legitimate expectation."

12. I find it astonishing that the authorities concerned should have been so dilatory in a matter of such importance not only to the officers concerned, but also to the Force itself. I have no difficulty in appreciating the feelings of the appellants. However unfortunately for them, the matter does not concern them alone. It involves as well the public interest. And implied promises of the kind suggested cannot fetter the duty of the Governor to put that interest first. The authorities relied upon make that quite clear. Thus although the length of the reinstatement remains a factor to be considered, as no doubt it was, it cannot be conclusive.

13. There remains one other point, - one which does not seem to have been advanced below, - that the appellants were not given a reasonable opportunity to be heard in the sense that they were not made aware of material adverse to their interests and which was presented to the Governor. To appreciate this point it is necessary to go more fully into the proceedings.

14. In May 1988, some four months after the acquittals, there was a meeting between officials from the Police, Legal Department and Civil Service Branch at which it as agreed that action under Colonial Regulation 59 was a viable option. Accordingly a composite memo was prepared on behalf of the Commissioner with regard to the appellants and two others who do not concern us here. Headed "Recommendation for retirement in the public interest" it set out, as later did the letter from the Secretary for the Civil Service, the allegations and evidence on which the criminal charges had been based, the falsifications of the notebooks and other police records and the imputations on the conduct and integrity of the CAPO officers. Indeed the individual letters were taken almost verbatim from the memorandum, with minor adaptation as necessary. However, possibly with deference to some misplaced concept of "legal privilege", parts of the memorandum were not transcribed. For example, paragraph 13 records the comments of the Senior Assistant Crown Prosecutor who was prosecuting counsel at the trial:

"At the trial the Crown sought to lead in evidence the cautioned statements of the twelve accused who made them (Sgt 13055 did not make a statement under caution). Apart from CHAN each of the others contended that the statements were involuntary in an attempt to have them excluded. On behalf of each, allegations of gross impropriety were made against the CAPO officers involved. A number of them gave evidence in line with their allegations. Every statement was admitted in evidence after the voir dire. The allegations made were fantastic, and given the fact that they came from police officers, disgraceful. Every officer from CAPO who gave evidence on the voir dire was fully supported by the signed cautioned statements themselves. It was abundantly clear that those accused who made the allegations and gave evidence were lying on oath.

Four of the accused gave evidence before the jury. They were CHAN, the 4th, 5th and 6th accused (three of the PC's who allegedly held LO down whilst he was being tortured and who confessed to just that). Given the fact that they were police officers, their evidence was a disgrace. They had concocted a new, and totally unbelievable, version of events both at the hillside and later. They were evasive when cross-examined and were clearly lying.

As a result of the lies all of these accused told the team investigating LO's allegations, the Crown has already had to discontinue proceedings against three major drug traffickers. The view was taken that we could not possibly ask any Court to accept them as witnesses of truth. If that was the view then, it must be even more so now, given the conduct of this trial. I, for one, would never authorise a prosecution which depended on the word of any of these accused."

The 5th accused there referred to is PC Wong and the 6th is PC Lee. Paragraph 15 adds the comments of the Director of Public Prosecutions:

"We must not, as prosecutor for the Crown, be placed in a position in which, in a prosecution, we have to rely on any of these police officers as witnesses to the truth. If that position did arise, we would be obliged to think long and hard before proceeding."

Both were referred to again in paragraph 20:

"It is appreciated that the officers, as accused persons, have a right to defend themselves. However the conspiracy joined by them to provide false information to the investigating officers and the subsequent allegations of gross impropriety levelled by them during the course of the trial which were disbelieved by the Court and further discounted by an internal examination have, in my view, transcended the bounds of honesty and reason. In this regard the comments of the Director of Public Prosecutions and the Prosecuting Counsel are particularly relevant."

These remarks were not brought to the attention of the appellants but the memorandum as such was included in the documents forwarded to the Governor.

15. All the appellants made representations to the Secretary for the Civil Service as they had been so invited by his letter in accordance with paragraph (1) of the regulation. These were passed on to the Commissioner for his comments, which now appear in our papers, at least insofar as the first four appellants are concerned, only as unsigned and undated documents. Whether a similar document was issued with regard to the 5th appellant is hard to say, having regard to the inconsistency between paragraph 8 of the affidavit of Kitty Choi Kit Yu dated the 20th July 1991 and the exhibit "KCKY-4" annexed thereto. The texts of the documents vary according to the individual submissions they were answering, but each nevertheless contains the following paragraph :

"I will agree that there was no element of corruption involved in the officers' conduct, however, I must challenge his claim that his public reputation remains untarnished, clearly it has been as witnessed by the remarks of the Director of Public Prosecutions (DPP) and the Senior Assistant Crown Prosecutor involved in this case. Not only has the public reputation of these officers suffered irreparable harm, their professional reputation has also been left in ruin as they have lost the respect of their brother officers. These related aspects form the cornerstone of the CR 59 case."

Neither the contents nor the existence of these documents were made known to the appellants, but again they were included in the bundle forwarded for the consideration of the Governor.

16. Our attention has been drawn to the advice of the Privy Council in B. Surinder Singh Kanda v. Government of the Federation of Malaya [1962] AC 322 @ 337:

" If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has-been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn L.C. in Board of Education v. Rice down to the decision of their Lordships' Board in Ceylon University v. Fernando. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing. Instances which were cited to their Lordships were In re an Arbitration between Gregson and Armstrong, Rex v. Bodmin Justices, Ex parte McEwen and Goold v. Evans & Co., to which might be added Rex v. Architects' Registration Tribunal, and many others."

17. Fernando's case has some similarity with the present. It concerned the finding of a Vice Chancellor's commission that a student had acquired advance knowledge of an examination paper. The student's complaint was that the evidence, in particular that of the principal witness against him, was taken in his absence and that he had no opportunity to question her, albeit that he did not ask to do so. The question which their Lordships posed for themselves was whether he had been given a fair opportunity to correct or contradict any relevant statement to his prejudice, a question which they felt resolved itself into the two requirements that he should be adequately informed of the case he had to meet and given an adequate opportunity of meeting it. In the circumstance that at his first interview the student was informed that the witness had made the charge against him, and that its nature was explained to him in detail; and that the two interviews which gave him an opportunity to explain were in fact fairly conducted, contrary to his contention, their Lordships were satisfied that the two requirements had been met. They did not think it necessary that the commission should have volunteered a suggestion that the student might wish to question the witness.

18. The present appeal has caused me considerable anxiety, for the views of the prosecuting counsel are very forcefully expressed and strongly supported by the Director of Public Prosecutions and the Commissioner's further comments. But on reflection and having regard to the approach of their Lordships in Fernando 1 have in the end come to the conclusion that by the letter from the Secretary for the Civil Service each appellant was adequately, as regulation 59 requires, "informed of the grounds on which his retirement (was) contemplated", that is to say, the Commissioner had lost all confidence in the appellant's integrity as a police officer and now found it impossible to rely on him as a witness of truth in any future legal proceeding. As to these there was ample opportunity "to make representations". The judge below was therefore correct to refuse an order of certiorari.

19. As to payment of pensions, sections 6(1)(i) and (2) of the Pensions Ordinance provides as follows:

" 6. (1) Subject to subsection (2), unless otherwise provided under this Ordinance or regulations made thereunder no pension, gratuity or other allowance shall be granted under this Ordinance to any officer holding an established office except on his retirement from the public service in one of the following cases -

.....

(i) subject to subsection (2), on retirement in the public interest;

.....

(2) Unless otherwise directed by the Governor, pension, gratuity or other allowance granted to an officer to whom subsection (1)(i) or (j) applies shall not be payable until the officer attains the age of 55 years."

20. The suggestion that in all the circumstances - in particular the excellent service of the appellants before and after the incident - the only reasonable course open to the Governor was to direct immediate payment of pensions does not appear to have been pursued with any vigour below. Nor was it in this Court. For my part I am not so persuaded.

21. For these reasons I would dismiss the appeals.

Fuad, V.-P.:

22. I have had the advantage of reading the judgment of Sir Derek Cons, V.-P. in draft and agree, for the reasons he has given, that these appeals should be dismissed. However, I will add a few words of my own.

23. When the principles of natural justice are to be applied, no rigid rules can be laid down. Everything will depend on the nature of the inquiry or other proceedings sought to be impugned, and the circumstances of the case. Essentially, it seems to me, what we have to decide is whether the Governor, when exercising his powers under Colonial Regulation 59, acted fairly to the police officers. The Governor was not required to proceed as if he were conducting a trial.

24. It was, of course, essential that the police officers should have been told what case they had to meet and given the chance to answer, contradict or explain. However, no authority to which we were referred insists, in relation to a procedure of the kind the Governor was conducting, that persons affected be shown all the material submitted to him.

25. Mr. P.K. Lee has drawn our attention to certain observations by the Senior Assistant Crown Prosecutor who represented the Crown at the trial which led ultimately to the compulsory retirement of the police officers, and by the Director of Public Prosecutions, which appear in the memorandum dated 25th August 1988 from the Commissioner of Police to the Secretary for the Civil Service. This memorandum was amongst the papers submitted to the Governor, but the police officers did not see it. These observations were not repeated in the letter they were sent dated 1st May 1989. Mr. Lee's main complaints concern paragraphs 13 and 15 of the August 1988 letter, which are set out in the judgment of Sir Derek Cons. In my view the remarks of the prosecuting counsel and of the DPP added nothing material to the representations made to the Governor which the police officers did see. If the allegations made against them were well founded, it did not need counsel to categorise the evidence of those officers who testified as "a disgrace". Once the Commissioner of Police is reported to have said that "he now finds it impossible to rely on you as a witness of truth in any future legal proceedings" it must have been obvious to the police officers that this view had been formed with the benefit of advice from the prosecuting authorities. The Commissioner himself does not call witnesses. The allegation that the police officers who had given evidence "had concocted a new and totally unbelievable version of events" was at the heart of the allegations about which they had full knowledge.

26. In my judgment, the procedure adopted amply satisfied the requirements of Colonial Regulation 59(1):

"... The officer shall be informed of the grounds on which his retirement is contemplated under the regulation and be given an opportunity to make representations."

as well as the need to be fair. There was no violation of the rules of natural justice.

Power, J.A.:

27. I repeat and rely upon the facts set out in the judgment of Sir Derek Cons V.-P. I am in respectful agreement with his decision that the Governor's duty to act in the public interest cannot be fettered by an expectation that having been reinstated by the Commissioner of Police and employed for 15 months the officers would not be subjected to premature retirement.

28. I am, however, persuaded that the appellants would be entitled to succeed upon the ground that they were not given a fair opportunity to be heard on the matters that were being urged against them at the time when the Governor came to make his decision as their accusers were given the opportunity to make material representations behind the backs of the appellants. Upon analysis what occurred was objectionable upon two grounds. Firstly it was wrong that approaches were made to the Governor which were both unauthorized by Colonial Regulation 59 and were not revealed to the appellants. Secondly, and more seriously, it was gravely prejudicial to them that the approach both slanted the allegations being made and placed a different emphasis thereon. The applicants were, in my view, applying the test in Ceylon University v. Fernando [1960] 1 W.L.R. 223; [1960] 1 All E.R. 631, P.C. neither adequately informed of the case which they had to meet nor given an adequate opportunity of meeting it.

29. The essence of the original allegations is, as Sir Derek Cons said, set out in the following passage of the letter from the Secretary of the Civil Service received by each appeal on or about, 1st May 1989:

"Notwithstanding your acquittal of the criminal charges, it is obvious from the above that you, as an active participant throughout the chain of events relating to the arrests of the drug traffickers, having committed serious breaches of discipline which have caused the Commissioner of Police to lose all confidence in your integrity as a Police Officer. Your making unfounded and false allegations in court has cast grave doubts on your credibility and reliability as an officer whose duty is to uphold law and order and the Commissioner of Police now finds it impossible to rely on you as witness of truth in any future legal proceedings. It is therefore recommended that your retirement would be in the public interest."

30. This indicates to the appellants that their retirement is being recommended because:

(1) they committed breaches of discipline at the time of the alleged offences which caused the Commissioner of Police to lose confidence in their integrity;

(ii) their making of unfounded and false allegations in court has cast such doubts on their credibility and reliability as police officers that the Commissioner of Police finds it impossible to rely on them as witnesses of truth in future proceedings.

31. Summarized this informed the appellants that because of their conduct prior to and at the trial the Commissioner had no confidence in their integrity and could not rely upon them as witnesses of truth. The latter allegation did not, of course, apply to Sergeant Cheung.

32. What they were not told was that material-being acted upon included:

(i) an allegation by the counsel who conducted the prosecution that their evidence at trial was "a disgrace",

(ii) an allegation by him that "they had concocted a new, and totally unbelievable version of events ..."

(iii) a statement by him that he "would never authorize a prosecution which depended upon the word of any of these accused".

(iv) that the Director of Public Prosecutions was not prepared to rely upon any of the police officers as witnesses of truth.

33. The question to be asked is whether these allegations went beyond the indication that the reason for recommending retirement was because the Commissioner of Police found it impossible to rely upon the officers because of their conduct prior to and at the trial? I am satisfied that they did. Indeed the applicants may well have been misled by this indicator as at least some had after reinstatement by the Commissioner been called to give testimony in court which resulted in convictions. The real thrust of the case against them as it being put in the undisclosed passages was that the Director of Public Prosecutions and his officers were not prepared to call them as witnesses. It might be suggested that, however it was stated, the real allegation was loss of confidence by the authorities and that this was clearly made known to them. This suggestion would, in my view, be an unfair over-simplification. The matters not conveyed to the appellants placed a quite different emphasis upon the eventually seen by the Governor. The unfairness can be most simply demonstrated by observing that it would be no answer to the allegations in their eventual formulation to say, as some of the appellants did – how can the Commissioner say he has lost confidence in me as a witness when he has during the past 18 months been calling me to give evidence.

34. I refer in this regard to the judgment of the court delivered by Lord Denning in Kanda v. Government of Malaya [1962] A.C. 322, at 337, as follows

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn L.C. in Board of Education v. Rice down to the decision of their Lordships' Board in Ceylon University v. Fernando. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing."

35. There were in my view representations received behind the back of the appellants which might have worked prejudice.

  The matter does not rest there. The replies of the appellants to the letter of the Secretary for the Civil Service were passed to the Commissioner of Police who, at least as far as the first four appellants were concerned, made comments thereon. These also were never shown to the appellants but were passed to the Governor for his consideration. In his comment the Commissioner of Police specifically relies, when rebutting the claim of unfurnished reputation, upon "the remarks of the Director of Public Prosecutions (D.P.P.) and the Senior Assistant Crown Prosecutor involved in this case", of which the appellants were, of course, wholly unaware. The Commissioner goes on to state that "their professional reputation has been left in ruins as they have lost the respect of their brother officers". This was a telling thrust. It must be taken as a suggestion that they were of little use in the police force as since their return to duty it had become apparent that they had lost the respect of their brother police officers.

36. That the Commissioner was asking the Governor to rely upon the remarks of the D.P.P. and the Senior Assistant Crown Counsel and the loss of respect of brother officers cannot be doubted as he concludes his observations by saying that these "aspects form the cornerstone of the CR59 case". (my emphasis.)

37. The case for retirement as put to the Governor was that the applicants should in the public interest be retired as their actions prior to and, at the trial had caused the Commissioner of Police, the Director of Public Prosecutions and, as had become apparent since the trial, their brother officers to lose respect for and confidence in them as police officers and that they could, therefore, be of no further use in the police force.

38. I am satisfied that this was a different and much stronger case than that which was revealed to them.

39. I am, for the foregoing reasons, satisfied that the appeals should succeed.

Sir Derek Cons, V.P.:

40. In dismissing these appeals by a majority we make an order nisi that the Respondent shall have his costs.